United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (DKT. 23)
Stephanie Dawkins Davis United States Magistrate Judge.
Cynthia Hunter, filed a complaint in state court for race and
sex discrimination under the Michigan Elliott-Larsen Civil
Rights Act and Title VII and for retaliation under
Elliott-Larsen on December 22, 2016. (Dkt. 1, Notice of
Removal, Pg ID 8-23). Defendant, General Motors LLC, removed
the action to federal court on February 1, 2017. (Dkt. 1). On
January 3, 2018, the parties executed a consent for reference
of this matter to the undersigned magistrate judge. (Dkt.
20). On January 5, 2018, District Judge Robert H. Cleland
signed the consent and referred this matter under 28 U.S.C.
636(c). (Dkt. 21). After completing a period of discovery, GM
filed its motion for summary judgment. (Dkt. 23-25). Hunter
filed her response (Dkt. 27) and GM filed a reply. (Dkt. 28).
On October 4, 2018, the parties filed their joint statement
of resolved and unresolved issues. (Dkt. 30). Pursuant to
notice, the Court held a hearing on December 6, 2018. (Dkt.
reasons set forth below, the Court GRANTS
defendant's motion for summary judgment of
plaintiff's sex-based claims. Plaintiff's race-based
claims were conceded and thus, are also
was hired at GM on March 1, 2013. (Dkt. 25-1, Plf. Dep. pp.
36, 162-63; Plf. Dep. Ex. 14). Hunter worked at GM's
Warren Technical Center as a Mainframe Technical Specialist
during the entirety of her employment; she was a storage
administrator for GM's mainframe computer. Id.
at 34, 39-40, 162-63; Plf. Dep. Ex. 14. GM's mainframes
store GM's data and are necessary to run the business; if
the mainframes do not operate, the business cannot run
normally. Id. at 52- 53. Mainframe Storage Manager
Samuel Rurka supervised Hunter. Rurka also previously worked
with Hunter at Ford Motor Company, and he had interviewed and
hired her to work at GM. Id. at 30-31, 61; Dkt.
25-3, Deposition of Samuel Rurka, pp. 9-11.
Hunter's supervisor, Rurka conducted Hunter's 2014
performance review. (Dkt. 25-1, p. 104; Plf. Dep. Ex. 6). In
that review he commented, “[t]he quality and quantity
of work is not what I expect in your position” and that
“task[s] that had been assigned to you to be delivered
by a certain date have been reported ‘complete'
when they actually were partially (sic) at best.”
Id. at 105-06; Plf. Dep. Ex. 6. Although Hunter
believed she had completed her assignments, Rurka did not.
Id. at 106-07. According to GM, one significant
performance failure by Hunter in July 2014 resulted in
dealerships in Brazil being unable to use GMAC financing for
customers to purchase vehicles. Despite these performance
issues, GM gave Hunter a merit raise, and she was neither
demoted nor subjected to any reduction in pay. Id.
at 109, 115; Plf. Dep. Ex. 14. Although Hunter disagreed with
the review and believed it was discriminatory, she did not
complain to Human Resources. Id. at 112-15.
September 2014, GM's tape libraries were nearing maximum
capacity; Hunter informed her group that the libraries were
more than 90 percent full. Id. at 116-17. The issue
was a serious one for the company because if the tapes
reached 100 percent of capacity, GM's production of cars
would stop. (Dkt. 25-7, Declaration of Samuel Rurka, ¶
7). Rurka deemed the problem to be one that would require
maximum effort from all team members to identify and
implement a solution. Id. He met with the team,
including Hunter, to strategize on how to address the storage
problem. (Dkt. 25-1, p. 117; Dkt. 25-3, pp. 19-21, 30-31).
However, instead of staying at work to continue conferencing
with the team to resolve this issue, Hunter left to attend a
personal engagement. (Dkt. 25-1, pp. 118-19; Dkt. 25-3, p.
24; Dkt. 25-7, ¶ 9). The team members who continued
meeting decided to delete certain tapes after Hunter left for
her engagement. (Dkt. 25-1, pp. 125-26).
