Opinion
No. 01-CV-74280-DT
March 12, 2003
ORDER GRANTING DEFENDANT'S "MOTION FOR SUMMARY JUDGMENT"
Pending before the court is Defendant's "Motion for Summary Judgment," filed on December 26, 2002. The matter has been fully briefed, and a hearing was conducted on March 5, 2003. For the reasons set forth below, the court will grant Defendant's motion.
I. INTRODUCTION
Plaintiffs Emily Stone-Graves and Dennis Graves initiated this action against Defendant Cooperative Elevator Company ("Cooperative") on November 8, 2001, asserting five causes of action: (1) Sexual Discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"); (2) Sexual Discrimination under the Michigan Elliot Larsen Civil Rights Act, Mich. Comp. Laws 37.2101 ("ELCRA"); (3) Retaliation under both Title VII and ELCRA; (4) Intentional Infliction of Emotional Distress; and (5) Loss of Consortium.
II. BACKGROUND
Plaintiff Emily Stone-Graves began her employment with Defendant Cooperative on October 10, 2000. (E.G. Dep. at 34, Pls.' Ex. A, Def.'s Ex. A.) Plaintiff worked at the Brown City location in a secretarial position under the supervision of the plant manager, Dennis Walker. ( Id. at 29, 34.)
Although Plaintiff's name is hyphenated, Plaintiffs' brief refers to her as "Emily Graves." The court will do the same.
On Friday, December 8, 2000, about two months after she started working at Cooperative, the employee Christmas luncheon was held. Plaintiff alleges that at the party, Bob Burgess, one of Cooperative's customers, made various inappropriate comments. At one point, Plaintiff claims that Michael Putnam made a comment about Plaintiff's "crack." Plaintiff became very upset, and left work early that day. ( See id. 53-55.) She called Dennis Walker around 4:30 that day and asked him if there was a procedure for complaining about these sort of incidents. ( Id. at 55.) He told her to write up her complaint and to give it to him on the following Monday. ( Id.) Plaintiff followed this procedure and submitted a one-paragraph letter related to the Christmas party. (Pls.' Ex. E.) The letter is silent as to any other complaints of harassment. Plaintiff claims that she did not address any other complaints because she had previously complained orally to Dennis Walker and felt that those complaints were in "capable hands." (E.G. Dep. at 56-57.)
On December 13, two days after Plaintiff submitted her letter to Dennis Walker, Brad Polega, the District Manager of Cooperative, visited the Brown City location to address the situation. ( Id. at 62-63.) After conducting the investigation, he terminated Mr. Putnam. ( Id.) Further, Mr. Burgess was told to restrict his communications at the Brown City plant to business affairs. ( Id. at 65-66.) Specifically, Mr. Burgess was instructed that he should restrict his conversations to four words: chemicals, seed, fertilizer or soil. ( Id. at 66.) Mr. Burgess also apologized to Plaintiff and, at the time, she felt it was sincere. ( Id. at 66-67; see also Pls.' Ex. F.)
On December 14, despite having been terminated the previous day, Mr. Putnam came to the plant around 8:30 in the morning. (E.G. Dep. at 69.) Plaintiff claims that Dennis Walker appeared "a little angry and upset" that Mr. Putnam was there, and that she thought he called Brad Polega to find out what to do about the situation. ( Id. at 70.) Plaintiff testified in her deposition that Mr. Putnam eventually left with Mr. Burgess "to check out filing suit against the co-op for unlawful discharge." ( Id.)
