GERALD E. ROSEN, Chief Judge.
Plaintiff Tegra Hall commenced this suit in a Michigan court on January 14, 2009, filing what Defendants have aptly termed a "kitchen sink" complaint against her former employer, Defendant Sky Chefs, Inc., and ten of her former co-workers and supervisors at Sky Chefs. In this 143 paragraph, 17 count complaint, Plaintiff asserts claims of race, gender, and religious discrimination and harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Michigan's Elliott-Larsen Civil Rights Act ("ELCRA"), Mich. Comp. Laws § 37.2101 et seq., as well as claims of retaliatory discharge under Title VII, the ELCRA, the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and Michigan's Workers' Disability Compensation Act ("WDCA"), Mich. Comp. Laws § 418.101 et seq., and a common-law tort claim of intentional infliction of emotional distress. Defendant Sky Chefs removed the case to this Court on February 20, 2009, citing Plaintiff's assertion of claims arising under federal law. See 28 U.S.C. §§ 1441(a), 1331.
By motion filed on March 1, 2010, Defendant Sky Chef and individual Defendants Eric Coleman, Justin Lathem, Jose Venegas, and Karen Damerow seek summary judgment in their favor on each of the claims asserted in Plaintiff's complaint.
Having reviewed the parties' briefs in support of and opposition to Defendants' motion, as well as their accompanying exhibits and the record as a whole, the Court finds that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendants' motion "on the
Defendant Sky Chefs, Inc. provides catering services to various airlines. Plaintiff Tegra Hall is an African-American female who was hired by Sky Chefs in May of 2005. Plaintiff was employed as a utility worker in Sky Chef's sanitation department at Detroit Metropolitan Airport, where she performed such tasks as loading, unloading, washing and sanitizing food service trolleys. During her employment with Sky Chefs, Plaintiff was a member of Local 24 of the H.E.R.E. union.
Between her hiring by Sky Chefs in May of 2005 and her discharge on November 30, 2007, Plaintiff was involved in a number of incidents with co-workers and supervisors, and she lodged a number of complaints about occurrences in the workplace. Sky Chef's human resources manager, Defendant Karen Damerow, testified at her deposition (with some degree of understatement) that Plaintiff "made multiple complaints on multiple issues" during her tenure at Sky Chefs, (see Defendants' Motion, Damerow Dep. at 48), and Defendants state without contradiction in the brief in support of their motion that "over 2,600 pages of documentation [were] compiled" in investigating and addressing these complaints, (see Defendants' Motion, Br. in Support at 3).
For present purposes, it is not necessary to exhaustively recount these incidents, and a brief summary will suffice. In September of 2006, Plaintiff claimed that co-worker (and Defendant) Jose Venegas deliberately rammed the trolleys into trash cans, causing the cans to strike Plaintiff on her legs. (See Plaintiff's Dep. at 195, 209-12.) Plaintiff testified that a supervisor and a lead worker,
About a month later, in October of 2006, Plaintiff claimed that she was run over by a flatbed cart pushed by a co-worker identified only as "Nimur." (See Plaintiff's Dep. at 62-63, 72-73.) She required medical attention, and once again reported the incident to the police, (see Defendant's Motion, Ex. F), as well as to an employee hotline, (see Plaintiff's Dep. at 78-79.) Plaintiff also filed a claim for worker's compensation benefits arising from this incident.
Throughout this period in 2005-06, and perhaps into 2007, Plaintiff has testified that she was subjected to sexual harassment from her co-workers and supervisors. She testified, for example, that one of her supervisors, Defendant Tracy Steele, "would try to brush his body parts up against mine" and would "tell me what he would like to do to me sexually." (Plaintiff's Dep. at 108.) Another supervisor,
Plaintiff has also testified as to race- and religion-based harassment. She testified, for example, that a number of co-workers frequently called her a "black b*tch," that Defendants Lathem and Venegas used the "N" word in reference to her, and that several co-workers commented on the color of her skin. (See id. at 96, 166, 174-77.) Plaintiff further testified that her co-workers called her a "fake-*ss Christian" and made other derogatory comments about her when they saw her reading her Bible on her lunch break. (See id. at 180-82.)
