Petition for Writ of Certiorari — Laura Beny, Petitioner v. University of Michigan, et al.
Supreme Court briefOct 27, 2025
Ask Donna
What actually matters in this document.
Text
APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Opinion, U.S. Court of Appeals for the
Sixth Circuit (July 29, 2025) .............................. 1a
Judgment, U.S. Court of Appeals for the
Sixth Circuit (July 29, 2025) ............................ 27a
Opinion and Order Granting Defendants’ Motion
for Summary Judgment, U.S. District Court
for the Eastern District of Michigan
Southern Division (July 17, 2024) ................... 29a
OTHER DOCUMENTS
Appellant Laura Beny’s Principal Brief
(November 7, 2024) .......................................... 81a
Plaintiff’s Response in Opposition to Defendants’
Motion for Summary Judgment
(December 15, 2023) ....................................... 132a
Expert Report of Richard W. Painter
(August 19, 2023) ........................................... 173a
App.1a
OPINION, U.S. COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(JULY 29, 2025)
NOT RECOMMENDED FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
________________________
LAURA BENY,
Plaintiff-Appellant,
v.
UNIVERSITY OF MICHIGAN; MARK D. WEST;
UNIVERSITY OF MICHIGAN LAW SCHOOL;
UNIVERSITY OF MICHIGAN
BOARD OF REGENTS,
Defendants-Appellees.
________________________
No. 24-1674
On Appeal from the United States District Court
for the Eastern District of Michigan
Before: BOGGS, GRIFFIN, and NALBANDIAN, Circuit Judges.
OPINION
BOGGS, Circuit Judge. Laura Beny, a female
African American tenured law professor at the University of Michigan Law School, brought this employment-discrimination and retaliation action against
App.2a
her employer and supervisor, the University of Michigan and Dean Mark West, respectively, after she
faced disciplinary action. Beny alleged race discrimination, sex discrimination, and retaliation under Title
VII of the Civil Rights Act and Michigan’s ElliottLarsen Civil Rights Act. Beny also alleged a violation
of the Equal Pay Act. The district court granted summary judgment in the defendants’ favor on all of
Beny’s claims, and Beny appeals. We affirm.
I.
Facts & Background
A. Factual background
In 2003, Plaintiff-Appellant Laura Beny was
hired as a tenure-track assistant professor at the University of Michigan Law School. She was granted
tenure in 2008 and received an endowed chair in 2019,
which she still holds. Beny says that when she was
hired, “she was only the second African-American female tenure-track professor hired at [the Law School] in
its then nearly 150-year history.”
Beny’s complaint and brief describes her as “a respected advocate within the University of Michigan for
the advancement and rights of women and AfricanAmerican students and professors.” Beny says that
from 2014 to 2016, she tried to bring attention to what
she saw as “inequities at the law school.”
Beny did not have a disciplinary record until
2018, when she received her first disciplinary notice.
Indeed, Beny states that she “was the only tenured
professor to ever be disciplined by Dean West in his
over 10 years as Dean.”
App.3a
Events Giving Rise to Beny’s First Disciplinary
Notice. Beny received her first disciplinary notice in
May 2018 for her disruptive conduct at a student-led
event held in April 2018. The notice—which amounted
to a warning and did not have any formal consequences—was signed by Beny; it described the
relevant events as follows: during the Young Junior
Scholars’ Conference, an international academic conference, Beny, who was not a scheduled speaker,
shouted “Mark! Are you going to take questions?” at
West after he made introductory remarks. West declined the invitation and left the room. Beny then
approached the podium and “demanded to speak or
simply began speaking,” presenting herself as a tenured
professor. She then “implied . . . that the Law School
intentionally sabotaged one of [her] classes because it
made an error in the exam instructions during the
registration period.” Soon after, one of the panelists
stood up to leave, and Beny “accused [them] of leaving
to call the police, and . . . repeatedly challenged [them]
to call [the police.]” Beny’s tone was “intimidating,”
and she raised her voice to a “near shout.”
After unspecified audience members tried to tell
Beny that the conference “was not the right forum to
raise [her] concerns,” she “defiantly continued to interrupt the conference,” describing herself as an
“American citizen” and “Michigan taxpayer” who had
a right to speak. Among other things, Beny admonished
one of the student-organizers who tried to interrupt
her: Beny asked where the student was from, and
when the student said “Israel,” she remarked that
“the student had time to wait for [Beny] to finish.”
The “participants [in the conference] were shocked
and shaken” by Beny’s “lengthy and unprofessional
App.4a
outburst,” and the notice explained that the behavior
had “a negative effect on the overall success of the conference and reflected poorly on the Law School.” A
written account of the incident, penned by some members of the Young Scholars’ Conference shortly after
the incident, remarked that Beny not only ruined
their event but made them “feel not really part of the
Law School’s community.”
While the first notice did not result in any formal
consequences, it mentioned that the incident giving
rise to the notice would be considered when determining sanctions for any future misconduct. The notice
explained that such future discipline could include
“monetary penalties” and “dismissal in accordance
with the appropriate procedures.”
Beny does not meaningfully dispute the University’s account of the incident, but she says that she
disrupted the event because “she was asked to do so
by one of her students who advised . . . Beny that the
conference planning violated the University’s core
principles of equity, diversity and inclusion.”
Events Giving Rise to Beny’s Second Disciplinary
Notice. In February 2019, Beny received a second disciplinary notice, based on her verbal abuse of West’s
assistant, Robyn Grimes, an African American female,
in October 2018. In her brief, Beny vaguely disputes
the nature of the interaction between her and Grimes.
However, Beny refused to provide West any details
about the incident in a meeting following the incident.
And Beny conceded to the trial court that “she may
have asked [Grimes] whether she had a soul” and
emailed Grimes the morning after the interaction to
apologize.
App.5a
The second disciplinary notice imposed a modest
sanction: it pushed back Beny’s eligibility for sabbaticals
by one year. As with the first notice, this notice stated
that the October incident could be considered when
determining appropriate sanctions for future misconduct.
Events following the Second Notice. In fall 2021,
Beny made “several informal complaints with law
school administrators.” As described by the district
court:
In one instance, she reported to administrators that she felt singled out by an email
from Associate Dean for Academic Programming Kristina Daugirdas asking her to keep
her mask on in class as part of the COVID
protocol. . . . That semester, Beny also filed a
complaint with the University Equity Civil
Rights and Title IX (ECRT) office, citing discrimination because she was not asked to
teach in one of the law school’s summer programs. [Beny] says that the complaint also
included allegations against West and Professor Adam Pritchard that went beyond the
summer program. As she reviewed her files
in preparation for her interview with the
equity office, she re-encountered . . . old
emails from West.
Beny describes those old emails from West, which trace
back to around 2008, as “insensitive, inappropriate,
sexist and racist.” And the district court recounted the
email exchanges between West and Beny as follows:
The first . . . occurred on May 22, 2008, when
West emailed her after a social gathering to
App.6a
remark that it was nice seeing her there.
Beny responded that she was “honored” by
West’s presence and noted that the party “totally fell apart” after he left such that her
brother almost had to “save the situation
with some Air Force strategic tactics.” West
responded, “Oh be quiet. I really have missed
you and our stupid emails. I wasn’t sure how
to break the silent impasse. It will be good to
have you back. I liked meeting your brother,
too. I almost broke his neck just to prove that
I could do it, but I held back.”
In early 2010, West told Beny in an email
that he was going to put a picture of her infant daughter on his desk and tell everyone
the child was his. In late 2010, West emailed
her to report that the Law School’s communications office was “all over [his] ass” to
cajole her to sit for a photo shoot due to her
“beauty”; he signed the email, “Your humble
minion, Mark XOXOXO.” Beny responded,
“If I am fucking beautiful, then why does everyone fuck with me! Anyway, I’m getting a
picture in early Jan b/c that threat is scary!:*” West replied, “Cool. Just get with lisa
ASAP so she’ll stop bothering me. And watch
your fucking language!!”
Events Giving Rise to Beny’s Third Disciplinary
Notice. The third disciplinary notice was sent to Beny
on March 31, 2022, and the sanctions imposed within
the notice are the subject of this lawsuit. The several
incidents that triggered the notice are set out below.
In January 2022, the Law School’s Dean of Students received an anonymous student complaint
App.7a
about Beny’s Enterprise Organization (EO) course.
The complaint mentioned concerns about Beny’s preparedness and tardiness to class. Coinciding with that
student complaint, Beny began to use the faculty
listserv intended for official Law School business to
send various emails to faculty. These emails, according
to the University, created “an intimidating, hostile, offensive, and abusive environment.” The third disciplinary notice contains a detailed list of the emails sent
to the listserv; they are too numerous to copy here.
Some of the relevant emails are as follows:
A 1/22/22 email sent to all Law School faculty
members that contained a copy of the late
2010 email sent by West to Beny, described
above,1 with the text, “Hi. If this is how your
so-called boss spoke to you, how would you
feel? Hmmmm. At the time that I received
that email, I was a Mom to a one year old
without a nanny and any relatives in the city
or state.”
A 1/22/22 email sent to all Law School faculty
members that read, “PS. If you don’t have
the courage to comment publicly, you are not
an ally of anyone but yourself.”
On February 9, 2022, Associate Dean for Academic
Programming Kristina Daugirdas emailed Beny to set
up a meeting with her and Chief Operating Officer
Michele Wing to discuss the student complaint. Beny
responded that she would not meet with them while
her internal Title IX complaint was pending.
1 This is the email that West sent to Beny that stated that the
Law School’s communications office was “all over [his] ass” to cajole her to sit for a photo shoot due to her “beauty.”
App.8a
Daugirdas replied that the meeting was mandatory,
but Beny maintained that she would not meet. Beny
then wrote to administrators, “[I]f you continue to
push me, I will have to go very public with some of the
conduct of the members of this admin toward me that
has had an extremely negative impact on the environment here. It will be very embarrassing for this law
school, to say the least.”
On February 14, 2022, Beny addressed the anonymous student complaint with her class. Beny told the
students that she welcomed constructive criticism
but, among other things, implored them not to spread
“malicious lies.” Following another student complaint
sent to Daugirdas detailing that students felt uncomfortable with Beny’s response to the first complaint,
Daugirdas communicated to Beny that administrators
would conduct a midterm evaluation of her course and
directed Beny “to teach on time and in person and to
refrain from any acts that could be considered retaliatory.”
The next day, on February 15, 2022, Beny withdrew from her job responsibilities, writing to her
students: “I am unable to teach at this law school anymore while subjected to arbitrary abuse and retaliation. I love each of you for what you bring to the
world. . . . I have not resigned but the administration
has taken over my teaching and pedagogical decisions.” Soon after, Beny also reneged on her commitment to serve on the dissertation committees of two
graduate students.
When Daugirdas learned of Beny’s email to the
students, she contacted Beny to confirm that she had
indeed sent the communication to her students.
“Copying several additional administrators, Beny
App.9a
responded that she ‘decided not to continue teaching
under your continued racism and retaliation’ and requested that Daugirdas refrain from contacting her
directly.” Beny then emailed Daugirdas, West, and
Wing complaining about Daugirdas’s concerns about
her course and adding that “evil is often sloppy.” After
Beny retained counsel, she met with administrators
on February 25.
Meanwhile, Beny began to send dozens of personal
attacks to individual members of the Law School faculty, some of which resulted in faculty to recommend
that “law enforcement be enlisted to conduct a threat
assessment.” On February 24, 2022, for example, Professor Alicia Davis, who is African American, reported
to West that Beny telephoned her. Describing the call
as “incredibly disturbing,” Davis reported that Beny
said to her, among other things, “what evil, Satanic
motive drives you?” Following the call, Beny texted
Davis, “God will deal with you.”
Beny also threatened the faculty member who
was serving as the replacement instructor for her EO
course. On February 25 she emailed the replacement
instructor, “If you don’t give me access to the course
materials I created, you will be dragged into my lawyers [sic] investigation and EEOC complaint.” In
another email, she accused the replacement instructor
of being a “racist” and a “coward” because he reported
her earlier threat to administrators. Likewise, Beny
sent several emails to Professor Nick Bagley, husband
of Associate Dean Daugirdas. In those emails, sent in
late February 2022, Beny accused Bagley of racism
and, among other things, remarked that it was “bizarre” that he and his wife were hired by the Law
School.
App.10a
On February 27, 2022, Beny filed with the University’s “Work Connections” office2 an online claim
for medical leave, citing a work-related psychological
injury. The district court explained that Beny “believed
she was applying for leave under the Family Medical
Leave Act, [but] she actually had filled out paperwork
for a workers’ compensation claim.” The form email
confirming receipt of Beny’s report, sent to Beny on
February 27, appears to be automated; the email
stated that her “supervisor” was copied on the email
“as confirmation,” but the email does not include any
specific information about the nature of Beny’s claim,
and Beny’s supervisors do not appear to have in fact
been copied on the email.
On March 31, 2022, West issued Beny her third
notice of disciplinary action. The lengthy notice detailed
the above incidents and communications. It set out
three specific issues with Beny’s performance: 1) her
“willful refusal to perform [her] duties as a tenured
professor”; 2) “[her] retaliation against students in her
[EO] class”; and 3) “[her] continued harassment of colleagues.”
Beyond citing the abandonment of her class and
discussing the above-described “retaliation” and “harassment” of her colleagues, the notice stated that
Beny failed to attend and evaluate other professors’
courses that she was assigned to review as a member
of the Academic Standards and Practice Committee.
The notice also highlighted that Beny is “the only
2 The University’s Work Connections office is “responsible for administering the University’s Workers’ Compensation program
and is designed to help with illnesses and injuries—whether they
occur on the job or not.”
App.11a
tenured faculty member not on leave who has not attended a single faculty meeting or job talk” during the
academic year.
As a sanction, Beny’s pay was frozen in place
through June 30, 2027, meaning that she would keep
her salary, but not receive any scheduled increases.
Beny was also rendered ineligible for summer funding,
some other funding sources, and sabbaticals. The letter explained that Beny’s salary would not return to
that of her cohort, and it requested that Beny prepare
a detailed plan for returning to her responsibilities as
a faculty member.
On April 8, 2022, Beny “clarified with the University’s Work Connections office that she had intended to
apply for FMLA leave.” Indeed, the top of Beny’s claim
form contains a note from Beny: “the law school admin. was made aware of my application for workers
comp (which I cancelled and changed to FMLA)[.]”
Beny’s FMLA leave was approved on April 15, 2022,
for the period between February 15, 2022, and May
15, 2022. Thus, for that period, Beny’s “use of paid or
unpaid time” was not affected by her absence, and,
upon her return, Beny would be “placed in the same
position [she] had before the absence started or an
equivalent position.” West estimated that he learned
of the University’s approval of Beny’s FMLA leave
around early April. An email was sent to Wing on
April 15 stating that “[s]ufficient medical documentation has been received that confirms Laura Beny’s
inability to work as of 2/15/2022 due to a medical condition.”
App.12a
B. Procedural background
In May 2022, Beny filed a charge with the Equal
Employment Opportunity Commission (EEOC), alleging discrimination and retaliation on the basis of race,
gender, and disability. She received a right-to-sue letter from the EEOC on May 31, 2022.
Right-to-sue letter in hand, Beny filed her complaint on August 26, 2022. Beny’s operative complaint
pleaded claims under Title VII of the Civil Rights Act
of 1968 and Michigan’s Elliott-Larsen Civil Rights Act
(ELCRA) for sex and race discrimination (Counts I and
III), retaliation in violation of the same statutes (Counts
II and IV), and an Equal Pay Act claim against the
University of Michigan (Count V).3 After the close of
discovery, the defendants moved for summary judgment on Beny’s claims. The district court granted the
defendants summary judgment in its July 2024 Opinion. This timely appeal followed.
II. Standard of Review
We review a district court’s grant of summary
judgment de novo. Chen v. Dow Chem. Co., 580 F.3d
394, 400 (6th Cir. 2009). Summary judgment is appropriate where “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). The “mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine
3 The Title VII claims were pleaded against the University of
Michigan only, while the ELCRA claims are pleaded against defendant Mark West only.
App.13a
issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247–48 (1986).
We draw all reasonable inferences in Beny’s favor. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). “Conclusory allegations,
however, are not evidence and will not, by themselves,
permit [Beny] to survive summary judgment.” Boshaw
v. Midland Brewing Co., 32 F.4th 598, 603 (6th Cir.
2022). Thus, the critical question is “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson,
477 U.S. at 251–52.
III. Analysis
Beny’s discrimination and retaliation claims rest
on circumstantial evidence, so we apply the burdenshifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Chen, 580 F.3d
at 400 (discrimination); Laster v. City of Kalamazoo,
746 F.3d 714, 730 (6th Cir. 2024) (retaliation). Within
this framework, “the plaintiff must first establish a
prima facie case of discrimination; if the plaintiff does
that, the employer must identify a legitimate, nondiscriminatory reason for the adverse employment
action; and if the employer does that, the plaintiff
must prove that the employer’s reason is a mere pretext for discrimination.” Sloat v. Hewlett-Packard
Enter. Co., 18 F.4th 204, 209 (6th Cir. 2021). “[O]n a
motion for summary judgment, a district court considers whether there is sufficient evidence to create a
genuine dispute at each stage of the McDonnell Douglas
inquiry.” Risch v. Royal Oak Police Dep’t, 581 F.3d
App.14a
383, 390–91 (6th Cir. 2009) (quoting Blair v. Henry Filters, Inc., 505 F.3d 517, 524 (6th Cir. 2007)).