Three days after Mr. Putnam was fired, Plaintiff wrote another letter to Mr. Polega. ( See 12/16/00 letter, Pls.' Ex. F.) In the December 16, 2000 letter, Plaintiff further complained about the conduct of Bob Burgess. She first noted the recent termination of Mike Putnam, and then continued to express her concerns about Mr. Burgess. She stated that Mr. Polega had asked her if she wanted him to speak to Mr. Burgess, but that she had said no "because [Mr. Burgess] had apologized to me and said that he would not ever do this again." ( Id.) She stated that at the time she believed "that the apology was sincere, though in retrospect, I believe that I erred in not having you talk to him about his conduct." ( Id.) The rest of the letter details examples of the objectionable behavior. The letter, however, is noticeably silent about the misconduct of any other Cooperative employee. In fact, she states at one point, "It has become impossible for me to perform the job that I was hired for and have otherwise grown to enjoy, as well as becoming a team player with the other employees, under the exceptional management of Dennis Walker." ( Id.) She closed the letter with a request for "a Medical Leave until there is a resolve to this problem."
Plaintiff's request for medical leave was granted and she was given a medical leave from December 18, 2000 until January 2, 2001. In the midst of her sick leave, Plaintiff also had a pre-scheduled vacation from December 22 through December 26. Plaintiff claims she "made an effort" to return to work before her medical leave expired. (E.G. Dep. at 46.) She claims that on December 27, she drove unannounced to the plant sometime between 11:00 and 1:00. ( Id. at 84.) However, she saw Mr. Putnam's vehicle parked outside the plant, and therefore did not go into the plant. ( Id.) She never asked Dennis Walker why Mr. Putnam's car was at the plant. ( Id.)
Defendant implicitly asks the court to find that Plaintiff's medical leave was a ruse to attain a longer vacation. The court rejects this theory, because for purposes of summary judgment, all inferences are drawn in favor Plaintiff.
When Plaintiff returned to work on January 2, 2001, her computer was dismantled. ( Id. at 78.) When she asked Dennis Walker why it was dismantled, he told her that it had been worked on at the Pigeon office, where Cooperative's technical support was located. ( Id. at 79-80.) Plaintiff felt he was not telling her the truth because "that very same morning he wouldn't let me answer the telephones or do any facets of my job." ( Id. at 79.) Further, she claims that Dennis Walker told her that John Larder, another co-worker, had transferred to a different plant because he felt like he had to walk on eggshells around Plaintiff, and that no one wanted to work with Plaintiff for this reason. ( Id. at 79, 111.) Plaintiff worked only an hour and a half to two hours before leaving on January 2, 2001. ( Id. at 109.) During that time she spent approximately 45 minutes taking down Christmas decorations and cleaning. ( Id.)
On January 3, 2001, Plaintiff sent another letter to Brad Polega, explaining that she had seen Mr. Putnam's vehicle outside the plant on December 27, 2000. (1/03/01 Pls.' Ex. G.) She also detailed the events that had occurred on January 2, and complained that the company had shifted the fault from Mr. Putnam to her. Interestingly, she stated, "I have not had any problem with any other employees or farmers." ( Id.) She ended the letter by advising that Mr. Polega that her doctor had not released her from medical leave, and that she would be seeing him on the upcoming Saturday. She said, "I will advise you of his findings and recommendations at the beginning of next week." ( Id.)
There was no communication between Plaintiff and Defendant between January 3 and January 17. On January 17, 2001, Plaintiff sent a final letter to Mr. Polega, resigning from her position. (Pls.' Ex. H.)
At the hearing, Plaintiffs' counsel made a bald assertion that there was a telephone call between Emily Graves and Mr. Polega sometime after January 3. When pressed, however, Plaintiffs' counsel was unable to support this assertion with any facts. Indeed, there is nothing in the record indicating any communication between the parties after January 3 until Plaintiff sent her letter of resignation.
