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Spink-Krause v. Medtronic, Inc

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

October 23, 2017

Corina Spink-Krause, Plaintiff,
v.
Medtronic, Inc., Defendant.

          OPINION & ORDER GRANTING IN PART, AND DENYING IN PART, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Sean F. Cox, United States District Court Judge.

         Plaintiff filed this action against her former employer, alleging three claims: 1) a “sex-plus” discrimination claim under Michigan's Elliott Larsen Civil Rights Act (“the ELCRA”), with the plus factor of having children; 2) a hostile work environment based on sexual harassment claim under the ELCRA; and 3) a retaliation claim under both the ELCRA and Title VII. The matter is currently before the Court, following the close of discovery, on Defendant's Motion for Summary Judgment. The parties have fully briefed the issues, and the Court heard oral argument on October 12, 2017.

         For the reasons set forth below, the Court shall grant the motion in part and deny it in part. The Court shall grant summary judgment in Defendant's favor as to Plaintiff's “sex-plus” discrimination claim under the ELCRA, because Plaintiff has failed to establish the fourth element of a prima facie case. The Court shall also grant summary judgment in Defendant's favor as to Plaintiff's hostile work environment based on sexual harassment claim under the ELCRA because Plaintiff cannot establish respondeat superior liability. But the Court concludes that Defendant is not entitled to summary judgment in its favor as to Plaintiff's retaliation claim under the ELCRA and Title VII because, construing the evidence in the light most favorable to her, there are genuine issue of fact for trial.

         BACKGROUND

         Plaintiff Corina Spink-Krause filed this action against Defendant Medtronic, Inc. on June 13, 2016, asserting the following claims: 1) “Hostile Environment Sexual and/or Gender Harassment in Violation of ELCRA” (Count I); and 2) “Retaliation in Violation of Title VII and ELCRA” (Count II[1]).

         Pursuant to this Court's original Scheduling Order, discovery was set to close on February 7, 2017. (D.E. No. 9). At Plaintiff's Counsel's request, however, discovery was extended and this Court's Second Scheduling Order provided that discovery would close on April 7, 2017. (D.E. No. 19). The docket reflects that Plaintiff filed no motions to compel discovery.

         Following the close of discovery, Defendant filed a Motion for Summary Judgment. (D.E. No. 21). Plaintiff's Counsel requested an extension of time for responding to Defendant's motion and this Court granted the requested extension, over Defendant's objection. (See 7/20/17 and 7/31/17 text-only orders).

         This 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. 19 at 2-3).

         In compliance with this Court's guidelines, in support of its Motion for Summary Judgment, Defendant filed a “Statement of Material Facts Not In Dispute” (“Def.'s Stmt.). In response to that submission, Plaintiff filed a “Counter-Statement of Disputed Facts” (Pl.'s Stmt.”).

         The following material facts are gleaned from the evidence submitted by the parties, viewed in the light most favorable to Plaintiff, the non-moving party.

         Plaintiff Corina Spink-Krause is a female who has children. (Def.'s Stmt. & Pl.'s Stmt. at ¶¶ 2-3).

         Defendant Medtronic is a healthcare solutions company that provides medical technologies, services, and solutions to hospitals, doctors, and other health care providers. (Def.'s Stmt. & Pl.'s Stmt. at ¶¶ 4).

         Defendant hired Plaintiff in February of 2001, as a Sales Associate in its Surgical Technologies Group. In October of 2001, Plaintiff was promoted to Area Sales Manager (“ASM”). (Def.'s Stmt. & Pl.'s Stmt. at ¶¶ 5-6).

         As an ASM, Plaintiff was responsible for coordinating the sale and support of ear, nose, and throat (“ENT”) products to hospitals, doctors, and other Medtronic customers in her assigned sales territory. (Def.'s Stmt. & Pl.'s Stmt. at ¶¶ 6). Defendant had a written Job Summary that described Plaintiff's duties and responsibilities. (Def.'s Ex. 4). As a ASM, Medtronic expected Plaintiff to achieve 100% of her quota in all sales categories, to work to retain existing business, to develop new business, and to develop and support clinical relationships with her customers. (Id. at ¶ 8).

