MULAJ v. SWEEPING CORPORATION OF AMERICA (2024)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ PARTIAL MOTION FOR SUMMARY JUDGMENT

(ECF NO. 33)

Ali Mulaj, a Muslim man of Albanian descent, worked for Sweeping Corporation of America (SCA) and its predecessor company for over twenty years before he was abruptly fired in 2021. He alleges that he was wrongfully terminated by SCA for reporting a campaign of racial, ethnic, and sexual harassment carried out against other employees by Brett Hammond, a site supervisor hired by SCA. Mulaj has sued SCA, asserting multiple claims for violations of federal and state employment protections. He also raises state tort claims against Brett Hammond.

SCA has moved for summary judgment as to some of Mulaj's claims. ECF No. 33. For the reasons below, the motion will be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Ali Mulaj began working at C&J Sweeping, SCA's predecessor company, around 1997 or 1998. ECF No. 33-6, PageID.317. SCA is a nationwide sweeping corporation headquartered in Ohio that has recently acquired many other, smaller sweeping companies across the country. ECF No. 33-3, PageID.271.

A. C&J Sweeping Employment

At C&J, Mulaj was “never technically the manager.” ECF No. 33-6, PageID.318. But because of his experience and longevity, employees often came to him for help, and he supervised all major engine repairs. ECF No. 33-6, PageID.318, 325-26. As he describes it, “[he] was the doctor, [the other mechanics] were the nurses.” ECF No. 33-6, PageID.326. He maintained an extensive box of tools he purchased himself. ECF No. 33-6, PageID.326. Other mechanics frequently borrowed his tools, and he would permit new employees to use them until they could buy their own. ECF No. 33-6, PageID.326. According to Mulaj, each mechanic at the shop needed his own tools because “it's kind of impossible to do the job” otherwise. ECF No. 33-6, PageID.326.

Besides supervising repairs, Mulaj also worked with vendors, and he developed relationships with several companies. ECF No. 33-6, PageID.326. Because of these relationships and his technical skills, he developed a reputation in the sweeping community; his number (a cell phone given to him by C&J) was widely known, and sweeping professionals (such as Mat Andrews, who owned a company that was also later acquired by SCA) often called him for technical help. ECF No. 33-6, PageID.320, 322. Indeed, SCA tried to hire him for a management role at the company in 2017 before it acquired C&J, but Mulaj declined the position. ECF No. 33-6, PageID.331.

B. SCA Takeover

In late 2020 C&J was sold to SCA, and SCA took over operation of Mulaj's shop in January 2021. Ali Mulaj Depo., ECF No. 33-6, PageID.325. At the time of the takeover Mulaj was making around $45 or $46 an hour. ECF No. 33-6, PageID.317. SCA's purchase of the company came with several changes: Mulaj was given an office, and he was also asked to take on the role of shop manager. ECF No. 33-6, PageID.328. He says that, as a result, he spent more time in an office completing paperwork than helping out on the shop floor. ECF No. 33-6, PageID.328. He was never in charge of hiring or firing, but he continued to manage relationships with vendors. ECF No. 33-6, PageID.331-32.

Along with shifting Mulaj to more of a managerial role, SCA also introduced a regional fleet manager, O.J. Hatfield, who visited Mulaj's shop every month or so. ECF No. 33-6, PageID.337-38; ECF No. 33-3, PageID.270. Additionally, SCA hired a new site manager, Greg McLain, to report to the shop daily. ECF No. 33-6, PageID.330.

C. McLain is Replaced by Hammond

Despite the changes, business at Mulaj's shop ran smoothly until May of 2021, when McLain left, and SCA hired Brett Hammond to replace him. ECF No. 33-6, PageID.332-33. At that point, SCA also introduced a regional manager, Mat Andrews. ECF No. 37-1, PageID.553; ECF No. 33-6, PageID.332. Andrews checked in at Mulaj's shop around twice a month. ECF No. 37-1, PageID.553; ECF No. 33-7, PageID.360. Hammond, meanwhile, was on site daily. Mulaj says that when McLain left, he warned Mulaj not to allow Hammond to talk to mechanics at the shop. ECF No. 33-6, PageID.333. In Mulaj's recollection, site manager Hammond and regional manager Andrews worked closely together. They were “like two peas in a pod;” they shared several internal jokes, including off-color or sexual-based behavior, which often involved them grabbing their genitals and telling each another to “come suck them.” ECF No. 33-6, PageID.332, 338-39.

