ANJANETTE BEAVER v. MACOMB COUNTY, et al.
2:21-CV-10750-TGB-EAS
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
HON. TERRENCE G. BERG
March 31, 2025
ECF No. 60, PageID.3007
Plaintiff, Anjanette Beaver, was employed as a Medical Examiner Investigator with the Macomb County Medical Examiner‘s Office, a component of the Macomb County Health Department, from July 2015 through March 21, 2021. During that time, Dr. Daniel Spitz and Spitz Pathology Group, PLLC (“Spitz/SPG“) served as Chief Forensic
After filing various complaints with Macomb County administrators and the Equal Employment Opportunity Commission (“EEOC“), Beaver commenced this action alleging that the Defendants subjected her to a hostile work environment based on sex and race, engaged in retaliatory behavior, and made working conditions so intolerable that she was constructively discharged. Beaver filed hostile work environment and retaliation claims under state and federal anti-discrimination laws, as well as retaliation under other state and federal laws and the United States Constitution.
Following the close of discovery, Beaver and the Defendants filed motions for partial summary judgment and for summary judgment. ECF Nos. 44, 45, 46, 47. The motions have been fully briefed. Upon review of the parties’ filings, the Court concludes oral argument will not aid in the resolution of these matters. Accordingly, the Court will resolve the present motions on the briefs. See E.D. Mich. L.R. 7.1(f)(2).
For the reasons that follow, those motions are granted in part and denied in part.
A. The Parties
Plaintiff Anjanette Beaver, a Native American, was employed with the Macomb County Medical Examiner‘s Office (“MEO“) as a Medical Examiner Investigator from July 2015 through March 21, 2021. Beaver Dep. 18-25, 30, ECF No. 45-3, PageID.853-56. As a Medical Examiner Investigator, Beaver, a retired sergeant with the Detroit Police Department, was responsible for investigating the cause and manner of an individual‘s death. ECF No. 45-5.
During the time period relevant to this action, Defendant William Ridella was the Director of the Macomb County Health Department, and Defendant Andrew McKinnon was the County‘s Director of Human Resources and Labor Relations. Defendant Patricia Roland was the Manager of Operations for the MEO from 2013 until she was terminated on August 10, 2020. ECF No. 45-8, PageID.1008-09, 1012-13, 1049; ECF No. 45-34. Roland was temporarily replaced with Lead Forensic Investigator Gretchen Terebesi, who was named Interim Office Manager, until Defendant Jacqueline Fontenot became the new Office Manager of the MEO on December 14, 2020. ECF No. 45-8, PageID.1060; Fontenot Dep. 13, ECF No. 45-19, PageID.1483.
During Beaver‘s time working at the MEO, Defendants Daniel Spitz, M.D., and his corporation, Spitz Pathology Group, PLLC (collectively, “Spitz/SPG“), were under contract with Macomb County for
B. Alleged Hostile Work Environment at the MEO Based on Sex and Race
Beaver alleges she found the work environment in the MEO to be offensive and tainted with sexual and racial animus since joining the Office in July 2015. ECF No. 1. The Medical Examiner Investigators and Morgue Specialists worked together in a one-room “Death Investigator‘s” office within the MEO, furnished with eight shared cubicles and
According to the deposition testimony, Morgue Specialists Veronica Stout and Brittany Hella, and Investigator Leanna Parrent, were a “clique” within the MEO known as “The Girls.” Terebesi Dep. 13, 17-18, 76, ECF No. 45-13, PageID.1233-35, 1249. There was a perception that “The Girls” were favored by Roland and Dr. Spitz. Id.; Beaver 101-03, ECF No. 45-4, PageID.876. Beaver described “The Girls” as “collectively a group that operated somewhat outside the rest of the office” and who “received preferential treatment basically” with respect to “work and schedules and resources.” Beaver 58-60, ECF No. 45-25, PageID.1788; see also Terebesi 58, ECF No. 45-13, PageID.1245 (agreeing that “there wouldn‘t be a correction” for The Girls’ bullying of a coworker “because of this clique, because Roland, you know, favored the girls“).
On or about May 21, 2020, Hella asked Parrent to prepare a birthday cake for Stout‘s birthday based on the pornographic “Barry meme” and to bring the cake to the office. Parrent Statement, ECF No. 45-27, PageID.1848. Roland was aware of the proposed cake design, assured Parrent that it would be okay to bring that cake to work, and she even printed a color copy of the “Barry meme” to use as a topper on the cake at the office. Id. The cake was decorated with a paper cut out of the “Barry meme” and with a black and brown-colored penis drawn in frosting, with testicles decorated with coconut. Id.; Beaver 151, ECF No. 45-4, PageID.889.
Parrent brought the cake into the office on May 26, 2020, on her day off. Parrent Statement, ECF No. 45-27, PageID.1848. She showed it to Roland, Dr. Spitz, and other employees. Id. According to Parrent, Roland told Parrent that the cake was fine. Id. Roland testified that she did not find the cake sexually explicit, but that she nevertheless told Parrent to “dismantle it.” Roland 143-44, ECF No. 45-12, PageID.1203. Parrent states that Dr. Spitz advised her to place the cake in his office until the celebration because Deputy ME Mary Pietrangelo “would not find it humorous.” Parrent Statement, ECF No. 45-27, PageID.1848; Roland 76-77, ECF No. 45-12, PageID.1184. Dr. Spitz testified that he ordered the cake to be “either destroyed or discarded or changed in a way
Beaver did not eat any of the cake. She thought that it was “disgusting” and she asked Terebesi why it was allowed in the office. Beaver 113, 153, ECF No. 45-4, PageID.879, 890. Terebesi did not respond. Id. Parrent states that “[j]okes and pranks like the cake, the changing of desktops, and decorating the office with phallic symbols was an accepted and tolerated part of the office culture” at the MEO, and “almost everyone knew about it, including senior management.” ECF No. 45-27.
Beaver states that following the birthday celebration and her stated displeasure with the cake, Roland, Dr. Spitz, Hella, and Stout began for the first time increasingly scrutinizing and criticizing Beaver‘s investigative work, such as when she made a typographical error or when she had to amend a preliminary report, which she asserts is common practice for investigators in the MEO. Beaver 31-33, ECF No. 45-25, PageID.1781; see also Krieger 23, ECF No. 45-26, PageID.1837 (stating that Roland, Hella, and Stout would talk about Beaver, “just taunting and negative talks about her,” “just within earshot of all the other investigators. It was very uncomfortable.“). Beaver further asserts that “there was suddenly radio silence as far as conversation or
Beaver said she had complained to Terebesi, her first line supervisor, as early as 2016 about the hostile work environment in the office, but that Terebesi “encouraged” Beaver not to complain and “advised [her] that other people had complained prior to [her] and nothing had occurred” or that [p]eople had been terminated who complained.” Beaver 49, ECF No. 45-4, PageID.863. Beaver and another former Investigator, Kristina Krieger, both stated that former Investigator Maia Elgohail was terminated on December 5, 2017, just days after complaining to Roland about harassment and bullying by Hella and Stout. Id. PageID.862; Krieger 20-22, ECF No. 45-26, PageID.1834-36. Hella and Stout had referred to Elgohail as a “lesbian” or “lesbo” and asked Beaver if Elgohail was gay and if she liked that “weirdo.” Beaver 45-46, ECF No. 45-4, PageID.862. Elgohail filed a claim of workplace harassment and bullying with Roland on November 7, 2017. ECF No. 45-31, PageID.1991. The MEO investigated the complaint, including Eloghail‘s many allegations of harassment and bullying at the MEO, and found on November 20, 2017 that “[t]here appears to be no
On July 10, 2020, Beaver sent an email to McKinnon and the Macomb County Executive about the “ongoing hostile work environment within the MEO since I have been here [in 2015]” that is “not only ignored by managing personnel, but participated in by the supervising staff, including the Chief of Operations.” ECF No. 45-32. Beaver states:
Within the past two years, the hostile work environment has progressively worsened and the harassment amplified. There have regularly been inappropriate sexual images of penises or groin areas of men displayed on more than one computer in the office. The computers are owned and maintained by the county and only accessible via password sign-in. The pornographic computer screen savers are left in view of all
office personnel, openly displayed, and altered frequently. Phallic images drawn on papers, balloons and sticky notes have been observed around the office. Penis shaped confetti has been left laying on desks, the office counters, and thrown on the floor. The pornographic images have commonly displayed depictions/photographs of African American male genitalia [i.e., the “Barry meme“].
