Petition for Writ of Certiorari — Peter Gumm, Petitioner v. AK Steel Corporation

Supreme Court briefJul 16, 2025

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APPENDIX

App. 1a

App. 13a

Opinion and Judgment of the U.S.

Court of Appeals for the Sixth Circuit

(March. 18, 2025)

Opinion and Order of the U.S. District

Court Denying Motion for

Reconsideration (September 11, 2024)

App. 22a

Opinion and Order and Judgment of the

U.S. District Court for the Eastern

District of Michigan Granting Motion

for Summary Judgment (Sept. 26, 2023)

App. 54a

Order of the U.S. Court of Appeals for

the Sixth Circuit Denying Petition for

Rehearing En Banc (Apr. 17, 2025)

App. 55a

Plaintiff’s Motion for Reconsideration of

Opinion Granting Motion to Dismiss

(Oct. 25, 2023)

Plaintiff’s Response to Defendant’s

Motion for Summary Judgment (Mar.

31, 2023)

App. 74a

App.1a

No. 24-1767

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

PETER GUMM,

Plaintiff-Appellant,

FILED

March 18, 2025

Kelly L. Stephens, Clerk

AK STEEL

CORPORATION,

Defendant-Appellee

___________________________/

Before: THAPAR, BUSH, and MURPHY, Circuit

Judges.

BUSH, Circuit Judge. After an internal

investigation uncovered significant evidence of

inappropriate workplace conduct, AK Steel

Corporation

terminated

Peter

Gumm’s

employment. Gumm then brought this suit,

claiming AK Steel retaliated against him because

he opposed racial discrimination. The district

court granted summary judgment in favor of AK

Steel. We AFFIRM.

In 2015, AK Steel hired Gumm as a

manager at its factory in Dearborn, Michigan.

Two years later, the company promoted Gumm to

App.2a

another

managerial

position,

where

supervised lower-level managers and hourly

employees.

Gumm’s troubles began in late 2018 or

early 2019. After a town hall meeting, several

employees approached LaDale Combs, one of

Gumm’s supervisors, and complained about

Gumm’s conduct. They claimed Gumm struggled

to communicate well and treated employees

unfairly.

Soon

thereafter,

union

representative requested a meeting with

Combs to discuss complaints against Gumm

lodged by hourly employees. The complaints

included unfair work assignments, lack of

communication, and favoritism.

Employee

complaints continued throughout 2019. In annual

surveys, workers criticized Gumm’s management

style and treatment of coworkers. One supervisor

later recalled conducting numerous informal

discussions with Gumm that were triggered by

“constant complaints” about the way Gumm

treated subordinates and other supervisors.

Gibbons Deposition, R. 34–3, PageID 386.

By summer, the barrage of complaints led

Gumm’s direct supervisor, Jason Dearth, to hold a

formal meeting to discuss Gumm’s workplace

conduct. When met with renewed concerns about

his behavior, Gumm raised accusations of his

own. He complained that AK Steel recently hired

two new white supervisors instead of a black

female employee, whom Gumm viewed as the

most qualified candidate. Gumm also complained

about the “bad” “optics” created by AK Steel’s

rehiring of one white employee who was

App.3a

previously terminated for being intoxicated at

work. Gumm Deposition, R. 34–2, PageID 345.

Two black employees were terminated for the

same conduct but were not rehired at the same

time, though they were reemployed later.

After Gumm’s complaints about AK Steel’s

employment practices, the complaints about his

own workplace behavior continued. In early

November 2019, one of AK Steel’s executives

initiated another investigation into Gumm’s

conduct after one of Gumm’s subordinates

explained in an exit interview that he was

leaving because of Gumm’s abusive tactics. The

subordinate

detailed

Gumm’s

hostile

management style and said Gumm often called

employees “dumb” and “stupid.” Nowitzke Exit

Interview, R. 34–11, PageID 717. In response, AK

Steel issued a written reprimand to Gumm

regarding his “disrespectful treatment” of other

employees. Nov. 2019 Reprimand, R. 34–12,

PageID 719. The reprimand noted Gumm’s

behavior had been documented in numerous

yearly employee surveys, exit interviews, and

verbal complaints. And it warned that any future

inappropriate behavior would not be tolerated

and could “result in further discipline up to and

including termination of [Gumm’s] employment.”

Id.

Matters did not end there. In late

November 2019, an anonymous caller lodged a

complaint against Gumm on the company’s ethics

and compliance hotline. The caller accused

Gumm of creating a hostile work environment by

belittling employees and referring to them by

App.4a

several derogatory terms. The complaint also

asserted that Gumm “does not like African

American employees,” that he “would like to keep

all supervisors Caucasian,” and that, in light of

Gumm’s comments, the caller felt they “would

never be able to become a supervisor due to the

color of [their] skin.” Hotline Compl., R. 34–14,

PageID 724.

In response to the hotline complaint, AK

Steel launched a month-long investigation into

Gumm’s workplace conduct. Although “[t]he

investigation did not corroborate the specific

allegations brought forth in the complaint,” it did

unearth additional “evidence of unprofessional

and disrespectful” workplace conduct by Gumm.

Id. at 723. Hourly workers did not report

untoward

behavior

when

the

company

interviewed them during the investigation. But

four out of the five shift managers who reported

to Gumm raised serious concerns. The shift

managers reported numerous instances of Gumm

making racist, sexist, demeaning, and abusive

comments to subordinates. Though Gumm

contested the allegations, he later stated that he

had no reason to believe any of the shift

managers would lie to AK Steel’s internal

investigators. Nor did he claim knowledge of any

unethical conduct that took place during the

investigation. In January 2020, citing the results

of the internal investigation, AK Steel terminated

Gumm’s employment.

Following his termination, Gumm filed this

App.5a

lawsuit, bringing four employment discrimination

claims against AK Steel. First, he claims that AK

Steel sought to punish him for reporting racial

discrimination by instituting its investigation

into his workplace behavior. Gumm claims the

investigation created a hostile work environment

in violation of both Title VII of the Civil Rights

Act and Michigan’s Elliott-Larsen Civil Rights

Act (ELCRA). Second, he claims AK Steel

terminated his employment in violation of Title

VII and the ELCRA because of his opposition to

racial discrimination.

Following discovery, the district court

granted AK Steel’s motion for summary

judgment. As to the claims surrounding the

investigation, the district court held that Gumm

failed to demonstrate that the investigation

amounted to the severe or pervasive harassment

required for a retaliatory hostile work

environment claim. Nor, in the court’s view, did

Gumm identify sufficient evidence for a jury to

conclude the investigation was causally connected

his

purported

opposition

racial

discrimination months earlier.

Gumm’s claims stemming from his

termination fared no better. He did not dispute

that AK Steel carried its burden to provide

legitimate, nondiscriminatory reasons for his

termination— that it terminated Gumm for being

abrasive to fellow employees and making

derogatory comments about women and

employees of color. And, in the court’s view,

Gumm did not identify sufficient evidence from

which a reasonable juror could conclude those

App.6a

reasons were pretextual.

II.

In his timely appeal, Gumm maintains the

district court erred in granting summary

judgment in favor of AK Steel on all of his claims.

We review the district court’s grant of summary

judgment de novo, Hyman v. Lewis, 27 F.4th

1233, 1237 (6th Cir. 2022), and will affirm if

“there is no genuine dispute as to any material

fact” and AK Steel is entitled to judgment as a

matter of law, Fed. R. Civ. P. 56(a). In

undertaking our review, we view the facts in the

light most favorable to Gumm and draw all

reasonable inferences in his favor. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986).

III.

Title VII makes it unlawful “for an

employer to discriminate against any of his

employees . . . because he has opposed” racial

discrimination in employment. 42 U.S.C. §

2000e– 3(a).1 As relevant here, an employer can

discriminate against an employee because of his

opposition to discrimination in two basic ways.

1We

need not separately analyze Gumm’s ELCRA

claims because, at least as to the elements we discuss

below, “the ELCRA analysis is identical to the Title VII

analysis.” Wasek v. Arrow Energy Servs., Inc., 682 F.3d

463, 472 (6th Cir. 2012). That means AK Steel is entitled to

summary judgment on Gumm’s state-law claims for the

same reasons it is entitled to summary judgment on the

Title VII claims.

App.7a

First, the employer can discriminate by taking a

traditional adverse employment action, like

termination.

Second,

the

employer

can

discriminate by subjecting an employee to severe

or pervasive harassment. See Morris v. Oldham

Cnty. Fiscal Ct., 201 F.3d 784, 792 (6th Cir.

2000).

Gumm pursues claims under both

theories. As an initial matter, he maintains

that his termination constituted discrimination

in violation of § 2000e–3(a). He also claims

AK Steel subjected him to the internal

investigation (which ultimately led to the

termination of his employment) because he

opposed

racial

discrimination.

That

investigation,

Gumm

argues,

was

unreasonable that it constituted severe and

pervasive harassment.

We address each

argument in turn.

Start with Gumm’s termination claims,

which follow the familiar McDonnell Douglas

framework. Gumm must first prove that 1) he

opposed racial discrimination, 2) AK Steel was

aware of his opposition, 3) AK Steel

terminated his employment, and 4) there was

a causal connection between his opposition to

discrimination and the termination. Morris, 201

F.3d at 792.

If Gumm carries his initial burden, then

AK Steel must articulate some legitimate,

nondiscriminatory reason for its termination

decision. Id. at 792–93. If it does, then Gumm

App.8a

must create at least a genuine dispute that AK

Steel’s proffered reasons were pretextual. Id. at

793. We agree with the district court that, even

assuming Gumm establishes his prima facie case,

he lacks evidence sufficient to create a jury issue

on pretext.

Gumm must point to sufficient evidence

from which a reasonable juror could conclude that

the employer’s proffered reasons were not the

real reasons for the termination. See Chen v. Dow

Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009).

We have held that a plaintiff can carry that

burden by showing “1) that the proffered reasons

had no basis in fact, 2) that the proffered reasons

did not actually motivate the employer’s action,

or 3) that they were insufficient to motivate the

employer’s action.” Romans v. Mich. Dep’t of

Hum. Servs., 668 F.3d 826, 839 (6th Cir. 2012)

(citation omitted). None is present here.

As an initial matter, not even Gumm

suggests that the behavior reported to AK Steel by

his coworkers is insufficient to motivate a

termination. In fact, the reports of racist and

sexist comments arguably compelled AK Steel

to take significant action to avoid its own

Title VII liability. See Jackson v. Quanex Corp.,

191 F.3d 647, 659, 662–66 (6th Cir. 1999).

Nor is there a genuine dispute that AK

Steel’s proffered reasons lacked a basis in fact.

The record is filled with complaints about

Gumm’s treatment

of fellow

employees,

complaints that span an extended period.

Although Gumm takes issue with certain aspects

of the investigation into his conduct, he

App.9a

admitted that he had no reason to believe

that the persons reporting his behavior had

reason to lie. And as the district court correctly

concluded, Gumm certainly cannot show that AK

Steel did not reasonably believe that there was

some truth underlying the wave of allegations

from multiple sources across an extended

period of time. See Tingle v. Arbors at Hilliard,

692 F.3d 523, 530–31 (6th Cir. 2012); Michael v.

Caterpillar Fin. Servs. Corp., 496 F.3d

584, 598–600 (6th Cir. 2007).

Nor has Gumm created a genuine dispute

that the proffered reasons did not actually

motivate the termination. He points to the

temporal proximity between his complaints about

AK Steel’s employment decisions and his

termination. But we have long held that temporal

proximity alone cannot establish pretext, unless

the plaintiff also points to other, independent

evidence. Briggs v. Univ. of Cincinnati, 11 F.4th

498, 516 (6th Cir. 2021); Skrjanc v. Great Lakes

Power Serv. Co., 272 F.3d 309, 317 (6th Cir.

2001). And Gumm points to no such evidence

here. He claims to have been “a highperforming employee with no prior negative

evaluations

until

began

reporting

discrimination.” Opening Br. at 15. But the very

same performance evaluations he relies upon also

note his “harsh” and “abrasive” treatment of

coworkers. Performance Evaluation, R. 34–8,

PageID 568–69.

In addition, Gumm points

out that AK Steel did not corroborate the specific

allegation raised in the November 2019 hotline

complaint. But it is undisputed that the

App.10a

investigation of that complaint uncovered

numerous reports from supervisors of other

inappropriate behavior by Gumm, which were

consistent with numerous complaints that

preceded the anonymous complaint.

All told, Gumm fails to identify evidence

from which a reasonable juror could conclude that

his abrasive treatment of fellow employees and

derogatory comments about women and

employees of color were not the real reasons for

his termination. So, the district court correctly

concluded AK Steel was entitled to summary

judgment on Gumm’s retaliatory termination

claims.

His retaliatory hostile work environment

claims fare no better. Those claims also track the

McDonnell Douglas framework and require

Gumm to first establish that 1) he opposed racial

discrimination, 2) AK Steel was aware of his

opposition, 3) AK Steel’s investigation constituted

severe or pervasive harassment that would

dissuade a reasonable worker from opposing

racial discrimination, and 4) there was a causal

connection between his opposition and the

investigation. See Morris, 201 F.3d at 792. Like

the termination claims, the burden then shifts to

AK Steel to articulate some legitimate,

nondiscriminatory reason for its investigation,

before then shifting back to Gumm to

demonstrate that AK Steel’s proffered reasons

were pretextual. Id. at 792–93.

The district court correctly concluded that

App.11a

Gumm’s hostile work environment claims fail at

the prima facie stage. Recall that the only action

Gumm claims created a hostile work environment

is AK Steel’s investigation into his alleged

misconduct. But he identifies nothing unusual

about the investigation that would rise to the

level of severe or pervasive harassment. Cf.

Khamati v. Sec’y of Dep’t of the Treasury, 557 F.

App’x 434, 443 (6th Cir. 2014). Indeed, as we’ve

explained, Title VII may have required AK Steel to

investigate Gumm’s workplace conduct after it

received numerous complaints about his

workplace conduct. See Jackson, 191 F.3d at 659,

662–66. That is because employers have an

affirmative duty to prevent or remedy

discrimination on the basis of race or sex in the

workplace. Faragher v. City of Boca Raton, 524

U.S. 775, 806– 08 (1998). In such circumstances,

no reasonable juror could conclude that AK

Steel’s

investigation

into

workplace

discrimination created severe or pervasive

harassment that would reasonably deter an

employee from opposing racial discrimination.

Gumm’s arguments to the contrary are

unconvincing. As an initial matter, he appears to

suggest that any investigation into his reported

misconduct would constitute severe or pervasive

harassment

because

was

based

“unsubstantiated” allegations. Opening Br. at 21.

But even viewing the facts in the light most

favorable to Gumm, AK Steel’s initial

investigation into his misconduct was conducted

after multiple complaints from various sources.

Nor could a reasonable juror find AK Steel’s

App.12a

reaction to the November 2019 hotline complaint

to objectively constitute severe or pervasive

harassment. While the hotline complaint was

anonymous, it was consistent with prior

complaints about Gumm’s misconduct that AK

Steel previously felt compelled to address.

Finally, Gumm claims severe or pervasive

harassment could be inferred from the fact that

prior complaints about his behavior were never

communicated to him. But his supervisors

testified to conducting numerous informal

discussions with him, all of which were triggered

by “constant complaints” about the way he

treated subordinates and other supervisors.

Gibbons Deposition, R. 34–3, PageID 386. And

Gumm points to no specific evidence in the

record rebutting those representations. See Fed.

R. Civ. P. 56(c)(1)(A). Given Gumm’s failure to

identify sufficient evidence to establish an

essential element of his claims, the district

court correctly granted summary judgment to AK

Steel on the hostile work environment claims.

IV.

For these reasons, we affirm the district

court’s judgment.

App.13a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PETER GUMM,

Plaintiff,

Case No. 21-cv-12441

Hon. Shalina D. Kumar

Mag. Elizabeth A. Stafford

AK STEEL

CORPORATION,

Defendant.

____________________________/

OPINION AND ORDER DENYING PLAINTIFF’S

MOTION FOR RECONSIDERATION (ECT NO. 48)

INTRODUCTION

Plaintiff

Peter

Gumm

moves

for

reconsideration of this Court’s order granting

defendant AK Steel Corp.’s motion for summary

judgment (ECF No. 45). ECF No. 48. For the

reasons set forth below, Gumm’s motion is

DENIED.

II.

BACKGROUND

Gumm brought this action against AK

Steel, his former employer, alleging retaliation

and hostile work environment under Title VII of

the Civil Rights Act of 1964 (Title VII), 42 U.S.C.

§ 2000e et seq., and Michigan’s Elliot-Larsen

Civil Rights Act (ELCRA), M.C.L. § 37.2101 et

App.14a

seq.

In granting AK Steel’s motion for

summary judgment, the Court dismissed Gumm’s

ELCRA claims as time barred. ECF No. 45,

PageID.1339-42. It also dismissed Gumm’s Title

VII retaliation claim because he failed to provide

evidence that could lead a reasonable jury to

believe AK Steel’s proffered non-retaliatory

reason for terminating him— that he used

abusive and offensive language with his

employees—was

mere

pretext.

