                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0284n.06

                                           No. 13-1128                                 FILED
                                                                                    Apr 16, 2014
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


CAROLYN FOSTER,                                  )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
COUNTRY FRESH, LLC,                              )   EASTERN DISTRICT OF MICHIGAN
                                                 )
       Defendant-Appellee.                       )


       Before:    DAUGHTREY, COLE, and WHITE, Circuit Judges.


       PER CURIAM.         Plaintiff Carolyn Foster appeals the district court=s grant of summary

judgment to defendant Country Fresh, LLC, on Michigan state law claims of gender and

disability discrimination alleged in a complaint she filed after she was terminated from her job as

a truck driver for Country Fresh. The company claimed that it fired Foster because she violated

company policy when she abandoned her truck on the side of the interstate highway, without

permission, after it broke down while she was returning it to the company lot. Foster, who

suffers from a condition called polycystic ovary syndrome (PCOS), claimed that she left the

vehicle because she was experiencing the heavy menstrual bleeding that PCOS can cause and

was in pressing need of pads and replacement clothing; that she left the vehicle only after seeing

the tow truck on its way to recover her truck; and that the real motivation for her termination was

discrimination against her sex and/or perceived disability.      She alleged that, in firing her,
Foster v. Country Fresh, LLC
No. 13-1128

Country Fresh violated Michigan=s Elliot-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws

Ann. '' 37.2101-2804 (West 2013), by subjecting her to different treatment than male truck

drivers, as well as Michigan=s Persons with Disabilities Civil Rights Act (PDCRA), Mich. Comp.

Laws Ann. '' 37.1101-1607 (West 2013).           She also alleged that Country Fresh violated

ELCRA by creating a work environment that was hostile to women and by condoning the sexual

harassment she experienced when she worked for the company from October 2007 until October

2010.


        In its order granting summary judgment to Country Fresh, the district court found that

Foster had failed to make out a prima facie case that her termination constituted

disparate-treatment sex discrimination.    Michigan courts analyze ELCRA disparate-treatment

claims using the McDonnell Douglas approach adopted in Title VII cases.       Hazle v. Ford Motor

Co., 628 N.W.2d 515, 520-21 (Mich. 2001) (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-03 (1973)).     In order to make out a prima facie case of sex discrimination under

McDonnell Douglas, a plaintiff must show that she was Atreated differently than similarly

situated male employees for the same or similar conduct.@      Humenny v. Genex Corp., 390 F.3d

901, 906 (6th Cir. 2004).


        In an effort to satisfy this requirement, Foster introduced evidence that several male truck

drivers who left their trucks when they broke down were not fired; she also introduced evidence

that several male truck drivers tested positive for drugs while on the job and were not fired.

The district court found that, because all of the male truck drivers who abandoned their trucks

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No. 13-1128

first received permission to do so from a supervisor, while Foster B despite receiving explicit

instructions to get such permission - did not, and because the company treated drug offenses

differently from other offenses, in both sets of cases the conduct was not sufficiently similar to

make out a prima facie case.    The court also found that, even if Foster had made out a prima

facie case, Country Fresh satisfied its burden of showing a legitimate, nondiscriminatory reason

for her termination:   namely, her decision to abandon her truck on the side of the road without

permission.


       On appeal, Foster argues that the district court erred in granting summary judgment by

applying an overly narrow interpretation of what it means for conduct to be “the same or

similar,” citing Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 748-52 (6th Cir. 2012) (noting

that Title VII plaintiffs are Anot required to demonstrate an exact correlation between

[themselves] and others similarly situated@ but instead Aha[ve] to show only that [they] and

[their] proposed comparators [are] similar in all relevant respects@). She also argues that the

district court should have found that the company=s stated reason for firing her was merely

pretextual.


       We review a district court’s grant of summary judgment de novo.               Alspaugh v.

McConnell, 643 F.3d 162, 168 (6th Cir. 2011).       Summary judgment is appropriate only when

“the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).



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No. 13-1128

       Neither of the arguments that Foster presses on appeal has merit. The district court did

not require an Aexact correlation@ between Foster=s conduct and those of her comparator

examples.   It merely required that the conduct be similar in all relevant respects.   The district

judge found that the fact that the male truck drivers asked for permission before leaving their

vehicles was a relevant way in which their conduct differed from Foster=s. The judge also

found that, because first-time violators of the company=s drug-and-alcohol policy were referred

for treatment rather than terminated, whereas there is no evidence that this was the case with

respect to violators of the vehicle-abandonment rule, the infractions were not comparable in all

relevant respects.   Both conclusions are correct.   Although Foster claims that using alcohol or

drugs on the job is a more serious offense than abandoning one=s truck, all of the evidence

suggests that Country Fresh considered the latter to be far more serious.                       Her

comparator-examples are therefore not similar in all salient respects.   See Humenny, 390 F.3d at

906 (holding that the plaintiff, a female employee terminated following a leave of absence, failed

to show that male colleagues allowed time off to care for sick parents were similarly situated

because the men never requested leaves of absence but used vacation, bereavement, personal,

and sick time instead).


