Russell v. Bronson Heating and Cooling, No. 03-73871.

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtBorman
Citation345 F.Supp.2d 761
Decision Date16 November 2004
Docket NumberNo. 03-73871.
PartiesDiana RUSSELL, Plaintiff, v. BRONSON HEATING AND COOLING, Andrew Bronson, and BCN Services Urban, Inc. Appellee.
345 F.Supp.2d 761
Diana RUSSELL, Plaintiff,
v.
BRONSON HEATING AND COOLING, Andrew Bronson, and BCN Services Urban, Inc. Appellee.
No. 03-73871.
United States District Court, E.D. Michigan, Southern Division.
November 16, 2004.

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Janis Adams, Birmingham, MI, for plaintiff.

Marian Faupel, Ann Arbor, MI, for defendant.

OPINION AND ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT; (2) DENYING DEFENDANT BHC'S MOTION FOR SANCTIONS

BORMAN, District Court Judge.


BACKGROUND:

In this action, Plaintiff Diana Russell ("Plaintiff") brought suit against Bronson Heating and Cooling, Inc., Andrew Bronson, individually, (collectively "BHC") and BCN Services Urban, Inc. ("BCN"). The Complaint contains the following counts:

Count I — Sex Harassment and Discrimination, including Pregnancy Discrimination, under Title VII of the Civil Rights Act of 1964 against all Defendants;

Count II — Retaliation under Title VII of the Civil Rights Act of 1964 against all Defendants;

Count III — Sex Harassment and Discrimination, including Pregnancy Discrimination under Michigan's Elliot-Larsen Civil Rights Act against Defendants Bronson Heating and Cooling, Inc. and Andrew Bronson and BCN Services Urban, Inc.;

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Count IV — Retaliation under Michigan's Elliot-Larsen Civil Rights Act against Defendants BHC and BCN;

Count V — Violations of Entitlements under the Family Medical Leave Act of 1993 against all Defendants;

Count VI — Retaliation and Discrimination under the Family Medical Leave Act of 1993 against all Defendants;

Count VII — Assault and/or Battery against Defendant Andrew Bronson; and

Count VIII — Violation of the Bullard-Plawecki Right to Know Act against Defendants BHC and BCN.

Count VIV — Violations of Entitlements under the Family Medical Leave Act of 1993 against all Defendants.

Plaintiff began employment with BHC on January 5, 1998 as a bookkeeper. (Interrogatory of BHC and Bronson, No. 21). Andrew Bronson ("Bronson") was Plaintiff's direct supervisor from January 2000 until her termination. (Dep. of Bronson pg. 10-11). In early 2000, Plaintiff was promoted to Office Manager by Bronson based upon her experience, loyalty and honesty. (Dep. of Bronson pg. 15).

Around May 1, 2000 BHC and BCN entered into a contract for personnel services. (Plaintiff's Response to BHC Exh. D).1 The Contract's terms dictated that BCN became the employer of record, and BCN was responsible for administering payroll, workers compensation benefits and maintaining personnel and human resource policies and procedures. (Plaintiff's Response to BHC Exh. D, Sec. III). BCN retained the right to hire, fire and discipline all employees under the contract. (Id.). BHC was responsible for day to day supervision of the employees and also had the right to hire, fire and discipline employees under limited circumstances. (Id. at Sec. IV). Bronson testified that his understanding of the agreement was the BHC employees became BCN employees and were leased back to BHC. (Dep. of Bronson pg. 27-28).

BHC and BCN produced an employee handbook which contained BNC's standard policies for the BHC worksite. (Dep. of Bronson pg. 33-34; Plaintiff's Response to BHC Exh. G). The BHC-BCN produced handbook provides for FMLA leave and does not provide for a separate pregnancy leave policy. (Plaintiff's Response to BHC Exh. G, Employee Handbook at 12.). The employee handbook also addressed sexual harassment and discrimination, in language provided by BCN. (Dep. of Bronson pg. 24).