A. Prima Facie Case
To make out a prima facie discrimination case under Title VII or ELCRA, “a plaintiff must show that
she was (1) a member of the protected class, (2) subject
to an adverse employment action, (3) qualified for the
job, and (4) treated differently than similarly situated . . . employees for the same or similar conduct.”
Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir.
2004).
The first three elements are not in dispute, but
the parties clash over the fourth element— whether
Beny has demonstrated that a similarly situated, nonprotected person was treated more favorably by the
University. See Peeples v. City of Detroit, 891 F.3d 622,
634 (6th Cir. 2018). To satisfy the similarly situated
requirement, a plaintiff must establish that the proffered “comparable employee is similar ‘in all of the
relevant aspects.’” Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008)
(quoting Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344, 352 (6th Cir. 1998)).
Relevant factors include whether the plaintiff
and the Title VII comparator: (1) share the same supervisor; (2) are subject to the same standards; and (3)
engaged in the same conduct “without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment
of them for it.” Ercegovich, 154 F.3d at 352 (internal
quotation marks omitted). For a plaintiff and comparator to be considered to have been engaged in the
same conduct, the conduct generally must be similar
App.15a
in kind and severity. See Clayton v. Meijer, Inc., 281
F.3d 605, 611 (6th Cir. 2002).
The district court determined that Beny put forward an adequate comparator in Professor Mathias
Reimann, a white male professor who also reports to
West. The district court explained that Reimann “behaved in a hostile manner to . . . female Administrative Assistants,” but he was not disciplined “even
though officials were aware of at least some of his conduct.”
The University argues that Reimann is not a Title VII comparator because there are significant
“differentiating” circumstances that distinguish his
conduct and the University’s treatment of him for it.
See Ercegovich, 154 F.3d at 352. For instance, Reimann
had no disciplinary history when the University
learned of his inappropriate behavior. This difference,
the defendants argue, distinguishes Reimann from
Beny, who had received two previous disciplinary notices before the punishment at issue here. See, e.g.,
Tennial v. United Parcel Serv., Inc., 840 F.3d 292,
303–04 (6th Cir. 2016) (suggesting that differences in
“disciplinary history” could establish that a supposed
comparator is not similarly situated to the plaintiff).
Setting aside the difference in disciplinary history between Beny and Reimann, the University also argues
that Beny’s withdrawal from her teaching duties differentiates her from Reimann; indeed, Beny’s students,
rather than other faculty or staff, suffered from much
of Beny’s conduct, as described above. See Clayton, 281
F.3d at 612 (affirming summary judgment in the employer’s favor where proffered Title VII comparators
had engaged in the same negligent acts but caused
less harm than the plaintiff).
App.16a
While the University’s arguments on this point
hold some persuasive force, we need not address them.
Even assuming arguendo that Beny made out a prima
facie case, her discrimination claims still fail “because
she has failed to create a genuine issue of material fact
as to pretext.” Chen, 580 F.3d at 402. Thus, the following pretext analysis assumes, without deciding, that
Beny established a prima facie case of discrimination.
See ibid.; see also Carter v. Univ. of Toledo, 349 F.3d
269, 273 (6th Cir. 2003) (assuming that the plaintiff
met her initial burden by establishing a prima facie
case for her Title VII discrimination claim).
Likewise, while “[t]he prima facie elements of a
retaliation claim are similar but distinct from those of
a discrimination claim,” the analysis below also assumes without deciding that Beny made out a prima
facie retaliation case. See Michael v. Caterpillar Fin.
Servs. Corp., 496 F.3d 584, 595 (6th Cir. 2007); see also
Blackshear v. Interstate Brands Corp., 495 F. App’x
613, 619 (6th Cir. 2012) (skipping analysis of whether
the plaintiff had shown a prima facie case of Title VII
retaliation and holding that “[e]ven assuming that [the
plaintiff] made out a prima facie case of retaliation,
she again has not shown that [the defendant’s] non-discriminatory reason for firing her . . . was pretextual”).
B. Legitimate Non-Discriminatory Reason &
Pretext
To demonstrate pretext, Beny has the burden to
produce evidence from which a reasonable jury could
reject the University’s explanation for why it disciplined
her. The pretext analysis is the same for discrimination
and retaliation claims under both Title VII and
ELCRA. See, e.g., Rogers v. Henry Ford Health Sys.,
App.17a
897 F.3d 763, 775 (6th Cir. 2018) (analyzing Title VII
and ELCRA claims “under the same standard”); see
also Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d
599, 614 (6th Cir. 2019).
The University provided a legitimate reason for
the disciplinary actions set out in the third notice:
“[Beny’s] ‘abandonment’ of the classroom, retaliation
against students who raised concerns about her course,
and her troubling communications with other faculty
and staff members.”
Thus, the burden shifts back to Beny to prove pretext. Beny’s primary argument on appeal is that the
University’s reasons for disciplining her are pretextual insofar as “Beny didn’t abandon her class.”
Rather, she was forced to withdraw from teaching because of the “severe emotional trauma she was
experiencing.” Indeed, Beny points out that she was
ultimately approved for FMLA leave backdated to the
period that the University says she “abandoned” her
class. Because the University disciplined Beny for
class “abandonment” when key decisionmakers knew
or should have known she did not abandon her class,
Beny argues, the proffered reasons for discipline are
pretextual.
“Unlike the showing at the prima facie stage, the
burden at the pretext stage is onerous: plaintiffs must
‘demonstrate by a preponderance of the evidence that
the proffered reason was a mere pretext’” for discrimination or retaliation. Hood v. City of Memphis Pub.
Works Div., 2023 WL 1880399, at *6 (6th Cir. Feb. 10,
2023) (quoting Alexander v. Ohio State U. Coll. of Soc.
Work, 429 F. App’x 481, 489 (6th Cir. 2011)). There
are generally three ways for plaintiffs to show pretext:
by showing that 1) the proffered reasons had no basis
App.18a
in fact; 2) the proffered reasons did not actually motivate the employer’s actions; or 3) the proffered reasons
were insufficient to motivate the employer’s action.
Chen, 580 F.3d at 400. The ultimate inquiry in assessing any of these approaches is whether the
“employer made up its stated reason” to mask intentional discrimination or retaliation. Id. at 400 n.4; see
Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883,
888 (6th Cir. 2020).
A court should enter summary judgment for an
employer where no reasonable jury could find that the
employer’s reason for an adverse action is pretextual.
Tingle v. Arbors at Hilliard, 692 F.3d 523, 531 (6th
Cir. 2012). Under the honest-belief rule, applied by
the district court and briefed by both parties, summary judgment is also proper when it would be clear
to a jury that “the employer ha[d] an honest belief in
its proffered nondiscriminatory [or nonretaliatory]
reason” for its adverse action, even when the employer’s reason for its action is later proven false.
Michael, 496 F.3d at 598.
The honest-belief rule precludes a finding of pretext on this record—Beny’s argument fails because a
jury could not reasonably conclude that West and
other key decisionmakers did not honestly believe in
the proffered reasons for disciplining Beny. See Chen,
580 F.3d at 400.
“When an employer reasonably and honestly relies on particularized facts in making an employment
decision, it is entitled to summary judgment on pretext
even if its conclusion is later shown to be mistaken,
foolish, trivial, or baseless.” Id. at 401 (emphasis
added and internal quotation marks omitted). Perhaps
it would be “mistaken, foolish, . . . or baseless,” ibid.,
App.19a
for the University to cite class abandonment as a reason for disciplining Beny if she was forced to withdraw
from her duties due to a health crisis. But under the
“honest-belief” doctrine, a pretext determination does
not hinge on whether rule or policy violations, in fact,
occurred as described (i.e., whether Beny, in fact,
abandoned her class) but on whether West and other
decisionmakers reasonably and honestly believed that
Beny abandoned her class (i.e., whether they honestly
believed in their nondiscriminatory or nonretaliatory
reason for disciplining Beny). See ibid. Said another
way, the University and West are protected by the
honest-belief rule if the decisionmakers genuinely believed that Beny abandoned her class when they
disciplined her.
A plaintiff-employee can undercut an employer’s
use of the honest-belief doctrine “[w]hen the employee
is able to produce sufficient evidence to establish that
the employer failed to make a reasonably informed and
considered decision before taking its adverse employment action, thereby making its decisional process
‘unworthy of credence.’” Wright v. Murray Guard, Inc.,
455 F.3d 702, 708 (6th Cir. 2006) (internal citation
omitted). Likewise, we have explained that a plaintiffemployee may undermine an employer’s honest-belief
argument by producing evidence “that an error by the
employer was ‘too obvious to be unintentional.’” Tingle,
692 F.3d at 531 (internal citation omitted). But the
employee “must allege more than a dispute over the
facts” upon which her discipline was based.
Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir.
2001). And “we do not require that the decisional process used by the employer be optimal or that it left no
App.20a
stone unturned.” Smith v. Chrysler Corp., 155 F.3d
799, 807 (6th Cir. 1998).
Beny argues that West “put his head in the sand”
and knew—or should have known—that Beny “had
filed a disability claim on February 27, 2022, retroactive to the February 15, 2022, date of alleged
abandonment.” Thus, Beny contends, it cannot be that
West and other decisionmakers reasonably and honestly relied on Beny’s abandonment of her class in
making the decision to discipline her.
Beny’s argument is unconvincing because the
honest-belief rule considers only “the particularized
facts that were before [the employer] at the time the
[disciplinary] decision was made.” Escher v. BWXT Y–
12, 627 F.3d 1020, 1030 (6th Cir. 2010) (internal citation omitted). And there is no evidence in the record
to suggest that West and others doubted that Beny
“abandoned” her class when she was issued the disciplinary notice. That is, nothing in the record suggests
that any relevant decisionmakers knew about Beny’s
leave application or that it was FMLA related; so they
did not know that the third notice’s characterization
of Beny having “abandoned” her class was contestable.
The administrators’ testimony that each was unaware of Beny’s request for FMLA leave makes
perfect sense: none of Beny’s emails sent to administrators or students during the time period at issue
suggest that Beny was applying for FMLA leave; the
confirmation emails sent to Beny after she applied for
workers compensation were not, in fact, copied to the
relevant administrators; there is no evidence that
Beny mentioned any type of leave during her and her
attorney’s February 25 meeting with administrators,
App.21a
including West; and there is no evidence that West
and other key Law School administrators were in
communication with the University office that handles
FMLA leave, seemingly until sometime in April, after
the issuance of the third notice.
Contrary to Beny’s argument, West and other administrators did make a “reasonably informed and
considered” decision before disciplining Beny. See
Wright, 455 F.3d at 708. Again, to make a reasonably
informed decision and secure the protection of the
honest-belief rule, the employer must identify “particularized facts upon which it reasonably relied.” Tingle,
692 F.3d at 531. The detailed nature of the third notice
bears out that decisionmakers reasonably relied on a
thorough investigation—the notice chronicles Beny’s
past disciplinary history, dozens of disruptive texts
and emails sent to faculty, and the steps administrators
took in an attempt to communicate with Beny about her
conduct. Ibid. (“The employer’s claim of honest belief
is necessarily tied to the nature of its investigation and
disciplinary decision process.”).
And as underscored by the district court, that so
much of Beny’s conduct was directed at decisionmakers
themselves, including West and Daugirdas, obviates
some of the need for an extensive investigation. See id.
at 532. Beny cannot show that the University’s decision-making process was “unworthy of credence,” or
that some error made in the process was “too obvious
to be unintentional,” so she cannot show that the University did not have an “honest belief” in the reasons
provided for the discipline. See Smith, 155 F.3d at
807–08.
Beny’s argument is also flimsy insofar as punishment of an employee on FMLA leave need not raise an
App.22a
inference of pretext. As recognized by the district
court, while FMLA leave “may excuse [Beny] from
workplace responsibilities during the months of her
illness, . . . it does not excuse her from acts of misconduct that occurred during that period, and it does not
undermine the defendants’ administrator’s honest belief in the need to issue disciplinary measures.” See
Yarberry v. Gregg Appliances, Inc., 625 F. App’x 729,
739–40 (6th Cir. 2015) (“[W]here there has been employee misconduct—including nonviolent disruptive
misconduct—the employer may terminate the employee for that behavior, even if it is related to his
disability.”). And most of the misconduct cited by the
third notice as reasons for Beny’s discipline is undisputed: that she failed to attend faculty meetings; that
she sent disruptive, sometimes threatening, texts and
emails to faculty; and that she previously received two
other disciplinary notices, both of which warned her of
consequences for future misdeeds.
Finally, Beny argues that the content of West’s
inappropriate emails and Beny’s public airing those
emails in or around January 2022, in part through the
law school faculty listserv—as described above—tend
to show that the reasons given by the University to discipline her are pretext for illegal discrimination. Beny
likely forfeited this argument because it was not
“squarely presented” to the district court. See Thurman
v. Yellow Freight Sys., 90 F.3d 1160, 1172 (6th Cir.
1996).
In any event, Beny’s argument on this point is unpersuasive. Beny relies primarily on Yazdian v.
ConMed Endoscopic Technologies, Inc., 793 F.3d 634,
653–54 (6th Cir. 2015), to suggest that West’s emails
undercut his honest belief in the reasons provided for
App.23a
disciplining Beny. But Yazdian is inapposite. There,
we held that an employer was not protected by the
honest-belief rule where a company “blindly followed”
a direct manager’s recommendation to terminate the
plaintiff. Id. at 654. That is, the company did not conduct any investigation into the direct manager’s
“stated reason for the decision to terminate [the plaintiff],” ibid., and so it could not claim protection of an
honest belief.
Beny does not dispute that West, Daugirdas,
Wing, and other University representatives all participated in discussions about Beny’s conduct and the
ultimate decision to issue the third notice. While Beny
is correct to characterize West as a key decisionmaker
in the disciplinary process, the investigation into
Beny’s conduct was thorough and involved many parties, as explained above. And ultimately, while West’s
emails are objectionable, Beny does not establish a
nexus between the emails and the disciplinary actions
made against her such that a reasonable jury could
determine that discrimination or retaliation somehow
motivated the discipline.
At bottom, Beny presents no evidence from which
a jury could reasonably reject the University’s explanation for the discipline and infer that “the defendants . . . did not honestly believe in the proffered nondiscriminatory [and nonretaliatory] reason[s] for its
adverse employment action.” Tingle, 692 F.3d at 531.4
4 Beny also objects to how the University has characterized her
actions. For instance, Beny challenges the facts within the anonymous student complaint mentioned in the third notice. But as
the district court explained, “a case alleging unlawful [discrimi-
App.24a
Beny’s inability to show pretext means that her
discrimination and retaliation claims under both Title
VII and ELCRA must fail.5 See, e.g., Shefferly v.
Health All. Plan of Mich., 94 F. App’x 275, 282–83, 285
(6th Cir. 2004).
C. Equal Pay Act Claim
Beny’s Equal Pay Act claim fails for much the
same reasons. Indeed, Title VII, ELCRA, and Equal
Pay Act claims often rise and fall together, at least
where they are based on the same set of facts. See, e.g.,
Mallison v. Haworth, Inc., 488 F. App’x 88, 94 (6th Cir.
2012) (“Because we conclude that the district court correctly dismissed Mallison’s [Equal Pay Act] claim, we
also affirm its dismissal of Mallison’s Title VII and
ELCRA causes of action.”).
“The Equal Pay Act prohibits employers from discriminating against an employee on the basis of sex
by paying lower wages . . . for performing equal work,
‘except where such payment is made pursuant to: (i) a
seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of
production; or (iv) a differential based on any other
nation] is not a vehicle for litigating the accuracy of the employer’s grounds for [discipline].” Tingle, 692 F.3d at 530.
5 Beny also tries to establish pretext by arguing at length that
the University “violated [its] procedures by denying [her] . . . a
proper hearing as mandated by Regents Bylaw 5.09,” the University’s dismissal and demotion policy. It is unsurprising that
the district court’s thorough opinion says nothing about Beny’s
Bylaw-related argument because Beny did not make the argument below, as the University presses. Because Beny did not
present the Bylaw-related argument to the district court, it is
forfeited and we do not address it. See Thurman, 90 F.3d at 1172.
App.25a
factor other than sex.’” Briggs v. Univ. of Cincinnati,
11 F.4th 498, 507 (6th Cir. 2021) (quoting 29 U.S.C
§ 206(d)(1)). The fourth exception, a “catch-all” relied
upon by the University, allows a “‘factor other than
sex’ to be an affirmative defense only if, ‘at a minimum, [it] was adopted for a legitimate business
reason.’” Id. at 508 (internal citation omitted). If a defendant meets its burden of showing a legitimate business reason, the plaintiff must then “produce evidence
creating a triable issue of fact as to whether the defendant’s proffered explanation was pretextual.” Ibid.
To make out her Equal Pay Act claim, Beny presented as a comparator Professor John Pottow, a male
member of the faculty whose pay she argues should
have moved in lockstep with her own. The University
concedes that Beny and Pottow receive different salaries, but the University argues, in part, that the pay
disparity stems from Beny’s discipline. Indeed, as explained above, the third notice states that, as a
sanction for Beny’s actions, her pay would be frozen
through June 30, 2027.
Beny briefly argues, in a conclusory fashion, that
the district court erred by granting summary judgment in the defendants’ favor on Beny’s Equal Pay Act
claim because “there is a disputed issue of fact, based
on the testimony of Dean West” regarding whether
Beny was disciplined for her abandonment and other
conduct on bases “other than sex.”