III. STANDARD
Federal Rule of Civil Procedure 56, which governs summary judgment motions, provides, in part, that:
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party has the burden of demonstrating that there is no genuine issue as to any material fact, and a summary judgment is to be entered if the evidence is such that a reasonable jury could find only for the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 250. In assessing a summary judgment motion, the court must examine any pleadings, depositions, answers to interrogatories, admissions, and affidavits in a light that is most favorable to the non-moving party. Fed.R.Civ.P. 56(c); see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
III. DISCUSSION
As an initial matter, the court notes that Plaintiff's February 17, 2003 affidavit, filed after Defendant brought its motion for summary judgment, flatly contradicts Plaintiff's February 6, 2002 answers to interrogatories. As Defendant points out in its reply, Plaintiff at several points changed her assertions with respect to Mike Putnam, by changing his name to Dennis Walker. ( See, eg., E.G. Aff. ¶¶ 5, 8, Pl.'s Ex. B; Def.'s Rep. 2-3.) "A party cannot create a genuine issue of material fact by filing an affidavit, after a motion for summary judgment has been made, that essentially contradicts his earlier deposition testimony." Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997) (citing Reid v. Sears, Roebuck Co., 790 F.2d 453, 460 (6th Cir. 1986)). Thus, to the extent Plaintiff's February 17, 2003 affidavit contradicts her earlier answers to interrogatories, the court will disregard the later filed affidavit.
A. Title VII and ELCRA 1. Hostile Work Environment
Defendant first argues that it is entitled to summary judgment on Plaintiff Emily Graves's hostile work environment claim, both under Title VII and ELCRA. In order to prevail under Title VII or ELCPA, a plaintiff must prove essentially the same elements. In order to establish a claim of hostile environment harassment under ELCRA, an employee must prove the following elements by a preponderance of the evidence:
(1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of sex; (3) the employee was subjected to unwelcome sexual conduct or communication; (4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee's employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior.Chambers v. Trettco, Inc., 614 N.W.2d 910, 915 (Mich. 2000) (citing Radtke v. Everett, 501 N.W.2d 155 (1993)). Similarly, under Title VII, an employee must show the following:
1) the employee is a member of a protected class; 2) the employee was subject to unwelcomed sexual harassment; 3) the harassment was based on the employee's sex; 4) the harassment created a hostile work environment; and 5) the employer failed to take reasonable care to prevent and correct any sexually harassing behavior.See Bowman v. Shawnee State University, 220 F.3d 456, 462-63 (6th Cir. 2000) (citing Williams v. General Motors Corp., 187 F.3d 553, 560-61 (6th Cir. 1999)). "Actionable harassment exists if 'the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'" Farmer v. Cleveland Public Power, 295 F.3d 593, 605 (6th Cir. 2002) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
ELCRA and Title VII differ, however, as to the standard for imposing vicarious liability on the employer for the acts of its employees. Under ELCRA, regardless of whether the offending employee was a supervisor or a co-worker, "an employer may avoid liability in a hostile environment case if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment." Chambers, 614 N.W.2d at 916 (internal citations, quotations, and alterations omitted) ("Such prompt and appropriate remedial action will permit an employer to avoid liability if the plaintiff accuses either a co-worker, or a supervisor of sexual harassment.").
Conversely, under Title VII, an employer's liability varies depending upon whether the offending employee was a supervisor. "As for the acts of co-workers, a plaintiff may hold an employer directly liable if she can show that the employer knew or should have known of the conduct, and that its response manifested indifference or unreasonableness." Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999) As for the acts of supervisors, in 1998 the Supreme Court issued two opinions which invalidated the Sixth Circuit's prior holdings that employers would only be held liable when "the supervisor's harassing actions were foreseeable or fell within his or her scope of employment, and the employer failed to respond adequately and effectively." Williams v. General Motors Corp., 187 F.3d 553, 560-61 (6th Cir. 1999). In Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court held:
[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.Faragher, 524 U.S. at 807; Burlington Industries, 524 U.S. at 765.
Plaintiff points to a variety of allegations which she contends constitute a hostile work environment. Some of these incidents involve her supervisor, Dennis Walker, but the majority of them involve her co-workers. The court assumes, without deciding, that Plaintiff could meet the first four elements of her prima facie case under both ELCRA and Title VII. Defendant is nonetheless entitled to summary judgment under the fifth element of the prima facie case, relating to vicarious liability.
