United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT 
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
Vicki Giron alleges that her former employer, Tyco
Electronics Corporation ("Tyco"), wrongly
terminated her. She alleges sex or gender discrimination in
violation of Michigan's Elliott-Larsen Civil Rights Act
("ELCRA"), Mich. Comp. Laws § 37.2101, et
seq., and wrongful discharge in violation of public
policy. Tyco filed a motion for summary judgment.
ECF 23. The Court reviewed the briefs and found that a
hearing was unnecessary. ECF 34. For the reasons stated
below, the Court will now grant Tyco's motion for summary
worked as a product manager in Defendant's Troy, Michigan
office from October 2012 until her termination on January 31,
2016. ECF 1, PgID 2, 5. Giron contends that the Troy office
was controlled by "a powerful group of sales managers
who dubbed themselves 'The Legacies.'" ECF 28,
PgID 384. At the beginning of her tenure with Tyco, Giron
reported to Elizabeth Schroeder ("Schroeder").
About one year later, Suraj Alva ("Alva") replaced
Schroeder. Id. One reason for Alva's assumption
of supervisory responsibilities was that Giron had
"ongoing issues, " in particular
"behavioral" concerns due to "conflicts in the
workplace with her internal colleagues." ECF 23-10, PgID
261. Giron "needed more direct supervision that
[Schroeder] was unable to provide" because of the issues
and because Giron was "difficult to work with."
Id. Giron claims that Alva created rules applicable
only to her, see ECF 28, PgID 396-97,  and sided with
the Legacies in pricing disputes. Plaintiff further complains
that Alva would meet with the Legacies without her and he
subjected her to "chew out" sessions. Id.
Giron alleges that Alva, directed her to "agree to
discriminatory pricing practices, and specifically charging
customers different prices of the same product." ECF 1,
PgID 4. Giron thought the practice was illegal, or at least
potentially illegal, and allegedly faced "hostility and
threats by Alva" when she refused the directive.
Id. In particular, she claims that Defendant's
directive implicated Section 2(a) of the Clayton Act, as
amended by the Robinson-Patman Anti-Discrimination Act, 15
U.S.C. § 13(a). Id. at 6. Giron avers that Tyco
retaliated against her for objecting to Alva's directives
by terminating her employment. Id.
November 2015, Giron was placed on a performance improvement
plan ("PIP"). On January 22, 2016, Tyco fired
Giron-effective January 31, 2016. In May 2016, Giron filed
her complaint alleging an ELCRA violation and wrongful
discharge in violation of public policy. On September 12,
2016, the Court dismissed without prejudice TE Connectivity.
ECF 13. In April 2017, the Defendant filed a motion for
summary judgment. ECF 23.
judgment is warranted "if the movant shows there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). A fact is "material" for purposes of summary
judgment if proof of that fact would establish or refute an
essential element of the cause of action or defense.
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984). A dispute over material facts is "genuine"
"if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To
show that a fact is, or is not, genuinely disputed, both
parties are required to either "cite to particular
parts of materials in the record" or "show that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed.R.Civ.P.
56(c)(1). In considering a motion for summary judgment, the
Court must view the facts and draw all reasonable inferences
in a light most favorable to the nonmoving party. 60 Ivy
St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.
1987). Moreover, the Court may not "make credibility
determinations or weigh the evidence." Harris v.
City of Akron, 20 F.3d 1396, 1403 (6th Cir. 1994).
plaintiff claiming sex discrimination in violation of the
ELCRA must establish a prima facie case by a preponderance of
the evidence. Lytle v. Malady, 458 Mich. 153, 172.
The prima facie case of sex discrimination includes four
elements: (1) membership in a protected class, (2) adverse
employment action, (3) qualification for an employment
position, and (4) discharge "under circumstances that
give rise to an inference of unlawful discrimination."
Id. at 172-73. An employer's differential
treatment of a female employee from "similarly situated
male employees [engaging in] the same or similar
conduct" is one circumstance giving rise to an inference
of discrimination. Humenny v. Genex Corp., 390 F.3d
901, 906 (6th Cir. 2004); see also Wilcoxon v. Minn.
Mining & Manuf. Co., 235 Mich.App. 347, 361 (1999).
Establishment of the prima facie case creates a presumption
defendant may rebut that presumption by "articulat[ing]
a legitimate, nondiscriminatory reason for plaintiff's
termination[.]" Lytle, 458 Mich. at 173 (quotation marks
omitted). At the motion for summary judgment stage, the
defendant "need not persuade the court that it was
actually motivated by the proffered reasons;" rather,
the defendant must provide a legally sufficient justification
to justify judgment in its favor. Id. at 174.
burden then shifts back to the plaintiff who must show
"by a preponderance of admissible direct or
circumstantial evidence, that . . . the employer's
proffered reasons were not true reasons, but were a mere
pretext for discrimination." Id. The Court
"may not make factual findings or weigh the credibility
of the evidence presented[.]" Id. at 176.