Again, however, Beny has not created a triable
issue on pretext. Beny mentions that the district court
misapplied the applicable Equal Pay Act standard,
noting that “a defendant bears both the burden of persuasion and production on its affirmative defenses.” See
Schleicher v. Preferred Sols., Inc., 831 F.3d 746, 753
App.26a
(6th Cir. 2016) (citation omitted). Beny is correct that,
as the party who bears the burden of persuasion, the
University is required to “demonstrate that there is no
genuine issue as to whether the difference in pay is
due to a factor other than sex.” Ibid. And, because she
is the plaintiff, Beny “bears the burden of producing
evidence of pretext solely where a reasonable jury
viewing the defendant’s evidence could find only for
the defendant.” Ibid. But the district court’s opinion
recognized and properly applied that standard.
Nothing in the record undermines the University’s
proposed connection between Beny’s performance issues
and her pay or creates an issue of material fact as to
whether Beny’s pay freeze was motivated by her sex.
IV. Conclusion
For these reasons, we AFFIRM.
App.27a
JUDGMENT, U.S. COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(JULY 29, 2025)
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
________________________
LAURA BENY,
Plaintiff-Appellant,
v.
UNIVERSITY OF MICHIGAN; MARK D. WEST;
UNIVERSITY OF MICHIGAN LAW SCHOOL;
UNIVERSITY OF MICHIGAN
BOARD OF REGENTS,
Defendants-Appellees.
________________________
No. 24-1674
On Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Before: BOGGS, GRIFFIN, and NALBANDIAN,
Circuit Judges.
JUDGMENT
THIS CAUSE was heard on the record from the
district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED
that the judgment of the district court is AFFIRMED.
App.28a
ENTERED BY ORDER OF THE COURT
/s/ Kelly L. Stephens
Clerk
App.29a
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT, U.S. DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
(JULY 17, 2024)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
________________________
LAURA BENY,
Plaintiff,
v.
UNIVERSITY OF MICHIGAN
BOARD OF REGENTS, and MARK M. WEST,
Defendants.
________________________
Case No. 22-12021
Before: Hon. David M. LAWSON, U.S. District Judge.
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Plaintiff Laura Beny is a tenured professor at the
University of Michigan law school, where she is at
present a member of the faculty. In a second amended
complaint, Beny accuses the defendants of discrim-
App.30a
inating and retaliating against her on the basis of her
race (Black) and sex (female) in violation of state and
federal law. She also alleges a violation of the Equal
Pay Act. Discovery has closed, and the defendants
have moved for summary judgment. They acknowledge
that they have imposed employment-related discipline
upon Beny, but they argue, among other things, that
Beny’s own blatantly unprofessional conduct is the
only reason for their actions. Because Beny has not
produced evidence that the defendants’ actions were a
pretext for unlawful discrimination or retaliation, she
is not able to demonstrate that a fact issue remains
for trial on any of her claims. The motion for summary
judgment will be granted, and the case will be dismissed with prejudice.
I.
Facts and Proceedings
Beny has been a faculty member of the University
of Michigan law school since 2003, where she teaches
law and economics. She holds a law degree and an economics doctorate from Harvard University, has
published research in numerous prestigious publications, and, in 2019, was named the Earl Warren
DeLano Professor of Law. Beny was the second Black
female tenure-track professor hired at the Law School
and at times since has been one of only two Black tenured professors on the faculty.
A. Background Allegations
Beny’s apparent dissatisfaction with the Law
School’s diversity and outreach practices, which she
would characterize as anemic, likely led to incidents
in 2018, which in turn led to the imposition of employment-related sanctions. However, she traces her griev-
App.31a
ances with former law school dean defendant Mark
West to a series of email exchanges starting in 2008,
which can be viewed as immature, awkward, and unprofessional, but likely not harassing.
In that year, the same year Beny was granted
tenure, defendant West became the Associate Dean of
the Law School. Beny alleges that during his time as
associate dean, West made several statements to her
by email that she found to be inappropriate. The information about these emails has evolved somewhat
since Beny filed her complaint, and only some of the
emails ultimately have become part of the record. The
first instance occurred on May 22, 2008, when West
emailed her after a social gathering to remark that it
was nice seeing her there. ECF No. 96-21, PageID.2720.
Beny responded that she was “honored” by West’s
presence and noted that the party “totally fell apart”
after he left such that her brother almost had to “save
the situation with some Air Force strategic tactics.”
Ibid. West responded, “Oh be quiet. I really have
missed you and our stupid emails. I wasn’t sure how
to break the silent impasse. It will be good to have you
back. I liked meeting your brother, too. I almost broke
his neck just to prove that I could do it, but I held
back.” Ibid.
In early 2010, West told Beny in an email that he
was going to put a picture of her infant daughter on
his desk and tell everyone the child was his. Mark
West dep., ECF No. 109-5, PageID.4127. In late
2010, West emailed her to report that the Law
School’s communications office was “all over [his] ass”
to cajole her to sit for a photo shoot due to her
“beauty”; he signed the email, “Your humble minion,
Mark XOXOXO.” ECF No. 96-19, PageID.2718. Beny
App.32a
responded, “If I am fucking beautiful, then why does
everyone fuck with me! Anyway, I’m getting a picture
in early Jan b/c that threat is scary!:-*” Ibid. West replied, “Cool. Just get with lisa ASAP so she’ll stop
bothering me. And watch your fucking language!!”
Ibid.
Beny’s complaint also included information about
two other emails. She stated that West emailed her in
2009 to remark that he saw her downtown and asked
why she made her male companion walk two feet behind her. That email is not reproduced in the record.
Similarly, the plaintiff also alleged that West emailed
her to ask why she seemed startled to see him after
another off-campus encounter; when she said she did
not recognize him in “street clothes,” he responded
that “some people can’t get used to how awesome I
look in different settings.” Am. Compl., ECF No. 34,
¶ 37, PageID.477. That email also has not been made
a part of the record. Around January 23, 2022, West
formally apologized to the plaintiff in writing for sending one of the 2010 emails. Mark West dep., ECF No.
109-5, PageID.4180; ECF No. 109-4, PageID.4095-96.
B. First Discipline-Provoking Incident
In approximately 2018, Beny’s time at the University began to be marked by contention. In April of
that year, University students organized an international academic conference, but Beny had heard
that organizers did not invite presenters in a manner
that would ensure diversity. Beny dep., ECF No. 1093, PageID.4003. When the students did not respond to
an email Beny sent them expressing her concerns
about the selection process, she decided to speak out
at the conference. Although she was not invited to
App.33a
speak, she attended the conference. Id. at PageID.4001.
After West concluded his opening remarks, she asked
if he would take questions. Id. at PageID.4001. When
he declined, she approached the podium and began to
speak in front of the attendees, identifying herself as
a tenured professor, prominent scholar, taxpayer, and
American citizen. Id. at PageID.4001-02. She stated
that the law school had tried to sabotage one of her
courses and noted that the conference organizers were
perpetuating inequities. Ibid. When a woman got up
and walked towards the front of the room, appearing
as if she was on a phone call, Beny accused her of calling the police and urged her to go ahead. Id. at
PageID.4002. When one of the students stood up and
asked her to stop speaking, she asked him what country he was from. Ibid. A few minutes later, she
concluded her remarks and the conference continued.
Several days later, defendant West called Beny
into a meeting with himself and the Law School’s
Chief Operating Officer, Michele Frasier Wing, to ask
her what occurred at the student conference. To
Beny’s surprise, the meeting was disciplinary in nature, which she did not learn until West and Wing
called her into a second meeting that May and provided her with a disciplinary letter. The letter
characterized Beny’s conduct during the conference as
“unprofessional,” “inappropriate for any member of
the faculty,” and “unacceptable.” Notification of Disciplinary Action, ECF No. 96-4, PageID.2664. The disciplinary letter did not include any consequences but
stated that the incident would be taken into account
if Beny’s conduct was inappropriate in the future.
Ibid. Beny believes that the letter perpetuated racial
and sexist tropes of “the angry black woman.” Laura
App.34a
Beny dep., ECF No. 109-3, PageID.4004. On February
7, 2019, over half a year later, Beny sent West and
Wing a memo detailing her disagreements with the
disciplinary letter and her belief that her actions were
protected speech under University policy. Emails, ECF
No. 109-7, PageID.4193.
C. Second Discipline-Provoking Incident
In October 2018, Beny had a disagreement with
defendant West’s administrative assistant, Robyn
Grimes, outside West’s office. The nature of this disagreement is disputed, but Beny told the assistant that
she felt like she was disrespecting her and did not
treat her as an equal member of the community. She
concedes that she may have asked the assistant
whether she had a soul. The assistant ended the conversation by returning to her office. After Beny
emailed the assistant the next morning to apologize,
West emailed Beny and told her not to go to his office
suite to speak to the assistant. Second Notification of
Disciplinary Action, ECF No. 96-6, PageID.2668. On
November 6, 2018, West called Beny into a meeting
with himself and Wing to discuss the incident with
Grimes. Laura Beny dep., ECF No. 109-3, PageID.4007.
Beny refused to provide him any details about the incident. Id. at PageID.4008. Three months later, West
scheduled a follow-up meeting with Beny and Wing.
Id. at PageID.4008-09. Beny responded by asking why
she needed to keep meeting with him when students
have informed her of instances of “blatant racism” in
the law school. Id. at PageID.4009. West assured her
that he also cared about addressing inequities and
urged her to direct specific allegations to himself or to
the University’s equity office. Ibid. On February 7,
2019, West provided Beny with a memorandum
App.35a
informing her that her eligibility to take a sabbatical
would be delayed by a year as a sanction for the October 2018 incident with his assistant and that she
could be subject to further sanctions if she engaged in
similar conduct in the future. Mark West dep., ECF
No. 109-5, PageID.4185; Second Notification of Disciplinary Action, ECF No. 96-6, PageID.2668-70.
On September 1, 2019, Beny pleaded no contest
to a charge of driving under the influence. Laura Beny
dep., ECF No. 109-3, PageID.4049. On September 4, she
reached out to West and Associate Dean Gil Seinfeld
to inform them that she would be seeking medical
leave for the fall semester because she had been experiencing a health crisis. Both wished her well. Id. at
PageID.4048. She ultimately spent approximately two
weeks in jail on the charge in November of 2019. Beny
researched University policies and determined that she
did not have to report her arrest and conviction to University officials because it was a misdemeanor. Id. at
PageID.4049. She returned to her teaching duties the
next semester, id. at PageID.4050, and the Law
School took no action against her as a result of that
incident.
D. Third Discipline-Provoking Incidents
During the Fall of 2021, Beny registered several
informal complaints with law school administrators.
In one instance, she reported to administrators that
she felt singled out by an email from Associate Dean
for Academic Programming Kristina Daugirdas asking
her to keep her mask on in class as part of the COVID
protocol. She also complained to Daugirdas after she
suggested that Beny bring her daughter, who had to
quarantine due to a COVID-19 outbreak at school, to
App.36a
campus instead of teaching virtually. That semester,
Beny also filed a complaint with the University Equity
Civil Rights and Title IX (ECRT) office, citing discrimination because she was not asked to teach in one of the
law school’s summer programs. Laura Beny dep., ECF
No. 109-3, PageID.4012-13. She says that the complaint also included allegations against West and
Professor Adam Pritchard that went beyond the summer program. Id. at PageID.3992-93. As she reviewed
her files in preparation for her interview with the equity office, she re-encountered the old emails from
West. Id. at PageID.4013-4014. She also reviewed a
March 2021 apology letter made by West to the Michigan Law School community apologizing for using
images of Asian women that trade in racial and sexual
stereotypes on some of his book covers. Id. at
PageID.3988-89.
In late December or early January 2022, Beny began to forward the emails from West to the Law
School’s faculty email list, encouraging the other faculty members to “comment publicly.” Id. at
PageID.4031; Third Notice of Disciplinary Action,
ECF No. 96-17, PageID.2708. She did not forward her
replies to West’s messages. Laura Beny dep., ECF No.
109-3, PageID.4017. On January 28, 2022, she forwarded one of the emails to administrator Wing
asking her to look into potential Title IX issues. Id. at
PageID.4014. Wing directed her to the ECRT office.
Ibid. Beny says that she informed West around February 7, 2022 that she included him in her ECRT complaint. Id. at PageID.3993. On February 8, 2022, she
emailed Wing with the same information, although her
email also accused Wing of “harming me and my
App.37a
family.” Id. at PageID.3993, 4015; Emails, ECF No.
113, PageID.4434.
On January 31, 2022, Dean of Students Kimberly
D’Haene forwarded Daugirdas an anonymous student
complaint about Beny’s Enterprise Organization course.
The complaint generally raised concerns regarding
Beny’s preparedness and tardiness to class. Emails,
ECF No. 96-9, PageID.2677. Daugirdas forwarded the
email to Wing the same day she received it. Id. at
PageID.2676. On February 9, 2022, Daugirdas emailed
Beny to set up a meeting with her and Wing to discuss
the complaint. Emails, ECF No. 96-10, PageID.2682.
Beny responded that she was not comfortable meeting
while her ECRT complaint was pending against the
administration. Ibid. Daugirdas informed Beny that
the meeting was not optional and detailed the contents of the student complaint. Id. at 2681-82. Beny
and Daugirdas exchanged several additional emails
about whether a meeting to discuss the complaint was
appropriate, but Beny again emphasized that she
would not meet with administrators without counsel
due to her pending civil rights complaints. Id. at
PageID.2680. She also wrote, “[I]f you continue to
push me, I will have to go very public with some of the
conduct of the members of this admin toward me that
has had an extremely negative impact on the environment here. It will be very embarrassing for this law
school, to say the least.” Ibid. Beny filed another
ECRT complaint on February 13, 2022, naming West,
Daugirdas, and Wing as persons involved. Laura Beny
dep., ECF No. 109-3, PageID.4017.
On February 14, 2022, Beny addressed the
anonymous student complaint with her class. Discussing the complaint for about ten minutes, Beny told the
App.38a
students that she welcomed constructive criticism but
asked them not to spread “malicious lies.” Id. at
PageID.4034. She was particularly concerned by an
allegation that she had called for assignments to be
due on January 17, which could not be true, she maintained, because that was Martin Luther King, Jr. Day,
and there was no class. Ibid. After concluding her remarks, she returned to the course’s subject matter.
She thought that the session, which was recorded on
Zoom, ended well. Id. at PageID.4075. On February
15, Daugirdas received a follow-up to the anonymous
student complaint, which took issue with how Beny
had handled the initial complaint in class and raised
additional concerns about the course. Emails, ECF No.
96-12, PageID.2691. Daugirdas emailed Beny, stating
that administrators would conduct a midterm evaluation in her course and directing her to teach on time
and in person and to refrain from any acts that could
be considered retaliatory. Emails, ECF No. 113,
PageID.4517-18. At that point, Beny emailed her students, stating,
Dear Students:
I am unable to teach at this law school anymore while subjected to arbitrary abuse
and retaliation. I love each of you for what
you bring to the world. Just know that you
are valued for who you are.
I have not resigned but the administration
has taken over my teaching and pedagogical
decisions,
I love each of you for what you bring to the
world. Thanks.
Thanks.
App.39a
Emails, ECF No. 96-13, PageID.2693.
When Daugirdas learned of Beny’s email to the
students, she contacted Beny to confirm. Emails, ECF
No. 96-14, PageID.2694. Copying several additional
administrators, Beny responded that she “decided not
to continue teaching under your continued racism and
retaliation” and requested that Daugirdas refrain from
contacting her directly. Ibid. She also sent a separate
email to Daugirdas, West, and Wing complaining
about Daugirdas’s concerns about her course and stating that “evil is often sloppy.” Emails, ECF No. 113,
PageID.4518. On February 19, she informed a student
that she could no longer serve on his dissertation committee. Emails, ECF No. 96-16, PageID.2697.
A meeting between administrators and Beny ultimately occurred on February 25, after she had
retained an attorney. Laura Beny dep., ECF No. 1093, PageID.4040. West, Daugirdas, and Sascha Matish,
a university HR employee, attended the Zoom session,
which was meant to discuss the student-complaint incident. Ibid. West testified at deposition that he had
not read the student complaint before the meeting and
was unaware of how Beny had addressed it in class.
ECF No. 109-5, PageID.4155. During the month of
February, Beny continued to send emails to the law
school email list and to individual faculty and staff.
Third Notice of Disciplinary Action, ECF No. 96-17,
PageID.2708. The emails and communications are numerous, and Beny does not contest making them. ECF
No. 109-3, PageID.4040. They include:
An email to all faculty members asking if
any had “swallow[ed] this level of abuse and
perform[ed] at the highest levels of per-
App.40a
formance for decades?” ECF No. 96-17,
PageID.2708.
An email to all faculty members accusing
them of silence. Ibid.
An email to all faculty members that included
a rhetorical “Email I Never Received.” Ibid.
In response to an email announcing new faculty hires, an email to all faculty members,
remarking, “What is brilliant about hiring
qualified candidates? What stands out as especially brilliant? Who is brilliant at this
time?” Id. at PageID.2709.
An email to Daugirdas, Wing, Vice Provost
Robert Sellers, and Senior Investigator Tanya
Castrogiovanni accusing administrators of
an “incompetent” investigation into her complaints. Id. at PageID.2710.