One of the diesel mechanics who worked with Mulaj in the shop was Arif Rexhaj, an Albanian immigrant and who also practiced Islam.¹ The two recall that, when Hammond arrived, he showed up “weird and “wired” and immediately began creating an uncomfortable atmosphere. ECF No. 37-1, PageID.553-34; ECF No. 33-6, PageID.333. They recall that, while they were in the shop with some other mechanics trying to diagnose problems with a small engine on Hammond's first day, Hammond “hopped” and danced out of his office into the middle of the group, got down on his knees in the middle of it, and asked, “Is this a circle jerk?” ECF ECF No. 37-1, PageID.553-34; ECF No. 33-6, PageID.333. Mulaj and Rexhaj testified that they had never seen such behavior from management and that the group dispersed in shock. ECF No. 37-1, PageID.553-34; ECF No. 33-6, PageID.334. This set the tone for a toxic environment for the months to come.

Mulaj testified that he soon began receiving several complaints from different mechanics about Hammond. ECF No. 33-6, PageID.336. For instance, Kyle Bush, a newly hired shop hand, said Hammond groped him. ECF No. 33-6, PageID.335. When Bush approached him with these complaints, Mulaj told Bush to take them to Andrews, but he also personally brought them to Andrews's attention. ECF No. 33-6, PageID.335. Rexhaj complained of similar sexual harassment and also reported derogatory remarks Hammond was making about Islam and Albanians. ECF No. 33-6, PageID.337.

Mulaj says that he too began to experience inappropriate behavior from Hammond directed at him. He says Hammond commented that his grandfather was a Nazi and that his family hated black people. ECF No. 33-6, PageID.336. When Mulaj told Hammond he was taking time off to observe Ramadan, Hammond asked him, “Why do you do that stupid shit? Are you really like a terrorist? Are you—you follow that Bin Laden shit?” ECF No. 33-6, PageID.336. On other occasions, Hammond told Mulaj he was “not a white person” because he was “Albanian.” ECF No. 33-6, PageID.347. He further made comments about Mulaj's mother being a terrorist with a bomb. ECF No. 33-6, PageID.348. According to Mulaj, Hammond also “swore like a sailor” on the shop floor, calling mechanics “fucking dumb cunts” and “stupid fucking idiots.” ECF No. 33-6, PageID.337. And he kept up a constant stream of sexual banter, sharing with employees escapades of sordid encounters from his youth in trailer parks. ECF No. 33-6, PageID.337. Mulaj says that, on one occasion, Hammond tried to touch him, but he rebuffed the advance and told Hammond, “Don't ever touch me.” ECF No. 33-6, PageID.342.

Mulaj testified that, because of his own experiences and the complaints he was receiving, he raised concerns about Hammond's behavior with Andrews over lunch at a coney island diner the same month Hammond was hired. ECF No. 33-6, PageID.336. According to Mulaj, as he spoke with Andrews about Hammond's behavior, Andrews became aggravated. ECF No. 33-6, PageID.336-37. On a separate occasion, he spoke to Andrews in the yard about Hammond's religious harassment. ECF No. 33-6, PageID.337. (Andrews, for his part, does not remember these conversations and maintains that Mulaj never reported any complaints about Hammond. ECF No. 33-7, PageID.336.)

Mulaj says that, when Hatfield visited the shop during this period, he observed some of Hammond's behavior was taken aback. ECF No. 33-6, PageID.337. He recalls that Hatfield asked, “Is he [Hammond] always wired up, that wired up?” ECF No. 33-6, PageID.337. When Mulaj said “yes” and commented that Hammond swore like a sailor, Hatfield got very quiet. ECF No. 33-6, PageID.337. Hatfield, for his part, testified that some swearing could be expected on the shop floor (he admits he swore sometimes himself) but that vulgar sexual language would not be appropriate. ECF No. 33-3, PageID.274.

