Opinion
Case Number 03-10117-BC
May 19, 2004
OPINION AND ORDER GRANTING DEFENDANT'S AMENDED MOTION FOR SUMMARY JUDGMENT
Pier 1 Imports (U.S.), Inc., the defendant in this case, had personnel problems at its Saginaw, Michigan store during the later half of 2002, arising primarily from the fact that two of its at-will employees, Jacob McShane, a salesperson, and Cynthia Serrin-Brandel, the store manager, did not get along with each other. This discord was manifested by numerous calls by these employees to the Pier 1 human resources department involving a variety of complaints and allegations. Pier 1 commenced a series of investigations. While one of the investigations was under way, Serrin-Brandel, the plaintiff in this case, decided to search through the pockets of McShane's store apron and discovered an open-end wrench that she believed had been sharpened at one end. She called the police to report what she had found. A short time thereafter, McShane, Serrin-Brandel, and another employee were suspended. A few days later, Pier 1 terminated Serrin-Brandel because it found that she had lied about material facts during the ongoing investigations. Serrin-Brandel, however, contends that she was fired for making the report about McShane's suspected illegal conduct (possessing an item fashioned as a dangerous weapon) to the police. She commenced a lawsuit in the Saginaw County, Michigan Circuit Court alleging violations of public policy and the Michigan Whistleblowers' Protection Act (WPA). The defendant removed the action to this Court on the ground of diversity of citizenship and now moves for summary judgment. The Court heard the parties' arguments on May 11, 2004, and now finds that the plaintiff's public policy claim is preempted by the WPA, the plaintiff has established a prima facie case under the WPA, and the plaintiff has failed to offer evidence sufficient to create a jury-submissible issue on the question of whether the defendant's legitimate reason for terminating her was really a pretext for an unlawful act of retaliation. The Court, therefore, will grant the defendant's motion for summary judgment.
I.
Cynthia Serrin-Brandel was discharged from her employment as a Pier 1 store manager on January 22, 2003. Although the reason motivating the discharge is vigorously contested by the parties, it appears that there is no dispute as to the following basic facts. Serrin-Brandel was employed as a store manager at Pier l's store in Saginaw, Michigan from May 5, 1999 until January 22, 2003. She hired Jacob McShane as a sales associate on August 5, 2002. Within a week of his hire date, Serrin-Brandel and the staff began to suspect that McShane was using illicit drugs at work; the plaintiff reported this behavior to her Regional Manager, Steven Miller. Deposition of Cynthia Serrin-Brandel (Pi's Dep.) at 63. However, Miller told her not to terminate or discipline McShane because management perceived that he was a homosexual and might sue the company for discrimination.
After McShane arrived late to work on December 16, 2002, Serrin-Brandel informally disciplined him. Id. at 81-82. McShane then proceeded to contact the central zone human resources department to make a complaint that the plaintiff and others in the store were discriminating against him because he was homosexual by requiring him to work "off the clock" without pay, altering his time sheet, and committing other violations of company policy. The human resources department subsequently conducted an investigation.
On December 18, 2002, Dan Regelean, Pier 1's associate human resources manager, contacted McShane to follow up on a written statement that McShane had promised but failed to provide. During this conversation, McShane told Regelean that Sandy Proulx, an assistant manager in Saginaw, Michigan, and Serrin-Brandel were retaliating against him for his earlier complaint.
Miller conducted personal interviews of McShane, Proulx and Serrin-Brandel on January 2, 2003 and January 3, 2003. The investigation concluded on January 7, 2003. Pier 1 was unable to verify most of McShane's complaints, however Miller did substantiate those complaints relating to McShane not being paid for some of the time he claimed to work and Serrin-Brandel's violation of company policy by allowing non-employees to be in the store after hours. Thus, McShane was paid for all the time for which he claimed he was unpaid and Serrin-Brandel was verbally counseled against violating the policy prohibiting non-employees from being in the store after hours. Proulx, McShane and Serrin-Brandel were reminded of the need to work together professionally to advance the company's goals. Serrin-Brandel and Proulx were also cautioned about the need to avoid violations of company policy against retaliating against those making complaint's under Pier 1's so-called "Open Door Policy."
