Scheppelman v. Berrien, County of et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TAMARA SCHEPPELMAN,
Plaintiff,
v.
COUNTY OF BERRIEN, et al.,
Defendants.
___________________________________/
Case No. 1:24-cv-1104
Hon. Hala Y. Jarbou
OPINION
Plaintiff Tamara Scheppelman brings this workplace age discrimination lawsuit against
Defendant Berrien County under the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), Mich. Comp.
Laws § 37.2101 et seq. Scheppelman alleges that during her time as a nurse at the Berrien County
Jail, jail officers verbally harassed her and prevented her from completing her work, which
ultimately caused her to resign. Berrien County now moves to dismiss Scheppelman’s first
amended complaint, arguing that the County was not Scheppelman’s employer, that she has not
sufficiently alleged the existence of a hostile work environment, and that the County is not
vicariously liable for the discriminatory actions of the jail officers (ECF No. 20). For the reasons
discussed below, the Court will grant the motion.
I. BACKGROUND
Scheppelman worked as a registered nurse at the Berrien County Jail (“BCJ”) from May
of 2016 to January of 2023. (Am. Compl. ¶¶ 3, 38, ECF No. 18.) During this time, the County
was not formally Scheppelman’s employer; rather, she was hired by Wellpath, a company that
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contracted with the County.1 (See Am. Compl. ¶¶ 3, 14–15; Compl. ¶¶ 3–4, ECF No. 1.)
Scheppelman “was hired specifically for a position at [the] BCJ and the entirety of her work
occurred [there].” (Am. Compl. ¶ 15.) Scheppelman alleges that “BCJ officers would direct Ms.
Scheppelman where to go during working hours, exerting control over her day-to-day schedule.”
(Id. ¶ 16.) Furthermore, BCJ “[o]fficers threatened employees, including Ms. Scheppelman, with
removal of their clearance if they did not follow the officers’ direction, which would effectively
remove the employee’s ability to work at [the] BCJ.” (Id. ¶ 17.) And BCJ officials “would also
report on the performance of nurses . . . to their supervisor.” (Id. ¶ 18.)
Scheppelman’s claims arise from alleged age discrimination that took place while she
worked at the BCJ. Scheppelman was 59 years old when she began working there. (Id. ¶ 12.) She
alleges that BCJ officers frequently made derogatory comments about her age. One, Officer
Culbertson, repeatedly asked questions like “Aren’t you too old to be working here?”; “When are
you going to retire?”; and “Why do we always get the old nurses?” (Id. ¶ 21.) Another, Officer
Bowman, “dismissed Ms. Scheppelman’s capabilities by saying she was ‘too old’” and
“frequently . . . referr[ed] to her as ‘slow.’” (Id. ¶¶ 22–23.)
In addition to verbal harassment, Scheppelman alleges that BCJ officers—including
Culbertson and Bowman—intentionally interfered with the performance of her nursing duties.
Those duties involved administering medications to inmates, a task that had to be completed by
9:00 p.m. (Id. ¶¶ 24–25.) Scheppelman alleges that BCJ officers would often prevent her from
completing this task on time by, for example, refusing to unlock doors or taking an unreasonably
long time to do so, or interrupting her work to address purported “emergencies” that were not truly
1 Wellpath was initially named as a defendant in this lawsuit, but the Court subsequently dismissed it because all
claims against the company were discharged in a bankruptcy proceeding. (See 6/20/2025 Notice, ECF No. 11;
7/11/2025 Order, ECF No. 13.)
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urgent. (Id. ¶¶ 26, 28.) She also alleges that as she was trying to complete her work, “BCJ Officers
frequently taunted [her] with derogatory remarks over the BCJ radio system,” including calling
her “slow.” (Id. ¶ 28.) Furthermore, once the 9:00 p.m. deadline had passed, the officers “would
lock her out of inmate facilities and forbid her from finishing her nursing duties.” (Id. ¶ 27.)
Scheppelman complained about the Jail officers’ actions to her supervisor at Wellpath, who
“sent an e-mail to BCJ Officers instructing them to only interrupt nurses in cases of true
emergencies.” (Id. ¶¶ 30–31.) However, this did not resolve the problem. (Id. ¶ 32.) Ultimately,
Scheppelman concluded that the officers’ interference with her work was preventing her from
complying with her professional duties as a nurse, and she resigned from her position on or about
January 12, 2023. (Id. ¶¶ 38–39.)
