United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART, AND DENYING IN
PART, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
F. Cox, United States District Court Judge.
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.
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.
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”
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.
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
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).
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.”).
following material facts are gleaned from the evidence
submitted by the parties, viewed in the light most
favorable to Plaintiff, the non-moving party.
Corina Spink-Krause is a female who has children. (Def.'s
Stmt. & Pl.'s Stmt. at ¶¶ 2-3).
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).
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).
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).
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).
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.
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.
August of 2013, Plaintiff was given a written evaluation,
titled “Performance and Development Summary, ” by
Bonner. (Def.'s Ex. 10).
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
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.”
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).
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
(Pl.'s Dep. at 138-39).
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).
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.
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).
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).
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).
Bonner reported that she did not feel that Bonner supported
her. (Def.'s Stmt. & Pl.'s Stmt. at ¶ 74).
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).
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
. . . .
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).
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).
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
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
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?
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
Q. Anything else?
Q. And then you said he made comment to you about being a
A. That had to do with being a single mother.
Q. A single mother?
Q. And you recall all of these comments beginning in or about
the first six months that he was your manager, correct?
Q. And we've established that he became your manager in
or about May ...