Plaintiff makes a prima facie showing of sex discrimination.
concedes that Giron is a member of a protected class. ECF 23,
PgID 187; ECF 33, PgID 905. The Court, therefore, will
address the last three elements.
Adverse employment action.
Giron's placement on a PIP and her termination constitute
adverse employment actions. The parties dispute whether
Giron's placement on the PIP established an adverse
employment action. The Sixth Circuit routinely finds that
"the institution of performance improvement plans do[es]
not constitute adverse employment action[.]" Allen
v. Ohio Dep't of Job and Family Servs., 697
F.Supp.2d 854, 891 (S.D. Ohio 2010) (collecting cases). To
qualify as an adverse employment action, a PIP must be
accompanied by a "tangible employment action that [the
employee] alleges she suffered, or is in jeopardy of
suffering[.]" White v. Baxter Healthcare Corp.,
533 F.3d 381, 402 (6th Cir. 2008).
employee's PIP results in her termination, the PIP may
constitute an adverse employment action. See Kyle-Eiland
v. Neff, 408 Fed.Appx. 933, 941 (6th Cir. 2011) (finding
an adverse employment action when "the PIP may have led
directly to [the employee's] dismissal" from his
company). The Court, therefore, will consider both
Giron's PIP and termination as adverse employment
Plaintiff was qualified for the position.
parties dispute how the Court should analyze Plaintiff's
qualifications. Defendant emphasizes Giron's allegedly
unsatisfactory behavior. ECF 23, PgID 187-88. Defendant's
reliance upon Warfield v. Lebanon Corr. Inst., 181
F.3d 723 (6th Cir. 1999) is unpersuasive. Warfield states
that an employee must "demonstrate that she was meeting
her employer's legitimate expectations and was performing
to her employer's satisfaction." 181 F.3d at 729.
The Sixth Circuit has stated repeatedly, however, that an
employer cannot conflate its reason for the adverse
employment action with the employee's qualification for
the position. Cline v. Catholic Diocese of Toledo,
206 F.3d 651, 660-61 (6th Cir. 2000). Tyco's reliance
upon Giron's allegedly unsatisfactory behavior to refute
her qualification for the job is inapposite. Plaintiff's
objective background indeed suggests that she was qualified
for the position. Giron brought 25 years of experience to her
role as a Global Product Manager at Tyco. Giron worked as a
Senior Project Engineer at General Motors and as a Business
Development Manager, Senior Sales Engineering Manager, and
Senior Program Manager at TRW Automotive. ECF 28-3, PgID
430-31. Plaintiff has shown by a preponderance of the
evidence that she was qualified for the job.
Plaintiff satisfies the fourth prong of the prima facie
showing only as to her termination.
Plaintiff points to two separate ways in which Tyco allegedly
treated her male counterparts more favorably. First, she
contends that Tyco replaced her with a male employee. The
Sixth Circuit has explained that a plaintiff may satisfy the
final prong of the prima facie case by demonstrating that she
"was replaced by someone outside the protected
class." Tilley v. Kalamazoo Cty. Road
Comm'n, 777 F.3d 303, 308 (6th Cir. 2015) (citing
Schoonmaker v. Spartan Graphics Leasing, LLC, 595
F.3d 261, 264 (6th Cir. 2010) (analyzing the prima facie
showing for cases relying upon circumstantial evidence of sex
discrimination under the ELCRA)).
his deposition, Alva indicated that Benjamin Ervin assumed
some of Giron's former responsibilities. ECF 29-1, PgID
546. In particular, Ervin adopted Giron's main product
line-FAKRA. Id. Tyco did not hire anyone else to
assume Giron's other responsibilities. Id. Alva
indicated that Ervin was "a head count
replacement." Id. at 584. Viewing the facts in
the light most favorable to the Plaintiff, Giron established
that she was replaced by a male.
Giron alleges that similarly situated male employees with
similar or worse conduct were not placed on PIPs. Generally,
the plaintiff and the employee(s) with whom she "seeks
to compare herself must be similar in 'all relevant
aspects.'" Ondricko v. MGM Grand Detroit,
LLC,689 F.3d 642, 654 (6th Cir. 2012) (quoting
Ercegovich v. Goodyear Tire & Rubber Co., 154
F.3d 344, 352 (6th Cir. 1998)); see Jackson v. VHS
Receiving Hosp., Inc.,814 F.3d 769, 777 (6th Cir.
2016). Relevant factors include whether the plaintiff and the
potential comparator(s) "have dealt with the same
supervisor, have been subject to the same standards and have
engaged in the same conduct without differentiating or
mitigating circumstances that would distinguish ...