Id. Beaver further described the birthday party with the “penis cake incident” and stated that “[s]ince that time, the Office Manager and personnel have continued to display inappropriate screensaver photographs on their monitors, which are openly exhibited in the shared office.” Id.
Beaver also complained of “blatant and overt racist communications from the Office Manager and other employees who participate in that specific social/professional circle in the office.” Id. She states:
I have often been given the responsibility of performing decedent identifications with African American families who were considered hostile or “difficult.” I have also been told, “Go deal with your people.” Recently, a distraught family appeared at the Office and damaged the doors. I called both 911 and the Office Manager to notify her of the incident. The Office Manager later called back and asked, “Are they black?” The Office Manager then stated, “They can break the doors and nothing will happen to them with everything going on, because they are black. They‘ll just say they were upset.”
Id. Beaver states that “[t]his demeanor and these statements are routinely exhibited by supervision and staff in the course of the Office‘s interaction with African American families,” and that “[a]s an Indigenous
A few days later, on July 14, 2020, Beaver filed her first Charge of Discrimination with the EEOC. ECF No. 1-3, PageID.57-60. Beaver claimed that she has been “subjected to daily act[s] of sexual harassment via inappropriate sexual images of penises or [the] groin areas of men on more than one computer in the office,” and that “a cake was brought into the office decorated with a dark brown/black penis drawn onto the top with icing.” Id. She further claimed that “[t]here are derogatory statements made relative to the race of the family due to the current climate involving ‘black’ people” in which “African American families are considered hostile.” Id. She states that “[t]his demeanor and these types of assertions are routinely exhibited by supervision and staff in the course of interaction with African American families.” Id.
The Macomb County Human Resources department investigated Beaver‘s allegations in her July 10, 2020 letter to McKinnon and placed Stout, Hella, Parrent, and Roland on paid administrative leave. McKinnon 31-34, 37-38, 69, 75-77, ECF No. 45-10, PageID.1101-03, 1110, 1112. During the course of the County‘s investigation, McKinnon interviewed Beaver, conducted an inspection of the MEO, including the
Based on the results of this investigation, it has been determined that you have violated the County Discrimination and Harassment Policy; have failed to ensure a work environment that is free from harassment, discrimination and retaliation; have failed to enforce and ensure compliance of the County Internet and Network Use Policy; have failed to enforce and ensure proper use of County facilities; and have acted in an inappropriate and unacceptable manner in the workplace. Further it has been determined that you were less than truthful during the investigation.
ECF No. 45-34.
Roland challenged her discharge through binding arbitration. ECF No. 45-36. The Union argued in the arbitration proceeding, in part, that Roland was not a “supervisor” with authority to discipline, hire, or fire employees, that Terebesi was the “go-to person” for employees and
ample evidence of both nonverbal and sexual harassment at the Medical Examiner‘s office under the management and direction of the Grievant Patricia Roland. That conduct had the purpose and effect of substantially interfering with an individual‘s work performance in creating an offensive environment. It also created a hostile work environment, contrary to County policies and work rules. ... The unwelcome conduct resulted in the workplace atmosphere being offensive. Such a hostile work environment occurs when the workplace is permeated with an environment of inappropriate photographs and sexually explicit photos. It has no place in a professional atmosphere of the Medical Examiner‘s office for Macomb County. It affected the vast majority of employees working there.
Id. Roland‘s termination was sustained on November 1, 2021. Id. PageID.1338. Dr. Spitz testified that, following her termination from the Macomb County MEO, Roland was hired as a part-time employee to work
C. Alleged Retaliation and Retaliatory Work Environment at the MEO
Beaver contends that after she filed her complaints against Roland and “The Girls,” the sexually hostile work environment at the MEO was replaced by a retaliatory one. Beaver 25, 40-42, 44-45, ECF No. 45-25, PageID.1779, 1783-84. According to Beaver, Union Representative Erick Acre, Terebesi, and she herself were “targeted by Spitz for their involvement for telling the truth during the investigative process” of the racial and sexual harassment claims Id. at 42, PageID.1784. Dr. Spitz “was very unhappy” when the County terminated Roland and “The Girls” and he wanted them rehired, going as far as to advocate on Roland‘s behalf at her arbitration hearing. McKinnon 78-79, 102-04, 133-34, ECF No. 45-10, PageID.1113, 1120-21, 1128; Terebesi 101-02, ECF No. 45-13, PageID.1255-56. According to McKinnon, sometime after Beaver complained about Roland and “The Girls,” Dr. Spitz reported for the first time to him that Beaver “had not performed her duties appropriately and should be disciplined.” McKinnon 128-29, ECF No. 45-10, PageID.1127. Beaver was not disciplined however, Id.
On August 31, 2020, Beaver sent an email to McKinnon and other County officials, including County Executive Mark Hackel, about the “hostile environment” in the MEO. ECF No. 52-3. Beaver stated in that
I have been subjected to increased scrutiny and work critique which is also documented in text messages with me and Dr. Spitz. Dr. Spitz displays erratic behavior in my presence by grunting and making noises as he walks past me. Dr. Spitz has stood at the end of my desk area with his hands on his hips glaring at me while saying nothing. Dr. Spitz walks through the investigator‘s area and glowers menacingly at me as he traverses the length of the office, until he is out of view. This behavior and Dr. Spitz‘s overall hostile demeanor have been displayed in the presence of other investigators.
This unpredictable and bizarre behavior has me concerned for my safety in his presence and while working alone in the Medical Examiner‘s Office.
Id. Beaver further asserted that “Human Resources Director McKinnon, and Executive Hackel, in their denial of authority over ‘contract employees,’ continue to shield Dr. Spitz from accountability for his discriminatory, racist, and now retaliatory actions.” Id.
Beaver has further testified that:
Dr. Spitz was very combative and hostile and openly hostile, specifically targeting me, Terebesi and Acker [Acre]. He was in a constant state of irritability, he was derisive, he was condescending on any communications. He refused to communicate a lot of the times and that was a complaint not just made by me. He was just very erratic and belligerent and at one point in that behavior I became fearful for my safety when I was alone with him. And I also advised the county of that.
Terebesi similarly testified that Dr. Spitz‘s criticisms of Beaver seemed to increase after her complaint about the racially and sexually hostile work environment at the MEO, questioning her handling of investigations. Terebesi also stated that Dr. Spitz‘s mood changed and he would become more angry and “quite intense” when the newspaper articles about the hostile work environment incident came out. Terebesi Vol. I 70-71, 146-47, Vol. II 59-61, ECF No. 45-13, PageID.1238, 1267, 1288.
Macomb County investigated Beaver‘s complaints against Dr. Spitz under the County‘s Human Resources and Labor Relations Discrimination and Harassment policy, which included interviewing Dr. Spitz regarding Beaver‘s complaints. Spitz denied them. Semlow Aff., ECF No. 46-7, PageID.2137-38; Spitz 148-49, ECF No. 45-7, PageID.991. The County found that there was no evidence of any threats by Dr. Spitz, and “[a]lthough the behavior from Spitz seemed childish, there was no evidence that Spitz was trying to force Beaver to quit or in any way modify her work assignments,” and thus the County was unable to corroborate any violation of County policy. Semlow Aff., ECF No. 46-7, PageID.2137-38. Beaver contends that the retaliatory environment worsened after her complaints.
