Hearn v. Cnty. of Wayne
| Decision Date | 19 February 2013 |
| Docket Number | Case No. 11-15221 |
| Parties | DENISE HEARN, Plaintiff, v. COUNTY OF WAYNE and DEBORAH BLAIR, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable David M. Lawson
Plaintiff Denise Hearn filed a complaint, later amended, alleging that she was terminated wrongfully from her job as a clerical worker for the County of Wayne, Michigan, and that she was defamed by defendant Deborah Blair, a county attorney in the labor relations department. The complaint includes claims of age and race discrimination and retaliation in violation of federal and state law, hostile work environment, termination in violation of public policy, and slander. After a period of discovery, the defendant moved for summary judgment. The Court heard oral argument on February 14, 2013 and now concludes that the plaintiff has not tendered proof sufficient to establish a genuine issue of material fact on all the essential elements of her claims, and the defendants are entitled to judgment in their favor as a matter of law. Therefore, the Court will grant the motion for summary judgment and dismiss the complaint.
The plaintiff was hired as a Wayne County employee in 1991 and served in various positions over the years, most recently as an Account Clerk II. She was a member of Local 1659 of the American Federation of State, County, and Municipal Employees union (AFSME), and became aunion steward in August 2010. Her employment came to an end on June 27, 2012 when she did not return to work after an extended leave of absence. The defendants maintain that the plaintiff voluntarily quit her job, and the plaintiff contends that she was fired. The plaintiff applied for worker's compensation and duty disability retirement benefits.
The plaintiff alleges that the County fired her because of her age and her race, and retaliated against her because she was a union representative and she had filed a complaint against a coworker for creating a sexually hostile work environment. In addition, the plaintiff alleges that during a clarification meeting December 8, 2010 concerning the plaintiff's work duties, a County labor relations staff attorney, defendant Deborah Blair, made remarks in the hearing of two persons about the plaintiff that were not true.
The events that gave rise to this lawsuit appear to have begun in 2009. The plaintiff had transferred to the accounts payable division. On December 2, 2009, the plaintiff filed a sexual harassment complaint against a coworker who, she said, displayed a screen saver on his computer monitor with photographs of "male friend dressed as a female." She also said that the coworker had discussed this male friend visiting him at Thanksgiving. The plaintiff also stated that she had observed the coworker looking at her when she was in her stocking feet and that she believed the coworker had a foot fetish, which made her uncomfortable. At oral argument, plaintiff's counsel asserted that the coworker took photographs of the plaintiff walking in the office in her stocking feet, but the record is utterly devoid of any factual support for that assertion.
The plaintiff did testify that she was uncomfortable with sitting near this coworker. She sent an email regarding the same coworker to Elois Lynch, the plaintiff's department manager, on May 26, 2010, complaining that the coworker's pants were off his hips, The plaintiff also stated that the coworker's pubic hair was exposed and that he passed gas frequently. Ms. Lynch responded that the plaintiff could move her seat.
According to the plaintiff, she filed three complaints because the coworker's behavior was escalating. The plaintiff says that her supervisor, Greta Johnson, brought in underwear for the coworker after the plaintiff complained about his exposed buttocks. However, the plaintiff was told that the coworker was permitted to keep the screen saver, which Ms. Lynch believed was a picture of a woman and that it was a family picture. Ms. Lynch also testified that the coworker was asked to cover up and that he started wearing belts. The plaintiff points to her complaints as one instance of protected conduct that she believes provoked retaliation by Wayne County.
The plaintiff also alleges that at some point (it is not clear when), Ms. Lynch made three age-related comments. Ms. Lynch allegedly said that the plaintiff was slow because she was old, that the plaintiff looked younger than Ms. Lynch even though the plaintiff had more grey hair, and that the plaintiff was the oldest person on the floor. The plaintiff thinks that at least one of these comments may have been made in December 2010. She did not lodge complaints about those comments; Ms. Lynch denies making them. However, the plaintiff believes the comments are either direct or circumstantial evidence of age discrimination.
