United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of defendant Grosse
Pointe Public School (“the district”) for summary
judgment [docket entry 20]. This motion is fully briefed.
Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide
it without a hearing.
an employment discrimination case. In September 2012, the
district hired plaintiff to be the Assistant Principal at
Grosse Pointe South High School (“South”), where
she worked alongside fellow Assistant Principal Terry Flint.
Mistake. This saga began in early 2014. South's
deputy superintendent Jon Dean suspected that a social worker
was coming to work intoxicated and planned to “surprise
spot-check” him. Pl.'s Resp. p. 3. He told
plaintiff and Flint not to warn the social worker, but Flint
did warn him, which plaintiff reported to Dean. Flint
initially claimed innocence but a few hours later confessed.
After then-Superintendent Dr. Harwood met with Dean and the
Board of Education, which hired an attorney to review the
matter, he put a letter of censure in Flint's file,
threatened him with suspension, and put him on an
individualized development plan
(“IDP”).Flint Dep. pp. 20, 23. Harwood also noted
the mistake in Flint's year-end evaluation. Id. at
Changes. In July 2014, the district hired new South
principal Moussa Hamka. Hamka began reorganizing the main
office. He moved plaintiff's secretary to the financial
department and made Flint and plaintiff share a secretary.
Plaintiff testified that the shared secretary did not spend
enough time helping her. Plaintiff mentioned this to
Hamka. He encouraged her to keep working to
improve the situation and asked both assistant principals to
do “[a] lot of the secretarial stuff” to
“help pull the load off of” the shared secretary.
Id. at 31.
also reapportioned assistant principal responsibilities.
Plaintiff and Flint shared most duties equally, including
student discipline, freshman orientation, testing
requirements, individual special education accommodation
(“504”) plans, and all secretarial work the
secretary could not do. After the reshuffle, plaintiff had
the following new duties: running the positive behavioral
intervention system (“PBIS”); ensuring that South
was “not disproportionately suspending one group of
students more than another”; and “student
activities, ” including organizing a monthly principal
advisory group meeting. Pl.'s Dep. pp. 19-23; Flint's
Dep. p. 31. Flint testified that after the reshuffle he had
the following duties: 504 coordinator and organizing weekly
and monthly meetings for two leadership groups and a mentor
group. Flint Dep. pp. 30- 41. Plaintiff believes that this
apportionment left her with more work than Flint.
Incident, Part 1. One day in early December 2014, Flint,
while speaking to plaintiff and their shared secretary,
brought up the evaluation rubric for South's media
specialist C.M. Flint's and plaintiff's deposition
testimonies sharply differ as to what exactly Flint said.
According to Flint, he talked only about the rubric, not
about C.M.'s review itself. According to plaintiff, Flint
said that for “five days” over
“Thanksgiving break” he was “trying to nail
[C.M.] on her evaluation.” Pl.'s Dep. p. 36.
Plaintiff immediately told, among others, C.M. about the
conversation and warned her to “keep an eye on her
evaluation.” Id. at 38. C.M., upset by this
revelation, emailed Hamka about it. Hamka asked plaintiff and
the secretary to put in writing exactly what Flint had said.
Id. at 39. Plaintiff wrote:
In a conversation this week [Flint, the shared secretary, ]
and I were chatting in the office about Thanksgiving Week (I
believe). And [Flint] mentioned he spent the weekend working
on [C.M.'s] evaluation and the rubric. He mentioned that
he realized he was hard on her (because of the rubric) and
went back in to add positive comments. . . .
[Later, plaintiff told C.M. that Flint] thought b/c of the
rubric he was hard on her and was going back/went in to the
Google doc to add the positive.
Def.'s Mot. Ex. H. The secretary wrote:
Flint was talking to [plaintiff] and me about how excited he
was because he had spent many hours over the weekend going
through the rubric for the teacher evaluations. He mentioned
how he had worked in particular on [C.M.'s rubric] He was
excited because he felt that the questions he came up with
really hold teachers accountable for how they interact with
students and staff, etc.
Id. at Ex. I.
Complaints About Hamka. Hamka's relationship with
plaintiff appears to have been strained. In fact, during the
few months they worked together preceding the C.M. incident,
plaintiff kept copious notes about Hamka's actions that
she found offensive, and she complained at length in her
deposition about his behavior. When Hamka asked her to write
out the statement regarding the C.M. incident, she took
following day, plaintiff took her notes and met with Dean and
the district's director of secondary education Maureen
Bur. Her notes contained 39 numbered paragraphs, many of
which detailed examples of allegedly offensive behavior.