On September 9, 2020, Beaver filed a second Charge of Discrimination with the EEOC. ECF No. 1-5. Beaver alleged in that
D. Robinette Struckel‘s Allegations of Retaliation
On September 16, 2020, Robinette Struckel began to work as a new Morgue Specialist for Macomb County. ECF NO. 52-5, PageID.2773. She noticed alleged health and safety violations at the morgue, and on September 18, 2020, Struckel emailed Ridella and McKinnon about the safety issues she observed. She reported that Dr. Spitz‘s response to her concerns was that her complaints were only a “personal preference.” Id. 2773-75.
Struckel also addressed in a subsequent email that same day Dr. Spitz‘s unsolicited comment to her “that the only reason it [the “Barry meme“-themed birthday party] made the news was because of the area the office was located in and people‘s obsession with dead bodies. If this would have happened anywhere else in the nation, this would not have made news.” Id. PageID.2772. Struckel wrote that this showed that Dr. Spitz “lacked accountability and responsibility as a leader and as the Chief Medical Examiner and his commentary on what transpired only further condones and creates an oppressive work environment.” Id. She states that Dr. Spitz‘s “opinions show clear disregard for the severity of what happened and those that spoke up to create a safe working
On September 18, 2020, Dr. Spitz emailed McKinnon, Ridella, and County Deputy Executive Al Lorenzo a message about Struckel‘s complaints, attaching an article titled “No Resting in Peace” from the Seattle Weekly, and stating:
Thought you all might find this article [https://www.seattleweekly.com/news/no-resting-in-peace/]2 interesting. There are a few others that come up with a simple google search. Wish we would have known.
I have reviewed Robinette‘s email and I am quite certain that all of the safety concerns that she raises are being appropriately handled — except for the possibility of how we are handling formalin. The proper procedure regarding formalin depends on the concentration of formaldehyde in the air when specimen containers are being prepared.....
My conversations with Robinette and her [whistleblowing] history in King County lead me to believe that she is going to be a significant problem and major distraction at the office.
We need people who will work hard, be problem solvers and team players. We have no need for those who want to create problems and undermine the work we do.
ECF No. 52-6, PageID.2777 (emphases added).
E. Erick Acre Complaint of Retaliation
On October 28, 2020, Erick Acre sent an email to Human Resources and Labor Relations Deputy Director Karlyn Semlow titled “Medical examiner‘s union complaint.” ECF No. 52-2, PageID.2683-84. Acre stated that “many of the employees feel they have [been] exposed to a hostile work environment or retaliation from Dr. Spitz,” and he listed several examples of such retaliation. Id. Acre reported that Dr. Spitz has said that “the employees who no longer work for the county [Roland, Stout, Hella, and Parrent] did nothing wrong and this was all a conspiracy made up by a few employees.” Id. Acre states that this
At some point Macomb County retained non-lawyer Kristen Baker of HR/Advantage Advisory to conduct an outside investigation into the claims and allegations raised in Erick Acre‘s October 28, 2020 complaint regarding unsafe working conditions, hostile work environment, and retaliation. ECF No. 52-2. Baker‘s investigation began on December 23, 2020 and consisted of interviews of the Medical Examiner Investigators, Morgue Specialists, Drs. Spitz and Pietrangelo, Denise Calhoun, Fontenot, and Terebesi. Id. PageID.2646. Baker issued her report on February 15, 2021, in which she concluded that “[i]t is evident that the Medical Examiner‘s office is dysfunctional. There is a lack of trust and a severe breakdown in communication. However, this Investigator could not substantiate the claims made of hostile work environment or retaliation.” Id. PageID.2680. She concluded that “it is not evident that employees are being treated differently due to a protected characteristic,” and that Beaver and Acre were not subject to retaliation. Id. PageID.2680-81. She stated that “the behavior exhibit [sic] by Dr. Spitz, although inappropriate at times and possibly pervasive based on the
F. Beaver‘s COVID-19/MIOSHA Complaints
On October 31, 2020, Beaver sent an email to the Macomb County “Covid Communications Team” about the absence of adequate personal protective equipment (“PPE“) for Investigators on COVID death scenes. ECF No. 52-8, PageID.2781. Beaver stated that she had been assigned to a death scene that had a confirmed positive COVID-19 decedent and several family members actively experiencing COVID symptoms. Id. She conducted as much of the investigation as she could outside but was “directed to enter the home to conduct an investigation.” Id. Beaver wrote that as the number of such scene exposures increases, she was concerned with exposure to “an uncontrolled environment with minimal PPE,” including “an absence of fitted N-95 masks” and “no appropriate means to dispose of contaminated equipment/PPE which is stored in [her] vehicle until a receptacle for disposal is located.” Id. Beaver complained that investigators’ vehicles and clothing become contaminated and that they act “as potential carriers of the Covid19 virus with no proper decontamination procedure” of themselves or their equipment. Id. Ridella responded to Beaver by email on November 2, 2020, thanking her and stating that “[y]our comments regarding PPE and proper disposal are very much appreciated as well and we are copying your leadership on this email as they are the proper staff to address this.” Id. PageID.2782.
Beaver states that a MIOSHSA inspector appeared at the MEO on December 9 and December 16, 2020 to inspect the vehicles used by the investigators. At the end of the inspection the agent did not require any changes in the equipment maintained in the vehicles used to respond to
G. Alleged Retaliation and Constructive Discharge
Beaver states that on November 30, 2020, when she returned to work from COVID-leave, she received her first ever written “counselling memo” for a disputed “mistake“-failing to advise Dr. Pietrangelo that a case was being brought in for an exam. Terebesi 83-85, ECF No. 45-13, PageID.1251. The counseling memo was not placed in Beaver‘s Human Resources personnel file but was instead “just something there in the office” file. Id. Terebesi testified that this was the first time Dr. Spitz ever
On December 14, 2020, Jacqueline Fontenot started working at the Macomb County Medical Examiner‘s Office as the new Manager of Operations. Fontenot 12-13, ECF No. 45-19, PageID.1483. She had previously worked with Dr. Spitz at the St. Clair County Medical Examiner‘s Office until December 13, 2020. Id.
Beaver complains that on February 18, 2021, shortly after Fontenot stated working in the MEO and the same day MIOSHA issued a citation against Macomb County, Fontenot denied some overtime for Beaver, at the direction of Dr. Spitz. Beaver 93-94, ECF No. 45-4, PageID.874. Fontenot testified that Dr. Spitz directed her to review an overtime slip Beaver had submitted because he claimed the time submitted did not match “the times on his phone.” Fontenot 17-20, ECF No. 45-19, PageID.1484-85. Fontenot testified that she initially denied the overtime, but that someone in Human Resources later allowed and paid some of the overtime. Id. 43-44, PageID.1491. Fontenot then approved all but 1.66 hours of overtime for Beaver. ECF No. 46-10. Terebesi testified that Dr. Spitz only asked about overtime slips submitted by Beaver and Acre. Terebesi II 76, ECF No. 45-13, PageID.1292. Fontenot
Beaver also complains that she was forced to work midnight shifts and that Fontenot denied a request by Beaver and another employee to trade shifts, after consulting with Dr. Spitz as to how such requests should be handled. Fontenot testified that Dr. Spitz advised that “we generally didn‘t allow trades.” Id. 47-48, PageID.1492.
Beaver also complains that Fontenot and the County deducted time from Beaver‘s leave bank and $300 of COVID relief funds related to COVID leave Beaver had taken in November 2020. Fontenot 23-24, ECF No. 45-19, ECF No. 1486; ECF No. 45-8, PageID.1051 (admitting that Fontenot conducted an audit of Beaver‘s time records on February 18, 2021); ECF No. 52-12. Fontenot also made a similar adjustment to Erick Acre‘s leave bank. Fontenot 23-24, ECF No. 45-19, ECF No. 1486.