In August 2010, the plaintiff became a steward for AFSCME. Beginning in September 2010, the plaintiff submitted a series of requests for union business leave. According to Jenilyn Norman, requests for union leave were approved unless there was a pressing need for workers in the department or granting the request would result in leaving the office short-staffed. The plaintiff's September 14, 2010 request for leave to complete union business was denied because the plaintiffwould not be able to complete her work; the denial indicated that time off would be approved when the plaintiff's workload was complete. The plaintiff's request for union business leave dated September 24, 2010 was approved. The requests for leave on October 4, 5, and 6, 2010 were denied for the stated reason that it was a critical year-end processing week and the plaintiff was needed in the office until the year-end closing date of October 7, 2010. The plaintiff's request forms always included a note that they were "sign[ed] under protest; not able to perform sworn union steward obligations," even if the request were granted. The plaintiff's requests for leave on October 8 and 22, 2010 and November 10 and 12, 2010 were approved.
On October 22, 2010, the plaintiff was given a written reprimand with an effective date of October 20, 2010, because the plaintiff refused to make copies of checks when directed by a superior. Apparently, the checks were on the desk of a coworker — a Caucasian woman — and the plaintiff protested having to make the copies herself when the other employee could do the task. The plaintiff filed a grievance arguing that the reprimand was punitive, a violation of the collective bargaining agreement, and without just cause. According to the plaintiff, it was not her job to copy the checks. Plaintiff's counsel explained at oral argument that the reprimand was the sole instance of adverse action that supports the Title VII race discrimination claim. She says that is one instance that supports the ADEA claim as well.
Also on October 20, 2010, the plaintiff was subpoenaed to appear before the State Office of Administrative Hearings and Rules on October 25, 27, and 29, 2010 to testify in connection with her union steward duties. The plaintiff testified at deposition that she was told by Jenilyn Norman, another supervisor, that if she left work to comply with the subpoena she would be jeopardizing her job, that she was not to leave, and that if she did she would be leaving her job unprotected.However, the plaintiff was able to leave work to testify. The plaintiff testified that the day after she finished testifying, Ms. Norman accused her of stealing time by inaccurately reporting her arrival time. However, the plaintiff stated that she had reported her check-in time inaccurately by mistake, she previously had informed her manager, Eloise Lynch, that she had forgotten her password for the time clock system, and therefore she had been unable to fix her time. The plaintiff testified that Ms. Norman tore up a written reprimand that she had prepared and stated "then just let it go and just pay more attention to getting your time in." Ms. Norman denies the plaintiff's allegations. The plaintiff contends that Norman's criticism for attending the administrative hearing and reporting time incorrectly amount to additional adverse action that supports her AEDA claim.
On November 15, 2010, the plaintiff sent an email stating that she had to leave work on official union business. Apparently, the plaintiff visited a law office to review some documents that were requested through a subpoena.
On December 8, 2010, county and union representatives attended a meeting designated as a "special conference" to discuss whether job obligations of the workers included carrying county checks between various office buildings in the City-County complex. In attendance were the plainitiff, Lenora Davis, and Tin Turner on behalf of the union and defendant Deborah Blair, Jenilyn Norman, and Arif Rasheed on behalf of Wayne County. During the meeting, the county representatives separated to caucus among themselves. Somehow the union representative was able to record the private caucus — the defendant speculates that one of the union people left an active cell phone in the area — and heard Deborah Blair make derogatory remarks about the plaintiff. The plaintiff became aware of these comments because Tina Turner emailed the recording to her. According to the plaintiff, Blair stated that she "wouldn't trust [the plaintiff] as far as [she] couldthrow her"; that she thought if the plaintiff were entrusted with the checks, she would go to the casino and "goof off," take the checks, throw them away, and say that someone robbed her; and that the plaintiff lied about being related to Tommy Hearns and her daughter's foreign study program.
Defendant Blair testified that she used the casino as an...
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