GORDON J. QUIST, District Judge.
Plaintiff, Kathleen Walsh, filed a pro se complaint against her former employer, Phillips Pet Food and Supplies, alleging claims of hostile work environment sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964. Walsh also alleged a violation of the Michigan Whistleblower's Protection Act (WPA). Walsh obtained counsel, and the parties engaged in discovery. Phillips thereafter filed a motion for summary judgment, arguing that: (1) Walsh cannot establish a prima facie case of retaliation and cannot show pretext; (2) Walsh's evidence fails to establish a hostile work environment claim; and (3) Walsh's WPA claim is barred by the 90-day statute of limitations. The Court heard oral argument on the motion on December 14, 2018.
For the reasons that follow, the Court will grant Phillips's motion and dismiss Walsh's complaint with prejudice.
Walsh began her brief tenure at Phillips on September 25, 2015, as a temporary worker employed through Kelly Services, a temporary staffing agency. (ECF No. 17-2 at PageID.104.) On February 1, 2016, Phillips hired Walsh directly as a Sanitation Associate at its Lansing, Michigan facility. (Id. at PageID.105; ECF No. 17-5.) Walsh's employment was at will and was subject to a 90-day probationary period. Dave Dingwell, the General Manager, was Walsh's supervisor, but her day-to-day work activities were directed by lead hourly workers, including Warehouse Coordinator Ted Bratschi and Warehouse Lead Don Vinson. (ECF No. 17-2 at PageID.106-07.) Bratschi and Vinson were not in management and had no authority to make employment decisions. (ECF No. 1-4 at PageID.128.)
Walsh's duties as a Sanitation Associate included vacuuming spills, emptying trash, sorting and segregating pallets, and other tasks as assigned. (ECF No. 17-5.) Walsh was also responsible for cleaning the men's restroom, which at times resulted in embarrassing or uncomfortable situations. Sometimes men went into the bathroom, or were already there, when Walsh was cleaning and would "giggle" or "laugh" and say "I'm okay if you're okay [using the bathroom while Walsh cleaned]," at which point Walsh would just leave. (ECF No. 17-2 at PageID.113.) Men were in the bathroom when Walsh was cleaning at least ten times, but made comments only a couple of times. (Id.) When Walsh complained to Bratschi, he told her to put the sign up.
At all relevant times, Phillips had a "Harassment and Discrimination Avoidance Policy," which provided in relevant part:
(ECF No. 17-8 at PageID.140-41.)
While employed by Phillips, Walsh had negative interactions with three employees who did not supervise her:
On April 22, 2016—prior to the end of Walsh's 90-day probation—Walsh was drinking an energy drink while cleaning the bathroom and the break room. Smock saw Walsh drinking the energy drink and told her that she was violating company policy and would get fired. On her break, Walsh went to Samantha Helmer, Phillips's Human Resources Generalist, and told Helmer that she was tired of being criticized about her job performance. Walsh complained about Smock's comments and actions toward her, Smith's texts, and Crooks's two asexual hugs (as Walsh described them in her deposition) and a crude joke on one occasion. (Id. at PageID.113-14.) Walsh also told Helmer about a female employee, Tarryn Frank, who was stealing dog food from Phillips. (Id.) Walsh also told Helmer that Keisha Nelson, a former temporary employee at Phillips, had told Walsh that Crooks "hugged" her as well and that Nelson had complained to Phillips's management. (Id. at PageID.111.) However, the facts show that Phillips received no such complaint from Nelson. (ECF No. 17-4 at PageID.128.)
Helmer told Walsh that she would investigate Walsh's allegations involving Crooks, as required by Phillips's anti-harassment policy. Helmer also told Walsh that Smock was not her boss and that Walsh could tell Smock to mind his own business if he bothered her again. (ECF No. 17-2 at PageID.115.) Walsh's complaint to Helmer was her first complaint to management about any work issue.
That afternoon, Walsh, on her own initiative, put a note on Smock's locker telling Smock to stop harassing her and that, per Helmer, Smock was not Walsh's boss, and Smock should mind his own business. As Smock was standing by his locker reading Walsh's note, Walsh walked out of the women's bathroom and confronted Smock. Walsh described the confrontation as follows:
(Id. at 116.) Walsh raised her voice and "may have" used the vulgarity "shit" toward Smock. (Id.) Smock did not engage with Walsh and, instead, turned and walked away. (Id. at PageID.117.)