Finally, Plaintiff has testified about mistreatment she suffered in retaliation against her protected activities. She testified that she made complaints of discrimination and harassment to her supervisors and to human resources, but that nothing was done or that, in some instances, the mistreatment intensified. Plaintiff further testified that after she filed a charge of discrimination with the EEOC on October 31, 2007, she was told by supervisor (and Defendant) Tony Hines that her complaint "wasn't going to go anywhere and that [she] was going to be out of there soon." (Id. at 89.) In addition, after Plaintiff took FMLA leave from May to September of 2007 for an injury she sustained while pushing a trolley, she testified that the harassment and mistreatment worsened because her co-workers and supervisors thought she was "gone for good" and they "were not pleased" when she returned from this medical leave. (Id. at 219.) Similarly, she attributed some of the writeups, discipline, and unfavorable treatment she received to the fact that she had filed claims for worker's compensation benefits. (See id. at 89, 93.)
Over the course of her employment with Sky Chefs, Plaintiff was issued a number of verbal and written advisories and disciplinary notices regarding her conduct in the workplace, culminating in her discharge on November 30, 2007. Again, it is not necessary to comprehensively recount Plaintiff's disciplinary record, and a brief summary will suffice.
First, Plaintiff was issued a verbal advisory for personal conduct arising from the September 2006 incident in which a coworker reportedly rammed her with a trolley. The documentation for this advisory states that Plaintiff "became loud and argumentative" when approached by management about the incident, and that her manner "was insolent at best, and bordered on insubordination," and Plaintiff was cautioned that "[b]ehavior of this type... cannot be tolerated." (Defendants' Motion, Ex. H.) In this documentation, it was further observed that Plaintiff had made "approximately 18 complaints, charges and grievances regarding roughly 22 different co-workers and management" in the past several months, and that while "[a]ll complaints have been investigated and will continue to be monitored," many of the allegations Plaintiff had made in these complaints "could not be validated." (Id.)
On December 7, 2006, Plaintiff was issued a first written advisory for failure to comply with Sky Chefs' attendance policy, based on several instances of tardiness and an early departure. (See Defendants' Motion, Ex. I.) In this advisory, Plaintiff was cautioned that "[a]ny future infractions
On November 11, 2007, Plaintiff was involved in an incident that resulted in a final disciplinary notice and her termination. According to Plaintiff, a co-worker, Defendant Dexter Thomas, was using profanity with a lead worker, Ahmed Babuka, and also directed some of this language toward Plaintiff, purportedly calling Plaintiff a "black b*tch" and threatening to "f*ck [her] up." (Plaintiff's Dep. at 227.) When Plaintiff complained to Babuka, he told Plaintiff not to worry about it, and sent Thomas to work at a different location. (See id. at 227-28.) Plaintiff then complained to a supervisor, Dorothy Gonzales, who asked Babuka about this incident and was told that it was "no big deal." (Id. at 228.) Director of Operations Tonino Palladinelli subsequently looked into this incident, and was told by Babuka (i) that he had not heard Thomas use profanity, and (ii) that Plaintiff approached him after the incident and said, "What kind of man are you?" and "How are you suppose[d] to be the lead?" (Defendants' Motion, Ex. Q.)
Following this incident, Plaintiff was issued a final written advisory on November 30, 2007 for personal conduct and ability to work with others, and she was informed that her employment had been terminated. (See Defendants' Motion, Ex. R.) This advisory stated in part:
(Id.)
Plaintiff filed a grievance through her union challenging her discharge, but the grievance was denied. She then commenced this suit in January of 2009, asserting a laundry list of claims of discrimination, harassment, and retaliation against her former employer, Sky Chefs, and ten of her former supervisors and co-workers.
Through the present motion, Defendant Sky Chefs and four of the individual Defendants — Eric Coleman, Justin Lathem, Jose Venegas, and Karen Damerow — seek summary judgment in their favor on each of Plaintiff's seventeen claims. Under the pertinent Federal Rule, summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2).