         Plaintiff worked as an ASM from the date of her promotion in 2001 until her termination in March of 2015. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 9). In addition, for two or three years during that time period, Plaintiff also served as a Field Trainer at Medtronic. (Pl.'s. Dep. at 17).

         In May Of 2012, Medtronic promoted Greg Bonner to Regional Sales Director for the STG's Midwest Region. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 10). The Midwest Region included three ENT sales territories in Michigan. (Id.). Bonner became Plaintiff's immediate supervisor at this time.

         Defendant's motion and supporting papers stress that Medtronic received some complaints relating to Plaintiff's performance from customers starting in 2012 and references: 1) an April 2012 complaint from the University of Michigan Hospital (see Def.'s & Pl.'s Stmts. at ¶¶ 17-20); 2) an August 2012 complaint from St. Mary Mercy Hospital (Id. at ¶¶ 21-29); and 3) an August 2012 complaint from Biotronic. (Id. at ¶¶ 30-33). The record presented reflects, however, that Plaintiff never received a written warning or write up - of any nature - from the date of her hire in 2001 until after she complained to Human Resources in April of 2014.

         In August of 2013, Plaintiff was given a written evaluation, titled “Performance and Development Summary, ” by Bonner. (Def.'s Ex. 10).

         Bonner rated Plaintiff as “Strong” or “Solid” in six of nine specified areas: “Mission Values, ” “Compliance and Integrity, ” “Clear Thinking, ” “Driven to Win, ” “Boundaryness, ” and “Global.” There were three areas that Bonner noted were “Areas of Focus Vital for Role:” “External Focus, ” “Inspires Others, ” and “Executes.” As to her objective to “achieve a minimum of 100% PTQ for Core Products, ” Bonner wrote: “Q1 was a slow start, however Q2 has started out very strong. Q2 is currently 6% over her quota and has helped fill the deficit left in Q1. Currently, Cori is 3% below her YTD core PTQ.” (Id. at Pg ID 261).

         As to Plaintiff's strengths, Bonner stated “Cori has a great knowledge of our products and a passion to win. Her account relationships are strong.” (Id. at Pg ID 263) (emphasis added). As to areas that need development, Bonner stated “Cori will need to work on administrative duties. In addition, there is an opportunity for closer teamwork and collaboration.” (Id.).

         In a letter written on November 15, 2013, Bonner addressed several customer complaints with Plaintiff. (Pl.'s Ex. 11). The letter ended by saying “[s]hould an additional customer complaint be received, a formal Warning Letter will be issued.” (Id.) (emphasis added).

         On April 4, 2014, Plaintiff contacted Veronica Lambert with Defendant's Human Resources Department. (Pl.'s Dep. at 138). Plaintiff testified:

Q. And is this the first date that you made contact with Ms. Lambert in HR regarding the complaint against Mr. Bonner?
A. It was the first time I spoke with her, yes.
Q. And what was it that triggered your decision to call on that particular day?
A. Greg had called me that morning and had been very hostile. He knew I was on vacation, yelling at me about stuff regarding sales, things we discussed a number of times, making accusations that I wasn't doing my job correctly, saying that James was angry with me, saying that if I didn't pull it together I would be fired and let go.
And I just had enough. He had continued to - just kept telling me I was incompetent at this, a single mother should not be doing this job and I was at the point where I was on vacation, it had been put in and had just had enough and called HR.

(Pl.'s Dep. at 138-39).

         Lambert told Plaintiff she would address her complaint when Plaintiff returned from vacation, which was acceptable to Plaintiff. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 53).

         On April 17, 2014, Plaintiff spoke with Lambert and told her she had several issues with Bonner: 1) an incident involving a “bathroom wall” comment made by Bonner; 2) an incident with Bonner involving an expense issue; 3) an alleged lack of support from Bonner, her supervisor; and 4) Bonner having made several “single mother” comments to her.

         First, Plaintiff told Lambert that one evening, in either January or February of 2013, she was at a basketball game with Bonner and other co-workers. Plaintiff testified that Medtronic's new on-site representative for University of Michigan Hospital asked Plaintiff for her business card but she did not have one. Plaintiff testified that when Bonner heard this, he said, “Oh, don't [w]orry about it, if you want to find her number, it's on the bathroom wall at U of M.” (Def.'s Stmt. & Pl.'s Stmt. at ¶ 57). Plaintiff testified that Bonner then “just kind of chuckled and walked away” and that she was “completely offended and walked away” because she did not know what else to do. (Pl.'s Dep. at 114).