Hunter arrived at work the next day, Rurka told her that
Brent Beck, a contractor and not a GM employee, had deleted
the necessary data files. (Dkt. 25-1, p. 120; Dkt. 25-3, p.
16). However, the deleted files were generational data group
files (“GDGs”) that should never be deleted.
(Dkt. 25-1, pp. 120-25; Dkt. 25-3, pp. 19-21, 23-24).
According to GM, this occurred because Hunter - the only
person on the team who knew these GDGs should not be deleted
- did not speak up during the meeting while her coworkers
spoke about deleting them, and then left to go to her
personal engagement instead of staying to assist team members
in addressing the issue. (Dkt. 25-1, pp. 121-24; Dkt. 25-3,
19-21, 24-26, 30-31). Although 500 to 600 of the deleted
tapes were recovered, another 20, 000 deleted tapes could not
be recovered and were lost forever. (Dkt. 25-1, pp. 122-24).
According to GM, Hunter had approximately 20 years of
experience with mainframe computers and knew that these GDGs
should not be deleted. (Dkt. 25-1, pp. 12, 18-28; Plf. Dep.
Ex. 1). GM maintains that if Hunter had stayed at work with
her coworkers instead of leaving work early during a crisis
situation, she could have prevented their deletion. (Dkt.
25-1, pp. 121-24; Dkt. 25-3, pp. 19-21, 24-26, 30-31).
women, Mainframe Storage Director Jessie Bruner and HR
Business Partner Kathie Vosganian, conducted an investigation
regarding the deleted data. Rurka, Smith, Hunter and
contractors Walt Willis and Beck were interviewed as part of
the investigation. (Dkt. 25-1, pp. 126-27, 128-30, 133; Plf.
Dep. Ex. 7; Dkt. 25-8, Kathie Vosganian Declaration
¶¶ 3-4; Vosganian Declaration Ex. 1). The
investigation resulted in a finding that Hunter was partially
responsible for the deletion. (Dkt. 25-1, pp. 124-25, 128-30,
138-39; Plf. Dep. Ex. 7). Vosganian determined that Hunter
“left the premises during a very serious problem that
occurred with the mainframe and left the building when it was
all hands-on deck situation, ” and “[s]he did not
share critical information she knew that could have prevented
a massive data loss” because “she wasn't
concerned enough about it to stay with the rest of the group
and help solve the problem.” (Dkt. 25-5, deposition of
Kathie Vosganian (“Vosganian Dep.”), pp. 22-25).
Hunter maintains, however, that she explained to the entire
team how GDGs worked. (Dkt. 27-7, Ex. F). She asserts there
was no “crisis” and she left at the end of the
workday after explaining to everyone that the data would
“fall off” on its own. Id. Hunter says
that Rurka ignored her and did not follow her suggestions.
She left work for the day due to a prior commitment,
believing that the mainframe capacity issue had been handled.
Id. Hunter also points out that Rurka did not
understand how the GDG's worked or how certain files
automatically “fell off” the Mainframe, and none
of her team members were disciplined for not knowing how the
mainframe storage worked. (Dkt. 27-8, Ex. G, Overview of
Mainframe Data Loss; Dkt. 27-11, Ex. J, January 5, 2015
Memorandum to File - Cynthia Hunter).
though not all, members of the mainframe team suffered
consequences as a result of this incident. Specifically,
Hunter and two men received consequences. Beck saw his
contract terminated as a result of his actions. (Dkt. 25-1,
pp. 43-44, 45-46, 88-89, 124). A second man, Rurka, received
a written memo to his file for his role in the deletion, as
did Hunter. Rurka also lost approximately $10, 000.00 in
bonus money as a result and GM considered terminating his
employment. (Dkt. 25-1, pp. 134, 138; Plf. Dep. Ex. 10; Dkt.
25-3, pp. 22-23; Dkt. 25-5, pp. 19-20). Though Hunter denies
responsibility for the tape deletion (Dkt. 25-1, p. 139),
Bruner, a woman, determined that Hunter's leaving work to
attend to a personal function and her failure to provide
critical information regarding GDG tapes contributed to the
loss of the data. (Dkt. 25-3, pp. 19-21, 24-26, 30-31).