Id.

PageID.1348-58. Finally, the order dismissed

Gumm’s hostile work environment claim because

reasonable investigations of credible allegations

of employee wrongdoing does not create an

actionable hostile work environment and Gumm

offered no evidence that AK Steel’s investigation

of complaints against him was conducted

unethically or in bad faith. Id. at PageID.135864.

In the motion now before the Court, Gumm

asks the Court to reconsider its ruling, arguing

that it made a mistake because genuine issues of

material fact exist as to whether AK Steel’s

proffered non- retaliatory reason for terminating

Gumm was pretext and whether it created a

hostile work environment by investigating him.

ECF No. 48.

App.15a

III.

DISCUSSION

A. Standard of Review

Gumm cites Eastern District of Michigan

Local Rule 7.1(h) as the procedural rule under

which he seeks relief, however, motions for

reconsideration of a Court’s final ruling, such as

the order granting AK Steel’s motion for

summary judgment here, are governed by

Federal Rule of Civil Procedure 59(e) or 60(b).

Motions to alter or amend judgment pursuant to

Rule 59(e) may be granted only if there is a clear

error of law, newly discovered evidence, an

intervening change in controlling law, or to

prevent manifest injustice. GenCorp, Inc. v. Am.

Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.

1999). “Rule 59(e) permits a court to alter or

amend a judgment, but it may not be used to

relitigate old matters, or to raise arguments or

present evidence that could have been raised

prior to the entry of judgment.” Exxon Shipping

Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)

(quoting 11C Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2810.1

(2d ed. 1995)); see also Mich. Flyer LLC v. Wayne

Cnty. Airport Auth., 860 F.3d 425, 431 (6th Cir.

2017) (“A motion under Rule 59(e) is not an

opportunity to re-argue a case.” (quoting Sault

Ste. Marie Tribe of Chippewa Indians v. Engler,

146 F.3d 367, 374 (6th Cir. 1998)). “A motion to

alter or reconsider a judgment is an

extraordinary remedy and should be granted

sparingly because of the interests in finality and

App.16a

conservation of scarce judicial resources.” In re J

& M Salupo Dev. Co., 388 B.R. 795, 805 (B.A.P.

6th Cir. 2008) (quoting Am. Textile Mfrs. Inst.,

Inc. v. Limited Inc., 179 F.R.D. 541, 547 (S.D.

Ohio 1998)).

Rule 60(b) allows a court to relieve a party

from a final judgment, order, or proceeding for

the following reasons:

(1) mistake, inadvertence, surprise,

(2) or excusable neglect;

(3) newly discovered evidence

that, with reasonable diligence,

could not have been discovered in

time to move for a new trial

under Rule 59(b);

(4) fraud (whether previously

called intrinsic or extrinsic),

misrepresentation, or misconduct

by an opposing party;

(5) the judgment is void;

(6) the judgment has been

satisfied, released, or discharged;

it is based on an earlier judgment

that has been reversed or

vacated;

applying

prospectively

longer

equitable; or

(7) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). The residual clause in

Rule 60(b)(6) affords relief “only in exceptional

circumstances” not otherwise addressed by the

rule's first five clauses. Tanner v. Yukins, 776

App.17a

F.3d 434, 443 (6th Cir. 2015) (emphasis added)

(quoting Olle v. Henry & Wright Corp., 910 F.2d

357, 365 (6th Cir. 1990)); see also McDowell v.

Dynamics Corp. of Am., 931 F.2d 380, 383 (6th

Cir. 1991) (citing Hopper v. Euclid Manor

Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir.

1989)). Rule 60(b)(6) is properly invoked only in

“unusual and extreme situations where

principles of equity mandate relief.” Tanner,

776 F.3d at 443 (quoting Olle, 910 F.2d at 365)

(emphasis removed).

Like Rule 59(e), “relief under Rule 60(b)

is ‘circumscribed by public policy favoring

finality of judgments and termination of

litigation.’” Blue Diamond Coal Co. v. Trs. of

UMWA Combined Ben. Fund, 249 F.3d 519, 524

(6th Cir. 2001) (quoting Waifersong Ltd., Inc. v.

Classic Music Vending, 976 F.2d 290, 292 (6th

Cir. 1992)). Also, like Rule 59(e), Rule 60(b) does

not provide a vehicle to rehash arguments

previously made and rejected. “A Rule 60(b)

motion must be denied if . . . it is merely an

attempt to relitigate the case.” Long v. Morgan,

56 Fed. App’x 257, 258 (6th Cir. 2003) (citing

Mastini v. Am. Tel. & Tel. Co., 369 F.2d 378,

379 (2d Cir. 1966)). The party seeking relief

under Rule 59(e) or Rule 60(b) bears the burden

of establishing the grounds for such relief by

clear and convincing evidence. Info-Hold, Inc. v.

Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir.

2008); In re J & M Salup Dev. Co., 388 B.R. at

805.

App.18a

B. Application

Gumm’s motion for reconsideration not

only advances the very arguments rejected by the

Court but, in fact, regurgitates them verbatim.

For example, Gumm argues in the motion for

reconsideration that, contrary to the Court’s

finding, he supplied compelling evidence that AK

Steel’s actions constituted pretext for retaliation

because:

(1) Plaintiff was a great employee for

years until he reported instances of

discrimination;

(2)

Defendant

manufactured a suspension after-thefact that it did not even bother to try to

document properly and has no idea

when he was actually suspended (3)

there was never an investigation done

when Plaintiff voiced his concerns with

how the company was not promoting

qualified African American employees,

while a “thorough” investigation was

done into claims of racism against him

– including taking hourly workers off

the “shop floor” to do interviews with

multiple members of management; (4)

though Defendant found that none of

the claims of Plaintiff being racist were

substantiated, Defendant decided to

fire him because of five interviews

conducted with supervisors under

Plaintiff a week before his termination,

without ever telling him that these

alleged comments were made until the

App.19a

day he was terminated, and never

including him in the investigation

which the Court found formed the basis

for his termination, making it clear that

whatever investigation was done that

led to his termination was a sham; and

(5) there was a lack of contemporaneous

criticism of Plaintiff’s performance; as

evidenced when Plaintiff’s 2018 Annual

Statement came out March 22, 2019,

employee surveys came out January

2019, and Plaintiff was still receiving

high regards and remarks from

Defendant on his annual assessment; he

had no issues at all until he

complained.

ECF No. 48, PageID.1395-96. The identical

language appears in Gumm’s response brief in

opposition to AK Steel’s motion for summary

judgment. Compare id. to ECF No. 38,

PageID.797-98. This replicated argument does

not warrant reconsideration of the Court’s order.

Gumm’s arguments that the Court erred in

not finding a genuine issue of material fact

relating to his hostile work environment claim

likewise repeat those he advanced in his response

brief. Gumm’s motion for reconsideration lists

irregularities with AK Steel’s investigation of the

complaints

against

him—such

unsubstantiated three-day suspension over a

safety issue which Gumm claims he never

received and a delay between the alleged

employee complaints about him and AK Steel’s

App.20a

investigation—to suggest that the investigation

was groundless and undertaken to create a

hostile work environment. ECF No. 48,

PageID.1399. But the Court rejected these same

arguments when Gumm made them in response

to AK Steel’s motion for summary judgment.

The Court dispatched any issue over the

contested three-day suspension by noting that

Gumm acknowledged in his deposition testimony

that he received a suspension for a safety

violation. See ECF No. 45, PageID.1333, n.2.

Moreover, that suspension was not relevant to

Gumm’s claims because it was not a reason for

termination proffered by AK Steel, nor did it

prompt the further investigation that resulted in

Gumm’s termination for using abusive and

profane language with employees. See id.

The Court also rejected Gumm’s argument

repeated here that employee complaints were

merely a pretext for AK Steel’s retaliatory

investigation as evidenced by its delay in

investigating the complaints against him until he

engaged in protected activity. The Court found

instead that the record contained ample evidence

of AK Steel management contemporaneously

criticizing Gumm for his conduct based on

employee complaints. Id. at PageID.1354-55. As

discussed, Rule 59(e) and Rule 60(b) do not

provide a vehicle to rehash arguments previously

made and rejected and thus Gumm’s reiterated

arguments do not merit reconsideration.

App.21a

IV.

CONCLUSION

For these reasons, Gumm’s motion for

reconsideration (ECF No. 48) is DENIED.

s/Shalina D. Kumar

SHALINA D. KUMAR

United States District Judge

Dated: September 11, 2024

App.22a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PETER GUMM,

Plaintiff,

Case No. 21-cv-12441

Hon. Shalina D. Kumar

Mag. Elizabeth A. Stafford

AK STEEL

CORPORATION,

Defendant.

____________________________/

OPINION AND ORDER GRANTING

DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT (ECF NO. 34)

INTRODUCTION

Plaintiff Peter Gumm sues defendant AK Steel

Corp.,1 his former employer, alleging retaliation and

retaliatory hostile work environment under Title VII

of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §

2000e et seq., and Michigan’s Elliot-Larsen Civil

Rights Act (ELCRA), M.C.L. § 37.2101 et seq. ECF No.

1. AK Steel filed a motion for summary judgment, and

the motion is fully briefed. ECF Nos. 34, 38, 40. The

Court held a hearing on the motion on September 21,

2023. The matter is now ready for determination. For

the reasons set forth below, the Court GRANTS AK

AK Steel Corp. was acquired by Cleveland-Cliffs Inc. and

renamed Cleveland-Cliffs Steel Corp. after Gumm’s termination.

App.23a

Steel’s motion.

II.

FACTS

AK Steel is a steel manufacturer that produces

carbon, stainless, and electrical steel products in

multiple facilities throughout Indiana, Michigan,

Ohio, and Pennsylvania. ECF No. 39-6. In April 2015,

AK Steel hired Gumm as a shift manager at its

Dearborn Works facility, which specializes in the

melting, casting, and finishing of carbon steels. ECF

Nos. 39-1, 39-6. In connection with his hiring, Gumm

submitted a signed application for salaried

employment which included an agreement “that any

action, suit, or charge against [AK Steel] arising out

of my employment or termination of employment,

including . . . claims arising under State or Federal

Civil Rights statutes, must be brought within 180

days of the event giving rise to the claims or be

forever barred.” ECF No. 34-4.

Gumm worked as a shift manager from 2015 to

2017, and, along with three other shift managers,

reported to the section manager. ECF No. 34-2,

PageID.335-37. In 2017, AK Steel promoted Gumm

to section manager of the Hot Strip Mill Logistics

Department. Id. Four shift managers and a day

manager, as well as hourly employees, reported to

Gumm as section manager. Id. Gumm received

multiple pay raises and bonuses from 2015 through

2018. ECF Nos. 39-2, 39-3, 39-4.

AK Steel assessed Gumm’s performance as

section manager in a 2018 Annual Assessment,

which was issued to Gumm in March 2019. ECF No.

34-8. The assessment rated Gumm’s proficiency as

“4-Above Expectations” for “Achieving Results” and

App.24a

“3-Successful” for “Working with Others.” ECF No.

34-8, PageID.567-68. This assessment noted that

Gumm “needs to continue to work on how he

interacts with other salary and hourly employees. He

can be harsh and more empathetic to others.” Id.

Elsewhere, the assessment noted that Gumm “can be

abrasive to others at times.” Id. at PageID.569.

Beginning in 2018, the newly promoted

department manager of the Hot Mill Strip, LaDale

Combs, held “town hall” meetings to update the

hourly employees on the department’s status and

allow them the opportunity to share their ideas and

concerns with management. ECF No. 34-6,

PageID.468-70. At the conclusion of one such

meeting, several employees approached Combs with

complaints about Gumm’s interactions with them. Id.

In early 2019, a union representative approached

Combs to request a meeting with some of the Hot Mill

Strip employees who were complaining specifically

about Gumm. Id. at PageID.461. Also in early 2019,

Combs received the confidential results of annual

employee surveys which contained complaints about

Gumm’s management style, communications, and

unfair treatment of his employees. Id. at PageID.46667.

Like Combs, other managers received

complaints about Gumm. Annette Gibbons, AK

Steel’s manager of human resources and labor

relations, testified that her office fielded constant

complaints about Gumm and how he treated

employees. ECF No. 34-3, PageID.385-87. She

further recounted her own interactions showcasing

Gumm’s malice toward employees: “I remember

clearly he was . . . talking about how he made a

App.25a

supervisor cry

I remember turning around and

saying, ‘What?’ And he happily repeated that he

made a supervisor cry. And I said, “Pete, that is not

something you should be proud of.” Id. at

PageID.385. Gibbons also testified that Gumm was

so disrespectful to a union representative during a

meeting she attended with them that she asked the

union representative to step out while she

reprimanded Gumm for his conduct. Id. at 384.

In the summer of 2019, Combs, Gibbons, and

Gumm’s direct supervisor, Jason Dearth, met with

Gumm to discuss the complaints they had been

receiving about Gumm’s communications with his coworkers and employees. Id. at 383-84; ECF No. 34-6,

PageID.474. According to Gibbons, the purpose of the

meeting was to alert Gumm to the complaints about

him and to “the general perception that he treated

employees poorly.” ECF No. 34-3, PageID.384. “We

wanted him to understand that it was important that

he corrected this behavior.” Id.

Also during that summer, Gumm raised

concerns over the hiring of white shift managers

instead of Black employees who were more qualified.

ECF No. 34-2, PageID.340-41. Gumm complained to

Dearth that two new white supervisors had been

hired without his input while he was on vacation. Id.

at PageID.341. Gumm also expressed concern to

Combs because he believed Jacquetta Mosley, a

Black female employee, was the most qualified

candidate in the facility for a new position and he

wanted her to have the opportunity to interview for

it. Id. at PageID.342. According to Gumm, Combs

refused to consider Mosely for the position, claiming

that the male workers did not like Mosley because

App.26a

she complained about one of them earlier. Id.

Gumm testified that he initially raised his

concerns and complaints over minority hiring to

Dearth and Combs, separately, in their respective

offices with no one else present. Id. He never put his

concerns or complaints in writing. Id.

Gumm raised other complaints related to

perceived discrimination that summer. Earlier that

year, AK Steel terminated three of Gumm’s

employees for being intoxicated while operating

heavy machinery. Id. at PageID.344. Over the

summer, it rehired one of those three employees—

the only white individual terminated on those

grounds. Id. Gumm testified that he met with Joe

Skubic, the human resources manager, Combs,

Dearth, and possibly Gibbons to voice his objection to

the rehiring of the white employee. Id. at

PageID.344-45. He raised his concern over the optics

of rehiring the white employee and not the two Black

employees who were terminated on the same

grounds. Id. at PageID.345. He testified that his

employees believed him to have decided to rehire the

white hourly employee and not the Black employees

and that “the optics were terrible.” Id. Gumm further

testified that he would not have brought any of the

three terminated employees back because they

committed a serious violation of policy by operating

heavy equipment while intoxicated. Id. Gumm also

acknowledged at his deposition that the terminated

Black employees were, in fact, rehired later. Id. at

PageID.344.

In the months after Gumm voiced his concerns

and complaints over hiring and rehiring practices,

AK Steel disciplined Gumm twice. First, as a result

App.27a

of a September 25, 2019 safety violation, Gumm

received a three- day unpaid suspension.2 ECF No.

34-13.

Second, and more relevant to this matter,

Gumm received a reprimand for failing to treat

employees respectfully. ECF No. 34-12. The

reprimand references an investigation that

uncovered negative feedback regarding his treatment

of employees from yearly employee surveys and exit

interviews, as well as verbal complaints. Id.

AK Steel’s vice president of carbon steel

operations, Brian Bishop, testified that he became

aware of increasing complaints about Gumm’s lack

of professionalism and problematic interactions with

his peers and subordinates sometime during late

2018 or early 2019. ECF No. 34-10, PageID.683, 685.

He testified that he initiated the investigation, which

culminated in the November 2019 reprimand, after

reviewing exit interviews from employees who left

AK Steel. Id. Specifically, after reviewing one exit

interview where a shift manager working under

Gumm cited Gumm’s abusive tactics as a reason for

ending his employment with AK Steel, Bishop

concluded that the complaints about Gumm required

action. Id. at PageID.685, 687.

Gumm testified that during the meeting about his

reprimand and suspension, he asked for evidence to

support the accusations in the reprimand, but none

was provided. ECF No. 34-2, PageID.340. He also

Gumm argues in opposition to AK Steel’s motion that it

manufactured this suspension as part of its investigation of him,

but he testified at deposition that he was indeed suspended for

a safety violation. ECF No. 34-2, PageID.339. Gumm also

acknowledged the safety violation was captured on video. Id.

App.28a

testified that he reiterated his complaints about

discriminatory hiring practices. Id. at PageID.342.

Later in November 2019, AK Steel’s ethics hotline

received an anonymous complaint accusing Gumm of

creating a hostile work environment by being

disrespectful to and name-calling employees. ECF

No. 34-14, PageID.724. The anonymous caller

recounted hearing Gumm say that he wanted all

white supervisors and did not like Black employees.

