United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT.
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
a gender discrimination case. Plaintiff Stacie Meyer alleges
that Defendant Sears Outlet Stores (“SOS”)
discriminated against her on the basis of her gender when it
fired her and replaced her with a male. Defendant has moved
for summary judgment, which Plaintiff opposes. For the
reasons outlined below, Defendant's motion is
GRANTED in part and DENIED
was a General Manager II (“GM II”) at the
Livonia, Michigan Sears Outlet Repair and Distribution Center
(“ORDC”) when Defendant fired her and replaced
her with a male in July of 2015. Dkt. 25, Pg. IDs 519, 530.
Plaintiff had started with another Sears entity in 2009 and
had worked her way up the ladder-from Assistant Store
Manager, to Manager, and eventually to GM II. Dkt. 25, Pg. ID
519. Plaintiff's complaint includes general factual
allegations about her experience working for Defendant, which
provides helpful context to Plaintiff's case. Plaintiff
states that throughout her employment, she was repeatedly
subject to discriminatory comments and conduct because of her
sex and gender. Dkt. 6, Pg. ID 49. Plaintiff highlights one
occasion that occurred in June 2012 (prior to Defendant's
separation from Sears Holding Corporation) where she was
passed over for a promotion. Plaintiff states she was
outright told that she was passed up for the promotion
because of her gender. Dkt. 6, Pg. ID 49.
case involves Plaintiff's employment at Defendant's
Livonia, Michigan ORDC. ORDCs prepare products for sale at
Sears's outlet stores. Dkt. 25, Pg. ID 519. This process
involves testing, repairing, and cleaning products and then
shipping them out in floor-ready condition. Dkt. 25, Pg. ID
519. Defendant tracks how each ORDC does in this process, and
releases a weekly “scorecard” that ranks the
ORDCs in different categories of performance. Dkt. 25, Pg. ID
ORDC often had low rankings in four categories that showed
that the ORDC was processing products slowly and sending them
out in poor condition. Dkt. 25, Pg. ID 521. Other metrics
unrelated to the quality of the ORDCs work, however,
compensated for the processing deficiencies, so the
ORDC's overall ranking usually fell in the middle of the
pack. Dkt. 25, Pg. ID 520.
September of 2014, Defendant changed its management
structure, which meant that Jonathan Waters became
Plaintiff's supervisor. Dkt. 25, Pg. ID 521. He visited
the Livonia ORDC the next month, and during the visit went
through the building with Plaintiff and discussed issues he
had discovered upon inspection. Dkt. 25, Pg. ID 521. It
turned out that this walk-through was intended as a verbal
warning that started Plaintiff on a Performance Improvement
Plan (“PIP”), part of Defendant's progressive
discipline process. Dkt. 25, Pg. ID 522. But Waters did not
inform Plaintiff during the walk-through that she was being
put on a PIP; Waters called Defendant's HR department
after the meeting ended and had them deliver the message.
Dkt. 25, Pg. ID 522.
record shows that a typical PIP for an employee of SOS would
last 90 days, with checkpoints conducted every 30 days to
determine whether the employee is improving. Dkt. 29, Pg. ID
783. After the end of the initial 90-day period, the PIP
either concludes or is extended. Dkt. 29, Pg. ID 783. If
circumstances justify an extension, the extension is recorded
in writing. Dkt. 29, Pg. ID 783.
maintains that her PIP was extended despite positive comments
and feedback from Waters. Dkt. 29, Pg. ID 783. At his
deposition, Waters acknowledged that Plaintiff was placed on
an open-ended PIP, with no set time frame or completion date.
Dkt. 29-1, Pg. ID 966. Waters testified that he could not
recall documenting Plaintiff's PIP extension in writing.
Dkt. 29-7, Pg. ID 978.
returned in early December and completed another walk-through
with Plaintiff. Dkt. 25, Pg. ID 523. The following day, on
December 4, 2014, Waters presented Plaintiff with a
Discipline/Corrective Action form, which identified areas
where Plaintiff was not meeting Defendant's expectations.
Dkt. 25, Pg. ID 523. On December 11, 2014, Plaintiff
discovered that Defendant had sought to replace her by
posting her job on Indeed.com. Dkt. 29, Pg. ID 779. On
December 14, 2014, Plaintiff submitted a rebuttal letter
detailing her disagreement with Waters' December 4, 2014
assessment of her performance and complaining of gender
discrimination. Dkt. 25, Pg. ID 523.
there was a fire.
December 28, 2014, at 12:54 a.m., the ORDC's alarm
company placed a call to Plaintiff, but she did not answer
the phone. Dkt. 25, Pg. ID 524. The alarm company called
again at 1:15 a.m. Dkt. 25, Pg. ID 524. Plaintiff answered,
and the company told her that motion had been detected in the
ORDC and that police were on the way. Dkt. 25, Pg. ID 524.
The alarm company called Plaintiff again at 2:30 a.m. and
informed her that there had been a fire at the ORDC. Dkt.
25-9, Pg. ID 712. Plaintiff then responded to the ORDC,
arriving at 3:30 a.m. Dkt. 25, Pg. ID 525.