Bruner was prepared to end Hunter's employment for her
performance failings, but Rurka and Andrzejewski talked
Bruner into giving Hunter one more chance. (Dkt. 25-7, Rurka
Dec. ¶ 18). GM maintains that Hunter's poor
performance continued in 2015 resulting in her placement on a
“last chance agreement” on October 1,
2015. (Dkt. 25-1, p. 149; Plf. Dep. Ex. 12). The
document GM calls a last chance agreement is entitled
“Memorandum to File - Policies and Procedures
Violation” and it outlines additional instances of
performance issues in 2015. (Plf. Dep. Ex. 12). Specifically,
in June 2015, Hunter was involved in an incident that
resulted in a three-and-a-half-hour outage at four warehouses
in Canada, during which employees could not pick parts to
build cars. (Dkt. 25-1, pp. 143-45, 150-51; Plf. Dep. Ex. 12;
Dkt. 25-3, pp. 72-74; Rurka Dep. Ex. 6). On August 4, 2015,
Rurka documented to HR Business Partner Michael Andrzejewski
that Hunter had made unauthorized changes, which Hunter does
not dispute making. (Dkt. 25-1, pp. 147-49; Plf. Dep. Ex.
11). On September 20, 2015, according to the Memorandum to
File, Hunter allowed employees to move datasets after she
started a catalog reorganization, even though her group had
established procedures that prohibited these moves from
taking place once a reorganization has begun. (Plf. Dep. Ex.
12). GM says that Hunter's actions resulted in the system
being one hour and 23 minutes late coming back online. (Dkt.
25-1, pp. 150-53; Plf. Dep. Ex. 12). The Memorandum to File,
which Hunter signed, stated that further violations
“will likely result in termination of
employment.” (Plf. Dep. Ex. 12).
maintains that the incident in September 2015 was Jorge
Diaz's fault and she was unfairly blamed for his mistake.
She says Diaz interrupted her change order and began his own
change order, and that Diaz's actions were strictly
prohibited and against company policy. (Dkt. 27-12, Ex. K,
Deposition of Joseph Gurchiek, pp.11-12). Mr. Gurchiek
advised HR that Hunter was not at fault for this incident.
Id. Yet, Hunter was still disciplined as set forth
in the October 1, 2015 “last chance” agreement.
(Dkt. 27-13, Ex. L, October 1, 2015 Memo to File). As a
result, Hunter contacted a co-worker, William Neale, who
conducted an inquiry into the error rates of Hunter and her
team-members. Neale found that Hunter had the lowest
percentage of mistakes on her team. (Dkt. 27-14, Ex. M,
deposition of William Neale, pp. 53, 56, 59; Dkt. 27-15, Ex.
N, Affidavit of William Neale).
November 2015, GM says Hunter made another error that
resulted in GM car factories in Europe not being able to
print shipping labels for cars coming off the assembly lines;
the cars were parked in a lot until labels could be printed.
(Dkt. 25-7, Rurka Dec. ¶ 17). Then, during a February 2,
2016 team meeting, Rurka instructed his team to wait to
execute any data change records until after Smith completed
certain necessary pre-work steps. (Dkt. 25-1, p. 171; Plf.
Dep. Ex. 17; Dkt. 25-7, Rurka Dec. ¶ 20). Despite
Rurka's instruction, Hunter executed a change record
before Smith had completed his pre-work. (Dkt. 25-1, pp.
167-72; Plf. Dep. Ex. 17; Dkt. 25-7, Rurka Dec. ¶ 21).
When Smith discovered what Hunter had done, he reported it to
Rurka, who instructed Hunter to back out her changes. (Dkt.
25-1, pp. 167-72; Plf. Dep. Ex. 16, 17; Dkt. 25-7, Rurka Dec.
