DEPT. OF CIVIL RIGHTS EX REL. BURNSIDE v. Fashion Bug of Detroit, Docket No. 126254, COA No. 240325.

• Citation: 702 N.W.2d 154,473 Mich. 863
• Decision Date: 21 July 2005
• Docket Number: Docket No. 126254, COA No. 240325.
• Parties: MICHIGAN DEPARTMENT OF CIVIL RIGHTS ex rel. Burnette BURNSIDE, Claimant-Appellee, v. FASHION BUG OF DETROIT, Respondent-Appellant.
• Court: Michigan Supreme Court

702 N.W.2d 154

473 Mich. 863

MICHIGAN DEPARTMENT OF CIVIL RIGHTS ex rel. Burnette BURNSIDE, Claimant-Appellee, v. FASHION BUG OF DETROIT, Respondent-Appellant.

Docket No. 126254, COA No. 240325.

Supreme Court of Michigan.

July 21, 2005.

On April 14, 2005, the Court heard oral argument on respondent-appellant's application for leave to appeal the February 19, 2004 judgment of the Court of Appeals. The application is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and REMAND this case to the Wayne Circuit Court for entry of judgment in favor of Fashion Bug of Detroit. Claimant Burnside did not establish a prima facie case of unlawful discrimination because she failed to demonstrate that she was treated differently than a similarly situated, comparable employee. Claimant Burnside was not similarly situated to Theresa Jawoszek because Jawoszek was a store manager accused of acting discourteously to a customer, while Burnside was an hourly employee accused of acting dishonestly for personal gain. Thus, the relevant aspects of Burnside's employment situation were not "nearly identical" to those of Jawoszek's employment situation. Town v. Michigan Bell Telephone Co., 455 Mich. 688, 699-700, 568 N.W.2d 64 (1997). In addition, it was not established that the ultimate decision maker harbored any racial animus toward Burnside.

TAYLOR, C.J., concurs and states as follows:

I concur in the peremptory order to reverse the judgment of the Court of Appeals and remand this case to the trial court for entry of judgment in defendant's favor. I write separately to respond to the dissents.

Claimant Burnside was a sales associate at one of defendant Fashion Bug's stores in Detroit. On Saturday, September 29, 1991, Burnside was shopping at one of Fashion Bug's other stores in Warren with her twin sister, Benita Withers, and other family members. Burnside attempted to exchange some clothes, and return some others, that she had purchased at the Detroit store with her employee discount. Because they can purchase clothing with the discount, Fashion Bug policy requires employees to produce a receipt when returning or exchanging items. Theresa Jawoszek, the manager of the Warren store, allowed Burnside to either exchange or return some items that Burnside had a receipt for. According to Jawoszek, Burnside also attempted to return other clothes that she did not have a receipt for, but Jawoszek refused to accept them. Burnside denies that she tried to return items that she did not have a receipt for.

During this episode, Burnside also purchased a skirt that was on sale. When Jawoszek started to place the skirt in the bag with Burnside's other clothes, Burnside asked Jawoszek to put the skirt on a hanger. Jawoszek refused to do so, stating that it was not the Warren store's policy to put sale items on hangers. Burnside protested that Fashion Bug's policy was to put any item on a hanger if the customer requested it. According to Burnside and Withers, Jawoszek responded by saying, "Do you all hang your clothes on hangers?" or, "You people hang your clothes on hangers?" Burnside initially thought that Jawoszek was referring to the people who worked at Burnside's store. Withers, however, who was nearby but had not heard any of the conversation until this point, heard the "you all" or "you people" statement and thought that it might have been a racially motivated generalization. She approached the counter and asked Jawoszek to explain what she meant by the comment. According to Withers, Jawoszek responded by making a pointing gesture toward Burnside and her family members and saying, "You all are the people." Withers then asked, "Well, who are you?" Jawoszek gestured with her hand around the room and then toward herself and the other two employees behind the counter, all of whom were white, and said, "We all are individuals." Jawoszek testified that she uses the phrase "you people" often when referring to both black and white employees, but did not remember making either the specific comment or hand gestures that Burnside and Withers alleged. Lorna Stout, another employee working in the store that day who witnessed the incident, also testified that she has often heard Jawoszek use the phrase "you people" when referring to both black and white employees, but that she did not recall Jawoszek making the specific comment or hand gestures alleged by Burnside and Withers. A verbal confrontation ensued, but Jawoszek eventually gave Burnside a hanger for the skirt, and Burnside and her family members left.

