Gibbs v. Voith Indus. Servs., Inc.

• Decision Date: 09 October 2014
• Docket Number: Case No. 13–cv–13476.
• Citation: 60 F.Supp.3d 780
• Parties: Linda GIBBS, Plaintiff, v. VOITH INDUSTRIAL SERVICES, INC. and Ralph Ilardi, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

60 F.Supp.3d 780

Linda GIBBS, Plaintiff

v.VOITH INDUSTRIAL SERVICES, INC. and Ralph Ilardi, Defendants.

Case No. 13–cv–13476.

United States District Court, E.D. Michigan, Southern Division.

Signed Oct. 9, 2014.

Kevin J. Watts, The Oakland Law Group, Barry A. Seifman, Seifman and Guzall, Farmington Hills, MI, for Plaintiff.

Kathryn S. Wood, Dickinson Wright, Detroit, MI, Stephen L. Richey, Thomson Hine LLP, Cincinnati, OH, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [13]

LAURIE J. MICHELSON, District Judge.

Plaintiff Linda Gibbs alleges that her former employer, Defendant Voith Industrial Services, and former supervisor, Defendant Ralph Ilardi, violated state and federal law by changing her work assignment, denying her training, and otherwise harassing her after she returned to her janitorial position from double knee surgery. She claims that Defendants discriminated against her based on her age and gender, created a hostile work environment, and retaliated against her in violation of the Elliott–Larsen Civil Rights Act, Michigan Compiled Laws §§ 37.2101 et seq., and retaliated against her for taking medical leave in violation of the Family and Medical Leave Act, 29 U.S.C. § 2611. She also alleges that Defendant Ilardi committed torts against her. This matter is before the Court on Defendants' motion for summary judgment on all counts. (Dkt. 13.)

Gibbs uses her narrative of the months following her knee surgeries to support a number of employment-discrimination claims. The Court finds that only two, the age-discrimination and the FMLA-retaliation claims, present genuine issues of material fact. The others fail either because Gibbs has not tied allegedly adverse actions to her age or gender, or because Gibbs has not presented evidence of a materially adverse action at all. And Ilardi's actions towards Gibbs simply do not rise to the level of intentional infliction of emotional distress, assault, or battery under Michigan law. Therefore, the Court GRANTS IN PART and DENIES IN PART Defendants' motion for summary judgment.

I. FACTUAL BACKGROUND

The following facts are undisputed for the purpose of Defendants' motion unless otherwise noted.

Plaintiff Linda Gibbs is a former janitorial employee of Defendant Voith Industrial Services (“Voith”). She was over fifty years old when hired by Voith in November 2008 (Dkt. 13–4, Deposition of Linda Gibbs, at 11 [hereinafter “Gibbs Dep.”].) She worked under the supervision of Defendant Ralph Ilardi, who was also over fifty. (Id. at 18.) Her job responsibilities included dusting and vacuuming offices, mopping and waxing floors, sanitizing restrooms, and maintaining the sidewalk at a Ford Motor Company office and storage facility. (Id. at 27–29.)

Gibbs slipped and injured her left knee while changing a water dispenser on the job on October 22, 2011. (Id. at 20, 27.) She was the “first person to get injured” at her plant in some time. (Id. at 79.) Per Voith's internal policies, Ilardi directed her to an independent clinic, Concentra, whose physicians issued work restrictions consisting of “[n]o walking long distances [and] no standing for long periods of time.” (Id. at 23.) The day she returned from the clinic, Ilardi told her to do her regular job for the rest of the day. (Id. at 24.) Ilardi also commented that people over fifty “take longer to heal” and that Gibbs should be exercising to help speed the recovery process. (Id. at 18.) The next day, Ilardi accommodated her Concentra restrictions by assigning her to office filing work and shampooing furniture and carpets with a “home type” device (meaning a smaller device with a smaller water tank). (Id. at 34–35.) But Gibbs did not feel that the shampooing was an appropriate accommodation because her knee was still swollen. (Id. at 37.) She also objected to having to carry jugs of water to refill the shampoo device as she worked. (Id. )

Gibbs attended ten sessions of physical therapy at Concentra as required by Voith's policies and then elected to see her regular doctor. (Id. at 38.) During the intervening week, Ilardi assigned Gibbs to her regular job because her restrictions from Concentra had expired. (Id. at 40.) Her own doctor ordered knee surgery and while she was on leave preparing for the surgery, Gibbs injured her other knee. (Id. at 22–24.)

In the meantime, Ilardi miscalculated Gibbs' total amount of leave and, in April 2012, mistakenly informed her that she had been terminated and her insurance cancelled under Voith's leave policies. (Dkt. 13–6, Deposition of Ralph Ilardi, at 37 [hereinafter “Ilardi Dep.”].) Because her insurance was due to lapse on April 30, Gibbs had her knee surgeries earlier than she had planned. (Gibbs Dep. at 56.) She was without insurance coverage from April 30 to May 23, 2012, the day she would ultimately return to work. (Id. ) As a result, she was unable to undergo physical therapy for her second knee during this time. (Id. at 57.) At some point, Ilardi's mistake was discovered and corrected by a union representative and Gibbs was told she had not, in fact, been terminated and that her insurance would be reinstated upon her return to work. (Id. at 64.)

