SHANNON KELLER, Plaintiff v. CLEAN HARBORS, INC., Defendant.
Civil Action No.: 17-11807
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
April 30, 2019
Honorable Nancy G. Edmunds; Magistrate Judge Elizabeth A. Stafford
I. Introduction
Plaintiff Shannon Keller, acting pro se, sues Clean Harbors, Inc. for alleged gender discrimination and retaliation under
Clean Harbors moves for summary judgment, arguing that Keller‘s claims fail because the Clean Harbors entity she sued was not her employer under the controlling statutes. [ECF No. 45]. Clean Harbors also
II. Factual Background
Keller was employed as a sales manager with Clean Harbors Environmental Services, a subsidiary of Clean Harbors, from December 2009 until she was terminated in January 2016, allegedly due to a corporate reorganization. [ECF No. 36, PageID.2141]. She holds a bachelor‘s degree of science in communications from Eastern Michigan University. [Id.]
From 2009 until 2013, Keller worked as an account manager under the supervision of Douglas Bayuk. [Id., PageID.2143]. She was “responsible to grow, expand, and maintain a required minimum base of revenues and number of customers within an assigned territory.” [ECF No. 61, PageID.3466]. According to Keller, she received satisfactory to
In May 2013, Keller began reporting to a new supervisor, Matt Coulter, and she received the new title of vertical account manager following a reorganization of the sales department in 2014. [ECF No. 36, PageID.2144-2146]. Keller alleges that Clean Harbors began realigning sales territories in 2014, shifting to her male colleagues revenue and accounts for which she had been responsible. [Id.; ECF No. 61]. In early 2015, Keller was assigned additional territory in Michigan and Ohio, but she says that the new territory did not offset the revenue she lost. [ECF No. 36, PageID.2149].
Keller also alleges that in August 2015, her airport account was transferred to yet another male peer after she challenged a negative performance review. [Id., PageID.2151]. She testified by affidavit that she repeatedly complained to her supervisor and others in management about the disparate treatment she was receiving from account reassignments. [Id.; ECF No. 61-1]. In early 2016, Clean Harbors terminated Keller‘s employment, citing a workforce reduction and reorganization. [ECF No. 45-2]. Keller‘s amended complaint identifies male colleagues with less seniority and an insufficient “skill set” who were retained, as well as a male
Clean Harbors personnel testified that it often moved accounts between sales employees for a variety of reasons. [ECF No. 45-3, Douglas Bayuk Decl., ¶¶6-8; ECF No. 45-5, Teri Myers Decl., ¶7; ECF No. 45-6, David Parry Decl., ¶6]. They acknowledged that Keller complained about the transfer of her accounts, but the witnesses testified that many male sales employees lodged the same complaints about account losses, and that Keller had not complained that her account losses were based on gender, or a result of discrimination or retaliation. [ECF No. 45-3, Bayuk Decl., ¶7; ECF No. 45-5, Meyers Decl., ¶¶6-8; ECF No. 45-6. Parry Decl., ¶7]. David Parry, the former president of Clean Harbors Environmental Services, testified that, based on the sales data, the changes to Keller‘s accounts during 2014 and 2015 were consistent with account changes for other account managers and vertical account managers, both male and female. [ECF No. 45-6, ¶6]. Parry also testified
III. Analysis
A.
“The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion and must specify the portions of the record that show the absence of a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies this burden, the burden shifts to the non-moving party to go beyond the pleadings and set forth specific facts showing a genuine issue for trial. Id. at 324. The Court must view the factual evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007). But “[t]he failure to present any evidence to counter a well-
B.
The parties dispute whether Clean Harbors was Keller‘s employer. In its motion for summary judgment, Clean Harbors argues that it does not meet the statutory definition of “employer” under Title VII or ELCRA. Clean Harbors claims that Clean Harbors Environmental Services was Keller‘s employer, and that Clean Harbors and Clean Harbors Environmental Services were separate and distinct corporations.
But for purposes of Title VII and ELCRA claims, companies can be so intertwined that they constitute a single employer. Harrison v. Soave Enterprises, 2019 WL 296699, at *2–3 (E.D. Mich. Jan. 23, 2019) (citing Swallows v. Barnes & Noble Book Stores, 128 F.3d 990, 993 (6th Cir. 1997)). Courts use three approaches to examine whether two companies
Two legally distinct corporations can be considered joint for Title VII and ELCRA claims.
A conclusion that employers are “joint” assumes that they are separate legal entities, but that they ... handle certain aspects of their employer-employee relationship jointly. Where this doctrine is operative, an employee, formally employed by one entity, who has been assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity, may impose liability for violations of employment law on the constructive employer, on the theory that this other entity is the employee‘s joint employer.