In six of the seventeen counts of her complaint, Plaintiff has asserted claims of race, gender, and religious discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under Michigan's Elliott-Larsen Civil Rights Act ("ELCRA"), Mich. Comp. Laws § 37.2101 et seq. Through the present motion, Defendants seek summary judgment in their favor on each of these claims, arguing that Plaintiff has failed to establish a prima facie case of any of these forms of discrimination. Moreover, even assuming Plaintiff had established a prima facie case, Defendants contend that Plaintiff's employer, Sky Chefs, has articulated a legitimate, non-discriminatory reason for Plaintiff's discharge, and that Plaintiff has failed to produce any evidence suggesting that this stated reason was a pretext for unlawful discrimination. The Court agrees.
In this case, Plaintiff does not claim to have produced any direct evidence of discrimination in the decision to terminate her employment,
For present purposes, at least, Defendants concede that Plaintiff has established the first three elements of her prima facie case,
Plaintiff's effort to establish this prong of a prima facie case rests almost entirely on conclusory assertions that are unsupported by citation to the record.
Indeed, in one respect, it seems virtually certain that Plaintiff and Thomas were
Plaintiff's efforts to establish this element of a prima facie case of race or religious discrimination warrant little discussion. With regard to Plaintiff's claim of race discrimination, the sum total of her argument — again, without citation to the record — is that Sky Chefs' human resources manager, Defendant Damerow, "admitted that she was aware of Defendant Lathem's (who is Caucasian) use of the term `nigga' and that he admitted he sang a lewd song about female anatomy, but he was not disciplined for any violation of policy." (Plaintiff's Response Br. at 12.) First, Plaintiff's assertion about Damerow's awareness of co-worker Lathem's use of the "N" word is utterly unsupported by citation to the record, and the Court declines Plaintiff's invitation to search for evidentiary support for this assertion. Next, with regard to the lewd song, Defendants note the evidence in the record that
Turning next to Plaintiff's claim of discrimination on account of her religion, her effort to establish a prima facie case rests solely upon the terse — and, once again, unsupported — assertions that she was "treated differently than similarly situated non-religious or non-Christian employees" (who Plaintiff does not identify), and that unspecified "Muslim employees were allowed [unspecified] special treatment to observe their religion." (Plaintiff's Response Br. at 12.) These contentions, in addition to being utterly bereft of factual support, are so woefully inadequate to raise an inference of discrimination in Plaintiff's discharge as to constitute an abandonment of Plaintiff's claim of discrimination on account of her religion.
Finally, even assuming that Plaintiff had established a prima facie case of discriminatory discharge on account of her gender, race, or religion, Defendant Sky Chefs has articulated a legitimate, non-discriminatory reason for terminating Plaintiff's employment — namely, that despite several prior final written advisories, she violated the Sky Chefs code of conduct in the November 12, 2007 incident by making unsubstantiated accusations against a co-worker and yelling at and being disrespectful to a lead worker. (See Defendants' Motion, Ex. R.) Thus, under the third step of the McDonnell Douglas burden-shifting approach, Plaintiff must produce evidence that the reason identified by Defendants is a pretext for unlawful discrimination. See Russell, 537 F.3d at 604; Town, 568 N.W.2d at 68. Plaintiff has manifestly failed to satisfy this burden, as she
In any event, while Plaintiff might dispute the determination by Sky Chefs' management, following an investigation, (see Defendants' Motion, Ex. Q), that she engaged in insubordinate conduct toward lead worker Ahmed Babuka and that, contrary to her accusation, co-worker Dexter Thomas had not sworn at this lead worker, Sky Chefs was entitled to act upon the results of this investigation and discharge Plaintiff so long as it took steps to be "reasonably informed" before making this decision, and so long as this decision rested upon an "honest belief" that Plaintiff had engaged in the misconduct cited in her final disciplinary notice. See Harrison, 612 F.Supp.2d at 864-65 (internal quotation marks and citations omitted). Plaintiff has not suggested any basis for challenging the decisionmaking or investigative process leading up to her termination, nor has she endeavored to explain why Sky Chefs' management should not have credited the account given by lead worker Babuka that he did not hear co-worker Thomas use profanity and that Plaintiff had questioned his authority and leadership. (See Defendants' Motion, Ex. Q.) In addition, and as discussed earlier, even if Plaintiff and co-worker Thomas had engaged
Next, in six more counts of her complaint, Plaintiff has asserted claims under Title VII and Michigan's ELCRA of hostile work environment harassment based on her sex, race, and religion. In the present motion, Defendants contend that Plaintiff has failed to establish a prima facie case of any of these forms of harassment. The Court agrees.