Gibbs did not have any restrictions when she returned to work on May 23. Because of her knee issues, however, Ilardi gave her a “light duty” assignment to sweep an annexed area of the facility (“the Annex”) along with another employee. (Ilardi Dep. at 38; Dkt. 13–2, Ilardi Decl. at ¶ 7.) Gibbs was assigned to the Annex full-time. (Gibbs Dep. at 94.) Gibbs, her union representative, and a former co-worker say that the Annex was considered to be a punishment assignment among Voith workers. (See Gibbs Dep. at 95; Dkt. 14–3, Fisher Aff., at ¶ 7–8; Dkt. 14–4, Perry Aff., at ¶ 13.) The former co-worker, Jan Fisher, avers that she was assigned to the Annex “as [her] punishment” after returning from shoulder injury. (Fisher Aff. at ¶ 9.) The Annex is approximately 20,000 square feet without any windows or fans, and the lights are motion-activated. (Gibbs Dep. at 65). This large area was known to contain rats, bats, pigeons, ducks, and raccoons. (Id. at 95.) While in the Annex, Gibbs had to deal with and clean up after these unwelcome inhabitants; indeed, at one point she was chased down an aisle by a rat. (Id. at 95.)

Three weeks after Gibbs' return to work, Voith also asked her to complete a fitness for duty examination pursuant to its FMLA policies. (Id. at 76; Gibbs Dep. Ex. 6 at 24.) She was required to wear a heart monitor during the exam, a requirement she did not understand. (Gibbs Dep. at 76.) But she did pass the exam. (Id. at 76.) Gibbs says that she was aware of at least one other Voith janitorial employee at a different Ford facility who was not required to complete a fitness for duty examination after a knee replacement surgery. (Id. at 9.) After the exam, Ilardi approached Gibbs as she was cleaning a women's restroom and asked her to sign some papers, which she did not want to do before speaking with her union representative. (Id. at 79.) In response, Ilardi called her a “bitch.” (Id. at 101.)

Throughout this time and during the time period before her injuries, Gibbs says she was denied training for personal burden carriers (vehicles similar to golf carts). A license to operate these vehicles would have allowed her to perform her duties with “less walking and standing” and made her eligible for more overtime. (Dkt. 14, Pl.'s Resp. Br. at 10; Gibbs Dep. at 183.) Ilardi had the authority to administer or deny training for these vehicles. (Dkt. 14–6, Deposition of Paul Antioch [hereinafter “Antioch Dep.”] at 22.) Gibbs testified that in October 2011 she was not given a license to operate this equipment until the day that the license was set to expire, and that Ilardi refused to let her train on the equipment after that point. (Gibbs Dep. at 184.) When she asked to be trained, Ilardi responded that he did not want her to drive. (Id. at 87.) But Gibbs' former coworker averred that Ilardi had commented that Gibbs was “too old to be trained.” (Fisher Aff., at ¶ 3.) Gibbs testified that while she was able to get some overtime hours due to a special arrangement with her union, there were three to four instances where she wanted weekend overtime but was denied due to her inability to operate the burden carrier. (Gibbs Dep. at 89.)

Gibbs eventually filed a union grievance against Ilardi on July 12, 2012. (Id. at 70; Gibbs Dep. Ex. 17.) The grievance read as follows:

Employee Linda Gibbs feels she is being harassed by manager Ralph Ilardi by intimidation where he is alone with her and on occasions in front of other employees. She feels he's trying to force her to quit her job.

(Gibbs Dep. Ex. 17.) The grievance did not contain any specific information about the harassment. (See id. )

The company denied the grievance and ultimately the union declined to pursue the grievance to completion. (Id. ) Gibbs alleges that Ilardi's supervisor Paul Antioch prematurely ended the process and threatened her with discipline if she filed another grievance. (Gibbs Dep. at 121.) Antioch testified that he did have some sort of personal friendship with Ilardi through an intramural hockey league but that he did not remember anything about Gibbs' grievance. (Antioch Dep. at 31–32, 35.) Gibbs also spoke with a Human Resources representative and said that the representative spoke with Ilardi, but that the conversation only resulted in more harassment from Ilardi. (Gibbs Dep. at 73.) Defendants deny both of these allegations and maintain that the grievances did not move forward because they had no merit. (Defs.' Br. at 7 (citing Gibbs Dep. at 71).)

The final incident occurred on August 17, 2012, when Ilardi gave Gibbs a new mesh safety vest (about the size and weight of a t-shirt) while she was in the lunchroom with nine coworkers. (Gibbs Dep. at 13–14.) Defendants characterize this act as a “toss” (Defs.' Br. at 6); Gibbs...