Sanford v. Main St. Baptist Church Manor, Inc., 327 F. App‘x 587, 593 (6th Cir. 2009) (citation and internal quotation marks omitted). Courts have recognized factors such as the supervision of the employees’ day to day activities; authority to hire, discipline, or fire employees; promulgation of work rules and conditions of employment; work assignments and issuance of operating instructions, pay, insurance and records; and participation in
As this Court detailed in its report and recommendation on Clean Harbors’ motion to dismiss, [ECF No. 17], several facts support Keller‘s claim that Clean Harbors should be considered her employer. First, Clean Harbors hired Keller; the letterhead of the employment offer showed that it was from Clean Harbors’ office at 42 Longwater Drive, Norwell, Massachusetts and offered Keller the position of account manager at the Sterling Heights location. [ECF No. 45-4, PageID.2265].
Second, Keller‘s employment with Clean Harbors was conditioned on her agreement to, among other things, sign a confidentiality and non-competition agreement. [See ECF No. 17]. Keller‘s previous filings includes three such agreements that she signed. The 2012 agreement is between her and “Clean Harbors, Inc. (‘Corporation‘), on its behalf and on behalf of its subsidiaries and affiliates,” and Keller is identified as an employee of “Clean Harbors.” [ECF No. 10 PageID 1268-70]. The 2014 agreement is between “Clean Harbors, Inc., (‘Employer‘)” and Keller. [Id., PageID 1271-81]. And the 2015 agreement is between Keller and “Clean
Other evidence shows that Clean Harbors treated Keller as one of its employees. Effective December 2009, Clean Harbors approved a car allowance for Keller at the “MICHIGAN: Sterling Heights Service Cente[r].” [Id., PageID 1293]. Later, Clean Harbors awarded Keller with a certificate of appreciation for her five years of service. [Id., PageID 1297]. An August 2013 email to Keller from Clean Harbors’ chairman and chief executive officer Alan S. McKim, addressed to “All Employees,” described a company-wide alcohol and drug policy. [ECF No. 10-3, PageID 1546]. And in January 2015, Clean Harbors’ corporate card program manager sent Keller a “Private & Confidential” letter to notify her that her company Visa account had been cancelled because of an unpaid balance. [ECF No. 10-3, PageID 1548].
The Court finds that this evidence supports Keller‘s claim that Clean Harbors was her employer for Title IV and ELCRA purposes.
C.
Clean Harbors similarly argues that Keller failed to exhaust her administrative remedies because she identified Clean Harbors
In this circuit, two tests are generally applied to determine if the “identity of interest” exception applies. The first test requires courts to consider if “the unnamed party has been provided with adequate notice of the charge under circumstances which afford him an opportunity to participate in conciliation proceedings aimed at voluntary compliance.” Id. The second test has four factors that the court can consider in determining the relationship between the unnamed and named parties when the charge was filed:
Whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; - Whether, under the circumstances, the interests of a named party are so similar as the unnamed party‘s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings;
- Whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party;
- Whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.
Romain, 836 F.2d at 245 (internal brackets omitted); see also E.E.O.C. v. Care Centers Mgt. Consulting, Inc., 942 F. Supp. 2d 771, 775 (E.D. Tenn. 2013) (same); Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899 F.2d 1473, 1481 (6th Cir. 1990) (identity of interest exists between parent and subsidiary companies that are virtual alter egos).
Clean Harbors does not suggest it lacked adequate notice of Keller‘s EEOC charges, nor assert actual prejudice under the second prong of the test. The remaining factors weigh in favor of finding an identity of interest between Clean Harbors Environmental Services and Clean Harbors, so Keller‘s failure to name Clean Harbors in her EEOC charge should be excused.
Evidence also suggests that Clean Harbors maintained total control over Clean Harbors Environmental Services’ operations. As noted, Clean Harbors processed Keller‘s work application and offered her the job, [ECF No. 10, PageID 1291, 1295-96]; Clean Harbors dictated the terms of the noncompetition agreements that Keller had to sign, [Id., PageID 1268-81, 1284-89]; Clean Harbors oversaw Keller‘s car allowance and recognized her years of service, [Id., PageID 1293, 1297]; Keller was forwarded Clean Harbors company-wide alcohol and drug policy, [ECF No. 10-3, PageID
And the interests of Clean Harbors Environmental Services are so aligned with Clean Harbors that, to obtain voluntary conciliation and compliance, it would have been unnecessary to include the Clean Harbors in the EEOC proceedings. Clean Harbors and Clean Harbors Environmental Services share the same corporate address of 42 Longwater Drive, Norwell, Massachusetts. [ECF No. 10-2, PageID 1446, 1456; ECF No. 10-3, PageID 1535]. And most of Clean Harbors Environmental Services’ corporate officers have also been officers of Clean Harbors. From 2009 to 2016, the Clean Harbors Environmental Services officers have been Alan McKim, C. Michael Malm, Janet Frick, James Rutledge, Eric Gerstenberg, Gregory Malerbi, Michael Battles and Michael McDonald. [ECF No. 10-4, PageID 1631-35, 1640]. McKim served as president until 2012 and has remained a director since then. [Id.]. The record evidences that all but Frick and Malerbi have also served on Clean Harbors’ board, and that McKim is Clean Harbors’ founder, board chair, president and CEO, and has owned more than 85% of the stock during the
The Court thus concludes that an identity of interest exists between Clean Harbors and Clean Harbors Environmental Services.