As stated above, under ELCRA, without regard as to whether the offending employee is a supervisor or co-worker, "an employer may avoid liability in a hostile environment case if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment." Chambers, 614 N.W.2d at 916. In this case, there is no dispute that two days after Plaintiff complained about the conduct of Mr. Putnam at the Christmas luncheon, Mr. Putnam was terminated by Mr. Polega. Mr. Putnam's termination constitutes "prompt and appropriate remedial action" as a matter of law. As for the other allegations, which she lists in paragraph six of her affidavit (Pls.' Ex. B) and Interrogatory Answer # 7 (Pls.' Ex. C), there is insufficient evidence of notice to impose liability upon Cooperative. "An employer, of course, must have notice of alleged harassment before being held liable f or not implementing action." Chambers, 614 N.W.2d at 916 (citations omitted). Other than three isolated instances involving Dennis Walker, there are no allegations that management was involved with the objectionable conduct. Moreover, there is no evidence that plaintiff made complaints about the majority of these incidents. Plaintiff testified in her deposition that aside from the Christmas luncheon incident, she had previously complained to Dennis Walker about Michael Putnam "cursing, being physically aggressive sometime in October, [and] calling my home and trying to intimidate me on Thanksgiving Eve." (E.G. Dep. at 53.) This behavior, however, does not involve conduct which could be considered sexual in nature, and more importantly, she does not dispute the testimony of Dennis Walker that he orally reprimanded Mr. Putnam for this conduct. (D.W. Dep. at 32, Def.'s Ex. B.) Therefore, in light of the remedial action taken by Cooperative upon notice, there is insufficient evidence to create a triable issue on Defendant's liability under ELCRA. See Chambers, 614 N.W.2d at 916 ("The bottom line is that, in cases involving a hostile work environment claim, a plaintiff must show some fault on the part of the employer."), plaintiff has simply failed to meet her burden of establishing fault on behalf of Cooperative. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) ("The judge's inquiry, therefore, unaviodably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-'whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'").
See Interrogatory Answer # 7(5),(12) and the paragraph immediately following the number incidents. (Pls.' Ex. C.)
As for her Title VII claim, the inquiry becomes a bit more complicated in light of Faragher and Burlington Industries. With respect to the allegations against Mr. Putnam, the court finds that Defendant's remedial actions were adequate under Title VII as a matter of law. "Significantly, a court must judge the appropriateness of a response by the frequency and severity of the alleged harassment. Generally, a response is adequate if it is reasonably calculated to end the harassment." Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999). Certainly, termination of the offending individual is "reasonably calculated to end the harassment."
The court rejects Plaintiff's reliance on the allegation that Defendant was going to fire Mr. Putnam anyway. ( See E.G. At f. at ¶ 15.) First, Plaintiff cannot create an issue of fact in a post-dispositive motion affidavit which contradicts her earlier deoposition. Second, even if this were supported by the record, it is clear that the final catalyst of Mr. Putnam's termination was Plaintiff's December 11 letter.
With respect to the allegations involving her co-workers' behavior, Plaintiff has failed to produce sufficient evidence that Cooperative "knew or should have known of the conduct, and that its response manifested indifference or unreasonableness." Jackson, 191 F.3d at 663. Not only has Plaintiff failed to show either actual or constructive knowledge of Cooperative of this behavior, the written documentation surrounding her complaints suggests the contrary. The court notes that all of Plaintiff's written complaints to Cooperative (with the exception of the January 3 letter related to retaliation) involved the alleged misconduct of Mr. Putnam and Mr. Burgess. Contrary to her assertions in her interrogatory answers and affidavit, her written letters were silent as to any complaints about any other employees. Not only did she refer to Dennis Walker and his "exceptional management," ( see Pls.' Ex. F), but she affirmatively indicated that she had no complaints with any other employees or customers. ( See Pls.' Ex. G.) Thus, there is insufficient evidence for a jury to find that Defendant had notice of Plaintiff's complaints concerning her co-workers' behavior.