Mulaj says that Hammond's behavior escalated until late June, when he was caught on video harassing Rexhaj. During this incident, which was captured on the shop's video camera, Hammond can be seen approaching Rexhaj after he had just finished washing up after a repair and was leaning against an oil drum without his shirt on, catching his breath. Hammond takes his water bottle and hurls its contents at Rexhaj, who slips and nearly falls trying to avoid it. Hammond approaches Rexhaj, touches one shoulder, and then rubs both of his shoulders. Rexhaj appears to be shaking his head “no” and points his finger at Hammond. Hammond appears to look towards some bystanders then squats down and puts his arms briefly around Rexhaj's hips before moving them up to Rexhaj's shoulders, embracing him, and backing away. All the while, Hammond appears to be talking to an audience as he handles Rexhaj. Mulaj observed this incident and testified that there was some groping involved. ECF No. 33-6, PageID.337.

The record contains inconsistent statements as to what happened immediately after this incident. Mulaj says that, at this point, he was so alarmed by Hammond's conduct that he pulled the video footage, sent stills of it to Gerry Kesselring (someone in upper management at SCA), and spoke to Kesselring over the phone about it. ECF No. 33-6, PageID.338, 346. He also recalls briefly corresponding with an SCA lawyer about the video. ECF No. 33-6, PageID.346.

Mulaj also says that he spoke to Hatfield about Hammond's conduct at some point during one of Hatfield's monthly site visits. The record is unclear as to when this conversation happened and whether Mulaj was reporting the complaints of particular employees or his own general misgivings about Hammond. But, Mulaj says, Hatfield responded by saying, “I tell everybody ‘Fuck off.’ I'll fucking fight anybody in this place right now.” ECF No. 33-6, PageID.338. Hatfield has some recollection of watching the video with Hammond but does not recall yelling at anybody in the shop. ECF No. 33-3, PageID.292.

D. Termination

In early August, Andrews and Hatfield visited the shop to talk about potential promotions for both Rexhaj and Mulaj. Mulaj recalls that he was receptive to the proposal but felt overworked and observed that he had a leave request pending. ECF No. 33-6, PageID.339.

But on August 13, 2021, the day after they had discussed some of these proposals over a lunch, Mulaj was fired. ECF No. 33-6, PageID.340. Mulaj testified that, when he showed up to work, he got a text from Hammond asking him to come to an upstairs office. ECF No. 33-6, PageID.339. When he entered the office, he saw Hammond and Hatfield sitting at opposite ends of the room. ECF No. 33-6, PageID.340. Hatfield told him, “We're going to let you go.” ECF No. 33-6, PageID.340. Mulaj recalls that he told them both, “Thank you very much. I don't have to deal with this anymore.” ECF No. 33-6, PageID.340. Hatfield testified that Mulaj seemed to be in “good spirits” and handed him a business card, saying he wanted to keep doing business with SCA despite his termination. ECF No. 33-3, PageID.283.

According to Mulaj, Hatfield and Hammond had suggested to him setting up a date so he could retrieve his tools from the shop, but he decided to take them immediately to prevent any thefts. (He testified that he had some $300,000 worth of tools there.) ECF No. 33-6, PageID.340. After he left the office, he went to the shop, and other mechanics allowed him to go through their boxes and take back what they had borrowed from him. ECF No. 33-6, PageID.340. He recalls that, as he waited for a friend to show up with the tow truck, Hammond stood around talking about an assassin movie. ECF No. 33-6, PageID.340.

Mulaj now believes that he was fired for sharing the video in which Hammond was harassing Rexhaj. ECF No. 33-6, PageID.348. He maintains that there were no issues with his attendance or performance. ECF No. 33-6, PageID.344. In retrospect, he recalls that—after he sent the video of Hammond and Rexhaj to management—he lost access to the security cameras, and he called IT to inquire as to why but never got a response or a solution. ECF No. 33-6, PageID.346. Further, he remembers, anytime he tried to bring up Hammond's conduct to Hatfield and Andrews, they both became agitated. ECF No. 33-6, PageID.348. He also says that Rexhaj told him later that SCA management wanted him out of the company after he shared the videos. ECF No. 33-6, PageID.349.

SCA has offered several reasons why Mulaj was fired. According to Hatfield, “the company had kind of a restructuring ․ and [was doing] away with the shop manager's position in every location.” ECF No. 33-3, PageID.283. Andrews, meanwhile, testified that there were “a lot of reasons,” including that “[Mulaj] was struggling with a lot of tasks and a lot of changes that were coming through [and] couldn't handle them.” ECF No. 33-7, PageID.365. Andrews further testified that Mulaj was coming in late, leaving early, did not know the status of the trucks in the shop, and insisted on running to vendors himself to pick up parts even though SCA had repeatedly asked him to delegate those tasks to lower-paid employees. ECF No. 337, PageID.365-66. (Mulaj remembers having one conversation with SCA about the parts-purchasing issue but, he says, other employees were incapable of ensuring that SCA got good deals. ECF No. 33-6, PageID.343-44.)

