679 F.3d 464 (6th Cir. 2012), 10-2554, Kalich v. AT & T Mobility, LLC

Docket Nº:10-2554.
Citation:679 F.3d 464
Opinion Judge:BERNICE BOUIE DONALD, Circuit Judge.
Party Name:Jeffrey KALICH, Plaintiff-Appellant, v. AT & T MOBILITY, LLC, Defendant-Appellee.
Attorney:Eric I. Frankie, Detroit, Michigan, for Appellant. Richard M. Tuyn, Ogletree, Deakins, Nash, Smoak & Stewart, PLLC, Bloomfield Hills, Michigan, for Appellee.
Judge Panel:Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.
Case Date:May 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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679 F.3d 464 (6th Cir. 2012)

Jeffrey KALICH, Plaintiff-Appellant,

v.

AT & T MOBILITY, LLC, Defendant-Appellee.

No. 10-2554.

United States Court of Appeals, Sixth Circuit.

May 10, 2012

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ON BRIEF:

Eric I. Frankie, Detroit, Michigan, for Appellant.

Richard M. Tuyn, Ogletree, Deakins, Nash, Smoak & Stewart, PLLC, Bloomfield Hills, Michigan, for Appellee.

Before: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Plaintiff-Appellant Jeffrey Kalich filed a complaint against his former employer, Defendant-Appellee AT & T Mobility, LLC, (" AT & T" ), in state court pursuant to Michigan's Elliott-Larsen Civil Rights Act (" ELCRA" ). Kalich alleged that his immediate supervisor David Rich created a hostile work environment by subjecting Kalich to comments that constituted sexual harassment. AT & T removed the action to federal court. On November 2, 2010,

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the district court granted AT & T's motion for summary judgment, finding that Kalich's claims were not actionable under the sexual harassment hostile work environment provisions of ELCRA. Kalich appealed. For the reasons stated herein, we AFFIRM.

I. BACKGROUND

On May 19, 2008, AT & T hired Kalich as a retail store manager in Clarkston, Michigan. Rich, AT & T's area sales manager, was Kalich's immediate supervisor. Rich visited Kalich's store approximately ten times per month. During the course of Kalich's employment, Rich made various comments to Kalich that Kalich found upsetting and offensive. These comments are summarized chronologically as follows:

On June 12, 2008, Rich said to Kalich, " Oh I like your glasses. You should change your name to Virginia or Margaret. No. I like Virginia the best." Throughout the rest of that day, Rich continued to refer to Kalich as Virginia, Margaret, and Peggy in front of other staff members.

On August 7, 2008, Rich made remarks about Kalich's dog, a Yorkshire terrier. Rich asked Kalich, " What kind of dog is that? Oh, how cute. It figures." Rich later said, " That's the perfect dog for you. What's his name? Fluffy, Oliver? Okay. Tell Oscar— I mean Oliver or Fluffy or whatever hello." Thereafter, Rich regularly referred to Kalich's dog by the names of Fluffy or Princess.

On December 11, 2008, Rich said to Kalich, " What? Do you not eat? You are wasting away. Your pants don't even fit you right anymore. You look like a girl." Kalich alleges Rich made these remarks while laughing, staring at Kalich's behind, and staring and pointing at Kalich's pants.

On February 13, 2009, Rich asked Kalich whether the human rights sticker on his vehicle was a " Swedish flag." Rich asked, " What kind of flag is that on your car, a Swedish one?" Despite Kalich's explanation that the sticker was a symbol of equal rights, Rich persisted in referring to it as a " Swedish flag."

On February 23, 2009, Rich told Kalich he should change his name to Peggy, Margaret, Mary Ann, or Susan. Rich then said, " No. I still like Virginia. Or how about Kristine, like your mom?" Rich made these comments in front of Kalich's employees.

On March 16, 2009, Rich said to Kalich, " You should sew Kristine a quilt. Come on, Virginia. You know you can sew. Dear, you know you can do it."

According to Kalich, Rich repeatedly and regularly made comments like those detailed above, but Kalich was only able to make notes of the comments on isolated occasions.

AT & T has a Code of Business Conduct that forbids unlawful harassment of any kind, including sexual harassment. The Code provides internal procedures by which employees can report violations. Rather than pursue these internal options, Kalich retained an attorney in March 2009. Kalich's attorney sent a letter to Ken Gaffga, Rich's supervisor, on March 19, 2009. The letter described Rich's comments and conduct towards Kalich and demanded that the conduct cease immediately. The letter further asked that Kalich " be placed in a work environment free of gender based [sic] harassment" and that " labor relations and/or AT & T's counsel contact me forthwith" regarding resolution of Kalich's complaints.

On March 25, 2009, Rich allegedly called Kalich a necrophiliac, laughed, and stated in the presence of Kalich's employees that Kalich had sex with dead people. Although Kalich had no further contact with

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Rich after this incident, Rich allegedly made similar comments the following day in the presence of several of Kalich's coworkers. Rich later stated that he confused " narcolepsy," a condition from which Kalich apparently suffers, with necrophilia, and that this confusion led him to make a comment about Kalich being a necrophiliac. At the time he made the necrophilia comment, Rich was not yet aware of the letter that Kalich's attorney sent to Gaffga complaining of Rich's comments.

Sometime during the first week of April, Kalich requested a thirty-day leave of absence. Gaffga denied Kalich's request, but authorized Kalich to take six days off. Also in the beginning of April 2009, AT & T's equal employment opportunity (" EEO" ) department began an investigation in response to Kalich's complaint. On April 9, 2009, Gaffga informed Kalich that Rich would be transferred and would no longer oversee operations at Kalich's store. In addition, Rich was given a final written warning for his inappropriate comments and would be required to take classes focused on promoting a professional work environment.

On April 13, 2009, while on his leave of absence, Kalich notified AT & T of his resignation. Kalich explained that the dynamics of the work environment had changed as a result of the EEO investigation, which included interviews with all of the store employees. In addition, Kalich feared that, despite being re-assigned to the supervision of Susan Suppley, he might nevertheless encounter Rich on occasion. Kalich was uncomfortable with the prospect of future encounters with Rich and, therefore, " for mental and physical health reasons ... felt it in [his] best interest to resign." Kalich's last day of employment with AT & T was April 29, 2009.

Kalich contends that Rich's conduct amounted to sexual harassment that created a hostile work environment. In his complaint, Kalich sought to impose liability on AT & T for Rich's conduct pursuant to ELCRA, Michigan's civil rights statute. After the close of discovery, the district court granted AT & T's motion for summary judgment, finding that Kalich had failed to present evidence in support of each element of his claim. Kalich timely appealed.

II. ANALYSIS

We review a district court's order granting summary judgment de novo. Int'l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). Summary judgment is proper " 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." Fed.R.Civ.P. 56(a). After adequate time for discovery and upon motion, summary judgment...

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