II. LEGAL STANDARD
A complaint may be dismissed for failure to state a claim if it fails “to ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s
allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”). The Court must determine whether
the complaint contains “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—that the pleader is entitled to relief.” Id. (quoting Fed. R. Civ. P. 8(a)(2)). When
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considering a motion to dismiss under Rule 12(b)(6), courts “construe the complaint in the light
most favorable to the plaintiff, accepting all well-pleaded factual allegations as true.” Parrino v.
Price, 869 F.3d 392, 397 (6th Cir. 2017).
III. ANALYSIS
The County argues that Scheppelman has failed to state a claim because (1) she has not
sufficiently alleged that the County was her employer, (2) she has not sufficiently alleged that she
was discriminated against based on age, and (3) she has not sufficiently alleged that the County is
liable for the discrimination. As explained below, the Court finds that Scheppelman has
sufficiently alleged that the County was her employer and that BCJ officers discriminated against
her based on age; however, she has not sufficiently alleged that the County is liable for the
discriminatory actions of the BCJ officers. Thus, she has failed to state a claim.
A. Scheppelman’s Employer
The County argues that it is not liable for any workplace discrimination that Scheppelman
may have experienced because she was employed by Wellpath, not the County. Scheppelman
acknowledges that Wellpath was her formal employer, but contends that BCJ officers exerted
enough control over her working conditions to make the County her employer for the purposes of
ADEA and ELCRA liability.
1. ADEA
The ADEA prohibits age discrimination by employers, but does not clarify what constitutes
an employment relationship. See 29 U.S.C. § 623. “Although a direct employment relationship
provides the usual basis for liability under the ADEA . . . courts have fashioned various doctrines
by which a defendant that does not directly employ a plaintiff may still be considered an
‘employer’ under th[e] statute[].” Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990,
993 (6th Cir. 1997). Here, Scheppelman relies on the “joint employer” doctrine, under which
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“courts consider whether one defendant has control over another company’s employees sufficient
to show that the two [entities] are acting as a ‘joint employer’ of those employees.” Id. “The basis
of the [joint employer] finding is simply that one employer[,] while contracting in good faith with
an otherwise independent company, has retained for itself sufficient control of the terms and
conditions of employment of the employees who are employed by the other employer.” Id. at 993
n.4 (first alteration in original).
Scheppelman argues that BCJ officers’ control over her day-to-day activities rendered the
County and Wellpath joint employers. “To determine whether an entity is the plaintiff’s joint
employer, [courts] look to an entity’s ability to hire, fire or discipline employees, affect their
compensation and benefits, and direct and supervise their performance.” EEOC v. Skanska USA
Bldg., Inc., 550 F. App’x 253, 256 (6th Cir. 2013).2 Scheppelman was hired by Wellpath and does
not allege that the County had any role in the hiring process. (See Am. Compl. ¶ 3.) However,
she alleges that the County could essentially fire her by revoking her clearance to work at BCJ.
(Id. ¶ 17.) Scheppelman does not indicate that the County had any role in disciplining her, though
she notes that BCJ officials sometimes reported on nurses’ performance to their supervisors. (Id.
¶ 18.) Scheppelman also does not allege that the County could affect her compensation, other than
via the aforementioned clearance revocation. However, she alleges that the County had significant
control over her work because she was required to follow BCJ officials’ orders, including “where
to go during working hours.” (Id. ¶¶ 16–17.) On the other hand, Scheppelman’s direct supervisor
was a Wellpath employee, and she does not indicate that she reported to any particular BCJ
employee. (Id. ¶ 30.)
2 Skansa is a Title VII case, but “courts routinely employ Title VII and ADEA case law interchangeably.” Amini v.
Rite Aid Corp., 819 F. App’x 344, 347 (6th Cir. 2020) (quoting Crawford v. Medina Gen. Hosp., 96 F.3d 830, 835
(6th Cir. 1996)).
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The Sixth Circuit has found a defendant’s ability to functionally end a plaintiff’s
employment as a strong consideration in favor of deeming the defendant a joint employer. See
Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 874–877 (6th Cir. 1991) (nurse who was
formally employed by doctor was employee of hospital under Title VII because hospital could bar
her from working on the premises). However, this principle does not apply if the defendant can
only bar the plaintiff from a particular facility, and the plaintiff’s formal employer can simply
reassign them somewhere else. See Nethery v. Quality Care Invs., 814 F. App’x 97, 104 (6th Cir.
