Pernell-Harris v. Oakland Cmty. Coll., Case No. 14-14621

WANDA PERNELL-HARRIS, Plaintiff, v. OAKLAND COMMUNITY COLLEGE, Defendant.

Case No. 14-14621

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 9, 2016

SENIOR U.S. DISTRICT JUDGE ARTHUR J. TARNOW

ORDER PARTIALLY GRANTING AND PARTIALLY DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [30]

Plaintiff Wanda Pernell-Harris, now retired, formerly worked for Defendant Oakland Community College as an advocate for disabled students. In January 2013 she accused Defendant of discriminating against disabled students by providing her office inadequate resources. She claims that Defendant retaliated against her for this complaint, in violation of the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Michigan's Persons with Disabilities Civil Rights Act (MPWDCRA). On April 15, 2016, Defendant filed a Motion for Summary Judgment [Dkt. #30]. On May 23, 2016, Plaintiff filed a Response [37], to which Defendant filed a Reply [42] on June 20, 2016. At the conclusion of a hearing held on July 12, 2016, the Court took the motion under advisement.

For the reasons stated below, Defendant's Motion for Summary Judgment [30] is DENIED WITHOUT PREJUDICE to the extent that Plaintiff's claims are based on Defendant's failure to investigate her November 2013 complaint of harassment, and otherwise GRANTED. The Court will set a deadline for a renewed motion for summary judgment after the expiration of the parties' opportunity under the Local Rules to move for reconsideration of this Order.

FACTUAL BACKGROUND

Plaintiff Wanda Pernell-Harris was employed by Defendant Oakland Community College for twenty-five years as an advocate for students with disabilities. During the times relevant to this suit, the disability advocacy office was called ACCESS, and Plaintiff worked as the ACCESS Coordinator at Defendant's Southfield campus. Plaintiff retired on April 30, 2016, during the pendency of this lawsuit.

On January 22, 2013, Plaintiff spoke at a meeting of Defendant's Board of Trustees and distributed a letter accusing Defendant of illegally discriminating against students with disabilities by failing to provide the Southfield ACCESS office with adequate resources, including a full-time secretary. Shortly thereafter, administrators scheduled a meeting with Plaintiff. Plaintiff asked Mary Haze, an administrative professional, if there was specific information she would likePlaintiff to bring to the meeting. Haze responded, "No. We would just like to get a clearer understanding of your issues."

On February 25, 2013, Plaintiff attended the scheduled meeting with Steven Reif (president of the Southfield and Royal Oak campuses), Cathey Maze (assistant vice chancellor), Mary Ann Sheble (a dean in charge of all ACCESS offices), Bill MacQueen (Human Resources vice chancellor), Gary Casey (director of employee relations), and—according to Plaintiff—Margaret Carroll (director of personnel services). Plaintiff testified that she had no chance to talk about her presentation to the board, and that nobody asked her for more information. She testified that Casey and Carroll accused her of doing things outside of her job description and acting like a social worker. Carroll denied attending the meeting. Casey denied speaking at the meeting, testified that Carroll was not present, and testified that Plaintiff was asked to provide information to support her request for full-time support staff. Plaintiff and Sheble both testified that Sheble hugged Plaintiff a day or two later in consolation for the way the meeting went. However, Sheble contradicted Plaintiff's account of the meeting; she testified that Carroll was not present, that Plaintiff's concerns were discussed, that she and the others were frustrated because they did not understand what Plaintiff was trying to communicate, and that she asked Plaintiff to provide the administrators with an advocacy group newsletter she cited.

Plaintiff claims that coworkers treated her differently after her presentation. She testified that after she made her presentation, coworkers who were formerly welcoming became merely cordial and made their comments "short." She further testified that after her presentation, unspecified people stopped asking her to conduct presentations (including an annual presentation to new faculty) and participate in committees and meetings. She testified that Beverly Stanbrough, dean at the Royal Oak campus, chose Plaintiff's Royal Oak counterpart, rather than Plaintiff, to be on a committee involving prospective students.

