United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti, Magistrate Judge.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
[55]
LAURIE
J. MICHELSON, UNITED STATES DISTRICT JUDGE.
Mary
Jane Dickson used to work as a general sales manager for
Adams Outdoor Advertising. Dickson and Adams Outdoor disagree
as to the reason her employment ended. Dickson says that
Adams Outdoor was a “boys club” and that her
gender played a role in her termination. She also says that
when she complained of gender discrimination, Adams Outdoor
retaliated. Adams Outdoor, by contrast, says that the office
where Dickson worked had too many managers and that Dickson
had performance-related problems. The Equal Employment
Opportunity Commission was unable to resolve these
differences in opinion.
So
Dickson has sued Adams Outdoor, asserting that the company
violated Title VII of the Civil Rights Act of 1964 (as
amended) and Michigan's Elliott-Larsen Civil Rights Act.
The parties apparently learned everything they could about
what happened (deposing no less than 16 people). And now
Adams Outdoor asserts that no reasonable jury considering the
collected evidence could find in Dickson's favor. So
Adams Outdoor asks this Court to grant it summary judgment.
(ECF No. 55.)
For the
reasons set out below, the Court will dismiss Dickson's
retaliation claims, but her discrimination claims will
proceed to trial.
I.
While
the Court acknowledges that the Adams Outdoor employees
accused of wrongdoing have a different take on what occurred,
because Adams Outdoor seeks summary judgment, the following
factual account views the evidence in the light most
favorable to Dickson. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A.
A bit
of background about the parties provides context for this
case.
Adams
Outdoor Advertising Limited Partnership of Minnesota sells or
leases outdoor advertising space, e.g., billboard space. (See
ECF No. 55-2, PageID.3634-3635; ECF No. 55-9, PageID.4641.)
During Dickson's employment, Adams Outdoor employed
around 400 people in various-sized offices throughout the
eastern half of the country. (ECF No. 55-2, PageID.3498.) In
Michigan, Adams Outdoor had three markets: Kalamazoo,
Lansing, and Ann Arbor. (ECF No. 55-7, PageID.4373; ECF No.
55-16, PageID.5230; ECF No. 55-2, PageID.3643.) Its CEO and
president was (and is) Kevin Gleason. (ECF No. 55-2,
PageID.3478.) Adams Outdoor was structured such that the
general manager for a market (e.g., Ann Arbor) would report
either to a regional manager or to Gleason. (ECF No. 55-2,
PageID.3496-3498.) During Dickson's employment, the
regional manager for the region that included the Ann Arbor
market was Christopher Eigenberger. (ECF No. 55-2,
PageID.3501.)
Around
January 2015-shortly before Dickson was hired by Adams
Outdoor-Adams Outdoor either acquired or partnered with a
similar company, Fairway Outdoor. (See ECF No. 55- 2,
PageID.3490, 3533, 3563.) Gleason also served as the
president and CEO of Fairway Outdoor. (ECF No. 55-2,
PageID.3479.)
Prior
to joining Adams Outdoor, Mary Jane Dickson had considerable
experience in selling print, television, and radio
advertising. From 2004 to 2009, Dickson sold advertising for
Comcast; she was the sales manager for Comcast's Flint,
Michigan, office before being promoted to general sales
manager for Southeast Michigan. (ECF No. 45-3, PageID.2872.)
In 2009, Dickson became the vice president and general
manager for Cumulus Media in Flint. (ECF No. 45-3,
PageID.2872- 73.) And from 2011 to 2013, Dickson served as
the general sales manager and acting general manager for
Viamedia, a cable company. (ECF No. 45-3, PageID.2873.)
With
that background, the Court turns to the events giving rise to
this case.
B.
At the
start of 2015, the general manager of Adams Outdoor's Ann
Arbor office, Todd McWilliams, needed help with his
general-manager duties. Because McWilliams was handling some
national and regional-manager work, he had to be away from
the Ann Arbor office two or three days a week. (ECF No. 55-4,
PageID.3975, 3979, 4015; ECF No. 55-7, PageID.4237.) So in
March 2015, McWilliams hired Dickson as a “general
sales manager.” (ECF No. 55-7, PageID.4231-4233.) As
general sales manager for Ann Arbor, Dickson acted as the
office's general manager when McWilliams was away. (ECF
No. 55-7, PageID.4232-4233; ECF No. 55-4, PageID.3990, 4016.)