       Foster does not dispute the factual basis for her termination:    She left her truck on the

side of the expressway with the keys in the ignition without her supervisor’s permission.        In

asserting that the company=s reasons for terminating her were pretextual, Foster relies upon

statements by her supervisor, David Black.     Black testified at his deposition that, if Foster had


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No. 13-1128

told him that she had to leave the truck before the tow truck was likely to arrive, he “would have

worked something out.”    Black then explained what he meant by this:


       I was in the car when she called. I could have driven out and picked her up. I
       didn=t know B at that point, she said that she had to use the bathroom. If she said
       I really have to use the bathroom I would have said, well, is there a store around
       there. If she said yeah, I can see one, can you walk there safely, you know, I
       would have done something, called another driver who is out on the road, called a
       supervisor, you know, I would have done something.


       Foster construes this testimony to mean that Black would have given her permission to

leave the vehicle if she had merely asked and argues that a reasonable jury could thus have

concluded that the charge of vehicle-abandonment was merely pretextual. As the district court

correctly concluded, however, Black=s testimony does not indicate that he would simply have

given Foster permission to abandon her truck if asked.    Instead it indicates that he would have

made arrangements to take care of her needs - including, possibly, calling another nearby driver

or supervisor to take care of the truck. This interpretation is backed up by notes from a

conversation Black had with Foster shortly after the incident occurred, during which he told her

repeatedly that A[we] don=t just leave equipment sitting there@ and that she should have told him

she needed to leave the truck so that they could “have worked something out.”


       On appeal, Foster also challenges the district court’s dismissal of her hostile-

work-environment and disability-discrimination claims. These challenges have no merit.


       To establish a hostile-work-environment claim under Michigan law, a plaintiff must

demonstrate that Aa reasonable person, in the totality of circumstances, would have perceived the
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Foster v. Country Fresh, LLC
No. 13-1128

conduct at issue as substantially interfering with the plaintiff=s employment or having the

purpose or effect of creating an intimidating, hostile, or offensive employment environment.@

Radtke v. Everett, 501 N.W.2d 155, 167 (Mich. 1993). As evidence of a hostile workplace,

Foster alleged that she found pornography in her truck three times in four years of driving

company trucks. She also alleged that an obscene picture was drawn in the staff bathroom with

her name attached to it.   Except in one instance, she did not contend that the pornography was

placed in her truck with the intention to harass her. She also admitted that, when she told Black

about the drawing in the men=s bathroom, he became “upset” and “kind of storm[ed] out to get

something to wash it off with.” Black issued a memo to staff regarding these incidents, and

Foster did not find any further pornographic material after the memo was circulated.        As the

district court correctly concluded, this evidence is not sufficient to show that Foster experienced

an intimidating, hostile, or offensive work environment.       Furthermore, Country Fresh took

prompt remedial action both when informed about the bathroom drawing and when informed

about an incident in which Foster found a pornographic calendar in her truck.     Under Michigan

law, this resolution was sufficient to absolve Country Fresh of liability for any harassment Foster

experienced as a result of the conduct of her colleagues and supervisors.        See Chambers v.

Trettco, Inc., 614 N.W.2d 910, 916 (Mich. 2000) (holding that an employer was not liable

because it adequately investigated and took prompt and appropriate remedial action following

notice of the alleged hostile work environment).


       Finally, Foster challenges the district court=s dismissal of her disability claim.      The

PDCRA forbids companies from firing employees either because they are disabled or because
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Foster v. Country Fresh, LLC
No. 13-1128

they are regarded as disabled.   Michalski v. Bar-Levav, 625 N.W.2d 754, 759-60 (Mich. 2001).

Foster does not claim that she was disabled but, instead, that Country Fresh regarded her as such.

However, she provided virtually no evidence to support this claim. She alleged that on one

occasion in 2008 or early 2009 she told supervisor Thomas West that she had PCOS and might

need to go to the hospital Abecause of [her] period.@   West disputed that Foster said anything

more to him than that she Awasn=t feeling good@ and might have to go to the hospital, but he

admitted that on another occasion, Foster mentioned to him that she had some Aissues regarding

female problems.@    Otherwise, Foster did not allege, nor is there evidence to suggest, that the

Country Fresh officials who made the termination decision knew about her condition, or

considered her to be disabled as a result.    Thus, her supervisor’s knowledge of her medical

condition cannot constitute direct evidence of discrimination by Country Fresh.     See Carter v.

Univ. of Toledo, 349 F.3d 269, 273 (6th Cir. 2003).


       These and other reasons why judgment should be entered for the defendant have been set

out and well-analyzed by the district court. The issuance of a full written opinion by this court

would be duplicative and would serve no useful precedential purpose.      We therefore AFFIRM

the judgment of the district court based upon the reasoning and conclusions in the court=s opinion

and order filed on December 31, 2012.




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