The following Monday, Jawoszek informed her district supervisor that Burnside had attempted to return merchandise without a receipt in violation of Fashion Bug's policy. At the district supervisor's request, Jawoszek prepared a written statement and sent it to Fashion Bug's regional supervisor, Deborah Kerins. After receiving Jawoszek's written statement, Kerins had the district supervisor conduct an investigation. The district supervisor obtained written statements from the other Fashion Bug employees who were working in the store at the time of the incident. She did not obtain one from Burnside. After reading the written statements and consulting Fashion Bug's human resources department in Philadelphia, Kerins decided to fire Burnside, and did so on October 18, 1991.

Meanwhile, about a week after the September 29, 1991, incident, Withers returned to the Warren store and tried to exchange merchandise without a receipt. Jawoszek refused to exchange the clothes, even though Withers was not an employee and, thus, not subject to Fashion Bug's employee-return policy. According to Jawoszek, she refused to give Withers a refund for the merchandise because she thought that Withers was trying to return the same items that Burnside had tried to return on the previous occasion. Thus, she thought that Withers was trying to return items that Burnside had bought with her employee discount. On the basis of this incident, Withers lodged a complaint with Fashion Bug's offices in Chicago alleging that Jawoszek had refused to exchange the items for her because of Withers's race.¹ The complaint was apparently referred to a district supervisor in Michigan, who spoke with Jawoszek and asked her to file a written response. Jawoszek was not disciplined, and neither the district supervisor nor Fashion Bug appears to have done anything further regarding Withers's complaint.

Burnside filed a complaint with the Michigan Civil Rights Commission, asserting that her termination was racially motivated, in violation of M.C.L. § 37.2201(2)(a)² of the Michigan Civil Rights Act. The complaint was referred to a hearing officer who, after taking testimony and reviewing the evidence, filed a report recommending that the commission determine that Burnside had not established a prima facie case of discrimination. The commission did not adopt the hearing officer's recommendation, instead holding that Burnside had established a prima facie case of discrimination and awarding her damages. Fashion Bug appealed to the circuit court, which, after a review de novo of the evidence and testimony presented to the hearing officer,³ affirmed the commission's holding.⁴ Fashion Bug then appealed to the Court of Appeals, which determined that the circuit court had not clearly erred⁵ in determining that Burnside had established a prima facie case of discrimination and, therefore, affirmed.⁶

I believe that the circuit court clearly erred in determining that Burnside established a prima facie case of discrimination. As was the case with the decisions of the lower courts, the primary fallacy of the dissents in this case is that they disregard the fact that Burnside failed to present any evidence to support a finding that the person who was responsible for her termination, Kerins, harbored any racial animus. Indeed, Burnside herself testified that Kerins never made any comments toward her that she viewed as racially motivated. Rather, the only alleged discriminatory comments that Burnside identified in her testimony came not from Kerins, but from Jawoszek. However, these comments are not sufficient to establish a prima facie case of racial discrimination against Kerins or Fashion Bug.⁷

Although this Court has never addressed the criteria by which alleged discriminatory remarks by one other than the decision maker, or so-called "stray remarks," can be imputed to the decision maker, our Court of Appeals has adopted a four-part test that looks to (1) whether the alleged discriminatory remarks were made by the person who made the adverse employment decision or by an agent of the employer that was uninvolved in the challenged decision, (2) whether the alleged discriminatory remarks were isolated or part of a pattern of biased comments, (3) whether the alleged discriminatory remarks were made in close temporal proximity to the challenged employment decision, and (4) whether the alleged discriminatory remarks were ambiguous or clearly reflective of discriminatory bias. Krohn v. Sedgwick James of Michigan, Inc., 244 Mich.App. 289, 292, 624 N.W.2d 212 (2001).

In the present case, the only one of these factors that even arguably weighs in Burnside's favor is the third, as it is undisputed that Kerins's decision to fire her was made not long after the incident in which Jawoszek made the challenged comments. The rest of the factors, however, do not support Burnside's claim. With regard to the first factor, there is no dispute that the alleged discriminatory remark was not made by the decision maker, Kerins, but by Jawoszek, who was not Burnside's supervisor and who was not involved in Kerins's decision to fire Burnside. Rather, Jawoszek's undisputed testimony was that, although she informed Kerins that Burnside had attempted to return merchandise without a receipt, she did not make any recommendation to Kerins as to...