Although
the general sales manager position was not unique to Ann
Arbor, the vast majority of Adams Outdoor and Fairway Outdoor
offices did not have that position. (ECF No. 57-4,
PageID.5770-5773; see also ECF No. 55-4, PageID.3990
(indicating that GSM position was new with Fairway
partnership).) Instead, most Adams Outdoor and Fairway
Outdoor offices had a general manager, a sales manager who
reported to the general manager, and account executives
(salespeople) who reported to the sales manager. (See ECF No.
57-4, PageID.5770-5773.) Indeed, Adams Outdoor's job
description for a “general sales manager”
suggests that the position was for “large markets with
multiple Sales Managers or regions.” (See ECF No. 55-7,
PageID.4247.) Ann Arbor was not considered a large market and
did not have multiple sales managers. (See ECF No. 55-11,
PageID.4830, 4834; ECF No. 55-2, PageID.3579-3580; ECF No.
55-7, PageID.4270.) Neither Kalamazoo nor Lansing, which were
markets similar to Ann Arbor (ECF No. 55-11, PageID.4830,
4835), had a general sales manager (ECF No. 57-4,
PageID.5770).
As
general sales manager, Dickson proposed, and apparently
implemented, a change to how account executives sold
inventory outside of their market. There were instances
where, for example, an account executive in the Lansing
office would sell billboard space in the Ann Arbor market
without knowing the Ann Arbor rates. As a result, Ann
Arbor's billboard inventory might be sold at too low of a
rate. Dickson proposed that before an account executive could
sell billboard space outside his or her market, the sales
managers of all the affected markets would have to approve
the rates. (ECF No. 55-7, PageID.4252-4254.)
Dickson
recalls that some account executives in Lansing were not
happy with the new procedure. (ECF No. 55-7,
PageID.4278-4279.) Although perhaps not because of the change
in procedure, the Lansing sales manager and some of the
Lansing account executives did not want to work with Dickson.
(ECF No. 55-15, PageID.5161; see also ECF No. 55-3,
PageID.3843, 3902; ECF No. 55-4, PageID.4089.)
Dickson
was also tasked with coming up with a plan for a new office
in Southfield, Michigan. (ECF No. 55-7, PageID.4329-4330.)
Dickson recalls being told that if the plan was not
successful, “they” would fire her. (ECF No. 55-7,
PageID.4330.) Dickson believes that “they”
consisted of Brian Grant, Adams Outdoor's vice president
of human resources, and Eigenberger, the regional manager.
(ECF No. 55-7, PageID.4330; ECF No. 57-4, PageID.5769.)
Toward the end of Dickson's tenure at Adams Outdoor
(i.e., the end of 2015 or early 2016), an office did open in
Southfield. (ECF No. 55-8, PageID.4540; ECF No. 55-11,
PageID.4849.) The two account executives in Southfield, Shana
Dellas and Elizabeth Topping, reported directly to Dickson.
(ECF No. 57-14, PageID.5899.)
In June
or July 2015, Dickson hired Michael Musto as the sales
manager in the Ann Arbor office. (ECF No. 55-8, PageID.4496;
ECF No. 55-7, PageID.4275.) Dickson had worked with Musto at
Viamedia and considered Musto a friend. (ECF No. 55-7,
PageID.4272.)
In
September 2015, McWilliams left the Ann Arbor office
completely to become the general manager for Adams
Outdoor's office in Madison, Wisconsin. (ECF No. 55-4,
PageID.3974, 3985.) Thus, the Ann Arbor general manager
position became vacant. Later that month, Eigenberger
(regional manager) and Grant (VP of HR) made Dickson the
interim general manager of the Ann Arbor office. (ECF No. 55,
PageID.4125; ECF No. 55-7, PageID.4304; see also ECF No.
55-3, PageID.3756, 3822, 3928.)
C.
At this
point, it is useful to pause the chronological narrative and
provide some information about Eigenberger's and
Grant's reputations as they relate to this case.
According
to several Adams Outdoor employees, Eigenberger was at times
rude or condescending-to both men and women. (ECF No. 55-8,
PageID.4541 (Musto); ECF No. 57-12, PageID.5855 (Topping);
ECF No. 55-10, PageID.4729, 4746 (Buck); ECF No. 55-11,
PageID.4859-4860 (Cannon).)
But
according to other Adams Outdoor employees, Eigenberger
treated women worse than men. Dickson recalls that
Eigenberger would talk over her and cut her off when she was
speaking. (ECF No. 55-7, PageID.4332.) Dickson never saw
Eigenberger do the same to McWilliams, Musto, or Brian Buck
(male employees in the Ann Arbor office). (ECF No. 55-7,
PageID.4332.) Dickson also recalls a meeting where she
“was the senior person in the room” and
Eigenberger asked her “to get him a cup of
coffee.” (ECF No. 55-7, PageID.4315.) Musto recalls
that Eigenberger was also rude to him and also asked him to
get coffee. (ECF No. 55-8, PageID.4540, 4590.) But Dellas (an
account executive in Southfield) “would be
surprised” if Eigenberger “ask[ed] Mike Musto to
get him coffee if [Dickson] was in the room, or any other
woman were in the room.” (ECF No. 55-16, PageID.5259.)