As a threshold matter, before turning to the merits of Plaintiff's claims of harassment, the Court observes that most or all of her claims brought under Title VII appear to be time-barred. "[T]he courts have recognized that the filing of a timely charge with the EEOC is a prerequisite to a Title VII action." Marquis v. Tecumseh Products Co., 206 F.R.D. 132, 169 (E.D.Mich.2002). Moreover, "[t]o be deemed timely under Title VII, an EEOC charge must be filed `within three hundred days after the alleged unlawful employment practice occurred.'" Marquis, 206 F.R.D. at 169 (quoting 42 U.S.C. § 2000e-5(e)(1)); see also Boykin v. Michigan Department of Corrections, No. 99-1345, 2000 WL 491512, at *1 (6th Cir. Apr. 18, 2000). In this case, Plaintiff evidently filed her first EEOC charge on October 31, 2007, (see Plaintiff's Response, Ex. F),
To be sure, a claim may encompass incidents outside of this 300-day limit, but only upon a "showing that the current violation, falling within the limitations period, is indicative of a pattern of similar discriminatory acts continuing from the period prior to the limitations period." Marquis, 206 F.R.D. at 169 (internal quotation marks and citations omitted); see also Boykin, 2000 WL 491512, at *2. This "continuing violation doctrine," however, is "intended to reach the situation where, by virtue of the nature of the alleged discrimination, the worker did not — and could not — become aware of the need to take legal action to vindicate her rights until a period of time had elapsed." Marquis, 206 F.R.D. at 169 (internal quotation marks and citations omitted). In this case, Plaintiff has testified that she lodged both verbal and written complaints about the harassment she was experiencing. (See, e.g., Plaintiff's Dep. at 96-100, 102-03, 108-10,
Nonetheless, to the extent that they are not, and to the extent that Plaintiff is pursuing her claims of harassment under Michigan's ELCRA, Plaintiff must first establish the elements of a prima facie case. To establish a prima facie case of hostile work environment harassment under Title VII, Plaintiff must show (i) that she is a member of a protected class, (ii) that she was subjected to unwelcome harassment of a sexual, racial, or religious nature, (iii) that this harassment was based on her protected status, whether her gender, race, or religion, (iv) that the harassment had the effect of unreasonably interfering with her work performance by creating a hostile work environment, and (v) that there is a basis for charging Sky Chefs with liability for this harassment. See Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 600 (6th Cir. 2007); Harrison, 612 F.Supp.2d at 855. The standards under Michigan's Elliott-Larsen Act are similar, except that an employer may be held liable for the creation of a hostile work environment only if it "failed to take prompt and adequate remedial action after having been reasonably put on notice of the harassment." Chambers v. Trettco, Inc., 463 Mich. 297, 614 N.W.2d 910, 915-16 (2000).
In their present motion, Defendants challenge only the last two elements of this prima facie case. This Court recently described the showing necessary to establish the fourth element of this standard:
Harrison, 612 F.Supp.2d at 855-56.