Similarly, Plaintiff testified at her deposition that prior to the situation with Mr. Putnam, the only problems she had with Dennis Walker was his "ineffective management." ( Id. at 112.)
Finally, with respect to her allegations against Dennis Walker, there is no genuine issue that Defendant has proven the affirmative defense under Faragher and Burlington Industries. As noted above,
an employer is vicariously liable "for an actionable hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee." Ellerth, 118 S.Ct. at 2270. Where, as here, no tangible employment action is taken, an employer may raise an affirmative defense to liability by proving, by a preponderance of the evidence, that (1) it exercised reasonable care to prevent and correct promptly any racially harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of corrective opportunities provided by the employer. See id.Jackson, 191 F.3d at 663. The court first finds that the affirmative defense is available to Defendant under Faragher and Burlington Industries, because no tangible employment action was taken against Plaintiff.
Plaintiff suggests that her constructive discharge was the "tangible employment action." The court rejects this for two reasons. First, a "claim of constructive discharge is not a tangible employment action f or purposes of Faragher and Burlington." Turner v. Dowbrands, Inc., No. 99-3984, 2000 WL 924599, *1 (6th Cir. Jun. 26, 2000) (citing Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294 (2d Cir. 1999)). Second, even if a constructive discharge could constitute a tangible employment action, the court finds as a matter of law that Plaintiff was not constructively discharged.
"A finding of constructive discharge 'requires an inquiry into both the objective feelings of an employee, and the intent of the employer. A constructive discharge exists if working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Ford v. General Motors Corp., 305 F.3d 545, 554 (6th Cir. 2002) (citing Yates v. Avco Corp., 819 F.2d 630, 636-37 (6th Cir. 1987)) "A plaintiff must show that the employer intended and could reasonably have foreseen the impact of its conduct on the employee." Id. "When an employee alleges that he was forced to resign, the employee's perception must be judged objectively without consideration of his undue sensitivities." Wilson v. Firestone Tire Rubber Co., 932 F.2d 510, 515 (6th Cir. 1991).
In this case, the court looks at the post-remedy behavior of Defendant in determining whether a constructive discharge was effectuated. See Yates, 819 F.2d at 637 ("Because Street resigned from Avco on January 9, 1984, after the return from the Christmas holidays and after Sanders's demotion, it is the continuing, post-remedy work situation which is relevant to our inquiry."). The undisputed facts reveal that Plaintiff was at work for no more than two hours on January 2, 2001. For almost half of that time, she was putting away Christmas decorations and cleaning. Plaintiff complains that for the other 45 to 75 minutes, Dennis Walker would not let her answer her phone or perform the other facets of her job, and that her computer was dismantled. Plaintiff further complains that Dennis Walker told her, "nobody wants to work with you. You know, just quit because no one wants to work with you. They feel like they're walking on eggshells." (E.G. Dep. at 79.) Finally, Plaintiff alleges that Mr. Polega did not respond to her January 3 letter. Thus, on January 17, she resigned.
Viewing the facts in a light most favorable to Plaintiff, the court finds this conduct insufficient as a matter of law to constitute a constructive discharge. First, she was only prevented from performing her job for, at most, two hours. Second, the comments of Dennis Walker which attributed certain feelings to her co-workers, though perhaps unfair, evince nothing but a supervisor's explanation of why another employee transferred. That the reason the employee transferred may have been spiteful is not the fault of the supervisor. Third, Plaintiff waited only two weeks after writing her letter to Mr. Polega before quitting. Moreover, Plaintiff indicated to Mr. Polega that she would be contacting him. Thus, his silence, even if purposeful, did not make it reasonably foreseeable that Plaintiff would feel compelled to quit.