Marcia Kosovec (ACCESS Coordinator at the Royal Oak campus), with whom Plaintiff was friendly, testified that she also observed a change in the frequency with which people would seek Plaintiff's opinion or participation. Kosovec testified that she was not sure if the change was on the other people's end or on Plaintiff's end. She testified that Plaintiff stopped wanting to participate and to share her opinion, and that Plaintiff attributed this change to feeling attacked and devalued by Defendant. Kosovec further testified that she attended a meeting with two deans, David Matthews and Lloyd Crews, during which the deans made derogatory remarks about Plaintiff, including asking "who does she think she is." She testified that she did not know whether their comments were connected to Plaintiff's complaint.

Plaintiff testified that on the morning of her deposition, she spoke with Letyna Roberts, Defendant's former Manager of State and Federal Funding. She testified that Roberts told her that Phil Hale (a dean) instructed Roberts to spend less time with Plaintiff because people were angered by her presentation to the board. She further testified that Roberts told her that she had heard from Dale Rohrbach (ACCESS Coordinator at the Orchard Ridge Campus) that he had heard from Tim Walter (a dean at the Orchard Ridge campus) that Jackie Shadko (president of the Orchard Ridge campus) had instructed Walter to instruct Rohrbach to limit his time with Plaintiff. Plaintiff also testified that Debbie Fiott, an employee in Defendant's research department, told her that she had heard from unspecified individuals that she should be careful about associating with Plaintiff.

In February 2013, a student asked her instructor for an extension on an assignment because she was being harassed by a former instructor, Gina Fournier. Plaintiff sent the instructor an e-mail in support of the student's request. Over a month later, Plaintiff forwarded that e-mail to dean Tony Ingram, referring (without elaboration) to "the extremely stressful condition that [the student] had to endure from [Defendant's] mishandling of the Gina Fournier situation." Ingram forward Plaintiff's e-mail to another recipient, who forwarded it to yet another recipient, who forwarded it to Gary Casey (among others). Casey, as director of employee relations, had been involved in an extensive process of investigatingcomplaints against Fournier from her colleagues, which culminated in Fournier's suspension and resignation. On April 2, 2013, he sent Plaintiff and others an e-mail stating that her reference to the mishandling was a "gross misrepresentation" because "each step of this long process" had been handled appropriately. He asked her to "please check the facts first" in the future. Plaintiff responded to clarify that when she spoke of Defendant mishandling the situation, she meant that a college official had inappropriately forwarded the harassed student's e-mail complaining about Fournier to Fournier herself, and Defendant had failed to provide escort services for the student as promised.

In summer 2013 Defendant was audited by Plante Moran PLLC. On July 12 2013, an auditor e-mailed dean Phil Hale, asking for information to explain why two students had been awarded financial aid despite certain facts suggesting they were not eligible. Hale forwarded the questions to Mary Ann Sheble, who forwarded them to Plaintiff. Plaintiff provided a response, attempting to explain that the students qualified under an exception for extenuating circumstances, and asked Hale and Sheble to let her know if they needed additional information. Hale e-mailed Sheble and said that Plaintiff's response seemed inadequate to satisfy the auditors because it "says what happened but doesn't address the policy issues and why they were ignored." Sheble responded to Hale and Plaintiff, attempting to clarify Plaintiff's explanation and asking Plaintiff to supply additional informationthat the auditors might need. Hale then responded to Plaintiff's earlier e-mail, saying he needed to know "why the awards didn't follow procedures." Plaintiff testified that she considered this a personal attack in part because the auditor's questions concerned eligibility governed by financial aid "rules," but Hale accused her of violating "policy." She conceded that following up on the auditors' questions was part of Hale's job, but objected to the manner in which he did so. She responded to his e-mail, providing further explanation and protesting his "false accusations and insinuations." Sheble replied, assuring Plaintiff that she and Hale were just seeking information for the auditors rather than accusing her of making inappropriate awards, and reminding Plaintiff that she had asked for additional information that Plaintiff failed to include in her follow-up explanation. Plaintiff replied with the requested information. Sheble thanked her and reiterated that she and Hale were not judging her decisions.

On October 31, 2013, Plaintiff met with Bill MacQueen, vice chancellor of Human Resources, and Margaret Carroll, the director of Personnel Services. There is no evidence directly addressing what Plaintiff and MacQueen discussed, prior to the meeting, concerning who would attend the meeting and what would be discussed. Plaintiff testified that she expected to meet only with MacQueen, and that she asked him why Carroll was...