E. Post-Termination Issues

A week after he was fired, Mulaj received his final paycheck and realized that it did not include his unused vacation leave. ECF No. 33-6, PageID.341. After trying to correspond with SCA for a month, he filed a complaint with Michigan's Department of Labor and Economic Opportunity. ECF No. 33-6, PageID.341. He also reached out to SCA about keeping the company cellphone number given to him by C&J, but they rebuffed his requests. ECF No. 33-6, PageID.394.

According to SCA, it received several threats from Mulaj after he was fired, including a text message stating, “Them fuckers still have not paid me out yet, looks like I'm going to have to sue them for missed wages as well.” ECF No. 33-6, PageID.342. (The messages have not been made a part of the record but, when Mulaj was questioned about them, he denied sending or having seen them before.) According to Andrews, Mulaj “called around to everybody threatening them”—to sue, beat people up, and using “really hatred jargon.” ECF No. 33-7, PageID.369, 513. Andrews says that only after Mulaj was terminated did he start making “an issue” of Hammond's behavior for the first time and sent out “threatening” messages and video stills. ECF No. 33-7, PageID.366.

In the aftermath of Mulaj's termination, SCA initiated an investigation into him. No. 22-11511, ECF No. 30-10, PageID.426-31. Andrews recalls that he spoke to “two or three witnesses” as part of this investigation but did not take any notes. ECF No. 33-7, PageID.361-63. Part of the investigation file includes a typed statement (apparently signed by Hammond, Rexhaj, and another shop mechanic, though none of these individuals have confirmed the authenticity of their signatures) that Mulaj threatened violence and to burn down the shop on the day that he was fired and that no allegations of sexual harassment by Hammond were previously reported. ECF No. 33-8, PageID.374. Hammond also compiled a list of equipment (including tools, a laptop, and software) he said Mulaj stole, estimating their worth to be around $10,150. ECF No. 33-14, PageID.434.

After SCA opened this investigation, one of its lawyers, Robert Casarona, called Mulaj and sent him an email discussing several topics. ECF No. 33-15, PageID.437. The email accuses Mulaj of threats, theft of tools, defaming Hammond, and stealing SCA's security footage.

Mulaj denies making any threats, saying that sort of behavior would be “totally out of ․ character.” ECF No. 33-6, PageID.349. He denies stealing any equipment and says he has receipts to show he purchased each piece of equipment he was accused of taking. He recalls speaking with Casarona and says that Casarona threatened to sue him over a noncompete agreement if he sought work in Michigan. Mulaj further testified that he learned from his contacts in the sweeping industry that Casarona was contacting them and telling them that Mulaj was a thief. ECF No. 33-6, PageID.344.

Because of the noncompete agreement, Mulaj was not able to look for work in the sweeping industry in Michigan for 24 months after his termination. ECF No. 33-6, PageID.323. He applied for unemployment benefits, ECF No. 33-6, PageID.325, and he was able to make some money through a business he started in 2018. He applied for jobs as a mechanic outside of the sweeping industry in both Michigan and out of state and had some interviews but found nothing close to his rate of pay at SCA. In November 2021, after attending a convention in Las Vegas, he accepted a job making $30 an hour in Texas, which he held until he had an unrelated car accident in May 2022. ECF No. 33-6, PageID.321. He testified that, because of the injuries he sustained during that accident, he is not presently looking for work but plans to resume his employment search after his health improves.

