Miller v. Mich. Dep't of Corr.

• Docket Number: 356430
• Decision Date: 25 August 2022
• Parties: RICHARD MILLER, BRENDA MILLER, and BRENT WHITMAN, Plaintiffs-Appellees, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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RICHARD MILLER, BRENDA MILLER, and BRENT WHITMAN, Plaintiffs-Appellees, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellant.

No. 356430

Court of Appeals of Michigan

August 25, 2022

Genesee Circuit Court LC No. 20-114172-CD

Before: MURRAY, P.J., and SAWYER and M. J. KELLY, JJ.

MURRAY, P.J.

This appeal involves an anti-retaliation claim under the Elliot-Larsen Civil Rights Act (ELCRA or Act), MCL 37.2201 et seq. But, unlike a typical retaliation case, this one is not being pursued by the persons who complained about the employer's acts or policies as being violative of the Act, and were then terminated from their employment. Instead plaintiffs claim they were terminated from their positions because they are close friends with the person engaging in the protected activity. The trial court denied defendant's motion for summary disposition on the pleadings, concluding that the close friendship was sufficient to maintain a "third-party" retaliation claim. We granted leave to appeal to determine whether plaintiffs can allege a third-party retaliation claim under the Act. We conclude that while certain third-party retaliation claims are viable under MCL 37.2701(f) plaintiffs have not alleged such a claim as currently plead. We, therefore, reverse the order denying defendant's motion for summary disposition and remand for further proceedings consistent with this opinion.

I. FACTS^[1]

Plaintiffs^[2] were employed at the Thumb Correctional Facility and had been employees of defendant, the Michigan Department of Corrections, since at least 1999. Plaintiffs' supervisor was Cedric Griffey, with whom both plaintiffs had "an extremely close" relationship. Lisa Griffey, Cedric's wife and an MDOC employee herself, filed a civil rights complaint alleging that she was racially harassed in the workplace. According to plaintiffs, after Cedric complained to management about the harassment of his wife, an internal affairs agent was sent to the correctional facility in order to retaliate against him. Plaintiffs alleged that defendant conducted a "sham investigation" on another matter in order to justify disciplining Cedric, and plaintiffs stated that they "participated honestly" in this investigation. However, as part of defendant's attempt to retaliate against Cedric, plaintiffs alleged that defendant falsely accused them of wrongdoing. According to plaintiffs, "in Defendant's effort to illegally terminate Lisa Griffey, Cedric Griffey[,] and retaliate against them, [plaintiffs] were terminated."

In order to remedy those terminations, plaintiffs filed a complaint alleging, amongst other claims, retaliation under the ELCRA. A subsequently filed amended complaint described plaintiffs' relationship with Cedric:

a. Whitman, [Richard] Miller, and Griffey considered each other friends;

b. Mr. Griffey had met and interacted with Plaintiffs' families;

c. Everyone knew that Miller and Whitman were close to Cedric Griffey;

d. The three shared intimate information about each other's loved ones and families;

e. Plaintiff Whitman's brother even went to Mr. Griffey's house before;

f. Plaintiffs went to Griffey not just as a supervisor, but as a friend they could confide in.

Plaintiffs also alleged that defendant had a "culture of retaliation that ostracizes and punishes employees who bring embarrassment onto [MDOC]," and that the head of defendant's internal affairs department admitted under oath that internal affairs had conducted "crooked investigations in order to punish employees who spoke out against the employers," which had been termed "gotcha" investigations.

Defendant moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that because plaintiffs did not allege that they engaged in any protected civil rights activity, they had failed to state a valid retaliation claim under the ELCRA. Plaintiffs, for their part, asserted that they had indeed pleaded a cognizable claim for "associational" or "third-party" retaliation, pointing to the decision in Thompson v North American Stainless, LP, 562 U.S. 170, 173-174; 131 S.Ct. 863; 178 L.Ed.2d 694 (2011), in which the Supreme Court upheld a third-party retaliation claim under Title VII of the federal Civil Rights Act, 42 USC 2000e et seq. Plaintiffs argued that they had a viable claim of retaliation under Thompson because defendant terminated them as an act of retaliation against their close friend Cedric, who had engaged in an activity protected under the ELCRA.