Id. The caller reported feeling that he or she could

never be promoted because of the color of his/her

skin. Id. As part of AK Steel’s investigation of this

anonymous complaint, Skubic asked Gibbons to

interview hourly employees working under Gumm.

ECF No. 34-3, PageID.389. The hourly employees

interviewed did not report being subject to

discrimination. Id.

Skubic, in turn, interviewed all five of the white

salaried shift managers who reported directly to

Gumm. ECF No. 34-9, PageID.589-90. The midnight

shift manager had little contact with Gumm and

reported no complaints about Gumm. Id. at

PageID.614; ECF No. 34-16.

The remaining four managers reported

disrespectful and offensive conduct by Gumm. Carl

Thomas reported hearing Gumm use profane and

abusive language toward employees. ECF Nos. 34-9,

PageID.614, 34-16, 34-17. Cheryl Hoffman reported

hearing Gumm make racist comments, specifically

that Gumm stated that an employee was “stupid

because he is Black” and that Gumm “needs a Black

supervisor because he has been called racist.” ECF

No. 34-9, PageID.615; ECF Nos. 34-16, 34-17.

Hoffman also reported hearing Gumm make sexist

App.29a

statements, calling women “ignorant” and “crybaby

bitches,” and referred to a particular female

employee as the c-word. ECF No. 34-9, PageID.61516; ECF Nos. 34-16, 34-17. Similarly, Curtis Penix

reported that Gumm regularly made derogatory

remarks about Black and female employees. ECF No.

34-9, PageID.618; ECF Nos. 34-16, 34-17. Penix

corroborated that Gumm called female employees the

c-word. ECF No. 34-9, PageID.618; ECF Nos. 34- 16,

34-17. Larry Kaitner reported hearing Gumm belittle

coworkers as “stupid” and make fun of female

coworkers for crying. ECF No. 34-9, PageID.616-17;

ECF Nos. 34-16, 34-17. Kaitner also reported that

Gumm destroyed the morale of the logistics

department and that he tried to avoid him. ECF No.

34-9, PageID.617; ECF Nos. 34-16, 34-17.

After

completing

the

shift

manager

interviews, AK Steel terminated Gumm on January

10, 2020. ECF No. 34-19. More than 180 days later,

on August 5, 2020, Gumm filed a charge with the

Equal Employment Opportunity Commission

(EEOC) alleging retaliation by AK Steel. ECF No. 3418. This action followed in October 2021. ECF No. 1.

III.

ANALYSIS

A. Standard of Review

If a party moves for summary judgment, it will

be granted “if the movant shows that there is no

App.30a

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). “A party asserting that a fact

cannot be or is genuinely disputed must support the

assertion by: (A) citing to particular parts of materials

in the record . . . ; or (B) showing that the materials

cited do not establish the absence or presence of a

genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed.

R. Civ. P. 56(c)(1).

The standard for determining whether

summary judgment is appropriate 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.” State

Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436

(6th Cir. 2005) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986)). Furthermore, the

evidence and all reasonable inferences must be

construed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Where the movant establishes a lack of a

genuine issue of material fact, the burden of

demonstrating the existence of such an issue shifts to

the non-moving party to come forward with “specific

facts showing that there is a genuine issue for trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

That is, the party opposing a motion for summary

judgment must make an affirmative showing with

proper evidence and must “designate specific facts in

affidavits, depositions, or other factual material

showing ‘evidence on which the jury could reasonably

find for the plaintiff.’” Brown v. Scott, 329 F. Supp. 2d

App.31a

905, 910 (E.D. Mich. 2004) (quoting Anderson, 477

U.S. at 252). To fulfill this burden, the non-moving

party need only demonstrate the minimal standard

that a jury could ostensibly find in his favor.

Anderson, 477 U.S. at 248; McLean v. 988011 Ontario,

Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere

allegations or denials in the non-movant’s pleadings

will not satisfy this burden, nor will a mere scintilla

of evidence supporting the non-moving party.

Anderson, 477 U.S. at 248, 251.

The court’s role is limited to determining

whether there is a genuine dispute about a material

fact, that is, if the evidence in the case “is such that a

reasonable jury could return a verdict for the

nonmoving party.” Id. at 248. Such a determination

requires that the court “view the evidence presented

through the prism of the substantive evidentiary

burden” applicable to the case. Id. at 254. Hence, if

plaintiffs must ultimately prove their case at trial by

a preponderance of the evidence, then on a motion for

summary judgment, the court must determine

whether a jury could reasonably find that the

plaintiffs’ factual contentions are true by a

preponderance of the evidence. See id. at 252-53.

Finally, if the nonmoving party fails to make a

sufficient showing on an essential element of its case

with respect to which it has the burden of proof, the

movant is entitled to summary judgment. Celotex, 477

U.S. at 323.

The court must construe Rule 56 with due

regard not only for the rights of those “asserting

claims and defenses that are adequately based in fact

to have those claims and defenses tried to a jury,” but

also for the rights of those “opposing such claims and

App.32a

defenses to demonstrate in the manner provided by

the Rule, prior to trial, that the claims and defenses

have no factual basis.” Id. at 327.

B. ELCRA Claims

AK Steel argues that Gumm’s ELCRA claims

are contractually time- barred by Gumm’s application

for salaried employment.33 In submitting that

application, AK Steel maintains that Gumm agreed to

commence any legal action against it within 180 days

of the date giving rise to the claims. ECF No. 34,

PageID.312.

Steel

terminated

Gumm’s

employment on January 10, 2020, but Gumm did not

file his EEOC charge until August 5, 2020, more than

180 days from his termination. ECF No. 34-18.

AK Steel cites Clark v. DaimlerChrysler Corp.

to support its argument that a six-month limitation

period contained in an employment application is

enforceable against claims of discrimination and

other employment claims. 706 N.W.2d 471, 474 (Mich.

Ct. App. 2005). Gumm does not contest the general

enforceability of such shortened period of limitation.

Rather, he argues that the provision should not be

enforced against him because he had no knowledge

that he was forgoing his right to file a lawsuit within

thetime permitted by Michigan law and that this lack

of knowledge creates a genuine issue of material fact

as to the validity of his purported agreement to the

AK Steel acknowledges that the contractually-shortened

limitation period is not enforceable against Gumm’s Title VII

claims. See Logan v. MGM Grand Detroit Casino, 939 F.3d 824

(2019).

App.33a

shortened window in which to bring an action.

Gumm’s argument is devoid of merit. “[O]ne

who signs a contract will not be heard to say, when

enforcement is sought, that he did not read it, or that

he supposed it was different in its terms.” Wilkie v

Auto-Owners Ins. Co., 664 N.W.2d 776, 786 (Mich.

2003) (quotation marks and citation omitted); see also

French v. MidMichigan Med. Ctr.-Gladwin, 2023 WL

2618981, at *4 (Mich. Ct. App. Mar. 23, 2023)

(rejecting same argument advanced here).

Gumm, relying on McMillon v. Kalamazoo,

argues that whether a plaintiff should be bound by a

contractually-shortened limitations period with his

employer presents a genuine issue of material fact

precluding summary judgment. 983 N.W.2d 79, 80

(Mich. 2023). In McMillon, the Michigan Supreme

Court ruled that summary disposition was

inappropriate because a genuine issue of material fact

existed as to whether the parties mutually agreed to

a shortened limitations period, but it did so under

facts readily distinguishable from those here. See id.

The shortened limitations period at issue in

McMillon appeared in an employment application the

plaintiff executed in March 2004 for a position as a

public safety officer for the defendant. Id. The plaintiff

was not hired for that position, but more than a year

later the defendant interviewed and hired plaintiff for

that position. Id. Critically, the plaintiff did not fill

out a new employment application. Id. None of the

paperwork the plaintiff filled out for the later position

shortened the period of limitations for bringing a

lawsuit. Id. The McMillon court found that the

defendant rejected plaintiff’s 2004 application

containing the shortened limitations period. Id.

App.34a

“Whether plaintiff had notice that defendant intended

to reuse her prior application materials or that

plaintiff intended or agreed to be bound by the initial

contractual application process remain genuine

issues of material fact.” Id. at 81.

Here, Gumm was hired in connection with the

employment application he signed in 2015. ECF No.

34-4. The application contains an agreement to the

shortened 180-day limit for bringing a claim against

AK Steel and a waiver of any longer limitations

period. Id. There is no question here that AK Steel

would rely upon and enforce the agreements

contained within Gumm’s application because he was

hired based on that application. Accordingly, the

shortened limitations period applies, and Gumm’s

ELCRA claims are barred.4

C. Title VII Claims

1. Retaliation

Title VII and ELCRA prohibit an employer

from retaliating against employees for opposing

practices unlawful under those statutes. 42 U.S.C. §

2000e-3(a); M.C.L. 37.2701(a). Courts analyze

retaliation claims under the same framework for

both the federal and state statutes. Rogers v. Henry

Ford Health Sys., 897 F.3d 763, 775 (6th Cir. 2018).

Plaintiffs may establish Title VII or ELCRA

violations through either direct or circumstantial

Even if Gumm’s ELCRA claims were not barred by the

contractually- shortened limitation period, they would be

subject to the same analysis as his Title VII claims. See infra

Section III.C.

App.35a

evidence. Id. at 771 (citing Upshaw v. Ford Motor

Co., 576 F.3d 576, 584 (6th Cir. 2009)). Courts apply

the familiar McDonnell Douglas burden-shifting

framework to retaliation environment claims such as

the one here, which are based on circumstantial

evidence. Id.; see generally McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802-05 (1973). Under this

burden-shifting framework, Gumm first must

establish a prima facie case of retaliation. See Rogers,

897 F.3d at 772 (citing Upshaw, 576 F.3d at 584). If

he does so, AK Steel must articulate “a legitimate,

nondiscriminatory [or nonretaliatory] reason” for

terminating his employment. Id. The onus then falls

to Gumm to produce evidence sufficient for a jury to

find that the proffered reason was pretextual. Id.

Prima Facie Case

To establish a prima facie case of retaliation,

Gumm must show that (1) he engaged in protected

activity; (2) his exercise of the 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.” Id. at 775 (quoting Laster v. City of

Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014))

(internal quotation marks omitted). Gumm’s burden

to establish a prima facie case is “minimal;” he must

only supply “some credible evidence that enables the

court to deduce that there is a causal connection

between the protected activity and the retaliatory

action.” Upshaw, 576 F.3d at 588 (citing EEOC v.

Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.

1997)).

App.36a

Gumm asserts that his attempts to protect

employees against AK Steel’s discriminatory

practices were protected activity and that AK Steel

knew of his protected activity because he directly

confronted his superiors about it. See ECF Nos. 1, 38.

Gumm contends that AK Steel took a materially

adverse action by terminating him shortly after he

spoke up about the discriminatory practices,

sufficiently satisfying the causal element of a prima

facie retaliation claim. ECF No. 38, PageID.795-96.

AK Steel disputes that Gumm’s complaints

about the failure to hire Black candidates as

supervisors or reinstate disciplined Black employees

constitute protected activity, and thus Gumm cannot

establish the first element of a prima facie case of

retaliation. The Court disagrees.

Title VII prohibits retaliation against

employees who opposed practices that are

discriminatory under Title VII. See 42 U.S.C. § 2000e3(a). The Supreme Court has held that the term

“oppose” should be interpreted based on its ordinary

meaning: “to resist or antagonize; to contend against;

to confront; resist; withstand.” Crawford v. Metro.

Gov't of Nashville & Davidson Cnty., 555 U.S. 271,

276 (2009) (cleaned up). “Examples of opposition

activity protected under Title VII include

‘complaining to anyone (management, unions, other

employees, or newspapers) about allegedly unlawful

practices; [and] refusing to obey an order because the

worker thinks it is unlawful under Title VII.’” Jackson

v. Genesee Cnty. Rd. Commn., 999 F.3d 333, 344–45

(6th Cir. 2021) (quoting Niswander v. Cincinnati Ins.

Co., 529 F.3d 714, 721 (6th Cir. 2008)); see also

Crawford, 555 U.S. at 276 (“When an employee

App.37a

communicates to her employer a belief that the

employer has engaged in . . . a form of employment

discrimination, that communication virtually always

constitutes the employee's opposition to the activity.”

(internal quotation marks and emphasis omitted)).

Although a plaintiff's allegations of protected activity

do not need to “be lodged with absolute formality,

clarity, or precision,” he must allege more than a

“vague charge of discrimination.” Yazdian v. ConMed

Endoscopic Techs., Inc., 793 F.3d 634, 645 (6th Cir.

2015) (quoting Stevens v. St. Elizabeth Med. Ctr., Inc.,

533 F. App’x 624, 631 (6th Cir. 2013) and Booker v.

Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304,

1313 (6th Cir. 1989)). “For a plaintiff to demonstrate

a qualifying ‘protected activity,’ he must show that he

took an ‘overt stand against suspected illegal

discriminatory action.’” Khalaf v. Ford Motor Co., 973

F.3d 469, 489 (6th Cir. 2020) (quoting Blizzard v.

Marion Tech. Coll., 698 F.3d 275, 288 (6th Cir. 2012)).

As AK Steel notes in its brief, in summer 2019,

Gumm complained to Dearth, his direct supervisor,

that two white supervisors had been hired instead of

any of the four Black employees who, in Gumm’s

opinion, were more qualified. Gumm specifically

challenged the timing of the hires—that is, while he

was on vacation—because “I was probably the most

outspoken person there and I would have voiced my

concern.” ECF No. 34, PageID.320 (citing ECF No. 342, PageID.343). Gumm also complained to Combs, his

previous supervisor who was later elevated to

General Manager of the Dearborn Works facility,

about the failure to interview a Black female

employee, whom Gumm believed to be “the most

qualified person in the building.” Id. (citing ECF No.

App.38a

34-2, PageID.342). Finally, Gumm complained that,

although three employees had been terminated for

similar drug and alcohol offenses, only the one white

employee had been reinstated. Id. at PageID.321

(citing ECF No. 34-2, PageID.345). As to this

complaint, Gumm testified that he was concerned

about the optics:

the optics were terrible, the

employees were upset about it and

they were all asking me why I would

do that. Because it was my area, they

assumed that I’m the one who

brought him back and I told him [sic]

I didn’t. I wouldn’t have brought any

of the three of them back, not a single

one. They . . . operated heavy

equipment

while

they

were

intoxicated . . . .

ECF No. 34-2, PageID.345.

Gumm’s testimony makes clear that he

primarily

objected

the

appearance

discrimination. Further, the thrust of Gumm’s

concern was not that the company was discriminating

against the Black terminated employees by not

reinstating them as well as the white employee, but

that none of the employees should have been

reinstated because they all had been appropriately

terminated. Id. Gumm’s complaint about the selective

reinstatement was a challenge of the “correctness of a

decision made by his employer” rather than an

assertion of discrimination, and thus does not

constitute protected activity for the purposes of

establishing a prima facie case of retaliation. See

App.39a

Khalaf, 973 F.3d at 490; see also Booker, 879 F.2d at

1313.

However, when viewed in a light most

favorable to Gumm, a reasonable juror could conclude

that Gumm engaged in protected activity by

complaining to his supervisors about their failure to

interview, hire, or promote qualified Black employees

for supervisory positions. Gumm testified that he

believed there was discrimination in the filling of two

supervisory roles with white candidates less qualified

than Black candidates: “I told them that we had

individuals who were qualified and interested in

positions and why wouldn’t we offer it to them I asked

him why we didn’t interview internal candidates that

were black that were more qualified. ECF No. 34-2,

PageID.342-43. Gumm likewise contested Comb’s

refusal to interview a qualified Black woman for an

opening position. Id.

“Magic words are not required, but protected

opposition must at least alert an employer to the

employee’s

reasonable belief

that

unlawful

discrimination is at issue.” Haydar v. Amazon

Corporate, LLC, 2021 WL 4206279, at *6 (6th Cir.

Sept. 16, 2021) (quoting Brown v. United Parcel Serv.,

Inc., 406 F. App’x 837, 840 (5th Cir. 2010)). A

reasonable juror could conclude that Gumm’s

expressed opposition to hiring what he perceived as

less-qualified

white

candidates

over

Black

candidates, who were not interviewed but had

superior qualifications, was sufficient to put AK Steel

on notice of Gumm’s complaints of racial

discrimination. See id.

Accordingly, Gumm’s challenges to AK Steel’s

hiring decisions could be viewed as opposition to

App.40a

discrimination and protected activity under Title VII

(and ELCRA). AK Steel is thus not entitled to

summary judgment based on Gumm’s failure to

establish a prima facie case of retaliation.5

Pretext

The parties do not dispute that AK Steel

carried its burden by providing a nondiscriminatory

reason for Gumm’s termination, namely that it

terminated him for making derogatory comments

about women and employees of color. The burden

thus shifts back to Gumm to show that the cited

offensive conduct was only a pretext to conceal that

his termination was retaliation. See Jackson, 999

F.3d at 350-51. Gumm establishes pretext if he

shows that AK Steel’s stated reason for terminating

him (1) had no basis in fact, (2) did not actually

motivate its decision, or (3) was insufficient to

motivate its decision. See id. at 351 (citing Chen v.

Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)).

Notwithstanding

this

seemingly

formalistic

approach, “[p]retext is a commonsense inquiry: did

the employer fire the employee for the stated reason

or not? This requires a court to ask whether the

plaintiff has produced evidence that casts doubt on

the employer’s explanation, and, if so, how strong it

is.” Chen, at 400 n.4. To overcome a motion for

summary judgment, a plaintiff must “produce

sufficient evidence from which a jury could

reasonably reject [a defendant’s] explanation of why

[the employer] fired [him].” Id. at 400.

5 AK Steel does not contest any other element of Gumm’s prima

facie case for retaliation. ECF No. 34, PageID.319-22.

App.41a

AK Steel argues that, even if Gumm denies

making the offensive comments attributed to him

during its investigation, it held an honest belief in its

nonretaliatory reason for firing him. Indeed, “[i]f an

employer

has

‘honest

belief’

nondiscriminatory basis upon which it has made its

employment decision, . . . then the employee will not

be able to establish pretext.” Tingle v. Arbors at

Hilliard, 692 F.3d 523, 530-31 (6th Cir. 2012). To

invoke the honest belief rule, “[a]n employer’s pretermination investigation need not be perfect,”

rather the key inquiry is whether the employer made

a reasonably informed and considered decision before

taking an adverse employment action. Loyd v. St.

Joseph Mercy Oakland, 766 F.3d 580, 590-91 (6th

Cir. 2014).

Gumm argues that the investigation AK Steel

conducted into his allegedly offensive conduct was so

inadequate that it invalidates any honest belief

protection. Specifically, Gumm argues that the

investigation into his conduct was shoddy because

Gumm “was a great employee for years until he

reported instances of discrimination,” AK Steel

manufactured a suspension of Gumm as part of its

investigation, AK Steel never investigated his

concerns about discriminatory hiring practices, he

was fired despite the claims of racism against him

not being substantiated, and the investigation did

not include him. ECF No. 38, PageID.797-98.

The Court notes that, for the most part, these

cataloged grievances do not attack the sufficiency of

AK Steel’s investigation into Gumm’s conduct.6 Even

6 Gumm’s cited quarrels with the investigation seem to be more

of an assault on AK Steel’s proffered reason for termination, i.e.,

App.42a

so, the Court finds no merit in Gumm’s assertion that

the investigation was lacking.

AK Steel initiated the investigation that led to

Gumm’s termination after its vice president of

carbon steel operations, Brian Bishop, reviewed an

exit interview, where a departing supervisor

identified Gumm’s abrasive and disrespectful

management style as one of the supervisor’s reasons

for leaving his employment with AK Steel7 and after

AK Steel received an anonymous hotline complaint

accusing Gumm of creating a hostile work

environment by belittling employees and making

racist comments. ECF Nos. 34-11, 34-14. That

investigation included interviews with various

hourly and salary employees, as well as with Gumm,

despite his claim that the investigation did not

include him. ECF Nos. 34-14, 34-15. The hourly

employees AK Steel interviewed denied experiencing

any racist or discriminatory treatment from Gumm,

but four of the five shift managers working directly

under Gumm corroborated his use of abusive and

offensive profanity when speaking to employees and

that it had no basis in fact, did not actually motivate the

decision, or was insufficient to motivate the decision.

Nevertheless, because Gumm did not develop such an argument,

he is deemed to have waived it. See McPhereson v. Kelsey, 125

F.3d 989, 995-96 (6th Cir. 1997) (“Issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived. It is not sufficient for a

party to mention a possible argument in the most skeletal way,

leaving the court to put flesh on its bones.”).

7 AK Steel formally reprimanded Gumm in connection with its

investigation of the departing supervisor’s complaints of

Gumm’s disrespectful conduct. ECF No. 34-12. The warning

specifically noted that further inappropriate conduct may result

in termination of employment. Id.

App.43a

derogatory comments toward Black and female

employees. ECF Nos. 34-14, 34-16, 34-17. AK Steel

concluded the investigation, finding that it “did not

corroborate the specific allegations brought forth in

the [hotline] complaint” but did “find evidence of

unprofessional and disrespectful actions” by Gumm.

ECF No. 34-14.

As noted above, an employer does not need to

show its investigation “left no stone unturned.”

Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.

1998). Importantly, Gumm’s challenges of the

investigation do not rebut the conclusion AK Steel

reached—that he behaved in an unprofessional and

offensive manner toward employees. Gumm does not

dispute that AK Steel’s investigation included

corroborated reports of Gumm using highly offensive

language in talking to and about women and Black

employees, and using profane and abusive language

toward employees generally. ECF Nos. 34-11, 34-16,

34-17. Gumm testified at deposition that he had no

reason to believe any of the interviewed shift

managers reporting to him would lie as part of the

investigation. ECF No. 34-2, PageID.347. He also

testified that he had no knowledge of any unethical

conduct taking place during the investigation. Id. at

PageID.346.

Moreover, courts routinely hold that a belief

based on particularized facts derived from

investigations, including co-worker statements,

overcomes claims of pretext. See, e.g., Romans v.

Mich. Dep’t of Hum. Svcs., 668 F.3d 826, 839 (6th Cir.

2012); Owhor v. St. John Health-Providence Hosp.,

503 F. App’x 307, 311 (6th Cir. 2012); Wright v.

Murray Guard Inc., 455 F.3d 702, 708 (6th Cir. 2006);

App.44a

Sublett v. Masonic Homes of Ky., 2022 WL 2798998,

at *5 (6th Cir. July 18, 2022). In sum, AK Steel’s

investigation, which yielded particularized and

unrebutted evidence of Gumm’s misconduct from

statements of multiple coworkers, provided ample

basis for AK Steel’s honest belief in its nonretaliatory

reason for firing him.

Finally, the Court need not address the honest

belief rule to reject Gumm’s assertions of pretext. The

honest belief rule becomes relevant only if the

plaintiff shows that the defendant’s “proffered reason

was a mistake, foolish, trivial, or baseless.” See

Hendershott v. St. Luke’s Hosp., 2020 WL 6256869, at

*2 (6th Cir. Aug. 25, 2020) (citing Loyd, 766 F.3d at

590-91). Here, Gumm does not show that AK Steel’s

proffered reason for firing him—that he used profane,

offensive, and abusive language toward his

employees—was a mistake, foolish, trivial, or

baseless.

Statements made by shift managers that

Gumm used profane and abusive language toward

employees, made racist and misogynistic comments

(including referring to female employees with the

most vulgar of derogatory terms), and belittled

coworkers by calling them stupid and making fun of

them for crying show that AK Steel’s proffered reason

for terminating him was not foolish or trivial, as this

conduct could have created liability issues for it. See

id. Nor could AK Steel’s proffered reason for

terminating Gumm be shown to be a mistake or

baseless, given Gumm’s testimony that he had no

reason to believe that these shift managers lied

during the investigation. See id. Without evidence

that AK Steel’s proffered reason for terminating

App.45a

Gumm was a mistake, foolish, trivial, or baseless,

neither the honest belief rule nor the associated

scrutiny

the

employer’s

pretermination

investigation comes into play. See id.

Gumm also argues that AK Steel’s lack of

contemporaneous criticism of his performance, his

receipt of an annual bonus and a raise, and the

suspicious timing of his termination make the

requisite showing of pretext to defeat summary

judgment. ECF No. 38, PageID.798. The Court

disagrees.

Contrary to Gumm’s assertion, AK Steel

management criticized his ability to work with others

both formally and informally before Gumm’s

protected activity in the summer of 2019. Gumm’s

2018 Annual Assessment, completed some ten

months before the investigation which led to his

termination and several months before the protected

activity, reflected that Gumm “needs to continue to

work on how he interacts with other salary and hourly

employees. He can be harsh and needs to be more

empathetic to others.” ECF No. 34-8, PageID.568. The

same

assessment

concludes

that

Gumm’s

management style requires “some polishing . . . as he

can be abrasive to others at times.” Id. at PageID.569.

Additionally, Gibbons, AK Steel’s human

resources and labor relations manager, testified at

deposition that her department received persistent

complaints about Gumm’s interactions with coworkers and subordinates and that Gumm received

regular if not constant admonishments over his

disrespectful communications with employees. ECF

No. 34-3, PageID.383-86. Gumm’s assertion of a lack

of contemporaneous criticism is specious and cannot

App.46a

support his claim of pretext.

Gumm, citing Cicero v. Borg-Warner

Automotive, Inc., argues that evidence of his

qualifications and continued receipt of bonuses and

raises could allow a fact finder to determine AK

Steel’s “proffered reason either had no basis in fact or

that it was insufficient to motivate the discharge

decision.” 280 F.3d 579, 589 (6th Cir. 2002). Gumm’s

reliance on Cicero is misplaced. In Cicero, the

employer cited the plaintiff’s poor work performance

as its reason for firing him. Id. at 588. But the

plaintiff in Cicero presented evidence of receiving a

full bonus when others with poor performance

received only half a bonus. Id. at 590-91. He also

showed that he received a raise based on merit and

that he was specifically listed in a critical employee

retention plan memo as a key member of

management staff whom the company wanted to

retain. Id. The evidence in Cicero showed that the

defendant-employer praised the plaintiff’s work,

awarded him performance-based bonuses and raises,

and never complained about his performance until

after it fired him. Id. at 591-92. The court deemed

such evidence adequate to create a triable question of

fact over whether the proffered reason for termination

was indeed pretext for discrimination. Id. at 593.

In contrast here, AK Steel’s proffered reason

for terminating Gumm was not his lack of proficiency

or failure to achieve results in his position, but rather

his use of abusive and offensive language with his

employees. The same annual assessment praising

Gumm’s achieved results also criticized his abrasive

interactions with other employees. ECF No. 34-8.

Gumm’s receipt of high marks for other aspects of his

App.47a

performance, and even a bonus and a raise, does not

negate the criticism supporting AK Steel’s reason for

termination. That Gumm was proficient in his duties

and achieved results is in no way inconsistent with

the proffered reason for his termination—that he

used abusive and offensive language with

employees—and thus the evidence of his skills and

accomplishments provides no support for his claim of

pretext. See Hendershott, 2020 WL 6256869, at *4.

Finally, Gumm broadly alludes to the

suspicious timing of his termination as indicative of

pretext. “Issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed

argumentation, are deemed waived. It is not

sufficient for a party to mention a possible argument

in the most skeletal way, leaving the court to put flesh

on its bones.” McPhereson v. Kelsey, 125 F.3d 989,

995-96 (6th Cir. 1997) (cleaned up). Nevertheless,

even if Gumm did not waive this argument, the timing

of Gumm’s termination does not support his claim of

pretext.

First, plaintiffs cannot rest solely on temporal

proximity to establish pretext. Wyatt v. Nissan North

Am., Inc., 999 F.3d 400, 421 (6th Cir. 2021).

Suspicious timing is a strong indicator of pretext only

when accompanied by some other, independent

evidence, which as previously discussed, Gumm does

not provide. See id.

Second, the roughly six months between

Gumm’s protected activity and his termination is too

attenuated to be availing evidence of pretext. See, e.g.,

id. (one week between protected activity and adverse

employment action deemed suspiciously proximate

timing to support claim of pretext); Lacy v.

App.48a

Marketplace Acquisitions, LLC, 2023 WL 4831400, at

*12 (E.D. Mich. July 27, 2023) (same); Amos v.

McNairy Cty., 622 F. App’x 529, 538-40 (6th Cir. 2015)

(adverse employment action one day after EEOC

investigation created genuine issue of material fact on

issue of pretext); LeMarbe v. Village of Milford, 2021

WL 4972946, at *15 (E.D. Mich. Oct. 26, 2021) (24 to

48 hours between protected activity and adverse

employment action indicator of pretext). Indeed, the

complaints from a resigning supervisor, the ensuing

reprimand, and the anonymous caller which

prompted the investigation and, ultimately, gave rise

to the proffered reason for Gumm’s termination, all

occurred in the intervening months between the

protected activity and the termination.

In all, Gumm fails to provide evidence that

could lead a reasonable jury to believe AK Steel’s

proffered non-retaliatory reason for terminating him

was mere pretext. Summary judgment in favor of AK

Steel on Gumm’s retaliation claim is thus

appropriate.

3. Hostile Work Environment

Gumm also asserts a claim for retaliatory

hostile work environment. ECF No. 1, PageID.3. AK

Steel argues that Gumm failed to exhaust his

administrative remedies for this claim because he did

not raise hostile work environment in the complaint

filed with the EEOC. See ECF No. 34-18. Gumm

counters that the EEOC Charge of Discrimination

form contains no check box to indicate a complaint of

hostile work environment and that he preserved his

claim for retaliatory hostile work environment

App.49a

because that claim could reasonably be expected to

grow from the narrative of his complaint contained

within the EEOC charge.

Absent a plaintiff’s express claim of hostile

work environment within an EEOC charge, that

“charge may only exhaust administrative remedies

for a hostile-work-environment claim if such a claim

was reasonably related to or could have grown out of

the factual allegations in the charge.” Russ v.

Memphis Light Gas & Water Div., 720 F. App’x 229,

238 (6th Cir. 2017) (citing Younis v. Pinnacle Airlines,

Inc., 610 F.3d 359, 362 (6th Cir. 2010)). For a hostile

work environment claim to be reasonably related to

or grow out of an employee’s charge, the charge must

allege more than an isolated discrete act of

discrimination or retaliation. Id. An employer’s

discriminatory or retaliatory conduct must be

pervasive to establish a claim of hostile work

environment. Id. Accordingly, “allegations in an

EEOC charge of only an isolated and discrete act . . .

are insufficient to provide notice of—and thus to

exhaust administrative remedies for—such a claim.”

Id.

Here, Gumm did not check the box on the

EEOC Charge of Discrimination form indicating that

his complaint was for a continuing action. ECF No.

34-18. He also indicates that the complained-of

retaliation took place on a single date, January 10,

2020, the date of termination. Id. Retaliation that is

not identified as continuing and that is alleged to

have started and ended on the same date is the

definition of an isolated and discrete act.

Further, nothing in the narrative portion of the

charge suggests ongoing retaliatory conduct. To the

App.50a

contrary, Gumm’s statement, “Following my

complaints on January 10, 2020, I was terminated[,]”

reinforces the charge’s other indications that it

complains of an isolated and discrete act. The Court

thus finds that Gumm’s EEOC charge did not provide

adequate notice of a retaliatory hostile work

environment claim and thus did not exhaust the

administrative remedies for this claim.

Even if Gumm’s EEOC charge satisfied the

administrative exhaustion requirements for a

retaliatory hostile work environment claim, that

claim fails on the merits. Retaliatory hostile work

environment is a type of retaliation claim. Khamati v.

Sec'y of Dep’t of Treasury, 557 F. App’x 434, 443 (6th

Cir. 2014) (citing Morris v. Oldham Cnty. Fiscal Ct.,

201 F.3d 784, 792 (6th Cir. 2000)). Prima facie

elements of a retaliatory hostile work environment

claim are thus “a modified version of those four

elements recognized in a typical retaliation claim: 1)

the plaintiff engaged in a protected activity; 2) the

defendant knew this; 3) the defendant subjected the

plaintiff to severe or pervasive retaliatory

harassment; and 4) the protected activity is causally

connected to the harassment.” Id. As discussed above,

Gumm has satisfied elements one and two of a prima

facie retaliatory hostile work environment claim.

The element at issue in Gumm’s claim, “the

touchstone of any hostile work environment claim, . .

. is whether ‘the workplace is permeated with . . .

intimidation, ridicule, and insult’ that is ‘sufficiently

severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working

environment.’” Id. (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)). Courts consider “the

App.51a

frequency of the [retaliatory] conduct; its severity;

whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work

performance.” Harris, 510 U.S. at 23.

Gumm contends that, after he complained of

AK Steel’s discriminatory practices, it “created a false

narrative” that it received multiple complaints of his

using racist slurs or that he was racist. ECF No. 1,

PageID.3. He alleges that as he complained of issues

with AK Steel’s hiring and promoting methods, his

treatment at work worsened. Id. Finally, he asserts

that instead of investigating his repeated complaints

about discrimination, AK Steel initiated an

investigation of him for use of racial slurs. Id.

Gumm presents no evidence to support his

allegation that AK Steel engineered or was aware of a

smear campaign against Gumm. Instead, the record

reflects that AK Steel received an anonymous report

from an employee alleging that he or she heard

Gumm make a racist comment. ECF No. 34-14. This

report prompted AK Steel to initiate an investigation,

which resulted in at least two employees

corroborating Gumm’s use of racist language. ECF

No. 34-16, PageID.730, 732. Gumm himself testified

that he had no reason to believe any of the

interviewed employees would lie as part of the

investigation. ECF No. 34-2, PageID.347.

