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Sex-plus claim based on ‘single mother’ comments fails but retaliation claim advances

By Kathleen Kapusta, J.D.

Granting summary judgment against an employee’s state-law sex-plus discrimination claim, a federal district court in Michigan found her supervisor’s comments about the employee’s status as a single mother were not direct evidence of discrimination. Nor was she any more successful under the circumstantial evidence approach. After first concluding that a proper comparator may only include a person outside of the protected class who has the same “plus “characteristic as the plaintiff, the court found she failed to show that similarly situated male comparators were treated more favorably. And while her hostile work environment claim also failed, her Title VII and state-law retaliation claims advanced (Spink-Krause v. Medtronic, Inc., October 23, 2017, Cox, S.).

Hired as a sales associate in 2001, the employee, a single mom, was promoted to area sales manager (ASM) that same year, a position she held until her termination 14 years later. During that time, she never received a written warning or write-up of any kind until she complained about her supervisor in 2014. In April of that year, she complained to HR that he had called her on vacation, yelled at her, and threatened her with termination. He also purportedly told her that “a single mother should not be doing this job,” a comment he had repeatedly made to her. The employee also informed HR that he recently told an account representative who had asked for her business card, “Oh, don’t [w]orry about it, if you want to find her number, it’s on the bathroom wall.”

Don’t contact HR. Shortly thereafter, her supervisor told her never again to contact anyone in HR. The next month, a new ASM was hired and the company created an expansion territory for her by taking accounts from the employee and another ASM. According to the employee, her supervisor told her he decided how to divide up the territories. As a result of the realignment, she lost one of her oldest accounts and her remaining accounts. That same month, her supervisor informed his boss about a customer complaint against the employee. She was put on a performance improvement plan in December and was fired several months later.

Sex-plus discrimination. Asserting a sex-plus discrimination claim under Michigan’s Elliott Larsen Civil Rights Act (ELCRA), the employee alleged that on more than one occasion, her supervisor discussed her breasts, asked to see pictures of them, and told her they looked great since she had implants. Although she contended that the supervisor’s “single mother” comments were direct evidence that sex was a motivating factor in her PIP and termination, the court disagreed, finding that none of the comments required the conclusion, without any inferences, that the company took the adverse actions because she was a female with children.

Split. Under the circumstantial evidence approach, the company, citing Philipsen v. University of Michigan Board of Regents, argued that her sex-plus claim failed because she could not identify any male comparators (single or married) with children who were treated differently than she was. In Philipsen, like here, the second characteristic identified in the plaintiff’s complaint was having children. In that case, the court, observing that the Sixth Circuit has not directly addressed the issue, noted a split over whether the proper comparator may only include a person outside of the protected class who has the same “plus characteristic” as the plaintiff or whether the comparator may include any person who lacks the “plus” characteristic.

Noting that the Philipsen court was persuaded by those cases “that require the comparator to be outside of the protected class,” the court here agreed, reasoning that if the employee were “allowed to take her sex discrimination claim to trial by showing that she was treated differently than a female who does not have children, then the claim she would present to the jury would be a parental discrimination claim—not a gender discrimination claim.” Thus, because she failed to show that similarly situated male comparators were treated more favorably, her claim failed.

Hostile work environment. Turning to the employee’s hostile work environment claim, the court noted that the ELCRA requires the harassment to be sexual in nature. Therefore, to the extent she asserted she could base it on the supervisor’s alleged “single mother” comments, the argument failed because those comments were not of a sexual nature. Further, she did not dispute that she never reported his alleged comments about her breasts. As to her attempt to base her claim on the bathroom wall comment, the court pointed out that while it was inappropriate, it was not enough to support a hostile work environment claim.

Retaliation. The employee alleged the company retaliated against her in several ways (including reassigning her accounts, placing her on the PIP, and encouraging heightened scrutiny of her performance from her customers). In its motion for summary judgment on her Title VII and ELCRA retaliation claims, however, the company focused on termination alone. And while the company argued that there was an 11-month gap between her complaint to HR and her termination, and thus she failed to establish a causal connection, the court noted that less than a week after she complained, her supervisor warned her against contacting HR again because it made him look bad. The next month, the company hired the additional ASM for the employee’s territory and the supervisor told the employee he was deciding how to divide up the territory. She then had one of her oldest accounts taken away, which increased her drive time and left her with only two accounts in close proximity to her home. She again complained to HR and several months later, her supervisor was one of two decisionmakers who decided to place her on a PIP. The next month, she was threatened with termination and was ultimately fired before the PIP’s stated end date. Thus, a fact issue existed as to whether there was a causal connection between her protected activity and the adverse actions.

There was also evidence of pretext in that before she complained, she was never written up or disciplined for customer complaints or anything else. After she complained, however, her supervisor warned her not to complain again, he hired a new ASM, gave the new ASM her oldest account, and he began soliciting and documenting customer complaints. A reasonable jury, said the court, could conclude that her performance did not actually motivate the company to take the adverse actions against her and that they were taken in retaliation for having complained to HR.