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Garner v. Gerber Collision & Glass

United States District Court, E.D. Michigan, Southern Division

August 24, 2017

ERNEST GARNER, Plaintiff,
v.
GERBER COLLISION & GLASS and JOHNATHAN BARNES, Defendants.

          ORDER AND ORDER GRANTING GERBER'S MOTION FOR SUMMARY JUDGMENT AND GRANTING BARNES'S MOTION FOR SUMMARY JUDGMENT

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         Pending before the court are separate motions for summary judgment filed by Defendants Gerber Collision and Glass (“Gerber”) and Johnathan Barnes. (Dkts. ##27, 28.) The motions are completely briefed (Dkts. ##38, 39, 41, 42), and the court concludes that no hearing is necessary. See E.D. Mich. LR 7.1(f)(2). For the following reasons, the court will grant both motions.

         I. BACKGROUND

         Gerber is a full-service automotive collision repair facility where Plaintiff Ernest Garner worked first as a customer service representative, then as a parts coordinator, and finally as parts manager, all under the direct supervision of Defendant Barnes. During this time Plaintiff, who is African American, was the unwilling butt of a number of racially charged jokes by his coworkers.[1] Plaintiff claims that these jokes often occurred in the presence of Barnes, and it is undisputed that a few times Barnes was the source of the abuse. Barnes suggests that his jokes were entirely innocuous and lacked any racial components. For example, he contends that his statements to Plaintiff that “of course the black guy gets the chicken” and “[c]alm down, you know it's not chicken[;] we know that's what you're used to” were references to his knowledge that “Plaintiff loved chicken as his favorite meat, even enjoying chicken as the family Thanksgiving treasure[, ]” rather than to offensive racial stereotypes.

         Plaintiff began surreptitiously recording his interactions with his coworkers, and eventually complained to Human Resources via phone. Approximately an hour later, two higher-ups from Gerber appeared to investigate, resulting in an outwardly contrite Barnes offering apologies to Plaintiff and promising to take steps to prevent future abuse. Plaintiff believes these measures were never implemented, and that at least one coworker continued to pantomime references to Adolf Hitler at him after this meeting. Plaintiff also alleges that he was given more work than similarly situated white counterparts, that when he was promoted he was not given a matching pay increase that normally attends promotions of white co-workers, and that none of this harassment or discrimination would have occurred in the first place had he been white.

         Some weeks later, Plaintiff discovered a racial slur written on the back of his truck in red or pink colored paint pen. He alleges that when he reported this to management along with a photograph, he was not taken seriously. He says that they instead jokingly expressed their admiration of the beautiful handwriting used. Plaintiff then resigned from Gerber without awaiting the result of any investigation, and he did not return despite entreaties from upper management that he accept a transfer to a different location. Plaintiff admits that he is not certain whether a Gerber employee vandalized his truck. His complaint alleges claims for racial discrimination and racial harassment under the Michigan Elliot-Larsen Civil Rights Act (“ELCA”), ethnic intimidation under M.C.L. § 750.147b, race discrimination and harassment under Title VII, retaliation, and intentional infliction of emotional distress, requesting over $1, 000, 000 in damages as well as injunctive relief.

         Gerber moved for summary judgment, arguing that Plaintiff's claims for racial harassment under Title VII and the ELCA fail because Gerber's energetic response to Plaintiff's complaint means that he cannot show that Gerber tolerated or condoned the harassment and thus had failed to take corrective or preventative action-a requirement to establish a prima facie claim. Gerber also asserts that Plaintiff cannot prove claims for retaliation or discrimination because he suffered no adverse employment action as he voluntarily terminated his employment of his own accord after Gerber tried to resolve his complaints about harassment. Gerber also contends that Plaintiff's allegations of pay discrimination are unsubstantiated as he cannot identify similarly situated employees of another race who were paid more than he was. Gerber insists further that Plaintiff's claim for ethnic intimidation fails because his “vague allegation” of threats was insufficient, and he has not shown personal injury or property damage. Finally, Gerber argues that the claim for intentional infliction of emotional distress cannot succeed because the complained-of conduct does not rise to the level of conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be regarded as atrocious, and utterly intolerable in a civilized community[, ]” as required under Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 374 N.W.2d 905 (1985).

         Defendant Barnes also moved for summary judgment. He argues that Plaintiff cannot succeed on his Title VII claims because Barnes was his supervisor, not his employer. He goes on to state that Plaintiff cannot establish claims for retaliation because his decision to voluntarily quit cannot be viewed as an adverse employment action, and Barnes, far from discriminating against Plaintiff, recommended him for several promotions. Barnes contends that Plaintiff's racial harassment claim fails because the complained-of conduct never rose to the necessary level of hostility and was corrected upon Plaintiff's formal complaint. Like Gerber, Barnes also insists that Plaintiff's ethnic intimidation claim is faulty because Barnes never had physical contact with Plaintiff, did not damage his property, and did not threaten to do so. Finally, he argues that Plaintiff's allegations do not constitute the outrageous conduct necessary to establish a claim for intentional infliction of emotional distress.

         Plaintiff's responses to both motions are nearly identical. First, he contends that he was indeed subjected to harassment and discrimination, and that knowledge of this treatment should be imputed to Gerber since Plaintiff's supervisor, Barnes, either knew about or participated in the conduct and failed to take any action to prevent it. He argues that he was forced to do more work for less pay than similarly situated employees, and that, far from voluntarily quitting, he was constructively discharged from his position in virtue of the intolerable conditions. He claims to have suffered emotional distress from his treatment at Gerber, and also that the failure of Defendants to meaningfully respond to his complaints constitute an adverse employment action sustaining a claim for retaliation. Plaintiff insists that Defendants “acquiesced” to threats constituting ethnic intimidation. Finally, he offers that the harassment he endured was, in fact, sufficient to satisfy the standard for outrageous conduct supporting intentional infliction of emotional distress.

         Defendants' reply briefs are very similar. They both argue that Plaintiff admits Gerber took “prompt remedial action to rid the workplace of any alleged discriminatory or harassing conduct, after which the alleged harassment ceased.” Defendants claim that because Gerber took reasonable steps to address any misconduct once Plaintiff reported it, Defendants cannot be held responsible. They offer further that Plaintiff has no support for his belief that he was paid less than similarly situated workers or for his ethnic intimidation and emotional distress claims. They also contend that the conditions of Plaintiff's employment were not sufficiently “intolerable” to constitute the adverse employment action of constructive discharge.

         II. STANDARD

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor.” Sagan v. United States, 342 F.3d 493, 497 (6th Cir. 2003). The movant has the initial burden of showing the absence of a genuine dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]hat burden may be discharged by showing . . . that there is an absence of evidence to support the nonmoving party's case.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (internal quotation marks omitted).

         The burden then shifts to the nonmovant, who must put forth enough evidence to show that there exists “a genuine issue for trial.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citation omitted). Summary judgment is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). In evaluating a summary judgment motion, “the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial . . . credibility judgments and weighing of the evidence are prohibited.” Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015) (internal quotation marks and citations omitted).

         III. DISCUSSION

         A. Whether Plaintiff May Recover Against Barnes Under Title VII

         Barnes argues that, even assuming Plaintiff can otherwise establish a prima facie case under Title VII, the court must grant summary judgment against Plaintiff as to his claim against Barnes, because Barnes was never ...


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