Even construing all the events of January 2-January 17 cumulatively, there is no genuine issue that Plaintiff did not suffer a constructive discharge. Plaintiff places much reliance on Moore v. Kuka Welding Sys., 171 F.3d 1073 (6th Cir. 1999). In Kuka, the Sixth Circuit found that the plaintiff's claim of constructive discharge presented a "close question," but nonetheless found sufficient evidence for a jury question. Id. at 1080. In Kuka, however, the plaintiff had suffered shunning and isolation from his supervisor and co-workers from January 1995 through April 1996. Id. at 1078. In this case, however, Plaintiff suffered what she terms "isolation" for no more than two hours. Contra id. at 1080-81 ("Day after day, week after week of isolation on the job and lack of communication would lead him to believe that he was no longer wanted and would continue to receive the cold shoulder as long as he worked there."). Two hours of isolation does not create a situation where "the employee's working conditions were intolerable, by objective standards." Agnew v. BASF Corp., 286 F.3d 307, 309-10 (6th Cir. 2002) (noting examples of constructive discharge as rape by a supervisor and demotion). Thus, Plaintiff has not shown that there is a triable issue with respect to her claim of cons tructive discharge.
Because Plaintiff did not suffer a "tangible employment action," Defendant is entitled to the affirmative defense under Faragher and Burlington Industries. In order to prevail, Defendant must show: "(1) it exercised reasonable care to prevent and correct promptly any [sexually] harassing behavior, and (2) the plaintiff employee unreasonably tailed to take advantage of corrective opportunities provided by the employer." Jackson, 191 F.3d at 663. There is no genuine issue that both of these factors are met in this case.
As to the first factor, Defendant promulgated an antiharassement policy mandating that reports of sexual harassment should be communicated to the employee's "immediate supervisor, the President or the Chairman." ( See Pls.' Ex. I.) Although Plaintiff denies ever receiving a copy of this policy, there is no dispute that with respect to the Putnam allegations, she made complaints both to her supervisor and to the District Manager. This fact, in conjunction with the existence of the antiharassment policy is sufficient as a matter of law to meet the first prong of the Faragher defense. With respect to the second prong, there is no dispute that Plaintiff failed to utilize this procedure in making any complaints about Dennis Walker. There is no dispute that she was capable, and in effect did, utilize this procedure in making complaints about Mr. Putnam. Thus, the court concludes that there is no genuine issue that both prongs of the Faragher test have been satisfied.
Indeed, Plaintiff knew, not only how to complain, but also that complaints led to results.
As stated in Faragher,
While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.Faragher, 524 U.S. at 807-08; Burlington Industries, 524 U.S. at 765.
For the reasons stated above, Defendant is entitled to summary judgment on both the ELCRA and Title VII claims.
2. Retaliation
Defendant is also entitled to summary judgment on Plaintiff's retaliation claims. The Sixth Circuit has stated that claims for retaliation under Title VII and ELCRA require similar evidentiary showings. See Moore v. Kuka Welding Systems Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999):
Under Title VII, it is unlawful to retaliate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).
Under ELCRA, it is unlawful to
[r]etaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act.
Mich. Comp. Laws § 37.2701(a).
To establish retaliation under Title VII, a plaintiff must show (1) that he engaged in a protected activity; (2) that he suffered an adverse employment action and (3) that the adverse action occurred because of the protected activity. Canitia v. Yellow Freight System, Inc., 903 F.2d 1064, 1066 (6th Cir. 1990). The Elliott-Larsen Act, M.C.L. § 37.2701(a), requires the plaintiff to demonstrate that (1) he opposed violations of the Act or participated in an activity protected by the Act and (2) his opposition or participation was a "significant factor" in the adverse employment action.
In this case, Plaintiff has not met her burden in establishing that she suffered an adverse employment action.
