Opinion
CASE NO. 01-72596
April 24, 2002
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Defendant's Motion for Summary Judgment. Plaintiff responded and Defendant replied. The Court finds that the parties have adequately set forth the relevant law and facts, and that oral argument would not aid in the disposition of the instant motion. See E.D. MICH. L.R. 7.1(e)(2). Accordingly, the Court ORDERS that the motions be decided on the briefs submitted. Defendant's Motion for Summary Judgment is GRANTED.
II. BACKGROUND
Plaintiff brings this action for sexual discrimination, which arises out of her employment with Defendant. Plaintiff alleges that she was paid less than her similarly situated male co-workers. Plaintiff began working for Defendant as a bath designer at its store in Taylor, Michigan, on July 19, 1999, and worked at that store until May 5, 2000, at which point she transferred to Defendant's new Home Depot EXPO Design Center (hereinafter "Expo"), which is located in West Bloomfield. A bath designer's job entails designing bathrooms and selling the products necessary to fulfill the design. When Plaintiff was first hired, she was offered $14.50 per hour. The proposed wage was based on Plaintiff's work experience, job skills, education, pay history, Defendant's needs, the job market, and negotiations with Plaintiff.
Plaintiff's work experience and level of education were relevant to establishing her starting wage. In her deposition, Plaintiff stated that prior to working for Defendant she owned her own granite and marble shop for three years, where roughly 40% of her business was kitchen and bath design. Before owning her own business, Plaintiff worked from 1994 until 1996 at European Marble and Granite, where roughly half of her work was kitchen design. As for her education, Plaintiff studied liberal arts and business at Wayne State University for four and a half years. She, however, did not obtain a bachelors degree from Wayne State, and did not take any classes on design or architecture while there. She eventually took classes on blue print reading and architecture at Oakland Community College, however, she attended the architecture class after she stopped working for Defendant. As for professional education, Plaintiff began pursuing certification from the National Kitchen and Bath Association after she stopped working for Defendant, however, she did not have any type of certification while she was employed by Defendant.
A copy of Plaintiff's resume was produced in discovery. Plaintiff's resume, however, does not make any reference to her experience as a kitchen or bath designer. For the purposes of this motion, however, the Court will assume the facts in her favor.
As mentioned above, Plaintiff transferred to Expo in May 2001. When she transferred she hoped she would get a pay raise. Plaintiff was informed, however, that she would not get a pay raise until she received her employee review, which would occur after she had been with Defendant for a full year. In August 2000, after Plaintiff had been with Defendant for over a year — her one year anniversary was July 19, 2000 — Plaintiff inquired as to when she would be reviewed. Plaintiff was informed that because she spent the bulk of the previous year at the Taylor store that the Taylor store would need to perform the review. The Taylor store eventually performed the review, and gave her an overall rating of three on a scale of one to five. It also recommended that Plaintiff be given a raise of fifty cents per hour. Plaintiff was insulted by the paltry raise, and complained to her manager, Jan Morales. Morales told Plaintiff that while she thought Plaintiff was worth significantly more, Morales said that there was little she could do other than increase Plaintiff's pay another twenty-five cents per hour — raising Plaintiff's wage from a total of $14.50 per hour to $15.25 per hour — and recommend that Plaintiff's six-month review, which is typically a non-monetary review, be made into a monetary review instead.
Plaintiff was given her six-month review in late December 2000. Plaintiff received another three on a one to five scale. Plaintiff was upset about the review, and said it was "lousy." Shortly thereafter, Plaintiff was in touch with one of Expo's competitors. She was offered a position as a kitchen designer, and was told that she would very likely be paid more because she would be entitled to a commission. Armed with an offer from a competitor, Plaintiff approached Morales, and threatened to resign from Expo if her rate of pay was not increased to $27.00 per hour, which, Plaintiff believed, was the rate of pay that Paul Talaga, another designer that worked at Expo, was earning. Morales offered Plaintiff a $3.00 per hour pay increase, however Plaintiff rejected the offer stating that it was not enough. Plaintiff resigned from Expo on January 26, 2001, and accepted the competitor's offer.