¶ 22). According to Rurka, if Smith had not discovered
Hunter's actions, GM might have experienced data
failures. (Dkt. 25-7, Rurka Dec. ¶ 22).
the above events, Rurka concluded that Hunter could not
perform her job duties satisfactorily. (Dkt. 25-7, Rurka Dec.
¶ 24). Rurka and Andrzejewski conferred and recommended
to Bruner that Hunter's repeated carelessness and
disregard of procedures warranted termination. (Dkt. 25-6,
Andrzejewski Dec. ¶ 13). Bruner agreed. (Dkt. 25-6,
Andrzejewski Dec. ¶ 13). Andrzejewski presented the
facts to Sharon Ridgell, a woman in GM's Policy
Department. Ridgell agreed that termination was appropriate.
(Dkt. 25-6, Andrzejewski Dec. ¶ 14). GM terminated
Hunter's employment on February 18, 2016. (Dkt. 25-1, pp.
100, 172; Plf. Dep. Ex. 18; Dkt. 25-6, Andrzejewski Dec.
¶ 15). Shortly after Hunter's termination, Rurka
also recommended that Michael Pietersz, a man, be terminated
for poor work performance. (Dkt. 25-7, Rurka Dec. ¶ 27).
her termination, Hunter made an “open-door”
complaint and alleged that her termination was due to race
and sex discrimination. (Dkt. 25-1, pp. 172- 73; Plf. Dep.
Ex. 19). The investigator interviewed Hunter; reviewed
Hunter's personnel records; and interviewed Rurka,
Andrzejewski, and Hunter's coworkers. Id. at
174-75.; Plf. Dep. Ex. 21. The investigation resulted in a
determination that Hunter's termination was appropriate
and that her claims of discrimination could not be
substantiated. Id. at 174-75; Plf. Dep. Ex. 21.
discrimination and hostile work environment claims are based
on the same alleged facts. (Dkt. 25-1, pp. 59-60). Hunter
testified at her deposition that Rurka was the only GM
employee who harassed and/or discriminated against her.
Id. at 41, 60-61. Regarding her hostile work
environment claim, Hunter claims that at a meeting in Summer
2014, Rurka teased her for having a crush on Director Richard
Kahn, which Hunter denies. Id. at 61-64. Hunter
claims Rurka continued to tease her. However, Hunter admits
she never told Rurka to stop and she never reported
Rurka's alleged teasing to Human Resources. Id.
at 64-66. Hunter also contends that Rurka began treating her
and another woman on the team, Melissa Bruce-Fuller
differently than their male co-workers in mid-2014. Hunter
points to allegations in the anonymous GM Awareline report
that Rurka called men “rockstars” but referred to
the women on the team as “uneducated, ”
“lazy” and “sloppy.” (Dkt. 27-3, Ex.
B). According to this anonymous report and Ms. Bruce-Fuller,
Rurka would also ignore women on the team, talk down to them,
exclude them from meetings, and walk away from them while
they were speaking. Id.; Dkt. 27-4, Ex. C,
deposition of Melissa Bruce-Fuller, p. 32. Arthur Gutowski
testified that there were times when Hunter was not heard at
meetings. (Dkt. 27-5, Ex. D, pp. 21-22).
asserts that Rurka harassed her by having a conversation with
her about her personal hygiene in 2015. Id. at 67.
She says that Rurka would not tell her who made the
complaint, and no one would admit to Hunter that they had
complained about her hygiene, so she assumed Rurka had made
up the allegations. Id. at 68-71. However, Vosganian
testified that one of Hunter's coworkers made the
complaint to her. Hunter's open-door investigation
confirmed that the coworker complained to Human Resources
about Hunter's odor and appearance and that Bruner had
directed Rurka to speak to Hunter about improving her
hygiene. (Dkt. 25-1, p. 176; Plf. Dep. Ex. 21, p. 7; Dkt.
25-5, p. 63; Dkt. 25-3, pp. 67-68).
also claims that Rurka forced her to work while on medical
leave. (Dkt. 25-1, pp. 75-76). Hunter broke her ankle in
January 2014, but she did not obtain a doctor's note