Macomb County explains that, at the inception of the COVID-19 pandemic, Macomb County added an additional 75 hours of sick time employees could use for COVID-related time off. Szmatula Aff. ¶ 3, ECF No. 46-12, PageID.2167. With the passage of the federal
The County further explains that it provided a $5.00 “gratuity” payment for all hours employees worked in the office during COVID. Id. ¶ 6, PageID.2167. This gratuity payment was not available for hours worked remotely or while on leave. Id. An audit of the records revealed that Beaver had received this gratuity payment for time she was on leave, and thus she received an overpayment. Id. ¶¶ 7, 9, PageID.2167-68. The County provided Beaver the paperwork to support the actions taken with regard to her pay. Id. PageID.2170-76; ECF No. 46-13.
Beaver caught COVID-19 for a second time on or around February 19, 2021, and she supplied the County with the
As you are all aware, I am the employee who complained of sexual harassment, racism, hostile work environment, noncompliance with Covid-19 safety laws/protocol (including the filing of a complaint with MIOSHA), and retaliation; all of which I observed and experienced at the Macomb County Medical Examiner‘s Office.
The County has done little to remedy the hostile environment or other unlawful conduct at the Medical Examiner‘s Office. Instead, the County emboldened Medical Examiner Spitz, and others, to retaliate against me in the hope that I quit. This has caused me enormous distress and fear which is intolerable. Because of the intolerable working conditions at the Medical Examiner‘s Office, I consider myself constructively discharged, effective immediately.
ECF No. 52-16.
H. Procedural History
On April 2, 2021, Beaver filed her Complaint in this case against Defendants Macomb County, Dr. Daniel Spitz, Spitz Pathology Group, PLLC, Andrew McKinnon, Patricia Roland, William Ridella, and Jacqueline Fontenot. ECF No. 1. Plaintiff asserts claims for: (1) Sex and Race Discrimination/Creation of a Hostile Work Environment in violation of Title VII; (2) Retaliation and Creation of a Retaliatory Hostile Environment in violation of Title VII; (3) First Amendment Retaliation Pursuant to
Defendants Dr. Spitz and Spitz Pathology Group, PLLC filed a motion to dismiss Plaintiff‘s Complaint, arguing that Beaver‘s claims against them fail as a matter of law because they are not Beaver‘s joint employer. ECF No. 17. The Court denied that motion, finding that Beaver has plausibly pleaded sufficient facts to assert her claims against Spitz/SPG. ECF No. 29.
Following the close of discovery, Plaintiff filed a Motion for Partial Summary Judgment as to Defendants Macomb County and Patricia Roland. ECF No. 45. Macomb County and Roland filed separate response briefs in opposition. ECF Nos. 50, 51. Plaintiff filed separate reply briefs in support of her motion. ECF Nos. 55, 56.
Defendant Roland filed a Motion for Summary Judgment. ECF No. 44. Plaintiff filed a response in opposition. ECF No. 49. Roland did not file a reply brief.
The Macomb County Defendants filed a Motion for Partial Summary Judgment, ECF No. 46. Plaintiff filed a response in opposition. ECF No. 53. The Macomb County Defendants did not file a reply brief.
II. LEGAL STANDARD
A party is entitled to summary judgment it if “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
At summary judgment, the Court construes the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his favor. Id. The nonmoving party‘s evidence need not be in an admissible form. Celotex v. Catrett, 477 U.S. 317, 332 (1986). But he must “show that [he] can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009).
A. Beaver‘s Hostile Work Environment Claim under Title VII against Defendant Macomb County (Count I)
Beaver brings her
Defendant Macomb County does not move for summary judgment on this claim. Macomb County also does not move for summary judgment on Beaver‘s hostile work environment claim under the Michigan ELCRA. That ELCRA claim will be addressed infra. Beaver, however, moves for partial summary judgment on this claim, arguing that Macomb County is judicially estopped from denying liability for the sexually hostile work environment at the MEO based on the arbitrator‘s finding that Roland was Beaver‘s supervisor and she knew of the pervasive hostile environment at the MEO.
To establish a prima facie claim of a sex-based hostile work environment under Title VII, a plaintiff must show: (1) she belongs to a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment unreasonably interfered with her work performance and created an objectively
Beaver argues in her motion for partial summary judgment that she is entitled to summary judgment against Macomb County for the sexually hostile environment at the MEO as of May 26, 2020 under both Title VII and the ELCRA. ECF No. 45.5 She argues that Macomb County is judicially estopped from denying liability for the sexually hostile work environment at the MEO because it “successfully proved all the elements necessary for Beaver‘s hostile environment claim at Roland‘s Arbitration.” ECF No. 45, PageID.794-98.6 Specifically, Beaver asserts that the County successfully proved at arbitration that (1) Beaver was a
In its Response, Macomb County admits that “[t]he County‘s investigation did determine that the atmosphere in the Medical Examiner‘s Office was a sexually hostile environment.” ECF No. 51, PageID.2607. Macomb County disputes only the final element of Beaver‘s prima facie case-employer liability-arguing that it is not vicariously liable for the actions of Roland or others. The County asserts that no one had ever complained to it about the inappropriate screen savers and that the “Barry meme” and incident concerning the “penis cake” only occurred within the two months preceding Beaver‘s July 10, 2020 complaint email. Id. The County states that it has a discrimination and harassment policy in place and that its “swift response” to Beaver‘s July 2020 complaint reflects its commitment to enforcing that policy. Macomb County argues that there is a question of fact as to whether Beaver unreasonably failed to take advantage of the County‘s policy. Finally, Macomb County argues that “[i]t is still a question of fact whether there was an ‘adverse employment action’ taken against Plaintiff,” and “[i]n the absence of such adverse employment action, there can be no vicarious liability for the County.” Id. PageID.2608.
That leaves only whether there is a material disputed fact as to whether Macomb County is vicariously liable for the sexually hostile work environment based on the actions of Roland and “The Girls.” The County argues that it had no notice of the screen savers, photos, and penis cake incident until Beaver complained on July 10, 2020, and that it promptly investigated and responded to that complaint, initially suspending and then terminating “The Girls” and Roland. The County asserts that Beaver thereafter never contacted HR with any complaints of a sexually or racially hostile work environment.
Beaver does not appear to dispute that Macomb County addressed her concerns regarding the sexually hostile work environment after she wrote her letter complaint on July 10, 2020. Indeed, Beaver states that
“Under Title VII, once a plaintiff establishes that they experienced a hostile work environment, [the Court] determine[s] an employer‘s liability for the harassing employee‘s conduct based on the status of the harasser.” Wyatt, 999 F.3d at 412. As the Sixth Circuit explained:
When the plaintiff‘s harasser is a co-worker, we apply a heightened negligence standard. Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). However, if the harasser is a supervisor, we apply a more stringent standard. “If the supervisor‘s harassment culminates in a tangible employment action, the employer is strictly liable.” Id. But if the harassment does not result in a tangible employment action, “the employer may escape liability by establishing” an affirmative defense under the Faragher-Ellerth framework. Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)).
Wyatt, 999 F.3d at 412.
Beaver alleges that she was harassed by both her co-workers and her supervisor, and the record supports this.
Beaver alleges that Macomb County is strictly liable for the hostile work environment created by her supervisors, Roland and Spitz/SPG. An employer is strictly liable for supervisor harassment if it results in a tangible adverse employment action to the employee, “such as discharge, demotion, or undesirable reassignment.” Ellerth, 524 U.S. at 765. Macomb County argues that “[i]t is still a question of fact whether there was any ‘adverse employment action’ taken against” Beaver. ECF No. 51, PageID.2608. Beaver contends that she has suffered an “adverse employment action” when she was constructively discharged. However, this claimed constructive discharge occurred over eight months after Beaver complained of a sexually hostile work environment, and more importantly eight months after Roland was terminated. See, e.g., Kenney v. Aspen Techs., Inc., 965 F.3d 443, 449 (6th Cir. 2020) (concluding “a roughly 75-day delay between her protected activity and an adverse employment action is not, standing alone, a convincing case for proving causation.“); Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986) (rejecting plaintiff‘s contention that temporal proximity of four months between the protected activity and adverse action was sufficient, on its own, to create an inference of retaliation).