Walsh starting walking toward her jack—a vehicle used to lift heavy loads. As she did so, she saw Crooks and decided to confront him about the alleged hugs. Walsh walked up to Crooks and told him, "stop giving me those creeping, groping hugs just like you did Keisha Nelson . . . you dirty old man." (Id.) Walsh claims that Crooks started trembling, his face became "beat red," and he said "what did I ever do to you?" Walsh claims that Crooks then grabbed her arms, stated that he wanted to talk to her, and pulled her about six feet toward some shelving. Walsh claims that she struggled with Crooks and broke free, with assistance from a coworker, Garcia Gamalier. (Id.) After breaking free from Crooks, Walsh got on her jack and drove it about a half mile to the warehouse. Walsh claims that she saw Crooks get on a jack and drive toward the warehouse looking for her, but Walsh avoided him. She eventually parked her jack and left work without speaking to Helmer or anyone else in management about the incident. (Id. at PageID.118-19.)
The following morning, Saturday April 23, 2016, Walsh went to Lansing Urgent Care complaining of swelling and bruising on her arm caused by Crooks. The nurse who treated Walsh called the Michigan State Police, and an officer interviewed Walsh that afternoon. Walsh did not report the injury or her contact with the police to anyone at Phillips. (ECF No. 17-2 at PageID.119.)
The following Monday, April 25, 2016, a police officer went to Phillips' facility to conduct an investigation. The police did not speak with Walsh but did interview several witnesses. (ECF No. 17-12.) At the conclusion of the interviews, the officer advised Helmer that he had been unable to find any evidence to support Walsh's claim. (ECF No. 17-4 at PageID.130.)
Helmer began her own investigation on April 25, after the police investigation had concluded. Helmer took a statement from Crooks that day and a statement from Walsh the following day. Helmer also took statements from the same employees the police had interviewed. (ECF No. 17-13.) After completing her investigation, Helmer was unable to substantiate Walsh's version of events. (ECF No. 17-4 at PageID.129.)
On April 28, 2016, Helmer notified Walsh that Phillips was terminating her employment. (ECF No. 17-2 at PageID.123.) In her letter (which followed up on a phone call), Helmer cited the disruption that Walsh caused on April 22 and her unprofessional conduct, as well as Walsh's unsubstantiated accusation of harassment against Crooks. Helmer wrote that "Phillips takes our Harassment Policy very seriously and engaging in bad faith complaints is a direct violation of our conduct policy."
The Court's initial task is to identify the claims at issue.
To state a claim for hostile work environment discrimination under Title VII, a plaintiff must allege that: (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment created a hostile work environment; and (5) the employer is liable. Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006). "To establish employer liability where the harasser is a co-worker, a plaintiff must show that the employer knew or should have known of the conduct and failed to take prompt and appropriate corrective action." Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 307 (6th Cir. 2016) (citing EEOC v. Harbert-Yeargin, Inc., 266 F.3d 298, 518 (6th Cir. 2001)).
Phillips argues that Walsh cannot establish the third, fourth, and fifth elements of the claim. The Court agrees.
Title VII prohibits discrimination in employment based on an "individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Harassment based on sex that creates a hostile work environment is prohibited by Title VII. See Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404 (1986). Before a court inquires "as to whether the degree of `harassment' was sufficient to violate Title VII, it is important to determine whether there was any discriminatory `harassment' in the first place." Schramm v. Slater, 105 F. App'x 34, 39 (6th Cir. 2004). The Supreme Court has noted that "Title VII does not prohibit all verbal or physical harassment in the workplace." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002 (1998). Rather, Title VII pertains only to harassment based on a protected status, such as sex or race. Id. Thus, "the conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim's [protected status]." Wasek v. Arrow Energy Servs., 682 F.3d 463, 467 (6th Cir. 2012).
In her response, Walsh identifies three bases for her hostile work environment claim:
(ECF No. 18 at PageID.185-86.)