An email to the same individuals inquiring
how “the dean and associate dean [got] so far
as they did when they were not great teachers?” Ibid.
An email to Daugirdas and Wing with an attached article about bullying. Id. at
PageID.2711.
An email to Daugirdas and Wing stating, “So.
You are evil. And this is where I go public.
Good luck to you. Let’s see how you do.” Ibid.
Several emails to West, calling him, among
other things, “a diehard racist and sexist
liar,” noting that his “own teaching record
isn’t great but [he] got to be dean,” and
App.41a
accusing him of retaliation because she
“outed [your] inappropriate comments and
behaviors towards me as my supervisor.” Id.
at PageID.2712.
An email to Professor Vic Khanna, the replacement instructor for her course, stating
that he would be “dragged into my lawyers
[sic] investigation and EEOC complaint” if
he did not give her access to her course materials. Id. at PageID.2713; Laura Beny dep.,
ECF No. 109-3, PageID.4041.
A phone call to a staff member requesting access to the Enterprise Organizations course
website because she “doesn’t want to find
herself on the wrong side of these issues.”
ECF No. 96-17, PageID.2713.
Several emails to Professor Nick Bagley, who
is married to Daugirdas, accusing both of
racism and “attacks against me.” Id. at
PageID.2713-14.
Some of these emails provoked a response from
Professor Barbara McQuade, who testified at her deposition that she contacted West to suggest that he
request a threat assessment after seeing several of
Beny’s emails. Barbara McQuade dep., ECF No. 114,
PageID.4531. The email that prompted the concern
was Beny’s February 23, 2022 communication to the
faculty asking, “how many of you had to swallow this
level and abuse and perform at the highest levels of
performance for decades?” Id. at PageID.4533. The
next day, Beny emailed the faculty again, stating
“Yes, I didn’t think that anyone else did and your silence confirms that. I think it’s a wonderful privilege to
App.42a
be able to focus on your work, teaching and research,
without constant abuse and retaliation. Congratulations to you.” Ibid.
McQuade, one of the recipients, testified that she
found the email “chilling because it appear[ed] to be
directed . . . to all of us.” Ibid. She did not know of
Beny’s prior complaints against officials at the law
school, had never met Beny in person, and was unaware of her race. Id. at PageID.4535-36, 4548. She
acknowledged that while the email could be read as
an expression of hurt, she viewed it differently; its use
of “retaliation” and “congratulations to you” caused
her concern. McQuade then called West and encouraged him to contact the University’s Department of
Public Safety instead of remaining “stoic,” which she
explained was a natural reaction in these situations.
Id. at PageID.4532.
In context, McQuade’s response could be characterized as an overreaction. However, University police
records indicate that West otherwise was motivated to
request a threat assessment after he received an
email from Professor Alicia Davis, a Black female
member of the faculty, stating that Beny had phoned
her and asked, “what evil, Satanic motive drives you”
and later texted her, “God will deal with you.” Police
Report, ECF No. 111, PageID.4233; Mark West dep.,
ECF No. 109-5, PageID.4133. Davis reported that
phone call in an email to West on February 24, 2022.
ECF No. 96-25, PageID.2728. She characterized the
phone call as “incredibly disturbing.” She wrote that
Beny sounded “very distraught” and said that she had
“f**ked her up and dragged her down at every opportunity.” Ibid. Beny also asked Davis “what evil,
Satanic motive drives you?” Ibid. Davis told Beny that
App.43a
she intended to end the call and did not want to have
similar conversations going forward, but Beny hung up
before she could finish speaking. Ibid. Beny then
texted Davis “God will deal with you.” Ibid. Davis reported to West that she did not feel safe and asked
what actions the administration would take. Ibid.
During her deposition, Beny admitted making those
statements but denied that they were intended as
threats. She maintains that she and Davis were discussing what she was going through at the law school.
Laura Beny dep., ECF No. 109-3, PageID.4071. She
admits, however, that she accused Davis of “undermining [her] on every opportunity that she got.” Ibid.
This was not the first time that administrators
had sought a threat assessment concerning Beny. In
April 2018, before the incident at the student scholarship conference, police records indicate that University Vice President Tim Lynch contacted the school’s
public safety department to request a threat assessment of Beny. ECF No. 109-2, PageID.3964. Kevin
Crowley, the responding officer, contacted West to discuss Beny. Id. at PageID.3965. West reportedly stated
that Beny “displays delusions of grandeur where she
will talk about herself in the third person” and believes “everyone is out to get her.” Ibid. West
reportedly added that there is “growing concern from
staff that if Laura does something happens [sic] in the
future they would look back and ask if there would be
signs.” Ibid. In his interview with the responding investigator, West recalled that during a fundraiser
auction for public service students, Beny engaged in
“some kind of a protest,” bidding the price for an event
at a restaurant with him to $3,700, and then taking
the podium in front of approximately 300 students
App.44a
and “admonish[ing] the crowd for some reason.” ECF
No. 109-2, PageID.3964; Mark West dep., ECF No.
109-5, PageID.4140. She then gave the “Wakanda” salute (an apparent reference to the Kingdom of
Wakanda, a fictional country appearing in American
comic books published by Marvel Comics and featured
in the Black Panther movies) and exited the building.
Mark West dep., ECF No. 109-5, PageID.4140. During
his deposition, West estimated that this event took
place in 2015, ibid., but the contemporaneous University police records indicate that West expressed his
concerns about this conduct in March of 2018, ECF
No. 109-2, PageID.3964. On April 20, 2018, West updated his report to the investigator after Beny’s
disruption of the student conference. Id. at 3968. The
report was closed after Crowley reported that he stood
by in an adjacent room while West met with Beny to
discuss the incident at the conference. Id. at PageID.3968.
On March 31, 2022, West issued Beny a Third Notice of Disciplinary Action. ECF No. 96-17,
PageID.2702. As a sanction, Beny’s pay was frozen
through June 30, 2027, and she was made ineligible
for summer funding, several other funding sources,
and sabbaticals. Id. at PageID.2715. The letter also
explained that Beny’s salary would not return to that
of her cohort and requested that she prepare a “detailed plan” for returning to her responsibilities as a
faculty member. Id. at PageID.2715-16. As justification, the notice principally cited Beny’s “abandonment”
of her class and “retaliation” against the students, but
also cited her for
Failing to attend and evaluate assigned
courses as a member of the Academic Stan-
App.45a
dards and Practice Committee. ECF No. 9617, PageID.2705-06.
Being the only tenured faculty member not
on leave to fail to attend any faculty meetings or job talks during the academic year.
Id. at PageID.2706.
Retaliating against students who made an
anonymous complaint in her course by “[taking] bits and pieces of the complaint and
ridicul[ing] it.” Id. at PageID.2706-07.
Using the faculty email list to send numerous
emails about her grievances. Id. at
PageID.2707-08.
Making threatening and harassing statements to various faculty and staff, discussed
above. Id. at PageID.2713.
The notice also stated:
We recognize that you claim that your refusal to perform the responsibilities of your
position, including not only the actions detailed above but also your failure to produce
any original scholarship for several years, is
the result of discrimination. The University
and the Law School take all claims of discrimination and harassment seriously. The
process for reviewing those claims, both internally and externally, has been invoked.
These claims, however, do not excuse you
from properly performing your job, which includes treating others with civility and
respect. Nor do these claims insulate you
App.46a
from the consequences of failing to properly
perform your job.
Id. at PageID.2715.
On February 26 or 27, 2022, Beny filed an online
claim for medical leave citing a work-related psychological injury. Laura Beny dep., ECF No. 109-3,
PageID.4052; Emails, ECF No. 114, PageID.4524. Although she believed she was applying for leave under
the Family Medical Leave Act, she actually had filled
out paperwork for a workers’ compensation claim.
Laura Beny dep., ECF No. 109-3, PageID.4053; ECF
No. 114, PageID.4524. The form email confirming receipt of Beny’s report indicated that her supervisor
was copied on the email, but it does not include any
specific information about the nature of Beny’s claim,
and no supervisor appears on the email’s list of recipients. Emails, ECF No. 114, PageID.4524. On April 8,
2022, she clarified with the University’s Work Connections office that she had intended to apply for
FMLA leave. Laura Beny dep., ECF No. 109-3,
PageID.4053. Her leave was approved on April 15,
2022 for the period between February 15, 2022 and
May 15, 2022. Emails, ECF No. 114, PageID.4520-21.
West believes he was made aware of the University’s
approval of Beny’s leave around that date. Mark
West dep., ECF No. 109-5, PageID.4118.
E. Subsequent Events
Beny filed a charge with the Equal Employment
Opportunity Commission (EEOC) dated May 13, 2022,
alleging discrimination and retaliation on the basis of
race, gender, and disability. She received a right-tosue letter from the EEOC on May 31, 2022. She reports that her doctor cleared her to return to work on
App.47a
May 16, 2022, but the defendants refused to let her
teach a courseload until the Winter 2024 semester.
West stated that he was apprehensive about adding
her to the course schedule sooner because he was concerned that she would “abandon” her students again.
Mark West dep., ECF No. 109-5, PageID.4125. On
September 19, 2022, West told Beny via email that he
was concerned about aspects of her classroom management, including tardiness and absenteeism that
preceded her 2022 departure from the classroom and
directed her to attend five professional development seminars and provide a personal reflection about the contents. Laura Beny dep., ECF No. 109-3, PageID.4056.
Beny did not complete this task until May of 2023.
Ibid. On January 19, 2023, she submitted a follow-up
EEOC complaint alleging that the additional requirements for a return to the classroom amounted to retaliation for her initial EEOC complaint. EEOC Compl.,
ECF No. 65-1. The parties informed the Court at oral
argument that Beny returned to teaching a two-credit
course in the 2024 winter term.
F. Proceedings
After receiving a right-to-sue letter, the plaintiff
filed her complaint in this case on August 26, 2022. It
since has been amended twice, after early motion practice dispensed with some of the theories of liability. See
Beny v. Univ. of Michigan Bd. of Regents, No. 2212021, 2023 WL 4409107 (E.D. Mich. July 7, 2023).
The present operative pleading is the second amended
complaint, which pleads claims under Title VII of the
Civil Rights Act of 1968 and Michigan’s Elliott-Larsen
Civil Rights Act (ELCRA) for sex and race discrimination (Counts I and II), retaliation in violation of the same
statutes (Counts III and IV), and an Equal Pay Act
App.48a
claim against the University of Michigan (Count V). The
Title VII claims are pleaded against the University of
Michigan only, and the ELCRA claims are pleaded
against defendant Mark West only. After the close of
discovery, the defendants moved for summary judgment on all of the plaintiff’s claims.
II. Discussion
Summary judgment is appropriate “if 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). When reviewing
the motion record, “[t]he court must view the evidence
and draw all reasonable inferences in favor of the nonmoving party, and determine ‘whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.’” Alexander v.
CareSource, 576 F.3d 551, 5558 (6th Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25152 (1986)). “The court need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
The party bringing the summary judgment motion
must inform the court of the basis for its motion and
identify portions of the record that demonstrate that
no material facts are genuinely in dispute. Alexander,
576 F.3d at 558 (citing Mt. Lebanon Pers. Care Home,
Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th
Cir. 2002)). “Once that occurs, the party opposing the
motion then may not ‘rely on the hope that the trier of
fact will disbelieve the movant’s denial of a disputed
fact’ but must make an affirmative showing with
proper evidence in order to defeat the motion.” Ibid.
App.49a
(quoting Street v. J.C. Bradford & Co., 886 F.2d 1472,
1479 (6th Cir. 1989)).
A. Discrimination Claims
The defendants contend that Beny’s discrimination
claims are not viable because most of the alleged adverse employment actions occurred outside the time
frame covered by the statute of limitations. They do
concede that the Third Notice of Disciplinary Action is
not time-barred, but, pivoting, they argue that Beny
cannot show discrimination based on that action because she cannot show any comparable white or male
peer treated more favorably than she in similar circumstances. The defendants also maintain that they have
established non-discriminatory reasons for disciplining
her, which are not pretextual based on the undisputed
facts.
Beny responds that fact issues preclude summary
judgment on several elements of her discrimination
claims. She states that the defendants’ decision not to
select her to teach in one of their summer programs
and the March 2022 discipline constitute adverse employment actions. She argues that she was treated
differently from Professor Mathias Reimann, who is a
white male alleged to have engaged in abusive conduct towards staff. She also maintains that the
defendants’ rationale for her discipline was pretextual
because the allegation that she abandoned her class is
without factual basis since she was on a medical leave,
no other professors have been disciplined by West,
and no other professors have received a “threat assessment.”
Discrimination and retaliation claims brought
under Title VII and ELCRA are evaluated under the
App.50a
same standards. Rogers v. Henry Ford Health Sys.,
897 F.3d 763, 771 (6th Cir. 2018); Radtke v. Everett,
442 Mich. 368, 381-82, 501 N.W.2d 155, 161-62 (1993)
(holding that the ELCRA hostile work environment
and retaliation analysis mirrors the analysis under
Title VII for analogous claims); White v. Dep’t of
Transp., 334 Mich. App. 98, 116, 964 N.W.2d 88, 97
(2020) (citing Rasheed v. Chrysler Corp., 445 Mich.
109, 123 n.20, 517 N.W.2d 19, 27 n.20 (1994)).
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., makes it “an unlawful employment
practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual’s race . . . [or] sex. . . . ” 42 U.S.C.
§ 2000e–2(a)(1). To prove race or sex discrimination
under Title VII, the plaintiff must offer evidence that
the defendant took adverse action against her and
that race or sex was a motivating factor. Ondricko v.
MGM Grand Detroit, LLC, 689 F.3d 642, 649 (6th Cir.
2012). These elements may be established by direct or
circumstantial evidence. Johnson v. Kroger Co., 319
F.3d 858, 864-65 (6th Cir. 2003).
In the absence of direct evidence of discrimination,
as in this case, Title VII claims are subject to the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
as modified in Texas Department of Community Affairs
v. Burdine, 450 U.S. 248 (1981). Under this framework, “the plaintiff must first submit evidence from
which a reasonable jury could conclude that he or she
established a prima facie case of discrimination.” Blair v.
Henry Filters, Inc., 505 F.3d 517, 524 (6th Cir. 2007),
abrogated on other grounds by Gross v. FBL Fin. Servs.,
App.51a
557 U.S. 167 (2009). For a Title VII discrimination
claim, a prima facie case consists of proof that (1) the
plaintiff is a member of a protected group, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) she was treated differently than similarly-situated employees that were not
part of the protected group. Peeples v. City of Detroit,
891 F.3d 622, 634 (6th Cir. 2018). Once the plaintiff
offers evidence sufficient to form a prima facie case,
“[t]he defendant must then offer admissible evidence
of a legitimate, nondiscriminatory reason for its action.” Blair, 505 F.3d at 524. If the defendant offers a
legitimate motive, then “the plaintiff must identify evidence from which a reasonable jury could conclude
that the proffered reason is actually a pretext for unlawful discrimination.” Ibid. The plaintiff may establish pretext by showing that the employer’s stated reason either (1) has no basis in fact, (2) was not the actual
reason for the action, or (3) is insufficient to explain the
employer’s action. White v. Baxter Healthcare Corp.,
533 F.3d 381, 393 (6th Cir. 2008).
1. Prima Facie Case
Although some of Beny’s complaints fall outside
the period of limitations, she has alleged certain adverse actions, mentioned earlier, on a timely basis.
She also has shown that she is a member of protected
group and that she is qualified for the work and pay
that was denied her. The thrust of the dispute over
Beny’s prima facie case is directed at the fourth element’s requirement that the plaintiff identify similarlysituated employees who were treated better than she.
For that, Beny points to Professor Matthew Reimann.
Reimann is a white male who also is a tenured faculty
member at the Law School. Beny has furnished evi-
App.52a
dence that he: allegedly mistreated his former administrative assistant, Linda Wielfaert, by, among other
things pounding her desk, referring to himself as her
“master,” urging her to avoid gaining weight during
her recovery from an injury, and calling another assistant an “idiot,” Linda Wielfaert dep., ECF No. 109,
PageID.3865-71; allegedly using a rude tone in conversations with Rashida Douglas, the law school’s
registrar, Kristina Daugirdas dep., ECF No. 111,
PageID.4300; allegedly engaging in a “heated” discussion with Daugirdas when she met with him about his
interactions with Douglas, id. at PageID.4300-01; and
allegedly telling two staff members who were working
at a law school event, “It must be nice to get paid to
sit and do nothing,” Emails, ECF No. 111, PageID.4256.
Reimann was not similarly disciplined even though
officials were aware of his conduct. Mark West dep.,
ECF No. 109-5, PageID.4153 (stating that he was
aware that there was “some conflict” between
Reimann and the administrative assistant but that
the conflict “really [did not] rise to [his] level.”). The
defendants’ response, if any, was limited until relatively
recently. In a September 28, 2023 email, West stated
that administrators should look to the human resources
personnel for guidance and “draft something” for
Reimann’s file based on the incidents. Emails, ECF
No. 111, PageID.4256. Reimann was directed to apologize to the two staff members working the event who
were insulted by his comment. Id. at PageID.4257-58.