Moreover, the Court finds that Beaver‘s claim of constructive discharge based on a hostile or retaliatory work environment fails in any event. “To establish a claim for constructive discharge, a plaintiff must
Beaver cannot meet this “demanding standard.” Beaver was not demoted; her salary was not reduced; her duties were not degraded or reassigned; she was never offered early retirement; she was not reassigned to work under a younger supervisor. She fails to show that her working environment became so intolerable that [her] resignation qualified as a fitting response.” Suders, 542 U.S. at 133-34. The only factor that appears to be present is harassment. “[W]orkplace harassment that is severe and pervasive enough to create a hostile work environment may in some circumstances constructively discharge the employee.” Plautz v. Potter, 156 F. App‘x 812, 819 (6th Cir. 2005) (emphasis added). However, a “plaintiff must show more than a Title VII violation to prove constructive discharge, so the fact that a plaintiff may have proven a hostile work environment is not enough by itself to prove constructive discharge also.” See Collette v. Stein-Mart, Inc., 126 F. App‘x 678, 682 (6th Cir. 2005) (citation omitted). Nothing in the record shows that Defendants harassed or humiliated Beaver in a manner “calculated to encourage [her] resignation.” Logan, 259 F.3d at 571. And even if Beaver had demonstrated a fact issue on whether she was harassed in this calculated, deliberate manner to encourage her resignation, “[t]he occurrence of one” factor “in isolation generally is insufficient to support” a finding of intolerable working conditions to satisfy the first prong of the
Further, Beaver admits that the sexually- and racially-charged hostile work environment at the MEO ended after she made her July 2020 complaint, and her primary complaint after that time pertained to alleged retaliation by Dr. Spitz. Beaver 40, 78, ECF No. 45-25, PageID.1783. Beaver does not allege any other “tangible adverse action.” Beaver therefore fails to establish strict liability against Macomb County for supervisor harassment based on a tangible adverse employment action. See Gallagher, 567 F.3d at 275 (finding that the supervisor‘s participation in the harassment did not ripen into any tangible employment action against the plaintiff, such as firing or demotion, and thus the employer was not “ipso facto” vicariously liable).
But, even in the absence of such a tangible action, an employer may still be liable for a hostile work environment under Title VII created by its supervisors unless it successfully establishes as an affirmative defense “(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.” Id. (citing Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807). This is known as the “Faragher/Ellerth affirmative defense.”
Beaver contends that a “reasonable reporting policy” must require supervisors to report incidents of sexual harassment, citing Clark v. UPS, Inc., 400 F.3d 341, 349 (6th Cir. 2005), and that Macomb County‘s policy did not include that requirement. In this regard, the Sixth Circuit has stated that:
[A]n effective harassment policy should at least: (1) require supervisors to report incidents of sexual harassment; (2) permit both informal and formal complaints of harassment to be made; (3) provide a mechanism for bypassing a harassing supervisor when making a complaint; and (4) provide for training regarding the policy.
Gallagher, 567 F.3d at 275-76 (quoting Thornton v. Fed. Express Corp., 530 F.3d 451, 456 (6th Cir. 2008)). Beaver states that the County‘s policy
Beaver therefore is not entitled to summary judgment on her sexually hostile work environment claims against Macomb County under Title VII (Count I) and that claim will go to the jury.
2. Co-worker harassment
Beaver‘s claims are also based on alleged co-worker harassment. Beaver alleges that “The Girls” created a pervasive sexually hostile work environment which the County, Roland, and Spitz/SPG condoned rather than condemned. ECF No. 56, PageID.2910. “An employer is vicariously liable for co-worker harassment of which it knew or should have known
The Macomb County Defendants admit that Hella, Stout, Parrent, and Defendant Roland subjected Beaver to “severe and pervasive sexual harassment by supervisors and co-employes.” See Macomb Defendants’ Answer ¶ 170, ECF No. 14, PageID.150-51; see id. ¶¶ 173, 225, PageID.151, 155 (admitting that Beaver “was subjected to unwelcome communication and/or conduct on the basis of sex and/or race“). Macomb County however asserts that it did not have knowledge of the hostile work environment at the MEO until Beaver formally complained in July 2020, and that it then promptly remedied that harassment.
Accordingly, Beaver‘s motion for partial summary judgment against Macomb County on her Title VII Hostile Work Environment claim in Count I of her Complaint will be DENIED.
B. Beaver‘s Retaliation/Retaliatory Hostile Environment Claim against Macomb County under Title VII (Count II)
Beaver brings her Title VII retaliation/retaliatory hostile environment claim against Defendant Macomb County only, alleging that Macomb County “through its agents and employees” retaliated against Beaver because she engaged in protected activity by “among other things, creating a retaliatory hostile environment, issuing her bogus disciplines, docking her pay, treating her differently from similarly situated employees, and intentionally engaging in other unlawful conduct which would deter a reasonable person of ordinary firmness from speaking out.” ECF No. 1, PageID.29.
Macomb County moves for summary judgment on this claim, arguing that Beaver cannot show that the County, or any of the County actors, took a materially adverse action against her by administering “bogus” disciplines, denying overtime, docking her pay, or imposing unreasonable and oppressive working conditions. The County argues that these discrete acts do not constitute “materially adverse actions,” ECF No. 46, PageID.2099–2106. Beaver responds that the County improperly focuses only on discrete acts and omits any reference to the retaliatory environment altogether. She argues that she was labelled a “troublemaker” after she and other employees repeatedly complained about the oppressive retaliatory environment at the MEO and that the
To establish a prima facie case of retaliation and retaliatory harassment under Title VII, a plaintiff must prove that (1) she engaged in activity protected by Title VII; (2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Wyatt, 999 F.3d at 419–20. An adverse employment action in the retaliation context is conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Davis v. Metro Parks & Recreation Dep‘t, 854 F. App‘x 707, 718 (6th Cir. 2021) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). “How a reasonable worker reacts is an ‘objective standard.‘” Id. at 714. “This standard is phrased in general terms ‘because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.‘” Spence v. Donahoe, 515 F. App‘x 561, 572–73 (6th Cir. 2013) (emphasis added) (quoting Burlington N., 548 U.S. at 69)).
