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
F. COX UNITED STATES DISTRICT COURT JUDGE
an employment discrimination case. Plaintiff has brought (1)
retaliation claims under the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. § 621 et. seq., and the
Elliott Larsen Civil Rights Act (ELCRA), M.C.L. §
37.2101 et. seq., and (2) hostile work environment
claims under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et. seq., and the Michigan
Persons with Disabilities Civil Rights Act (PWDCRA), M.C.L.
§ 37.1101 et. seq. This matter is 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 26,
reasons below, the Court shall grant the motion in part and
deny it in part. The Court concludes that Defendant is not
entitled to summary judgment in its favor on Plaintiff's
retaliation claims because, construing the evidence in the
light most favorable to Plaintiff, there are genuine issues
of material fact for trial. But the Court shall grant
Defendant's motion as to Plaintiff's hostile work
environment claims because she has failed to establish that
she was subject to unwelcome harassment based on her
Patricia Canning began working at Defendant FCA U.S. LLC in
1990. Def. Stmt. of Material Facts Not in Dispute, ¶ 1
(Doc. # 18). From February 2010 to October 2013, Plaintiff
was the Terminal Manager in Defendant's Toledo, Ohio
transport center, reporting to Martin DiFiore. Id.
at ¶ 2. In October 2013, Plaintiff obtained a position
as Defendant's Northern Borders Manager/FAST (Free and
Secured Trade) coordinator. Id. at ¶ 4.
Plaintiff started the position on a part-time basis and began
working full-time later that fall. Id.
dispute in this case arises from Defendant's annual
performance evaluation process for certain management-level
employees. This process, called Performance Leadership
Management (PLM), evaluates employees based on their work
performance and leadership skills. Id. at ¶ 6.
Employees receive a PLM rating based on the following 9-box
Y-axis evaluates performance and the X-axis evaluates
leadership (for instance, a score of 3 reflects high
leadership but low performance). Green box scores (6, 8, 9)
are the highest possible scores, yellow box scores (3, 5, 7)
are acceptable, orange box scores (2, 4) show that
improvement is needed, and a red box score (1) is the lowest
Id. An employee's PLM form also includes
substantive comments regarding the employee's leadership
skills and work performance. Id.
PLM form is prepared, calibration meetings occur where
managers meet with their peers and fellow managers to review
the PLMs. Id. at ¶ 7. An employee's PLM
rating may be adjusted following calibration meetings.
Schmidt Dep., 38. Defendant has informal guidelines for how
many employees should be in each score category: about 15
percent in the red, 60 percent in the yellow, and 25 percent
in the green. Id. at 20-22; DiFiore Dep., 38.
October 2013, Plaintiff was responsible for preparing PLM
forms for two of her subordinates, Joe Russo and Ritchie
Burns. Def. Stmt., ¶ 8. Burns was 48 years old.
Id. at ¶ 30. Plaintiff gave each employee a
“5” rating. Id. These scores were then
addressed at a calibration meeting attended by Plaintiff,
terminal managers from Detroit, Windsor, and Toledo, DiFiore,
and HR representative Stacey Simonson. Id.
meeting, Plaintiff advocated in favor of Burns' rating
and brought documents to support her position. DiFiore Dep.,
90; Pl. Dep., 215. Burns' score was discussed alongside
that of another employee, Detroit supervisor Steve Daidone,
who had also received a “5” rating. Pl. Dep.,
110-11. Daidone was in his 60s. Def. Stmt., ¶ 30. There
was a discussion about which of the two employees should be
demoted to a “4” rating. Pl. Dep., 110-11. None
of the materials Plaintiff brought were considered during
this discussion. Id. at 215. After a consensus could
not be reached, a blind vote was held to determine which
employee would be rated a “4”. Id. at
110-11. Following the vote, Burns received a “4”
rating. Id. at 122. Those voting in favor had agreed
that Daidone should not receive a “4” because
Detroit already had two employees with that rating.
Id. at 124. Plaintiff received little explanation
for why Burns' score was reduced. Id.
the meeting, Plaintiff met with DiFiore and Simonson.
Id. at 157. DiFiore and Simonson instructed
Plaintiff to change Burns' rating, which she did.
Id. at 86. Plaintiff did not substantively alter the
comments on the PLM. Id. at 124.
thereafter, a second level calibration meeting occurred.
DiFiore Dep., 112. At the time, Burn's PLM indicated a
rating of “4” but the substantive comments did
not reflect that rating. Id. at 112, 115. A couple
days later, Plaintiff met with DiFiore and Simonson, who
directed her to change her comments on the PLM to reflect the
rating score. Id. at 115. Plaintiff subsequently
added numerous substantive comments to Burns' PLM (which
she asserts lack factual basis). Pl. Dep., 136-38. During
this process, Plaintiff told DiFiore and Simonson that she
believed that Burns' rating was influenced by age and
that she was forced to change the rating because of that.
Id. at 142, 146.
midlevel manager, Plaintiff was also subject to the PLM
process. Plaintiff had received a “5” in 2010 and
2011 (meeting expectations in leadership and performance).
Id. In 2012, because of Plaintiff's successful
work in challenging the Union's position on pay
practices, she received an “8” (meeting
expectations leadership; high performance). Id.
November 2013, Plaintiff was the subject of a calibration
meeting discussing her PLM. Def. Stmt., ¶ 12. Following
the meeting, Schmidt told Plaintiff that she was rated a
“5” for 2013. Pl. Dep., 166-69. Schmidt testified
that when she left the meeting, Plaintiff was a low
“5” trending towards a “4”. Schmidt
December 5, 2013, DiFiore, DiFiore's superior William
Cook, Simonson, and Schmidt met to determine Plaintiff's
final 2013 PLM rating. Def. Stmt., ¶ 16. Plaintiff
received a low rating on leadership, resulting in a
“4” rating. Def. Ex. J. The PLM also contained
substantive comments critiquing Plaintiff's communication
skills, accountability, and leadership abilities.
Id. 1. The PLM did not refer to complaints of age
December, 10, 2013, Plaintiff left work on medical leave.
Def. Stmt., ¶ 20. That same day, Cook sent an email to
Simonson, Schmidt, and DiFiore, among others, to confirm that
Plaintiff's rating was being moved to a low in leadership
and a medium in results, which corresponds with her
“4” rating. Pl. Ex. 20.
September 2, 2014, Plaintiff returned from her medical leave
and was assigned as a customs specialist reporting to Michele
Wilton. Def. Stmt., ¶ 21. That same day, Plaintiff met
with Schmidt, who expressed her concern that Plaintiff was
returning for financial reasons rather than because she was
ready to return to work. Schmidt Dep., 105. Schmidt also
inquired as to whether Plaintiff was eating healthy and
taking care of herself. Pl. Dep., 189.
regularly scheduled 30-day review meetings with employees
that were new to her unit. Wilton Dep., 68-69. Upon her
return from medical leave, Plaintiff received a calendar
notice for a 30-day review. Pl. Dep., 179. Plaintiff never
received a document stating that she would face discipline if
certain performance objectives were not met. Id. at
experienced difficulties as she transitioned into her new
position. Early on, Wilton told her that “[w]e're
going to take it easy on you.” Id. at 191.
Plaintiff did not receive business cards and her phone was
not publicly listed. Schmidt. Dep., 113. Plaintiff also
testified that she believed that her coworkers knew she had