An employer’s reasonable investigation of

credible allegations of employee wrongdoing does not

create an actionable hostile work environment. See

Khamati, 557 F. App’x at 443. In Khamati, the

defendant- employer instituted an investigation of

plaintiff-employee’s work following reports of

App.52a

improper case closures. Id. at 436. That the employer

investigation led to a formal investigation, which in

turn could have given rise to criminal charges against

the plaintiff, did not transform the employer’s

investigation into “actionable conduct.” Id. at 443.

The court found that the initiation of an investigation

into the plaintiff was natural and reasonable given

employee reports that plaintiff instructed them to

prematurely close cases. Id. at 436, 443. Although the

plaintiff “may have felt threatened, hostile work

environments must be objectively so.” Id. at 443

(citing Barrett v. Whirlpool Corp., 556 F.3d 502, 514

(6th Cir. 2009)).

Likewise, AK Steel’s investigation of the

complaints of racism against Gumm was prudent, if

not essential, under the circumstances. See Faragher

v. City of Boca Raton, 524 U.S. 775, 806-08

(recognizing employers’ affirmative obligation to

prevent

Title

VII

violations).

Given

the

reasonableness of AK Steel’s investigation, and that

Gumm himself does not believe the investigation was

conducted unethically or deceitfully, Gumm’s

subjective belief that he was being unfairly accused

or ridiculed is not sufficient to substantiate a hostile

work environment claim. See Khamati, 557 F. App’x

at 443-44.

Additionally, courts may only “consider the

attributes of the work environment that arise from

the plaintiff’s . . . performance of protected activities.”

Id. at 444 (citing Williams v. CSX Trans. Co., Inc.,

643 F.3d 502, 511 (6th Cir. 2011)). Failure to provide

“any persuasive proof beyond mere speculation of a

causal connection between . . . protected activities

and . . . work atmosphere” justifies summary

App.53a

judgment dismissal of a retaliatory hostile work

environment claim. Id. Because Gumm provides no

evidence beyond his own speculation that AK Steel’s

investigation or its findings were connected to his

protected activity several months prior, summary

judgment in favor of AK Steel on the retaliatory

hostile work environment claim is warranted.

IV.

CONCLUSION

For the reasons set forth in this opinion, the

Court GRANTS AK Steel’s motion for summary

judgment (ECF No. 34).

IT IS SO

ORDERED.

Dated:

September 26,

2023

s/Shalina D. Kumar

SHALINA D. KUMAR

United States District Judge

App.54a

No. 24-1767

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

PETER GUMM,

Plaintiff-Appellant,

FILED

April 17, 2025

Kelly L. Stephens, Clerk

AK STEEL CORPORATION,

Defendant-Appellee

___________________________/

BEFORE: THAPAR, BUSH, and MURPHY,

Circuit Judges.

The court received a petition for rehearing en banc.

The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. The petition

then was circulated to the full court.* No judge has

requested a vote on the suggestion for rehearing en

banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

*Judge Davis is recused in this case.

App.55a

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PETER GUMM,

Plaintiff,

Case No. 21-cv-12441

Hon. Shalina D. Kumar

Mag. Elizabeth A. Stafford

AK STEEL

CORPORATION,

Defendant.

____________________________/

PLAINTIFF’S MOTION FOR

RECONSIDERATION OF THIS COURT’S

ORDER GRANTING DEFENDANT’S MOTION

FOR SUMMER JUDGMENT

NOW COMES PLAINTIFF, Peter Gumm,

by and through his attorneys, CARLA D.

AIKENS P.L.C., and for his Motion for

Reconsideration of the Court’s Order Granting

Defendant’s Motion for Summary Judgment,

states as follows:

1. Plaintiff filed this action seeking

redress for violations of his civil

rights, as Defendant retaliated

against him for reporting issues

related to Defendant’s pervasive

racial discrimination that caused no

African Americans to be put into

management in his department,

App.56a

despite his efforts to do the same, and

further created a hostile work

environment.

2. Upon Defendant’s filing of its Motion

for Summary Judgment (ECF No. 34),

this Court dismissed Plaintiff’s claims

(ECF No. 45).

3. On review of this Court’s Opinion and

Order, Plaintiff believes that this

Court committed error in not giving

any credit to Plaintiff’s testimony nor

viewing the facts in a light most

favorable to him, and respectfully

requests that this Court reconsider its

ruling which dismissed his claims

without a jury trial.

4. Plaintiff respectfully requests that this

Court

grant

his

Motion

for

Reconsideration

Dated: October 24, 2023

Respectfully Submitted,

/s/ Carla D. Aikens

Carla D. Aikens

(P69530) Carla D.

Aikens P.L.C. Attorneys

for Plaintiff

615 Griswold St., Ste 709

Detroit, MI 48226

Tel: (844) 835-2993

Fax: (877) 454-1680

App.57a

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PETER GUMM,

Plaintiff,

Case No. 21-cv-12441

Hon. Shalina D. Kumar

Mag. Elizabeth A. Stafford

AK STEEL

CORPORATION,

Defendant.

___________________________/

PLAINTIFF’S BRIEF IN SUPPORT OF ITS

MOTION FOR RECONSIDERATION OF THIS

COURT’S ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

Table of Contents

INDEX OF AUTHORITIES

QUESTION PRESENTED

INTRODUCTION 1

LEGAL STANDARD

ARGUMENT

CONCLUSION

CERTIFICATE OF SERVICE

App.58a

INDEX OF

AUTHORITIES

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 2

Fleck v. Titan Tire Corp., 177 F. Supp.2d 605 (E.D.

Mich. 2001) 2

Graham v. Cty. of Washtenaw, 358 F.3d 377, (6th

Cir. 2004) 2

Harris v. J.B. Robinson Jewelers, 627 F.3d 235 (6th

Cir.2010)

Quinto v Cross & Peters Co, 451 Mich 358 (1996)

Radtke v Everett, 442 Mich 368 (1993) 5

Rymal v Baergen, 262 Mich App 274 (2004) 3

Rules

E.D. Mich. L.R. 7.1(h)(3) 2

Fed. R. Civ. P. 56(a)

App.59a

QUESTION

PRESENTED

Should this Court grant Plaintiff’s Motion for

Reconsideration

because

this

Court’s

September 26, 2023 Order contains a palpable

defect that misled the Court and correction

of the defect would result in a different

disposition of the case?

Plaintiff would answer: YES

Defendant would answer: NO

App.60a

INTRODUCTION

On August 5, 2020, Plaintiff Peter

Gumm filed a charge with the EEOC against

his prior employer and Defendant AK Steel

Corp. The allegations consisted of retaliation

for opposing discrimination based on race, in

violation of Title VII of the Civil Rights Act of

1964, as amended. Plaintiff filed his complaint

against Defendant on October 15, 2021,

raising claims of retaliation and hostile

workplace, because Plaintiff was fired after

complaining

Defendant’s

racially

discriminatory hiring and promotion practices.

Defendant filed a Motion for Summary

Judgment on February 18, 2022, arguing that

(1) Plaintiff’s ELCRA claims are time- barred,

(2) Plaintiff failed to exhaust is administrative

remedies, (3) Plaintiff cannot establish a prima

facie case of hostile work environment, (4)

Plaintiff did not engage in protected activity,

(5) Defendant had a legitimate, nondiscriminatory reason for its actions, and (6)

Defendant could not establish pretext.

This court granted Defendant’s Motion

on September 26, 2023, agreeing that: (1)

Plaintiff’s ELCRA claims are time-barred; (2)

Plaintiff failed to provide evidence that could

lead a reasonable jury to believe AK Steel’s

proffered

non-retaliatory

reason

for

terminating him was mere pretext; and (3)

Plaintiff failed to provide evidence beyond his

own speculation that Defendant’s investigation

App.61a

or its findings were connected to his protected

activity several months prior.

For the reasons stated below, Plaintiff

respectfully requests that this Honorable Court

grant his Motion for Reconsideration and allow

this case to proceed on the merits.

LEGAL STANDARD

The Federal Rules of Civil Procedures

provide that the court “shall grant summary

judgment 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). A material fact

is disputable only when “the evidence is such

that a reasonable jury could return a verdict for

the nonmoving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

Motions for reconsideration are governed

by Local Rule 7.1, which provides:

(3) Grounds. Generally,

and without restricting

the court’s discretion, the

court will not grant

motions for rehearing or

reconsideration

that

merely present the same

issues ruled upon by the

court, either expressly or

reasonable

App.62a

implication. The movant

must

not

only

demonstrate a palpable

defect by which the

court and the parties

and

other

persons

entitled to be heard on the

motion have been misled

but also show that

correcting the defect will

result in a different

disposition of the case.

See E.D. Mich. L.R. 7.1(h)(3). Pursuant to Local

Rule 7.1(h), parties may, on motion, seek

reconsideration after entry of a judgment order.

A party seeking reconsideration “must not only

demonstrate a palpable defect by which the

court and the parties have been misled but also

show that correcting the defect will result in

a different disposition of the case.” Graham

v. Cty. of Washtenaw, 358 F.3d 377, 385 (6th

Cir. 2004). A “palpable defect” is one which is

“obvious, clear, unmistakable, manifest, or

plain.” Fleck v. Titan Tire Corp., 177 F. Supp.2d

605, 624 (E.D. Mich. 2001)). This Court’s rules

state that a motion to alter or amend a

judgment must be filed no later than 28 days

after the entry of the judgment Fed. R. Civ P.

59(e). Plaintiff respectfully requests that this

court reconsider its order granting summary

judgment to Defendant.

App.63a

ARGUMENT

A. THERE IS A GENUINE

ISSUE OF MATERIAL FACT

AS TO WHETHER

DEFENDANT’S PROFFERED

NON-RETALIATORY

REASON FOR

TERMINATING PLAINTIFF

WAS MERELY PRETEXT

“To establish a prima facie case of unlawful

retaliation under the Civil Rights Act, a

plaintiff must show (1) that he engaged in a

protected activity; (2) that this was known by

the defendant;

(3) that the defendant took an employment

action adverse to the plaintiff; and (4) that

there was a causal connection between the

protected activity and the adverse employment

action.” Rymal v Baergen, 262 Mich App 274,

300; 686 NW2d 241 (2004).

Here, Plaintiff presents his prima facie case

by showing:

(1) he engaged in protected activity;

(2) The employer knew of that activity,

(3) the employer took adverse action

against Plaintiff, and

(4) there was a causal

connection between the

protected activity and

App.64a

the adverse action.

In its Order, finding that Plaintiff had

made out a prima facie case, this Court

asserted that Plaintiff had not offered any

argument about how Defendant’s actions were

pretext for discrimination. However, in his

response, ECF No. 38, PageID.780-789,

Plaintiff submitted evidence that Defendant’s

actions constituted pretext because: (1)

Plaintiff was a great employee for years until

he reported instances of discrimination; (2)

Defendant manufactured a suspension afterthe-fact that it did not even bother to try to

document properly and has no idea when he

was actually suspended; (3) there was never an

investigation done when Plaintiff voiced his

concerns with how the company was not

promoting

qualified

African

American

employees, while a “thorough” investigation

was done into claims of racism against him –

including taking hourly workers off the “shop

floor” to do interviews with multiple members

of management; (4) though Defendant found

that none of the claims of Plaintiff being racist

were substantiated, Defendant decided to fire

him because of five interviews conducted with

supervisors under Plaintiff a week before his

termination, without ever telling him that

these alleged comments were made until the

day he was terminated, and never including

him in the investigation which the Court found

formed the basis for his termination, making it

clear that whatever investigation was done

that led to his termination was a sham; and

App.65a

(5) there was a lack of contemporaneous

criticism

of Plaintiff’s performance; as

evidenced when Plaintiff’s 2018 Annual

Statement came out March 22, 2019, employee

surveys came out January 2019, and Plaintiff

was still receiving high regards and remarks

from Defendant on his annual assessment;

he had no issues at all until he complained.

But perhaps the greatest proof of

pretext is that Plaintiff never met the

individual that Defendant claims complained of

him enough to leave the company. Defendant

provided documents to Plaintiff just before it

filed its motion for summary judgment, well

after the more than a dozen depositions were

taken in this matter, showing that someone

had “anonymously” reported that Plaintiff and

Nowitzke had not worn protective equipment,

when Nowitzke is not even in the video and is

found nowhere in Joe Skubic’s (head of HR)

notes on the situation. (ECF No. 38,

PageID.782). Further, the exit interview of

Nowitzke’s purported comments was all

supplied by the head of HR, Joe Skubic. (ECF

No. 38, PageID.781-82).

Plaintiff protested to his supervisory

agents about how Defendant only seemed to hire

Caucasian employees to supervisory roles.

Instead of addressing Plaintiff’s issues,

Defendant, through its agents, created a false

narrative that Defendant had received

numerous calls from employees complaining

about Plaintiff’s use of racial slurs and/or that

Plaintiff was racist. As Plaintiff began

App.66a

reporting more issues, he noticed that his

treatment at work worsened. In October of

2019, instead of any investigation into

Plaintiff’s complaint, Defendant opened an

investigation into Plaintiff’s use of racial slurs.

After the investigation was concluded, the

main investigator, the human resources

manager, Joseph Skubic, stated to Plaintiff

that he had no proof that Plaintiff was racist;

however, he also informed Plaintiff that he

thought he was a liability. (ECF No. 38,

PageID.785)

Despite the lack of evidence, Plaintiff’s

vehement denial, and the human resources

manager admitting that there was no evidence

that Plaintiff had done or said anything racist,

on January 10, 2020, Plaintiff was terminated

from a position he held for over five years.

Plaintiff expressed his concerns directly with

Defendant

about

their

discriminatory

practices; immediately thereafter, Defendant

ultimately working up a plan to ensure that

Plaintiff was terminated for going against the

grain.

It is clear that Defendant’s explanation for

its adverse employment actions are based on

material misrepresentations of the facts and

surrounding circumstances of this case. It

should not be so extraordinarily difficult for a

plaintiff to get to a jury when he has presented

sufficient evidence of pretext for his employer’s

actions. A jury should decide whose reasoning

is believable. Therefore, because this Court’s

order granting summary judgment contains

App.67a

palpable defects in relying on Defendant’s

version of facts as true – even and especially

where it has no evidence beyond testimony

from interested individuals – rather than

Plaintiff’s, it should be reconsidered.

B. THERE IS A GENUINE

ISSUE OF MATERIAL FACT

AS TO AS TO PLAINTIFF’S

CLAIM OF A HOSTILE

WORKPLACE

ENVIRONMENT

To establish a prima facie case of hostile

environment, a plaintiff must demonstrate that

the employee belonged to a protected group, the

employee was subjected to communication or

conduct on the basis of being in the protected

group, the employee was subjected to

unwelcome conduct or communication, the

unwelcome conduct was intended to or in fact

did substantially interfere with the employee’s

employment or created an intimidating,

hostile, or offensive work environment; and

respondeat superior. Quinto v Cross & Peters

Co, 451 Mich 358, 368; 547 NW2d 314 (1996),

quoting Radtke v Everett, 442 Mich 368, 382383; 501 NW2d 155 (1993).

The test for whether a hostile work

environment existed is “whether a reasonable

person, in the totality of circumstances, would

have perceived the conduct at issue as

substantially interfering with the plaintiff’s

employment or having the purpose or effect of

creating an intimidating, hostile, or offensive

App.68a

employment environment.” Radtke, supra at

394. Further, although generally, a single

incident will not create a hostile work

environment, a single “extremely traumatic

experience” may satisfy the statutory

requirement of a complaint for hostile work

environment. Id. at 394-395.

Here, Plaintiff presents his prima facie

case by showing:

(1) he belonged to a

protected group (2)

was subjected to

communication

conduct on the basis

being

protected class, (3)

was subjected to

unwelcome conduct

or communication,

and

(4)

the

unwelcome conduct

was intended to or in

fact

did

substantially

interfere with the

employee’s

employment

created

intimidating,

hostile, or offensive

work environment

In its Order, this Court asserted that

App.69a

Plaintiff failed to provide evidence beyond his

own “speculation” that: (1) Defendant’s

investigation or its findings were connected to

his protected activity several months prior, and

(2) that Defendant engineered or was aware of

a smear campaign against him. However,

Plaintiff testified that he spoke up about the

mistreatment and discriminatory practices

against African American employees, and as a

result Plaintiff was subjected to investigations

based on false narratives and ultimately

termination. Plaintiff’s testimony is sufficient

to establish a genuine issue of fact. See Harris

v. J.B. Robinson Jewelers, 627 F.3d 235, 239

(6th Cir.2010); Keller v. Miri Microsystems

LLC, 771 F.3d 799, 816 (6th Cir.

2015).

Even if this Court does not consider Plaintiff’s

testimony sufficient to establish a genuine issue

of fact, undoubtedly the following would be

deemed sufficient1:

• Defendant’s ‘investigation’ yielded

results in which Plaintiff was

alleged to be pictured with Evan

Nowitzke. Plaintiff declared that

Nowitzke is not in the pictures. (Ex.