As for the bathroom incidents, Walsh fails to show that they were based on sex. Cleaning the bathroom was one of Walsh's duties as a Sanitation Associate. She thus was not asked to perform this duty because she was a woman. In addition, there is no indication that the incidents in which she found men using the bathroom while she was cleaning occurred because of her sex. Walsh admitted that men asked her if she was okay if they used the bathroom, and Walsh had the option of leaving while they did so. Moreover, Walsh admitted that these incidents happened after she did not post signage or failed to announce her presence. Finally, Walsh offers no evidence that such incidents (men wanting to use the bathroom when it was being cleaned) would not have also occurred to a male cleaning the bathroom.
Next, there is no evidence that the Tim Smith incident (asking Walsh to stay at her place one night) occurred because Walsh was a woman. Walsh testified that Smith asked to stay at her place because it was during a snow storm and Smith was without transportation. In fact, Walsh admitted that Smith ended up staying with Smock. (ECF No. 17-2 at PageID.112.)
Finally, as to the Crooks incidents, Phillips argues that Walsh fails to present any evidence (indeed, she does not even argue), that Crooks hugged (or more accurately, put his arm around) Walsh on the two occasions because of Walsh's sex. As Phillips notes, Walsh admitted that Crooks put his arm around her because Walsh became upset and "teary" when Crooks criticized her job performance. Regardless, even if Crooks acted because of Walsh's sex, as discussed below, Walsh's claim fails because it was not severe or pervasive.
A hostile environment exists "[w]hen 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." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993) (internal quotation marks and citation omitted). In Harris, the Court observed:
Id. at 21-22, 114 S. Ct. at 370 (internal citations omitted). A court must consider the totality of the circumstances in determining whether an environment is "hostile" or "abusive," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23, 114 S. Ct. at 371. "A mere unfriendly work environment is insufficient to establish liability." Mast v. IMCO Recycling of Ohio, Inc., 58 F. App'x 116, 118 (6th Cir. 2003). In other words, Title VII is not "a general civility code." Oncale, 523 U.S. at 81, 118 S. Ct. at 1002.
The conduct Walsh cites to support her claim does not meet this requirement. As noted, the only conduct that was even arguably sexual in nature were Crook's putting his arm around her, twice, and one joke that Walsh admits she did not hear. But even if the Court considered all of the conduct Walsh alleges, it would not rise to the level of a hostile or abusive environment. Phillips cites a number of cases in both its opening and reply briefs in which the Sixth Circuit held that the plaintiff failed to establish a sexually hostile environment. See Clark v. United Parcel Serv., Inc., 400 F.3d 341, 344 (6th Cir. 2005) (plaintiff's co-workers vulgar jokes, placing a vibrating pager on the plaintiff's thigh, and pulling at the plaintiff's overalls after she told him she was wearing a thong did not constitute conduct pervasive enough to alter the conditions of the plaintiff's employment); Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (several incidents of harassment, including shoulder rubbing, grabbing of buttocks, and suggestive comments, were not severe or pervasive). As these more egregious cases show, Crooks's conduct, alone, or even considered together with the other conduct that Walsh cites, was not severe or pervasive enough to constitute a hostile environment.
An employer is liable for coworker harassment if the employer "knew or should have known of the harassment, yet failed to take prompt and appropriate corrective action." Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 338 (6th Cir. 2008). The employer may be held liable if its response "manifests indifference or unreasonableness." Id. (internal quotation marks omitted). "Generally, a response is adequate if it is reasonably calculated to end the harassment." Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013) (internal quotation marks omitted). Reasonable corrective steps "may include promptly initiating an investigation to determine the factual basis for the complaint, speaking with the specific individuals identified by [the complainant], following up with [the complainant] regarding whether the harassment was continuing, and reporting the harassment to others in management." Id. (internal quotation marks omitted).
The record evidence shows that Walsh first complained about Crooks's conduct on April 22, 2016, when she spoke to Helmer. The same day, Helmer met with Crooks and told him not to hug Walsh again. (ECF No. 17-4 at PageID.128.) Crooks did not hug, i.e., put his arm around, Walsh again. Walsh presents no evidence to show that Helmer failed to take corrective action, that speaking to Crooks was not reasonably calculated to end the alleged harassment, or that Walsh experienced a hug or any sexual harassment after that date.
To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in protected activity; (2) the employer was aware of the plaintiff's protected activity; (3) she suffered an adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action. Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 562-63 (6th Cir. 2004). If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. Id. (citing Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir. 2000)). If the defendant meets its burden, the plaintiff must then demonstrate by a preponderance of the evidence that the proffered reason was mere pretext. This entails a showing that the proffered reason: (1) has no basis in fact; (2) did not actually motivate the adverse action; or (3) was insufficient to motivate the adverse action. Id. (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)).