According to assistant store manager Proulx, after McShane's complaint and the resulting investigation, Serrin-Brandel became "consumed" with firing McShane. Proulx avers in her declaration that "[a]fter I returned to work, Plaintiff seemed consumed with getting rid of a male sales associate named Jake McShane (`McShane') and she instructed me to document everything McShane did or said. She also told me that she wanted to get rid of McShane because he had complained to Human Resources about her and that had caused an internal investigation at the Saginaw, Michigan store." Declaration of Sandy Proulx (Proulx Decl.) ¶ 3. Serrin-Brandel does not deny these allegations.
McShane again made complaints about the plaintiff to the human resources department on January 8, 2003. According to human resources manager Regelean, McShane sent an email message complaining about Serrin-Brandel's conduct toward him.
Specifically, McShane complained that Serrin-Brandel raised her voice and yelled when addressing him, she told him that his "lifestyle was not the store's image" and that she used profanity when addressing him and that she told one of McShane's co-workers that Serrin-Brandel was trying to get McShane fired. Upon receiving this complaint, I initiated a second investigation I contacted Serrin-Brandel the following day and she denied engaging in the conduct complained of by McShane. At the conclusion of my telephone interview of Serrin-Brandel, I again reminded her about Pier 1's policy against retaliating against employees that make complaints under Pier 1's Open Door Policy.
Declaration of Dan Regelean (Regelean Decl.) ¶¶ 11, 12.
On January 14, 2003, while at work, McShane answered a telephone call from a caller asking to speak to the plaintiff. McShane asked the name of the caller and passed the information on to the plaintiff, who apparently was embarrassed because the call came from one of her creditors. The plaintiff told McShane, in a "firm" tone, that he did not need to screen her calls. Pl's Dep. at 91. After Serrin-Brandel finished her call, she went to the floor to notice that McShane was talking on one of the two telephones in the sales area. Shortly thereafter McShane came to the office and asked to use the office for a personal call. At the time, Serrin-Brandel was meeting there with Proulx. At her deposition, Serrin-Brandel described the ensuing encounter:
A. [McShane] knocked on the door and he said he had to use the telephone in the office. I said no, you can't use the phone in the office, we are in here right now, you can go use the phone — there were two of them on the floor, and I just said, you know, you're on the phone, use the phone out there, so I didn't really need him telling me to get out of my office. I was having a conversation with Sandy [Proulx], so shortly thereafter, Dan [Regelean] called.
* * *
A. Well, Dan called me back and said he had just gotten off the phone with Jake.
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Q. And what did Dan — tell me what you recall from that conversation.
A. Well, apparently that was the call that Jake had made to HR and said that Jake had called and was upset because I told him not to screen my calls, and he asked what was going on, and he didn't understand why I would say that, and I said, well, I don't have anything to hide from people, I know a lot of customers on a first-name basis, and I didn't need them to know who I'm talking to.
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Q. What else did you and Dan discuss during this telephone call after you denied Jake access to your office?
A. He asked me if I knew he was talking to HR, and I said I didn't know for sure because he was already on the phone when I walked up there. I didn't know he was — who he was calling but I assumed because of the incident we had in the stockroom with the telephone.
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Q. And what else do you recall from that conversation with Dan in HR?
A. I told him that I had to get going because it was getting late. I had to pick my child up at the day care and they close at 6:00, and I was already way late in getting there, and what time it was, I'm not sure, but I remember speeding all the way to Bay City to pick up my child.
I told Dan that I was really upset, I was going through a divorce. They all knew I was going through a divorce. My mother was in the hospital. I mean, I had lots of things going on in my life at that time, and I had to get going. And I also said, too, I had the next day off. I would appreciate it if they wouldn't contact me at home, just call me back when I get back in the next day that I had to work.
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Q. At some point, did you learn Jake McShane filed another complaint about you with HR? A. I didn't know that. Well, that's what Dan told me, that he had called. I guess that's a complaint.Id. at 97-100.