Pl.'s Dep. p. 64. Bur and Dean treated plaintiff's
complaint as a hybrid gender discrimination/harassment
complaint. They asked whether she wanted to resolve it
formally or informally. Plaintiff chose to resolve it
Dean conducted the informal investigation as follows: that
same day, they met with Hamka to discuss plaintiff's
harassment complaint and then conducted a “resolution
meeting, ” which Hamka and plaintiff attended. During
that meeting plaintiff presented her concerns and Hamka
responded. At the end of the meeting, plaintiff and Hamka
agreed to “work things out.” Pl.'s Dep. p.
151. A few days later, Dean sent plaintiff an email
summarizing the investigation's results and letting her
know that, in the district's view, Hamka had not harassed
or discriminated against her. Def.'s Mot. Ex. K. Because
plaintiff chose not to request that the central office
conduct a formal investigation the investigation ended there,
and since then plaintiff has had no more issues with Hamka.
Pl.'s Dep. p. 151.
Incident, Part 2. At some point in the week following
Dean and Bur's investigation, plaintiff met with Dean to
discuss her role in the C.M. incident. Dean told her that her
conduct was inappropriate and that she would be disciplined.
Dean Dep. p. 57. Plaintiff- who was already interviewing for
administrative positions in other districts-told Dean that
she was “in the process of leaving. Wanting to get
another job outside of the district.” Pl.'s Dep.
pp. 159, 243. Dean said in response, “I don't want
to jam you up, so I will hold this [discipline] in
abeyance.” Id. Dean also filed a placeholder
“effective” evaluation with the State of Michigan
pending the outcome of plaintiff's job search.
Id. at 213. This allowed plaintiff to conduct her
job search without any discipline or a substandard rating in
her file. At her deposition, plaintiff agreed both that it
was not “appropriate” for her to tell C.M. about
Flint's comments and that the district should have
disciplined her for it. Id. at 40,
Nevertheless, the district never formally disciplined her for
the C.M. incident. Id. at 212.
L.L. Incident. Sometime in spring 2015, a South employee
reported to plaintiff that at 6:00 p.m. on a Friday she saw
female South teacher L.L. sitting on Hamka's desk and
that this made her uncomfortable. Id. at 166.
Plaintiff told Flint what she had heard, but neither she nor
Flint brought this up with Hamka or the central
office. Id. at 169. Although Flint felt
that L.L. dressed provocatively and was flirtatious-and he,
too, had seen L.L. and Hamka in Hamka's office after
hours-he never suspected that they were having an affair and
was concerned only “with the appearance of
things.” Flint Dep. pp. 66-69. A few weeks later this
rumor became more public, so Dean and Bur visited South to
investigate. When it came out that Flint and plaintiff had
heard this rumor but had not taken action, Dean verbally
reprimanded them and threatened them with discipline; again,
however, discipline was not meted out. Id. at 70,
76; Pl.'s Dep. pp. 170- 72, 212; Dean Dep. pp. 137-38.
Dean testified that he reprimanded both assistant principals
for not bringing these rumors to the central office's
attention, and plaintiff in particular for spreading these
rumors. Dean Dep. p. 130.
2014-2015 Evaluation. Although Dean and Bur's
investigation of plaintiff's harassment complaint ended
with a finding of no harassment or gender discrimination,
Dean considered it prudent for a woman and someone besides
Hamka to evaluate plaintiff; so in early 2015 he decided that
he and Bur would evaluate her. Id. at 140; Dean Dep.
p. 143. Dean asked plaintiff to provide him periodic updates
of her semester so his evaluation would be thorough.
Pl.'s Dep. p. 140.
evaluations of administrators are due to the State of
Michigan each year by June 30. Dean Dep. p. 145. But, as
noted above, Dean agreed to withhold plaintiff's final
evaluation until her job search concluded. So to comply with
the June 30 deadline, Dean submitted a placeholder effective
rating to the state. Id. at 147. Dean did not
finalize plaintiff's evaluation until after she told him
in late July that her job search was unsuccessful. Dean and
Bur finalized plaintiff's evaluation on August 21, 2015.
Id. at 148. Taking the C.M. and L.L. incidents into
consideration, they rated plaintiff “minimally
effective.” Id. at 148; Pl.'s Dep. p.
212; Def.'s Mot. Ex. M. Dean explained that plaintiff
received this rating because she made four poor
decisions-“[t]wice within the [C.M.] situation”
and twice in the L.L. situation. Dean Dep. pp. 132.
to Parcells. Meanwhile, in June 2015, the district had
hired a new superintendent, Gary Niehaus. After Dean and the
district's attorney updated Niehaus on the situation at
South, Niehaus decided to separate plaintiff and Hamka. On
August 3, 2015, Dean and Bur visited South to tell plaintiff
that she would be switching positions with Steven Wolf, the
Assistant Principal for Parcells Middle School. Normally this
move would result in a pay decrease, but Niehaus testified
that it was his understanding that plaintiff would continue
“to be paid at the high school assistant principal
rate.” Niehaus Dep. pp. 43-44. Plaintiff
alleges that at some point in summer 2015, Dean asked that
she resign, which she refused to do. Pl.'s Dep. p. 195.