F. Procedural History

On April 15, 2022, Mulaj filed a Charge of Discrimination with the EEO and the Michigan Department of Civil Rights. ECF No. 33-9. On July 26, 2022, after receiving a right-to-sue letter, he initiated this lawsuit against SCA and Hammond. His fourteen-count complaint lists the following causes of action:

• Count I: Hostile Environment Sexual Harassment in Violation of Title VII against SCA;

• Count II: National Origin Discrimination in Violation of Title VII against SCA;

• Count III: Hostile Work Environment National Origin Harassment in Violation of Title VII against SCA;

• Count IV: Religious Discrimination in Violation of Title VII against SCA;

• Count V: Hostile Environment Religious Harassment in Violation of Title VII against SCA;

• Count VI: Retaliation / Retaliatory Harassment in Violation of Title VII against SCA;

• Count VII: Hostile Environment Sexual Harassment in Violation of the Elliott-Larsen Civil Rights Act against Hammond and SCA;

• Count VIII: National Origin Discrimination in Violation of the Elliott-Larsen Civil Rights Act against Hammond and SCA;

• Count IX: Hostile Environment National Origin Harassment in Violation of the Elliott-Larsen Civil Rights Act against Hammond and SCA;

• Count X: Religious Discrimination in Violation of the Elliott-Larsen Civil Rights Act against Hammond and SCA;

• Count XI: Hostile Environment Religious Harassment in Violation of the Elliott-Larsen Civil Rights Act against Hammond and SCA;

• Count XII: Retaliation / Retaliatory Harassment in Violation of the Elliott-Larsen Civil Rights Act against Hammond and SCA;

• Count XIII: Assault against Hammond; and

• Count XIV: Defamation Per Se Against Hammond and SCA.

ECF No. 1.

SCA and Hammond have moved for summary judgment as to the retaliation claims (Counts VI & XII), the assault claim (Count XIII), and the defamation claim (Count XIV). They also ask the court to dismiss Mulaj's prayer for economic damages. ECF No. 33. Mulaj agrees to dismissal of the defamation claim (Count XIV) but otherwise opposes the summary-judgment motion. ECF No. 37.

II. LEGAL STANDARD

A party is entitled to summary judgment if it “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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). No genuine material factual dispute exists if “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

At summary judgment, the Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in his favor. Id. The nonmoving party's evidence need not be in an admissible form. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). But he must “show that [he] can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009).

III. DISCUSSION

A. Retaliation Claims [Counts VI & XII]

SCA and Hammond first contend that they are entitled to summary judgment on Mulaj's retaliation claim. ECF No. 33, PageID.239.

Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against an employee “for oppos[ing] any practice [it makes] unlawful ․, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” relating to a complaint of discrimination. 42 U.S.C. § 2000e-3(a). Similarly, the Elliott-Larsen Civil Rights Act provides:

Two or more persons shall not conspire to, or a person shall not ․ [r]etaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act.

MCL § 37.2701(a).

To make a prima facie claim of retaliation under these statutes, the plaintiff has the burden of establishing that “(1) he engaged in protected activity, (2) the employer knew of the exercise of the protected right, (3) an adverse employment action was subsequently taken against the employee, and (4) there was a causal connection between the protected activity and the adverse employment action.” Khalaf v. Ford Motor Co., 973 F.3d 469, 488-89 (6th Cir. 2020) (quotations and alterations omitted).

If a plaintiff can make these showings, the burden then shifts to the defendant to offer a “legitimate, nondiscriminatory reason” for the adverse employment action. Jackson v. Genesee Cty. Road Comm'n, 999 F.3d 333, 344 (6th Cir. 2021) (citing McDonnell Douglas Corp. v. Green, 441 U.S. 792, 802 (1973). If the defendant can offer such a reason, the burden shifts back to the plaintiff to show that the proffered reason is pretextual. Id. (citing McDonnell Douglas Corp., 411 U.S. at 803)). But the ultimate burden remains with the plaintiff to convince the factfinder that the defendant retaliated against him for his protected activity. Id.

SCA and Hammond concede that Mulaj's testimony is sufficient to establish that he engaged in protected activity. ECF No. 33, PageID.239. They do not challenge his ability to show that they knew of this protected activity, or that his termination was an adverse employment action. Instead, they attack his evidence that his termination was causally connected to his complaints, as well as his ability to show that he was not terminated for legitimate, non-retaliatory reasons.

1. Causation

SCA and Hammond first argue that Mulaj's only evidence that his termination was related to his complaints is temporal proximity. ECF No. 33, PageID.243; ECF No. 33, PageID.718. They acknowledge that, in some cases, temporal proximity alone may be sufficient to establish that complaints of discrimination and adverse employment actions are related but deny this is such a case.