When the alleged adverse employment action is a retaliatory hostile environment, as in this case, the Court must assess “the cumulative effect” of Defendants’ actions “as if they ‘constitute one unlawful
Beaver claims that Macomb County created an abusive retaliatory work environment for her and other targeted morgue employees and retaliated against her for filing the July 10, 2020 complaint by (1) disciplining her, (2) docking her pay, (3) denying her overtime,
Beaver has presented evidence that Dr. Spitz was angry with Beaver, Acre, and Terebesi for their part in the County‘s investigation and termination of Roland and “The Girls” and that Macomb County employees were aware of Dr. Spitz‘s anger. McKinnon 78–79, 102-04, 133–34, ECF No. 45-10, PageID.1113 (“Dr. Spitz was very unhappy we terminated those four individuals.“), 1120–21, 1128; Terebesi 101–02, ECF No. 45-13, PageID.1255-56. Beaver claims that “it was common knowledge that [Dr. Spitz] wanted us all gone.” Beaver 48, ECF No. 45-25, PageID.1785. In fact, some time after Beaver complained about Roland and “The Girls,” Dr. Spitz reported for the first time to McKinnon that Beaver “had not performed her duties appropriately and should be
While the County contends that Beaver‘s claim of lost overtime fails to constitute a materially adverse action because it was de minimis, Fontenot testified that Dr. Spitz directed her to review Beaver‘s claimed overtime because he claimed it did not match “the times on his phone” and Terebesi testified that Dr. Spitz only asked about overtime submitted by Beaver and Acre. Fontenot further testified that “since I started [at the Macomb County MEO], I‘m not aware of anyone else being denied overtime.” Fontenot 63, ECF No. 45-19, PageID.1496. The evidence allows a reasonable inference that Dr. Spitz was focusing only on Beaver, the “troublemaker,” and that she was being treated differently. Similarly, while the County argues that Beaver‘s written counseling memo for failing to advise Dr. Pietrangelo that a case was being brought into the
Beaver also contends that she was subjected to increased scrutiny, that Dr. Spitz refused to communicate with her, and that Dr. Spitz was “hostile” and “display[ed] erratic behavior,” he grunts and makes weird noises as he walks past her, and he glares at her without saying anything and “glowers menacingly” at her. ECF No. 46-5; Beaver 116–28, ECF No. 45-4, PageID.880–82. In her deposition, Beaver complained Dr. Spitz would make “weird noises” at her and stand at the end of a row of desks with his hands on his hips and glare at her without saying anything and then walk away. Id. 117, 121, PageID.880–81. She complained that he delayed responding to her when she was on calls to interfere with her
Beaver also states that Macomb County has similarly retaliated against other employees who complained about unfair and discriminatory treatment. Elgohail complained to Roland about “The Girls” harassment of her that created a sexually-tainted work environment, and she was terminated within a month. Struckel was similarly terminated days after complaining about safety violations, with Dr. Spitz stating that “[w]e have no need for those who want to create problems and undermine the work that we do.” ECF No. 52-6. Acre filed a complaint on behalf of all union members about the hostile and retaliatory work environment at the MEO by Dr. Spitz, stating “many of the employees feel they have [been] exposed to a hostile work environment or retaliation by Dr. Spitz,” followed by a list of several examples of such retaliation. ECF No. 52-2 (stating that Dr. Spitz has said that “employees who no longer work for the county did nothing wrong and this was all a conspiracy made up by a few employees, ... show[ing] that certain employees are being blamed and therefore
Viewing all this evidence in the light most favorable to Beaver, a reasonable jury could conclude that the cumulative effect of these actions over a relatively short period of time—less than one year, from August 2020 to March 2021—subjected Beaver to a workplace environment that might dissuade a reasonable worker from making a complaint of discrimination. See Henry, 651 F. App‘x at 505; Davis v. Metro. Gov‘t of Nashville & Davidson Cnty., Tenn., No. 3:17-CV-00773, 2022 WL 860436, at *7-8 (M.D. Tenn. Mar. 33, 2022) (supervisor‘s telling plaintiff she might not last until she was eligible to retire, excluding plaintiff from the supervisor‘s open door policy, agreeing to meet with plaintiff only if another employee was present, giving low performance evaluations, and refusal to talk to plaintiff, considered together might dissuade a reasonable worker from making or supporting a charge of
Accordingly, the Court finds that Defendant Macomb County is not entitled to summary judgment on Beaver‘s Title VII Retaliatory Hostile Environment claim.
C. First Amendment Retaliation Pursuant to 42 U.S.C. § 1983 Against Defendants Spitz/SPG, Fontenot, Ridella, and McKinnon (Count III) and Monell Claim Against Defendant Macomb County (Count IV)
Beaver alleges that Defendants Spitz/SPG, Fontenot, Ridella, and McKinnon retaliated against her in violation of her First Amendment Rights for speaking out on matters of significant public concern such as unlawful discrimination, retaliation, public health violations, and misuse of taxpayer funded equipment. She also claims that Macomb County had an illegal policy or custom of retaliating against and attempting to silence employees, like her, who exercised their First Amendment rights.
1. Spitz/SPG
In their motion for summary judgment, Defendants Spitz/SPG only contest the second prong of the prima facie case of Beaver‘s First Amendment retaliation claim—whether Beaver can establish an adverse action “that would deter a person of ordinary firmness from continuing
To establish an adverse action for First Amendment retaliation purposes, “a plaintiff must show that the action ‘would chill or silence a person of ordinary firmness from future First Amendment activities.‘” Benison v. Ross, 765 F.3d 649, 659 (6th Cir. 2014) (quoting Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 822 (6th Cir. 2007)). But “[i]t is not necessarily true ... that every action, no matter how small, is constitutionally cognizable” as an “adverse action.” Thaddeus-X, 175 F.3d at 396. In the employment context, “[t]he term ‘adverse action’ has traditionally referred to actions such as discharge, demotions, refusal to hire, nonrenewal of contracts, and failure to promote.” Dye v. Office of the Racing Comm‘n, 702 F.3d 286, 303 (6th Cir. 2012) (alteration omitted) (quoting Handy-Clay, 695 F.3d at 545). However, the Sixth Circuit has held that “any action that would deter a person of ordinary firmness from exercising protected conduct will suffice, which may include harassment or publicizing facts damaging to a person‘s reputation.” Fritz, 592 F.3d at 724. “Actual deterrence need not be shown.” Harbin-Bey v. Rutter, 420 F.3d 571, 579 (6th Cir. 2005) (emphasis in original).
“[T]his element is not an overly difficult one for the plaintiff to meet.” Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010). Consequently, “unless the claimed retaliatory action is truly inconsequential, the
Because the test is an objective one, “the issue is whether a person of ordinary firmness would be deterred, not whether the [plaintiff] h[er]self actually was deterred.” Holzemer v. City of Memphis, 621 F.3d 512, 525 (6th Cir. 2010) (citing Harris v. Bornhorst, 513 F.3d 503, 519 (6th Cir. 2008)). As with Beaver‘s retaliatory harassment claim above, viewing all the evidence in this case in the light most favorable to her, a reasonable jury could conclude that the cumulative effect of all the actions she complains of, over a relatively short period of time—August
Accordingly, Spitz/SPG‘s motion for summary judgment on Beaver‘s First Amendment retaliation claim against them will be DENIED.
2. The individual County Defendants: Fontenot, Ridella, and McKinnon
A lawsuit may be brought against a county‘s officials for a county‘s alleged violation of an individual‘s rights under
The County Defendants argue in their motion for partial summary judgment that Macomb County, McKinnon, Ridella, and Fontenot, are not vicariously liable under
But to the extent the Macomb County individual Defendants’ motion could be read to argue that Fontenot, Ridella, and McKinnon are entitled to summary judgment against Beaver for her First Amendment retaliation claim under the same analysis offered by Spitz/SPG, their motion will be denied for the same reasons the Court gave in denying that motion.
3. Defendant Macomb County
Macomb County seeks summary judgment on Beaver‘s First Amendment Monell claim in Count IV of her Complaint.
A municipality cannot be liable under a theory of respondeat superior for the constitutional torts of its employees—“in other words, ‘solely because it employs a tortfeasor.‘” D‘Ambrosio v. Marino, 747 F.3d 378, 388-89 (6th Cir. 2014) (emphasis in original) (quoting Monell, 436 U.S. at 691). Instead, municipal liability may be established either through an express municipal policy that deprives an individual of a constitutionally protected right, or by a “widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a custom or usage with the force of law.‘” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68 (1970)); Monell, 436 U.S. at 694. The “policy or custom” must be the “moving force” behind the deprivation of the plaintiff‘s rights. Monell, 436 U.S. at 694. An actionable custom—as opposed to a written policy—is one that
Thus, to establish Monell liability against Macomb County, Beaver must show that a violation of her constitutional rights occurred because of a Macomb County policy or custom. Monell, 436 U.S. at 694. This showing can be made by demonstrating one of the following: “(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision-making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or
Beaver argues that Macomb County had a policy, practice, or custom “to delegate its constitutional and statutory obligations owed to its employees to Spitz/SPG” and a policy, custom, and practice to retaliate against employes who exercised their First Amendment Free Speech [rights].” ECF No. 53, PageID.2891. Beaver also contends that the County failed to properly train supervisors in their statutory and constitutional duties” with respect to civil rights training. Id. PageID.2891–92. In support of her Monell claim, Beaver (1) points to Maia Elgohail‘s 2017 complaint that she was retaliated against for speaking out against discrimination and the EEOC‘s December 13, 2019 determination that there was reasonable cause to believe that Maia Elgohail was subjected to subjected to sexual harassment and retaliated against for filing a complaint of harassment; and (2) broadly asserts that “[t]he County knew the same with Robinette Struckel, Beaver, Acre and Terebesi, the latter of which spoke directly to Al Lorenzo about Spitz‘s
The substantive bar for proving a municipal custom or practice is quite high. See Wilson v. Cook Cnty., 742 F.3d 775, 780 (7th Cir. 2014) (“Although this court has not adopted any bright-line rules for establishing what constitutes a widespread custom or practice, it is clear that a single incident—or even three incidents—do not suffice.“). To prevail on a widespread practice or custom claim, a plaintiff must show that similar unconstitutional acts have occurred for so long and with such frequency that the course of conduct demonstrates the governing body‘s knowledge and acceptance of the disputed conduct. Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 169 (5th Cir. 2010) (internal citations omitted). That is, a pattern requires “sufficiently numerous prior incidents,” not “[i]solated instances.” McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989); see also Stone v. City of Grand Junction, Tenn., 765 F. Supp. 2d 1060, 1072 (W.D. Tenn. 2011) (stating that “three [alleged incidents] in an isolated period lasting less than two months ... do not demonstrate that the City had a custom of permitting unconstitutional arrests for stalking ‘so widespread, permanent, and well settled as to have the force of law’ and that it was a ‘deeply embedded traditional way of carrying out state policy.‘“). A pattern also requires similarity and specificity; “[p]rior indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must point to the specific violation
Applying this settled law, Beaver has failed to demonstrate a persistent, widespread, and permanent custom or practice of First Amendment retaliation violations, and has instead only points to alleged isolated incidents.