Regelean related that McShane had called him on January 14 to complain about the rude reprimand received from the plaintiff, and Regelean told McShane to use the private office telephone to complete the conversation. After McShane put him on "hold" for several minutes, McShane came back on the line to report that the plaintiff had slammed her office door in his face when he told her he needed the office telephone to talk to the human resources department. During Regelean's next call to the plaintiff, he states that she told him that she had "no idea" why the plaintiff wanted to use the telephone and denied that the office door was partially open when he made his request. Regelean Decl. at ¶¶ 14-15. Regelean asked to speak with Proulx, but the plaintiff told him she had left for the day. Sensing trouble and inconsistent stories, Regelean scheduled Miller to return to the Saginaw store to investigate further.
The next day, January 15, 2003, was the plaintiff's day off. Pl's Dep. at 104. McShane was scheduled to work from 12:00 p.m. to 7:30 p.m. During the afternoon, he and Proulx exchanged words, with which Proulx apparently took offense. Proulx stated that McShane told her that she looked "red and flushed," and "hot and bothered," which prompted Proulx to complain to Miller in the human resources department. Proulx Decl. ¶ 7. At the end of the shift that day, Proulx asked McShane to look for a telephone number of a customer from earlier in the day, and when McShane went through his store apron pockets Proulx saw that he carried a tape recorder. Proulx told Serrin-Brandel about this discovery the next day when she returned to work, and also related an incident that occurred the previous day at closing time when McShane lingered at the store while Proulx was leaving, which had caused her consternation. McShane was not in the store at the time Proulx made her report to Serrin-Brandel, and the plaintiff went to the area where the salesmen hung their aprons to look through McShane's apron. Her search did not turn up a tape recorder, but she did discover a wrench in his pocket. Proulx stated that the plaintiff exclaimed, "Oh my god, look what I found," and declared that the item could be used as a weapon.
The plaintiff explained in her deposition that she called the Saginaw Township Police Department to report her discovery and seek advice as to a course of action. PL's Dep. at 126. Eventually she was directed to the local sheriff department, which took the report as a complaint regarding suspicious activity involving a weapon. PL's Ex. 22. Saginaw County Sheriff Deputy Paula Klosowski came to the store, interviewed Serrin-Brandel and Proulx, and seized the wrench, which Serrin-Brandel had described as having been filed down on one end to be fashioned as a weapon. The sheriff department's investigation did not result in any charges against McShane. Both the officer responding to the call and the detective subsequently assigned to the case signed affidavits stating that the wrench was not a weapon nor had it been modified in any way to make it a weapon. Aff. of Detective Virginia May ¶¶ 2, 3 ("On or about January, 2003, 1 personally examined a wrench which had been seized by Saginaw County Sheriff Department Deputy, Paula Klosowski, as part of an investigation at the Pier 1 store, located at 2508 Tittabawassee, Kochville Township, Saginaw County, Michigan. . . . The wrench did not appear to be altered, filed down or fashioned to be a dangerous weapon"); Aff. of Officer Paula Koslowski ¶¶ 2, 3.
After this investigation, McShane again contacted Regelean in Pier 1's human resources department to report that the plaintiff was continuing to retaliate against him for his earlier complaints of discrimination. Pier 1's investigation was broadened to include McShane's complaint of retaliation and to discover whether McShane posed a health or safety risk to other Pier 1 employees or customers. Regelean averred that he directed Miller to focus the investigation on McShane's complaint of being denied access to a private space by Serrin-Brandel to make his telephone call to human resources on January 14, 2003 and the events that followed.
