Case 1:20-cv-00811-JTN-SJB ECF No. 1 filed 08/24/20 PageID.

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SMITH M. MOORE, Case No. 1:20-cv-811

Plaintiff, HON.

v.

WESTERN MICHIGAN UNIVERSITY,

Defendant.
_____________________________________________________________________________/

Stephen R. Drew (P24323)

Adam C. Sturdivant (P72285)
DREW COOPER & ANDING
Attorneys for Plaintiff
80 Ottawa Avenue NW, Suite 200
Grand Rapids, Michigan 49503
Phone: (616) 454-8300
E-mail: sdrew@dca-lawyers.com
E-mail: asturdivant@dca-lawyers.com
_____________________________________________________________________________/

COMPLAINT AND JURY DEMAND

Plaintiff, Smith M. Moore, by and through his attorneys, DREW COOPER & ANDING,

states as follows:
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JURISDICTION

1. This action arises pursuant to 42 U.S.C. § 1981, the Civil Rights Act of 1966, and 42 U.S.C.

§ 1988. Jurisdiction is specifically conferred on this Court by the aforementioned statutory

provisions.

2. The jurisdiction of the Court is further invoked pursuant to 28 U.S.C. §§ 2201 and 2202;

28 U.S.C. §1343; and 28 U.S.C. §1367 (supplemental jurisdiction – racial discrimination

and hostile work environment pursuant to Michigan’s Elliott-Larsen Civil Rights Act).

3. The unlawful employment practices alleged below were committed within the Western

District of the State of Michigan. Venue is proper pursuant to 28 U.S.C. § 1391.

4. Plaintiff has a Charge of Discrimination pending with the Michigan Department of Civil

Rights (MDCR) and/or the Equal Employment Opportunity Commission (EEOC) and has

not yet received his Notice of Right to Sue regarding the aforementioned claims. Plaintiff

will seek to amend this Complaint to include violations of Title VII. Equitable and other

relief are also sought under the aforementioned statutory provisions.

PARTIES

5. Plaintiff realleges and incorporates by reference the allegations contained in the previous

paragraphs.

6. Plaintiff, Smith M. Moore, is an African American male and a citizen of the United States

and the State of Michigan, and resides in the City of Portage, County of Kalamazoo, which

is within the territorial limits of the United States District Court for the Western District of

Michigan. Plaintiff Moore was at all relevant times an employee of Defendant Western

Michigan University.
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7. Defendant Western Michigan University is a public university conducting business in the

County of Kalamazoo in the state of Michigan, which is within the territorial limits of the

United States District Court for the Western District of Michigan. Defendant Western

Michigan University was at all relevant times the employer of Plaintiff Smith M. Moore.

STATEMENT OF FACTS, CLAIMS, AND VIOLATIONS

8. Plaintiff realleges and incorporates by reference the allegations contained in the previous

paragraphs.

9. Plaintiff Smith M. Moore began employment with Defendant Western Michigan University

(WMU) on or about April 24, 2004, as a Catering Manager.

10. In 2012, Moore was promoted to Director of Event Services and Catering.

11. As Director, Moore oversees all reservations and events at the Bernhard Student Center

located on WMU’s campus. The Bernhard Center serves as the WMU student center

providing the campus community with student services, facilities, programs, activities, and

events.

12. During all relevant times, Mitchell Beare was the Assistant Director of Operations at

WMU.

13. During Plaintiff’s employment with Defendant WMU, Moore and other WMU employees

have observed Beare (who is a Caucasian male) repeatedly act in racist, discriminatory,

and demeaning ways toward African American students and other students of color.

14. When events were being planned for African American student group events, Beare would

complain about the scheduling and refer to them in a derogatory manner as “those groups.”

15. Once “those groups” were identified by Beare, other discriminatory behavior would

follow--- towards the students, and towards Plaintiff Moore.

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16. Beare had a practice of characterizing and categorizing certain events as high-risk or low-

risk. Beare would repeatedly single out and profile African American students and events

as “problems” even if they were low-risk by nature and instruct Plaintiff Moore to make

sure the African American students knew the rules. At the same time however, even the

“high-risk” events being planned by Caucasian students would not be addressed with

similar concern or instructions. Plaintiff Moore was being instructed to treat these groups

of students different based on their race.