2020) (“Although [the defendant] may have affected [the plaintiff’s] ability to work at [one]
facility, it did not prevent her from working for [her employer] at other facilities.”); Parks v. Lyash,
No. 22-5841, 2023 WL 6237062, at *5 (6th Cir. Apr. 12, 2023) (“Having the authority to remove
an employee from the property is not the equivalent of terminating their employment; nor does it
evidence the necessary control over the employee to establish joint employer status.” (quoting
Sims v. EQT Corp., No. 13-1235, 2014 WL 4384593, at *5 (W.D. Pa. Sep. 4, 2014))).
Scheppelman alleges that the County could revoke her clearance and thus bar her from
working at the BCJ, but she does not clarify how this would have impacted her employment with
Wellpath. Because Scheppelman worked at the BCJ during the entirety of her employment with
Wellpath, it is plausible that her being barred from the BCJ would have caused Wellpath to
terminate her. On the other hand, perhaps Wellpath contracted to provide nurses at other facilities,
and could have merely transferred Scheppelman elsewhere. The fact that Scheppelman’s issues at
the BCJ caused her to resign her position rather than seek a transfer provides some reason to think
a transfer was not available, but it certainly does not foreclose the possibility. Ultimately, in the
absence of facts indicating otherwise—and drawing all reasonable inferences in Scheppelman’s
favor—it is plausible to infer that the BCJ’s ability to bar Scheppelman from its facility was
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essentially equivalent to the ability to terminate her from Wellpath. Given that inference,
Christopher provides strong support for the conclusion that the County was Scheppelman’s
employer for ADEA purposes.
This conclusion is strengthened in light of the control the County exerted over
Scheppelman’s day-to-day work. The County determined what work Scheppelman performed and
when she would perform it. It also had significant control over her ability to move through the
jail, as evidenced by the obstacles BCJ employees put in her path. Especially relevant here, the
County chose who Scheppelman worked with, and thus essentially controlled her working
environment. Additionally, although Scheppelman’s formal supervisor was a Wellpath employee,
she was required to follow the orders of BCJ officers. Altogether, these facts—combined with the
County’s ability to functionally terminate her at any time—are sufficient to suggest that the County
was Scheppelman’s employer under the ADEA.
The County argues that some features of the working environment should not factor into
the employer analysis because they are simply reflective of the control that any person is subject
to in a jail. See Zinn v. McKune, 143 F.3d 1353, 1357–59 (10th Cir. 1998) (prison was not
employer of nurse despite significant control exercised over her work because, “though valid
penological measures imposed to ensure safety and security within a facility may require a worker
to fulfill certain conditions, those conditions do not rise to the level of ‘control’ for purposes of
determining a worker's employment status with the correctional facility itself”). However, some
aspects of the County’s control over Scheppelman relate to the manner in which she performed
her work, and are not directly linked to security concerns. More significantly, the Court is not
persuaded that the motivation behind a defendant’s exercise of control determines whether that
control factors into an analysis of the employment relationship. Even if the County only controlled
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Scheppelman’s movements for security reasons, that motive does not lessen the significance of the
control exerted. Thus, that control is a legitimate basis to conclude that the County was
Scheppelman’s employer. See Fisher v. Mich. Dep’t of Corrs., No. 1:20-CV-302, 2023 WL
9064591, at *1, 3 (W.D. Mich. Oct. 2, 2023) (department of corrections was joint employer of
plaintiff who worked in its prisons because the department “controlled all aspects of the physical
workplace of [the] employees,” “correctional officers had sole authority over prison doors,” and
“employees were required to follow . . . prison security protocols and procedures”). In sum,
Scheppelman has sufficiently alleged that the County was her employer under the ADEA.
2. ELCRA
Like the ADEA, the ELCRA prohibits age discrimination by employers. Mich. Comp.
Laws §§ 37.2201–02. “To determine whether an employment relationship exists [under the
ELCRA], Michigan courts use the ‘economic realities test.’” Anwar v. Dow Chem. Co., 876 F.3d
841, 853 (6th Cir. 2017). This test requires analyzing four factors: “(1) [the] control of a worker’s
duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the
performance of the duties as an integral part of the employer’s business towards the
accomplishment of a common goal.” Id. (alteration in original) (quoting Clark v. United Techs.
Auto., Inc., 594 N.W.2d 447, 451 (Mich. 1999)). The economic realities test can be used to
determine whether “a second entity” that is not the worker’s “‘legal’ or ‘actual’ employer” still
qualifies as an employer. Clark, 594 N.W.2d at 451.