Beny also cites as comparators Professors Don
Herzog, Carl Schneider, and Karima Bennoune. During
the Fall 2022 semester, a student alleged that Herzog
“asked how much money people would accept to experience racism,” slammed the door in his face, and
App.53a
refused to answer his questions. Emails, ECF No. 114,
PageID.4572. The University’s equity office reported
to West that they would “conduct an educational session” with Herzog. Ibid. The allegations regarding
Schneider concern a claim that a grade he assigned a
student in his Art Law course was the result of racial
bias. Id. at PageID.4579-82. Administrators investigated the complaint, and Schneider agreed to amend
the grade. Id. at PageID.4582. The complaint about
Bennoune also involved a student who believed her
grade resulted from race, sex, and gender stereotyping. Id. at PageID.4587-89.
In cases involving allegations of inconsistent levels of discipline, the Sixth Circuit has identified three
factors to gauge similarity: the plaintiff and comparator (1) must share the same supervisor; (2) be subject
to the same standards; and (3) have engaged in the
same conduct “without such differentiating or mitigating circumstances that would distinguish their conduct
or the employer’s treatment of them for it.” Ercegovich
v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th
Cir. 1998). The circumstances of the two employees
need not be identical, but they must be similar in “all
of the relevant aspects.” Ibid. The underlying conduct
need not be identical, but more severe sanctions imposed for more egregious conduct will defeat an
inference of discrimination. Jackson v. VHS Detroit
Receiving Hosp., Inc., 814 F.3d 769, 777 (6th Cir. 2016).
Professor Reimann easily satisfies the requirements of an out-of-class comparator who was treated
less severely than the plaintiff. His alleged conduct,
composed mainly of haughty and egotistical behavior
and harsh and disrespectful treatment of other University employees, is similarly severe to Beny’s. Alle-
App.54a
gations of abusive practices are serious matters in any
workplace. Reimann was not similarly disciplined
even though officials were aware of at least some of
his conduct. Mark West dep., ECF No.109-5,
PageID.4153 (acknowledging that he was aware that
there was “some conflict” between Reimann and the administrative assistant but that the conflict “really [did
not] rise to [his] level”). The defendants’ response, if
any, was disproportionally anemic until relatively recently. In a September 28, 2023 email, West merely
gave advice to consult with human resources and suggested that a note be placed Reimann’s file. Emails,
ECF No. 111, PageID.4256. Later, Reimann was told
to apologize to the two staff members who were insulted by his derogatory remark. Id. at PageID.425758.
The defendants argue that Beny’s conduct is distinct because her discipline was based on her
abandonment of her course mid-semester and “retaliation” against students. But Beny’s FMLA leave was
backdated by the University to February 15, 2022, the
date she informed her class that she could no longer
teach. Drawing all inferences in the plaintiff’s favor
leads to the conclusion that Beny did not “abandon”
her course but instead withdrew due to medical circumstances. That conduct, discussed in more detail
below, likely was not a violation of any rules. And abusive conduct towards staff members is not so distinct
from “retaliatory” conduct towards students. That incident to the side, the greater number of Beny’s
misconduct incidents seems to have centered on her
abuse of the faculty email list-serv and communications towards other staff and faculty members that
was perceived as threatening. See, e.g., Third Notice
App.55a
of Discipline, ECF No. 96-17, PageID.2713 (“You phoned
a faculty member to ask ‘what evil, Satanic motive
drives you’ and texted ‘God will deal with you.’”). The
defendants have failed to distinguish that conduct in
severity from Reimann’s own conduct, which also persisted over time and involved harsh words to multiple
recipients. The defendants insist that Beny’s conduct
is distinguishable because her March 2022 discipline
was her third formal discipline, but she disputes the
factual basis and the appropriateness of the University’s response to each disciplinary event. And to
credit such an argument would be to compound past
misconduct by a comparator that may have gone unsanctioned for several years. See ECF No. 111,
PageID.4252 (complaint about Reimann dated October 8, 2021).
Schneider’s, Herzog’s, and Bennoune’s alleged
misconduct must be viewed differently. Those events
are not similar to Beny’s misbehavior. Schneider and
Bennoune’s misconduct involved a single allegation
each of racial or gender discrimination in grading, and
the allegations against Herzog concern a charge of racial discrimination in the classroom setting. These
incidents, although deserving of institutional attention, do not match the type or number of allegations
regarding Beny’s conducts in any relevant aspect.
Nevertheless, because Beny has established that
Reimann is a proper comparator who was treated
more favorably, she has demonstrated a fact question
as to this element of her prima facie case.
App.56a
2. Defendants’ Non-discriminatory Response
and Pretext
The defendants justify the discipline imposed
upon Beny by citing her abandonment of her classroom
responsibilities and “problematic behavior” toward
students and colleagues. Employee misconduct is a legitimate basis for an adverse employment action, and
the Sixth Circuit has held that threatening statements constitute legitimate reasons for discipline or
termination. Smith v. Leggett Wire Co., 220 F.3d 752,
759 (6th Cir. 2000).
Beny maintains that these reasons are pretextual.
To win that argument on summary judgment she need
only provide evidence “that would allow a jury to find
that her employer’s stated reason ‘is unworthy of credence.’” Ames v. Ohio Dep’t of Youth Servs., 87 F.4th
822, 826 (6th Cir. 2023) (quoting Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 147 (2000)). Here,
however, she comes up short.
Starting with her class abandonment, Beny insists that this charge has no evidentiary support because she received FMLA leave, made retroactive to
the date she ceased teaching her course. The defendants respond that the post-hoc leave designation does
not suggest Beny’s discipline lacked a factual basis
and does not excuse her conduct. And they point out
that Beny did not seek FMLA leave until after the discipline was announced. The relevant administrators
testified repeatedly that they only learned of Beny’s
receipt of FMLA approved leave when it was authorized on April 15, 2022, more than two weeks after they
had disciplined her. Kristina Daugirdas dep., ECF No.
111, PageID.4310; Mark West dep., ECF No. 109-5,
PageID.4118; Laura Beny dep., ECF No. 109-3,
App.57a
PageID.4052 (indicating that she received formal approval for her FMLA leave on April 15, 2022). Moreover,
none of Beny’s many emails to administrators in February suggested that she was seeking a medical leave,
and her emails to the course and her doctoral advisee
similarly do not indicate a medical justification for
leaving.
During oral argument and in their brief, the defendants cited Halpern v. Wake Forest University
Health Sciences, 669 F.3d 454 (4th Cir. 2012), for the
proposition that “the law does not require [the defendants] to ignore misconduct that has occurred because
[the plaintiff] subsequently asserts it was a result of a
disability.” Id. at 465. Halpern, an ADA and Rehabilitation Act case involving a student, is not entirely on
point but does evoke important considerations that bolster the defendants’ argument against pretext.
In Halpern, a former medical student who had exhibited unprofessional behavior on multiple occasions
alleged that his dismissal from the medical school violated the Rehabilitation Act and Americans with
Disabilities Act because the school failed to provide
reasonable accommodations for his mental health disabilities. Id. at 459-60. The district court granted summary judgment in favor for Wake Forest on the
ground that Halpern was not “otherwise qualified” as
a medical student because demonstrating professionalism was a fundamental tenet of the program. Ibid.
The court also held that Halpern’s proposed accommodation — which involved obtaining therapeutic treatment, participating in a distressed physicians program, and continuing as a student on strict probation
— was unreasonable “because of the uncertainty of the
duration and the prospects for success of such
App.58a
behavior modification efforts.” Id. at 460. The Fourth
Circuit affirmed, holding that Halpern failed to demonstrate the existence of a reasonable accommodation
that would have permitted him to satisfy the school’s
professionalism requirement. Rejecting Halpern’s
proposed accommodations, the court reasoned in part
that the request itself was untimely because it came
long after his unprofessional acts. Id. at 465. By the
time Halpern had requested a remediation plan, “he
had already engaged in numerous unprofessional acts
that warranted his dismissal, including acting abusively
towards staff, multiple unexcused absences, repeated
failure to meet deadlines, and tardiness.” Ibid. His request therefore was not for an accommodation “but for
‘a second chance to better control [his] treatable medical condition.’” Ibid. (quoting Hill v. Kan. City Area
Transp. Auth., 181 F.3d 891, 894 (8th Cir. 1999)).
The court continued:
A school, if informed that a student has a disability with behavioral manifestations, may
be obligated to make accommodations to help
the student avoid engaging in misconduct.
But, the law does not require the school to
ignore misconduct that has occurred because
the student subsequently asserts it was the
result of a disability. Halpern’s argument
that he was owed an opportunity to continue
at the Medical School and correct his misbehavior is, therefore, without merit.
Ibid.
The defendants here quote the second sentence of
this passage. Halpern, however, is not on all fours
with this case. The University actually did approve
App.59a
Beny’s FMLA leave request, with an effective date
that matched the date she “abandoned” her course.
Far from ignoring the alleged abandonment, the University appears to have validated Beny’s decision to
cease teaching by granting the retroactive FMLA
leave. That tends to undermine the defendants’ continued reliance on Beny’s purported abandonment of
her class to support of their prospective discipline.
However, the honest belief rule fortifies the defendants’ no-pretext argument. “When an employer
reasonably and honestly relies on particularized facts
in making an employment decision, it is entitled to
summary judgment on pretext even if its conclusion is
later shown to be ‘mistaken, foolish, trivial, or baseless.’” Chen v. Dow Chemical Co., 580 F.3d 394, 401
(6th Cir. 2009) (quoting Clay v. United Parcel Serv.,
Inc., 501 F.3d 695, 713-15 (6th Cir. 2007)). An employer’s belief in the nondiscriminatory reason for its
action is “honest” when “‘the employer made a reasonably informed and considered decision before taking’
the complained-of action.” Michael v. Caterpillar Fin.
Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007)
(quoting Smith v. Chrysler Corp., 155 F.3d 799, 807
(6th Cir. 1998)). The employer must identify “particularized facts upon which it reasonably relied.” Tingle v.
Arbors at Hilliard, 692 F.3d 523, 531 (6th Cir. 2012).
The employer’s investigation need not be “optimal,”
and it does not have to show that “it left no stone unturned.” Smith, 155 F.3d at 807.
The Sixth Circuit has explained that when facing
summary judgment, “the ‘plaintiff must produce sufficient evidence from which the jury could reasonably
reject [the defendants’] explanation and infer that the
defendants . . . did not honestly believe in the
App.60a
proffered nondiscriminatory reason for its adverse
employment action.’” Tingle, 692 F.3d at 531 (quoting
Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th
Cir. 2001)). An unadorned argument that “the employer’s proffered reason has no basis in fact is insufficient to call an employer’s honest belief into question, and fails to create a genuine issue of material
fact.” Ibid. (quoting Seeger v. Cincinnati Bell Tel. Co.,
681 F.3d 274, 285 (6th Cir. 2012)).
Here, the defendants’ honest belief in their reasons for disciplining Beny finds ample support in the
record. During oral argument, defense counsel agreed
with the Court that their proffered legitimate reasons
for Beny’s discipline were her “abandonment” of the
classroom, retaliation against students who raised
concerns about her course, and her troubling communications with other faculty and staff members. These
reasons were supported by an adequate investigation.
West, Daugirdas, Wing, and Sascha Matish, a university HR employee, met with Beny and her attorney on
February 25, 2022 to discuss her decision to leave the
classroom. Laura Beny dep., ECF No. 109-3,
PageID.4040; Emails, ECF No. 96-10, PageID.2681
(discussing topics of meeting). At the time of the meeting, Beny had not requested any form of medical
leave, and the record does not suggest that she indicated during the meeting any desire to take leave.
Instead, Beny first formally sought leave two days
later on February 27, when she filed an online claim
form with the University’s Work Connections office,
citing work-related psychological injury. Laura Beny
dep., ECF No. 109-3, PageID.4052; Emails, ECF No.
114, PageID.4524. Although Beny believed she was
applying for leave under the Family Medical Leave
App.61a
Act, she actually had completed paperwork for a workers’ compensation claim. Laura Beny dep., ECF No.
109-3, at PageID.4053; ECF No. 114, PageID.4524.
And there is little indication that anyone in the Law
School became aware of her request for leave. The
form email confirming receipt of Beny’s report indicated that her supervisor was copied on the email, but
it does not include any specific information about the
nature of Beny’s claim, and no supervisor appears on
the email’s list of recipients. Emails, ECF No. 114,
PageID.4524. On April 8, 2022, she clarified with the
Work Connections office that she had intended to apply for FMLA leave. Id. at PageID.4521-22. Her leave
was approved a week later on April 15, 2022, covering
the period between February 15, 2022 and May 15,
2022. Id. at PageID.4520-21. West and Daugirdas both
testified that they were not made aware of the FMLA
decision until then, nearly two weeks after they had
issued Beny her third disciplinary letter. Mark West
dep., ECF No. 109-5, PageID.4118; Kristina Daugirdas dep., ECF No. ECF No. 111, PageID.4310.
There is, therefore, little, if any, record evidence
suggesting that the relevant administrators were
aware of Beny’s intention to take medical leave during
their investigation into her conduct. Rather, the administrators appear to have conducted a thorough
review of Beny’s actions, as outlined in the 15-page
March 31, 2022 disciplinary letter, and even spoke
with Beny herself. Furthermore, a large portion of the
conduct at issue was directed at the defendants personally, obviating some of the need for an extensive
investigation. See Tingle, 692 F.3d at 532 (finding sufficient an investigation that included a manager’s
personal knowledge of the events in question).
App.62a
Beny’s argument regarding the retroactive nature
of her leave is insufficient to suggest that the defendants “did not ‘honestly believe’ in the proffered nondiscriminatory reason[s]” for her discipline. Braithwaite,
258 F.3d at 493-94. At most, it raises questions about
the “abandonment” justification because the medical
leave excused her workplace attendance. But even
then, at the time of the investigation and decision,
West and other administrators were unaware of
Beny’s request for leave.
Moreover, administrators cited more than her decision to decline teaching her Enterprise Organizations course as justification for her March 2022 discipline. Those additional instances of misconduct are
cataloged above and include non-attendance at required meetings, retaliating against students who
filed complaints about her class conduct, and making
multiple threatening and harassing statements to
various faculty and staff. See ECF No. 96-17,
PageID.2706-15. Beny attempts to rebut some of these
grounds, arguing in particular that her discussion of the
anonymous complaint with students was not retaliatory. But Title VII claims are “not a vehicle for
litigating the accuracy of the employer’s grounds for
[discipline].” Tingle, 692 F.3d at 530. And her argument does nothing to undermine the defendants’
honest belief in these other cited reasons for the discipline. The fact that these incidents occurred during a
period later determined to be a medical leave is irrelevant. The FMLA does not operate to erase conduct
that has occurred because the law “simply does not
force an employer to retain an employee on FMLA
leave when the employer would not have retained the
employee had the employee not been on FMLA leave.”
App.63a
Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d
972, 977 (8th Cir. 2005). And it is well-understood that
employees may be disciplined for misconduct attributed to a disability. See Yarberry v. Gregg Appliances, Inc., 625 F. App’x 729, 739-40 (6th Cir. 2015)
(“E.E.O.C. 2008 Guidance and Sixth Circuit case law
suggest that where there has been employee misconduct — including nonviolent disruptive misconduct —
the employer may terminate the employee for that behavior, even if it is related to his disability.”); see also
Hrdlicka v. Gen. Motors LLC, No. 20-11015, 2022 WL
989339, at *18 (E.D. Mich. Mar. 31, 2022), aff’d, 59
F.4th 791 (6th Cir. 2023), and aff’d, 63 F.4th 555 (6th
Cir. 2023) (collecting cases). The retroactive nature of
Beny’s leave may excuse her from workplace responsibilities during the months of her illness, but it does
not excuse her from acts of misconduct that occurred
during that period, and it does not undermine the defendants’ administrator’s honest belief in the need to
issue disciplinary measures.
Beny disputes the defendants’ conclusions regarding her alleged retaliation against her students and the
concerning communications with faculty and staff
members, but “arguing about the accuracy of the employer’s assessment is a distraction because the question is not whether the employer’s reasons for a decision are right but whether the employer’s description
of its reasons is honest.” Smith v. Chrysler Corp., 155
F.3d 799, 806 (6th Cir. 1998) (citation and internal
quotation marks omitted). Moreover, “a case alleging
unlawful [discrimination] is not a vehicle for litigating
the accuracy of the employer’s grounds for [discipline].” Tingle, 692 F.3d at 530. The defendants
conducted a thorough investigation into Beny’s handling
App.64a
of her course and her numerous inappropriate communications to faculty and staff members, resulting in a
discipline letter that cited three grounds. The defendants’ later decision to grant Beny retroactive FMLA
leave does not shield her from discipline for misconduct
that occurred, and it is insufficient to call into question the defendants’ honest belief in their explanation
of the disciplinary action.
Beny also takes issue with a statement in the discipline letter that “[t]he concern that you might have
access to weapons is a frequent topic of conversation
among faculty members,” Third Notice of Discipline,
ECF No. 96-17, PageID.2714, and refocuses her argument on establishing that the defendants’ decision to
conduct a threat assessment of her was unreasonable.
She also accuses defendant West of falsely testifying
that he did not initiate the 2022 threat assessment
when the report lists him as the complainant. Perhaps
these arguments are attempts to undermine the defendants’ honest belief. However, these arguments are
insufficient to show that the administration’s disciplinary actions lacked a factual basis. West’s deposition
testimony about the threat assessment did not contradict the police report. West stated that he was
confident that he “was involved in the conversation
and the decision” to conduct a threat assessment but
that he did not “have a specific recollection of . . . me
personally asking for the threat assessment to be
done.” Mark West dep., ECF No. 109-5, PageID.4131.