Walsh argues that she engaged in protected activity when she complained about Crooks's conduct to Helmer on April 22, 2016, and when she reported Crooks's conduct to the police the following day. Phillips does not dispute that Walsh engaged in protected conduct when she made her April 22 complaint to Helmer. It argues, however, that Walsh may not allege that her report to the police forms a basis of her retaliation claim because she did not mention going to the police in her EEOC Charge, nor did she allege in her complaint in this case that her report to the police was a basis for her retaliation claim. As Phillips notes, "[a]s a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in his EEOC charge." Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010). However, a claim may be considered within the scope of an EEOC charge if "the claim can be reasonably expected to grow out of the EEOC charge." Strouss v. Mich. Dep't of Corrs., 250 F.3d 336, 342 (6th Cir. 2001). Nonetheless, even if Walsh had mentioned her complaint to the police in her EEOC charge, nothing in the police report indicates that Walsh contacted the police to complain about sexual harassment. Rather, the police responded to an alleged assault. (ECF No. 17-12 at PageID.156.) Thus, Walsh's complaint to the police was not protected conduct. See Hawkins v. Miller, No. 3:07-CV-383-H, 2007 WL 2400975, at *4 (W.D. Ky. Nov. 13, 2007) (holding that the plaintiff did not engage in protected conduct when he called the police because nothing in the complaint or exhibits indicated that he reported any discriminatory treatment to the police).
Although Walsh's complaint to Helmer was considered protected activity, Phillips argues that Walsh fails to establish a prima facie case because she cannot show a causal connection between her protected activity and her termination. Phillips notes that Walsh's conduct during the afternoon of April 22—after Walsh complained to Helmer—which formed, in part, the basis for the subsequent termination, precludes any causal connection. Walsh essentially relies on temporal proximity to establish a causal connection. The Sixth Circuit has held that temporal proximity, without other evidence of retaliatory conduct, is generally insufficient to establish the required causal connection for a retaliation claim. See Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 321 (6th Cir. 2007). On the other hand, the Sixth Circuit has also recognized that "[w]here an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation."
Even though Walsh has established a prima facie case, she must still show that Phillips's legitimate reason for terminating her employment was pretext. Phillips has presented evidence that it terminated Walsh for engaging in disruptive behavior toward Smock and because it concluded that her allegation about Crooks assaulting her was false.
Walsh argues that Phillips's reasons for terminating her are pretext for two reasons. First, as for engaging in unprofessional conduct toward Smock, Walsh argues that Phillips had no evidence that Walsh swore at Smock. Even absent such evidence, Walsh's admitted conduct—raising her voice toward Smock and creating a disturbance in the workplace—was unprofessional, in violation of Phillips's work rules. Moreover, Walsh admitted in her deposition that she may have said "shit" toward Smock. (ECF No. 17-2 at PageID.116.) In addition, employee Blaine Guest said in his statement to the police that he heard Walsh yell to Smock, "Did you read my fucking note?" (ECF No. 17-12 at PageID.154.) Helmer sat in on the police interviews of the witnesses, including Guest, and heard what they had to say. (ECF No. 20-6 at PageID.344.) Thus, although not necessary to the termination decision for creating a disruption in the workplace, Helmer also had reason to believe that Walsh swore at Smock. Finally, apart from the interaction with Smock, calling a fellow employee a "dirty old man," as Walsh admits having called Crooks, is bound to cause unnecessary disruption in the workplace.
Walsh further argues that it is disingenuous for Phillips to claim that it terminated Walsh for confronting Smock because Helmer encouraged Walsh to tell Smock not to boss her around. However, when asked why she went up to Smock and "talk[ed] to him that way," Walsh stated that she felt "it needed to come out" and it was her "way of dealing with a bully." (ECF No. 17-2 at PageID.117.) Thus, Walsh admitted that she made the decision to confront Smock.
Finally, Walsh argues that she has demonstrated pretext because Phillips's explanations for discharging her have been inconsistent—vacillating between alleged unprofessional conduct toward Smock and falsely accusing Crooks of assault and battery.
For the foregoing reasons, the Court will grant Phillips's motion for summary judgment.
An Order consistent with this Opinion will enter.
