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Meyer v. Sears Outlet Stores

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

September 20, 2017

STACIE MEYER, Plaintiff,
v.
SEARS OUTLET STORES, Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. 25)

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is 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 in part.

         II. Background

         Plaintiff 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.

         This 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 520.

         Plaintiff's 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.

         In 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.

         The 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.

         Plaintiff 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.

         Waters 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.

         Then there was a fire.

         On 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.

         On 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.[1] 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.

         Plaintiff's 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.

         Waters 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 614.

         After 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 528.

         Then came an incident involving refrigerators shipped with blue film on them.

         On June 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 529.

         Prior 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.

         After 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.

         III. 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. 2001).

         As the 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. 2012).

         IV. Analysis

         Plaintiff 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).

         a. 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 framework.

         The 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 discrimination.

         Id.

         i. Plaintiff has made a prima facie showing of gender discrimination

         To make 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, [2] so the Court turns to the second step, where Defendant must provide a legitimate, non-discriminatory reason for firing Plaintiff.

         ii. Defendant has provided a legitimate, non-discriminatory reason for firing Plaintiff

         Because 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.

         An 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 ...


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