Dellas also remembers a meeting where Eigenberger was
“really kind of nasty” to Dickson and thought to
herself that “you've kind of got to develop thick
skin if you work with a bunch of men and this is sort of the
playing field.” (ECF No. 55-16, PageID.5244.) Dellas
and Kathie Sjoberg (an account executive in Ann Arbor) both
declare that “[t]he difference between how
[Eigenberger] treated [Dickson] versus how he treated men
like Mike Musto was very obvious.” (ECF No. 57-8,
PageID.5779; ECF No. 57-10, PageID.5836.) Sjoberg never
observed Eigenberger be rude to men in the office (ECF No.
55-9, PageID.4671) and says that Eigenberger would negatively
single out women in meetings much more often than men. (ECF
No. 55-9, PageID.4677.)
Several
Adams Outdoor employees also recall Eigenberger acting
inappropriately with female employees he found attractive.
Dellas recalls that Eigenberger “would leer” at a
“very attractive” woman named Starr Brendengen.
(ECF No. 57-8, PageID.5779.) “She was so uncomfortable
she would take time off when she knew he was in the office,
” Dellas says. (Id.) Sjoberg holds the same
opinion: “Brendengen . . . was very uncomfortable with
Chris Eigenberger, who she described as creepy.'”
(ECF No. 57-10, PageID.5836.) One employee also recalled a
rumor that Eigenberger “spent more time with what you
would consider [a] prettier employee” in Wisconsin.
(ECF No. 45-8, PageID.2905.) And in 2017 (the year after
Dickson left Adams Outdoor), Eigenberger forced a female
employee to give him a kiss. (ECF No. 55-22, PageID.5414.)
At
least two Adams Outdoor employees, Dickson and Sjoberg,
thought that their Vice President of HR, Grant, also acted
inappropriately toward women. Sjoberg recalls that Grant was
“very touchy, feely with the young women in the office,
sitting on their desks in cubicles, hugging, cheek kissing
and inviting to drinks.” (ECF No. 57-10, PageID.5836.)
Sjoberg specifically remembers Grant acting this way toward
Elizabeth Topping, an account executive in Southfield. (ECF
No. 55-9, PageID.4653.) In Sjoberg's opinion, Grant was
“more of an HR issue than a HR person.” (ECF No.
55-9, PageID.4653.) And as will be detailed below, Dickson
also recalls Grant dancing inappropriately with a female
employee during a managers' meeting in Mexico.
D.
In
October 2015, Eigenberger remarked about the age of two of
Dickson's recently hired account executives: Kathy
Sjoberg, who was 60 years old, and Janet Jablonski. (See ECF
No. 55-7, PageID.4295-4296.) Dickson recalls Eigenberger
saying to her: “This is going to sound really bad, but
I was surprised to see how old Kathy is. . . . Am I going to
see the same thing [in Janet] as I see in Kathy?” (ECF
No. 55-7, PageID.4295-4296.)
Dickson
reported Eigenberger's remarks to Brian Buck. (ECF No.
55-7, PageID.4310.) Although Buck was the controller for the
Ann Arbor office (ECF No. 57-14, PageID.5899), he also served
as the onsite human-resources person (see ECF No. 55-8,
PageID.4517-4518; ECF No. 55-10, PageID.4718). If there was a
human-resources issue, Buck was supposed to report it to
“management, ” which presumably included Grant.
(See ECF No. 55-24, PageID.5474, 5547, 5548; ECF No. 55-10,
PageID.4719.)
E.
During
the fall of 2015, Eigenberger was busy trying to permanently
fill the Ann Arbor general manager position vacated by
McWilliams.
It
appears that Eigenberger's process for hiring
McWilliams' replacement was rather informal. Rather than
posting the vacancy, collecting applications, and conducting
formal interviews, Eigenberger personally recruited people
that he thought would be good for the job and then discussed
the position with the candidate. (ECF No. 55-3, PageID.3859.)
Musto
(the sales manager Dickson had hired) was among the people
that Eigenberger recruited. It appears that Eigenberger liked
Musto from the get-go: within two weeks of his hire as sales
manager, Eigenberger approached Musto about applying for a
general manger position in Chattanooga, Tennessee. (ECF No.
