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GARLITZ v. ALPENA REGIONAL MEDICAL CENTER
834 F.Supp.2d 668 (2011)
Shelly GARLITZ, Plaintiff,
v.
ALPENA REGIONAL MEDICAL CENTER, Kathy Himes, and Diane Shields, Defendants.
Case No. 10-13874-BC.
United States District Court, E.D. Michigan, Northern Division.
December 2, 2011.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT THOMAS L. LUDINGTON, District Judge. This employment dispute arises out of a medical examination administered to Plaintiff Shelly Garlitz as a condition of her accepting employment with Defendant Alpena Regional Medical Center. It is undisputed that the examination did not go well; the dispute centers on why Defendant then rescinded its offer of employment to Plaintiff. Plaintiff contends that it was rescinded because she refused to answer questions posed in the exam about pregnancy, abortion, sexual activity, birth control, and similar subjects — all of which were posed only to female applicants — and because she complained of these questions to Defendants. Defendants contend that the offer was revoked because of Plaintiff's "attitude" — they thought her "rude." Alleging violations of the Americans with Disabilities Act, Title VII (as amended by the Pregnancy Act of 1978), the Elliot-Larsen Civil Rights Act, and 42 U.S.C. § 1983, Plaintiff brings suit in this Court against Alpena; its vice president of human resources, Defendant Diane Shields; and its recruiter, Defendant Kathy Himes. Defendants now move for summary judgment. For the following reasons, the motion will be granted in part and denied in part. I.Alpena is an acute-care medical facility employing more than nine hundred people. Plaintiff worked for Alpena as a medical technologist from 1995 to 2007. During this twelve year period, she generally received positive reviews. Defendants' emphasize, however, that "[h]er 2003 evaluation noted that she had `interpersonal difficulties' with co-workers." Defs.' Br. Supp. Mot. Summ. J. 2, ECF No. 22 ("Defs.' Br."). In pertinent part, the 2003 evaluation provides: "[Plaintiff] continues to perform quite well. Has worked through some interpersonal difficulties with coworkers which seem resolved. She has good knowledge [and] work habits." Defs.' Mot. Ex. 2.
In May 2007, Plaintiff left Alpena to complete school and to work as a travelling medical technologist. Her "termination of employment evaluation" rated her quality of work, industry, and initiative as "excellent" (the highest of four possible ratings), her character and attitude as "good" (the second highest possible rating), and recommended her for rehire. Pl.'s Opp'n Mot. Summ. J. Ex. 1, ECF No. 24-2.
1. The EEOC's administrative interpretations, though not binding on the courts, "do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Meritor Sav'g Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).
2. The Elliot-Larsen Civil Rights Act contains similar prohibitions against an employer discriminating against an employee on the basis of an employee's sex, defining "sex" in pertinent part to include "pregnancy, childbirth, or a medical condition related to pregnancy or childbirth." Mich. Comp. Laws § 37.2201. Likewise, for analytical purposes, the ELCRA resembles federal law and the same general evidentiary burdens prevail as in Title VII cases. See In re Rodriguez, 487 F.3d 1001, 1008 n. 2 (6th Cir.2007); Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir.2004); Lytle v. Malady, 458 Mich. 153, 172-73, 579 N.W.2d 906 (1998).
3. In the reply brief, Defendants do assert that "requiring medical examiners to ignore the difference between men and women would promote gender inequality." Defs.' Reply Br. 4. Defendants continue: "A medical exam is permitted to identify conditions unique to either gender so that employers can make the necessary accommodations to assure both genders equal access to the workplace." Id. Defendants do not explain, however, why questions regarding, for example, what birth control methods the applicant utilizes or whether an applicant plans to have a child are "conditions unique" to women. Additionally, Defendants concede that some of the questions Plaintiff objected to in the HealthWise form were not job related. See, e.g., Shields Dep. 31:7-15 (acknowledging that whether a woman had an abortion in the past or is on birth control is not relevant to whether the woman is able to perform the essential functions of a medical technologist at Alpena).
4. The first of the other two theories is the traditional measure of an employment relationship, which considers "the entire relationship, with the most important factor being the employer's ability to control job performance and employment opportunities of the aggrieved individual." Id. (quoting Swanson v. Univ. of Cincinnati, 268 F.3d 307, 319 (6th Cir.2001)).
The second theory holds that "Title VII does not require a formal employment relationship between the plaintiff and the defendant. Rather, a plaintiff is protected if the defendant is one who significantly affects access of any individual to employment opportunities." Id. (quoting Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 875 (6th Cir. 1991)). Neither of these two theories are alleged in this case.
5. It is not clear from the record which form this refers to — the Alpena form or the HealthWise form. In either event, however, it demonstrates that the relationship between the entities may be more than customer — vendor; it may be principal — agent.
6. As an aside, it should be noted that as a matter of federal constitutional law, the Court has established that pregnancy is a fundamental right. See, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942) ("Marriage and procreation are fundamental"). Contraceptive use, the Court has likewise established, is a fundamental right. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (noting the fundamental right "to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child"). And, although controversial, abortion too has been deemed a fundamental right. See, e.g., H.L. v. Matheson, 450 U.S. 398, 434, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981).
7. Although it is an open question whether information regarding, for example, previous abortions or miscarriages, and other intimate details of a person's private sexual life may also reasonably be viewed as "humiliating."
8. The causation regarding Plaintiff's retaliation claims, of course, are analytically distinct from Plaintiff's ADA and Title VII claims. In these claims, Plaintiff alleges (in part) that her offer was revoked because she refused to answer facially discriminatory questions. And she produces evidence supporting her allegations, such as the revocation letter Defendants sent to her. In her retaliation claims, in contrast, Plaintiff alleges that the offer was revoked not because she refused to answer the questions posed by Lechel, but because she complained of their content to Himes. That is, she complains that Himes, Shields, and Alpena directly discriminated against her, not through their purported agent. As she has produced no evidence that her complaint motivated Defendants' decision, however, she has not established causation.
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