The trial court took the motion for summary disposition under advisement, and subsequently issued an opinion and order denying defendant's motion. After reciting the parties' arguments and the relevant legal standards, the trial court ruled:

This Court, without any explicit Michigan authority on whether a close friendship can be the basis of a third party retaliation claim, agrees it [is] appropriate to follow [the] federal approach articulated by Justice Scalia [in Thompson]-one that focuses on whether the alleged retaliation would cause 'a reasonable worker [to] be dissuaded from engaging in protected activity.'

A (C)(8) motion should be granted only if the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. The Court can envision a scenario whereby a defendant could deliberately cause real emotional and psychological pain to a 'reasonable worker' by retaliating against his or her close friend such that he or she would be 'dissuaded from engaging in protected activity.' Another way of saying it is that the Court cannot effectively engage in Justice Scalia's line-drawing exercise without allowing Plaintiffs the opportunity to develop the facts through discovery. Having said that, it may be appropriate to litigate the question in the context of a (C)(10) motion after discovery.

As noted, our grant of defendant's application led to this appeal.^[3]

II. ANALYSIS

A. APPELLATE STANDARD OF REVIEW

This Court reviews de novo a trial court's ruling on a motion for summary disposition, Spiek v Dep't of Transp, 456 Mich. 331, 337; 572 N.W.2d 201 (1998), and applies that same non-deferential standard when reviewing issues of statutory interpretation. Ligons v Crittenton Hosp, 490 Mich. 61, 70; 803 N.W.2d 271 (2011).

B. SUBSTANTIVE STANDARD OF REVIEW

Defendant moved for summary disposition pursuant to MCR 2.116(C)(8), which provides that summary disposition is appropriate when "[t]he opposing party has failed to state a claim on which relief can be granted." Because a motion for summary disposition under MCR 2.116(C)(8) tests the "legal sufficiency of the complaint," this Court must accept all well-pleaded factual allegations as true and must view those allegations in the light most favorable to the nonmovant. Maiden v Rozwood, 461 Mich. 109, 119; 597 N.W.2d 817 (1999). The pleadings alone are considered, and summary disposition can only be granted under this subrule when the claim is "so clearly unenforceable that no factual development could possibly justify recovery." Mays v Governor, 506 Mich. 157, 173; 954 N.W.2d 139 (2020) (quotation marks and citation omitted).

C. THIRD-PARTY RETALIATION CLAIMS

Since soon after the Act was signed into law in 1972, Michigan courts have enforced the text of the antiretaliation section, MCL 37.2701(a), by requiring that in the absence of direct evidence, a plaintiff claiming retaliation allege and prove, amongst other things, that he was engaged in protected activity. See e.g., Garg v Macomb Co Community Mental Health Servs, 472 Mich. 263, 273; 696 N.W.2d 646 (2005) ("To establish a prima facie case of retaliation, a plaintiff must show: (1) that he engaged in a protected activity . . . and (4) that there was a causal connection between the protected activity and the adverse employment action."); El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 161; 934 N.W.2d 665 (2019) ("[T]o 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"); DeFlaviis v Lord & Taylor, Inc, 223 Mich.App. 432, 436; 566 N.W.2d 661 (1997) (same), and Kocenda v Detroit Edison Co, 139 Mich.App. 721, 726; 363 N.W.2d 20 (1984) ("Plaintiffs need only establish a causal link between participation in the protected activity and the adverse employment treatment complained of.").

But as we noted at the outset of this opinion, plaintiffs' argument is that under Thompson they can maintain a retaliation claim under the Act even if they did not engage in the protected activity that resulted in the allegedly retaliatory act, as long as they can prove that they were terminated from employment in retaliation for another person's-here a close friend's-engaging in that protected activity. Not surprisingly, to determine whether to apply Thompson to subsection (a) of the Act we must examine the actual language contained in that subsection, and then compare those to the same provision within Title VII.

We have previously recognized that the principal antiretaliation provision of the Act, MCL 37.2701(a), and Title VII's antiretaliation provision, 42 USC 2000e-3(a), generally mirror each other. White v Dep't of Transp, 334 Mich.App. 98, 116-117; 964 N.W.2d 88 (2020). At the same time, however, we must remain cognizant that federal decisions interpreting Title VII are not blindly applied to the counterpart sections of the Act. Instead, only if the controlling language in Title VII is substantially similar to that contained in the Act, can we look to federal case law for potential guidance. Pena v Ingham Co Rd Comm, 255 Mich.App. 299, 311 n 3; 660 N.W.2d 351 (2003) ("It is well-settled that when the language of the CRA and Title VII are substantially similar, our courts...