December 31, 2014, following the fire, Defendant issued
Plaintiff a final warning for “failure to follow
company process on protecting company assets and continued
instances of failure to follow operational procedures.”
Dkt. 25, Pg. ID 526. The final warning alleged that Plaintiff
had failed to follow company policy when, after being
informed of the alarm, she went back to bed instead of going
immediately to the ORDC. Dkt. 25, Pg. ID 526. It also alleged
that Plaintiff was still failing to ensure that the products
the ORDC shipped to outlet stores were cleaned properly. Dkt.
25, Pg. ID 526. And it warned that failure to follow company
policy could result in termination. Dkt. 25, Pg. ID 526.
performance improved after she received the final warning,
but Defendant maintains that she continued to struggle when
it came to the quality of product the ORDC was sending to
outlet stores. Dkt. 25, Pg. ID 526. Defendant utilizes an
annual performance review process to evaluate its employees.
A performance review score includes a “Business
Results” element-which is based on performance
scorecards-as well as a “Behavioral Results”
element, which is based on a manager's personal
interaction with the employee. Plaintiff maintains that she
was treated differently from male co-workers with respect to
the calibration and reduction in her performance scores, and
specifically her 2014 performance scores, which were
calibrated in April of 2015. Dkt. 29, Pg. IDs 783-85.
Plaintiff states she was one of three women GMs subordinate
to Waters whose scores were lowered, while no other male GMs
had their scores lowered by Waters. Dkt. 29, Pg. ID 793.
Plaintiff emphasizes that Waters' subjectively
calibrating her performance review score downward negatively
affected her pay. Dkt. 29, Pg. ID 809.
sent Plaintiff an email on April 21, 2015 that instructed
Plaintiff to assign an employee to monitor the trucks leaving
the ORDC and to give that employee the authority to stop from
leaving the facility any item that was not in floor-ready
condition. Dkt. 25, Pg. ID 527. Defendant argues Plaintiff
ignored the instruction. Dkt. 25, Pg. ID 527. However,
Plaintiff testified that an employee was in fact monitoring
products that were leaving the facility, but that Plaintiff
was not holding the employee responsible since “it was
a whole group's team to work.” Dkt. 25-2, Pg. ID
the email, the ORDC had more issues with dirty products
leaving the facility. Dkt. 25, Pg. ID 528. On May 23, 2015,
one store manager complained that the facility had shipped a
load of refrigerators that were rusted and smelly. Dkt. 25,
Pg. ID 528. On May 24, 2015 another store manager complained
that the facility had shipped two refrigerators that were
covered in ash and soot. Dkt. 25, Pg. ID 528. So, on June 11
and 12, 2015, Waters visited the ORDC again to emphasize the
importance of sending out clean products. Dkt. 25, Pg. ID
came an incident involving refrigerators shipped with blue
film on them.
24, 2015, one of Defendant's executives visited a store
in Taylor, Michigan, and saw that it was selling
refrigerators that still had blue film on them-film Defendant
states should not have been on refrigerators shipped from the
ORDC. Dkt. 25, Pg. ID 528. So the executive told Waters'
supervisor, Brandon Gartman (“Gart-man”), who
asked Waters to investigate further. Dkt. 25, Pg. IDs 528-29.
One day later, on June 25, 2015, Waters called Plaintiff to
inquire about what had happened. Dkt. 25, Pg. ID 529. At
first he asked Plaintiff whether she had intentionally
shipped “dirty” products to outlet stores. Dkt.
25, Pg. ID 529. She twice denied doing so. Dkt. 25, Pg. ID
529. Then he asked Plaintiff if she had intentionally shipped
refrigerators with the blue film still on them, and she
stated that she had. Dkt. 25, Pg. ID 529. Waters concluded
that Plaintiff's denials of shipping “dirty”
products were untruthful. Dkt. 25, Pg. ID 529. Defendant
fired Plaintiff the next day, June 26, 2015. Dkt. 25, Pg. ID
to the blue film incident, Plaintiff had been told by
Gart-man and Waters that the Taylor store was a
“priority store, ” and that Plaintiff should
satisfy the store “by any means necessary.” Dkt.
29, Pg. ID 771; Dkt. 29-1, Pg. ID 885. Furthermore, Mike
Jord-ison, a District Manager for Defendant, personally
called Plaintiff to request that she do everything in her
power to ensure that the Taylor store was happy. Id.
In June 2015, the manager of the Taylor store specifically
asked Plaintiff to ship refrigerators with blue film on them
because, according to Plaintiff's description of the
call, customers demanded seeing the blue film as an
indication that a given refrigerator is a new product. Dtk.