         Plaintiff did not talk to Bonner about the bathroom wall comment. (Id.). Plaintiff did not report the incident to Lambert, Romero, or anyone else with supervisory and/or disciplinary authority over Bonner until Plaintiff reported it to Lambert in April of 2014. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 60).

         Second, Plaintiff told Lambert about an expense issue involving Bonner. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 64). Plaintiff testified that at an American Osteopathic Association meeting in Orlando in May of 2013, she and Bonner had dinner with group of doctors. (Id. at ¶ 64). Plaintiff testified that at the end of the dinner, Bonner asked her to pay the bill so that he did not have to fill out an expense report for the dinner and Plaintiff did so. (Id. at ¶ 66). Later, Medtronic's legal counsel called or sent Plaintiff an email asking her why Bonner did not pick up the check, as he was the most senior Medtronic employee at the dinner. (Id. at ¶ 67). Plaintiff called Bonner and Bonner told her to tell Elder that Bonner had left the dinner early and that is why he did not pick up the check. Plaintiff did as Bonner asked. Medtronic did not discipline Plaintiff regarding this event. (Id. at ¶ 70-73).

         Third, Bonner reported that she did not feel that Bonner supported her. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 74). Plaintiff testified:

I wasn't getting any support. I had asked - he'd call me and ask if he could come ride with me, I'd switch things around so the could come and ride with me that day because he'd call me first things in the morning and then by noon he'd call and say, “Oh never mind, I'm not going to make it.”

(Plaintiff's Dep. at 104).

         While Bonner was her manager, he did meet with Plaintiff three or four times at her accounts. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 76). Plaintiff testified she asked Bonner to ride along with her at least a dozen times but Bonner was always too busy. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 75). Plaintiff testified:

Q. What about were there any instances where you called Mr. Bonner and said, “I would like you to ride along with me and he said I would and didn't do that?
A. Numerous times I had asked for him to schedule ride-alongs with me, but he was always too busy.
Q. Can you identify the numerous occasions?
A. And throughout the time he was my manager Greg rode with me a total of, I would say, three to four times max and even then he didn't ride with me, he would often ride - well, he would always ride separate because he had so many phone calls to make and my territory was really vast in drive time, so I had requested that he ride with me so we would have that time together to discuss, strategize, etc., which never - he always rode separate.
. . . .
Q. And when he did ride along with you what would he do?
A. He wouldn't ride with me, he would ride into an account with me, he would go into an account, do what I was doing, introduce himself, but usually he was done by noon, 1 o'clock and would cut out. We would spend a half day together max.
. . . .
Q. Right. Anything else?
A. He was unapproachable as far as being a boss. I felt like he was always busy, unable to support and I didn't feel his leadership skills, he was very helpful within the region.

(Pl.'s Dep. at 108-09 & 128).

         Fourth, Plaintiff told Lambert that Bonner had allegedly made comments to her about being a single mother and whether she had the right job for a single mother, that maybe it was time for her to look for another job, that this was a hard job as a single mother, and that maybe she wasn't cut out to do sales as a single mother. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 80).[2]

         Specifically, during her deposition, Plaintiff testified as follows with respect to the comments Bonner made to her:

Q. What specifically did Bonner say to you about being a single mother?
A. This was a hard job as a single mother, maybe I wasn't cut out for doing sales as a single mother. . . . .
Q. Anything else that he said to you about your status as a single mother?
A. Not that I recall verbatim.
Q. Then you said that he said to you that it might be time to look for another job, correct?
A. Yes.
Q. And when did he make that first comment?
A. About the same time as the single mother comment.
Q. And did you ask him why he was suggesting to you that you might want to look for another job?
A. What's [sic] the basis of being a single mother doing the job.
Q. Anything else?
A. No.
Q. And then you said he made comment to you about being a female, correct?
A. That had to do with being a single mother.
Q. A single mother?
A. Correct.
Q. And you recall all of these comments beginning in or about the first six months that he was your manager, correct?
A. Yes.
Q. And we've established that he became your manager in or about May ...

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