White v. Dep't of Transp.
| Decision Date | 01 October 2020 |
| Docket Number | No. 349407,349407 |
| Citation | 334 Mich.App. 98,964 N.W.2d 88 |
| Parties | Ellen WHITE, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
The Mungo Law Firm, PLC, Detroit (by Leonard Mungo ) for plaintiff.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Michael J. Dittenber, Assistant Attorney General, for defendant.
Before: Riordan, P.J., and Shapiro and Ronayne Krause, JJ.
Shapiro, J. Plaintiff, Ellen White, brought a claim of employment discrimination against defendant, the Department of Transportation, alleging that she had been denied a promotion as a result of racial discrimination in violation of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq. After she filed suit, defendant took certain actions that plaintiff concluded were in retaliation for having sued the department. Accordingly, she amended her complaint to add a count alleging retaliation in violation of ELCRA, MCL 37.2701(a).
Sometime later, defendant moved for summary disposition as to each claim. The trial court granted the motion in full and dismissed the case. Plaintiff then appealed in this Court. For the reasons stated in this opinion, we affirm the dismissal of plaintiff's failure-to-promote claim but reverse the dismissal of her retaliation claim.
Plaintiff is African American. In 2008, she began working as a property analyst (PA) for defendant's real-estate-services section. Plaintiff's job involved right-of-way acquisition and relocation, meaning she would help acquire property needed for defendant's projects and then find new housing for the former property owners. Beginning in 2015, she was assigned to the Gordie Howe International Bridge (GHIB) project in Detroit. She lived in Lansing and was formally assigned to defendant's Lansing office, but she worked in Detroit four days each week during which she was housed in a local hotel.
Plaintiff was hired at Classification Level 10 (PA 10). A year later she was reclassified to a PA 11. She stayed at that level until 2013, when she became a PA 12. In April 2016, defendant posted an opening for a property specialist, Classification Level 13 (PS 13). This position is responsible for managing defendant's statewide relocation program. There were two applicants for the position: plaintiff and Lori Crysler, who is Caucasian. Crysler was originally hired by defendant in January 2015 as a PA 10 and in February 2016, she was reclassified to a PA 12. Crysler had 30 years’ experience in the real estate industry before joining defendant. At the time of application, plaintiff had received a "High Performing" annual rating for the previous four years. Her performance ratings in the four years before that were "Meets Expectations." Crysler had received high-performing ratings in her two evaluations. Both candidates interviewed for the PS 13 position in May 2016. The three-person interview panel unanimously selected Crysler for the position.1
Plaintiff filed suit in the Wayne Circuit Court on December 18, 2017, alleging racial discrimination in violation of ELCRA.2 At the time, plaintiff was working full-time in Detroit on the GHIB project and she only went to defendant's Lansing office for biweekly meetings. On January 8, 2018, plaintiff's supervisor rated her 2017 job performance as "Needs Improvement." This was the first time that plaintiff received a negative annual performance rating. And as a result of the needs-improvement rating, plaintiff was placed under a "Performance Improvement Plan" (PIP) for a period of up to six months, with a formal review to be conducted within three months.
On January 29, 2018, defendant filed a motion for a change of venue to Ingham County, which was later denied. The motion was based, in part, on defendant's assertion that plaintiff's "assigned duty station is Lansing" and that venue cannot be based on an "employee's temporary work station[ ]...." On February 13, 2018, before the change-of-venue motion was denied on February 21, 2018, plaintiff submitted an affidavit in opposition to the motion in which she stated that her "workstation in Detroit is not ‘temporary’ " and that she had been working there since about January 2015. Two days later, on February 15, 2018, plaintiff's supervisor sent an e-mail to plaintiff, directing her to report to Lansing daily beginning February 20 and informing her that she would go to Detroit on an appointment basis only. The following week, on February 21, 2018, the supervisor issued plaintiff a notice of formal counseling that outlined plaintiff's alleged failure to comply with the PIP and provided new dates for her to show progress. The notice stated that plaintiff's "performance is unacceptable." Plaintiff went on medical leave in March 2018 because of stressful work conditions. She did not return to work before retiring in November 2018.
In August 2018, plaintiff filed an amended complaint, adding a retaliation claim on the basis of the negative performance rating and the change in her work location. After discovery was completed, the parties filed competing motions for summary disposition under MCR 2.116(C)(10). The trial court ruled that plaintiff failed to establish a question of fact whether defendant's nondiscriminatory reason for the promotion decision, i.e., that Crysler was the best candidate for the position, was a pretext for racial discrimination. The court granted summary disposition of plaintiff's retaliation claim on the ground that she had failed to identify an adverse employment action.
The trial court granted summary disposition in favor of defendant under MCR 2.116(C)(10) on the basis that plaintiff failed to establish a genuine issue of material fact. A trial court's decision on a motion for summary disposition is reviewed de novo. Spiek v. Dep't of Transp. , 456 Mich. 331, 337, 572 N.W.2d 201 (1998). When reviewing a motion brought under MCR 2.116(C)(10), we must view that evidence in the light most favorable to the nonmoving party to determine if a genuine issue of material fact exists. See Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v. Gen. Motors Corp. , 469 Mich. 177, 183, 665 N.W.2d 468 (2003).
Plaintiff first argues on appeal that the trial court erred by dismissing her discrimination claim because she established a question of fact whether defendant's stated reason for the promotion decision was a pretext for discrimination. We disagree and affirm the order granting summary disposition as to that count.
ELCRA prohibits employers from discriminating on the basis of race. MCL 37.2202 states:
"The courts have recognized two broad categories of claims under this section: ‘disparate treatment’ and ‘disparate impact’ claims." Wilcoxon v. Minnesota Mining & Mfg. Co. , 235 Mich. App. 347, 358, 597 N.W.2d 250 (1999). This case concerns disparate treatment because plaintiff alleges that defendant intentionally discriminated against her on the basis of race. See Duranceau v. Alpena Power Co. , 250 Mich. App. 179, 182, 646 N.W.2d 872 (2002).
Because there is "no direct evidence of impermissible bias," plaintiff's claim of intentional discrimination must proceed under the McDonnell Douglas3 burden-shifting framework. Hazle v. Ford Motor Co. , 464 Mich. 456, 462, 628 N.W.2d 515 (2001). First, the plaintiff must set forth a prima facie case. In Hazle , the Supreme Court determined that the "plaintiff was required to present evidence that (1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) the job was given to another person under circumstances giving rise to an inference of unlawful discrimination."4
Id. at 463, 628 N.W.2d 515. "[O]nce a plaintiff establishes a prima facie case of discrimination, the defendant has the opportunity to articulate a legitimate, nondiscriminatory reason for its employment decision in an effort to rebut the presumption created by the plaintiff's prima facie case."5 Id. at 464, 628 N.W.2d 515.
If the defendant gives a legitimate, nondiscriminatory reason for the employment decision, the presumption of discrimination is rebutted, "and the burden shifts back to the plaintiff to show that the defendant's reasons were not the true reasons, but a mere pretext for discrimination."
Sniecinski v. Blue Cross & Blue Shield of Mich. , 469 Mich. 124, 134, 666 N.W.2d 186 (2003). "At that point, in order to survive a motion for summary disposition, the plaintiff must demonstrate that the evidence in the case, when construed in the plaintiff's favor, is ‘sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff.’ " Hazle , 464 Mich. at 465, 628 N.W.2d 515, quoting Lytle v. Malady (On Rehearing) , 458 Mich. 153, 176, 579 N.W.2d 906 (1998).
Defendant's nondiscriminatory reason for its employment decision is that Crysler was the best candidate for the position. Plaintiff offers four grounds for concluding that this explanation is a pretext for discrimination.
Plaintiff first argues that Crysler was not qualified for the sought position. The Civil Service Commission determined that Crysler was qualified to apply for the...
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