First, as discussed above, Plaintiff has not met her burden of proving a constructive discharge. Thus, she cannot rely on her resignation to establish a materially adverse employment action. Nor can she rely on the events of January 2. Experiencing difficulties with her co-workers and/or her supervisor for a mere two hours is insufficient to constitute an adverse employment action. See, eg., Valentine-Johnson v. Roche, — F. Supp.2d —, No. 01-73345, 2003 WL 102608 (E.D. Mich. Jan. 9, 2003) (finding no adverse employment change as a matter of law where plaintiff was shunned by her co-workers, her work became more difficult, and plaintiff was told that she would not get help until she dropped her EEO complaint). As stated in Ford v. General Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002),
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. Hollins, 188 F.3d at 662. This Court has consistently held that de minimis employment actions are not materially adverse and, thus, not actionable.See also Pena v. Ingham County Road Com'n, — N.W.2d —, No. 231482, 2003 WL 292276 (Mich.Ct.App. Feb 11, 2003) (citing Kocsis v. Multi-Care Mgt Inc, 97 F.3d 876, 886 (6th Cir. 1996)) ("[A]n adverse employment action [i]s an employment decision that is materially adverse in that it is more than [a] mere inconvenience or an alteration of job responsibilities and . . . there must be some objective basis for demonstrating that the change is adverse because a plaintiff's subjective impressions as to the desirability of one position over another [are] not controlling.") (internal quotations omitted). Plaintiff's two-hour disruption in her job duties is simply insufficient to constitute more than a de minimis employment action.
Accordingly, Defendant is entitled to summary judgment on Plaintiff's retaliation claims.
B. State Law Torts: Intentional Infliction of Emotional Distress and Loss of Consortium
Under Michigan law, the elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Roberts v. Auto-Owners Ins. Co., 374 N.W.2d 905, 908 (1985). To be considered "extreme and outrageous, " the conduct in question must have been "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 908-09 (quoting Restatement (Second) of Torts, § 46 (1965)).
Although the Michigan Supreme Court expressly declined to definitively adopt the tort of intentional infliction of emotional distress in Roberts, subsequent appellate courts have recognized the tort. See, e.g., Haverbush v. Powelson 551 N.W.2d 206 (Mich.Ct.App. 1996); Lisecki v. Taco Bell Restaurants, Inc., 389 N.W.2d 173 (Mich.Ct.App. 1986). Moreover, the Sixth Circuit has held that the tort does in fact exist in Michigan. See Pratt v. Brown Mach. Co., 855 F.2d 1225, 1238-39 (6th Cir. 1988).
In this case, Plaintiffs have simply failed to meet the relatively high threshold necessary under Michigan law to sustain an action for this tort. The conduct of which Plaintiffs complain does not rise to the level of "extreme or outrageous" behavior. See Hartleip v. McNeilab, Inc., 83 F.3d 767, 777 (6th Cir. 1996) (citing Trudeau v. Fisher Body Division, 423 N.W.2d 592 (1988) and Joumas v. Maryland Casualty Co., 698 F. Supp. 675, 679 (E.D. Mich. 1988)). The record supports only the proposition that Plaintiff suffered, at most, "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Linebaugh v. Sheraton Michigan Corp., 497 N.W.2d 585, 588 (Mich.Ct.App. 1993). Accordingly, the court will grant Defendant's motion with respect to this claim.
Finally, the consortium claim is wholly derivative of the principal claims of the wife and principal plaintiff, and cannot succeed if the principal claims fail. Oldani v. Leiberman, 375 N.W.2d 778, 779-80 (Mich.Ct.App. 1985). Because the court will grant summary judgment against the principal plaintiff in this case, Defendant is also entitled to summary judgment on the loss of consortium claim.
IV. CONCLUSION
For the reasons stated above, IT IS ORDERED that Defendant's "Motion for Summary Judgment" [Dkt. # 11] is GRANTED.