Title VII and ELCRA apply a but-for causation standard to retaliation claims; a plaintiff must show “that the harm would not have occurred in the absence of—that is, but for—the defendant's conduct.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47 (2013) (quotations omitted); Beard v. AAA of Mich., 593 F. App'x 447, 452 (6th Cir. 2014). At the prima facie stage the burden on the plaintiff “is not onerous;” it can be met through evidence that the “adverse action was taken shortly after the plaintiff's exercise of protected rights.” Jackson, 999 F.3d at 349 (quotations omitted). Of course, when “some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.” Redlin v. Grosse Pointe Public Sch. Sys., 921 F.3d 599, 615 (6th Cir. 2019) (quotations omitted). But the causation element is generally satisfied where the adverse action occurs “within a matter of months, or less, of the protected activity.” Dye v. Office of Racing Comm'n, 702 F.3d 286, 306 (6th Cir. 2012) (quotations omitted).

Here, less than two months elapsed between Mulaj's last report of Hammond's harassment to management and his termination. This is likely sufficient on its own to satisfy causation. See Dye, 702 F.3d at 306 (“A lapse of two months, as is the case here, is sufficient to show a causal connection, and the district court erred in holding otherwise.”). According to Mulaj, he first brought Hammond's behavior to the attention of Andrews over lunch in May, shortly after Hammond started working in his shop. At the end of June, he forwarded video stills of the water-throwing incident to management and spoke to Kesselring on the phone about them. He was fired only a few weeks later, on August 13, 2021. Of course, SCA and Hammond dispute the timeline of these events and deny that Mulaj forwarded the video to anyone before he was terminated. But these are factual disputes for a jury to decide.

Moreover, temporal proximity is not Mulaj's only evidence of causation. He testified that, when he first spoke to Andrews about Hammond, Andrews became “aggravated;” Hatfield began screaming about how he was ready to fight people in the shop on hearing Mulaj's reports. Mulaj further testified that, shortly after he forwarded the video stills of Rexhaj and Hammond to Kesselring, he mysteriously lost access to the camera system. A fair inference from this fact, taking it as true, would be that SCA higher-ups wished to curtail Mulaj's ability to gather evidence regarding the harassment he was witnessing. Such action would seem to be proximately caused by Mulaj's having sent the video of the misconduct. When combined with temporal proximity, Mulaj's evidence of Andrews and Hatfield's discontent with his reports and his loss of access to the surveillance system is more than sufficient to permit a reasonable juror to find that his termination was related to his complaints of discrimination and harassment by Hammond.

2. Pretext

SCA and Hammond next argue that, even if Mulaj has established a prima facie case of retaliation, he lacks evidence that their explanation for firing him was pretextual. ECF No. 33, PageID.239-43. They point to Andrews's testimony that SCA “had a lot of problems” with Mulaj, including that: among other things, Mulaj did not “know[ ] what was going in on the shop,” came in late and left early, and generally was having difficulty adapting to SCA's processes. Id. They additionally point to Hatfield's testimony that Mulaj was fired as part of a “restructuring” that included eliminating “the shop manager's position in every location.”

A plaintiff can show pretext in three ways: by providing evidence “(1) that the proffered reason[ ] had no basis in fact, (2) that the proffered reason [ ] did not actually motivate the employer's action, or (3) that [the proffered reason was] insufficient to motivate the employer's action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). “Pretext is a commonsense inquiry: did the employer fire the employee for the stated reason or not?” Id. at 400 n.4. “[S]ummary judgment is warranted only if no reasonable juror could conclude that the employer's offered reason was pretextual.” George v. Youngstown State Univ., 966 F.3d 446, 462 (6th Cir. 2020).

Viewing the record in the light most favorable to Mulaj, a reasonable juror could conclude that SCA's proffered reasons for firing Mulaj were pretextual.

First, the question whether Mulaj actually was performing satisfactorily or not at the time he was fired a matter of dispute. Defendants rely on Andrews's testimony that Mulaj was coming in late, but Mulaj denies having any attendance-related issues. It is notable that SCA does not supplement the record with any time and attendance records supporting their position. Moreover, Andrews's testimony that Mulaj's performance was substandard and that he was having difficulty adjusting to SCA's way of doing things is belied by the undisputed evidence that just the day before he was fired, Hatfield and Andrews offered to promote Mulaj from shop manager to regional manager. From this evidence, a reasonable factfinder could conclude that the explanation that Mulaj was fired for performance-related reasons was a pretext.