That same reasoning applies to Beaver‘s failure-to-train claim. Beaver argues that the County failed to properly train supervisors in their statutory and constitutional duties. ECF No. 53, PageID.2891–92. She cites to Roland‘s testimony that she did not find the penis cake “explicit” or “offensive,” and that Spitz/SPG admits not receiving any civil rights training from the County. Id. “[T]here are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for liability under
“A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Id. (citation omitted). Or in limited circumstances, a plaintiff can establish deliberate indifference based on “a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation.” Plinton v. City of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (quoting Board of Cnty. Comm‘rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997)). This theory needs to be circumscribed because “in virtually every instance where a person has had his or her constitutional rights violated by a city employee,
Beaver‘s alleged incidents are insufficient to establish a “pattern of similar constitutional violations” demonstrating that the County‘s training program was so deficient that it constituted a deliberate indifference to the rights of its employees or an “obvious potential” for constitutional violations on the part of the County.7
D. Violation of Michigan‘s Whistleblower Protection Act (Count V)
Beaver alleges a claim against Defendants Macomb County, Ridella, McKinnon, Fontenot, and Spitz/SPG for violation of Michigan‘s Whistleblower Protection Act (“WPA“),
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 that public body, or a court action.
Beaver states she filed a MIOSHA complaint on November 18, 2020 alleging that the County failed to provide adequate PPE at the scenes of a death, and that Defendants County, Spitz/SPG, McKinnon, and Fontenot knew of this protected activity. See ECF No. 52-9; ECF No. 46-17 (notice of anonymous complaint to MEO dated December 2, 2020). She states that a MIOSHSA inspector appeared at the MEO to inspect the vehicles used by the investigators. At the end of the inspection the agent did not require any changes and made no comments concerning the PPEs. On February 18, 2021, MIOSHA entered its final report stating that the inspection resulted in four citations, all of which were marked “Corrected During Inspection,” and a fine of $6,300, which was subsequently reduced to $3,150. ECF No. 52-10, PageID.2800–09, 2809–17.8 Beaver contends
The Defendants do not dispute that Beaver engaged in protected activity under the WPA when she filed her MIOSHA complaint. Rather, they argue that she has failed to meet the second prong of her prima facie case—to establish that Defendants took an adverse action against her for filing the MIOSHA complaint. ECF No. 46, PageID.2113–14; ECF No. 47, PageID.2302–03.9 The WPA states that an employer shall not “discharge, threaten, or otherwise discriminate against an employee regarding the employee‘s compensation, terms, conditions, location, or privileges of employment.”
E. Violation of Michigan ELCRA Sex and Race Discrimination and/or Hostile Work Environment Claim Based on Sex and Race Against All Defendants (Count VI)
Beaver alleges a hostile work environment claim based on sex and race under the Michigan ELCRA against all Defendants. Id. PageID.37–40. The analysis of hostile work environment claims under the ELCRA is “identical” to the Title VII analysis. Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 468 (6th Cir. 2012).
1. The Macomb County Defendants
Defendant Macomb County does not move for summary judgment on this claim. See ECF No. 46. However, it argues in its Response to Plaintiff‘s Motion for Partial Summary Judgment that it is entitled to a
As to the individual Macomb County Defendants, while Defendants McKinnon, Ridella, and Fontenot summarily conclude at the end of their
Beaver moves for summary judgment on her ELCRA sexually hostile work environment claim against Roland, arguing that Roland is collaterally estopped from relitigating issues resolved in binding arbitration. ECF No. 45, PageID.799–800. Defendant Roland also moves for summary judgment on Beaver‘s hostile work environment claim under the ELCRAThe Michigan Court of Appeals further clarified that “[t]he issue is not whether the harassing acts were within the scope of the agent‘s authority.... The issue is whether the harasser was an agent, one vested with supervisory power and authority, at the time the harassing acts were being perpetrated against the victim.” Id. at 459. In other words, the Court concluded, “[a]n agent can be held directly and individually liable if he engaged in discriminatory behavior in violation of the [EL]CRA while acting in his capacity as the victim‘s employer.” Id. at 461. Accordingly, Roland‘s argument that there is no individual liability under the ELCRA must be rejected and her Motion for Summary Judgment DENIED. Roland does not otherwise contest her liability for Beaver‘s ELCRA hostile work environment claim in her motion.
To establish a prima facie case of hostile work environment under the ELCRA, Beaver is required to present evidence that: (1) she belonged
Roland does not address any of the elements of a prima facie case in her motion. However, as discussed supra, Beaver has presented evidence to meet her prima facie burden. Roland concedes that she can be considered Beaver‘s supervisor during the relevant time period, ECF No. 44-1, PageID.620, and Accordingly, Roland‘s motion for summary judgment on Beaver‘s hostile work environment claim in Count VI of her Complaint will be DENIED.
Initially, the Court notes that whether to apply federal or Michigan law to evaluate the preclusive effect of an arbitration proceeding is “less than clear.” W.J. O‘Neil Co. v. Shepley, Bulfinch, Richardson & Abbott, Inc., 700 F. App‘x 484, 489-90 (6th Cir. 2017); see also Tankersley v. Lynch, No. 11-12847, 2012 WL 683384, at *6 (E.D. Mich. Mar. 2, 2012) (Battani, J.) (“The source of the law that governs the preclusion consequences of an arbitration award has not been much developed.“) (punctuation modified). Federal courts apply federal law in determining the preclusive effect of a prior federal judgment; they apply state law when determining the preclusive effect of a prior state court judgment. Hamilton‘s Bogarts, Inc. v. Michigan, 501 F.3d 644, 650 (6th Cir. 2007). But neither of these rules directly applies to the situation at hand.
Spitz/SPG move for summary judgment on Beaver‘s ELCRA hostile work environment claim. Spitz/SPG argues it is not an “employer” as defined by the ELCRA, that Beaver does not complain of severe and pervasive conduct that affected her work performance, and that Beaver did not complain to Spitz/SPG about such conduct. ECF No. 47, PageID.2300–01, 2303–04.
Beaver argues in response that she has presented evidence that Spitz is an employer under the ELCRA and has presented evidence sufficient to support her hostile work environment claim. ECF No. 52.