Around January 2001, Plaintiff alleges that Bronson's sex harassment began. Specifically, Plaintiff's allegations against Bronson consist of the following:

1. January 2001, Bronson and Plaintiff drove to an overnight seminar. Bronson informed Plaintiff that he was interested in a personal relationship with her, but it was a double edged sword because of their work relationship. Plaintiff stated she was unwilling to take that chance because of the value of her job and her daughter. (Dep. of Russell pg. 84). Bronson's testimony states she did not give a definitive answer, but when pressed Bronson did indicate that Plaintiff told him she wanted a work relationship only. (Dep. of Bronson pg. 64). Upon reaching the seminar, Bronson had only reserved one room for the both of

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them. (Dep. of Russell pg. 84). Bronson claims it was Plaintiff's idea to share one room. (Dep. of Bronson, pg. 61-62). Plaintiff testified, however, that if they had that conversation about sharing one room, she would not have gone to the seminar. (Dep. of Russell, pg. 86). Further a former employee of BHC, Kristine Fuciarelli BHC testified that she reserved two rooms, one for Plaintiff one for Bronson, and at no time did Plaintiff suggest that she book only one room. (Aff. of Fuciarelli, ¶ 3(a), Exh. H attached to Plaintiff's Brief in Opposition to BHC). She further testified that neither she or Plaintiff contacted the hotel to cancel the reservation and request only one be booked. Id. Thereafter, she testified that Plaintiff called her very upset and informed her that Bronson had cancelled one of the booked rooms. Id. Plaintiff testified she was very distraught about having to share one room with Bronson. (Dep. of Russell, pg. 83).

2. In February 2001, Bronson asked Plaintiff to go on a cruise in which they would share a cabin which Plaintiff refused. (Dep. of Bronson, pg. 71-73; Dep. of Russell pg. 208-209). Plaintiff testified she refused because she did not want to share a cabin with Bronson. (Dep. of Russell pg. 208-209). Plaintiff further testified that Bronson still sent her on the cruise but became upset when he learned she was taking her boyfriend. (Dep. of Russell pg. 209, 211; Dep. of Bronson, pg. 73). Plaintiff testified she again explained to Bronson she was not interested in him. (Dep. of Russell, pg. 211).

3. At this point, Plaintiff states that Bronson began to treat her differently from other employees by imposing unreasonable and last minute deadlines and forcing her to work late and on weekends. (Dep. of Russell, pg. 210; Aff. of Fuciarelli ¶ 3(c), Exh. H attached to Plaintiff's Brief in Opposition to BHC).

4. Plaintiff states that Bronson often called her after work to inquire about her personal life or to ask for dates. (Dep. of Russell, pg. 93, 95, 96.) Plaintiff further states that Bronson also stopped by her home and would call to ask where she was. (Id.). Plaintiff testified after these calls and visits, she feared going home. (Id. at 93, 95, 195). Bronson denied asking who she was with, but thought it was possible he could have called her from outside her home asking where she was. (Dep. of Bronson, pg. 87-88).

5. Bronson sent flowers and a card to Plaintiff in June, 2001. (Dep. of Bronson, pg. 77-78)

6. Bronson often massaged Plaintiff's shoulders without her permission. (Dep. of Russell, pg. 98). Bronson testified that he gave massages to other employees, male and female as well. (Dep. of Bronson pg. 77-78.)

7. Bronson invited Plaintiff to go to his cottage several times, but Plaintiff always refused. (Dep. of Bronson, pg. 80-81). On one occasion, Bronson radioed Plaintiff on BHC's speaker phone to tell her he wished she could enjoy the cottage with him. (Id. at 88-89). Plaintiff again told Bronson she only wanted a business relationship with him, and his comments over the speaker phone made her uncomfortable. (Dep. of Russell pg. 195-196; Aff. of Russell at ¶ 2, Exh. I to Plaintiff's Brief in Opposition to BHC; Dep. of Bronson, pg. 90-91).

8. Bronson told Plaintiff's father that he was interested in her and would

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take good care of her. (Dep. of Russell, pg. 212-213; Dep. of Bronson, pg. 85-86).

9. Bronson became angry when he learned that Plaintiff was attending a rock concert with her ex-husband. (Aff. of Russell at ¶ 3; Aff. of Schroeder, at ¶ 3, Exh. J attached to Plaintiff's Brief in Opposition of BHC). After the concert, Bronson told Plaintiff to dump her ex husband because he would take better care of her and her daughter. Id.

Plaintiff admits that Bronson never kissed or tried to kiss her or made comments about her body. (Dep. of Russell pg. 88).

Plaintiff also alleges that after the harassment began in January 2001, she stated her complaints to Bronson and eventually BCN. Between January and July 2001, Plaintiff testified she continually told Bronson she was not interested in a relationship with him. (Dep. of Russell pg. 202). Plaintiff testified that fear of losing her job caused her to handle her complaint "delicately." (Dep. of Russell pg. 199).