Plaintiff and her counsel have made very little effort to address this element of a prima facie case or to identify supporting evidence in the record. Turning first to her claim of sexual harassment, Plaintiff states (without citation to the record or supporting details) that she "was subjected to near-constant harassment from multiple supervisors and co-workers, who would
Assuming, for present purposes, that these vague and unsupported assertions in Plaintiff's response brief could satisfy the objective prong of the standard for establishing a hostile work environment, Plaintiff has not even attempted to identify any evidence in the record that she subjectively regarded the conduct of her co-workers and supervisors as abusive. To the contrary, she testified at her deposition that she regarded the name-calling in the workplace as "lesser offenses to me," a "lighter thing," and "like high school junk to me," and she contrasted this with workplace incidents that rendered her "not ... able to do my production." (Plaintiff's Dep. at 176-77.) More generally, Plaintiff has not pointed to any evidence in the record, whether in her deposition testimony or elsewhere, that she perceived the harassing conduct of her co-workers and supervisors as interfering with her work performance, altering the conditions of her employment, or giving rise to a hostile or abusive work environment. Under this record, while Plaintiff might well have viewed this conduct as unwelcome, it cannot be said that she "subjectively regarded it as so severe or pervasive as to create an abusive or hostile work environment." Harrison, 612 F.Supp.2d at 856.
This same analysis applies as well to (and defeats) Plaintiff's claims of harassment based on her race and religion, where Plaintiff again has made essentially no effort to establish the subjective prong of the "hostile work environment" standard with respect to these claims. Regarding her claim of race-based harassment, Plaintiff offers only the conclusory assertion that "the harassment was severe and pervasive as it occurred on a daily basis from many different employees," and she points broadly — and, once again, without citation to the record — to her testimony that "instead of calling her by her name, most of the time she was called `black bitch.'" (Plaintiff's Response Br. at 15.) As for her claim of religion-based harassment, Plaintiff does not offer even so much as an unsupported assertion that the remarks and conduct about which she complains were sufficiently severe and pervasive to create a hostile work environment. (See id. at 16.) Yet, beyond her counsel's generalized characterizations of the conduct engaged in by Plaintiff's co-workers and supervisors, and counsel's
Before turning to the remaining claims asserted in Plaintiff's complaint, one point bears emphasis. In determining whether Defendants are entitled to summary judgment in their favor on Plaintiff's claims of hostile work environment harassment, the Court must view the evidence in a light most favorable to Plaintiff, and must, in particular, credit Plaintiff's deposition testimony regarding the many inappropriate comments directed at her and the inappropriate conduct engaged in by her co-workers and supervisors. In resolving Defendants' motion, the Court has not been called upon to decide whether the comments and conduct identified in this deposition testimony would satisfy the objective prong of the "hostile work environment" standard — that is, whether this behavior was "severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive." Harrison, 612 F.Supp.2d at 856 (internal quotation marks and citation omitted). Rather, the Court has considered Plaintiff's showing only as to the subjective prong of this standard — that is, whether Plaintiff subjectively regarded her work environment as hostile or abusive. Harrison, 612 F.Supp.2d at 856.
Once Defendants advanced this challenge, it was Plaintiff's obligation under Rule 56 to marshal the evidence in the record which, if credited and viewed in her favor, would establish this element of a prima facie case of hostile work environment harassment. As is repeatedly the case throughout Plaintiff's brief in response to Defendants' motion, Plaintiff and her counsel have sought to satisfy this obligation through terse, conclusory, and question-begging assertions that the harassment in her former workplace was "severe and pervasive," (see Plaintiff's Response Br. at 14, 15), and through broad and generalized characterizations of the conduct engaged in by her co-workers, with these latter passages in her brief utterly lacking in specific details or citation to the record. This approach is manifestly inadequate — particularly, as explained earlier, under Rule 56 as recently amended, but also under the Rule prior to these amendments — to meet the non-moving party's burden to "set out specific facts showing a genuine issue for trial." Fed. R.Civ.P. 56(e)(2). Whatever might be said about whether the record in this case
Next, Plaintiff has asserted four claims of retaliatory discharge, alleging that she was terminated in response to her exercise of protected activity under Title VII, the ELCRA, the FMLA, and Michigan's WDCA. In their present motion, Defendants argue that each of these claims fails for lack of evidence of a causal connection between Plaintiff's protected activities and her discharge, and because Plaintiff cannot show that Sky Chefs' stated, non-retaliatory reason for this discharge was pretextual. The Court agrees.