Miller interviewed Serrin-Brandel, McShane, and Proulx on January 20 and 21, 2003. He asked Serrin-Brandel about McShane's request to use the telephone on January 14, 2003, and recounted that the plaintiff stated that McShane never announced that his purpose for using the private telephone was to call in a complaint to the human resources department, McShane never told her with whom he wished to speak, and she never slammed the door in his face. Miller Decl. at f 6. However, Proulx told Miller that she was present during the encounter and that McShane told the plaintiff that he wanted to use the telephone to call "Dan" in the human resources department, the conversation between the two did not take place through a closed door, Serrin-Brandel did close the door on McShane, and Serrin-Brandel lied to Regelean that day when he had his follow-up conversation with her. Id. at f 7. The plaintiff later testified at her deposition that she could not remember if McShane in fact told her that he wanted to use the telephone to call the human resources department, but she assumed that is what he wanted. PL's Dep. at 97-98.
Miller recommended that all three employees be terminated. However, Regelean decided that only the plaintiff should be fired. He reasoned that the plaintiff "had provided untruthful statements and failed to act in good faith during the course of the initial investigation that was initiated by McShane's January 14, 2003 complaint to Human Resources. [Regelean] concluded that [Serrin-Brandel] had not been truthful when she told [him] that she did not know with whom McShane wanted to talk when he asked to use the office telephone." Regelean Decl. at ¶ 21. Regelean also concluded that Serrin-Brandel had engaged in misconduct when she did not allow McShane to use the private telephone to complete his call to the human resources department on January 14, and that the plaintiff was untruthful when she told Regelean that she did not know that McShane was speaking with the human resources department at the time. Ibid. Regelean found that Serin-Brandel interfered with his investigation by lying about the McShane incident and further lying when she told him that Proulx had left for the day when Regelean had asked to speak to her. He also thought that Serrin-Brandel's conduct amounted to retaliation against McShane for his complaints about her to the human resources department.
Regelean told the plaintiff that she was terminated on January 22, 2003. The plaintiff subsequently filed her lawsuit in state court on April 23, 2003. The complaint contains two counts: one for wrongful termination in violation of public policy; and a count alleging a claim under Michigan's Whistleblowers' Protection Act, Mich. Comp. Laws § 15.362. The Court will address each of these counts in turn.
II.
It a diversity case, the Court applies the state's rules of decision to adjudicate the plaintiff's state-law claims. Thus, the Court will turn to state statutory authority as interpreted by the state's highest court. See Erie R.R. v. Tompkins, 304 U.S. 64, 78(1938). If the state's highest court has not decided an issue, then "the federal court must ascertain the state law from `all relevant data.'" Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995) (quoting Bailey v. V O Press Co., 770 F.2d 601, 604 (6th Cir. 1985)). "Relevant data" includes the state's intermediate appellate court decisions, ibid., as well as the state supreme court's relevant dicta, "restatements of law, law review commentaries, and the `majority rule' among other states." Angelotta v. American Broadcasting Corp., 820 F.2d 806, 807 (6th Cir. 1987).
In Suchodolski v, Mich, Consolidated Gas Co., 412 Mich. 692, 696, 316 N.W.2d 710 (1982), the Michigan Supreme Court recognized an exception to the employment-at-will rule allowing either party to end an employment relationship even in the absence of a good reason. The court held that "some grounds for discharging an employee are so contrary to public policy as to be actionable." Id at 695, 316 N.W.2d at 710. Retaliation for refusal to violate the law, or for the exercise of a statutory or fundamental right, for example, may give rise to a claim by an employee against an employer. Ibid; see also Wiskotoni v. Michigan Nat'l Bank-West, 716 F.2d 378, 382 (6th Cir. 1983). An employee has a right to complain to proper authorities of violations of the law by an employer or a co-employee, and discharging an employee for engaging in such conduct has been held to violate Michigan's public policy. See Pratt v. Brown Mach. Co., a Div. of John Brown, Inc., 855 F.2d 1225, 1236 (6th Cir. 1988). However, the Michigan Supreme Court has held that when an employee's complaint to authorities falls within the scope of the state WPA, the public policy claim is preempted and an action must proceed on the WPA claim alone. See Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68, 79, 503 N.W.2d 645, 650 (1993).
