Kalich v. AT & T MOBILITY, LLC

748 F. Supp. 2d 712, 2010 U.S. Dist. LEXIS 116747, 2010 WL 4342313
CourtDistrict Court, E.D. Michigan
DecidedNovember 2, 2010
DocketCase 09-14781
StatusPublished
Cited by2 cases

This text of 748 F. Supp. 2d 712 (Kalich v. AT & T MOBILITY, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kalich v. AT & T MOBILITY, LLC, 748 F. Supp. 2d 712, 2010 U.S. Dist. LEXIS 116747, 2010 WL 4342313 (E.D. Mich. 2010).

Opinion

*714 OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

DAVID M. LAWSON, District Judge.

This matter is before the Court on the defendant’s motion for summary judgment seeking dismissal of the plaintiffs claim of sexual harassment in the workplace creating a hostile work environment. The claim is based on state law, and the Court has jurisdiction on the basis of diversity of citizenship. See 28 U.S.C. § 1332. The plaintiff acknowledges that no one employed by the defendant made sexual advances toward him or requested sexual favors. Instead, he contends that his immediate supervisor, David Rich, made unwelcome verbal communication of a sexual nature that created intolerable working conditions. The defendant argues Rich’s comments do not pertain to sex, and sexual harassment claims premised on Rich’s name calling are not actionable. The defendant also argues that it took prompt remedial action upon learning of Rich’s offensive behavior. The Court heard oral argument on October 18, 2010. The Court finds that only one of Rich’s comments could possibly fit the definition of sexual harassment, and although Rich certainly made the work environment intolerable, no rational trier of fact could find that Rich’s comment based on the plaintiffs sex created a hostile work environment. Therefore, the defendant’s motion for summary judgment will be granted.

I.

There does not appear to be much dispute over the facts of the case. The defendant hired the plaintiff on May 19, 2008 as a store manager for the defendant’s Clarkston store, which sold cellular telephones and related products. The plaintiff supervised up to twelve store employees and was responsible for disciplining and motivating the staff, attending to customers’ needs, addressing customer complaints, and managing the business of the retail sales store. The plaintiff also instructed his employees regarding acceptable conduct in the workplace.

David Rich, the defendant’s area sales manager, was the plaintiffs immediate supervisor. Rich visited the plaintiffs store approximately ten times per month. On those memorable occasions, Rich was rude and aggressive to all the store employees; he generally yelled at them and made threatening and fear-inducing comments. The plaintiff testified that Rich “thrived” on that style of “leadership.”

The plaintiff stated that Rich also made various inappropriate comments to him, allegedly in reference to the plaintiffs homosexuality. Rich repeatedly referred to the plaintiff as a female, told him he should change his name to a girl’s name, referred to the plaintiffs small dog as “Fluffy,” and told the plaintiff he looked like a girl. On one occasion, Rich told the plaintiff that his glasses made him look like a librarian, and he called the plaintiff Virginia, Margaret, Peggy, Susan, and Christine in front of coworkers.

The plaintiff admits that Rich also called the plaintiff by male-oriented names such as Irving, Potter, Simon Rabinovitz, and Superman; and gender-neutral names such as “E-peg,” which referred to the empty display pegs in the plaintiffs store, meaning store inventory had not been replenished; and “Pebbles,” because the plaintiff complained about someone throwing small rocks at his car. Rich did not make any gender specific or sexual orientation comments to any other employee. The plaintiff admits that Rich never made any noticeable sexual advances or indicated any sexual interest in him.

It is apparent, however, that Rich’s comments were targeted toward the plaintiff because Rich perceived him to be a homo *715 sexual. For example, on several occasions Rich asked the plaintiff if the human rights sticker he displayed on his car actually was the Swedish flag, in order to ridicule the plaintiffs support for gay and lesbian civil rights organizations. He commented that the plaintiffs clothes fit so loosely that he was wasting away and looked like a girl. And he characterized the plaintiff as engaging in feminine activities, like sewing.

The defendant has a code of business conduct that forbids sexual and other unlawful harassment, and the plaintiff knew that he could report any claims of harassment using the defendant’s internal procedures, anonymously if desired. Other employees encouraged the plaintiff to report Rich’s conduct, but the plaintiff refused. The plaintiff contacted an attorney, and on March 19, 2009 his attorney sent a formal complaint letter to Rich’s supervisor regarding Rich’s comments.

On March 25, 2009, Rich told the plaintiff and all of the plaintiffs coworkers that the plaintiff had sex with dead people. Remarkably, the next day Rich returned to the store and continued to tell the plaintiffs coworkers that the plaintiff had sex with dead people and boasted that he made the plaintiff cry because he called the plaintiff a necrophiliac.

The plaintiffs last contact with David Rich was on March 25, 2009, six days after the defendant received the plaintiffs complaint letter. In early April 2009, the defendant’s internal Equal Employment Opportunity (EEO) department initiated an investigation into the plaintiffs complaint and questioned all of the employees at the Clarkston store. During the investigation, Rich was prohibited from having any contact with the plaintiff. As a result of the investigation, the defendant transferred Rich out of the region on April 16, 2009, issued Rich a final written warning, and required him to take classes. The plaintiff requested a thirty-day leave of absence. The defendant could not grant the plaintiffs thirty-day request, but Ken Gaffga (Rich’s supervisor) allowed the plaintiff to take a few days off.

While on leave of absence, the plaintiff determined that he was not happy with the results of the investigation because he feared that he would encounter David Rich on occasion, even though they were not in the same chain of command. On April 13, 2009, the plaintiff voluntarily gave two weeks notice that he would be resigning his employment at the end of the month. The plaintiff returned to work on April 17, 2009 and continued to work through April 28, 2009. The plaintiff offered to continue working through May 2009 if the defendant needed his help.

The plaintiff filed his complaint alleging that the defendant is liable for the hostile work environment created by Rich’s despicable conduct toward him, and therefore accountable for sexual harassment under the Michigan Elliott-Larsen Civil Rights Act. Following the discovery period, the defendant filed the present motion for summary judgment, to which the plaintiff responded.

II.

A motion for summary judgment under Federal Rule of Civil Procedure 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
748 F. Supp. 2d 712, 2010 U.S. Dist. LEXIS 116747, 2010 WL 4342313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kalich-v-at-t-mobility-llc-mied-2010.