249, Pg. ID 771. Accordingly, Plaintiff maintains that by
shipping refrigerators with blue film on them, she was merely
satisfying the Taylor store, as she had been instructed to do
by three levels of management at Defendant.
her firing on June 26, 2015, Plaintiff filed a charge of
discrimination with the EEOC in February of 2016, alleging
that she was terminated due to her gender. Dkt. 25, Pg. ID
532. After investigation, the EEOC provided a Notice of Right
to Sue. Plaintiff then brought this lawsuit. She has amended
her complaint twice, and the most recent complaint contains
four causes of action: (1) Discrimination in Violation of the
Elliott-Larsen Civil Rights Act, (2) Retaliation in Violation
of the Elliott-Larsen Civil Rights Act, (3) Gender
Discrimination (Title VII of the Civil Rights Act of 1964),
and (4) Gender Discrimination in violation of the Equal Pay
Act. Defendant has moved for summary judgment on
Plaintiff's claims. Following full briefing, the Court
heard argument on May 31, 2017.
Standard of Review
“Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with any affidavits, show that there is no
genuine issue as to any material fact such that the movant is
entitled to a judgment as a matter of law.”
Villegas v. Metro. Gov't of Nashville, 709 F.3d
563, 568 (6th Cir. 2013); see also Fed. R. Civ. P.
56(a). A fact is material only if it might affect the outcome
of the case under the governing law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). On a
motion for summary judgment, the Court must view the
evidence, and any reasonable inferences drawn from the
evidence, in the light most favorable to the non-moving
party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citations omitted);
Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir.
moving party, the Defendant has the initial burden to show
that there is an absence of evidence to support
Plaintiff's case. Selby v. Caruso, 734 F.3d 554
(6th Cir. 2013); see also Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). Once the moving party has met its
burden, the non-moving party “may not rest upon its
mere allegations or denials of the adverse party's
pleadings, but rather must set forth specific facts showing
that there is a genuine issue for trial.” Ellington
v. City of E. Cleveland, 689 F.3d 549, 552 (6th Cir.
has brought four causes of action: Discrimination in
Violation of the Elliott-Larsen Civil Rights Act (Count I),
Retaliation in Violation of the Elliott-Larsen Civil Rights
Act (Count II), Gender Discrimination - Title VII of the
Civil Rights Act of 1964 (Count III), and Gender
Discrimination - Equal Pay Act (Count IV).
Gender Discrimination in Violation of Title VII and the
Elliott-Larsen Civil Rights Act
“Cases brought pursuant to the ELCRA are analyzed under
the same evidentiary framework used in Title VII
cases.” Humenny v. Genex Corp., 390 F.3d 901,
906 (6th Cir. 2004). Thus, for both Plaintiff's Title VII
claim and her ELCRA claim, she has two possible paths to
success. First, she can present direct evidence of gender
discrimination. Terbovitz v. Fiscal Court of Adair
County, Ky., 825 F.2d 111, 115 (6th Cir. 1987). Second,
she can present circumstantial evidence of gender
discrimination, which then triggers the
McDonnell-Douglas burden-shifting framework.
Id. at 114. Here, there is no dispute that
Plaintiff's claims depend on circumstantial evidence, so
the Court must apply the McDonnell-Douglas
McDonnell-Douglas framework has three steps. First,
Plaintiff must make a prima facie showing of discrimination.
Humenny, 390 F.3d at 906. Second, if she makes that
showing, the burden of production shifts to Defendant to
provide a legitimate, non-discriminatory reason for the
employment action. Id. And third, if Defendant
provides such a reason, Plaintiff must then produce evidence
that Defendant's proffered reason is a pretext for
Plaintiff has made a prima facie showing of gender
out a prima facie case for gender discrimination, Plaintiff
must show that she was (1) a member of the protected class,
(2) subject to an adverse employment action, (3) qualified
for the job, and (4) either treated differently than
similarly situated male employees for the same or similar
conduct, or replaced by a person outside the class.
Humenny, 390 F.3d at 906; Mitchell v. Toledo
Hosp., 964 F.2d 577, 582 (6th Cir. 1992). Defendant does
not contest that Plaintiff has met all four prongs,
the Court turns to the second step, where Defendant must
provide a legitimate, non-discriminatory reason for firing
Defendant has provided a legitimate, non-discriminatory
reason for firing Plaintiff
Plaintiff has made a prima facie showing of discrimination,
Defendant must provide a non-discriminatory reason for firing
her. Defendant has submitted two such reasons here. First,
Defendant argues Plaintiff intentionally sent a truckload of
refrigerators that still had film on them to a retail store,
which violated Defendant's policy that requires employees
to “remove exterior wrapping (vendor wrap), ”
“remove exterior tape, ” and “remove
manufacturer labels/stickers from exterior.” Dkt. 34,
Pg. ID 1353 (citing Dkt. 25-5, Pg. ID 697). And second,
Defendant maintains that when Waters confronted Plaintiff
about whether she had done so, she lied to him by denying
that she had done so, then later admitted the truth. Dkt. 34,
Pg. ID 1353. Defendant fired her the day after she allegedly
lied to Waters. Dkt. 34, Pg. ID 1353.
employer has an appropriate business interest in ensuring
adherence to its policies prohibiting the shipment of
improperly prepared merchandise to its stores. And an
employer has an appropriate business interest in ensuring
that its employees are candid and complete in their
statements to their supervisors during con- versations about
potential rules violations. Neither of these interests ...