               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0331n.06
                            Filed: May 11, 2007

                                    Nos. 06-1252, 06-1253

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


TONYA POWELL-LEE,                                      )
                                                       )       ON APPEAL FROM THE
       Plaintiff-Appellant,                            )       UNITED STATES DISTRICT
                                                       )       COURT FOR THE EASTERN
v.                                                     )       DISTRICT OF MICHIGAN
                                                       )
HCR MANOR CARE, HEALTH CARE AND                        )             MEMORANDUM
RETIREMENT CORPORATION OF AMERICA                      )              OPINION
d/b/a HEARTLAND HEALTH CARE CENTER -                   )
PLYMOUTH COURT,                                        )
                                                       )
       Defendants-Appellees,                           )
and                                                    )
                                                       )
DARYL ADAMS,                                           )
                                                       )
       Defendant.                                      )




       BEFORE:        GUY, COLE and McKEAGUE, Circuit Judges.

       PER CURIAM. Plaintiff Tonya Powell-Lee was an employee of defendant HCR Manor

Care in the medical records department at a long-term care facility in Plymouth, Michigan, known

as Heartland Health Care Center – Plymouth Court. On March 24, 2004, she was undisputedly

subjected to sexual harassment by a custodian at Plymouth Court, Daryl Adams, when he exposed

himself to her. Not only was Adams immediately discharged, but plaintiff’s employment terminated
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Powell-Lee v. HCR Manor Care, et al.

shortly thereafter as well. Whether Powell-Lee resigned or was involuntarily discharged is

controverted.

        In this action, she asserts six claims under Michigan law, alleging that her employer HCR

Manor Care (“HCR”) is liable for sex discrimination and sexual harassment, unlawful retaliation,

violation of Michigan’s Whistleblowers’ Protection Act, and intentional infliction of emotional

distress. The district court awarded summary judgment to HCR on all claims, holding that plaintiff

had failed to establish a genuine issue of material fact on any of her claims. In so ruling, the district

court denied plaintiff’s request for leave to amend her complaint so as to add a claim against HCR

for its negligent supervision, retention and training of Adams. The district court’s opinion is well-

reasoned. On appeal, plaintiff has not asserted any argument that is not adequately and properly

addressed in the district court’s ruling. Accordingly, for the reasons that follow, we affirm the

judgment of the district court.

                                                   I

        Plaintiff’s count I sex discrimination claim under Michigan’s Elliott-Larsen Civil Rights Act,

M.C.L. §§ 37.2101 et seq., is premised on the same wrongful conduct by co-worker Daryl Adams

as her count III hostile environment harassment claim. The district court recognized that Michigan’s

Elliott-Larsen Civil Rights Act includes sexual harassment as a form of prohibited “discrimination

because of sex.” See Chambers v. Trettco, Inc., 463 Mich. 297, 310, 614 N.W.2d 910 (2000) (citing

M.C.L. § 37.2103(i)). Because plaintiff has not alleged any form of disparate treatment apart from

Adams’ harassment, the district court concluded that plaintiff’s general sex discrimination claim is



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essentially redundant of and subsumed within her more specific count III claim for hostile

environment harassment.

         The district court’s analysis is clearly proper. If plaintiff were able to prevail on either of the

sexual harassment theories set forth in counts II and III, she would have established that she was

subjected to the only form of “sex discrimination” facially made out by the fact allegations of her

complaint. The separate count I sex discrimination claim is entirely superfluous. To the extent,

moreover, that plaintiff sought to amend her complaint via argument in opposition to the motion for

summary judgment, the district court properly rejected the attempt.              See Tucker v. Union of

Needletrades, Indus. & Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005) (recognizing that the

defendant would otherwise be subject to unfair surprise). We find no error in the district court’s

dismissal of the count I claim.

                                                     II

         The district court awarded summary judgment to defendant HCR on plaintiff’s count II claim

for quid pro quo sexual harassment for lack of evidence that HCR used plaintiff’s submission to or

rejection of Adams’ unwelcome sexual conduct or communication as a factor in decisions affecting

her employment. Plaintiff has not specifically challenged this ruling on appeal, and we find no error

in it.

                                                   III

         Count III of plaintiff’s complaint asserts a sexual harassment claim based on a hostile work

environment theory. That is, plaintiff alleges that HCR, through its failure to effectively respond to

knowledge of Adams’ harassing conduct during the period 2001 to 2004, created a hostile work

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Powell-Lee v. HCR Manor Care, et al.

environment that interfered with her work and culminated in the March 2004 incident that

precipitated termination of her employment. The district court concluded that HCR could not be

liable in respondeat superior because the record demonstrated that HCR investigated and took

prompt and appropriate remedial action when notified of Adams’ misconduct. Plaintiff contends the

district court erred in this conclusion. She contends the court, in assessing HCR’s knowledge of and

response to Adams’ misconduct, improperly confined its consideration to plaintiff’s complaints to

management and failed to consider other employees’ complaints about Adams. If the entire record

is reviewed in the light most favorable to her as nonmovant, she contends, then HCR’s response to

Adams’ pervasive harassing conduct is revealed to have been inadequate.