P, Gumm Declaration, , ¶ 2); (Ex. Q,

Investigative

Report

and

Photographs)

• Defendant claims Plaintiff was

suspended for 3 days. Plaintiff

disputes this and Defendant

1 All references are to exhibits in Plaintiff’s response to

Defendant’s motion for summary judgment. (ECF No. 38).

App.70a

•

has absolutely no record of

such suspension. (Ex. P)

Dearth testified that he merely

counseled Plaintiff regarding not

wearing PPE and that was the end of

the issue. (Ex. G, Dearth Deposition

at 50:4-52:1)

Defendant claims that it had been

getting disturbing complaints about

Plaintiff during town hall meetings

from late 2018 to early 2019 and

annual 2018 employee surveys, but

Plaintiff was never disciplined for

these allegations, nor did Defendant

even bother to mention them to him.

(See, e.g., Ex. O, Skubic Deposition

at 81:1-16)

Plaintiff was never informed by

anyone that he had been

suspended at any time that he

worked for Defendant. (Ex. P,

Gumm Declaration, ¶ 7)

Relying on the aforementioned facts, it is

clear that Defendant created an environment

that made it so any individual who reported or

spoke out against Defendant’s discriminatory

practices

had

unworkable

work

environment. Plaintiff was and has been

branded as racist when he was the one

opposing racism by the company. It should

not be so extraordinarily difficult for a

plaintiff to get to a jury when he has

presented sufficient evidence of hostile

App.71a

workplace environment from his employer. A

jury should decide whose reasoning is

believable. Therefore, because this Court’s

order granting summary judgment contains

palpable defects in relying on Defendant’s

version of facts as true, rather than Plaintiff’s,

it should be reconsidered.

C. CORRECTING THE PALPABLE

ERROR SHOULD RESULT IN A

DIFFERENT DISPOSITION OF

THE CASE

Plaintiff urges this court to reconsider its

Order and analyze the facts of this matter in a

light most favorable to Plaintiff, the nonmoving party. While Defendant merely states a

legitimate, nondiscriminatory reason for its

adverse employment action, it is evident that

there is at minimum a question of fact

surrounding

the

circumstances

that

contributed to Defendant’s decisions. If

nothing else, a reasonable jury could differ

on whether Defendant’s proffered reasons for

terminating Plaintiff were pretextual or

legitimate and whether Plaintiff was subject to

a hostile workplace environment.

It was only after Plaintiff pushed back on

Defendant’s unfair hiring practices that

Defendant began to search for reasons to fire

him. The comment may have come several

months before his termination, but Defendant

started the process of termination shortly after

he complained. The timing of the alleged

complaint regarding Plaintiff and the lack of

App.72a

discipline conducted suggests that it was more

than mere coincidence. When taking Plaintiff’s

allegations as true, a reasonable jury could

conclude that Defendant’s actions against

Plaintiff were pretextual and that Plaintiff was

subjected to a hostile workplace environment.

For these reasons, Plaintiff respectfully

requests that this Honorable Court reconsider

its Order granting Defendant’s Motion for

Summary Judgment.

CONCLUSION

Wherefore, for the foregoing reasons,

Plaintiff prays that this Honorable Court

grants Plaintiff’s Motion for Reconsideration of

the Court’s Order granting Defendant’s motion

for summary judgment, and grant Plaintiff any

other relief that this Court deems equitable

and just.

Dated: October 24, 2023

Respectfully Submitted,

/s/ Carla D. Aikens

Carla D. Aikens (P69530)

Carla D. Aikens P.L.C.

Attorneys for Plaintiff

615 Griswold St., Ste 709

Detroit, MI 48226

Tel: (844) 835-2993

Fax: (877) 454-1680

App.73a

CERTIFICATE OF

SERVICE

On the date below, the undersigned

certifies that a copy of the foregoing instrument

was attempted to be served upon all

interested parties in the captioned matter

via the Court’s e- service system at the email

addresses provided by said parties to the Court.

However, the e-filing system was down for

several hours on October 24, 2023, per the

attached screenshot attached as Exhibit A.

Accordingly, the undersigned is e-filing this on

October 25, 2023, as directed by the Court

clerk.

Dated: October 25, 2023

Respectfully Submitted,

/s/ Carla D. Aikens

Carla D. Aikens (P69530)

Carla D. Aikens P.L.C.

Attorneys for Plaintiff

615 Griswold St., Ste 709

Detroit, MI 48226

Tel: (844) 835-2993

Fax: (877) 454-1680

App.74a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PETER GUMM,

Plaintiff,

Case No. 21-cv-12441

Hon. Shalina D. Kumar

Mag. Elizabeth A. Stafford

AK STEEL

CORPORATION,

Defendant.

____________________________/

PLAINTIFF PETER GUMM’S RESPONSE IN

OPPOSITION TO DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

COMES NOW PLAINTIFF, PETER GUMM,

by and through his attorneys, CARLA D. AIKENS,

P.L.C., and for his Response in Opposition to

Defendant’s Motion for Summary Judgment,

presents the attached brief.

Oral argument is requested.

Respectfully Submitted,

Dated: March 31, 2023

App.75a

CARLA D. AIKENS, P.L.C.

/s/_LaTasha Brownlee

Carla

Aikens

(P69530)

LaTasha Brownlee (P84359)

615 Griswold St., Ste. 709

Detroit, MI 48226

Tel:(844) 835-2993

TABLE OF CONTENTS

PLAINTIFF’S CONCISE STATEMENT OF ISSUES

PRESENTED

iii

COUNTERSTATEMENT OF FACTS 1

STANDARD OF REVIEW

ARGUMENT

GUMM’S CLAIMS UNDER ELCRA ARE NOT

TIME-BARRED

HOSTILE WORK ENVIRONMENT CLAIM UNDER

TITLE VII 15

PLAINTIFF HAS PRESENTED A QUESTION OF

FACT AS TO HIS CLAIM OF A HOSTILE

WORKPLACE ENVIRONMENT

PLAINTIFF HAS PRESENTED A GENUINE

ISSUE OF MATERIAL FACT AS TO HIS

RETALIATION CLAIM 18

PLAINTIFF HAS PROVEN PRETEXT 21

CONCLUSION

App.76a

PLAINTIFF’S CONCISE STATEMENT

OF ISSUES PRESENTED

Are Plaintiff’s Elliott-Larsen Civil Rights Act claims

barred by the contractual limitations period?

Plaintiff answers: “No.”

Defendant would answer: “Yes.”

Are Plaintiff’s claims for retaliatory hostile work

environment barred for failure to exhaust

administrative remedies?

Plaintiff answers: “No.”

Defendant would answer: “Yes.”

Can Plaintiff maintain a claim for retaliatory hostile

work environment?

Plaintiff answers: “Yes.” Defendant would answer:

“No.”

Can Plaintiff Peter Gumm maintain a claim for

retaliation?

Plaintiff answers: “Yes.”

Defendant would answer: “No.”

App.77a

TABLE OF AUTHORITIES

Cases

Aboubaker v. County of Washtenaw, et al. Case No.

11-13001 (E.D. Mich. Sept. 20, 2013) 19

Cicero v. Borg-Warner Automotive, 280 F.3d 579 (6th

Cir. 2002) 22

Clay v. United Parcel Serv., Inc., 501 F.3d 695, 706

(6th Cir.2007)

Crawford v. Metro. Gov't off Nashville & Davidson

Cnty., Tenn., 555 U.S. 271 (2009)

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.

Ct. 367, 126 L.Ed.2d 295 (1993) 17

Hazle v. Ford Motor Co., 464 Mich. 456 (2001)

Hendershott v. St. Luke’s Hospital, Case No. 3:16-cv2009 (N.D. Ohio Jan. 6, 2020) 21, 22

Jones v. City of Franklin, 309 Fed. App'x 938 (6th

Cir. 2009) 16

Khamati v. Sec’y of the Dep’t of the Treasury, 557

Fed. Appx. 434 (6th Cir. 2014) 18

Logan v. MGM Grand Detroit Casino, 939 F.3d 824

(6th Cir. 2019)

Lytle v. Malady, 458 Mich. 153 (1998) 21

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986)

13, 14

McMillon v. City of Kalamazoo, Case No. 162680

(Mich. Jan. 11, 2023)

Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (6th

Cir. 2008) 19

Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784

(6th Cir. 2000)

Reeves v. Sanderson Plumbing Products, Inc., 530

App.78a

U.S. 133 (2000)

13, 14

Schaffer v. A.O. Smith Harvestore Prod., 74 F.3d 722

(6th Cir. 1996)

Singfield v. Akron Metro. Hous. Auth., 389 E3d 555

(6th Cir. 2004)

Tolan v. Cotton, 572 U.S. 650 (2014) 14

Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307 (6th

Cir. 2007) 19

Vance v. Ball State Univ.,

U.S. , 133 S.Ct.

2434 (2013) 18

Weigel v. Baptist Hosp. of East Tennessee, 302 F.3d

367 (6th Cir.2002) 15

Williams v. Gen. Motors Corp., 187 F.3d 553, 560

(6th Cir.1999)

Rules

Fed. R. Civ. P. 56(c)

App.79a

II.

COUNTERSTATEMENT OF FACTS1

A. Peter Gumm Was Successful and His

Manager, Jason Dearth, Liked Him.

Plaintiff is a white male who was hired by

Defendant as a supervisor on April 27, 2015.

(Defendant’s Motion, ECF No. 34, pg. 9 ¶ 1). Plaintiff

was making $4,833.33 a month when he started. (Ex.

A, Gumm 2015 Offer Letter); (Defendant’s Motion,

ECF No. 34, p. 10). In 2017, Plaintiff was promoted

to the role of manager of the hot mill and given

another raise, then Plaintiff was given yet another

raise in 2018, making $7,163.18 and a $14,067.78

bonus on February 23, 2018. (Ex. K, Gumm 1.31.18.

Paystub). Plaintiff received a $2,329.85 monthly

salary increase from 2015 to 2018. (Ex. A, Gumm

2015 Offer Letter); (Defendant’s Motion, ECF No. 34,

p. 10 ); (Ex. B, Gumm 1.31.18. Paystub).

Defendant continued to increase Plaintiff’s

pay and give him bonuses despite the alleged

negative allegations being discussed at the “town

hall meetings” and despite his 2018 Annual

Assessment. (Ex. C, Gumm 1.01.2019 Pay Stub);

(Defendant Motion, ECF No. 34; pg. 11 ¶ 6); (Ex. D,

2.1.19 Gumm Bonus); (Ex. E, Gumm 2018 Annual

Assessment). Defendant’s Position Statement to the

EEOC acknowledged that Plaintiff’s work ethic was

1 As Defendant’s statement of facts was 12 pages of numbered

paragraphs, and it is not required in this district to either state

the facts in that manner or to respond to them by paragraph,

Plaintiff has chosen not to take away half of his argument and

instead presents his own statement of facts.

App.80a

rewarded. (Ex. F, AK Steel EEOC Position

Statement, pg. 2). Jason Dearth, Plaintiff’s manager,

evaluated Plaintiff in the 2018 Annual Assessment

which covered a time frame of January 1, 2018 to

December 31, 2018, on March 22, 2019 – less than

ten months before he was terminated. Under the

“achieving results” section of the assessment,

Dearth rated Plaintiff successful and stated that

Gumm “makes optimum use of limited resources”;

“Works to exceed existing standards of quality of

work.”; “Accepts full responsibility when things

go wrong.”; and noted that “Pete does very well at

achieving results… His biggest challenge is to get

his team to do the same.” (Ex. E, Gumm 2018

Annual Assessment). Under the “working with

others” portion of the assessment, Dearth rated

Plaintiff above expectations, stating Plaintiff “[a]cts

with honesty and integrity”; and “Demonstrates

active listening.” (Id.) (emphasis added).

Yet when Dearth was deposed on November 7,

2022, he never even mentioned that he evaluated

Plaintiff for the 2018 Annual Assessment

performance, despite being asked about annual

performance evaluations. (Ex. G, Jason Dearth

Deposition, at 82:22-25; 83:1-7). On the other hand,

Dearth did testify that he was not made aware of the

allegations against Plaintiff until after the 2018

employee survey had come out. He claimed that he

had a meeting with LaDale Combs, Defendant’s

general manager, Joe Skubic, the head of human

resources for the salaried workers, and Plaintiff

about the survey results, sometime from January to

May of 2019. (Id. at 20:17-19; 30:6-10). However, the

2018 employee surveys had been produced by

App.81a

January 2019; Plaintiff’s 2018 Annual Assessment

was produced after the 2018 employee surveys, and

Plaintiff received high remarks in the assessment;

despite the alleged negative results of the survey.

(Defendant’s Motion, ECF No. 34; pg. 12; p. 10); (Ex.

E, Peter Gumm 2018 Annual Assessment). Even in

the year prior to his termination, Defendant believed

that Plaintiff was successful at his job, and he was

well-regarded by Defendant. (Ex. E, Peter Gumm

2018 Annual Assessment). Importantly, Dearth

never mentioned what from the survey results was

alleged to be problematic.

B. Defendant’s Discrimination Against

African American Employees.

Defendant has a history of issues involving

race as to its treatment of African American

employees,

which

included

differences

promotion rates and holding them to a different

standard than white employees – all of which

persisted during the time that Plaintiff worked for

Defendant. (Ex. H, Eric Williams Right to Sue

Letter);(Ex. I, Osama Williams EEOC Charge of

Discrimination). Jason Dearth also confirmed that

he was not aware of a single African American

employee who had been promoted to (salaried)

supervisor roles. (Ex. G, Dearth Deposition at 44:17). To wit, Plaintiff and Dearth had firsthand

knowledge of the situation involving terminated

employee Eric Williams, wherein Williams had been

threatened by his supervisor, David Klein, who told

Williams, “I’m going to get you fired, n****!” and

Williams eventually was, in fact, terminated a few

App.82a

months after the comment was made.2 Williams v.

AK Steel, Order, Case No. 2:18-cv-11485-DPH-EAS,

ECF No. 27, filed 05/31/20, PageID.651. This conduct

by Klein also included Klein throwing scissors at a

different Black employee. Id. at 652. Klein admitted

he was aware of comments regarding his own racial

impropriety. Id. at 651. Though Defendant denies

through its agents that Klein was fired for his

conduct, Plaintiff stated in a declaration filed in

Williams’ case that he knew of Klein’s racist

tendencies, that Defendant treated Black employees

differently and held them to a different standard,

and that he was fired as a result of speaking up

about Defendant’s racist tendencies. Id. at Exhibit

2 to Motion for Reconsideration, Gumm Declaration,

ECF No. 29-2, PageID.717-18, filed 06/29/20. Of

note, the Williams case involved Plaintiff’s

manager, Jason Dearth, who wrote an email

concerned because the company was using a video

that “skipped” to state that Williams had not done

his job properly and deserved to be terminated:

Don/Jeff

I have to have video from the Eric

Williams case that does not jump

around or skip. The current video does

this and it is not acceptable to show the

arbitrator as it can show doubt to what

Though Defendant prevailed on a motion for summary

judgment, Defendant disputed the basis for Williams’

termination being connected to the comment but could not

credibly dispute that the incident occurred. Plaintiff filed an

appeal which is still pending as of this filing.

App.83a

he was doing.

Id. at Exhibit L to Plaintiff’s Response to

Defendant’s Motion for Summary Judgment, ECF

No. 25-5, PageID.621, filed 05/06/19 (attached here

as Exhibit J). Despite this admission from Dearth,

Defendant

used

the

video

Williams’

discrimination case to support that he did not

properly do his job. Id. at Order, ECF No. 27,

PageID.65-56, filed 05/31/20. Further, at her

deposition, Defendant’s corporate representative,

Annette Gibbons, detailed all of the EEOC claims on

the basis of race that had been brought against the

company at only the Dearborn location, from 2015

through 2021. (Ex. K, 30(b)(6) Deposition at 73:1886:20). Thus, it was known to the company, through

the two lawsuits filed by undersigned counsel and

the many EEOC investigations, that there was a

problem with racial discrimination against African

American workers at Defendant’s business.

C. Plaintiff Complains of Discrimination in

the Summer of 2019

In the summer of 2019, Defendant hired a

white employee, Evan Nowitzke, for the position for

which Plaintiff had attempted to hire qualified

African-American employees. Plaintiff had been

involved in the hiring process for this position, but

none of the qualified African American employees

were hired. Ex. L, Peter Gumm Deposition at 40:1125-41:2). This caused concern amongst the

employees because Defendant was hiring only white

supervisors when Black associates were more

App.84a

qualified and should have placed in those roles. (Id.).

Nowitzke was an outside hire for the Operation shift

manager position. (Ex. M, AK Steel Employee Flame

Resistant Garment Enrollment form). Nowitzke had

no prior experience being a manager, (Ex. N,

Nowitzke Resume), yet he was hired to be manager

over Black employees who at least had experience

working for Defendant and who were recommended

by Plaintiff.