17. At the same time, Beare, using his authority over event operations, would regularly

sabotage Plaintiff Moore’s efforts as Director of Event Services by making negative

comments about his abilities and by intentionally providing inadequate staffing during

events that were scheduled by African American students.

18. With inadequate staffing promulgated by Beare, Beare would assume that something was

going to go wrong at events sponsored and primarily attended by African Americans and

he would request that the Department of Public Safety be present, which would knowingly

create an atmosphere of discord when there wasn’t one, or result in unwarranted outcomes.

19. Furthering his outward animus towards African American students at WMU and other

minorities, Beare would only complain to Plaintiff Moore about the cleanup required after

functions involving African American students and groups, and would refer to Asian

American students as the “crazy Asians.”

20. The environment created by Beare’s comments and his discriminatory conduct caused

Plaintiff Moore to take on additional duties and responsibilities to ensure that WMU’s

catering and events department and events ran properly despite Beare’s intentional acts to

sabotage the success of certain events ran by African American students.

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21. Beare’s discriminatory profiling and disdain for non-Caucasian students was a pattern and

practice that occurred over several years.

22. Around March/April 2016, Plaintiff Moore submitted written complaints to Defendant

WMU regarding the racial profiling of student events and racially derogatory comments

made by the Assistant Director of Operations, Mitchell Beare.

23. Defendant WMU was aware of the verbal and written complaints made by Plaintiff Moore

and other co-workers about Beare’s behavior yet failed to take appropriate actions to

remedy his conduct and provide a safe environment for students, faculty, and staff.

24. In fact, the Human Resources Department, the Office of Diversity and Inclusion, and/or

the Institution Equity Department of Defendant were all aware of Mr. Beare’s racially

discriminatory conduct and behavior due to the complaints made over the years.

25. Instead of taking any disciplinary action whatsoever against Beare, it is believed WMU

recommended that Beare take diversity training. WMU did not follow up on their

recommendation and it is believed that Beare never voluntarily participated in training.

26. When Beare was finally required to attend a diversity and inclusion training initiative for

faculty and staff, he took that occasion to further retaliate against Plaintiff Moore in a very

public setting.

27. On Friday, August 25, 2017, Mitchell Beare finally did attend a WMU Diversity and

Inclusion meeting. At the training meeting, Beare walked up behind Plaintiff Moore who

was seated at a table at the front of the room, and hung a looped rope/noose behind Plaintiff

Moore’s head with the intent of pulling it over his head and around his neck --- which is

historically an act of lynching a black man.

28. This racially charged act was done in front of other WMU colleagues and coworkers.
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29. When Plaintiff Moore turned around in his seat and saw that Beare had a noose and was

attempting to bring the noose up over his head, he was horrified.

30. Plaintiff heard another employee say to Mr. Beare, “No… you can’t do that!”

31. Surprisingly, even after Beare’s inappropriate and racially charged actions, the training

session proceeded. Plaintiff Moore tried to make it through the meeting, but was so

horrified and shaken by the incident that he had to excuse himself from the meeting.

32. On Monday, August 28, 2017, other coworkers told Plaintiff Moore that they saw Beare

making the noose behind his head.

33. Plaintiff Moore reported the incident to his supervisor and indicated that he did not feel

safe working around Mitchell Beare. Plaintiff Moore informed his supervisor that he

needed to take some time off from work as he could not understand how someone who had

a known history of racially hostile behavior, and aggressive and violent conduct, was

allowed to continue to work at WMU and create a dangerous and threatening environment

for him.

34. An investigation was conducted by Defendant WMU’s Office of Institutional Equity.

35. Several individuals present at WMU’s Inclusion and Diversity Training session confirmed

that Mitchell Beare made a noose and with a smirk on his face placed it behind Plaintiff

Moore’s head. They also stated that if Beare had not been stopped, he would have

proceeded with placing the noose around Plaintiff’s neck.

36. During the investigation, two witnesses stated that the incident should have been

investigated as a hate crime.

37. Others corroborated Plaintiff’s allegations that Beare would regularly racially profile and

target African American groups trying to plan events on campus, and that Beare often

stated that he hated when “those groups” were scheduled. And when asked to assist with
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events organized primarily by African Americans, Beare would state, “Not my circus, not

my monkeys.”

38. During the investigation, witnesses described Mr. Beare as angry, losing his temper often,

throwing things, yelling, kicking objects, hitting walls, and having frequent discussions

about his guns and his gun rights. Some of the witnesses became visibly upset just

discussing Beare’s behavior, and they stated that after witnessing the noose incident they

wondered what else Beare might be capable of and feared for their safety.

