Plumb v. Abbott Laboratories

• Decision Date: 22 January 1999
• Docket Number: No. 97-CV-60306-AA.,97-CV-60306-AA.
• Parties: Michelle PLUMB, Plaintiff, v. ABBOTT LABORATORIES, Kevin Ruse, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 642

60 F.Supp.2d 642

Michelle PLUMB, Plaintiff, v. ABBOTT LABORATORIES, Kevin Ruse, Defendants.

No. 97-CV-60306-AA.

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

January 22, 1999.

Julia Sherwin, Detroit, MI, for plaintiff.

Camille S. Miller, Lewis & Munday, Detroit, MI, for defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

STEEH, District Judge.

This action arises out of plaintiff's charges of sexual harassment, disability discrimination and intentional infliction of emotional distress under state law against her former employer and supervisor. Defendants removed on the basis of diversity jurisdiction. Now before the court is defendants' motion for summary judgment. On January 19, 1999, the court heard oral argument on the motion. For the reasons stated below, defendants' motion shall be granted.

BACKGROUND

A. Jurisdiction

Plaintiff originally filed her complaint, which alleges solely state law claims, in Monroe County Circuit Court. The original complaint named four defendants: (1) Abbott Laboratories, an Illinois corporation, (2) Ross Products, a Michigan corporation, (3) Kevin Ruse, an Ohio citizen, and (4) Tom Mack, an Ohio citizen. Defendants removed on the basis of diversity contending that Ross Products is not a separate

Michigan corporation but is merely a division of Abbott Laboratories (Abbott). The court ordered plaintiff to show cause whether complete diversity of citizenship did in fact exist. Plaintiff responded that the president of Ross Products, a Michigan corporation, had provided her with satisfactory documentation that it was not involved with Abbott or her employment. Thus, plaintiff dismissed Ross Products from the lawsuit and admitted that the court's exercise of diversity jurisdiction was proper. Defendant Mack was dismissed from this lawsuit by stipulation on October 19, 1998. The only remaining defendants are Abbott and Kevin Ruse and they have filed the joint motion for summary judgment addressed in this opinion.

B. Alleged Sexual Misconduct

Plaintiff Michelle Plumb is a dietician who worked as a sales representative for defendant Abbott in its Ross Products Division beginning in 1986. Her responsibilities were to market Abbott's nutritional products to medical facilities such as hospitals and nursing homes. In 1994, plaintiff transferred her sales territory from the Grand Rapids area to the Northern Ohio area so that she and her husband and children could relocate to Monroe, Michigan in order to be near her parents and other family members. At the time of the transfer, plaintiff was required to interview with the Ross district manager in Ohio, Kevin Ruse, who later became her direct supervisor. Plaintiff's interview concluded successfully and plaintiff was allowed to relocate her sales territory to an area covering the region spanning from Cleveland to Northern, Indiana. She began covering the new territory in June, 1994.

According to plaintiff, her supervisor Ruse made several unwanted sexual advances towards her, and when those advances went unfulfilled, Ruse retaliated against her first by questioning and criticizing her job performance, and later, by refusing to accommodate her back injury. In terms of Ruse's alleged sexual advances, plaintiff accuses Ruse of leaving kissing sounds on her voice mail. She testified at her deposition that Ruse asked her how her husband felt about the sounds and she responded by asking him if his wife would approve. Plaintiff contends that after this conversation occurred, Ruse began questioning her business expense reports and accused her of charging personal matters to the company. Plaintiff also accuses Ruse of making sexual overtures to her by writing personal notes on sales invoices, including the following notes, which are attached as exhibits to plaintiff's response brief:

1. "Yo Baby"

2. "ALL MY LOVE, Kevin"

3. "Ooh! LET'S TALK ABOUT THE OPPORTUNITIES Ahead!"

4. "Love is in the Air, Kevin"

5. "Love, Kevin" within a heart and arrow drawn through it.

6. "What is the Potential? Love, Kevin" (Plaintiffs Ex.1). Defendants do not contest the authenticity of the notes, but respond that Ruse made similar encouraging notes to all sales representatives, including both men and women, and thus, no sexual reference directed at plaintiff could be inferred. Plaintiff also contends that Ruse told her she was getting prettier with age. Ruse admits he made the statement in response to plaintiff's own statement that childbirth and cigarette smoking had diminished her appearance.

Plaintiff further claims that Ruse intimidated her by telling her about an incident where he physically assaulted a restaurant employee. Defendants claim that Ruse told the story to male and female representatives. She further claims that when she was driving Ruse in her car, he placed his head in her lap and pressed his hand on her foot, which was on the gas pedal, to accelerate the vehicle. Defendants contend that this incident, if it occurred, was meaningless, as Ruse stepped on male sales representatives' feet when they were driving as well in order to hasten their driving.

C. Plaintiff's Back Injury

In April, 1992, plaintiff injured her back when lifting defendants' product out of her trunk. She took time off work, attended physical therapy and returned to work with no restrictions. On June 24, 1995, plaintiff claims she reinjured her back when lifting defendants' product into her vehicle. Plaintiff continued working until August, 1995 when she began treating for her back injury and began a three-month medical leave of absence.

D. Report of Sexual Harassment

While on leave, plaintiff informed her employer's human resource manager Judy Stando that Ruse had sexually harassed her. Stando told plaintiff that she needed to file a written complaint for an investigation to be conducted, but plaintiff declined to so claiming she feared retribution from Ruse if she did so. Plaintiff specifically asked Stando not to pursue or investigate the matter. (Defendants' Ex. A at 138-41).

E. Plaintiff Returns to Work

On November 20, 1995, plaintiff returned to work with the restriction that she not lift anything greater than 10 pounds and that she limit her sitting and driving times. As an accommodation to her medical restrictions, Abbott allowed plaintiff to ship product samples to her customers using United Parcel Service (UPS). Ruse contends that he had no knowledge of this accommodation, but plaintiff vigorously disputes this point. Plaintiff claims that Ruse later barred her from using UPS to ship product in retaliation for her rejection of his sexual overtures on January 25, 1996. On that date, plaintiff was scheduled to spend the night at a hotel where a district meeting was scheduled the next day because she lived more than 150 miles from the site. According to Ross policy, hotel accommodations were provided to sales representatives who lived more than 150 miles from a meeting location. Although Ruse lived within the 150 mile radius, he arranged to spend the night at the hotel and invited plaintiff to join him for dinner at the hotel the night before the event.

Feeling uncomfortable with what she perceived to be an invitation for a romantic encounter, plaintiff asked her husband to join them as he had been in the same area on business. Plaintiff met Ruse for dinner and after about twenty minutes, her husband arrived to join them. Plaintiff does not allege that Ruse made any untoward remarks nor does she contend that he asked her to sleep with him or to engage in any other type of sexual relations, however that word might be defined, during the time that they were alone. Plaintiff contends that Ruse's friendly demeanor disappeared, however, when her husband arrived. At the district meeting the next day, plaintiff contends that Ruse bragged to her about being thrown out of a strip bar, and sat underneath a table next to her feet during a meeting. On February 1, 1996, plaintiff contends that Ruse told her he was uncomfortable with her husband joining them for dinner and told her that she could no longer ship via UPS as it violated company policy which required that representatives personally deliver product in order to encourage personal contact with customers. Plaintiff contends that Ruse ended Abbott's policy of allowing her to ship via UPS in retaliation for rebuking his advances.

Ruse told plaintiff to break down the cartons of containers, carrying small loads which weighed less than 10 pounds at a time. On February 14, 1996, Ruse sent all sales representatives a memo stating that no drop shipping of product, except those with his prior approval, would be allowed. On that same date, plaintiff's doctor faxed Ruse and Abbotts' human resources department a letter recommending that plaintiff be allowed to use UPS to deliver product to accommodate her back condition. Shortly thereafter, plaintiff quit working and began receiving worker's compensation again. On April 19, 1996, plaintiff submitted to an independent medical examination and the examining physician concluded that plaintiff was fit to return to work without restriction. On April 26, 1996, Ruse telephoned plaintiff to tell her that he heard she was returning to work. Plaintiff reported to work on April 29, 1996, but returned home allegedly due to back pain. Once again, she was placed on medical leave and received worker's compensation.

In early August, 1996, plaintiff was notified that if she did not report to work by August 18, 1996 she would be terminated based on the independent medical evaluation that she was fit for work, and the findings of a private investigator who had videotaped her carrying product on behalf of her husband's sales activities for an electronic parts manufacturer. Plaintiff did not return to work. Since leaving her employment for Abbott, plaintiff has not secured new employment but is attending Wayne State University part-time where sh...