In July 2001, Plaintiff approached BCN Client Services Specialist, Judy Malone ("Malone") about Bronson. (Dep. of Russell pg. 135; Dep. of Malone pg. 7). Malone was BHC's customer service representative and part of its human resource department. (Dep. of Malone pg. 7; Dep. of Bronson pg. 41). Plaintiff claims she told Malone:

A. I told her that Andrew had asked me on the way to the seminar about having a relationship with me. I told her about the room. I told her about everything that had been going on.

Q. What's everything?

A. The phone calls...The phone calls stating that he was sitting outside of my home mailbox, the phone calls telling me — asking where I was, the flowers, the card, asking me to go up north. What else? That's all I can remember right now. But we discussed it, and how I should handle it. She suggested that I write a letter to Mr. Bronson so that I had something in writing and she told me that I needed to come to a determination on continuing working there, whether I could accept this and go on.

Dep. of Russell pg. 135-136.

Malone testified that Plaintiff told her that she wanted to handle it herself, and she did not want to get the human resources people involved. (Dep. of Malone pg. 18). Plaintiff did write a...

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18 practice notes
  • Gibbs v. Voith Indus. Servs., Inc., Case No. 13–cv–13476.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • October 9, 2014
    ...apprehension of such a contact; and (b) [Gibbs was] thereby put in such imminent apprehension.” Russell v. Bronson Heating & Cooling, 345 F.Supp.2d 761, 796 (E.D.Mich.2004) (citing Mitchell v. Daly, 133 Mich.App. 414, 350 N.W.2d 772 (1984) ). In order to succeed on a claim of battery, Gibbs......
  • Dortman v. Aco Hardware, Inc., No. 04-CV-71858-DT.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • June 14, 2005
    ...must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Russell v. Bronson Heating and Cooling, 345 F.Supp.2d 761, 786 (E.D.Mich.2004). "It must be a condition such as `termination of employment, a demotion evidenced by a decrease in wage or salary, a les......
  • Figgins v. Advance America Cash Advance Centers, No. 05-10235.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • March 1, 2007
    ...the child. Here, unlike in Fleming, Plaintiff alleges she was fired because of her pregnancy." Russell v. Bronson Heating and Cooling, 345 F.Supp.2d 761, 783-84 (E.D.Mich.2004). It is apparent from the record that LaBeff s comments related to the plaintiff's anticipated pregnancy-related ab......
  • Harris v. Heritage Home Health Care, Case No. 10–14172.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • March 29, 2013
    ...proceed in their official capacity; individual capacity suits are inappropriate.” In accord Russell v. Bronson Heating and Cooling, 345 F.Supp.2d 761, 782 (E.D.Mich.2004) (Borman, J.) (rejecting the claim that individual was the “alter ego” of employing entity and therefore individually lia......
  • Request a trial to view additional results
18 cases
  • Gibbs v. Voith Indus. Servs., Inc., Case No. 13–cv–13476.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • October 9, 2014
    ...apprehension of such a contact; and (b) [Gibbs was] thereby put in such imminent apprehension.” Russell v. Bronson Heating & Cooling, 345 F.Supp.2d 761, 796 (E.D.Mich.2004) (citing Mitchell v. Daly, 133 Mich.App. 414, 350 N.W.2d 772 (1984) ). In order to succeed on a claim of battery, Gibbs......
  • Dortman v. Aco Hardware, Inc., No. 04-CV-71858-DT.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • June 14, 2005
    ...must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Russell v. Bronson Heating and Cooling, 345 F.Supp.2d 761, 786 (E.D.Mich.2004). "It must be a condition such as `termination of employment, a demotion evidenced by a decrease in wage or salary, a les......
  • Figgins v. Advance America Cash Advance Centers, No. 05-10235.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • March 1, 2007
    ...the child. Here, unlike in Fleming, Plaintiff alleges she was fired because of her pregnancy." Russell v. Bronson Heating and Cooling, 345 F.Supp.2d 761, 783-84 (E.D.Mich.2004). It is apparent from the record that LaBeff s comments related to the plaintiff's anticipated pregnancy-related ab......
  • Harris v. Heritage Home Health Care, Case No. 10–14172.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • March 29, 2013
    ...proceed in their official capacity; individual capacity suits are inappropriate.” In accord Russell v. Bronson Heating and Cooling, 345 F.Supp.2d 761, 782 (E.D.Mich.2004) (Borman, J.) (rejecting the claim that individual was the “alter ego” of employing entity and therefore individually lia......
  • Request a trial to view additional results

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