III. LEGAL STANDARD
Summary judgment is appropriate only if the answers to interrogatories, depositions, admissions, and pleadings combined with the affidavits in support show that no genuine issue as to any material fact remains and the moving party is entitled to a judgment as a matter of law. See FED. R. Civ. P. 56(c). A genuine issue of material fact exists when there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). In application of this summary judgment standard, the Court must view all materials supplied, including all pleadings, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
The moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial. See FED. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The non-moving party must do more than show that there is some metaphysical doubt as to the material facts. It must present significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment. See Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993).
IV. ANALYSIS
Plaintiff claims that Defendant violated the Elliott-Larsen Civil Rights Act. See MICH. COMP. LAWS § 37.2101 et seq. The relevant section provides:
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
. . . . . . . . . . . . . . . . . . . . . . .
(b) Limit, segregate, or classify an employee or an applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.See MICH. COMP. LAWS § 37.2202. Under Michigan law, Plaintiff must make a prima facie case of discrimination by a preponderance of the evidence. See Terwilliger v. GMRI, Inc., 952 F. Supp. 1224, 1227 (E.D. Mich. 1997). If Plaintiff succeeds in establishing a prima facie case, then the burden shifts to Defendant to articulate a legitimate, nondiscriminatory reason for its treatment of Plaintiff See id. If Defendant can articulate such a reason, then Plaintiff is entitled an opportunity to prove that Defendant's articulated reason is merely a pretext for discrimination. See id. at 1227-28. "Summary judgment is particularly appropriate in Elliott-Larsen cases `where a plaintiff cannot factually establish a genuine issue of material fact as to whether the non-discriminatory reasons offered by defendant are but a mere pretext.'" See id. at 1228 (quoting Transou v. Electronic Data Systems, 767 F. Supp. 1392, 1400 (E.D. Mich. 1991) (citations omitted), aff'd 986 F.2d 1422 (6th Cir. 1993)).
Plaintiff must prove the following four elements in order to make a prima facie case: she is a member of a protected class; she was subject to adverse employment action; she was qualified for the job; and the circumstances surrounding the adverse employment action give rise to an inference of unlawful discrimination. See Lytle v. Malady, 579 N.W.2d 906, 914 (Mich. 1998). Plaintiff can prove unlawful discrimination either through direct evidence or circumstantial evidence. See id. at 916. Plaintiff may demonstrate unlawful discrimination through two methods: first, by showing disparate treatment, or second, by showing intentional discrimination. See Terwilliger, 952 F. Supp. at 1228.
Plaintiff attempts to use the disparate treatment theory to prove her claim. In order to show disparate treatment, Plaintiff must prove that similarly situated males were treated differently than she was. See id. at 1229. Plaintiff can show that another employee is similarly situated by proving that the other employees' employment was nearly identical to Plaintiff's in all relevant aspects. See Migaldi v. Sherman, 568 N.W.2d 64, 70 (Mich. 1997).
Plaintiff argues that the similarly situated male project designers that she worked with received higher wages than she did. She identified five males in particular — Paul Talaga, Noral Ford, Jon Wilson, Andrew Pellerito, and David Kallis — and argues that these males were similarly situated to Plaintiff because they all had similar job responsibilities. See EEOC v. Universal Underwriters Ins. Co., 653 F.2d 1243, 1245 (8th Cir. 1981). Plaintiff also argues that like all of her male co-workers, she had experience doing kitchen and bath design work. Therefore, Plaintiff concludes that she was similarly situated to her male co-workers.
Defendant counters by arguing that the male co-workers Plaintiff points to were not similarly situated. Defendant argues that Plaintiff's male co-workers had more experience and, unlike Plaintiff, many were certified. Further, Defendant argues that several of Plaintiff's male co-workers had more education than Plaintiff, and held different positions than Plaintiff.