Even if there were reason to disbelieve West, the
threat assessment itself is not a cited reason for the
discipline. And, in any event, the threat assessment
itself actually is some evidence favoring the defendants’ honest belief about the gravity of the situation.
App.65a
After all, West testified that he was motivated to request it after he received an email from Professor Alicia
Davis, another Black woman faculty member who was
the recipient of Beny’s “God will deal with you” communications, which indicated that she did not feel
safe. Mark West dep., ECF No. 109-5, PageID.4133;
ECF No. 111, PageID.4268. The record reflects that
Davis emailed West and Daugirdas on February 24, before West had requested the threat assessment,
stating that she felt threatened by Beny’s phone call
and asking what actions the administration would
take. Emails, ECF No. 96-25, PageID.2728. West also
was encouraged to request a threat assessment by Professor Barbara McQuade after she reviewed Beny’s
emails to the faculty. Barbara McQuade dep., ECF No.
114, PageID.4531-32. Despite Beny’s protests, there is
ample evidence that administrators honestly believed
a threat assessment was necessary.
Instead, Beny’s arguments obscure the reality
that she has provided no rebuttal to several bases for
the discipline, including the charge that she failed to
attend faculty and committee meetings. In fact, she
admitted during her deposition that she sent the troubling emails and text messages listed in the disciplinary letter. ECF No. 109-3, PageID.4040-41. She
maintains that her statement to one faculty member
that “God will deal with you” was not a threat, but she
admitted that she accused the faculty member of “undermining [her] on every opportunity that she got”
and it certainly was interpreted as a threatening communication by Davis. Id. at 4071. She is hard-pressed
to argue that the University’s discipline had no factual
basis or that “the employer’s allegations never
App.66a
happened.” Pelcha v. MW Bancorp, Inc., 988 F.3d 318,
326 (6th Cir. 2021).
Beny has not developed any other grounds for
finding pretext in the defendants’ proffered nondiscriminatory reasons for imposing the discipline that
they meted out. Given the scale of Beny’s undisputed
disruptive and unprofessional behaviors, and the defendants’ proportionate responses, no reasonable jury
could find that any adverse action was motivated by illegal discrimination on the basis of race or sex. The
defendants are entitled to a judgment as a matter of
law on the discrimination claims.
B. Retaliation Claims
The defendants argue that the retaliation claims
must be dismissed because the evidence conclusively
shows that Beny cannot make out a prima facie case
of retaliation. The defendants reason that Beny’s serial complaints of discrimination did not amount to
reasonable opposition to an unlawful employment
practice and therefore cannot constitute protected activity. They also say that the complaints were substantively unreasonable and inappropriately made. Alternatively, the defendants contend that Beny’s own
misconduct, mainly her “abandonment” of her spring
2022 course, was the but-for cause of her March 2022
discipline and furnished a legitimate reason for that
action. They also point out that Beny has suffered few,
if any, adverse consequences despite her history of
complaints, which demonstrates that the defendants
retain employees who make complaints and do not retaliate against them.
Beny counters that fact issues exist on all the elements of her retaliation claims. Adverse action can
App.67a
be found, she says, in the decision not to select her to
teach in one of their summer programs and in the
March 2022 discipline. She maintains that 1) it is undisputed that the defendants knew of her prior race and
gender-based complaints, 2) her pay freeze amounted
to an adverse employment action, and 3) there is a
causal connection between her complaints and the adverse employment action because of the two events
occurred close in time and no other professors ever received discipline. She argues that the defendants’
explanations for the adverse action were pretextual,
again, because she did not abandon her class but was
on a medical leave.
Title VII prohibits an employer from retaliating
against an employee who has opposed an “unlawful
employment practice.” 42 U.S.C. § 2000e–3(a). Retaliation similarly is prohibited by ELCRA. Rogers, 897
F.3d at 771; Radtke, 442 Mich. at 381-82, 501 N.W.2d
at 161-62. To establish a prima facie case of retaliation under Title VII, the plaintiff must demonstrate
that: “(1) [s]he engaged in activity protected by Title
VII; (2) h[er] exercise of such protected activity was
known by the defendant; (3) thereafter, the defendant
took an action that was ‘materially adverse’ to the
plaintiff; and (4) a causal connection existed between
the protected activity and the materially adverse action.” Laster v. City of Kalamazoo, 746 F.3d 714, 730
(6th Cir. 2014) (quoting Jones v. Johanns, 264 F. App’x
463, 466 (6th Cir. 2007)). The plaintiff’s burden of establishing a materially adverse employment action is
“less onerous in the retaliation context than in the antidiscrimination context,” because a lower standard for
material adversity applies. Id. at 731 (quoting Michael
v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th
App.68a
Cir. 2007)). For retaliation to be actionable, a plaintiff
“must show that a reasonable employee would have
found the challenged action materially adverse, which
in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67-68 (2006) (quotations omitted). And the plaintiff must allege at least some facts
that support the inference of a causal connection between the adverse action and the protected conduct.
Laster, 746 F.3d at 730-31.
After establishing a prima facie case, “the burden
of production of evidence shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason’ for
its actions.” Hunter v. Sec’y of U.S. Army, 565 F.3d 986,
996 (6th Cir. 2009) (quoting Canitia v. Yellow Freight
Sys., 903 F.2d 1064, 1066 (6th Cir. 1990)). “The plaintiff, who bears the burden of persuasion throughout
the entire process, then must demonstrate ‘that the
proffered reason was not the true reason for the employment decision.’” Canitia, 903 F.2d at 1066
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981)).
Although the second amended complaint does not
explicitly say so, it could be read to advance two separate theories. The first is that the defendants
retaliated against Beny by issuing the March 31, 2022
discipline letter. The second is that the defendants retaliated against her again by refusing to permit her to
return to her full duties, including teaching students,
after she filed her May 2022 charge with the EEOC.
The success of the first theory largely depends on the
pretext arguments laid out more fully in the discussion of Beny’s discrimination claim, above. The second
App.69a
theory is not well-briefed, has had little factual development, will not defeat summary judgment, and need
not be discussed further.
1. Protected Activity
The defendants maintain that Beny’s “serial and
vague” reports of discrimination do not qualify as protected activity. They make an extended argument on
this point, but it misses the obvious: regardless of
whether all of her complaints across her time at the
University were protected — she certainly made many
complaints — Beny’s decision to initiate an action
with the University’s ECRT office in November of 2021
clearly was protected activity. Protected activities include filing an EEOC charge and opposing discriminatory practices by making complaints to management.
See 42 U.S.C. § 2000e-3(a); EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015). Courts in
this circuit consistently find that a complaint to a university internal office handling equity issues constitutes
protected activity under Title VII. See, e.g., Arthur v.
Michigan State Univ., No. 1:19-cv-484, 2022 WL
1616947, at *4-5 (W.D. Mich. May 23, 2022); Blessing
v. Ohio Univ., No. 2:09-0762, 2011 WL 6076327, at
*18-19 (S.D. Ohio Dec. 6, 2011). This Court held as
much when adjudicating the motion to dismiss, see
Beny, 2023 WL 4409107, at *10, and the defendants
furnish no reason for the Court to revisit this conclusion now.
The defendants argue that Beny’s complaint to
the ECRT did not amount to a complaint about an unlawful employment practice because it focused on the
operation of the MACL summer program. That does
not matter either, because Beny has introduced evi-
App.70a
dence that her 2022 complaint covered a broad range
of conduct by University officials, even though the
complaint was initiated because of her belief that she
was excluded from the summer program. In her interviews with ECRT, Beny raised the email exchanges
with West. Laura Beny dep., ECF No. 109-3, PageID
.3993. And a transcript of her December 2022 interview with the office includes discussion of her
dissatisfaction with the prior disciplinary actions initiated against her. Transcript, ECF No. 113, PageID.
4406-08, 4412. And the defendants do not address the
fact that Beny made a ECRT report on February 13,
2022, involving allegations about the defendants’ interference with her Enterprise Organizations course.
Laura Beny dep., ECF No. 109-3, PageID.4017. And
she made a complaint with the EEOC in May 2022,
and received a right to sue letter shortly thereafter.
Id. at PageID.3999. These were not “vague charge[s] of
discrimination.” Yazdian v. ConMed Endoscopic
Techs., Inc., 793 F.3d 634, 645 (6th Cir. 2015).
Nevertheless, the defendants maintain that her
complaints were either substantively unreasonable or
inappropriately made, and they attempt to undermine
their factual bases. But these arguments raise fact
questions. And to the extent that, as a matter of law,
some of Beny’s conduct, such as her numerous emails
to the faculty email list, could be so inappropriate or
substantively unreasonable that they are not protected
activity, see Johnson v. Univ. of Cincinnati, 215 F.3d
561, 580 (6th Cir. 2000), the defendants cannot argue
that Beny’s filing of an ECRT complaint was inappropriate. The plaintiff has introduced sufficient evidence
at this stage for a jury to conclude that she engaged in
protected activity.
App.71a
2. Defendants’ Knowledge
Direct evidence of knowledge by the decisionmaker of the protected activity is not required. “[A]
plaintiff may survive summary judgment by producing
circumstantial evidence to establish this element of
her claim.” Mulhall v. Ashcroft, 287 F.3d 543, 552-53
(6th Cir. 2002). The defendants do not appear to contest knowledge of the plaintiff’s protected activity. Nor
could they. The March 2022 Notice of Disciplinary action explicitly recognizes Beny’s view that she had been
discriminated against. ECF No. 96-17, PageID.2715;
see also Laura Beny dep., ECF No. 109-3, PageID.3991
(“Between January and February of 2022, I informed
Kristina Daugirdas, Michele Frasier Wing, and Mark
West that I was filing — I was opening Civil Rights
complaints again on the basis of race and gender.”).
There is evidence in the record from which a jury could
find the defendants knew of Beny’s ECRT complaint.
3. Adverse Action
The defendants also agree that Beny sufficiently
established that her disciplinary action constituted an
adverse action. In addition, a refusal to permit Beny
to return to teaching may constitute adverse action.
In the retaliation context, a plaintiff may demonstrate
adverse action if “a reasonable employee would have
found the challenged action materially adverse, which
in this context means it well might have dissuaded a
reasonable worker from making or supporting a
charge of discrimination.” White, 548 U.S. at 68
(cleaned up). The reassignment of duties can be “materially adverse.” Id. at 71. A jury plausibly could find
that the defendants’ decision to delay Beny’s return to
App.72a
the classroom — in the context of academia — is an
adverse action.
4. Causal Connection
To establish a causal connection, a plaintiff must
produce evidence sufficient to support an inference
that an employer took an adverse action because of
the plaintiff’s protected activity. Bledsoe v. Tennessee
Valley Auth. Bd. of Dirs., 42 F.4th 568, 588 (6th Cir.
2022). This element “requires proof of so-called ‘butfor’ causation, meaning that the plaintiff must furnish
evidence that ‘the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action
or actions of the employer.’” Mys v. Michigan Dep’t of
State Police, 886 F.3d 591, 600 (6th Cir. 2018) (quoting
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
360 (2013)). The Sixth Circuit has recognized that a
plaintiff may be able to survive summary judgment
based on a showing of temporal proximity between the
adverse action and the protected activity alone. Bledsoe,
42 F.4th at 588 (citing Mickey v. Zeidler Tool & Die
Co., 516 F.3d 516, 525 (6th Cir. 2008)).
The defendants contend that Beny’s conduct after
her complaints were made was the intervening cause
of her discipline. Relying on Mittman v. City of Toledo,
156 F.3d 1231 (6th Cir. 1998) (table), the defendants
also argue that Beny’s temporal proximity evidence is
insufficient to establish causation because she has had
a long history of filing employment related charges
without consequence. In response, Beny reiterates that
the timing between her November 2021 and February
2022 ECRT complaints was critically proximate to her
March 2022 discipline and argues again that the
App.73a
defendants have not taken action against white and
male comparators.
The evidence regarding Beny’s comparators, discussed above, and the temporal proximity between her
ECRT complaints and discipline does go some way to
creating fact questions on her retaliation claim, but it
does not address fully the defendants’ arguments. In
Mittman, the court of appeals discussed a plaintiff who,
by his counsel’s own admission, had been a “contentious” employee during his tenure for the numerous
grievances he had filed. 156 F.3d at *1. He complained
that he had been retaliated against for his more recent
complaints. Id. at *2. The court of appeals ultimately
affirmed the district court’s determination that he
failed to establish a causal nexus, in part because
“temporal proximity alone will not support an inference in the face of compelling evidence that the
employer supported engaging in protected activity.” Id.
at *4 (internal quotations omitted). The court of appeals viewed as significant Mittman’s employer’s long
tolerance of his numerous employment related claims.
Ibid. Although Mittman is an unpublished case, the
court drew its holding from Moon v. Transport Drives,
Inc., 836 F.2d 226, 229 (6th Cir. 1987), which does
have precedential authority. The defendants here urge
a similar approach, pointing out that Beny also has a
long history of complaints that they have tolerated.
They point to West’s testimony that he welcomed
Beny’s attempts to raise issues of discrimination at
the law school. Mark West dep., ECF No. 109-5,
PageID.4187 (“I am grateful that she raised the issues. I think we have points of agreement on diversity,
equity, inclusion issues in the law school. . . . ”). But
this statement, standing alone, is insufficient to be
App.74a
considered “compelling evidence” of the University’s
willingness for employees to engage in protected activity. Moreover, Beny’s 2021 and 2022 complaints
appear to have taken a more direct aim at West and
other Law School administrators than her past complaints, perhaps creating an additional motive for
retaliation.
However, the defendants’ intervening cause argument merits closer scrutiny. This is because “an
intervening legitimate reason” for discipline “dispels
an inference of retaliation based on temporal proximity.” Wasek v. Arrow Energy Servs., 682 F.3d 463, 472
(6th Cir. 2012). This argument derives some initial
support from the scope of the misconduct cited in the
Third Notice of Discipline, some of which Beny admits. But two problems stand out. First, drawing all
reasonable inferences in Beny’s favor, the timing of
the discipline creates some grounds for suspicion. On
February 8, 2022, Beny engaged in an email exchange
with Wing complaining that she had “rubber stamped”
West’s prior disciplinary actions against her and
“never once disputed his false claims” about her. ECF
No. 113, PageID.4434. Wing responded that she
“never witnessed any false claims” and “certainly
would have reported” had she observed any. Ibid. The
next day, Daugirdas, copying Wing, emailed Beny to
set up a meeting regarding the anonymous student
complaint in her Enterprise Organizations course. ECF
No. 96-10, PageID.2682. When Beny demurred about
meeting, Daugirdas emphasized that the student concerns were “urgen[t].” Id. at PageID.2681. However,
Wing and Daugirdas had been aware of the student
complaint since January 31. ECF No. 96-9, PageID.
2676. A reasonable jury could view with suspicion this
App.75a
timing and interpret it as evidence of retaliatory motive
by University officials. To be clear, the student complaint is not the cited reason for Beny’s discipline, but
Beny’s response to it is, including her alleged “retaliation” against the students. Second, unlike many of
the other cases accepting intervening cause arguments, Beny has provided at least some additional
circumstantial evidence that supports a finding of causation. Wielfaert, Beny’s academic assistant, testified
that she was directed by her supervisor to report “anything out of the ordinary” during the Fall of 2021.
Linda Wielfaert dep., ECF No. 109, PageID.3862-63.
And in the 2018 threat assessment, defendant West is
quoted as saying that Beny “will go right to the line of
inappropriate behavior but never goes over it which
keeps her from getting reported to Human Resources
(HR).” ECF No. 109-2, PageID.3965. That evidence
supports an inference that administrators were looking
for an opportunity to discipline her. Beny makes much
of the defendants’ decision to discipline her while she
was on medical leave, but the discipline was at least
partially attributable to conduct that occurred before
the February 15 approved beginning of the leave and
she has pleaded no FMLA claims. Beny has produced
sufficient evidence to create a jury question on the issue of causation.
5. Pretext
Beny’s retaliation claims once again falter at the
pretext stage though. The pretext analysis on a Title
VII (and ECLRA) retaliation claim mirrors that on a
Title VII discrimination claim. Michael, 496 F.3d at
593. The defendants justify their March 2022 disciplinary action on Beny’s decision to refuse to teach her
course and her many emails to faculty and staff mem-
App.76a
bers. ECF No. 96, PageID.2504. The plaintiff’s response
is anemic and offers little more than her pretext arguments for her discrimination claim, which are
unpersuasive. She emphasizes again that the discipline could be viewed as pretextual because it cited
principally her decision to “abandon” her course when
she was, in fact, on a medical leave. These arguments
cannot carry the day. A case could be made, based on
several factors cited in the causation section above,
that University officials kept a close eye on Beny’s
conduct. But any extra attention should not have been
surprising in the context of Beny’s past discipline. And
a reasonable jury could not disregard the defendants’
explanation for disciplining Beny following their
meeting — during which there is no evidence she asserted a need for medical (or any other kind of) leave
— and her continued threatening, disruptive, and unprofessional communications to faculty and staff. Because Beny has failed to meet her burden of showing
the defendants’ explanation was pretextual, the defendants are entitled to summary judgment on Beny’s retaliation claims.
C. Equal Pay Act Claim
The defendants contend that Beny’s Equal Pay
Act claim is meritless because she did not perform the
same work as her proposed comparator after she refused to teach her course, and there is no evidence
that Beny’s sex played a role in any differential pay.