Here, the first factor weighs in favor of an employment relationship because the County
had significant control over Scheppelman’s duties. The second factor weighs against an
employment relationship because it appears that Wellpath, rather than the County, paid
Scheppelman. The third factor is mixed: the County did not hire or discipline Scheppelman, but—
as discussed above—it essentially had the power to fire her. The last factor weighs in favor of an
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employment relationship because Scheppelman’s work—providing medical care to inmates—was
an integral part of the BCJ’s operations and thus served the County’s goals. Putting these factors
together, the Court is persuaded that the County qualifies as Scheppelman’s employer under the
ELCRA, largely for the same reasons it qualifies as her employer under the ADEA. Cf. Rouch
World, LLC v. Dep’t of C.R., 987 N.W.2d 501, 507 (Mich. 2022) (“In interpreting the ELCRA
specifically, [the Michigan Supreme] Court has encouraged using as guidance federal precedent
interpreting Title VII of the federal Civil Rights Act, the statute on which the ELCRA was based.”).
B. Age Discrimination
The County also argues that Scheppelman has failed to sufficiently allege that she was
discriminated against based on age. Because “ELCRA claims are analyzed under the same
standards as federal ADEA claims,” Geiger v. Tower Auto., 579 F.3d 614, 626 (6th Cir. 2009), the
Court will address the claims together.3
Scheppelman argues that she was constructively discharged by the existence of a hostile
work environment at the BCJ. A hostile work environment claim requires that a plaintiff was
harassed due to their age, “either through words or actions,” and that the harassment was
“sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create
an abusive working environment.” Brown v. Metro. Gov’t of Nashville & Davidson Cnty., 722 F.
App’x 520, 525 (6th Cir. 2018) (alteration in original). Additionally, “[a] hostile-environment
constructive discharge claim” requires “working conditions so intolerable that a reasonable person
would have felt compelled to resign.” Id. (alteration in original) (quoting Pa. State Police v.
3 Scheppelman argues that the two statutes are different because the ELCRA imposes a “substantial factor” causation
test for a discrimination claim, in contrast to the ADEA’s “but-for” causation test. (Pl.’s Resp. Br. 14). This is
incorrect, as the Michigan Supreme Court has recognized that “the operative phrase ‘because of’ in the ELCRA
establishes a but-for causation standard.” Rouch, 987 N.W.2d at 512. Regardless, the application of either standard
entails the same result here.
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Suders, 542 U.S. 129, 147 (2004)). In determining whether a hostile work environment exists,
courts should consider “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.” Williams v. CSX Transp. Co., 643 F.3d 502,
512 (6th Cir. 2011) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
Scheppelman argues that she was subject to both verbal harassment and harassing conduct
based on age. Specifically, she points to (1) Culbertson making comments like “Aren’t you too
old to be working here?”; “When are you going to retire?”; and “Why do we always get the old
nurses?”; (2) Bowman “dismiss[ing] Ms. Scheppelman’s capabilities by saying she was ‘too old’”
and “frequently . . . referring to her as ‘slow.’”; (3) BCJ officers preventing her from administering
medication by refusing to unlock units within a reasonable time and interrupting her with pretend
emergencies; (4) BCJ officers taunting her over the intercom, such as by calling her “slow,” as she
was completing her work. (Am. Compl. ¶¶ 21–23, 26, 28.)
The County argues that Scheppelman has not alleged facts supporting the inference that
the BCJ officers’ conduct was based on her age. Some of the comments described above are self-
evidently due to Scheppelman’s age. But the officers’ insults do not alone support a hostile work
environment claim, as statements that are “insensitive, ignorant, and bigoted” do not produce a
hostile work environment if they “more closely resemble a ‘mere offensive utterance’ than conduct
that is ‘physically threatening or humiliating.’” Williams, 643 F.3d at 513 (quoting Harris, 510
U.S. at 23). Rather, Scheppelman has only alleged a hostile work environment if the officers’
other conduct is considered as well, and that conduct is properly considered in the analysis only if
she has sufficiently alleged that it was based on a discriminatory motive.
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Although the officers’ interference with Scheppelman’s work was not explicitly based on
age, it can still support a hostile work environment claim if one can reasonably infer that the
officers only treated her poorly due to her age. See Clay v. UPS, Inc., 501 F.3d 695, 706 (6th Cir.
