Harris v. River Rouge Hous. Comm'n, Case No: 2:11-cv-14030

CESILY D. HARRIS, Plaintiff,

v.RIVER ROUGE HOUSING COMMISSION, Defendant.

Case No: 2:11-cv-14030

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: March 29, 2013

Honorable Gerald E. Rosen

Magistrate Laurie J. Michelson

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Cesily D. Harris commenced this action on September 15, 2011, alleging that her former employer, Defendant River Rouge Housing Commission ("RRHC") violated the Fair Labor Standards Act, the False Claims Act, the Michigan Whistleblower Protection Act, and Michigan Public Policy when it discharged her because she was threatening to expose RRHC's plan to submit false reports to the U.S. Department of Housing and Urban Development which overstated the rate of pay that she and some of her coworkers were receiving.

On May 31, 2012, RRHC filed a motion seeking summary judgment in its favor on all claims. Plaintiff has responded to Defendant's Motion, and Defendant has replied to Plaintiff's response. Having thoroughly reviewed and considered the parties' briefs and supporting documents and the entire record of this matter, the Court has determinedthat the pertinent allegations and legal arguments are sufficiently addressed in these materials and that oral argument would not assist in the resolution of this motion. Accordingly, the Court will decide Defendant's motion "on the briefs." See L.R. 7.1(f)(2). This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

Plaintiff, Cesily D. Harris began working for the River Rouge Housing Commission as a temporary administrative assistant in October, 2010. [Harris Dep., p 107]. Approximately six months later, she applied for a permanent position with RRHC as its Capital Funds Program ("CFP") Assistant. [Harris Dep. p. 112]. Ms. Harris interviewed for the position with RRHC Executive Director Michael Sloan and Commissioners Dwight Black and Rayfield Rogers. [Harris Dep. p. 114] [Sloan Dep. p. 62] During the interview, Ms. Harris was told that the CFP Assistant position entailed assisting the Coordinator, Willie Burgess, with various tasks related to maintenance and emergency maintenance, and "assisting him with any reports or paperwork that he need[ed] [her] to assist him with," [Harris Dep. p. 115] and that she would be working on the five-year plan.

Approximately two weeks later, Ms. Harris was notified that she had been selected for the CFP Assistant by Director Sloan, subject to approval by the RRHC Board, and that she would be paid $15.00 per hour. [Sloan Dep. p. 64]. Ms. Harris was unanimously approved by the Board on June 2, 2011, and she began working as a CFP Assistant shortly thereafter. [Plaintiff's Ex. H].

According to Ms. Harris, she was not told by Director Sloan or anyone else at this or any other point before receiving her first paycheck as a CFP Assistant that there was a 'probationary' or 'orientation' period for new hires, or that her hourly wage would be less than $15.00 per hour during her first ninety days or six months in the position. [Harris Dep. pp. 125-26] The RRHC Personnel Policies and Procedures Handbook informs new hires that there is a 90-day 'orientation period' for new hires, during which new hires are evaluated, and after which they will become eligible for fringe benefits, but makes no reference to reduced pay during this period. [Defendant's Ex. 12, p. 11].

In her new position, Ms. Harris prepared and responded to correspondence, answered telephones, and assisted tenants who were having issues with their homes. [Harris Dep., p 176]. She was not responsible for preparing RRHC's budget. [Plaintiff's Ex. F p. 2].

On approximately June 6, 2011, Mr. Sloan gave Ms. Harris a document that listed the rate of pay and salary of each RRHC employee, and instructed her to input its contents into a scheduling report. [Harris Dep., p. 147]. According to Ms. Harris, Sloan told her: "This is the names, [sic] the pay rate and the salary. This is what I want you to put in the report." [Harris Dep., p 58]. Ms. Harris agreed to do so. [Harris Dep. p. 34]. The previous week, she had been told by Mr. Burgess that the scheduling report would be "sen[t] out to HUD" and had shown her how to download blank forms from the HUD website. [Harris Dep. p. 33].

As she had been instructed, Ms. Harris downloaded a blank scheduling report from the HUD website and began copying the information from the document she'd beengiven by Mr. Sloan into the downloaded form. The document listed Ms. Harris' hourly rate of pay as $15.00. [Plaintiff's Ex. I]. Upon completion, Ms. Harris was to give the completed scheduling report to Mr. Burgess. [Harris Dep. pp. 37-39].

Ms. Harris received her first paycheck for her position as a CFP Assistant on June 16, 2011. Ms. Harris had believed that she would be paid $15.00 per hour, but her first check indicated that she was only being compensated $13.50 per hour. [Harris Dep., pp. 125-26] [Plaintiff's Ex. 15].

Ms. Harris was upset because she was receiving less than she felt she was promised and was concerned that she was being asked falsify reports which were to be filed with a federal agency. That day, she spoke to Mr. Burgess and told him, "I can't report a falsified HUD report," to which he responded, "I understand, let me check some things out." [Harris Dep. p. 53].

She also wrote a letter to Mr. Sloan with the subject line: "Employee Grievance/Complaint." The letter expressed her concern and disappointment regarding her rate of pay. The letter reads: "Now if you told me that the pay rate for this position is $15.00 an hour and that is what you are reporting to HUD, I would like to receive $15.00 as my pay rate. I do not understand why I have to wait 6 months for my increase, if there is a policy on this I need a copy." [Defendant's Ex. 16] She dropped the letter off in his mailbox or on his desk that morning, and he came to speak with her later that day about the letter and the probationary period. [Harris Dep., pp.54-55] Mr. Sloan promised to get Ms. Harris a copy of the policy stating that new hires are placed on probationarystatus and have their hourly wage reduced. Ms. Harris did not bring up the allegedly falsified report during that meeting.

When she had not received a copy of the policy by June 20, Ms. Harris drafted another letter to Mr. Sloan on June 20, 2011 with "Grievance/Complaint" again as the subject line. In this letter, Ms. Harris wrote: "I'm am [sic] writing because this is my second request of a copy of the RRHC policy stating that each employee has to wait 6 months to get the pay that we were told we would receive upon hire [sic] for each position. I need to meet with you Mr. Sloan or the Commission or I need to contact HUD to get the situation rectified as soon as possible." [Defendant's Ex. 17].

Later that day, Ms. Harris did in fact contact HUD by emailing Ronald Wooster, a Revitalization Specialist in HUD's Office of Public Housing in Grand Rapids. [Defendant's Ex. 18]. In this email, Ms. Harris informed Mr. Wooster that she was being paid less than she had been promised, asked him if he was aware of the probation policy, and asked who she should speak with "to get this matter straightened out." [Plaintiff's Ex. 19]. The email makes no mention of the allegedly falsified reports.

On June 21, 2011 at around 11:00 a.m., Ms. Harris had a meeting with Mr. Sloan, Mr. Rogers, and Mr. Black, during which she was invited to express her concerns. [Plaintiff's Ex. DD]; [Rogers Dep. p. 66]. Ms. Harris insisted that she be given a copy of the probationary pay policy in writing. [Harris Dep. p. 188]. Mr. Rogers recalled that during the meeting, "she explained how she was given payroll information to generate a report to HUD and that she did not feel right filing a report stating that she would be paid $15.00 per hour when she was not getting $15.00 per hour." [Plaintiff's Ex. HH]. Mr.Sloan recalled that "we kept telling her that's not her job duty to do the report so why are you harping on reporting this to HUD and that's not your job?" [Sloan Dep. pp. 123-24]. At the end of the meeting she was given a copy of the RRHC Handbook, which makes no mention of reduced pay during a probationary or orientation period. Ms. Harris acknowledges that during this meeting she did not specifically state that she was being asked to falsify a report. [Harris Dep. p. 63].

There is some confusion regarding what happened next, ¹ but according to Ms. Harris, shortly after this meeting, Ms. Harris and Mr. Sloan had a private meeting in his office. She told him that the policy she had been given had "nothing to do with the percentage of pay being withheld. It has to do with work performance." He responded, "Ms. Harris, we have been doing this for years, over 16-some years." [Harris Dep. p. 189]. She responded, "I don't care what you've been doing for years. I need it in black and white." He asked, "Well, what if I can't produce the document to you?" She told him that if that were the case, "I would have to go over [his] head and contact HUD or whoever else I need to contact to make sure that this is valid." [Harris Dep. p. 189]. He told her, "Well, then I'm going to have to terminate you." Ms. Harris asked, "You're firing me? You're asking me to leave?" Mr. Sloan said, "Yes." [Harris Dep. p 189]. Ms. Harris then grabbed her purse and left. [Harris Dep. p. 190].

According to a statement of the events written by Mr. Rogers on the day this occurred, after Ms. Harris left Mr. Sloan's office, Mr. Sloan told Mr. Rogers and Mr.Black that he believed that Ms. Harris had quit because she had walked out. In any event, Mr. Sloan and Mr. Black agreed that Ms. Harris should be reprimanded for insubordination, disrespectful conduct during the meeting and for having just left work. [Defendant's Ex. 22 p. 2]. Mr. Sloan told Mr. Black and Mr. Rogers that he was already going to "sanction [Ms....