United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION TO
STRIKE JURY DEMAND
F. Cox United States District Judge
filed this action against her former employer and two of its
managers, asserting pregnancy discrimination claims under
Title VII and Michigan's Elliott Larsen Civil Rights Act
(“ELCRA”). The matter is currently before the
Court on “Defendants' Motion for Summary Judgment
And, Alternatively, to Strike Jury Demand.” The parties
have fully briefed the issues and the Court heard oral
argument on June 15, 2017. For the reasons set forth below,
the Court shall: 1) DENY Defendants' Motion for Summary
Judgment; and 2) GRANT Defendant's unopposed request to
strike Plaintiff's jury demand.
Jennifer Martin (“Martin”) filed this action on
May 27, 2016, and filed an Amended Complaint on June 1, 2016.
Her Amended Complaint asserts claims against three
defendants: 1) Tall Brown Dog, LLC (“Tall Brown
Dog” or “the Company”), Martin's
previous employer; 2) Brian Paavola (“Paavola”);
and 3) Mark Silverstein (“Silverstein”). Her
Amended Complaint asserts the following claims:
“Count I - Violation of Title VII” wherein Martin
alleges that Defendants discriminated against her based on
her sex and the fact that she was pregnant and improperly
terminated her from her position as a Business Development
Lead, in violation of Title VII.
“Count II - Violation of the Elliott-Larsen Civil
Rights Act” wherein Martin alleges that Defendants
discriminated against her based on her sex and the fact that
she was pregnant, and terminated her from her position as a
Business Development Lead, in violation of Section 202 of the
Amended Complaint includes a jury demand. (D.E. No. 3 at Pg
the close of discovery, Defendants filed a “Motion for
Summary Judgment And, Alternatively, To Strike Jury.”
(D.E. No. 21).
Court's practice guidelines, which are expressly included
in the Scheduling Order issued in this case, provide,
consistent with Fed.R.Civ.P. 56 (c) and (e), that:
a. The moving party's papers shall include a separate
document entitled Statement of Material Facts Not in Dispute.
The statement shall list in separately numbered paragraphs
concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate
document entitled Counter-Statement of Disputed Facts. The
counter-statement shall list in separately numbered
paragraphs following the order or the movant's statement,
whether each of the facts asserted by the moving party is
admitted or denied and shall also be supported by appropriate
citations to the record. The Counter-Statement shall also
include, in a separate section, a list of each issue of
material fact as to which it is contended there is a genuine
issue for trial.
c. All material facts as set forth in the Statement of
Material Facts Not in Dispute shall be deemed admitted unless
controverted in the Counter-Statement of Disputed Facts.
(D.E. No. 14 at 2-3).
compliance with this Court's guidelines, in support of
their Motion for Summary Judgment, Defendants filed a
“Statement of Material Facts Not In Dispute”
(D.E. No. 21 at Pg ID 77-79). (“Defs.'
Stmt.”). In response to that submission, Martin filed a
“Counter-Statement of Disputed Facts” (D.E. No.
25 at Pg ID 320-23) (“Pl.'s Stmt.”).
following material facts are gleaned from the evidence
submitted by the parties, viewed in the light most
favorable to Martin, the non-moving party.
Brown Dog sells temporary labor to a variety of companies.
Martin was employed by the Company from late May of 2015
until October 5, 2015. (Defs.' Stmt. & Pl.'s
Stmt. at ¶ 1). Paavola is the CEO of the Company.
reported to Silverstein, the Vice President of Sales and
Marketing. (Martin Dep. at 44).
testified that in addition to sales, her position was also
considered a “leadership position” and that part
of her role was going to involve tasks that other sales
persons did not have:
A. Both Cormac and Mark [Silverstein] discussed with me a lot
about my social selling that I was talking about when I was
hired and wanted me to develop that and teach my peers that .
So it was sort of an experiment, if you will, does this work,
can we apply it, how will we apply it type process for
myself. They said, “We're going to call you a
salesperson -” or actually, they let me call myself
business development because I didn't want to be called
sales, but from there they wanted me to basically delve into
social selling and selling online.
Q. How did they communicate that want to you?
Q. Was this before you were hired or after?
Dep. at 46). Silverstein also testified that “business
development” was part of Martin's title.
(Silverstein Dep. at 25 & 27). It is undisputed that
Martin was paid a higher salary than other employees who held
the title of sales associate.
she was hired, Martin was given a “scorecard”
that laid out the Company's expectations for sales
associates. (Defs.' Stmt. & Pl.'s Stmt. at ¶
1). Martin testified that because she was going to be in a
leadership position as well as sales, the Company told her
that the scorecard would only loosely apply to her:
Q. Did you talk about this scorecard at all in the context of
your employment at Tall Brown Dog?
A. The way this was given to me is, and you can sort of tell
by our wages how they differed, my wage to the other
salespersons' wages, that I would be in a leadership
position. They said, “This is what we give our
salespeople.” And they said, “We're going to
be changing these things and this a loose - for you, it's
very loose as far as what we want for you.
. . . .
Q. Did they ever tell you that you weren't going to be
held to these key outcome standards?
(Martin Dep. at 45-46).
after beginning her employment with the Company, Martin
became pregnant. On June 20, 2015, She informed Silverstein
of her pregnancy in an email that read:
I have news. I'm pregnant - due 2/2016. I found out
Wednesday and saw the baby doctor today. She cautioned me on
foods and medications and then added warnings about heat. I
mentioned that I would be outside for a few hours on Tuesday
and she let me know there's no way for me to know my
inner core temp in the heat while active. She said 101
degrees causes miscarriage and can happen due to dehydration.
She was concerned also because I'd mentioned I am a golf
novice. . . . I asked her if I carried a water and didn't
fully swing if it would be okay but I think she wanted to err
on the side of caution . . . I want to let you know that
I'm very capable in my current state . . . I am used to
working while carrying. I'm happy to be here. I'm
already seeing that I've helped a few members of our
sales team in certain ways . . . I look forward to what is
(D.E. No. 25-3). Silverstein responded:
Congratulations! Please plan on still coming to the meeting,
there is no need to take a risk with golfing but will you ask
your doctor about just driving the golf cart and keeping in
I certainly agree that you have helped with the sales team
and would not expect anything less during your pregnancy and