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Weatherspoon v. Rock Construction Co., Inc.

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

October 16, 2019

TAMMY WEATHERSPOON, Plaintiff,
v.
ROCK CONSTRUCTION COMPANY, INC., Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE

         Plaintiff Tammy Weatherspoon filed a complaint in this Court alleging that her employer, Rock Construction Company, took adverse action against her motivated at least in part because of her race, and that the company retaliated against her when she complained about it. She brought claims under both federal and state law. The defendant moved to dismiss the complaint on several grounds, generally arguing that it does not state viable claims. Weatherspoon responded, the motion is fully briefed, and oral argument will not aid the Court in deciding it. Therefore, it is ordered that the motion be submitted on the papers. Because the complaint contains ample facts to support the claims, all of which were filed timely, the motion will be denied.

         I.

         The defendant filed its motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Therefore, the facts recited below are stated as they have been alleged in the complaint. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012).

         The plaintiff, a 52-year-old African-American woman, began working for the defendant in February 2015 as a Leasing Professional at the Legends Rosewood Village Community, which is a residential complex operated by the defendant in Pittsfield Township, Michigan. She was paid $14 per hour plus benefits. Some of the units in the complex were owner-occupied and others were rental units. Weatherspoon reported to Beverly List, who is a white female and the Community Manager of the Rosewood Village facility.

         Weatherspoon initially was hired to work no more than 30 hours per week, but after two months List had expanded Weatherspoon's role to include some “managerial duties, ” and she “routinely worked 40 hours or more per week.” Compl. ¶ 12, ECF No. 1, PageID.3. When she was hired, Weatherspoon was told by Amy Timbers, who was the defendant's Director of Property Management, that she would be considered for any prospective management jobs that might open up when the defendant acquired new properties.

         Weatherspoon says that within the first six months of her employment, she experienced several incidents of racist conduct by List. In the first incident, sometime in the summer of 2015, List “read aloud” from a written complaint by a property owner, quoting a portion where the owner stated that there were “too many thugs and people of color” moving into the Riverwood complex. Weatherspoon perceived that the exhibition of reading from the letter was “an obvious attempt to embarrass” her. Compl. ¶ 15, ECF No. 1, PageID.3.

         In the second incident, which occurred on an unspecified date, but apparently still in the summer of 2015, List was reviewing an application for purchase of a unit, which was submitted by a young woman of color, who indicated on her application that she held a graduate degree and a teaching position at the University of Michigan. The applicant also represented that her mother, who co-signed the application, had an income of $50, 000 per year. List commented that she “did not believe” that the applicant's mother had such a substantial income, and Weatherspoon replied, “You don't believe her because she is a person of color.” List “did not deny that the person's race motivated [the] comment.” However, Weatherspoon searched for the applicant's mother on Google and confirmed that she was “a person of means.” After the applicant moved into the complex, she reported to List that she was being “harassed” by “white unit owners, ” but List did nothing about the harassment. Id. ¶ 16, PageID.3-4.

         Finally, in August 2015, List gave Weatherspoon a “gift bag” that contained a scarf, a wallet, and a toy monkey. List told Weatherspoon when she gave her the gifts that the monkey “reminded List of Weatherspoon.” Id. ¶ 17, PageID.4.

         Weatherspoon was especially emotionally hurt by the final incident, and in late August or September 2015, she called the head of the defendant's Human Resources Department and complained about List's racist behavior and comments. Weatherspoon was told that the incidents she reported would be investigated. After several days, she spoke again with the HR representative, but was told that the HR department “can't go into detail about reprimanding List.” However, shortly later Weatherspoon saw a letter of reprimand addressed to List which had been left in the open in the office - Weatherspoon believed because List wanted her to see it. List spoke to Weatherspoon later and said to her, “We need to talk . . . . I just did some of this stuff because I'm the CEO of the property and I should act like it.” Weatherspoon then said, “I am sick over the monkey incident.” List did not apologize but stated “Are we good?” Compl. ¶¶ 19-22, ECF No. 1, PageID.4-5.

         Within three or four days after that conversation, List gave Weatherspoon a “new schedule” and informed her that her hours had been reduced from 40 hours per week to 12 hours per week. Weatherspoon immediately called the HR representative to “complain bitterly” about the schedule change, but it was not rescinded. Instead, later in the same day List and the HR officer called Weatherspoon at home; and the HR representative stated, “Beverly wasn't supposed to cut your hours - next time you want your hours cut it has to go through me.” Weatherspoon objected and said that List was lying and that she had never asked for her hours to be reduced, but the schedule change still was not reversed, and her full-time hours were not restored. Weatherspoon suffered with the reduced schedule for several more weeks, but she was unable to support herself on the reduced income, and eventually resigned in October 2015.

         The plaintiff filed her complaint in this case on September 30, 2018. In Counts I and II she pleaded claims of race-based discrimination under 42 U.S.C. § 1981 and Michigan's Elliott-Larsen Civil Rights Act (ELCRA), respectively. Counts III and IV plead claims for retaliation under state and federal law based on the reduction of the plaintiff's work schedule following her complaints to Human Resource representatives about the alleged discrimination.

         II.

         The defendant argues that the plaintiff's discrimination claims under both federal and state law all are insufficiently pleaded, principally because she failed to allege that she was treated differently than any similarly situated member outside her protected class, and because the allegations of three racist comments over the course of several months are not sufficient as a matter of law to establish severe or pervasive conduct to support any claim on a hostile work environment theory. The defendant also contends that it cannot be held liable for the alleged racist behavior because it took “corrective action” by issuing a letter of reprimand. The defendant also asserts that the reduction of hours cannot comprise a “constructive discharge” for the purposes of the ...


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