39. Defendant WMU’s investigative report dated October 9, 2017, states that attempts had

been made over a period of years to get Mr. Beare to participate in diversity training put

on by WMU’s Office of Diversity and Inclusion. Mitchell Beare did not comply with

WMU’s requests.

40. In an October 23, 2017 letter following the investigation into this matter, WMU concluded

there was sufficient evidence to support a finding for racial discrimination and that Mitchell

Beare had violated the University Non-Discrimination Policy.

41. Sometime around September 2017, Mitchell Beare was allowed to retire from WMU, with

benefits.

42. Plaintiff has suffered trauma and the lasting effects of being subjected to ongoing racial

discrimination and harassment by Mitchell Beare, and having a noose placed behind his

head and neck at a WMU Diversity and Inclusion Training session.

43. Defendant’s failure to promptly and effectively address the prior complaints of racial

harassment, discrimination, and a hostile work environment caused Plaintiff to be subjected

to racial animus that permeated the work environment and emboldened Defendant’s Assistant

Director of Operations to feel comfortable enough to hold a noose behind Plaintiff’s head

(simulating a lynching) during Defendant’s Diversity and Inclusion training session.

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44. Beare’s actions were bold, egregious, horrific, racially charged, discriminatory, and created

a hostile work environment.

45. Plaintiff believes that similarly situated Caucasian employees were not subjected to this

treatment.

46. The harassment and discriminatory actions of Defendant Western Michigan University, by

and through its agents, employees, managers and/or assigns, were based in whole or in part

on Plaintiff’s race.

47. A racially hostile work environment grew from Defendant WMU allowing the racially hostile

environment to continue unchecked, thus permitting racially derogatory and demeaning

conduct toward Plaintiff (an African American) and African American students to continue

regularly during the time Mitchell Beare was permitted to continue his employment with

Defendant, contrary to Defendant’s stated policies.

48. Defendant WMU created a culture in which Mr. Beare had license to demean and berate

Plaintiff, African American students, and other minorities with the security of knowing no

significant disciplinary action would occur.

49. The harassment against Plaintiff was unwelcomed and unwanted, and the conduct and

communication that was directed at Plaintiff during his employment at Defendant Western

Michigan University, by and through its agents, employees, managers and/or assigns,

substantially interfered with Plaintiff’s employment and fostered an intimidating, hostile, and

offensive work environment.

50. Plaintiff complained to WMU about the harassment, and discriminatory conduct however

Defendant failed to take prompt, effective, and remedial action regarding Plaintiff’s

complaints and ultimately treated him less favorably than similarly situated non-African

American employees with respect to disciplinary action.

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51. Plaintiff was subjected to race discrimination and harassment/hostile work environment in

violation of 42 U.S.C § 1981, and the Michigan Elliott Larsen Civil Rights Act.

52. On November 27, 2017, Plaintiff filed a Charge of Discrimination with the MDCR and the

EEOC (Charge Nos. 483912 and 23A-2018-00275C respectively), including complaints of

discrimination based on race, harassment, and a hostile work environment.

COUNT I
DISCRIMINATION
HARASSMENT - HOSTILE WORK ENVIRONMENT
42 U.S.C. § 1981

53. Plaintiff realleges and incorporates by reference the allegations contained in the previous

paragraphs.

54. The actions by Defendant Western Michigan University occurred in whole or in part on

account of Plaintiff’s race, and on that basis were performed intentionally and in a

discriminatory manner as compared to other similarly situated Caucasian employees.

Thus, Defendant Western Michigan University, through its managers, employees, agents

and/or assigns, violated 42 U.S.C. § 1981.

STATE LAW CLAIMS - SUPPLEMENTAL JURISDICTION

COUNT II
HARASSMENT - HOSTILE WORK ENVIRONMENT (RACE)
ELLIOTT-LARSEN CIVIL RIGHTS ACT

55. Plaintiff realleges and incorporates by reference the allegations contained in the previous

paragraphs.

56. During the course of Plaintiff’s employment with Defendant Western Michigan University,

Plaintiff was subjected to the aforementioned unwelcomed derogatory and racially

offensive comments and other conduct, including having a noose hung behind his head,
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based on Plaintiff’s race, by employees, agents, managers, and/ or assigns of Defendant

Western Michigan University.