D.
Clean Harbors argues that Keller cannot pursue claims for acts of discrimination or retaliation before her January 2016 termination. Because only EEOC charges of retaliation and discrimination filed within 300 days of the retaliatory or discriminatory incident are actionable, Clean Harbors maintains that the alleged retaliatory or discriminatory actions against Keller occurring before September 21, 2015 are time-barred. See Cantu v. Michigan Dep‘t of Corr., 653 F.Supp. 2d 726, 736 (E.D. Mich. 2009). Keller argues that she can use the time-barred alleged discriminatory and retaliatory acts, the re-assignments of her accounts, as background evidence in support of her remaining claimed discriminatory and retaliatory act, the 2016 termination. “[T]he Supreme Court has stated that an employee is not barred ‘from using the prior acts as background evidence in support of a timely claim.‘” Webb v. Paducah Bd. of Educ., 2018 WL 912499, at *4 (W.D. Ky. Feb. 15, 2018) (quoting Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). Keller may use the account transfers as background evidence to support her claim that her termination was based on discrimination or retaliation.
E.
Keller brings gender discrimination claims under Title VII and ELCRA. Gender discrimination claims brought under the ELCRA are analyzed under the same standards as claims of gender discrimination brought under Title VII. Williams v. Serra Chevrolet Automotive, LLC, 4 F.Supp.3d 865, 873 (E.D.Mich. 2014). The Court will therefore analyze both gender discrimination claims under the standard for Title VII discrimination claims.
Under Title VII, it is an “unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin.”
Keller may establish a prima facie case of gender-based disparate treatment by showing that she: (1) is a member of a protected class, (2) was subjected to an adverse employment action, (3) was qualified for the job, and (4) was replaced by someone outside the protected class or treated differently than similarly situated male employees for the same or similar conduct. Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 589 (6th Cir. 2014). If she “establishes a prima facie case of gender discrimination, the burden of production shifts to the defendant to provide a legitimate, nondiscriminatory reason for the employment action.” Humenny v. Genex Corp, 390 F.3d 901, 906 (6th Cir. 2004). If the defendant employer satisfies this burden of production, “the plaintiff must then produce evidence that the defendant‘s proffered reason is a pretext for discrimination.” Id.
Clean Harbors argues that Keller cannot establish the fourth element of her prima facie case, which requires her to show that she was replaced by someone outside the protected class or that similarly situated male co-workers were treated more favorably. Clean Harbor also argues that, even if Keller could establish the fourth element, she cannot show that her
Keller asserts she was discriminated against based on her gender because she was replaced by a new male employee, hired from outside the company within weeks of her termination, despite Clean Harbors’ claim that Keller was terminated as part of a workforce reduction and reorganization. [ECF No. 61, PageID.3449]. But Keller relies solely on conjecture to satisfy the fourth element of her prima facie case. She cites Clean Harbors’ 2015 annual shareholders’ report announcing the addition of 60 sales positions company-wide for 2016, but presents no evidence to support the allegation of a local new hire.
“A person is considered replaced only when another employee is hired or reassigned to perform the plaintiff‘s duties. A person is not considered replaced when her duties are absorbed by another person or when the work is redistributed among other existing employees already performing related work.” Geiger v. Tower Automotive, 579 F.3d 614, 623 (6th Cir. 2009) (citing Barnes v. GenCorp, 896 F.2d 1457, 1465 (6th Cir. 1990)). Former Clean Harbors Environmental Services President, David Parry, testified that Keller‘s duties were absorbed by other existing Clean Harbors employees after her termination. [ECF No. 62-2, Parry Decl., ¶4].
Keller also claims she was discriminated against based on her gender because she was treated differently than her similarly situated male colleagues. She alleges that her most lucrative accounts were transferred from her and assigned to male co-workers. [ECF No. 61, PageID.3443-3445]. She argues that these actions were adverse because they diminished her income, and because they significantly undercut her revenue performance—a key indicator Clean Harbors relied on in selecting her for termination in the workforce reduction and reorganization.