In the absence of direct evidence of retaliatory motive,
With respect to her claims of retaliation under Title VII and the ELCRA, Plaintiff's effort to establish the requisite causal connection rests entirely upon the temporal proximity between her protected activity and her discharge. (See Plaintiff's Response Br. at 17-18.) Yet, while the Sixth Circuit has found that temporal proximity alone may be "significant enough to constitute evidence of a causal connection" where "an adverse employment action occurs
Plaintiff fares no better in her effort to establish the "causal connection" prong of her prima facie case of retaliation under the FMLA and the WDCA. First, while she alleges that her co-workers' mistreatment of her escalated after she made claims for worker's compensation benefits and after she returned from her FMLA leave, the Court noted above that Plaintiff has made no effort to show that any such mistreatment rose to the level of an adverse employment action. Thus, it is only evidence of a causal connection between protected activity and Plaintiff's
Even assuming Plaintiff could establish a prima facie case of retaliation, Defendant Sky Chefs has identified a legitimate, non-retaliatory reason for Plaintiff's discharge, and Plaintiff has not produced evidence that this reason is pretextual. As discussed earlier with respect to Plaintiff's claims of discrimination, Sky Chefs has produced evidence that the decision to terminate Plaintiff's employment was based upon the outcome of an investigation disclosing that Plaintiff had engaged in insubordinate conduct toward lead worker Ahmed Babuka and that, contrary to her accusation, co-worker Dexter Thomas had not sworn at this lead worker. In arguing that this reason is pretextual, Plaintiff mischaracterizes the infraction leading to her discharge as "leav[ing] her workstation," (Plaintiff's Response Br. at 18), and she asserts that Thomas also left his workstation but was not disciplined. Yet, it is evident from the final disciplinary notice issued to Plaintiff that she was not terminated simply for leaving her workstation. (See Defendants' Motion, Ex. R.) In addition, the Court observed earlier that the record is silent — apart, that is, from Plaintiff's testimony based upon no apparent personal knowledge — as to whether Thomas
Finally, in the seventeenth and final count of her complaint, Plaintiff asserts a state-law claim of intentional infliction of emotional distress. The Michigan Supreme Court "has not officially recognized" this tort, but "[a]ssuming that the cause is valid," a plaintiff must show "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress." Vanvorous v. Burmeister, 262 Mich.App. 467, 687 N.W.2d 132, 141-42 (2004) (internal quotation marks and citations omitted). "Liability for the intentional infliction of emotional distress has been found only where the conduct complained of has 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 society." Garretson v. City of Madison Heights, 407 F.3d 789, 799 (6th Cir.2005) (internal quotation marks and citation omitted). "Liability will not be found for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities; rather, the case must be one in which the facts would arouse the resentment of an average member of the community against the actor, leading him to exclaim, `Outrageous!'" Garretson, 407 F.3d at 799 (internal quotation marks and citations omitted).
Characteristically, in her response to Defendants' motion, Plaintiff makes little effort to explain how the record in this case could be viewed as establishing extreme and outrageous conduct by any particular Defendant that would support a claim of intentional infliction of emotional distress. The only Defendant identified by name in Plaintiff's terse, four-sentence discussion of this claim is co-worker Jose Venegas, and she makes reference to a September 2006 incident in which Venegas purportedly rammed her with trolleys. Yet, there is no evidence that Plaintiff sought or required medical attention for this purported "assault[]," (Plaintiff's Response Br. at 20), nor that she suffered severe emotional distress as a result of this incident. Moreover, it appears that this was a one-time incident. As for Plaintiff's vague assertions that unspecified Defendants belittled, degraded, and threatened her, (see id.), she makes no effort to link these accusations to any of the individual Defendants who have brought the present motion, and the above-cited case law holds that such insults, annoyances, and threats do not suffice to establish liability for intentional infliction of emotional distress. Accordingly, Defendants are entitled to summary judgment in their favor on this claim.