       The record makes it clear that HCR had, from October 2001 to February 2004, received

several reports, from several employees, of unusual behavior by Daryl Adams. Most of the

complaints related to staring or peeping behavior; some concerned inappropriate comments. Some

of the complaining employees clearly viewed Adams’ behavior as annoying, harassing, even

intimidating. HCR was on notice of a substantial probability that harassing conduct was occurring.

However, to satisfy the respondeat superior element of her claim, plaintiff was obliged to present

evidence that HCR’s response was, in the face of this knowledge, inadequate, i.e., that its “response

manifested indifference or unreasonableness.” Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir.

1999) (addressing racial harassment claim under Elliott-Larsen Civil Rights Act).               The

appropriateness of HCR’s response must be judged in light of “the frequency and severity of the

alleged harassment.” Id. “Generally, a response is adequate if it is reasonably calculated to end the

harassment.” Id.

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Powell-Lee v. HCR Manor Care, et al.

       Insofar as the district court, in evaluating the frequency and severity of the reported

misconduct, failed to consider complaints of employees other than plaintiff, we find this shortcoming

inconsequential. Even if the complained-of incidents of staring are characterized as “frequent,” and

“harassing,” HCR’s response cannot be deemed to have manifested “indifference or

unreasonableness.” Rather, HCR appears to have taken the complaints quite seriously. HCR

conducted investigations, suspending Adams at least three times; counseled Adams several times,

forbidding him from working on the floor where plaintiff worked; ordered him to attend a sexual

harassment in-service training program; and applied its progressive discipline procedure (verbal and

written warnings). After the initial complaints by plaintiff in late 2001, these measures seemed to

have worked so well that in July 2002, plaintiff had no objection to Adams resuming work on her

floor. Thereafter, in fact, she had no complaints about Adams’ behavior again until the March 2004

incident that precipitated his immediate termination. Yes, complaints from other employees had

begun to surface again in late 2003, demonstrating that Adams’ staring problem had not been

satisfactorily corrected. Yet, HCR responded appropriately in January 2004 by suspending Adams

and issuing a third and final written warning.

         Accordingly, we find no error in the district court’s holding that no reasonable jury could

conclude that defendant failed to adequately investigate and take prompt and appropriate remedial

action when notified. For lack of evidence to satisfy the respondeat superior element of plaintiff’s

hostile environment harassment claim, HCR was properly awarded summary judgment on count III

of the complaint.

                                                 IV

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Powell-Lee v. HCR Manor Care, et al.

       In count IV, plaintiff complains that she was subjected to unwarranted discipline and

eventually discharged from employment because she complained of Adams’ harassment, constituting

unlawful retaliation under the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2701(a). In count V, she

alleges that the same retaliatory conduct by defendant makes out a violation of Michigan’s

Whistleblowers’ Protection Act, M.C.L. §§ 15.361 et seq.        The district court analyzed the proofs

presented in support of both claims together since the essential elements of both claims are the same

for purposes of this case. The court evaluated the record evidence under the appropriate standards

and concluded that the proofs failed to substantiate a causal connection between any protected

activity plaintiff engaged in and any adverse employment action taken by HCR.

       Plaintiff relies primarily on two items of evidence. The “unwarranted discipline” relied on

by plaintiff refers to a March 17, 2004 notice of rule violation plaintiff received from her supervisor,

Director of Nursing Karen Fairchild. The notice stemmed from a March 12 altercation between the

two women, which culminated in raised voices in the workplace and a touching or grabbing of

plaintiff’s arm or shoulder by Fairchild. After plaintiff left Plymouth Court for the day, she drove

to the local police station where she reported that she’d been assaulted by Fairchild. The subsequent

notice of rule violation cited plaintiff for arguing with Fairchild in a residents’ area and for making

a “false accusation of harassment.”

       As the district court observed, contrary to plaintiff’s allegations and arguments, this discipline

clearly had nothing to do with plaintiff’s past allegations of sexual harassment by Adams. By her

own admission, plaintiff had not made any report of harassment by Adams since May 2002. The

March 17 notice grew out of plaintiff’s altercation with Fairchild on March 12, when she told

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Fairchild “she was tired of being harassed” (i.e., in connection with methods of intra-office

communication); and the alleged false accusation of harassment pertained to plaintiff’s report to

police that Fairchild had assaulted her. Inasmuch as the March 17 discipline had nothing to do with

reports of sexual harassment, it offers no support for plaintiff’s claim that she was discharged

because she engaged in the asserted protected activity, i.e., complaints about sexual harassment by

Adams. The district court correctly concluded that there was no causal nexus between the two.