In this case, the defendant argues that the plaintiff never made a complaint within the scope of the WPA because she could not have believed in good faith that the wrench in fact had been fashioned as a weapon or that McShane had violated the law in any way. The defendant also contends that Serrin-Brandel's contact with the police was merely a solicitation of advice, not an official complaint. However, viewing both Serrin-Brandel's deposition testimony and the police report generated from her request for an investigation indicates that Serrin-Brandel reported that her employee had acted strange and exhibited behavior as if he used illegal drugs; he had been acting in a menacing way; and she was in fear for the safety of her employees and herself. The WPA applies to complaints by an employee against a co-worker, see ibid., and covers reports of "a violation or a suspected violation of a law." Mich. Comp. Laws § 15.362. The Court believes that when the plaintiff's report to the sheriff is viewed in the light most favorable to her, as it must be viewed at this stage of the proceedings, Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir. 2000), the report states a suspected violation of the criminal law and falls within the scope of the WPA.
Because the WPA applies to this case, the public policy claim cannot proceed and it will be dismissed.
III.
The defendant next argues that it is entitled to a judgment in its favor as a matter of law on the WPA claim because the plaintiff cannot establish a prima facie case, and even if she could, she cannot overcome the defendant's legitimate, non-retaliatory reason for terminating her with evidence that creates a fact question on the issue of pretext.
A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted).
A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. NASA, 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Ctr. v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Stamtec, Inc. v. Anson Stamping Co., 346 F.3d 651, 654 (6th Cir. 2003). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).
The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J. C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters, Inc. v, Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991). "[T]he party opposing the summary judgment motion must `do more than simply show that there is some "metaphysical doubt as to the material facts.'"" Highland Capital, Inc. v. Franklin Nat'l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994), and Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "Thus, the mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Ibid. (quoting Anderson, 477 U.S. at 252; internal quote marks omitted).
The WPA provides:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by the public body, or a court action.
Mich. Comp. Laws § 15.362. The statute prevents employers from retaliating against employees who initiate reports to official agencies of suspected law violations ("Type 1" whistleblowers) and those who are contacted by authorities to participate in an official investigation ("Type 2" whistleblowers). See Henry v. City of Detroit, 234 Mich. App. 405, 410, 594 N.W.2d 107 (1999). When, as here, there is no direct evidence that an employer's adverse action against an employee was motivated by retaliation for engaging in the protected reporting activity, Michigan courts have used the burden-shifting framework generally used in employment discrimination cases to determine if a plaintiff has shown a retaliatory motive by circumstantial evidence. Anzaldua v. Band, 216 Mich. App. 561, 580, 550 N.W.2d 544, 552-53 (1996) (stating that "WPA [claims] are analyzed using the `shifting burdens' framework utilized in retaliatory discharge actions under the [Civil Rights Act]) (citing Hopkins v. City of Midland, 158 Mich. App. 361, 378, 404 N.W.2d 744, 751 (1987). To prevail under this framework, a plaintiff must present a prima facie case, at which point the defendant must come forward with a legitimate, non-discriminatory reason for its action. If the defendant is able to offer such a reason for the adverse employment action, the plaintiff must offer evidence that the defendant's justification is a pretext that masks its true retaliatory intent. See Roulston v, Tendercare (Michigan), Inc., 239 Mich. App. 270, 280-81, 608 N.W.2d 525, 530 (2000).
A prima facie case under the WPA consists of a showing that: (1) the plaintiff was engaged in protected activity as defined by the WPA; (2) the plaintiff was discharged; and (3) a causal connection exists between the protected activity and the discharge. Chandler v. Dowell Schlumberger Inc., 456 Mich. 395, 399; 572 N.W.2d 210 (1998). The defendant argues that the plaintiff cannot show either the first or third element. However, the Court has already noted that the plaintiff engaged in a protected activity under the WPA when she made a complaint about suspected criminal activity to a police agency concerning a coworker.