Second, relatedly, it is not clear how any alleged restructuring was related to the decision to terminate Mulaj. Not only is Hatfield's testimony regarding the elimination of shop manager positions inconsistent with Andrews's explanation for the termination, it too is contradicted by the fact that—just the day before Mulaj was fired—he offered Mulaj a promotion. Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002) (“An employer's changing rationale for making an adverse employment decision can be evidence of pretext.” (quotations omitted)). Hatfield's testimony only adds to the factual disputes in this case. Even assuming that SCA was restructuring its shops, such a fact alone does not explain why it was appropriate to terminate Mulaj. In combination with the suspicious timing of Mulaj's termination and his unexplained loss of access to the shop's surveillance camera footage, this evidence could lead a reasonable juror to conclude that SCA's proffered reasons for the termination are pretextual.

Of course, “federal courts cannot act as super personnel departments.” George, 966 F.3d at 463 (quotations omitted). But neither can they resolve disputed facts at summary judgment. Accordingly, Defendants’ motion is DENIED as to these counts.

B. Assault Claim [Count XIII]

Hammond contends that he is entitled to summary judgment on Mulaj's assault claim. ECF No. 33, PageID.251-53.

In Michigan, an assault is the “intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well-founded apprehension of imminent contact, coupled with the apparent present ability to accomplish the contact.” Smith v. Stolberg, 586 N.W.2d 103, 105 (Mich. Ct. App. 1998). It is often defined alongside battery as “intentionally placing another in apprehension of an immediate battery.” People v. Reeves, 580 N.W.2d 433, 435 (Mich. 1998). Battery, meanwhile, is defined as an intentional and unconsented harmful or offensive touching of the person of another, or of something closely connected with the person. People v. Nickens, 470 N.W.2d 657, 661 (Mich. 2004).

Relying on Lakin v. Rund, 896 N.W.2d 76, 78 (Mich. Ct. App. 2016), Hammond argues that Michigan courts require evidence of a specific intent to injure in order to sustain a claim of assault. ECF No. 33, PageID.251. And, he maintains, Mulaj has none.

Lakin concerned a defamation claim and is not wholly germane to this case. In Lakin, the plaintiff asserted that a nun, the defendant, had defamed him by imputing to him the criminal offense of battery when she told somebody at the church that he put a finger on her chest during an argument and that she was afraid of him. 896 N.W.2d at 77. In determining whether the nun's description of the argument was sufficient to suggest that the plaintiff had committed the criminal offense of battery, the Michigan Court of Appeals examined Michigan case law concerning criminal assault and battery and instructed that “Michigan requires proving the intent to injure in order to establish an assault and battery.” Id. at 78 (quotations omitted). Viewed in the light most favorable to the plaintiff, the court held that saying that the plaintiff “put[ ] his finger into [the sister]’s chest in order to make a point during an argument” was sufficient to impute to him the offense of battery. Id.

More generally, however, the intent element in an assault claim is “satisfied where an actor engages in some form of threatening conduct designed to put another in apprehension of an immediate battery.” Reeves, 580 N.W.2d at 436.

Here, the evidence concerning Mulaj's claim is not extensive. It consists only of the following deposition testimony:

Q: And did you, yourself, have any specific instance where Brett physically contacted you?

A: I had where he tried to, and I actually physically pushed him back away from me and told him, “Don't ever touch me.”

․

Q: As it relates to your allegations for that, was there any—there was no unwanted sexual, physical touching to yourself, correct?

A: No, no.

ECF No. 33-6, PageID.342, 347.

Viewed in the light most favorable to Mulaj, however, this testimony contains facts that could lead a reasonable juror to conclude that Hammond's conduct caused Mulaj to experience a reasonable apprehension of offensive and unwanted physical contact—so much so that Mulaj felt the need to physically push Hammond away from him and tell him, “Don't ever touch me,” when Hammond tried to make physical contact with him. This shows that Mulaj both feared immediate physical contact and that the anticipated physical contact was offensive and unwanted. That is all that is required for liability.

