Sniecinski v. BLUE CROSS AND BLUE SHIELD OF MI.

• Decision Date: 22 July 2003
• Docket Number: Docket No. 119407, Calendar No. 6.
• Citation: 666 N.W.2d 186,469 Mich. 124
• Parties: Marcia SNIECINSKI, Plaintiff-Appellee, v. BLUE CROSS AND BLUE SHIELD OF MICHIGAN, Defendant-Appellant.
• Court: Michigan Supreme Court

666 N.W.2d 186

469 Mich. 124

Marcia SNIECINSKI, Plaintiff-Appellee, v. BLUE CROSS AND BLUE SHIELD OF MICHIGAN, Defendant-Appellant.

Docket No. 119407, Calendar No. 6.

Supreme Court of Michigan.

Argued November 19, 2002.

Decided July 22, 2003.

Hurlburt, Tsiros, Allweil & Perez, P.C. (by Manel I. Allweil), Saginaw, MI, for the plaintiff.

Bart M. Feinbaum, Detroit, MI, for the defendant.

Vercruysse Metz & Murray (by Diane M. Soubly), Bingham Farms, MI, for the Michigan Chamber of Commerce.

Clark Hill PLC (by Duane L. Tarnacki, F.R. Damm, and Lira A. Johnson), Detroit, MI, for the Michigan Manufacturers Association.

Kienbaum Opperwall Hardy & Pelton, PLC (by Thomas G. Kienbaum, Theodore R. Opperwall, and Noel D. Massie), Birmingham, MI, for the Automobile Club of Michigan and DamilerChrysler Corporation.

Opinion

CORRIGAN, C.J.

In this pregnancy discrimination case, we have been asked to decide whether the trial court erred by denying defendant Blue Cross and Blue Shield of Michigan's (BCBSM) motions for directed verdict and judgment notwithstanding the verdict. We hold that because plaintiff failed to adduce evidence of a causal connection between her pregnancy and BCBSM's failure to hire her, BCBSM was entitled to a finding of no cause of action as a matter of law. The trial court erred by denying defendant's motions for directed verdict and judgment notwithstanding the verdict.

I. Underlying Facts and Procedural History

Blue Care Network of East Michigan (BCN), a wholly owned subsidiary of BCBSM, employed plaintiff as a telemarketing representative. Plaintiff, a high school graduate, began work at BCN's predecessor, Group Health Services (GHS), in 1983. She held a variety of positions. In 1987, she became a telemarketing representative. In 1989, GHS merged into BCN. BCN honored the seniority that plaintiff had acquired at GHS. Also in 1989, plaintiff became pregnant. She experienced pregnancy complications that required her to take a medical leave for seven months. In October of that year, plaintiff gave birth to her daughter. In November, she returned to work for BCN.

Plaintiff became pregnant again in 1992 while she was supervised by Michael Curdy. Plaintiff testified that after she informed Curdy about her pregnancy, he seemed upset. He referred to plaintiff's chair as the "pregnancy chair." He stated that he would not let anyone sit in that chair again. He asked plaintiff whether she was going to experience problems with her pregnancy as she had in 1989. Curdy further told plaintiff that he would not permit her to use either sick time or unpaid leave because of her pregnancy.

In January 1993, Curdy placed a memo regarding plaintiff's attendance in her personnel file. When plaintiff learned about the memo, she complained to Patricia Stone, the Regional Human Resources Manager at BCN. Stone informed Curdy that he had not followed the appropriate procedure for discipline. She advised Curdy to follow the correct procedure to determine whether a problem existed regarding plaintiff's attendance before a disciplinary memo could be placed in plaintiff's file. Stone then removed the memo from plaintiff's file.

Plaintiff again experienced pregnancy complications that required her to take one week off from work in February 1993. During that time, she suffered a miscarriage. Plaintiff testified that upon her return to work Curdy spoke to her about future pregnancies and stated, "We'll have to deal with that problem when it comes."

During 1993, the marketing departments of BCN and BCBSM were merged. Because the merger was going to eliminate the telemarketing positions at BCN, BCN telemarketers seeking to continue their employment were required to interview for a position of account representative at BCBSM.

In August 1993, plaintiff interviewed for an account representative position with Donald Whitford, BCBSM Regional Sales Director; Donald Roseberry, BCBSM Sales Team Manager; and Curdy.¹ Plaintiff testified that Curdy asked about her time off from work related to her previous pregnancy complications. He also asked whether plaintiff thought her pregnancies would be a future problem. After a second interview with Whitford and Roseberry only, plaintiff was offered an account representative position at BCBSM. Immediately thereafter, plaintiff told Whitford and Roseberry that she was pregnant. Plaintiff testified that they "seemed surprised" and were "taken aback," but congratulated her.

Plaintiff and other BCN employees expecting to transfer to BCBSM continued to work for BCN until the merger. Plaintiff testified that when Curdy heard about her pregnancy, he remarked, "I'll have to make sure I don't hire anybody in child bearing years in the future." In September 1993, soon after receiving the job offer, plaintiff began experiencing pregnancy-related complications. She was again required to take time off from work. She remained on medical leave from September 1993 until May 1994, six weeks after giving birth to her son.

Shortly after plaintiff was offered the account representative position, Whitford and Curdy contacted Stone to discuss placing a disciplinary note in plaintiff's file regarding her attendance problems during previous pregnancies. Stone testified that Whitford wanted Curdy's January 1993 memo put back in plaintiff's file because plaintiff was continuing to have attendance problems. Stone advised them that placing a memo in plaintiff's file was inappropriate.

On November 22, 1993, while plaintiff was on medical leave, the planned merger of the sales departments of BCN and BCBSM occurred, and all BCN employees who had been offered jobs with BCBSM terminated their employment with BCN and began working for BCBSM. Plaintiff did not report for work at BCBSM because she was on medical leave at that time. Instead, BCBSM held open an account representative position for her. On March 1, 1994, plaintiff's short-term disability benefits expired, and she began to collect long-term disability (LTD) benefits. Under BCN's LTD policy, an employee on medical leave converts from short-term to LTD status on the first day of the employee's sixth month off work. The LTD policy provides that the employee is separated from the company and issued a final pay check, including accrued vacation and personal time.

On October 11, 1993, while plaintiff was on short-term disability, she requested an extension of her medical leave. Plaintiff was concerned that the account representative position at BCBSM would no longer be available when she was ready to return to work. Stone informed plaintiff that the position would be held open until plaintiff went on LTD, if plaintiff's medical leave extended that long. Stone's notations in her Franklin planner corroborated this account of her conversation with plaintiff. The notes read as follows:

Marcia concerned over job security—

Advised her that not issue until LTD

If LTD ? Blue Cross job not possible.

We will attempt to find position similar qualifications/pay.

Because plaintiff did not return to work before March 1, 1994, she began collecting LTD benefits. BCN issued plaintiff a vacation and incentive payout and separated her from the company.

In late May 1994, plaintiff informed BCBSM that she was ready to return to work. Because of the 1993 merger, her telemarketing position at BCN had been eliminated. The BCBSM account representative position previously offered to her was not filled because of a company-wide hiring freeze resulting from a loss of Medicare business.

Plaintiff thereafter collected unemployment benefits for six months while making periodic efforts to find another job. In December 1994, BCN offered, and plaintiff accepted, a position as a marketing representative that was unrelated to her previous job. After resuming work, plaintiff learned that BCBSM had recently hired an account representative who was a college graduate. Both before and after the merger, the BCBSM account representative position required a college degree. The degree requirement had been waived only for those BCN employees transferring to BCBSM during the merger. Plaintiff had no college degree.

In March 1996, while still employed at BCN, plaintiff sued BCBSM, alleging sex (pregnancy) discrimination in violation of Michigan's Civil Rights Act (CRA), M.C.L. § 37.2101 et seq. In August 1996, plaintiff saw a posting for an account representative with BCBSM. The position still required a college degree. Upon her inquiry, the BCBSM human resources department informed her that the degree requirement could not be waived. On September 20, 1996, plaintiff resigned from her position with BCN. She did not seek employment, instead opting to enroll in college to attend classes part-time.

Plaintiff's lawsuit proceeded to trial. The jury rendered a verdict for plaintiff, awarding her $125,000 for past economic loss, $136,000 for future economic loss, and $90,000 in noneconomic damages. Defendant moved for judgment notwithstanding the verdict (JNOV), a new trial, and remittitur of plaintiff's economic damages. The trial court denied the motions. The Court of Appeals affirmed the verdict.² We granted BCBSM's application for leave to appeal.³

II. Standard of Review

Defendant contends that the trial court erred by denying its motions for directed verdict or JNOV.⁴ We review de novo the trial court's denial of both motions. Forge v. Smith, 458 Mich. 198, 204, 580 N.W.2d 876 (1998); Smith v. Jones, 246 Mich.App. 270, 273-274, 632 N.W.2d 509 (2001). We "review the evidence and all legitimate inferences in the light most favorable to the nonmoving party." Wilkinson v. Lee, 463 Mich. 388, 391, 617 N.W.2d 305 (2000); Forge, supra at 204, 580 N.W.2d 876, quoting Orzel v. Scott Drug Co., 449 Mich. 550, 557, 537 N.W.2d 208 (1995). A motion for directed verdict or JNOV should be granted only if the evidence viewed in this light fails to establish a claim as a matter of law. Wilkinson, supra at 391, 617...