Thomas v. Athlete's Foot, Case No. 10-12558
| Decision Date | 20 July 2012 |
| Docket Number | Case No. 10-12558 |
| Parties | LYNETTE THOMAS, Plaintiff, v. THE ATHLETE'S FOOT, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
United States District Judge
Michael Hluchaniuk
United States Magistrate Judge
Plaintiff filed a charge with the Michigan Civil Rights Commission (MCRC) and with the Equal Employment Opportunity Commission (EEOC) on June 23, 2009, alleging that defendant had engaged in discriminatory conduct against her. Both the MCRC and the EEOC dismissed the claim on April 5, 2010. Plaintiff, appearing pro se, filed a complaint in Federal District Court on June 29, 2010, alleging sexual harassment and retaliation pursuant to Title VII of the Civil Rights Act of 1964 and the Michigan Elliot-Larsen Civil Rights Act, MCL 37.2101 et seq. (Dkt. 6). This matter was referred to the undersigned for all pretrial proceedings on February 15, 2011, by District Judge Stephen J. Murphy, III. (Dkt. 9). Defendant filed a motion for summary judgment on October 3, 2011. (Dkt. 11). Plaintiff filed a response in opposition to this motion for summary judgment on October 31, 2011. (Dkt. 14).
For the reasons below, the undersigned RECOMMENDS that defendant's motion for summary judgment be GRANTED in part and DENIED in part.
Plaintiff, Lynette Thomas, was employed as a sales associate at the defendant's business,The Athlete's Foot, at the Jefferson Avenue store, from February 4, 2008 until June 24, 2009.1 (Dkt. 11, Ex. B). The store manager was Mr. Chohdi Mahdouli, and he was directly supervised by Mr. Maher Yousef, who was responsible for the hiring and firing of employees. . The store is co-owned by Mr. Edwan Ikhraiwesh and Mr. Anwar Saleh. (Id. at Ex. B).
Plaintiff alleges that during her employment with the defendant, she was subjected to sexual harassment by her male supervisors, Mr. Mahdouli2 and Mr. Mousa Toma-Hason Zaidat.3 (Dkt. 16 at 4). Specifically, she claims that the two men often directed toward her sexually harassing comments such as, "Your butt is big and looks nice and juicy;" "All black girls are whores, bitches and stay pregnant;" and "We love black girls because they are freaks in bed." (Id. at 5). Additionally, plaintiff claims that her supervisors frequently directed her to secure a gate on the premises for the purpose of watching her and making lewd comments about her physique. (Id). Plaintiff alleges that she informed the men that their comments were unwelcome and inappropriate and insisted that they refrain from making such comments, as they made her extremelyuncomfortable. (Id).
In addition to these near-daily comments, plaintiff alleges the occurrence of a sexual assault by Mr. Zaidat. Plaintiff claims that on June 22, 2009, Mr. Zaidat offered her a ride home from work, which she accepted. (Id. at 5). She requested to be dropped off at her mother's house, but when in the vicinity of this area, plaintiff claims that Mr. Zaidat accelerated the car each time she attempted to exit, thus prohibiting her from leaving. (Id. at 6). Plaintiff claims that Mr. Zaidat then insisted on driving her to her apartment and on accompanying her upstairs. (Id). Once inside her apartment, plaintiff alleges that Mr. Zaidat began to touch her inappropriately, ultimately pinning her to the floor, despite her repeated demands that he leave. (Id.). According to plaintiff, Mr. Zaidat left voluntarily when she threatened to tell her mother about the incident. (Id. at 6-8).
On June 23, 2009, the following day, plaintiff filed a police report alleging sexual assault by Mr. Zaidat. (Id. at 8). Defendant asserts that after conducting an interview with Mr. Zaidat, the police department decided not to investigate this report further and that no charges have been brought. . On informing her family of what had transpired, plaintiff's father went to defendant's Jefferson Avenue store and, in a disgruntled manner, spoke with Mr. Mahdouli and Mr. Zaidat. (Dkt. 16 at 8). According to Mr. Mahdouli, plaintiff's father threatened to shoot him, which prompted Mr. Mahdouli to file his own police report. (Dkt. 11, Ex A, Ex. G). According to plaintiff, Mr. Mahdouli called plaintiff and, placing her on speakerphone in the presence of Mr. Zaidat, her father, and himself, asked her to describe the events of the evening of June 22. (Dkt. 16 at 9). She states that Mr. Mahdouli informed her that if she persisted in her account of the events, she would be fired, an ultimatum that she claims was carried out. (Id. at 6). Both parties agree, however, that Mr. Saleh, on learning of the events,directed Mr. Yousef to offer plaintiff a transfer to the Seven Mile Road store. (Dkt. 11, Ex. B; Dkt. 16 at 9). Plaintiff rejected this offer, she claims, because she feared that Mr. Zaidat's position required him to be present at both stores daily. (Dkt. 16 at 9).
Plaintiff alleges that she was not aware of a sexual harassment policy, nor did defendant have in place a human resources department where she could report her complaints. (Id). Furthermore, she claims that the sexual harassment policy submitted by defendant (see Dkt. 11, Ex. C) is an ex post attempt to create such a policy (Dkt. 16 at 9). The policy specifically states that "The [A]thlete's [F]oot will not tolerate, condone, or allow sexual harassment, whether engaged in by fellow employees, supervisors, associates, clients or other non-employees who conduct business with [T]he [A]thlete's [F]oot." (Dkt. 11, Ex. C). Furthermore, the policy directs that (Id).
The facts and allegations set forth by plaintiff present claims of quid pro quo harassment, hostile work environment, and retaliation in violation of both Title VII of the Civil Rights Act of 1964 (Title VII) and the Michigan Elliott-Larsen Civil Rights Act.4 Defendant argues that these claims must fail because: (1) defendant is not vicariously liable for Mr. Zaidat's actions because he was neither a supervisor nor an employee of defendant; (2) there is no evidence that plaintiff was subjected to any unwelcome sexual advances; (3) defendant had no knowledge of thealleged harassment; and (4) defendant made a reasonable attempt to resolve the problem in a timely manner by offering plaintiff a transfer to another store.
Summary judgment is appropriately rendered "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001). The standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Furthermore, the evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Where the movant establishes the lack of a genuine issue of material fact, the burden of demonstrating the existence of such an issue shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). That is, the party opposing a motion for summary judgment must make an affirmative showing with proper evidence and must "designate specific facts in affidavits, depositions, or other factual material showing 'evidence on which the jury could reasonably find for the plaintiff.'" Brown v. Scott, 329 F. Supp. 2d 905, 910 (6th Cir. 2004). In order to fulfill this burden, the non-moving party need only demonstrate the minimal standardthat a jury could ostensibly find in his favor. Anderson, 477 U.S. at 248; McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, mere allegations or denials in the non-movant's pleadings will not satisfy this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 251.
Quid pro quo sexual harassment occurs "[w]hen a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands . . . [such] that the employment decision itself constitutes a change in the terms and conditions of employment." Burlington Indus. v. Ellerth, 524 U.S. 742, 753-43 (1998). In order to make a prima facie case of quid pro quo sexual harassment, a plaintiff must establish the following five factors: (1) that she is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment was based on sex; (4) that her submission to unwelcome advances was an express or implied condition of receiving job benefits or that her refusal to submit to a supervisor's sexual demands resulted in a tangible job detriment; and (5) the existence of respondeat superior liability. Highlander v. KFC National Management Co., 805 F.2d 644, 648 (6th Cir. 1986).
In the instant case, the first three elements...
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