Beny responds that she now makes approximately
$50,000 per year less than her identified comparator,
and she states that the defendants have not met their
burden of showing that the pay gap was caused by a
factor besides her sex when the disciplinary action
App.77a
causing the pay gap was based on discrimination and retaliation.
The Equal Pay Act prohibits employers from paying an employee at a rate less than that paid to an
employee of the opposite sex for performing equal
work. 29 U.S.C. § 206(d)(1). Under the Act, pay differentials are allowed when based on “(i) a seniority
system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of production;
or (iv) a differential based on any other factor other
than sex. . . . ” Ibid.
To establish a prima facie case of wage discrimination under the EPA, the plaintiff must show that an
employer pays different wages to employees of opposite sexes “for equal work on jobs the performance of
which requires equal skill, effort, and responsibility,
and which are performed under similar working conditions.” Corning Glass Works v. Brennan, 417 U.S. 188,
195 (1974) (quoting 29 U.S.C. § 206(d)(1)). A plaintiff
can establish a violation of the Act if she shows that
the defendant paid her less compensation — however
measured — than male counterparts for the same
work. No showing of discriminatory intent is required.
Schleicher v. Preferred Sols., Inc., 831 F.3d 746, 752
(6th Cir. 2016).
After the plaintiff establishes a prima facie case,
“the defendant must ‘prove’ that the wage differential
is justified under one of the four affirmative defenses
set forth under section 206(d)(1) listed above. Buntin
v. Breathitt Cnty. Bd. of Educ., 134 F.3d 796, 799 (6th
Cir. 1998). Defendants bear the burden of production
and persuasion on these affirmative defenses.
Schleicher, 831 F.3d at 753. The fourth exception, the
catch-all, relied upon by the defendants here, “permits
App.78a
a ‘factor other than sex’ to be an affirmative defense
only if, ‘at a minimum, [it] was adopted for a legitimate business reason.’” Briggs v. Univ. of Cincinnati,
11 F.4th 498, 508 (6th Cir. 2021) (quoting Beck-Wilson
v. Principi, 441 F.3d 353, 365 (6th Cir. 2006)). If a defendant meets its burden of showing an affirmative
defense, the plaintiff, at the third stage, “must produce evidence creating a triable issue of fact as to
whether the defendant’s proffered explanation was
pretextual.” Briggs, 11 F.4th at 508.
The parties dispute whether the plaintiff has performed the same work as her proposed comparator and
whether the defendants’ have met their burden of
showing that any disparity was motivated by a factor
other than sex. The plaintiff proposes as a comparator
Professor John Pottow, a member of her faculty cohort
whose pay should have moved in “lock-step” with her
own. The defendants concede that Beny now has a disparity in pay with Pottow, ECF No. 96, PageID.2511,
but they argue that Beny did not perform the same
work as he because she “abandoned” her course, and
they note that the disparity resulted as a consequence
of Beny’s discipline and therefore is legitimate. The
former argument is belied by the defendants’ own decision to retroactively grant the plaintiff a medical
leave to the date they say she effectively ceased performing the same work as her comparator. But the
latter argument, which goes to pretext, favors the defendants.
The Sixth Circuit has explained that defendants
are entitled to summary judgment “only if the record
shows that [they] established the [‘factor other than
sex’] defense so clearly that no rational jury could
have found to the contrary.” Briggs, 11 F.4th at 508
App.79a
(quoting Schleicher, 831 F.3d at 753). Such is the case
here. An employer’s decision to freeze an employee’s
pay for disciplinary reasons is a legitimate explanation
for a pay differential. See Allender v. Univ. of Portland, 689 F. Supp. 2d 1279, 1287 (D. Or. 2010). The
plaintiff does not argue otherwise. For the reasons explained above, Beny has failed to establish that the
defendants’ reasons for disciplining her were pretext
for a sex or race-based motives. The defendants therefore were entitled to pay her differently. They are
entitled to a judgment as a matter of law on this claim.
III. Conclusion
The undisputed facts in this record show that the
defendants took disciplinary action against the plaintiff because of her disruptive and unprofessional
conduct, and not because of her race or sex or because
she engaged in protected activity. They delayed her pay
increases based on a factor other than sex. The defendants are entitled to a judgment as a matter of law
on all of Beny’s remaining claims. The parties also
filed motions challenging each other’s expert witnesses. Because the case will not proceed to trial, the
Court will not address those motions, and they will be
dismissed as moot.
Accordingly, it is ORDERED that the defendants’
motion to for summary judgment (ECF No. 96) is
GRANTED.
It is further ORDERED that the case is DISMISSED WITH PREJUDICE.
It is further ORDERED that the motions to exclude the parties’ respective expert witnesses (ECF
Nos. 97, 98) are DISMISSED as moot.
App.80a
/s/ David M. Lawson
U.S. District Judge
Dated: July 17, 2024
App.81a
APPELLANT LAURA BENY’S
PRINCIPAL BRIEF
(NOVEMBER 7, 2024)
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
________________________
LAURA BENY,
Appellant,
v.
UNIVERSITY OF MICHIGAN OF REGENTS
AND MARK D. WEST,
Appellees.
________________________
Appeal No. 24-1674
On Appeal from the United States District Court
for the Eastern District of Michigan
Case No. 2:22-cv-12021-DML-EAS
Jerome D. Goldberg (P61678)
Jerome D. Goldberg PLLC
Attorney for Appellant
2727 Second Avenue, Suite G06
Detroit, MI 48201
313-319-0870
apclawyer@sbcglobal.net
App.82a
Alice B. Jennings (P29064)
Edwards & Jennings, PC
Attorney for Appellant
3031 West Grand Blvd. Ste 435
Detroit, MI 48202
313-961-5000
ajennings@edwardsjennings.com
Amanda K. Rice (P80460)
Andrew J. Clopton (P80315)
Jones Day
Attorney for Appellees
150 W. Jefferson Ave., Suite 2100
Detroit, MI 48226
313-733-3939
aclopton@jonesday.com
arice@jonesday.com
Krista Perry Heckman
Jones Day
Attorney for Appellees
51 Louisiana Ave. NW
Washington D.C. 20001
202-879-3939
Brian M. Schwartz (P69018)
Miller Canfield
Attorney for Appellees
150 W. Jefferson, Suite 2500
Detroit, MI 48226
313-496-7551
schwartz@millercanfield.com
[TOC, TOA, Omitted]
App.83a
STATEMENT IN SUPPORT
OF ORAL ARGUMENT
This case merits oral argument in front of the
Sixth Circuit Court of Appeals. It implicates the question of fairness and non-discriminatory practices at
the University of Michigan, the state’s most renowned
public university, as Appellant, the only AfricanAmerican woman tenured faculty member actively
teaching at the Law School was issued a severe discipline by Dean Mark West. Appellee West acknowledges Appellant is the only tenured professor he has
disciplined in his years as dean. Appellant never had
a proper hearing to review the events behind the discipline in violation of the University’s own regulations
and whose due process protections for tenured professors were violated in this case.
This case also merits further review of the application of the law to the pretext examination in a discrimination claim under the McDonnell Douglas burden
shifting framework, where Appellant contends the
court applied a broad and incorrect interpretation of
the “honest belief” defense to justify the employer’s actions after a plaintiff makes out a prima facie case of
discrimination. The application of that defense is often misapplied and misunderstood as Appellant
contends it was in this case. In addition, the relation
of pretext in a discrimination case to the affirmative
defense of “other than sex” in a claim under the Equal
Pay Act is worth further examination by the Sixth Circuit.
STATEMENT OF JURISDICTION
This is an appeal of the U.S. District Court’s
Judgment entered on July 17, 2024, in case No. 2:22-
App.84a
cv-12021-DML-EAS, granting Defendants’ Motion for
Summary Judgment, and dismissing the case with
prejudice. Judgment, RE 122, Page ID 4731. The July
17, 2024, Judgment of the District Court was a final
order disposing of all of Plaintiff’s claims. The Sixth
Circuit has jurisdiction pursuant to 28 USC 1291. The
Notice of Appeal as of Right was timely filed on August 13, 2024. Notice of Appeal, RE 126, Page ID 4766.
STATEMENT OF ISSUES
1. Does the evidence establish that the reason for
the March 31, 2022, discipline issued by Appellee
Dean West was Appellant’s alleged abandonment of
her class?
2. Did the District Court err in holding that the
fact Appellant was approved for FMLA leave as of the
date she was accused of abandoning her class did not
establish that Defendants’ business justification was
a pretext for intentional discrimination?
3. Had Appellees conducted a reasonable inquiry
would they have known that Appellant had a pending
medical leave claim with the University’s Disability
Administrator?
4. Did Appellees’ failure to reverse the discipline
after the FMLA was formally approved further demonstrate pretext?
5. Does the fact Appellee, a tenured professor,
was denied a hearing, as mandated by Appellees’ Regents Bylaw 5.09, further establish pretext in this
case?
6. Did the District Court err by ignoring evidence
that disputes Appellees’ account of Appellant’s alleged
App.85a
retaliatory conduct against her students and troubling
communications with fellow staff members?
7. Does the fact that Appellee West, whose discriminatory emails were exposed by Appellant, issued
the discipline against Appellant for “abusing her colleagues,” further established that this was a pretext for
illegal discrimination?
8. Is pretext further established by the District
Court ignoring its own holding that Appellant made a
prima facie case relative to her being disciplined for
alleged abusive behavior while white males were not
disciplined for comparable behavior?
9. Did the District Court err in holding the Appellees established the affirmative defense “any factor
other than sex” in granting summary judgment on Appellant’s Equal Pay Act claim?
STATEMENT OF THE CASE
Appellant Professor Laura Beny filed her Second
Amended Complaint in the District Court on October
5, 2023, following an order granting Plaintiff’s Motion
for Leave to Amend entered on October 2, 2023. The
Second Amended complaint contained the following
counts against Defendant University of Michigan
Board of Regents: Count I – Violation of Title VII –
Civil Rights Act of 1964 as Amended 42 USC § 2000e,
et. seq. based on Sex and Race; Count II – Title VII –
Retaliation Based on Plaintiff’s Protected Activity;
and Count V – Violation of the Equal Pay Act of 1963
as Amended. The Second Amended Complaint pled
the following counts against Defendant University of
Michigan Law School Dean Mark West, in his Individual Capacity: Count III – Violation of the Michigan
App.86a
Elliott-Larsen Civil Rights Act – Disparate Treatment
Based on Sex and Race; Count IV – Retaliation Under
the Michigan Elliott-Larsen Civil Rights Act Based on
Plaintiff’s Protected Activity. Plaintiff’s Second
Amended Complaint, RE 83, Page ID 1803-1875.
BACKGROUND TO THE COMPLAINT
Appellant Laura Beny was hired as a tenuretrack professor at the University of Michigan Law
School in 2003. At the time of Appellant’s hire, she
was only the second African-American female tenuretrack professor hired at Defendant in its then nearly
150-year history. Plaintiff’s tenure was granted in
2008. From 2018 to July 2022, Plaintiff was the only
African-American female tenured professor working
fulltime on Defendants’ Ann Arbor Law School campus.
There was only one African-American male tenured
professor during this same period. Second Amended
Complaint, RE 83, Page ID 1807-1808.
Appellant Beny is a trailblazing and recognized
subject matter expert in the areas of law and economics.
She is known nationally and internationally for her
scholarly work. Since joining the University of Michigan
Law School in 2003, Professor Beny, an Earl Warren
DeLano Professor of Law, has taught Corporate Finance, Enterprise Organization, International
Finance, The Public Corporation, Law and Development, Law and Finance, and a de novo course she
created, Africa in the Global Legal System. In addition, Appellant is a respected advocate within the University of Michigan for the advancement and rights of
women and African-American students and professors. Second Amended Complaint, RE 83, Page ID
App.87a
1809-1810. Letters of support, RE 112, Page ID 4357,
4359-4376, 4378, 4389, 4381.
Appellant Beny testified that from 2014 to 2016,
she attempted to bring to Appellee Dean West’s attention “inequities at the law school.” These included a
complaint for a pay disparity in 2015 when she
learned she was earning less than the white male professor with whom her salary was supposed to be in
“lock step” under the law school regulations. Beny
deposition, pp. 41-42, 52-54, RE 109-3, Page ID 39803981, 3973-3974. On May 15, 2018, Plaintiff was disciplined by Defendant Dean Mark West for speaking at a
University of Michigan Law School Young Scholars Conference, after she was asked to do so by one of her
students who advised Plaintiff Beny that the conference planning violated the University’s core principles
of equity, diversity and inclusion. Beny deposition pp.
130-132, RE 109-3, Page ID 4003.
On February 7, 2019, Plaintiff received a second
discipline from Defendant Dean Mark West for allegations of allegedly abusing West’s Executive Assistant,
Robyn Grimes. Beny deposition, pp 143-147, 388-428,
RE 109-3, Page ID 4006-4007, 4068-4078. Second Discipline, RE 109-9, Page ID.
Significantly, Appellant, the only African-American
female professor actively teaching at the law school,
was the only tenured professor to ever be disciplined
by Dean West in his over 10 years as Dean. Deposition,
Dean Mark West, pp. 14-17, RE 109-5, Page ID 4120.
Between late November 2021 to January 2022,
Appellant submitted several complaints to the university’s Equity Civil Rights and Title IX office (ECRT)
regarding disparate treatment based on race and
App.88a
gender and retaliation by the Appellees University of
Michigan and its agents, and Dean West. Second
amended complaint, RE 83, Page ID 1838, 1839.
On February 8, 2022, after filing the complaints
with the ECRT, and advising COO Michele FrazierWing and Associate Dean Kristina Daugirdis that she
had done so, Appellant Beny was called into a meeting
one day later with the administration to address an
anonymous complaint by a student concerning her
teaching methods. She addressed the falsity of this
complaint in a rebuttal sent to Associate Dean
Daugirdis. She also addressed the complaint at a session of her Enterprise Organization class on February
14, 2022. Id., Page ID 1839-1842.
Appellant received an email from Daugirdis on
February 14, 2022, indicating that she was now being
accused of retaliating against students for making the
anonymous complaint. Id., Page ID 1843-1844. Appellant could no longer go on teaching her EO course that
semester due to the stress and anxiety she was experiencing due to the continued discriminatory harassment aimed at her, and informed the students and the
administration. Beny dep. pp 268-270, RE 109-3, Page
ID 4038-4039. She applied for a medical leave with the
University’s disability administrator, Work Connections. She ultimately was granted an FMLA leave for
the period of February 15 through May 15, 2022. Work
Connection Records, RE 114, Page ID 4521-4525.
While on disability leave Appellant received her
most serious discipline to date. It stated:
Accordingly, for the period beginning today
and ending June 30, 2027, you are not eligible for salary increases, summer funding,
App.89a
Wolfson funds, Cook funds, or any type of
discretionary leave, including sabbaticals,
mid-sabbatical, or Elke’s leaves. Your salary
after that date will not return to that of your
cohort. March 31 discipline, RE 110, Page ID
4201-4216.
The effect of this discipline was a permanent
wage reduction compared to the professor with whom
her wages were supposed to be identical under the
University’s lockstep program. That discipline prompted
the filing of the complaint which is the subject of this
cause of action.
PROCEDURAL POSTURE OF THE CASE
Defendants filed a Motion for Summary Judgment
as to all counts in Plaintiff’s complaint on November
17, 2023. After an order extending dates for responding
to the Motion and for a Reply brief, Plaintiff filed her
Response to Defendants’ Motion for Summary Judgment on December 15, 2023. Oral argument was held
on the Defendants’ Motion for Summary Judgment on
April 3, 2024.
In his Opinion and Order dated July 17, 2022,
The District Court held that Appellant made out a
prima facie case of discrimination under Title VII and
the Elliott-Larsen Civil Rights Act. The District Court
specifically noted that Appellant identified a white
male comparable under the law, Professor Mattew
Reiman, and furnished evidence of Reiman’s repeated
instances of “haughty and disrespectful treatment of
other University employees,” including alleged gross
mistreatment of his former administrative assistant,
Linda Weilfart, using a rude tone in conversations
with the law school registrar, engaging in a heated
App.90a
discussion with Associate Dean Kristina Daugirdis,
and other inappropriate comments to staff members.
Reiman was not disciplined even though officials including Dean West were aware of his conduct. Opinion
and Order, RE 121, Page ID 4706, 4707, 4710.
The District Court held that Appellant made out
a prima facie case on her retaliation claims under Title
VII and the Elliott Larsen Civil Rights, specifically citing
the temporal proximity of the discrimination complaints Appellant filed with the University’s ECRT
office in November 2021 and February 2022 to the
March 31, 2022, discipline. The court also cited the
testimony of Administrative Assistant Linda Weilfart
that “she was directed by her supervisors to report
‘anything out of the ordinary’” relative to Appellant’s
conduct as creating an inference that administrators
were looking for an opportunity to discipline her.
Opinion and Order, RE 121, Page ID 4721-4726.
The District Court also held that Appellant made
out a prima facie case on her Equal Pay Act Claim,
where she identified the white male comparator, Professor John Pottow, whose pay was supposed to remain
in lockstep with Appellant’s, but with whom she now
has a large and permanent disparity in pay as a result
of the March 31, 2022, discipline. Id., RE 121, Page ID
4727.