When he returned from vacation, Plaintiff

complained to Dearth and LaDale Combs, who is

also African American, about Nowitzke being hired

without his input over qualified African- American

employees. (Ex. L, Gumm Dep. 40:11-41:6). Instead

of addressing Plaintiff’s issues, Defendant, through

its agents, created a false narrative that Defendant

had received “numerous calls” from employees

complaining about Plaintiff’s alleged use of racial

slurs and/or that Plaintiff was racist. (Ex. K, 30b6

Deposition at 43:23-25; 44:1-10)3.

In August of 2019, Plaintiff again complained

to LaDale Combs that, after he had recommended

three employees for termination – an African

American male, an African American woman, and a

white male – for misconduct, Defendant was only

bringing back the white male. (Ex. K, Gumm

Deposition at 57:23-61:18).

Annette Gibbons first testified as a fact witness and then

when Plaintiff moved to compel the corporate representative

deposition, Defendant indicated that it would not be Gibbons,

even though she had attended all of the over a dozen

depositions taken in the case; however, Gibbons was indeed

presented as its corporate representative and sat for deposition

again as to that designation.

App.85a

D. Concerted Effort to Terminate Gumm.

Plaintiff’s inability to keep quiet about racial

discrimination was not well-received by Defendant.

For four years, Plaintiff received promotions and

glowing reviews, which all changed after his

complaints. The first sign that the “fix” was in to

remove Plaintiff came when Defendant claimed that

Evan Nowitzke left the company because of Plaintiff,

as purported to have been told to Skubic during

Nowitzke’s exit interview, though Skubic could recall

no details about the same. (Ex. O, Skubic Deposition

at 220:20-222:17). Importantly, Nowitzke was hired

while Plaintiff was on vacation, and Plaintiff has

never met Nowitzke. (Ex. P, Gumm Declaration,

¶1).4 Despite this, and only supplied two months

ago after Plaintiff filed a motion to compel,

Defendant’s ethics complaint regarding the personal

protective equipment (“PPE”) situation that it failed

to produce while discovery was open clearly states

that Evan Nowitzke was present on the same day

with Plaintiff. However, based upon Plaintiff’s

knowledge of the individuals who went with him in

the car to the area, and who are pictured in the still

photographs Defendant produced for the first time in

January 2023, Plaintiff affirmatively states that

none of them could be Nowitzke because the

individuals he rode in the car with and who who are

depicted in the photographs are all known to

Plaintiff. (Ex. P, Gumm Declaration, , ¶ 2); (Ex. Q,

4 This is not unusual, because at least one other supervisor in

the same department told Skubic he had only spoken to

Plaintiff “ten times” since he was hired. (Ex. O, Skubic

Deposition at 169:19- 170:4).

App.86a

Investigative Report and Photographs). What

appears to be Skubic’s notes on the situation also do

not mention Nowitzke by name. (Ex. R, Skubic

Notes). Further, Defendant produced Nowitzke’s

employment file – again after the close of discovery –

and nothing about this incident appears in his file.5

This investigative response – which should have

been produced while discovery was ongoing so that

Plaintiff could discuss it with any of the many

witnesses deposed in this matter –nowhere

indicates that Plaintiff was ever suspended due

to this issue. Rather, it states that Plaintiff’s

manager would be made aware of the situation and

would address the violations accordingly. (Ex. P)

As noted above, Plaintiff’s manager at the

time was Jason Dearth. Tellingly, when Dearth was

asked if he had ever seen Plaintiff and Nowitke

interact, he did not bring up the PPE incident at all

– even though Defendant purports that Dearth

suspended Plaintiff for this incident. He stated that

the only interaction he could call was a 5-minte

interaction where he alleges he had seen them

interacting in the slab yard. (Ex. G, Dearth

Deposition at 25:10-25). Interestingly, Dearth

testified that Plaintiff and Nowitzke did not work

together long, only during the latter’s training

period, because Nowitzke worked the night shift. (Id.

at 26:2-16). However, a review of Nowitzke’s

“swipes” show that he never worked the night shift.

(Ex. R, Nowitzke Door “Swipes”). Further, Plaintiff

5 Plaintiff has not attached the entire file due to the protective

order in place but can produce the same for inspection, or would

request that Defendant stipulate to the same.

App.87a

and Nowitzke did not work in the same area. (Ex. P,

Gumm Declaration, ¶ 3)

Dearth’s testimony was also confused

regarding the timing of the surveys that he claimed

were discussed with Plaintiff when he met with

Plaintiff at the end of 2019. Dearth claimed that

Plaintiff’s survey results were discussed as if it were

a recent “follow-up” item, (Ex. G, Dearth Deposition

at 36:5-12), but the survey results for 2018 had come

out nearly 11 months prior and the results for 2019

would not come out until the following January 22,

2020 – twelve days after Gumm was fired. (Ex. O,

Skubic Dep. at. 218:11-12).

Dearth was also confused about when he met

with Plaintiff about his alleged issues. He stated

that he met with Plaintiff in the summer of 2019

after he had received ethics hotline complaints, (Ex.

G, Dearth Deposition at 38:11-29:17), but those

complaints, according to Defendant’s documents and

what it told the EEOC, did not occur until November

of 2019. Dearth also stated that Plaintiff actually

touched the coil in the PPE video – and made up a

lot of details about Plaintiff touching the coil that

contradict the documentation and photographs

Defendant provided regarding this incident. (Id. at

40:24-42:7); (see Ex. Q). Dearth’s deposition is most

notable, however, for what he did not mention,

which is any time that he ever suspended Plaintiff.

No form of the word “suspend” appears in his

transcript. Instead, when questioned about the

PPE/coil incident, and in accordance with the

investigative response document Defendant provided

from Skubic (Ex. Q), and consistent with Plaintiff’s

recollection of what occurred, Dearth testified that

App.88a

he merely counseled Plaintiff regarding not wearing

PPE and that was the end of the issue. (Ex. G,

Dearth Deposition at 50:4-52:1). He even stated that

he was counseling Plaintiff about the PPE to keep

him from getting in trouble with HR/Skubic. (Id. at

56:17-57:5).

However, when questioned, Skubic stated that

the first discipline he recalled Plaintiff receiving was

because he did not wear protective gear in coil fields.

(Ex. O, Skubic Deposition at 69:6-10). Though the

incident apparently occurred and was reported in

September 2019, Defendant offers no explanation for

why Plaintiff was not suspended until November

2019, particularly when the investigation write-up

was completed by October 9, 2019. (Ex. Q). Skubic

further acknowledged that he had never had an

issue with Gumm not wearing protective gear in the

past, and Plaintiff had not received any warnings,

yet Defendant jumped right to a 3- day suspension

because it was a “serious” violation and he was a

manager. (Id. at 76:9-77:18).

Defendant claims that it had been getting

disturbing complaints about Plaintiff during town

hall meetings from late 2018 to early 2019 and

annual 2018 employee surveys, but Plaintiff was

never disciplined for these allegations, nor did

Defendant even bother to mention them to him. (See,

e.g., Ex. O, Skubic Deposition at 81:1-16). In fact,

Defendant did not take disciplinary action against

Plaintiff until after Plaintiff began to voice his

concern with some of Defendants actions and

decisions towards African Americans. (Defendant’s

Motion, ECF No. 34; pg. 11; p.6);(Ex. H, AK Steel

EEOC Position Statement, pg. 2); (Ex. O, Skubic

App.89a

Deposition at p. 115; 20- 25&116; 1-4); (Ex. P, Peter

Gumm Declaration, ¶ 4). No evidence has ever

been provided to substantiate the existence of a

single town hall meeting (much less one where

anyone complained about Plaintiff), despite

Defendant claiming that there should have been

records of “bussing” employees or email traffic from

assistants and Plaintiff requesting the same. (Ex. K,

30(b)(6) Deposition at 19:10-21:16).

In November of 2019, instead of any

investigation

into

Plaintiff’s

complaints

discrimination in hiring, Defendant opened an

investigation into Plaintiff allegedly being racist and

showing a preference to white employees, based on

an “anonymous” complaint that bears a striking

resemblance to comments made only by the woman

who replaced Plaintiff, Cheryl Hoffman. Compare

(Ex. S, Hoffman Declaration) with (Ex. T, November

2019 Ethics Complaint). However, when actually

questioned by Defendant, Plaintiff stated the names

of specific African American employees he had

recommended for hire. (Ex. D at 63:3-15). Skubic

admitted that no one African American ever

substantiated any of his comments, and Defendant

did not interview any of the people Plaintiff

mentioned to Skubic that he had sought to promote.

(Ex. O, Skubic Deposition at 233:10-24).

After the investigation was concluded, the

main investigator, the human resources manager,

Joseph Skubic, stated to Plaintiff that he had no

proof that Plaintiff was racist – a point reflected in

Skubic’s own write-up on the investigation; however,

he also informed Plaintiff that he thought he was a

liability. (Ex. P, Gumm Declaration, ¶ 5). To wit,

App.90a

none of the interviews done with hourly workers

yielded any comments about Gumm being racist, and

thus Defendant found that the comments by the

anonymous caller were not substantiated. (ECF No.

34-14, PageID.723); (Ex. U, Gibbons Dep. at 60:1-16).

Further, although Defendant is claiming that the

complaint was received in November 2019 about

Plaintiff, Skubic stated at his deposition that there

was an ethics complaint from December 4, 2019. (Ex.

O, Skubic Deposition at pg. 56; 12- 19).

Also in November, Defendant claims that

Plaintiff was allegedly “issued a three-day unpaid

suspension” for a safety violation that occurred over

five weeks prior, on September 25, 2019, and was

allegedly observed by an anonymous caller.

(Defendant MSJ, ECF No. 34; pg. 15); (Written

Suspension, ECF No. 34-13). This anonymous caller

allegedly named Plaintiff and Evan Nowitzke for not

wearing personal protective equipment (“PPE”).

However, as noted, Evan Nowitzke is not in any of

the photos. (Ex. V, Investigation into Gumm dated

11.25.19); (Ex. P, Peter Gumm Declaration, ¶ 6).

Further, at no time did any witness ever mention

that Evan Nowitzke was alleged to have been

involved in the PPE incident for which Defendant

claims it suspended Plaintiff.

When asked at the 30(b)(6) deposition (that

Plaintiff had to compel, see ECF No. 26), which was

taken after 12 other depositions had been taken by

Plaintiff, less than three months ago, Defendant had

to admit that it still does not know the dates of his

suspension. The witness stated that Plaintiff had

dates when his attendance could not be verified for

the dates of November 17, 22, and 26, 2019, but

App.91a

Defendant could not say that he was actually

suspended on these dates, and Defendant does not

know when Plaintiff was actually suspended. (Ex. K,

30b6 Deposition at 3:19-6:1). Incredulously, the

company did not even look into the matter of

Plaintiff’s dates of suspension until after Plaintiff

requested in discovery a log of his door “swipes” into

the garage at the facility for the time period in

question. (Id.). Despite this, Defendant still stated in

its EEOC Position statement: “On November 25,

2019 just a few weeks after Mr. Gumm’s reprimand

and suspension…” ). (Ex. F, AK Steel EEOC Position

Statement, pg. 4). Obviously, none of the dates

provided by the corporate representative are “a few

weeks before November 25[th]” and none of

Plaintiff’s paychecks varied from the beginning of

October to the end of December 2019. (Ex. R, Gumm

AK Steel Pay Stubs).

Most importantly, however, Plaintiff was

never informed by anyone that he had been

suspended at any time that he worked for

Defendant. (Ex. P, Gumm Declaration, ¶ 7).

Defendant also failed to point out that two other

management executives were not wearing proper

equipment but were not included in the anonymous

complaint, and neither of them were ever reprimanded

nor written up, despite Skubic acknowledging that

that should have occurred. (Ex. P, Gumm

Declaration, ¶ 8). Importantly, the write-up done on

the equipment situation by Skubic makes no

mention of Plaintiff being suspended as part of the

outcome of the investigation. (Ex. W, October 9,

2019, Investigation Response).6 Skubic could not

While Plaintiff was asked about the suspension at his

App.92a

recall any other manager who had ever been

suspended, and he also admitted that the purported

suspension did not cause the company to need to

“keep an eye on him.” (Ex. O, Skubic Deposition at

114:10-12). Skubic further stated that despite the

suspension for not wearing proper PPE, his

termination was based primarily on comments he

was alleged to have said as stated by the supervisors

in his area. (Id. at 231:15-232:24). He eventually

admitted that he was only terminated based on a

violation of one policy – the Harassment Policy –

thus canceling out the suspension altogether as a

factor in his termination. (Id. at 51:23-52:19).

On or about January 3, 2020 – a week before

Plaintiff was terminated – and after apparently

having had no “luck” uncovering evidence to

terminate Plaintiff through the hourly worker

interviews, Defendant decided to interview all of the

supervisors – all of whom are white – who worked

deposition, he responded “correct” because he was

acknowledging what the document said that Defendant’s

counsel was showing him at the same time that he was being

asked the question. (Ex. P, Gumm Declaration, ¶ 10). It is

unclear from the transcript whether Plaintiff was referring to

having seen the suspension document or another document,

because Exhibit 7 (the suspension document) was only briefly

discussed and shown to him. (Ex. D at 37). Counsel for

Defendant must have picked up on the fact that its client did

not have any information beyond the document to support the

suspension, because he was not asked anything further about

the meeting suspending him, when or for how long he was

suspended or about any of the contents of the document, nor

was he given or asked any other details about the discipline.

Plaintiff denies that he missed any work though he

acknowledges (as Dearth testified) that he was spoken to about

the situation. (Ex. P, Gumm Declaration, ¶ 11 ).

App.93a

under Plaintiff.

(Id. at 151:4-153:3).

Not

surprisingly, the person who had the most to say

about Plaintiff is the person who was hired to take

his job – Cheryl Hoffman. Notably, Defendant

admits that the same day of his termination,

January 10, 2020, was the first time Plaintiff was

ever informed about these allegations from the

supervisors. (Id. at 152:17- 153:3). No investigation

was done after the interviews with the supervisors.

(Ex. O, Skubic Deposition at 117:21-118:16). Plaintiff

was replaced by a white female supervisor, Cheryl

Hoffman, who was the only supervisor who reported

to Skubic that they had firsthand knowledge of

Plaintiff making inappropriate comments about

women and minorities. (Ex. O

, Skubic Deposition at

148:4-7; 163:23-169:18). Skubic admitted that he

questioned her because he was “surprised” that she

had not reported this before. (Id. at 165:10-12; 169:711). Additionally, no investigation, report, or any

follow-up whatsoever was ever done related to

Plaintiff’s complaints of discrimination. (Ex. P, Peter

Gumm Declaration, ¶ 9). Despite the lack of

investigation, lack of evidence, Plaintiff’s vehement

denial, and the human resources manager admitting

that there was no evidence from the initial

complaint that Plaintiff had done or said anything

racist, on January 10, 2020, Plaintiff was terminated

from his job. (Defendant Motion, ECF No. 34 at 9).

Defendant’s Exhibit R outlined Plaintiff’s alleged

conduct and it was signed on Defendant’s

termination date of January 10, 2020, which simply

stated “Pete Dismissed” (Skubic Notes from January

10, 2020 Meeting with Gumm, ECF No. 34-19.)

While Plaintiff was allegedly terminated for

App.94a

said events outlined in Defendant’s Exhibit M, the

resolution described is not a termination, but instead

states “This behavior was addressed in accordance to

AK steel’s policies and the matter is now considered

resolved.” The exhibit was dated December 4, 2019

detailing a November 2019 event, but was not signed

until January 10, 2020. Just like Exhibit R to

Defendant’s motion, it did not mention the

termination that happened that day. (December

2019 Investigation Response, ECF No. 34-14).

Defendant claimed that Plaintiff’s cause for

termination was the same alleged complaints of

racial slurs by Plaintiff that the investigation found

no evidence of; however, Plaintiff believes that

Defendant’s alleged justification for termination is in

fact pretextual. (Ex. L, Peter Gumm’s Deposition pg.

40; 11-25).

III.

STANDARD OF REVIEW

In deciding a motion for summary judgment,

the court should determine whether there is no

genuine issue as to any material fact such that the

moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). The court must consider

the record as a whole by reviewing all pleadings,

depositions, affidavits and admissions on file.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). The facts are to be

considered in a light most favorable to the nonmoving party, and “... all justifiable inferences are to

be drawn in his favor.” Schaffer v. A.O. Smith

Harvestore Prod., 74 F.3d 722, 727 (6th Cir. 1996)

(internal citations omitted).

App.95a

In Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 151 (2000), the Supreme Court

explained the standard that a court must apply when

it is reviewing a motion for judgment as a matter of

law or a motion for summary judgment:

In doing so, however, the court must

draw all reasonable inferences in favor

of the nonmoving party, and it may not

make credibility determinations or

weigh

the

evidence.