55-8, PageID.4522.) In the November 2015 timeframe,
Eigenberger talked with Musto about the Ann Arbor general
manager position for about 35 minutes. (ECF No. 55-3,
PageID.3869-3870.) Musto recalls that Eigenberger invited him
to have dinner with the sales manager and the general manager
of the Lansing office. (ECF No. 55-8, PageID.4570.) At some
point, Musto told Eigenberger that “MJ was your
guy” for the Ann Arbor general manager position,
referring to Mary Jane Dickson. (ECF No. 55-8, PageID.4598.)
Eigenberger
also reached out to Danielle Haaksma at another company about
the general manager position in Ann Arbor. (ECF No. 55-3,
PageID.3859) Eigenberger recalls Haaksma being his
“number one choice” for the job, but she was
unwilling to relocate for it. (ECF No. 55-3, PageID.3859)
The
record is not clear as to whether Eigenberger interviewed
Dickson for the general manager position. Dickson believes
that she was not interviewed for the job. (ECF No. 45-3,
PageID.2869; see also ECF No. 55-12, PageID.4978.) But that
might be because of the informal way in which Eigenberger
conducted the job search. Indeed, Eigenberger believes he
interviewed Dickson for about 40 minutes: “I was in her
office asking her questions about the job and . . . how did
she think she would do in the job, . . . what she would do if
she was a general manager, how she would operate, what her
philosophies were.” (ECF No. 55-3, PageID.3862; but see
ECF No. 55-3, PageID.3870.)
Interviewed
or not, Dickson was not hired for the general manager
position. Michael Cannon was. Cannon had worked for Adams
Outdoor as the Kalamazoo general manager from 2003 to 2007.
(ECF No. 45-3, PageID.2872; see also ECF No. 55-13,
PageID.5087.) In 2007, Cannon left Adams Outdoor (or,
perhaps, was terminated) because he did not see eye-to-eye
with Gleason about how rates should be set. (ECF No. 55-2,
PageID.3582, 3612; ECF No. 55-12, PageID.4933-4934.) But
during the spring or summer of 2015, Cannon called Gleason.
(ECF No. 55-12, PageID.4935; ECF No. 55-2, PageID.3614.)
Gleason recalls Cannon saying, “I was young. I came out
of cable as a phenom. I [thought] I knew everything. I
didn't listen to you. I didn't listen to my
peers.” (ECF No. 55-2, PageID.3614.) Gleason further
recalls, “I thought [Cannon's explanation] sounded
very compassionate. I thought it sounded very humble. I
thought maybe . . . the spots on the leopard had changed,
because Mike is a good media guy.” (ECF No. 55-2,
PageID.3614-3615.)
Eigenberger
says he selected Cannon for the general manager position
because Cannon had “20 plus years of media management
background, ” “outdoor experience, ” had
time to “internalize what he did right and what he did
wrong” during his prior stint at Adams Outdoor, and
offered “a very good plan for [self]
improvement.” (ECF No. 55-3, PageID.3873.)
Dickson
recalls Eigenberger informing her that she could not
permanently manage the Ann Arbor market without “more
outdoor [advertising] experience.” (ECF No. 55-7,
PageID.4282- 4283.) Eigenberger says he spoke with three
people who had worked with Dickson, including McWilliams and
“one was ambivalent and the other two said that they
think she would make a poor general manager.” (ECF No.
55-3, PageID.3855.) McWilliams remembered telling
Eigenberger, “I didn't think [Dickson] was
ready.” (ECF No. 55-5, PageID.4116.)
After
learning that she did not get the general manager position,
Dickson made a report to Buck (the person in the Ann Arbor
office responsible for HR duties). Dickson recalls, “I
told [Buck] I believe that I was passed over because I'm
a woman.” (ECF No. 55-7, PageID.4314.) For his part,
Buck does not recall a complaint related to Dickson's
gender.[1] (ECF No. 55-10, PageID.4745.) Musto also
recalls Dickson telling him on several occasions that
Eigenberger did not seriously consider her for the position
because she was a woman. (ECF No. 55-8, PageID.4515, 4517.)
Cannon
started as the general manager for Ann Arbor on December 1,
2015. (ECF No. 55-12, PageID.4947.) Thus, the hierarchy
became:
Gleason (CEO)
↑
Eigenberger (Regional Sales Manager) ↔ Grant (HR VP)
↑
Cannon (General Manager, Ann Arbor)
↑
Dickson (General Sales Manager, Ann Arbor)
↑
Musto (Sales Manager, Ann Arbor)
↑
Account Executives (except Dellas and ...