Dickson v. Adams Outdoor Advertising Ltd. Partnership of Minnesota

          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 ...