As discussed above, the ELCRA allows for individual liability. Dr. Spitz disputes that he had authority regarding personnel decisions over Beaver. He argues that he does not have the authority to discipline Beaver or effect a significant change in Beaver‘s employment status, and that she was employed by Macomb County, while Dr. Spitz is employed by SPG. Beaver argues that under the ELCRA, “it is through th[e] delegation of general supervisory power and authority that one becomes
The Court finds on this record that there is a genuine issue of material fact regarding the question of whether Spitz/SPG is Beaver‘s employer for purposes of considering Beaver‘s hostile work environment claim under the ELCRA. As discussed above, under ELCRA, “persons to whom an employing entity delegates supervisory power and authority to act on its behalf are ‘agents,’ as distinguished from coemployees, subordinates, or coworkers who do not have supervisory powers or authority,” and such agents are subject to ELCRA liability. Elezovic, 731 N.W.2d at 458. “[I]t is not necessary for a plaintiff to establish that a defendant was ‘functioning as an agent’ when he committed the charged specific acts of sexual harassment charged.” Id. at 459. Agents of an employer are held to the same standard as the employer under ELCRA because when an employer‘s agent, who has control over the employee‘s “employment circumstances and opportunities like promotions, bonuses, overtime options, raises, shift and job assignments, and terminations,” subjects an employee to sexual harassment, the employee is placed in the
Spitz/SPG also rather summarily contends that Beaver‘s hostile work environment claim should be dismissed because she “complains of conduct that was neither severe nor pervasive, there is no evidence that it affected her work performance, and she never complained to Defendants about it.” ECF No. 47, PageID.2303–04. They do not further discuss the facts of this case in support of this argument, and the single unpublished case they cite, McGowen v. Kroger Dist. 1, No. 16-13216, 2018 WL 6174042 (E.D. Mich. Sept. 7, 2018) (Whalen, M.J.) is not compelling under the facts of this case.13 In McGowen, the three plaintiffs
In this case, and as discussed supra, Beaver has presented evidence that pornographic images of males and naked, black male genitalia, including a pornographic photo known as the “Barry meme” were on several computer screen savers, and on sticky notes and ballons. Other screen savers contained offensive sexual words and phrases such as “cunt,” “bitch,” “Vagina,” “anal fisting,” “Fuck Bitches. Get Money,” “Suck
Viewing the totality of this evidence in the light most favorable to Beaver, a question of fact readily exists as to whether this conduct was sufficiently severe or pervasive to constitute a hostile work environment. The inquiry into whether a working environment is hostile is not subject to a “mathematically precise test,” Harris v. Forklift Sys., 510 U.S. 17, 22 (1993), and there is no bright line “between a merely unpleasant working environment ... and a hostile or deeply repugnant one,” McPherson v. City of Waukegan, 379 F.3d 430, 438 (7th Cir. 2004) (citation omitted). Moreover, a working environment need not be “hellish” to establish a claim; “something short of the Ninth Ring” may violate anti-harassment statutes. Jackson v. Cnty. of Racine, 474 F.3d 493, 500 (7th Cir. 2007). As the Supreme Court has stated:
Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work
environment abusive to employees because of their race, gender, religion, or national origin offends Title VII‘s broad rule of workplace equality.
“[W]hether harassment was so severe and pervasive as to constitute a hostile work environment [is] ‘quintessentially a question of fact.‘” Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 310 (6th Cir. 2016) (quoting Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006)). The Court is to consider “harassment by all perpetrators combined when analyzing whether a plaintiff has alleged the existence of a hostile work environment.” Williams v. CSX Transp. Co., 533 F. App‘x 637, 641 (6th Cir. 2013) (quoting Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999)). The Court concludes that Beaver describes events, when considered as a whole and in the light most favorable to her, that create an issue of fact for a jury to decide whether she experienced a hostile work environment based on sex. Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 310 (6th Cir. 2016). Accordingly, Spitz/SPG‘s motion for summary judgment on Beaver‘s ELCRA hostile work environment claim is DENIED.
F. Retaliation/Retaliatory Hostile Work Environment Claim under Michigan ELCRA Against Defendants Macomb County, McKinnon, Ridella, Fontenot, and Spitz/SPG (Count VII)
Defendant Macomb County does not move for summary judgment on Beaver‘s retaliation/retaliatory hostile work environment claim under
“Michigan courts use the federal Title VII framework to assess retaliation claims.” Mumm v. Charter Township of Superior, 727 F. App‘x 110, 114 (6th Cir. 2018) The elements of a prima facie claim of retaliation/retaliatory harassment under Title VII and the ELCRA are : 1) that plaintiff engaged in an activity protected the ELCRA; 2) that the defendant knew of this exercise of plaintiff‘s protected rights; 3) that defendant consequently took an employment action adverse to plaintiff; and 4) that there is a causal connection between the protected activity and the adverse employment action. Amini v. Rite Aid Corp., 819 F. App‘x 344, 350 (6th Cir. 2020) (addressing a retaliatory harassment claim under the ELCRA); see Meyer v. City of Center Line, 619 N.W.2d 182, 189 (Mich. App. 2000) (retaliatory harassment can constitute an adverse action). Once a prima facie retaliation claim is established, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action. Spengler v. Worthington Cylinders, 615 F.3d 481, 492 (6th Cir. 2010). The burden then shifts back to the plaintiff to show the stated reasons were mere pretext to mask retaliation. Id.
The Court finds, for the same reasons stated supra that Beaver‘s Title VII retaliation/retaliatory hostile environment claim against Macomb County survives, her ELCRA retaliation/retaliatory hostile environment claim survives. Defendants McKinnon, Ridella, Fontenot,
G. FFCRA Interference and Retaliation Claim Against Macomb County (Count VIII)
On March 18, 2020, Congress enacted the Families First Coronavirus Response Act (“FFCRA“) in response to the emergent COVID-19 pandemic. See Pub. L. No. 116-127, 134 Stat. 178 [hereinafter “FFCRA“];
The second major provision of the FFCRA was the Emergency Paid Sick Leave Act (“EPSLA“), which was enforced through the Fair Labor Standards Act (“FLSA“),
The County further explained that it provided a $5.00 “gratuity” payment for all hours employees worked in the office during COVID. Id.
The Court finds that Macomb County has thus provided a legitimate, non-discriminatory reason for this employment action. Beaver did not respond to this argument, much less show that it was a pretext for retaliation. Accordingly, her FFCRA retaliation claim fails, and Macomb County is entitled to summary judgment on this claim.
IV. CONCLUSION
For the reasons stated above, the Court will (1) DENY Defendant Patricia Roland‘s Motion for Summary Judgment, ECF No. 44; (2) DENY Plaintiff Beaver‘s Motion for Partial Summary Judgment, ECF No. 45; (3) GRANT IN PART AND DENY IN PART Macomb County Defendants’ Motion for Partial Summary Judgment, ECF No. 46; and (4) GRANT IN PART AND DENY IN PART Spitz/SPG Defendants’ Motion for Summary Judgment.
Specifically,
As to Count I (Title VII—Race and Sex Hostile Work Environment) against Macomb County, Plaintiff‘s Motion for Partial Summary Judgment is DENIED; this claim will PROCEED;
As to Count III (First Amendment Retaliation) against Spitz/SPG and the Individual Macomb County Defendants, Defendant Spitz/SPG‘s and the Individual Macomb County Defendants’ Motions for Summary Judgment are DENIED; this claim will PROCEED;
As to Count IV (First Amendment Monell Claim) against Macomb County, Defendant Macomb County‘s Motion for Summary Judgment will be GRANTED; this claim is hereby DISMISSED;
As to Count V (Michigan Whistleblowers Protection Act) against Spitz/SPG and the Macomb County Defendants, Defendant Spitz/SPG‘s and the Macomb County Defendants’ Motions for Summary Judgment are GRANTED; this claim is hereby will be DISMISSED;
As to Count VI (ELCRA—Race and Sex Hostile Work Environment) against ALL Defendants, the Motions for Summary Judgment by Plaintiff, Defendants Roland, Spitz/SPG, and the Macomb County Defendants are DENIED; this claim will PROCEED;
As to Count VII (ELCRA—Retaliation/Retaliatory Hostile Environment) against Spitz/SPG and the Macomb County Defendants, Defendant Spitz/SPG‘s and the Macomb County Defendants’ Motions for Summary Judgment are DENIED; this claim will PROCEED; and;
This is not a final order and does not close the case.
IT IS SO ORDERED.
Dated: March 31, 2025
/s/Terrence G. Berg
HON. TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE