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Amini v. Rite Aid Corp.

United States District Court, E.D. Michigan, Southern Division

August 20, 2019

ROSITA AMINI, as Personal Representative of the Estate of Michael Kheibari, Plaintiff,

          Stephanie Dawkins Davis Mag. Judge.



         On April 14, 2014, Michael Kheibari[1] (“Plaintiff”) initiated this lawsuit against Defendant, Rite Aid Corporation, alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(e)(1), the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 623, and the Michigan Elliot-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2201, et seq.

         On September 26, 2017, this Court granted Defendant's motion for partial summary judgment and dismissed all of Plaintiff's claims related to his termination; the remaining claims relate only to his alleged harassment. (ECF No. 77.) Plaintiff claims that he was harassed on the basis of his age and national origin, and in retaliation for his complaints about workplace harassment. Presently before the Court is Defendant's motion for summary judgment, filed on January 31, 2019. (ECF No. 117.) The motion has been fully briefed. (ECF Nos. 117, 123, 128.) Finding the facts and legal arguments sufficiently presented in the parties' briefs, the Court is dispensing with oral argument pursuant to Local Rule 7.1(f)(2). For the reasons that follow, the Court is granting Defendant's motion for summary judgment.

         Factual and Procedural Background

         Born in Iran on July 16, 1949, Plaintiff became an American citizen in 2003. (ECF No. 57 at 3, Pg. ID 938.) Plaintiff indicated that he began working at Rite Aid in August 2007 as an assistant/floating manager. (Id.) From 2007-2011, Plaintiff interacted with his direct supervisors and the general store managers without incident. (Id.) Although, throughout the same period, Plaintiff had multiple evaluations in which his supervisor rated his performance as “Needs Development” in several competency categories. (Evaluations, ECF No. 117-3 at 2-18, Pg. ID 2803-19.) In 2009, Plaintiff was evaluated as “Needs Development” in not only his “Overall Objective Rating” but also all applicable competency categories, i.e., customer focus, accountability, teamwork, initiative, decision making/judgment, and leadership. (Id. at 2-4, Pg. ID 2803-05.)

         In October 2011, Plaintiffs daughter committed suicide, and suffering from the grief, he was subsequently prescribed medication for insomnia, anxiety, and depression around December 2011. (ECF No. 117 at 11-12, Pg. ID 2747-48; Dr. Zakari Dep., ECF No. 117-5 at 4, Pg. ID 2841.) Plaintiff testified, however, that he was never prescribed medication by his doctor, Dr. Zakari[2], prior to November 2012 (his first suicide attempt)-directly contradicting the testimony of Dr. Zakari. (Kheibari 2015 Dep., ECF No. 117-2 at 5, Pg. ID 2778; Dr. Zakari Dep. at 4, Pg. ID 2841.)

         Around November 2011, Daniel Snyder (“Snyder”) was assigned to Plaintiffs district as the new District Manager, Plaintiffs second-level supervisor. (ECF No. 57 at 4, Pg. ID 939.) Plaintiff alleges Snyder harassed him on the basis of his age and national origin, and testified to the following incidents:

• On March 19, 2012, in a telephone call between the two, Snyder told Plaintiff: “I have a serious problem with your language, with your accent, with your nationality, ” and “I don't like your language. I don't like accent. And it's time to go home. I don't want you being in my team”[3](Kheibari 2017 Dep, ECF No. 117-4 at 6, Pg. ID 2825.)
• Around April and May 2012, Snyder on different occasions visited stores in which Plaintiff was working, shook everyone's hand except for Plaintiffs and ignored him. (Id. at 9-10, Pg. ID 2828-29.) Plaintiff also testified that Snyder humiliated him by having a cashier give him a note explaining “this job has to be done” while ignoring him. (Id.)
• On July 16, 2012, in a telephone call between the two, Snyder told Plaintiff: “I have serious problem with you. You're too old for this. And your accent, I have problem. . . . I told you one time, why don't you go home, back to your country, and then create a space for new American younger - new American generation. And then let them - you're too old for this.” (Id. . at 13, Pg. ID 2833.)
• At an unspecified time, during a conversation with Snyder in which Plaintiff had an issue with a shift supervisor whom he trained and whom was promoted to General Manager (Plaintiff being an assistant/floating manager), Snyder told Plaintiff: “It's time to go home. You're old.” (Id. at 14-15, Pg. ID 2833-34.)
• On November 7, 2012, Plaintiff appeared for a scheduled job interview for a promotion to General Manager. (Kheibari 2015 Dep. at 14, Pg. ID 2787.) Plaintiff testified the following conversation took place between him and Snyder:
He asked me, “Are you here to apply for this position?” I said “Yes ” He said, “You are too old for this ” And then he told me “You cannot do this on my watch.” And I said “Why?” He said, “Well, because I don't like your language and I have a problem with your accent and you are too old for this. It's time to go home.”
• On other occasions in November 2012, Snyder visited stores in which Plaintiff was working, and on one occasion Snyder told Plaintiff: “I have serious problem about your age, accent, and country of origin. It's time to go home. I'm not going to promote you.” Then Snyder proceeded to “micromanage” Plaintiff. (Kheibari 2017 Dep. at 15, Pg. ID 2834.)
• In April and May 2012, on occasion during conference calls with 25 to 30 managers, Snyder told Plaintiff when he attempted to speak: “I have problem with your accent. I cannot understand you. So why you are not taking notes from the other managers?” Plaintiff described this incident saying, “Politely, he was telling me shut up.” (Id. at 10, Pg. ID 2829.)
• Finally, Plaintiffs other supervisor, Beth Spirko, became less friendly and lowered the ratings on his performance evaluation. Plaintiff asserts Ms. Spirko's conduct was due to both his age (because Ms. Spirko previously asked him his age) and Snyder directing her to do so (as a result of Snyder's animus toward Plaintiffs national origin). (Id. at 17, Pg. ID 2836; Kheibari 2015 Dep. at 10-11, Pg. ID 2783-84.)

         On November 14, 2012, Plaintiff wrote an email to Rite Aid's CEO and President, among others, claiming that Snyder violated state and federal law and that he did not feel safe. (ECF No. 57 at 12-13, Pg. ID 947-48.) He received a call from Rite Aid's human resources vice president informing him that Rite Aid would investigate his claim, but it would take a long time and no immediate action would be taken. (Id. at 13-14, Pg. Id. 948-49.) On November 23, 2012, after closing the store, Kheibari attempted suicide in the Rite Aid break room, leaving a note asserting the cause-the discrimination he faced at Rite Aid. (Id. at 14, Pg. ID 949.) Kheibari was hospitalized and began medical leave. (ECF No. 117 at 12, Pg. ID 2478.) After about seven ...

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