57. The aforementioned unwelcomed derogatory and racially offensive comments and other

conduct based on Plaintiff’s race had the purpose and/or effect of substantially interfering

with Plaintiff’s employment and/or creating an intimidating, hostile, and offensive

employment environment.

58. Defendant Western Michigan University had both actual and constructive notice their

employees, agents, managers, and/ or assigns, were creating a hostile and offensive work

environment.

59. Despite having notice of the conduct, Defendant Western Michigan University, failed to

adequately investigate and take prompt and/or appropriate remedial action. By said acts,

Defendant violated the Elliott-Larsen Civil Rights Act.

60. Defendant further violated the Elliott-Larsen Civil Rights Act in that:

a. Defendant failed to provide Plaintiff with employment conditions and relationships

where he could safely work free from physical, verbal, and mental harassment
and/or discrimination based on race;

b. Defendant failed to comparatively discharge, suspend, reprimand or otherwise

discipline employees for their actions of harassment and/or discrimination based on
the race of Plaintiff; and,

c. Defendant otherwise failed to comply with statutory and/or common law.

61. Such conduct has denied Plaintiff equal protection and civil rights guaranteed by the

Constitution and laws of the State of Michigan.

COUNT III
DISCRIMINATION (RACE)
ELLIOTT-LARSEN CIVIL RIGHTS ACT

62. Plaintiff realleges and incorporates by reference the allegations contained in the previous

paragraphs.
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63. The aforementioned acts by Defendant Western Michigan University, through its

employees, agents, managers and/or assigns, constitute discrimination against Plaintiff

regarding the terms and conditions of his employment on the basis of his race and on that

basis were performed intentionally and in a discriminatory manner as compared to other

similarly situated employees, thereby subjecting him to a hostile environment based on

race which interfered with his employment. By said acts, Defendant has violated Michigan

common and/or statutory law, including specifically the Elliott-Larsen Civil Rights Act,

M.C.L. §37.2101 et seq.; M.S.A. §3.548(101) et seq.

64. Such conduct has denied Plaintiff equal protection and civil rights guaranteed by the

Constitution and laws of the State of Michigan.

DAMAGES

65. Plaintiff realleges and incorporates by reference the allegations contained in the previous

paragraphs.

66. As a direct and/or proximate result of the aforementioned actions and inactions by

Defendant, Plaintiff sustained injuries including but not limited to, mental anguish, fright,

shock, embarrassment, humiliation, mortification, damage to reputation, disruption of

personal life, loss of enjoyment of the ordinary pleasures of living, possible loss of earning

capacity, and other damages known and unknown.

67. As a direct and/or proximate result of the aforementioned actions and inactions by

Defendant, Plaintiff has been deprived of wages, loss of income, earning capacity, and,

other damages known and unknown, causing Plaintiff to suffer considerable financial

distress and hardship.

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WHEREFORE, Plaintiff Smith M. Moore seeks all appropriate damages against Defendant

Western Michigan University arising out of law, equity, and fact for each or all of the above counts

where applicable and hereby requests that the trier of fact award Plaintiff all applicable damages,

including but not limited to compensatory, exemplary, and/or punitive and all other relief arising out

of law, equity and fact according to statutory and common law, including interest, costs, and

attorney fees.

Respectfully submitted,

Dated: August 24, 2020 By: /s/ Stephen R. Drew

Stephen R. Drew (P24323)
Adam C. Sturdivant (P72285)
DREW COOPER & ANDING
Attorneys for Plaintiff
80 Ottawa Avenue NW, Suite 200
Grand Rapids, Michigan 49503
Phone: (616) 454-8300
E-mail: sdrew@dca-lawyers.com
E-mail: asturdivant@dca-lawyers.com
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JURY DEMAND

Plaintiff, Smith M. Moore, by and through his attorneys, DREW COOPER, & ANDING,

hereby demands a trial by jury on all claims set forth above.

Respectfully submitted,

Dated: August 24, 2020 By: /s/ Stephen R. Drew

Stephen R. Drew (P24323)
Adam C. Sturdivant (P72285)
DREW COOPER & ANDING
Attorneys for Plaintiff
80 Ottawa Avenue NW, Suite 200
Grand Rapids, Michigan 49503
Phone: (616) 454-8300
E-mail: sdrew@dca-lawyers.com
E-mail: asturdivant@dca-lawyers.com