The defendant insists that evidence of causation is lacking because the plaintiff can point to no more than the fact that she was terminated shortly after she called the police, and mere coincidence of events is insufficient under Michigan law to prove causation. See West v. General Motors Corp., 469 Mich. 177, 185-86, 665 N.W.2d 468, 472 (2003) (per curiam) (observing that "a temporal relationship, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action"). The Court agrees that proximity of time between notice and adverse employment action usually, by itself, will not provide sufficient evidence of causation to survive summary judgment. Chandler v. Specialty Tires of Am. (Tenn.), Inc., 283 F.3d 818, 826 (6th Cir. 2002). Compare ibid. with Ford v. Gen. Motors Corp., 305 F.3d 545, 555 (6th Cir. 2002) (finding temporal proximity sufficient where Title VII retaliation started immediately after the protected conduct occurred) and Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582-83 (6th Cir. 2000) (finding prima facie case for retaliation made when alleged retaliatory activity started the same day the complaint was made). However, the combination of proximity in time with other evidence, such as that following the protected activity the plaintiff was treated differently from similarly-situated individuals, can suggest a causal connection sufficient to establish a prima facie case of retaliation. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). It must be remembered, moreover, that the hurdle erected by the prima facie case requirement is not a high one. It is intended primarily to weed out the most frivolous cases.
In this case, the plaintiff offered more than the evidence of discipline occurring shortly after a report to the police. She also came forward with proof that her employer had learned about the official complaint, and that others who were involved in the local employment dispute and who did not make a police complaint were not terminated. The Court believes that taken together and viewed in the light most favorable to the plaintiff, a fact finder could conclude that there was a causal link between the protected activity and the termination. The Court finds, therefore, that the plaintiff has established a prima facie case.
The defendant claims that it discharged the plaintiff because she lied to Miller and Regelean during the internal company investigation of the labor problems at the defendant's Saginaw store, she did not act in good faith during the investigation into her conduct towards McShane, and she herself retaliated against McShane for filing a complaint against her with the human resources department. The Court agrees that such conduct constitutes a legitimate, non-discriminatory reason for an employer to discharge an employee, see Cronquist v. City of Minneapolis, 237 F.3d 920, 929 (8th Cir. 2001); O'Connor v. DePaul Univ., 123 F.3d 665, 668-69 (7th Cir. 1997), and therefore turns to the question of whether the plaintiff has offered evidence sufficient to create a fact question on which reasonable minds might differ on whether the defendant's justification for firing the plaintiff was really a pretext for retaliation. See Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 599 (6th Cir. 2001).
A plaintiff can demonstrate pretext "by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct." Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (citation omitted). A leading Sixth Circuit case, Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078 (6th Cir. 1994), provides a thorough gloss on each of these methods of proving pretext:
The first type of showing is easily recognizable and consists of evidence that the proffered bases for the plaintiff's discharge never happened, i.e., that they are "factually false." Baxter Healthcare, 13 F.3d at 1123-24. The third showing is also easily recognizable and, ordinarily, consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff. These two types of rebuttals are direct attacks on the credibility of the employer's proffered motivation for firing plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed "a suspicion of mendacity." Hicks, 113 S.Ct. at 2749. As Hicks teaches, such a showing permits, but does not require, the factfinder to infer illegal discrimination from the plaintiffs prima facie case.
The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer's proffered explanation and further admits that such conduct could motivate dismissal. The plaintiff's attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it "more likely than not" that the employer's explanation is a pretext, or coverup.
If the bare bones elements of a plaintiff's prima facie case were sufficient to make this showing, however, the entire "burden shifting" analysis of McDonnell Douglas and its successors would be illusory. No case could ever be culled out after the prima facie stage and every case would have to be determined by a jury. We do not believe that this was the intent of Congress or the outcome envisioned by the Supreme Court in its long line of cases implementing employment discrimination legislation. Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence but must, instead, introduce additional evidence of . . . discrimination.Manzer, 29 F.3d at 1084.