       The second item relied on by plaintiff is a statement allegedly made to her by Plymouth Court

Administrator Jennifer Pressman on March 24, 2004, shortly after Adams had exposed himself —

a statement to the effect that, because the police had been called, there would be disciplinary action.

Plaintiff had just finished giving her statement to the police, was upset, and wanted to go home.

Pressman was trying to persuade plaintiff to remain at Plymouth Court until HCR’s attorney arrived

because her charge of indecent exposure, serious enough to report to the police, was also serious

enough to result in significant disciplinary action, “not excluding termination.” Most plausibly

construed, Pressman’s statement meant that, assuming the charge was truthful, Adams would be

subject to discipline, possibly termination. This construction is corroborated by Pressman’s

reassurance to plaintiff that it would be in her best interest to stay and give a statement to HCR’s

attorney. It is also corroborated by Pressman’s affidavit, in which she affirmatively states (a) that

she never advised Ms. Powell-Lee that she could or would be disciplined for reporting to the police

that Adams had exposed himself; and (b) that Ms. Powell-Lee’s having contacted the police played

no role in any employment decisions.



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        Plaintiff claims to have understood the statement differently — as though it implied that she

could be subject to discipline for having reported the misconduct to the police. Even assuming

plaintiff genuinely understood Pressman’s statement as she now asserts, her construction is simply

implausible. The court’s obligation to view the record in the light most favorable to the party

opposing a motion for summary judgment does not require the court to draw inferences that simply

make no sense or are unreasonable. Moreover, plaintiff’s understanding of what Pressman meant

is entitled to little probative weight in establishing the element at issue, i.e., that her employer’s

subjective motivation in discharging her was retaliatory. Pressman’s alleged statement, implausibly

construed by plaintiff to convey a meaning contrary to Pressman’s own more plausible understanding

of what she intended, represents no more than a mere scintilla of evidence of the subjective

motivation underlying her discharge. It is insufficient to support a reasonable jury finding that

plaintiff was terminated for reporting Adams’ indecent exposure to the police.

        Accordingly, we find no error in the district court’s award of summary judgment to HCR on

plaintiff’s retaliation claims. The record plainly contains insufficient evidence of a causal nexus

between plaintiff’s asserted protected activity and any adverse employment action taken against her.1

                                                   V




        1
          This result effectively renders HCR’s cross-appeal moot. In its cross-appeal, HCR contends
the district court erred in concluding there is a genuine fact issue regarding whether plaintiff resigned
or was involuntarily discharged. We agree with the district court that the record is controverted on
this issue. Yet, even assuming plaintiff was involuntarily discharged, HCR was properly awarded
summary judgment on plaintiff’s retaliation claims for lack of evidence that any protected activity
she assertedly engaged in played a significant causal role in HCR’s decision to discharge her.
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        The district court also found insufficient the factual support for plaintiff’s count VI claim

against HCR for intentional infliction of emotional distress. Under Michigan law, an employer is

generally not vicariously liable for the acts or torts of an employee that are committed beyond the

scope of the employer’s business. Zsigo v. Hurley Medical Center, 475 Mich. 215, 221 (2006).

Although Adams’ conduct in exposing himself on March 24, 2004 was disturbing and may have

caused plaintiff emotional distress, Adams was clearly acting outside the scope of his employer’s

business. The fact that Adams was aided in accomplishing the tort by the existence of his

employment relationship with HCR is insufficient to bring his tortious conduct within the scope of

his employer’s business. Id. at 231. Accordingly, the district court’s judgment, awarding summary

judgment to HCR on plaintiff’s claim for intentional infliction of emotional distress, must be

affirmed.

                                                   VI

        Finally, plaintiff contends the district court erred by denying her request for leave to amend

her complaint so as to state a claim against HCR for negligent supervision, retention and training of

Daryl Adams. Noting that leave to amend is to be freely granted when justice so requires, Fed. R.

Civ. P. 15(a), the district court denied plaintiff’s request essentially because it found no justification

for plaintiff’s delay in seeking to amend until after discovery had closed and after HCR’s dispositive

motion had been filed.

        The district court’s denial of leave to amend is reviewed for abuse of discretion. Morse v.

McWhorter, 290 F.3d 795, 799 (6th Cir. 2002). Ordinarily, delay alone does not justify denial of

leave to amend. Id. at 800. At some point, however, delay becomes “undue,” placing an

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unwarranted burden on the court, and becomes “prejudicial,” placing an unfair burden on the

opposing party. Id. Considering the totality of the circumstances, the district court did not abuse

its discretion in concluding that plaintiff’s delay in seeking leave to amend was undue.




                                                  VII

        On full consideration of the record, it is apparent that none of the claims asserted by plaintiff,

stemming from Daryl Adams’ misconduct, find sufficient factual support to afford plaintiff a triable

cause of action against HCR. Accordingly, the district court’s summary judgment is AFFIRMED

in all respects.




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