Apart from challenging each of the seventeen claims asserted in Plaintiff's
Importantly, however, Defendants represent in their motion that Plaintiff declined to concur in this (or any other) relief sought in Defendants' motion. (See Defendants' Motion at ¶ 5.) As noted earlier, Plaintiff and her counsel were cautioned at the outset of this case that the Court would "closely and carefully monitor the status of Plaintiff's claims throughout this case to ensure that each claim against each named party is viable and comports with the standards of Fed.R.Civ.P. 11(b)." (6/3/2009 Order at 1 n. 1.) By the close of discovery, if not earlier, it should have been evident to Plaintiff and her counsel that the claims asserted against Defendant Damerow lacked a basis in fact or law. Nonetheless, Plaintiff failed to dismiss these claims, thereby necessitating Defendants' challenge to these claims in the present motion.
Under these circumstances, where Plaintiff and her counsel continued to pursue claims after they knew or should have known that they lacked merit, and where the Court expressly cautioned against such persistence in pursuing claims past the point of viability, the Court readily concludes that an award of sanctions against Plaintiff's counsel is warranted under Fed. R.Civ.P. 11(c). See Runfola & Associates, Inc. v. Spectrum Reporting II, Inc., 88 F.3d 368, 373-74 (6th Cir.1996); B & H Medical, L.L.C. v. ABP Administration, Inc., 354 F.Supp.2d 746, 748-49 (E.D.Mich. 2005), aff'd, 526 F.3d 257 (6th Cir.2008). Within fourteen days of the date of this opinion and order, Defendants shall file a statement of the attorney fees they incurred in preparing and filing the present motion. Upon reviewing this statement, the Court will then determine an appropriate percentage of these fees to be paid by Plaintiff's counsel to Defendants as a sanction for counsel's violation of Fed.R.Civ.P. 11(b)(2)-(3).
Having addressed each of the challenges advanced by the moving Defendants, the Court turns finally to Plaintiff's claims against the remaining individual Defendants who were not parties to the present motion. As noted earlier, these Defendants include (i) Mike Darovitz, Derrick Taylor, Darrin Simmons, Tracy Steele, and Dexter Thomas, who have yet to appear or file any responsive pleadings in this case, and (ii) Tony Hines, who initially was represented by the attorneys who filed the present motion, but who is currently unrepresented. As to the former group of individual Defendants, the clerk has entered their defaults under Fed.R.Civ.P. 55(a), but Plaintiff has not pursued default judgments under Fed.R.Civ.P. 55(b). As to Defendant Hines, the claims against this individual have not been the subject of any dispositive motion.
Under these circumstances, the Court elects to dismiss the federal claims asserted against these non-moving Defendants,
Accordingly, the Court finds no basis for permitting Plaintiff to proceed with her federal claims against the non-moving Defendants.
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants' March 1, 2010 motion for summary judgment (docket #61) is GRANTED.
(6/3/2009 Order at 1 n. 1.) The Court returns to this matter at the conclusion of this opinion.
Yet, while the amended Rule 56 expressly requires citation to the record, this Court has recognized that this obligation pre-dates these amendments. Specifically, in a case where the plaintiff was represented by the very same counsel who represents Plaintiff here, the Court observed:
Harrison v. Oakland County, 612 F.Supp.2d 848, 859 (E.D.Mich.2009) (quotation marks, alterations, and citations omitted).
Likewise, in this case, while the "Statement of Facts" section of Plaintiff's brief in response to Defendants' motion is supported by citations to the record — albeit a record that consists almost exclusively of Plaintiff's deposition testimony — the "Law and Argument" section of this brief is totally bereft of any such citations, leaving the Court to its own devices in confirming that Plaintiff's arguments have evidentiary support. In some instances, at least, such support appears to be lacking — e.g., Plaintiff supports one of her arguments with the proposition that "Muslim employees were allowed special treatment to observe their religion," (Plaintiff's Response Br. at 12), but no such factual assertion (or supporting citation) appears anywhere in Plaintiff's statement of facts. This presumably is why the amended Rule 56 (and the case law before it) requires specific citations to the record in support of each argument — so that the courts need not engage in fact-checking on behalf of the parties, a role that is patently inconsistent with the courts' position of neutrality in deciding motions and presiding over cases.