Evaluation, Medical Leave, and Complaint Against Dean.
Because of her minimally effective rating, plaintiff began
the 2015-2016 school year with three evaluators- Dean, Bur,
and Parcells Principal Dan Hartley. Plaintiff disliked this
arrangement, calling it “bullying, ” so in
October 2015 Dean gave her the choice of being evaluated by
Hartley and either himself or Bur, and he asked her to
identify specifically what she considered
“bullying.” Def.'s Mot. Ex. O.
plaintiff chose or described what she considered bullying, in
November 2015 she took a medical leave of absence for
psychiatric reasons until mid-March 2016. Pl.'s Dep. pp.
332-33, 337, 341. While plaintiff was on leave, the district
paid her full salary, and she began working at Parcells
immediately upon her return. Id.
after her return, on April 13, 2016, Dean sent her two
emails. The first email said that because plaintiff had never
chosen her 2015-2016 evaluaters, the district picked Bur and
Hartley. Id. at Ex. Q. The second email reminded
plaintiff that because of her minimally effective rating, she
was supposed to have undergone a “thorough and in-depth
evaluation for the 2015-2016 school year.” Pl.'s
Resp. Ex. R. It then stated that plaintiff's four-month
leave made conducting such an evaluation
“problematic.” Id. So, it said, the
district would complete an “interim evaluation”
for the 2015-2016 school year. If this interim evaluation
rated plaintiff as effective or highly effective, the
district would extend her one-year contract for the 2016-2017
school year, during which time she would undergo the full,
in-depth evaluation. Id.
days later, plaintiff sent an email to Niehaus in which she
made “a formal complaint of continued
‘Harassment/Retaliation' against me by Assistant
Superintendent Dr. Jon Dean during two emails sent to me in
April, 2016.” Id. at Ex. S. She claimed that
Dean violated the Family Medical Leave Act
(“FMLA”) by holding her leave against her and
that he falsified information about her that the public could
obtain via the Freedom of Information Act. Id.
plaintiff made this complaint, the district requested an
independent investigation into plaintiff's complaint
against Dean. Attorney Kevin Sutton conducted the
investigation: He reviewed the district's policies and
several documents, including the emails, and he interviewed
plaintiff and Dean. Id. at Ex. T. In early June
2016, Sutton found that Dean did not violate district policy
or any federal or state law. Id. Indeed, he wrote,
even if Dean could have phrased his emails more kindly,
“there still exists no reasonable basis to conclude
that the emails form a basis for a conclusion of harassment
or retaliation.” Id.
weeks later, after hearing from Hartley that plaintiff was
doing an excellent job at Parcells, Niehaus changed course on
plaintiff's interim evaluation and directed Bur and
Hartley to give her a full evaluation, which they did, rating
her effective; he also directed that, going forward, she be
given a two-year contract, taken off of the scheduled IDP,
and be evaluated by only one person. Id. at Exs. U,
V; Bur Dep. pp. 125-32; Dean Dep. pp. 205-08; Niehaus Dep.
pp. 32-35; Hartley Dep. pp. 34-35.
and 2017-2018 School Years.
plaintiff believed that she was on an IDP and that she would
have multiple evaluators. Pl.'s Dep. pp. 381-84. Hartley
testified that he told her at the beginning of the year that
she was not on an IDP and that he would be her sole
evaluator. Hartley Dep. p. 35. This confusion led to a
lengthy email exchange in late November 2016 between
plaintiff and Hartley, in which plaintiff inquired about her
IDP and her evaluator(s). Def.'s Mot. Ex. W. Hartley
reiterated that in the 2016-2017 school year he would be her
sole evaluator. Id. After that exchange, the school
year finished without incident and Hartley rated her
“effective.” Id. at Ex. X.
Litigation. In November 2016, plaintiff filed her
original complaint, which she amended in August 2017. The
amended complaint asserts five counts: Count I, gender
discrimination/sexual harassment under Title VII, 42 U.S.C.
§ 2000e-2(a)(1); Count II, retaliation under Title VII;
Count III, a violation of the FMLA, 29 U.S.C. § 2601;
Count IV, gender discrimination/sexual harassment claim under
the Elliott-Larsen Civil Rights Act (“ELCRA”),
Mich. Comp. Laws § 37.2202(c); and Count V, retaliation