Credibility

determinations, the weighing of the

evidence, and the drawing of legitimate

inferences from the facts are jury

functions, not those of a judge. Thus,

although the court should review the

record as a whole, it must disregard

all evidence favorable to the moving

party that the jury is not required

to believe. That is, the court should

give credence to the evidence favoring

the nonmovant as well as that

evidence

supporting

the

moving

party that is uncontradicted and

unimpeached, at least to the extent

that that evidence comes from

disinterested witnesses.

Id. at 150-51 (citations omitted). The evidence and

all reasonable inferences must be construed in the

light most favorable to the non-moving party. Tolan

v. Cotton, 572 U.S. 650, 660 (2014); Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986).

App.96a

IV.

ARGUMENT

A. GUMM’S CLAIMS UNDER ELCRA ARE

NOT TIME-BARRED

Though Defendant claims Plaintiff signed an

agreement, Plaintiff had no knowledge that he was

allegedly foregoing his right to file a lawsuit within

the time set forth to do so under Michigan law. (Ex.

P, Gumm Declaration, ¶ 12). Thus, there is a

genuine issue of material fact as to the validity of

this purported agreement. In McMillon v. City of

Kalamazoo, Case No. 162680 (Mich. Jan. 11, 2023) –

a case argued by Plaintiff’s counsel’s office – the

Michigan Supreme Court found that summary

disposition was inappropriate where was a genuine

issue of material fact existed as to whether Plaintiff

should be bound by a contractually-shortened

statute of limitations with her employer. Justice

Elizabeth Welch wrote a separate concurrence which

stated that the Court should have gone even further

to rule on whether the practice of shortening a

statute of limitations in an employment agreement

should even be permitted. Id. at slip op. 5. In this

case, Defendant’s purported six-month shortened

statute of limitations argument should not result in

dismissal of Plaintiff’s state law discrimination

claims, as he had no idea he had entered into such

an arrangement nor did Defendant even ask him

about this at his deposition.

App.97a

B. HOSTILE WORK ENVIRONMENT CLAIM

UNDER TITLE VII

Although Gumm did plainly mention that he

was a victim of hostile work environment, the court

in Weigel v. Baptist Hosp. of East Tennessee, held

that:

Pursuant to this rule, we have

recognized that ‘where facts related

with respect to the charged claim would

prompt the EEOC to investigate a

different, uncharged claim, the plaintiff

is not precluded from bringing suit on

that claim.’

302 F.3d 367 (6th Cir.2002). Carving out an

exception to the rule general rule that “the judicial

complaint must be limited to the scope of the EEOC

investigation reasonably expected to grow out of the

charge of discrimination” (Defendant’s Motion, ECF

No. 34, p. 23). Defendant notes the holding of Jones

v. City of Franklin, but this holding was based on the

conclusion “that an EEOC investigation of a hostile

work environment could not reasonably be expected

to grow out of a charge describing the denials of a

promotion and a handicapped parking spaces” Jones

v. City of Franklin, 309 Fed. App’x 938, 943-44 (6th

Cir. 2009). In this case Plaintiff stated in his EEOC

Charge of Discrimination;

“On April1, 2015, I began working for

the above named employer. I last held

the position of Operations Manager.

App.98a

During my employment I complained

internally about the company not

hiring

African

American

Supervisors, and not bringing back

African

American

Employees.

Following

complaints

January 10, 2020, I was terminated I

believe that I have been discharged in

retaliation for opposing what I sincerely

believe to be discrimination based on

race, in violation of Title VII of the Civil

Rights Act of 1964, as amended.”

(ECF No. 34-18) (emphasis added). First, there is no

“box” to check on a charge for the topic of hostile

work environment. There is further no bright line

rule for what is “sufficient” for purposes of an EEOC

charge for the Court to rule as a matter of law, and

thus Defendant’s motion should be denied since

this is its burden to prove. There is no legal

support for the contention that Plaintiff’s charge

which included claims about him complaining of

discrimination did not prompt the EEOC to

investigate a claim of hostile work environment –

which does not even appear on its form – and thus

Plaintiff is not precluded from bringing suit on his

hostile work environment.

C. PLAINTIFF

HAS

PRESENTED

QUESTION OF FACT AS TO HIS CLAIM

HOSTILE

WORKPLACE

ENVIRONMENT

A plaintiff establishes a prima facie case of

App.99a

racial discrimination based upon a hostile work

environment by showing that (1) the plaintiff was a

member of a protected class; (2) the plaintiff was

subjected to unwelcome harassment; (3) the

harassment was because of the membership in the

protected class; (4) the harassment unreasonably

interfered with the plaintiff’s work performance by

creating an environment that was intimidating,

hostile, or offensive; and (5) the employer was liable

for the harassing conduct. Clay v. United Parcel

Serv., Inc., 501 F.3d 695, 706 (6th Cir.2007).

To satisfy the fourth element, “unreasonable

interference,” a plaintiff “must present evidence

showing that under the ‘totality of the circumstances’

the harassment was ‘sufficiently severe or pervasive

to alter the conditions of the victim’s employment

and create an abusive working environment.’ “Id. at

707 (quoting Williams v. Gen. Motors Corp., 187 F.3d

553, 560, 562 (6th Cir.1999)). Severity and

pervasiveness are evaluated according to the totality

of the circumstances, considering such factors as

“the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an

employee’s work performance.” Harris v. Forklift

Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126

L.Ed.2d 295 (1993).

Plaintiff is a part of the protect group of people

who oppose discrimination as outlined by the

Supreme Court in Crawford v. Metro. Gov't off

Nashville & Davidson Cnty., Tenn., 555 U.S. 271,

276 (2009). In Crawford, the court held that “[w]hen

an employee communicates to her employer a belief

App.100a

that the employer has engaged in ... a form of

employment discrimination, that communication”

virtually always “constitutes the employee’s

opposition to the activity.” Id. In this case, Plaintiff

complained internally about the company not hiring

African American supervisors that he felt should be

promoted, and not bringing back African American

employees while bringing back white employees that

he thought deserved to be terminated. Therefore,

Plaintiff became a part of a protected class when he

attempted to protect employees’ interest against

Defendant’s discriminatory ways.

Plaintiff was subjected to unwelcome

harassment in the form of false complaints being

made by Defendant and having his character

assailed and “everyone in the steel industry thinks

[he’s] a racist.” (Ex. P, Gumm Deposition at 86:2425). Defendant fabricated a narrative that Plaintiff

is racist; claiming that employees are anonymously

making these claims. One of the “anonymous calls”

stated that they overheard Pete saying that he

would like to keep all supervisors Caucasian, as he

does not like African American employees. (ECF No.

34-14). Yet, despite never mentioning it during his

deposition or at any time during these proceedings,

Plaintiff’s wife is African American and they have an

adult son who is biracial. (Ex. N, Gumm

Declaration). These allegations were particularly

harmful under the circumstances, given that

Defendant was likely aware of the ramifications of

trying to paint Plaintiff in a racist light.

The harassment was due to his protected

status because until he spoke up about Defendant’s

discriminatory acts, he had never been harassed nor

App.101a

accused of being racist. (Ex. N, Gumm Declaration).

Defendant was aware of the protected activity

because Plaintiff informed Defendant about their

choice to hire two white males instead of hiring black

qualified

Steel

employees.

Defendant’s

harassment unreasonably interfered with Plaintiff’s

work performance by creating an environment that

was intimidating, hostile, and offensive, because in

the last two months of his five year career, Plaintiff

was suddenly written-up and accused of being racist

which is very offensive, particularly considering

Plaintiff’s family dynamics.

Defendant is liable for the harassing conduct

because Plaintiff’s supervisors’ harassment led to

him being terminated. In the Supreme Court case of

Vance v. Ball State University, it was held that if the

supervisor’s harassment culminates in a tangible

employment action such as a significant change in

employment status (like firing), the employer is

strictly liable. In this case, Plaintiff’s colleagues and

supervisors fabricated stories that he was racist and

misogynist, which resulted in Plaintiff being fired.

Vance v. Ball State Univ., U.S, 133 S.Ct. 2434, 2443,

186 L.Ed.2d 565 (2013).

It is also important to note that the Sixth

Circuit recognizes a retaliatory hostile workplace

environment which Plaintiff has pled, and Defendant

has not mentioned. Khamati v. Sec’y of the Dep’t of

the Treasury, 557 Fed. Appx. 434, 443 (6th Cir. 2014)

(citing Morris v. Oldham Cnty. Fiscal Court, 201

F.3d 784, 792 (6th Cir. 2000). As a result, Plaintiff’s

claims must survive.

App.102a

D. PLAINTIFF

HAS

PRESENTED

GENUINE ISSUE OF MATERIAL FACT

AS TO HIS RETALIATION CLAIM

“To establish a prima facie claim of

retaliation, a plaintiff must show that: (1) she

engaged in a protected activity; (2) this exercise of

protected rights was known to the defendant; (3) the

defendant thereafter took adverse employment

action against the plaintiff... ; and (4) there was a

causal connection between the protected activity and

the adverse employment action. ’” Tuttle v. Metro.

Gov’t of Nashville, 474 F.3d 307 at 320 (6th Cir.

2007). To survive the summary judgment stage,

these elements do not need to be proven by a

preponderance of the evidence. Singfield v. Akron

Metro. Hous. Auth., 389 E3d 555, 563 (6th Cir. 2004).

In fact, many Sixth Circuit cases note that “the

burden of establishing the prima facie retaliation

case is easily met.” Id.

As Former Chief Judge Denise Page Hood

explained in Aboubaker v. County of Washtenaw, et

al., Case No. 11-13001, Opinion and Order Granting

in Part and Denying in Part Defendants’ Motion for

Summary Judgment (E.D. Mich. Sept. 20, 2013), at

slip op. 18:

Causation can be proven indirectly

through circumstantial evidence such

as suspicious timing. Mickey v. Zeidler

Tool & Die Co., 516 F.3d 516, 523, 525

(6th Cir. 2008). Temporal proximity

between an assertion of Title VII rights

and a materially adverse action, is

App.103a

sufficient to establish the causal

connection element of a retaliation

claim where an adverse employment

action occurs very close in time after an

employer learns of a protected activity.

Id. at 525.

As outlined above, Plaintiff engaged in the protected

activity when he attempted to protect employees’

interest against Defendant’s discriminatory ways by

confronting Defendant about its wrong doings. This

protected activity was obviously known to Defendant

because Plaintiff confronted Defendant. Defendant

thereafter took adverse employment action against

Plaintiff when it terminated him. The causal

connection between the protected activity and the

adverse employment action was the fact that

Plaintiff had been involved in the hiring process for

this position, but none of the qualified African

American employees were hired. (Ex. D, Peter

Gumm’s Deposition at 40:11-25). However,

Defendant hired two new white males for the

position, one of which was not more qualified for the

position than African American employees, and

neither of whom had ever worked for Defendant in

any capacity. One of the new hires was Evan

Nowitzke who later Defendant claims quit because of

Plaintiff, even though the two never met. Nowitze’s

last day was October 31,2019. (ECF No. 34-11). The

next day, November 1, 2019, Defendant purportedly

began writing up and suspending Plaintiff for

conduct that occurred September 25, 20219, which

was the first incident of an anonymous caller report

against Evan and Plaintiff. Defendant states the

App.104a

issue was not brought to Plaintiff’s attention until

November 4, 2019, where Plaintiff was allegedly

suspended for three days with no pay. (Written

Suspension, ECF No. 34-13). Then on November 4,

Plaintiff allegedly received a verbal reprimand for

harassment, workplace violence and disrespectful

treatment that was cited as the reason a salaried

supervisor left. (ECF No. 34-12). The timing is

suspicious because Plaintiff had been working for

Defendant for almost four years before Nowitzke was

hired. Yet, it was not until after Nowitzke – about

whose hire Plaintiff had complained – quit soon after

he started that Plaintiff was confronted with

swirling allegations that he was a racist, had poor

communication skills, and treated others unfairly.

(Defendant’s Motion, ECF No. 34, p. 11).

Further, the December 4, 2019 investigation

response from Skubic regarding the complaints of

racism is the only formal investigation opened before

he was terminated, and according to the document

itself, these allegations were not substantiated and

the matter was apparently closed without issue.

Importantly, there is no investigation document to

substantiate the basis for what Defendant claims he

was terminated. All of the above, given the other

lawsuit and Plaintiff’s known proximity to

complainants, when countered with the fact that

Plaintiff was a very good employee whom Dearth

seemed to genuinely like – both less than a year

before he was terminated and at the time of his

deposition a few months ago – makes clear that

Defendant considered Plaintiff to be a liability and

fired him in retaliation for speaking up about

Defendant’s racist policies.

App.105a

E. PLAINTIFF HAS PROVEN PRETEXT

If a plaintiff successfully presents a prima

facie case of discrimination “the defendant has the

opportunity

articulate

legitimate,

nondiscriminatory reason for its employment

decision.” Hazle v. Ford Motor Co., 464 Mich. 456,

463 (2001) . If a defendant successfully shows a

legitimate cause for terminating a plaintiff, then he

must demonstrate the reason for his termination

was pretextual; “he must demonstrate that the

evidence in the case, when construed in him favor, is

‘sufficient to permit a reasonable trier of fact to

conclude that discrimination was a motivating factor

for the adverse action taken by the employer toward

the plaintiff.’” Id. at 465 (citing Lytle v. Malady, 458

Mich. 153, 176 (1998)).

The Sixth Circuit has found many examples of

pretext that are unmistakably present in the case at

bar. “[T]he employee must show that a reasonable

jury could, based on the failure to conduct a deeper

investigation, conclude that the investigation was a

sham.” Hendershott v. St. Luke’s Hospital, Case No.

3:16-cv-2009, at *25-26 (N.D. Ohio Jan. 6, 2020). A

“shoddy” investigation could be a sufficient showing

of pretext. Id. The court held “[i]nstead, the

employee must show that a reasonable jury could,

based on the failure to conduct a deeper

investigation, conclude that the investigation was a

sham.” Id. at 17. Considering that, among many

other issues: (1) Plaintiff was a great employee for

years until he reported instances of discrimination;

(2) Defendant manufactured a suspension after-thefact that it did not even bother to try to document

App.106a

properly and has no idea when he was actually

suspended; (3) there was never an investigation done

when Plaintiff voiced his concerns with how the

company was not promoting qualified African

American

employees,

while

“thorough”

investigation was done into claims of racism against

him – including taking hourly workers off the “shop

floor” to do interviews with multiple members of

management; (3) though Defendant found that none

of the claims of Plaintiff being racist were

substantiated, Defendant decided to fire him because

of five interviews conducted with supervisors under

Plaintiff a week before his termination, without ever

including him in the investigation, it is clear that

whatever investigation was done that led to his

termination was a sham.

Another way to inferring pretext in

employment discrimination cases was noted in

Cicero v. Borg-Warner Automotive, 280 F.3d 579 (6th

Cir. 2002):

The evidence of Cicero’s qualifications,

coupled with a lack of contemporaneous

criticism of his performance and BorgWarner’s continued grant of bonuses,

could allow a fact finder to find that

Borg-Warner’s proffered reason either

had no basis in fact or that it was

insufficient to motivate the discharge

decision.”

The court held that the district court erred when

awarding the defendants’ summary judgment

motion. Id. at 593. Quite similarly to Cicero, there

App.107a

was a lack of contemporaneous criticism of Plaintiff’s

performance; this was evident when Plaintiff’s 2018

Annual Statement came out March 22, 2019,

employee surveys came out January 2019, but yet

Plaintiff still received high regards and remarks

from Defendant on his annual assessment, and had

no issues at all until he complained. Also just as in

Cicero, Plaintiff received a bonus, and he was also

given a raise. If Defendant was so appalled by

Plaintiff's behavior, it was not reflected in the

annual statement and his pay.

Furthermore, Defendant claims that its

investigation revealed behavior that warranted

termination – that no other manager was fired for –

but the investigation was “shoddy” and a lack of

contemporaneous criticism of his performance makes

the timing of his termination suspicious.

Accordingly, under either the direct or indirect

basis of proving discrimination, Plaintiff has

surpassed the necessary showing to defeat the

summary judgment stage when all factual inferences

are made in his favor. Defendant argues that it

repeatedly counseled Gumm for his continued

disrespectful conduct, but the only “counseling”

records that Defendant have produced all happened

after Nowitzke was hired, and Plaintiff complained

management

about

the

hiring

being

discriminatory.

CONCLUSION

WHEREFORE, PLAINTIFF, Peter Gumm,

respectfully requests that this Honorable Court deny

Defendant’s Motion for Summary Judgment and

App.108a

grant Plaintiff any other relief this Honorable Court

deems equitable and just.

Respectfully Submitted,

Dated: March 31, 2023

Carla D. Aikens, P.L.C.

/s/_LaTasha Brownlee

Carla D. Aikens (P69530)

LaTashaBrownlee

(P84359)

615 Griswold St., Ste. 709

Detroit, MI 48226

Tel:(844) 835-2993

App.109a

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing

instrument was served upon all parties to the above

cause to each of the attorneys of record herein on

March 31, 2023 by:

/s/ Carla D. Aikens

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.