Hammond attempts to resist this conclusion by citing Chojnowski v. Huron Clinton Metropolitan Authority, No. 317655, 2015 WL 1396469 (Mich. Ct. App. Mar. 26, 2015). In that case, the plaintiff asserted that she was assaulted when “she was made to hug [a supervisor] out of fear for losing her job.” Id. at *20. The Michigan Court of Appeals concluded that the plaintiff's civil assault claim could not be sustained because there was no evidence that the defendant—who did not physically approach the plaintiff but asked for a hug—took any physical action which was likely to cause offensive bodily touching or a fear of one. That is a far cry from the case here: Mulaj testified that Hammond attempted to touch him in a way the Court—and a reasonable juror—could rationally infer was offensive. If credited, this evidence is sufficient to sustain a finding that Hammond intended to commit a battery or create in Mulaj a reasonable fear or apprehension of an immediate battery.

Accordingly, Hammond's motion must be DENIED as to this claim.

C. Economic Damages

Finally, SCA and Hammond contend that Mulaj's claims for future economic losses must be dismissed. ECF No. 33, PageID.253-55.

Front pay is compensation for “the post-judgment effects of past discrimination.” Shore v. Federal Express Corp., 777 F.2d 1155, 1158 (6th Cir. 1985). “While the determination of the precise amount of an award of front pay is a jury question, the initial determination of the propriety of an award of front pay is a matter for the court.” Arban v. West Publishing Corp., 345 F.3d 390, 406 (6th Cir. 2003). “The cut-off date for the award is within the discretion of the district court.” Shore, 777 F.2d at 1160. Awards of front pay are guided by several factors, including: an employee's duty to mitigate; the availability of employment opportunities; the period within which one by reasonable efforts may be re-employed; the employee's work and life expectancy, and more. Arban, 345 F.3d at 399. In a Title VII case, the defendant bears the burden of establishing that the plaintiff lacked diligence in mitigating damages by showing that there were substantially equivalent position and that the plaintiff did not diligently pursue those positions. Madden v. Chattanooga City Wide Service Dep't, 549 F.3d 666, 680 (6th Cir. 2008).

SCA and Hammond's arguments center on a damages report by Jeffrey Bagalis, a certified accountant expert who estimates that Mulaj has lost $2,419,627.00 in lost earnings. ECF No. 33-18. SCA and Hammond take issues with these calculations, noting that Mulaj testified that he is presently unable to work because he sustained injuries in a car accident entirely unrelated to this litigation. According to SCA and Hammond, Mulaj made more at his Texas job before he suffered the accident that makes him now presently unable to work, rendering front pay damages presumptively inappropriate. Not only did Bagalis not factor this into his calculations, they complain, Bagalis did not consider whether his unrelated disability impacts Mulaj's earning potential.

But Defendants appear to misread the record in concluding that Mulaj made more at the Texas job. He testified that he was earning around $45 an hour at C&J and SCA, and that at the Texas job his pay was closer to $30 an hour. ECF No. 33-6, PageID.321. He further testified that he sought out different opportunities in Michigan and elsewhere but was barred by a non-compete agreement he signed from seeking work in the sweeping industry in Michigan for 24 months following his termination and, in any event, none of the opportunities he found paid anything near what he was making at SCA. Id. at PageID.323.

Defendants’ arguments about Bagalis's methodology for calculating economic damages are more appropriate for a Daubert motion, or a motion in limine, rather than a summary-judgment motion. The parties have not submitted any of Mulaj's pay records but, if credited by a jury, Mulaj's testimony is enough to make some amount of a front-pay award appropriate. He testified both that he attempted to mitigate his damages by seeking other work and that, when he finally found a new job in Texas in December 2021, he made much less than he did at SCA.

Many issues remain open, including the appropriate cut-off for any front pay award and whether any periods during which Mulaj was disabled should be excluded. But dismissing Mulaj's claim for economic damages at this stage is premature. Accordingly, Defendants’ motion is DENIED with respect to Mulaj's claim for economic damages.

IV. CONCLUSION

For the reasons explained above, SCA and Hammond's motion for summary judgment is GRANTED IN PART and DENIED IN PART. Mulaj's claim for defamation (Count XIV) is dismissed based on his concessions. The motion is denied in all other respects.

SO ORDERED, this 31st day of March, 2024.

FOOTNOTES

1.   Arif Rexhaj has filed a companion case, which is also pending before this Court. See No. 22-11511 (E.D. Mich. 2022).

TERRENCE G. BERG, United States District Judge