Other than her subjective opinion and belief, Keller presents no evidence that similarly situated male co-workers were treated more favorably than her. Contrary to her conjecture that she was disproportionately affected by the shuffling of accounts, key members of Clean Harbors’ management, including Keller‘s direct supervisor and the Clean Harbors Environmental Services president, all testified that it was common practice to reassign customers and territories among sales managers. [ECF No. 45-3, Bayuk Decl., ¶¶7-8; ECF No. 45-6, Parry Decl., ¶6]. Those witnesses said that Keller‘s male co-workers expressed the
Keller has not come forward with any admissible evidence to rebut that testimony or to otherwise support her claim that she was treated less favorably than her male counterparts relative to customer and territory reassignment. Mere subjective beliefs cannot create a genuine issue of material fact on the disparate treatment element of her prima facie gender discrimination case. See Williams, 4 F. Supp. 3d at 875 (citing Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008)).
And even if Keller had successfully made out a prima facie case of gender discrimination because of disparate treatment, Clean Harbors has stated legitimate, nondiscriminatory reasons for the adverse action against Keller. Clean Harbors commonly moved accounts between sales employees to balance workload, geography and customer needs. [ECF No. 45-3, Bayuk Decl., ¶6; ECF No. 45-6, Parry Decl., ¶6]. The burden thus shifts back to Keller to show that the articulated reasons were pretextual.
F.
Keller asserts that her continued removal from lucrative accounts and her termination were in retaliation for protesting discriminatory account assignment practices. As with the gender discrimination claims, her retaliation claims are brought under Title VII and the ELCRA respectively, and the McDonnell Douglas burden-shifting framework applies to each of these claims. See Bailey, 2017 WL 3616478, at *16. To establish a prima facie case of retaliation, a plaintiff must establish that (1) she engaged in protected activity, (2) defendants knew of her protected activity, (3) defendants then took an adverse employment action against her, and (4) there is a causal connection between the protected activity and the adverse employment action. Williams, 4 F. Supp. 3d at 877. Clean Harbors argues
“Circumstantial evidence can support a reasonable inference of the decisionmaker‘s knowledge if the evidence is comprised of specific facts and not merely conspiratorial theories, flights of fancy, speculations, hunches, intuitions, or rumors.” Evans v. Prof. Transp., Inc., 614 F. App‘x 297, 300 (6th Cir. 2015) (citations and internal quotation marks omitted). A plaintiff cannot establish the second element of the prima facie case of retaliation merely by showing that the defendant had “general corporate knowledge” of the alleged protected activity; she must show that the decisionmaker knew of her involvement in the protected conduct. Id. at 300-301 (citing Frazier v. USF Holland, Inc., 250 F. App‘x 142, 148 (6th Cir. 2007)).
Keller acknowledges both that David Parry decided to terminate her employment with Clean Harbors and that she never complained to Parry about discrimination or retaliation. [ECF No. 45-2, Keller Dep., PageID.2256-2257]. She testified that she “assumed” Parry was aware of her complaints based on his role in approving bonuses and decisions on account management, but conceded that she had no information or evidence that Parry knew she was complaining of discriminatory account
G.
Keller also alleges that Clean Harbors violated the EPA. “The EPA prohibits employers from paying an employee at a rate less than that paid to an employee of the opposite sex for performing equal work.” Beck-Wilson v. Principi, 441 F.3d 353, 359 (6th Cir. 2006). “[T]o establish a prima facie case of wage discrimination under the EPA, plaintiffs must show that an employer pays different wages to employees of opposite sexes for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” Id. (internal quotation marks omitted). Clean Harbors maintains that Keller has advanced no admissible evidence to support a prima facie case of wage discrimination, and that she has abandoned that claim by failing to address it in her response to its motion for summary judgment.
IV. Conclusion
The Court RECOMMENDS that Clean Harbors’ motion for summary judgment [ECF No. 45] be GRANTED.
s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge
Dated: April 30, 2019
NOTICE TO THE PARTIES REGARDING OBJECTIONS
Either party to this action may object to and seek review of this report and recommendation, but must act within fourteen days of service of a copy hereof as provided for in
Each objection must be labeled as “Objection #1,” “Objection #2,” etc., and must specify precisely the provision of this report and recommendation to which it pertains. Not later than 14 days after service of objections, the non-objecting party must file a response to the objections, specifically addressing each issue raised in the objections in the same order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc. The response must be concise and proportionate in length and complexity to the objections, but there is otherwise no page limitation. If the Court determines that any objections are without merit, it may rule without awaiting the response.
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court‘s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 30, 2019.
s/Marlena Williams
MARLENA WILLIAMS
Case Manager