In this case, Serrin-Brandel has not shown that Pier 1's reasons for firing her were false. She offers no substantial evidence that she did not lie to Miller and Regelean during the internal company investigation. She did testify at her deposition that she was not certain that McShane was speaking with a human resources representative when she refused to allow him access to the telephone in her office, but that evidence is not sufficient to create a fact question on the pretext issue. Rather, the Sixth Circuit subscribes to the rule that an employer's "honest belief in its proffered, nonretaliatory reason for discharge will not be found to be a pretext based on evidence that challenges the ultimate accuracy of that reason. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). "Under this rule, as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect." Ibid. (citing Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir. 1998)). Here, there is no dispute that Proulx, a person described by the plaintiff as "honest and trustworthy" and "somebody you could count on," PL's Dep at 161, told Miller that the plaintiff had lied to Regelean during his follow-up conversation on January 14, 2003, and she contradicted the plaintiff's version of the events of that day. She also confirmed that the plaintiff was "consumed" with the desire to retaliate against McShane for his complaints to the human resources department. Given those statements, Pier 1 was faced with a decision of whom to believe, and the Court cannot say that its choice was unreasonable under the circumstances. The plaintiff has not shown pretext based on the falsity of the defendant's proffered reason for termination.
Nor has the plaintiff shown pretext under Manzur's second method. The plaintiff has not offered any admissible evidence beyond her prima facie case that the true reason for her termination was her contact with the sheriff department. To the contrary, there is evidence in the record that Pier 1 did not discourage employees from calling the police when circumstances at the store warranted. The plaintiff testified that she contacted the police during the course of her employment with Pier 1 on at least three prior occasions: when a "drunk bum" was sitting on the store's merchandise; when the plaintiffs purse was stolen from the office; and when the plaintiff caught an individual shoplifting. Pl's Dep. at 54. She suffered no disciplinary action, no decrease in pay or benefits, or any other adverse consequences as a result of those reports to law enforcement. Pretext has not been established by the second method. Manzer's third method calls for a comparison of the treatment of similarly-situated employees outside the protected group, demonstrating that they "were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff." Manzer, 29 F.3d at 1084. The plaintiff testified that she believed that Pier 1's stated reasons for firing her were pretextual solely based on the fact that other employees, Proulx and McShane, were not fired for engaging in substantially similar behavior. Pl's Dep. at 162. However, as the Sixth Circuit first explained in Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th Cir. 1992), "[i]t is fundamental that to make a comparison of a discrimination plaintiff's treatment to that of non-minority employees, the plaintiff must show that the `comparables' are similarly situated in all respects." Mitchell, 964 F.2d at 583. That standard was softened somewhat in Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344 (6th Cir. 1998), where the court stated that "[t]he plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered `similarly-situated;' rather . . . the plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be similar in `all of the relevant aspects.'" Id. at 352 (citation omitted). In Perry v. McGinnis, 209 F.3d 597 (6th Cir. 2000), the Sixth Circuit explained that it "has asserted that in applying the standard courts should not demand exact correlation, but should instead seek relevant similarity." Id. at 601.
In the present action in order for the plaintiff to establish similarity, she must show that McShane and Proulx, the two employees not fired, "dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or their employer's treatment of them for it." Ercegovich, 154 F.3d at 352. However, the plaintiff has offered no evidence that either of these individuals lied during the investigations or engaged in a pattern of retaliatory behavior. Moreover, the plaintiff has not overcome the major distinction in status and responsibility that arose from her superior position as manager of the store, whereas Proulx was an assistant manager, and McShane was a sales associate. Serrin-Brandel, unlike McShane or even Proulx, was in a position to retaliate against McShane for his complaints, and her supervisors found that she had done so. McShane was not similarly situated, and there is no suggestion in the record that he engaged in such conduct.
The Court finds, therefore, that the plaintiff has failed to come forward with evidence of pretext that is sufficient to create a genuine issue of material fact on the element of illegal motive on the part of Pier 1. There is no direct evidence of retaliation, and the plaintiff has not made out a circumstantial case that withstands summary judgment.
IV.
Although the plaintiff has come forward with evidence establishing a prima facie case in her retaliation claim, she has not proved that the defendant's legitimate reason for firing her is a pretext for retaliation.
Accordingly, it is ORDERED that the defendant's amended motion for summary judgment [dkt #58] is GRANTED.
It is further ORDERED that the plaintiff's complaint is DISMISSED WITH PREJUDICE.