2007) (“Conduct that is not explicitly race-based may be illegally race-based and properly
considered in a hostile-work-environment analysis when it can be shown that but for the
employee’s race, she would not have been the object of harassment.”). In determining whether
the officers’ treatment of Scheppelman was based on her age, the Court considers the officers’
conduct in light of “all of the circumstances.” Farmer v. Cleveland Pub. Power, 295 F.3d 593,
605 (6th Cir. 2002), abrogated on other grounds by White v. Columbus Metro. Hous. Auth., 429
F.3d 232 (6th Cir. 2005).
Considering all of the circumstances, the complaint sufficiently alleges that the officers’
conduct was based on Scheppelman’s age. The pervasive nature of the age-based comments
suggests that the officers generally looked down on Scheppelman due to her age; this, in turn,
supports the inference that their negative treatment of her was age-based. Cf. Jackson v. Quanex
Corp., 191 F.3d 647, 662 (6th Cir. 1999) (“[A] showing of the use of racial epithets in a work
environment may create an inference that racial animus motivated other conduct as well.”); Betts
v. Costco Wholesale Corp., 558 F.3d 461, 469–70 (6th Cir. 2009) (hostile work environment can
be supported by evidence that supervisor had “systematic racial bias” and a racist “managerial
philosophy”). Furthermore, the officers’ alleged interference with Scheppelman’s work is so
unreasonable—and so contrary to their own duties as employees, let alone the medical needs of
inmates—that discriminatory intent becomes a plausible explanation. Cf. Keck v. Graham Hotel
Sys., Inc., 566 F.3d 634, 641 (6th Cir. 2009) (in the commercial establishment context, plaintiff
can establish inference of discriminatory intent by showing that defendant’s conduct was against
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own interests, violative of business norms, and “arbitrary on its face”). Additionally, Scheppelman
alleges that much of the obstructive conduct took place while the officers made derogatory
comments over the intercom, which directly ties their discriminatory motives to their conduct. It
is true that the example of a derogatory comment provided in the complaint—calling Scheppelman
“slow”—is not inherently an age-based remark. But Scheppelman’s allegation that Bowman
called her “too old” and “slow” suggests that the word “slow” was understood by the officers to
be an age-based insult. Putting all this together, it is reasonable to interpret the officers’ conduct
as motivated by discriminatory intent.
Given the inference that the officers’ conduct was discriminatory, Scheppelman has
sufficiently alleged that she was subject to an age-based hostile work environment. The officers’
obstructive conduct was frequent and pervasive, and “unreasonably interfere[d] with [her] work
performance.” Williams, 643 F.3d at 512. Indeed, the officers’ behavior during her medication
rounds made it essentially impossible for her to complete her work. Furthermore, when faced with
such constant interference—especially given the importance of a nurse’s medical duties—“a
reasonable person would have felt compelled to resign.” Brown, 722 F. App’x at 525. These
elements, taken together, indicate that the BCJ officers created a hostile work environment.4
C. Vicarious Liability
Even if BCJ officers discriminated against Scheppelman, she must also allege facts
suggesting that the County is liable for the actions of those officers. Under federal law, an
employer’s liability for the harassing actions of its employees depends on the status of those
4 The County argues that Scheppelman has failed to state a claim because she has not established the elements of a
prima facie case. However, a plaintiff alleging discrimination “need not make a prima facie showing to survive a
motion to dismiss.” Bar v. Kalitta Charters II, LLC, No. 21-1739, 2022 WL 3042844, at *3 (6th Cir. Aug. 2, 2022).
Rather, “a plaintiff need only allege sufficient factual content from which a court, informed by its judicial experience
and common sense, could draw the reasonable inference that an employer violated [the ADEA and ELCRA].” Id.
(cleaned up). Scheppelman has met that burden here.
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employees. “If the harassing employee is the victim’s co-worker, the employer is liable only if it
was negligent in controlling working conditions.” Vance v. Ball State Univ., 570 U.S. 421, 424
(2013). If the harasser is a supervisor, and the supervisor performs a “tangible employment action”
such as firing the plaintiff, “the employer is strictly liable.” Id. If there is no tangible employment
action, “the employer may escape liability by establishing, as an affirmative defense, that (1) the
employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the
plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that
the employer provided.” Id.
Here, the BCJ officers who allegedly harassed Scheppelman were not her supervisors. It
is true that the officers had substantial control over Scheppelman’s work, and that she was required
to follow their commands. However, the Supreme Court has rejected the view that supervisors
include anyone with “the ability to exercise significant direction over another’s daily work.” Id.
at 431. Rather, the Court has held that supervisors are only those who have been empowered by
the employer “to take tangible employment actions against the victim, i.e., to effect a ‘significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits.’” Id.
(quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Scheppelman does not
allege that the BCJ officers had such power. Thus, the hostile work environment here was created
by Scheppelman’s co-workers, and the County “is liable only if it was negligent in controlling
working conditions.” Vance, 570 U.S. at 424.
An employer is negligent if it “knew or should have known” about the harassing working
conditions and “failed to take appropriate remedial action.” Gallagher v. C.H. Robinson
Worldwide, Inc., 567 F.3d 263, 276 (6th Cir. 2009). Because there is no allegation that the County
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took any remedial action, its liability turns on whether it was on notice that Scheppelman was
being harassed. “An employer is deemed to have notice of harassment reported to any supervisor
or department head who has been authorized—or is reasonably believed by a complaining
employee to have been authorized—to receive and respond to or forward such complaints to
management.” Id. at 277. Moreover, “[w]here harassment is pervasive, knowledge may be
imputed to the employer.” Id. at 276.
Viewing the allegations in the light most favorable to Scheppelman, she has not sufficiently
alleged that the County was on notice of the officers’ harassment. The only report that
Scheppelman made about the officers was to her own supervisor at Wellpath, who then emailed
BCJ officers about the issue. Scheppelman does not allege that the email went to BCJ
management, or that the email specifically mentioned age discrimination. The officers’ behavior,
which prevented Scheppelman from fulfilling the basic duties of her job, was arguably pervasive
enough to put the County on constructive notice that it was occurring. But even if County officials
should have known that BCJ officers were interfering with Scheppelman’s work, they had no
reason to know about the alleged discriminatory motive behind that interference. An employer’s
failure to ameliorate a hostile work environment is actionable under the ADEA because “[t]he act
of discrimination by the employer in such a case is . . . the inappropriate response to the charges
of harassment.” McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005) (quoting Blankenship
v. Parke Care Ctrs., Inc., 123 F.3d 868, 873 (6th Cir. 1997)). “Thus, an employer who implements
a remedy ‘can be liable for . . . discrimination . . . only if that remedy exhibits such indifference as
to indicate an attitude of permissiveness that amounts to discrimination.” Id. (quoting
Blankenship, 123 F.3d at 873). If an employer knows that its employees are mistreating the
plaintiff, but not that the mistreatment is based on the plaintiff’s protected status, its response
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cannot amount to discrimination. Cf. Gallagher, 567 F.3d at 277 (considering, as part of notice
analysis, that the plaintiff “did not necessarily characterize all of her complaints as sexual
harassment complaints”). Thus, even if the County was on notice of the BCJ officers’ actions, it
was not necessarily on notice of the actions’ discriminatory character, and thus did not violate the
ADEA by failing to respond.
Michigan courts have established a slightly different framework for vicarious liability
under the ELCRA, but that framework leads to the same result here. An employer’s liability is
narrower under the ELCRA because the Michigan Supreme Court has expressly declined to adopt
the federal standard described above, under which an employer must present an affirmative
defense to avoid liability for the harassing actions of a supervisor. Chambers v. Trettco, Inc., 614
N.W.2d 910, 917–18 (Mich. 2000). Regardless, because Scheppelman was not subjected to a
tangible employment action, she “must show some fault on the part of the employer.” Id. at 916.
A hostile work environment “can only be attributed to the employer if the employer failed to take
prompt and adequate remedial action after having been reasonably put on notice of the
harassment.” Id. at 916. “[N]otice of . . . harassment is adequate if, by an objective standard, the
totality of the circumstances were such that a reasonable employer would have been aware of a
substantial probability that . . . harassment was occurring.” Elezovic v. Ford Motor Co., 697
N.W.2d 851, 861 (Mich. 2005). For the reasons discussed above, Scheppelman has not alleged
that the County was on notice that age-based harassment was occurring at the BCJ; thus, she has
failed to state an ELCRA claim against the County.
IV. CONCLUSION
For the reasons explained above, Scheppelman has sufficiently alleged that Berrien County
was her employer and that BCJ officers discriminated against her based on age, but not that the
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County is vicariously liable for the actions of those officers. Therefore, the Court will grant the
County’s motion to dismiss.
An order and judgment will issue in accordance with this Opinion.
Dated: November 7, 2025 /s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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