However, after holding that Appellant made a
prima facie case on all her counts, the District Court
granted Appellees’ Motion for Summary Judgment,
holding that Appellant did not establish that Defendants’ actions were a pretext for unlawful discrimination or retaliation, and that Defendants’ reasons for the
pay disparity under the Equal Pay Act were based on
a factor other than sex. Id., Opinion and Order, RE
App.91a
121, Page ID 4689, 4729. Based on these rulings, on
July 17, 2024, the District Court issued a Judgment
granting Defendants’ Motion for Summary Judgment
and dismissing Plaintiff’s complaint with prejudice.
Judgment, RE 122, Page ID 4731. That judgment, and
specifically the holdings on pretext and the court’s upholding Defendants’ affirmative defense in Plaintiff’s
Equal Pay Act claim, are the subject of this appeal,
where the court decided issues of credibility and
weighed the evidence in Appellees’ favor.
SUMMARY OF THE ARGUMENT
In its Opinion and Order Granting Defendants’
Motion for Summary Disposition, the District Court
applied the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973)
in analyzing Appellant’s claims for discrimination and
retaliation under federal and state law. The court noted
that pursuant to that framework, “the plaintiff must
first submit evidence from which a reasonable jury
could include that he or she submitted a prima facie case
of discrimination . . . Once the plaintiff offers evidence
sufficient to form a prima facie case, ‘the defendant
must then offer admissible evidence of a legitimate,
non-discriminatory reason for its action.’ If the defendant offers a legitimate motive, then the ‘plaintiff must
identify evidence from which a reasonable jury could
conclude that the proffered reason is actually a pretext for unlawful discrimination.’” Opinion and Order,
RE 121, Page ID 4705, 4706.
The District Court held that Appellant demonstrated fact questions sufficient to make her prima
facie case on her claims of discrimination and retaliation under both Title VII and the Michigan Elliott-
App.92a
Larsen Civil Rights Act. Id., RE 121, Page ID 4710,
4722.
The District Court also held that Appellant established a prima facie case on her Equal Rights Act
count. Id., Opinion and Order RE 121, Page ID 47274728.
However, the District Court granted summary
judgment on Appellant’s discrimination counts on the
basis that Appellant allegedly did not create a question of fact on the issue of whether Appellee’s business
justification for the March 31, 2022, discipline was a
pretext for unlawful discrimination and retaliation.
Opinion and Order RE 121, Page ID 4710-4718, 4726,
4727. Similarly, the trial court held that Appellant did
not create a question of fact that Appellee’s “factor
other than sex” for imposing the pay discrepancy with
her fellow professor, John Pottow, was not a pretext for
a sex-or race-based motive in her Equal Pay Act claim.
Opinion and Order RE 121 Page ID 4729. These are
the holdings which are the subject of this appeal.
Appellant’s Argument goes into depth, with citations to the record, why the District Court’s holdings
on pretext were erroneous. The argument is summarized as follows.
1. Appellant was issued a severe discipline by
Appellees on March 31, 2022. The March 31, 2022, discipline letter stated in pertinent part:
Accordingly, for the period beginning today
and ending June 30, 2027, you are not eligible for salary increases, summer funding,
Wolfson funds, Cook funds, or any type of
discretionary leave, including sabbaticals,
mid-sabbatical, or Elke’s leaves. Your salary
App.93a
after that date will not return to that of your
cohort. (emphasis added)
March 31 discipline, RE No. 110, Page ID 4215.
Appellee Dean West testified in his discovery
deposition that he was the decision maker who issued
the March 31, 2022, disciplinary letter. While the disciplinary letter raised other issues, alleged retaliatory
conduct against students after an anonymous complaint was made against Professor Beny, and alleged
abusive conduct toward other faculty, in his discovery
deposition Dean West specifically testified six different times that the basis for the discipline was the
abandonment of her teaching duties on February 15,
2022. West deposition, pp RE 109-5, Page ID 41374138, 4141, 4153-4154, 4169, 4186.
Appellant Beny testified that she didn’t abandon
her class on February 15, 2022. She testified she could
no longer continue teaching her class due to the severe
emotional trauma she was experiencing as a result of
years of disparate treatment and retaliation, which climaxed with a new charge that she had retaliated
against her students. She informed her students and
the administration that she could not continue with
her teaching duties at that time. Beny deposition, 269273 416-417. RE 109-3, Page ID 4039-4040, 4075. Note
to Students, RE 96-13, Page ID 2693.
She filed a disability claim with Appellee’s Disability Coordinator, Work Connections, and was eventually
approved for an FMLA leave for mental stress covering the period from February 15, 2022, through May
15, 2022. Work Connections records, RE 114, Page ID
4520-4526. The discipline that was issued on March
31, 2022, thus accused her of abandoning her class for
App.94a
a period when she was ultimately approved for FMLA
leave.
While the District Court noted the fact that Appellant could not abandon her class if she was on an
approved FMLA leave, it erroneously accepted Defendant’s argument that Defendant did not know
Appellant was in the process of being approved for a
disability leave at the time of the March 31, 2022, discipline and therefore had an “honest belief” in extending the discipline. Opinion and Order, RE 121, Page
ID 4712, 4715.
This holding is belied by the facts, especially
when viewing the evidence in the light most favorable
to Plaintiff, that establishes that Appellee’s Disability
Coordinator, Work Connections, notified Dean West of
Appellant’s pending disability claim on February 27,
2022, in a letter that was cc’d to Appellant’s supervisor, listed as Dean West on the disability application.
Work Connections records, RE 114, Page ID 45204526. Dean West testified that he remembered learning
the Appellant had filed a disability claim, but never
conducted a reasonable inquiry to determine the status
of the disability claim prior to issuing the March 31,
2022, discipline. West Dep, p 203, RE 109-5, Page ID
4167.
Taking the evidence in the most favorable light to
Appellant, the evidence demonstrates that Appellee’s argument that they were not aware of Appellant’s
pending disability leave claim on March 31, 2022,
when the discipline was issued, and therefore was
therefore justified based on the honest belief doctrine,
is a pretext for illegal discrimination.
App.95a
In addition, the District Court noted that because
the discipline was forward looking, it could have been
reversed once Appellant was approved for the FMLA
leave on April 15, 2002. Motion transcript, RE 128,
Page ID 4782. This also creates an inference that the
discipline was a pretext for illegal discrimination.
2. As a tenured professor, Appellant, pursuant to
Regents Bylaw 5.09, was entitled to a formal hearing
in front of a hearing committee appointed by the Senate Advisory Committee on University Affairs (SACUA)
where the discipline consisted of a demotion, defined
as a reduction in base pay. Standard Practice Guide,
RE 113, Page ID 4501, 4504. Appendix Exhibit 1, Regents Bylaw 5.09. Appendix Exhibit 2, Senate Assembly
Record.
Appellant’s base wage was supposed to remain
identical with her cohort, Professor John Pottow, under the University’s Lock Step policy. West deposition,
pp 26, 27, RE 109-5, Page ID 4122-4123. The March
31, 2022, discipline imposed a five-year ban on any
wage hikes for Appellant through June 30, 2027. The
discipline specifically stated, “Your salary after that
date will not return to that of your cohort.” In 2022
alone, Appellant lost $26,000 in wages relative to Pottow, and the wage discrepancy would grow irreversibly
through 2027 due to Appellant being denied any wage
increases until then. Salary Record, RE 42-4, Page ID
732-734.
Dean West testified that he was not familiar with
the Regents Bylaw 5.09 and did not apply it to Appellant’s discipline. West Dep, 113-115, RE 109-5, Page
ID 4144. The failure to follow University guidelines
establishes pretext under the law.
App.96a
3. While the testimony of Dean West establishes
the sole basis for the discipline was Appellant’s alleged “abandonment” of her teaching position, the District Court erroneously held that the accusations of
“retaliation against students who raised concerns
about the course, and her troubling communications
with other faculty and staff members” created a business justification for Appellees’ discipline of Appellant
under the McDonnell Douglas framework. Opinion and
Order, RE 121, Page ID 4713.
As documented in Appellant’s Argument, there is
considerable testimony by numerous witnesses that
disputes these charges. This evidence creates a question of fact rebutting Defendants’ business
justification. The District Court committed error by
ignoring this evidence, where at the pretext stage “the
court should consider all [probative] evidence in the
light most favorable to the plaintiff, including the evidence presented in the prima facie stage.” Jackson v.
VHS Detroit Receiving Hosp. Inc., 814 F.3d 769, 779,
6th Cir 2016.
In addition, the alleged “troubling communications
with co-workers” centered around Appellant sharing
sexist and inappropriate emails with her co-workers
that had been sent to her by Dean West. Where the
supervisor accused of discrimination is the sole decision
maker in imposing discipline, this also creates a question of fact on pretext. Yazdian v. ConMed Endoscopic
Techs., Inc., 793 F.3d 634, 653-654 6th Cir 2015.
4. After holding that Appellant made out a prima
facie case on her Equal Pay Act count, the District
Court’s own statements contradict its holding that Appellees met their burden of proving the affirmative
defense that the disparity of pay was based on a factor
App.97a
other than sex. The District Court held that Appellees
“argue that Beny did not perform the same work because she ‘abandoned her course.’” However, it then
held the “the former argument is belied by the defendants’ decision to retroactively grant the plaintiff a
medical leave to the date she effectively ceased performing the same work as her comparator.” Opinion
and Order, RE 121, Page ID 4728, 4729. While the arguments on this issue mirror the arguments in the
pretext analysis, the burden to prove Appellees’ affirmative defense rests solely on the Appellees, in
contrast to the shifting burdens under the McDonnell
Douglas analysis in cases brought under Title VII.
Buntin v. Breathitt County Bd. of Educ., 134 F.3d 796,
799 (6th Cir. 1998).
ARGUMENT
Standard of Review
In Moran v. Al Basit LLC, 788 F.3rd 201, 204, 6th
Cir 2015, the court held:
This Court reviews a district court’s grant of
summary judgment de novo. Mutchler v.
Dunlap Mem’l Hosp., 485 F.3d 854, 857 (6th
Cir. 2007). Summary judgment is appropriate
where “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material
fact and that the moving party is entitled to
judgment as a matter of law.” Id.; Fed. R.
Civ. P. 56(c). When considering whether to
grant summary judgment, all reasonable inferences must be made in favor of the non-
App.98a
moving party. Little Caesar Enters., Inc. v.
OPPCO, LLC, 219 F.3d 547, 551 (6th Cir.
2000). A]t the summary judgment stage the
judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986). In undertaking this inquiry, “credibility judgments and
weighing of the evidence are prohibited.”
Schreiber v. Moe, 596 F.3d 323, 333 (6th Cir.
2010) [***5] (quoting Biegas v. Quickway
Carriers, Inc., 573 F.3d 365, 374 (6th Cir.
2009)).
In Jackson v. VHS Detroit Receiving Hosp. Inc.,
814 F.3d 769, 779, 6th Cir 2016, the court held in discussing evaluating pretext in a discrimination case:
Once the employer has come forward with a
nondiscriminatory reason for firing the plaintiff, “the plaintiff must identify evidence from
which a reasonable jury could conclude that
the proffered reason is actually [**19] a pretext for unlawful discrimination.” Provenzano,
663 F.3d at 812 (quoting Macy v. Hopkins
Cnty. Sch. Bd. Of Educ., 484 F.3d 357, 364
(6th Cir. 2007)). Notably, this burden on the
plaintiff “merges with the ultimate burden of
persuading the court that she has been the
victim of intentional discrimination.” Burdine, 450 U.S. at 256. Thus, on summary
judgment, “[i]n evaluating pretext and the
plaintiff’s ultimate burden, the court should
consider all [probative] evidence in the light
App.99a
most favorable to the plaintiff, including the
evidence presented in the prima facie stage.”
Appellant adopts this Standard of Review to Arguments I, II, and III.
I.
The District Court Erred in Holding That
Appellant’s Approval for FMLA Leave, Which
Was Backdated to Be Effective February 15,
2022, the Date She Was Accused of
Abandoning Her Class, Did Not Establish
That Appellees’ Business Justification Was a
Pretext for Intentional Discrimination.
In its Opinion and Order, the District Court first
held:
Beny’s FMLA leave was backdated by the
University to February 15, 2022, the date
she informed her class she could no longer
teach. Drawing all inferences in the plaintiff’s
favor leads to the conclusion that Beny did
not “abandon” her course but instead withdrew due to medical circumstances. Opinion
and Order, RE 121, Page ID 4709.
The District Court further held, in the section of
its opinion dealing with pretext (distinguishing Halpern
v. Wake Forest University Health Sciences, 669 F.3d
454 (4th Cir 2012)):
The University actually did approve Beny’s
FMLA leave request, with an effective date
that matched the date she “abandoned” her
course. Far from ignoring the alleged abandonment, the University seems to have
validated Beny’s decision to cease teaching
by granting retroactive leave. That tends to
App.100a
undermine defendants’ continued reliance
on Beny’s purported abandonment of her
class to support their prospective discipline.”
Opinion and Order, RE 121, page ID 4712.
However, the District Court then qualified
this holding, stating:
Beny’s argument regarding the retroactive
nature of her leave is insufficient to suggest
that the defendants did not ‘honestly believe’
in the proffered nondiscriminatory reason[s]
for her discipline. At most, it raises questions
about the “abandonment” justification because
the medical leave excused her workplace attendance. But even then, at the time of the
investigation and decision, West and other
administrators were unaware of Beny’s request for leave.” Id. RE 121, Page ID 4715
As outlined in detail below, this holding by the
District Court, which was central to its granting of
Summary Judgment to Appellees, is contradicted by
the evidence in this case, especially taking the evidence
in the most favorable light to Appellant. See Moran v.
Al Basit LLC, 788 F.3rd 201, 204, 6th Cir 2015, Jackson v. VHS Detroit Receiving Hosp. Inc., 814 F.3d 769,
779, 6th Cir 2016.
A. The Evidence Establishes That the Reason
for the March 31 Discipline Issued by
Dean West Was Appellant’s Alleged Abandonment of Her Class.
In the present case, Appellant received the Notification of Disciplinary Action that is the subject of
this appeal on March 31, 2022, in a memorandum
App.101a
signed by Dean Mark West. March 31 discipline, RE
110, Page ID 4201-4216.
The evidence in this case establishes that Dean
West was the individual who was responsible for issuing the discipline. Dean West testified that he made
the decision to give the March 31 discipline after consultation with academic HR, Associate Dean Kristina
Daugirdas and Chief Operating Officer Michele Frazier Wing. He further testified that as Dean, he had
the power to issue or not issue the disciplinary memorandum. West deposition, pp 46, 47, RE-5, Page ID
4128. Law School COO Frazier Wing testified that
while she was involved in structuring the discipline in
consultation with academic and general counsel, Dean
West was the ultimate decider. Wing deposition p,
105, RE No. 96-26, Page ID 2730.
The March 31, 2002, memorandum contained a
litany of accusations against Professor Beny. They
were summarized therein as: “a) your willful refusal
to perform your duties as a tenured professor, b) your
retaliation against students in your Enterprise Organization Class, and c) your continued harassment of
colleagues.” March 31 Disciplinary memorandum, RE
110, Page ID 4202.
However, in his discovery deposition, Dean West
testified six separate times that the sole and actual
reason for the discipline was Dr. Beny’s alleged abandonment of her job duties. His testimony was:
1.) “Professor Beny did tell me in numerous
emails . . . that she believed that I had discriminated against her based on race and
gender. . . . But the disciplinary letter is based
upon her abandonment of her class.” West
App.102a
Dep., pp 85-86, RE No. 109-5, Page ID 41374138.
2.) When asked about why he added the safety
issue in the letter, West responded: “It was
significant . . . but the discipline is not based
on this. . . . No, discipline is based on her
abandonment of her job duties.” Id., pp. 100101, RE No. 109-5, Page ID 4141.
3.) “The discipline was based on abandonment
of all her classes elsewhere.” Id., p 154, RE
No. 109-5, Page ID 4153, 4154.
4.) Dean West acknowledged he never surveyed
the students regarding the alleged complaints
made against Dr. Beny. He noted that abandonment of the class was the focus of the
discipline. Id. pp 212, 214, RE No. 109-5,
Page ID 4169.
5.) West testified: “But in general, this was a notice of disciplinary action primarily for
Professor Beny’s abdication of duties, specifically the abandonment of her class as well
as the SDJ students who had nothing to do
with the class at all. It also documents some
other problematic behavior – largely from
Professor Beny toward colleagues, but the
primary subject of the memo is the abandonment of her duties.” Id., pp 278, 279, RE No.
109-5, Page ID 4186.
6.) West testified in reaction to being questioned
about the sexist emails he had sent Dr. Beny
which she disseminated to the law school faculty:
App.103a
Q.
Is that why Professor Beny was issued the
March 31, 2022, disciplinary notice?
A.
No. . . . Professor Beny was disciplined for
abandoning her class. Any embarrassment
that I might have felt is internal to me, completely internalized and temporary, it’s not
on Professor Beny. Id. pp 289, 281, RE No.
109-5, Page ID 4186.
In their Motion for Summary Judgment, Appellees
acknowledged that the reason for the discipline was
Beny’s alleged abandonment of her class. They wrote:
“For Beny’s retaliation claims, the only materially adverse action that Beny plausibly alleged is the impact
of the Third Notice of Disciplinary Action. . . . And
consistent with the Notice, West repeatedly testified
that the discipline was primarily based upon Beny’s
abandonment of her class.” D
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.