In discussing Plaintiff's male co-workers individually, Defendant first discusses David Kallis and Andrew Pellerito. Both were whole house designers, as opposed to kitchen or bath designers, such as Plaintiff Defendant argues that a whole house designer carries a wider range of responsibilities than a kitchen or bath designer. For instance, Defendant argues that whole house designers are responsible for the interior design of the house, such as the carpet, drapery, and bedrooms. Whole house designers do not design kitchens or bathrooms because kitchen and bath design involves structural designs, and entails construction; in other words, whole house designers have a different set of skills and responsibilities than kitchen and bath designers.
Plaintiff concedes that this is an accurate representation of the work of whole house designers, as opposed to both kitchen and bath designers. Plaintiff argues, however, that the skill, effort, and responsibility required by a kitchen or bath designer is greater than that of a whole house designer. The Court does not make a finding regarding which job requires more skill, effort, and responsibility, however, because it was not provided with any evidence that would enable it to make such a determination. Moreover, the inquiry is altogether irrelevant. The Court finds that the positions of whole house designer and kitchen and bath designer are altogether different positions because they entail different responsibilities and required a different set of skills. Because they are different positions, the Court finds that Kallis and Pellerito are not similarly situated to Plaintiff
The Court finds that Plaintiff's fellow kitchen and bath designers had positions that required the same skill, effort, and responsibility as did Plaintiff's position. Defendant argues, however, that the male co-workers Plaintiff names, Paul Talaga, Noral Ford, and Jon Wilson, all had more experience than Plaintiff, and are all certified, whereas Plaintiff is not. As for Ford, Defendant argues that he worked for Defendant from 1994 until 1998 doing kitchen design before starting his own kitchen design company that he operated from May 1998 until May 2000. At the time he applied to Expo in 2000, Ford had an extensive design portfolio, and was making $20.00 per hour. In addition, Ford is certified by the National Kitchen and Bath Association. Based upon his experience, his pay history, and his qualifications, Ford was hired in at $20.00 per hour.
Wilson and Talaga also have more extensive backgrounds. Wilson has a certificate from Florida Community College in Drafting and Design Technology, and was involved in kitchen and bath design since 1993. Wilson had also been the store manager of at one of Expo's competitor's stores. Because of his background, and the need to induce Wilson to leave a competitor, Wilson was hired in at $19.25 per hour. As for Talaga, he had been working as a kitchen designer for Defendant since 1997. Talaga is certified by the National Kitchen and Bath Association, and holds a four-year college degree. He was an outstanding employee for Defendant and consistently scored either four or five on his performance reviews. In addition to his design duties, Talaga was also responsible for training other associates. Based on all of this, it is not surprising that Talaga was Defendant's highest paid designer, earning a wage of $23.75 per hour.
The Court finds that while Plaintiff had some experience doing kitchen and bath design prior to working for Defendant, it was not as extensive as any of the kitchen or bath designers that she points to. Further, she lacked the education and training that they had. Therefore, the Court finds that none of the male co-workers she points to were similarly situated in all relevant aspects, either because they had more experience and training than Plaintiff, or because her male co-workers held different positions. Plaintiff does not make a prima facie case because she was not subject to adverse employment action; she was not paid less than her male co-workers solely because of her gender. Defendant's Motion for Summary Judgment is GRANTED.
The Court notes that Plaintiff brought this action despite the fact that she had a total lack of knowledge of the qualifications of any of the individuals involved. She admitted as much in her deposition on more than one occasion. See Plaintiff's deposition, pp. 57-58, 89, 392, 404-11. For instance, Plaintiff was directly asked, "What factual basis do you have that you were similarly situated with these male employees at Expo that you've identified?" See Plaintiff's deposition, p. 410. Plaintiff simply replied, "Nothing that I can think of at the moment." See id. In other words, Plaintiff filed this action — thus forcing Defendant to spend time and money defending against it — without any factual basis for her claim. Therefore, the Court will allow Defendant to file a motion and supporting brief if it believes that it is entitled to attorney's fees and costs.
V. CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED.