If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ANTHONY MOORE, UNPUBLISHED
May 27, 2021
Plaintiff-Appellant,
v No. 352368
Genesee Circuit Court
HUNTINGTON NATIONAL BANK, LC No. 18-111589-CZ
HUNTINGTON BANCSHARES, INC., and ERIC
DIETZ,
Defendants-Appellees.
Before: CAMERON, P.J., and BORRELLO and REDFORD, JJ.
PER CURIAM.
In this employment-discrimination action under the Elliott-Larsen Civil Rights Act
(ELCRA), MCL 37.2101 et seq., plaintiff appeals as of right the trial court’s order granting
summary disposition in favor of defendants1 under MCR 2.116(C)(10). For the reasons set forth
in this opinion, we reverse.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, a black man, worked in the banking industry for about 20 years before being fired
on July 9, 2018. From approximately 1999 to 2016, plaintiff worked for Citizen’s Bank, then First
Merit Bank. During that time frame, the record reveals that plaintiff received raises and positive
comments about his work. In 2016, when Huntington purchased First Merit Bank, plaintiff
reapplied for his position with the new bank and was hired as a Private Banking Service Specialist
II (PBSS). Plaintiff’s role primarily involved supporting Pamela Root-Palinsky, who was a
1
Defendant Huntington Bancshares, Inc., was dismissed without prejudice from the case on the
basis of a stipulation of the parties. In light of that entity’s almost immediate dismissal from the
case, this opinion will not address Huntington Bancshares’s involvement, will use the term
“Huntington” to refer exclusively to Huntington National Bank, and will use the collective term
“defendants” to refer to Huntington National Bank and Eric Dietz.
-1-
relationship manager and private banker for Huntington in the private bank unit. The private bank
provided services to certain qualifying customers. One of plaintiff’s responsibilities as a PBSS
was to ensure that clients’ accounts did not become dormant, which would occur if an account was
inactive for certain period of time. The funds in a dormant account could eventually escheat to the
State of Michigan. Eric Dietz, who was plaintiff’s supervisor and the Regional Director of East
Michigan for Huntington, testified that a list is routinely distributed of accounts that are falling
into dormant status, and a PBSS “is responsible for actioning that list and moving those accounts
from dormant to active.” Huntington had a specific policy and procedure regarding how to handle
dormant accounts; the procedure did not involve an employee depositing his or her own money in
the clients’ accounts.
After being hired by Huntington, plaintiff apparently had some struggles with adapting to
new systems and procedures. He received additional training, and areas needing improvement
were identified. Nonetheless, his 2017 year-end performance review that was completed by Dietz
indicated an overall rating of “fully meets” expectations.
In May 2018, plaintiff was provided with a list of accounts that were in dormant status.
Instead of following the established procedure, plaintiff decided to deposit one penny of his own
money into each of six separate client accounts. Plaintiff testified in his deposition that each of
these clients were contacted by plaintiff or bank officers via phone or e-mail, and that the clients
each approved this course of action to remove their accounts from dormant status. Plaintiff
testified that “the pennies were deposited only after instruction was given to me to do so.”
According to plaintiff, the officers that contacted some of these clients were Janice Sova and Anne
Carey.2 Sova was a client advisor or relationship manager in the private bank for Huntington, and
she served as a point of contact for private bank clients. Carey was a trust advisor in the private
bank for Huntington.
Plaintiff was asked in his deposition why he had proceeded with this course of action rather
than following the established procedures for handling dormant accounts. He testified that he had
spoken to Cathy Doerr, a Huntington branch manager, and that “she said that that was a procedure
that she did. That she would contact people and then she would deposit the penny and it would
restore – it would eliminate the dormant status.” Doerr testified in her deposition that plaintiff did
not ask her a question about dormant accounts or seek her guidance “per se” about how to handle
dormant accounts. She also testified that plaintiff “did not directly state he was going to take an
action regarding dormant accounts.” However, Doerr also testified that she and plaintiff “did have
a conversation about dormant accounts.” Doerr explained:
[Plaintiff] came over one day, came over into the branch, stated he had
several dormant accounts, and frustrated isn’t the right word for it, but maybe
overwhelmed to some extent. And so, I did state to [plaintiff], and I says well, you
do realize it only takes a penny in order to activate these dormant accounts. The
2
Plaintiff’s testimony was somewhat unclear on this point, but he testified that “[a]t least those
two” contacted clients.
-2-
transaction does have to be directed by the customer and the customer has to be
present to make the deposit. And he said oh, okay.
Plaintiff also testified that he spoke to Sova about her client’s dormant status account and
assisting her client “to make the impact as less traumatic to the client as possible.” According to
plaintiff, Sova was aware that plaintiff was going to deposit a penny into her client’s account to
assist the client, and Sova said, “Do whatever needs to be done to cause this person less heartache.”
Plaintiff testified that Sova gave him “the direction that it was okay for me to do the penny in order
to [remove the account from dormant status].” Sova testified in her deposition that she received
an email from plaintiff indicating that he could reactivate a dormant account by depositing a penny,
but she never responded. She did not recall any verbal conversation with plaintiff about how to
reactivate a dormant account. Sova testified that she did not know that plaintiff deposited a penny
of his own money into any client accounts. Sova further testified that there had been instances at
First Merit where a private bank employee deposited personal funds into a customer account but
that she had never been informed of such occurrences happening at Huntington.
Additionally, plaintiff testified that Carey had clients on the list of dormant status accounts
and that he told her that he would deposit a penny in these accounts to remove the dormant status.
Carey testified in her deposition that she specialized in trusts and that she was not trained in the
“banking side,” which is where plaintiff worked. Carey stated:
My conversation on dormant accounts with him was he would come to me
and say, again, the client has a dormant account out there, and I would, basically I
always expect that he would know what he’s supposed to do. I would say, you
know, take care of it, if there’s anything you need me to do let me know.
Carey testified that she was not aware that plaintiff put his own money into any customer’s
account. She did not know of anyone at Huntington having deposited personal funds into a client
account and she did not know of anyone at First Merit having deposited personal funds into a
dormant account.
Plaintiff testified that the rules were not “completely” followed in the private banking
department. He stated that Root-Palinsky had previously instructed him to make deposits into
client accounts with funds she provided. Plaintiff explained that Root-Palinsky gave him personal
funds from her wallet to deposit into a client’s account if it had been newly opened and not funded
properly so as to prevent the account from closing. Plaintiff claimed that this had happened more
than three times and that it had happened at Huntington. However, plaintiff did not consult Root-
Palinsky beforehand with respect to the specific dormant account transactions at issue in this case.
Plaintiff also testified that Brad Fogleman, another Huntington employee in the private bank,
would process transactions for clients without the necessary signatures and then obtain the clients’
signatures after the fact.
Root-Palinsky testified in her deposition that she did not know that plaintiff was going to
deposit his own funds into the dormant accounts until after he had already made the transactions.
Plaintiff had never previously asked her for advice about how to reactivate a dormant account, and
she had never told plaintiff that she had used her own funds to activate a dormant account. She
further testified that she had never used her own personal funds to activate a dormant customer
-3-
account. Root-Palinsky appeared to admit that she had deposited her own money into clients’
accounts as plaintiff claimed, but she testified that she had only done so while working for First
Merit, that she had never done this for dormant accounts, and that she had never done this while
working for Huntington. She did not know of any other Huntington employees who had deposited
personal funds into a customer’s account.
When plaintiff actually made the one-cent deposits at issue, he went to Doerr’s branch and
Doerr processed the transactions. Doerr testified that plaintiff came into the branch at some point
after their previous discussion about dormant accounts. She described the transaction as follows:
He came over one time with a deposit. We did the deposit. Didn’t really have a
conversation about it. It was maybe a few weeks later or again a period of time,
and [plaintiff] came over with a couple of deposits. And when I say a couple I
couldn’t tell you for sure how many. And he had the deposit tickets filled out and
he had the pennies. And I said oh, you’re making the penny deposit. And he said
yes. And I said well, you know, this does have to be directed by the customer and
the customer does have to be present in order for these transactions to occur. And
at one point [plaintiff] said well, I have pennies in my drawer. And I said well, you
better be careful.
And [plaintiff] also stated he had an e-mail from a client that gave him
authorization. And I said well, that isn’t anything we’d be able to do here. I said
but I know you do different things in private banking than we’re allowed to do in
retail. I just caution you to be careful.
Dietz testified in his deposition that plaintiff’s conduct of depositing his own pennies was
a serious breach of the rules and that an employee depositing his or her own personal funds into a
client’s account was a terminable offense because it constituted manipulation of a client’s account.
Denise Williams, who worked in Huntington’s human resources department, testified in her
deposition that plaintiff’s action of depositing his personal funds into the dormant accounts was a
violation of the code of conduct and that depositing personal funds into a client’s account is
typically a terminable offense. Williams was not aware of any other employee who had deposited
personal funds into a customer’s account and not been terminated from employment. Williams
testified that another employee in Ohio, who was a white woman, had used $1.57 of her own
money to pay off the balance of a customer’s loan and that this employee was terminated. With
respect to plaintiff, Williams’ role was to gather the pertinent facts and information as part of the
process for determining whether plaintiff would be discharged. During this process, Williams
spoke to Root-Palinsky and Dietz; she did not interview plaintiff before the termination decision
was made although there was no Huntington policy prohibiting her from doing so.
Plaintiff’s employment was subsequently terminated. Dietz testified that plaintiff’s
employment was terminated solely because of the above incident involving the dormant accounts.
Williams also testified that plaintiff’s employment was terminated because he violated the code of
conduct by depositing his personal funds into the dormant accounts. Dietz additionally testified
that he had never seen any compliance or other internal investigative report regarding how plaintiff
handled the dormant accounts. He further testified that there was no documentation or report
-4-
produced during the investigation period before plaintiff’s employment was terminated. Plaintiff
was replaced by a white woman.
Plaintiff testified in his deposition that he believed his employment was terminated because
of “racism” and because he was a “black male.” He claimed that he “did a transaction that was
instructed by white females” and that “it’s the black male who is looking for another job, when
white females who assisted in the transaction are still employed by Huntington.” Plaintiff testified
that Root-Palinsky, Sova, Carey, and Doerr were the white women who assisted in the transaction.
Plaintiff sued, alleging that his termination was based on racial and gender discrimination
in violation of the ELCRA. Plaintiff also raised a second count alleging generally that he had
complained about being treated differently than other employees and that defendants retaliated
against him for these complaints in violation of the ELCRA.
Defendants moved for summary disposition under MCR 2.116(C)(10) arguing that there
was no genuine issue of material fact that plaintiff’s employment was terminated based on his
violation of the dormant account policy and code of conduct rather than unlawful racial
discrimination or retaliation. Defendants contended that plaintiff had no direct evidence of
discrimination and that plaintiff could not satisfy the first or third steps of the McDonnell Douglas3
framework.
According to defendants, plaintiff could not establish a prima facie case of discrimination
under McDonnell Douglas because he could not show that he was qualified for the position.
Defendants contended that the record evidence reflected that plaintiff’s work performance was
deficient leading up to his termination that he was therefore unqualified because he was not
meeting Huntington’s employee expectations. Further, defendants maintained that plaintiff’s
violation of the code of conduct provided a legitimate, nondiscriminatory reason to terminate his
employment even if plaintiff had established a prima facie case of discrimination. Moving to the
third step under McDonnell Douglas, defendants argued that plaintiff could not demonstrate that
this reason was a pretext for unlawful discrimination because he had no evidence of any similarly
situated employees being treated differently for depositing personal funds into a client’s account.
With respect to the retaliation claim, defendants argued that plaintiff’s admissions in his
depositions established that there was no evidence that he had engaged in protected activity that
was causally related to his discharge.
Plaintiff responded, primarily arguing that Root-Palinsky, Sova, and Doerr were involved
in the incident to various degrees, were all white women, and were not disciplined. Plaintiff also
appeared to argue that the evidence that no investigatory reports were used as part of the decision-
making process leading up to termination, as well as the severity of the punishment for such a
minor error issue showed pretext, and that Dietz told plaintiff that previous mistakes had not been
punished as harshly. Plaintiff additionally contended that defendants had waived any challenge to
his gender discrimination claim by failing to make any argument directed at this claim in their
summary disposition motion and accompanying brief.
3
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
-5-
The trial court held two hearings on the motion, during which the parties made oral
arguments consistent with their written filings. Plaintiff withdrew the retaliation claim, and the
trial court dismissed that count. The trial court also stated on the record that the gender
discrimination claim was dismissed because “I don’t see anywhere in the record that they’ve got
anything on gender.”
Following the second hearing, the trial court issued a written opinion and order granting
summary disposition in favor of defendants on plaintiff’s racial discrimination claim. The trial
court concluded that plaintiff could not prove a prima facie case of discrimination because the
evidence gave “rise to a finding that [plaintiff] was not performing at a satisfactory level of
Huntington National’s expectations, and as such he was not qualified for the position.” The trial
court ruled that defendant was entitled to summary disposition on this basis. Despite reaching that
conclusion, the trial court also determined that plaintiff had not presented evidence to rebut
defendants’ legitimate business reason for firing plaintiff. Thus, for that reason as well, the trial
court granted defendants’ motion for summary disposition. This appeal followed.
II. PLAINTIFF’S DISCRIMINATION CLAIMS
Plaintiff argues the trial court improperly granted summary disposition in favor of
defendants regarding plaintiff’s discrimination claim.
A. STANDARD OF REVIEW
This Court “reviews de novo decisions on motions for summary disposition brought under
MCR 2.116(C)(10).” Pace v Edel-Harrelson, 499 Mich 1, 5; 878 NW2d 784 (2016). A motion
for summary disposition under MCR 2.116(C)(10) “tests the factual sufficiency of the complaint.”
Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012).
“In evaluating a motion for summary disposition brought under this subsection, a trial court
considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” Maiden
v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper where
there is no “genuine issue regarding any material fact.” Id. “A genuine issue of material fact exists
when reasonable minds could differ on an issue after viewing the record in the light most favorable
to the nonmoving party.” Auto-Owners Ins Co v Campbell-Durocher Group Painting & Gen
Contracting, LLC, 322 Mich App 218, 224; 911 NW2d 493 (2017) (quotation marks and citation
omitted). “The trial court is not permitted to assess credibility, weigh the evidence, or resolve
factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for
summary disposition under MCR 2.116(C)(10).” Hastings Mut Ins Co v Grange Ins Co of Mich,
319 Mich App 579, 583-584; 903 NW2d 400 (2017) (quotation marks and citation omitted).
B. LAW AND ANALYSIS
In Michigan, the “ELCRA prohibits employers from discriminating on the basis of race.”
White v Dep’t of Transportation, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No.
349407); slip op at 3; see also MCL 37.2202(1)(a). The ELCRA also prohibits discrimination on
the basis of sex. MCL 37.2202(1)(a). The relevant statutory provision, MCL 37.2202(1)(a),
provides as follows:
-6-
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate
against an individual with respect to employment, compensation, or a term,
condition, or privilege of employment, because of religion, race, color, national
origin, age, sex, height, weight, or marital status. [Emphasis added.]
As an initial matter, it is evident that plaintiff has presented his case as a claim that he was
discriminated against on the basis of both his race and gender. He is a black man and compares
his treatment with that of other employees who are white women. Both race and sex protected
classes under the ELCRA, and they need not be separated into distinct claims. See Wilcoxon v
Minnesota Min & Mfg Co, 235 Mich App 347, 367, 368-369; 597 NW2d 250 (1999) (treating the
plaintiff’s racial and gender discrimination claims together as a claim of discrimination on both
grounds).
In this case, by comparing his treatment to that of white women employees, plaintiff’s
combined racial and gender discrimination claims relied on the same evidence. Thus, the trial
court clearly erred by dismissing plaintiff’s gender discrimination claims on the ground that there
was no evidence of this claim, while nonetheless considering the record evidence for purposes of
the racial discrimination claim. Pace, 499 Mich at 5. Instead, the proper inquiry is whether the
record evidence created a genuine issue of material fact regarding plaintiff’s asserted racial and
gender discrimination claim. We thus address the evidence while considering both of these claims
together. Wilcoxon, 235 Mich App at 367, 368-369.
“The ultimate question in an employment discrimination case is whether the plaintiff was
the victim of intentional discrimination.” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586,
606; 886 NW2d 135 (2016). “In some discrimination cases, the plaintiff is able to produce direct
evidence of racial [or gender] bias. In such cases, the plaintiff can go forward and prove unlawful
discrimination in the same manner as a plaintiff would prove any other civil case.” Hazle v Ford
Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). Plaintiff does not appear on appeal to rely
on direct evidence to support his argument that the trial court erred by granting summary
disposition in defendants’ favor.4 Thus, in cases such as this one, where “there is no direct
evidence of impermissible bias, plaintiff’s claim of intentional discrimination must proceed under
the McDonnell Douglas burden-shifting framework.” White, ___ Mich App at ___; slip op at 3
(quotation marks and citations omitted).
In Hazle, 464 Mich at 463, our Supreme Court stated:
Under McDonnell Douglas, a plaintiff must first offer a “prima facie case”
of discrimination. Here, plaintiff was required to present evidence that (1) she
4
Direct evidence is “evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions.” Hazle, 464 Mich at 462
(quotation marks and citations omitted). The focus of plaintiff’s appellate arguments is clearly
directed at the trial court’s application of the McDonnell Douglas framework. Our analysis will
therefore be focused accordingly.
-7-
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.
A rebuttable presumption of discrimination arises if a plaintiff sufficiently establishes a
prima facie case. Id. at 463-464. The defendant may rebut this presumption by articulating “a
legitimate, nondiscriminatory reason for its employment decision.” Id. at 464. If the employer
articulates a legitimate, nondiscriminatory reason and supports it with evidence, the presumption
created by the McDonnell Douglas prima facie case drops away.” Id. at 464-465. The burden
then “shifts back to the plaintiff to show that the defendant’s reasons were not the true reasons, but
a mere pretext for discrimination.” White, ___ Mich App at ___; slip op at 4 (quotation marks and
citation omitted).
Our Supreme Court explained in Hazle, 464 Mich at 465-466:
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.” . . . [A] plaintiff “must not merely raise a triable issue that
the employer’s proffered reason was pretextual, but that it was a pretext for
[unlawful] discrimination.”
The inquiry at this final stage of the McDonnell Douglas framework is
exactly the same as the ultimate factual inquiry made by the jury: whether
consideration of a protected characteristic was a motivating factor, namely, whether
it made a difference in the contested employment decision. The only difference is
that, for purposes of a motion for summary disposition or directed verdict, a
plaintiff need only create a question of material fact upon which reasonable minds
could differ regarding whether discrimination was a motivating factor in the
employer’s decision. [Citations omitted; second alteration in original.]
1. PRIMA FACIE CASE
In this case, there is no dispute that plaintiff is a black man, that he was terminated from
his employment, and that he was replaced by a white woman. The parties only dispute whether
plaintiff was qualified for the position such that he could satisfy the third requirement of
establishing a prima facie case of discrimination. See Hazle, 464 Mich at 463. Defendants argue
that plaintiff was not qualified, and they point to the record evidence illustrating plaintiff’s various
work-performance issues during the time preceding his one-cent deposits. However, both
defendants and the trial court ignore the evidence that plaintiff received an overall rating of “fully
meets” expectations in his most recent performance review. Defendants, and the trial court, instead
focused only on the evidence that various supervisors and coworkers had complaints about the
quality and dependability of plaintiff’s work.
“An employee is qualified if he was performing his job at a level that met the employer’s
legitimate expectations.” Town v Mich Bell Tel Co, 455 Mich 688, 699; 568 NW2d 64 (1997)
-8-
(Opinion by BRICKLEY, J.). “Being qualified for a job, for purposes of establishing a prima facie
case of discrimination, requires only minimal qualification.” Wilcoxon v Minnesota Mining & Mfg
Co, 235 Mich App 347, 369; 597 NW2d 250 (1999).
Here, there was evidence that plaintiff fully met his employer’s expectations despite there
also being evidence that his work performance was deficient in certain areas. The trial court
appears to have made a finding of fact based on its view of the relative strength of the evidence.
This of course, again, was error as a trial court does not resolve conflicts in the evidence or weigh
the evidence on a summary disposition motion under MCR 2.116(C)(10). Hastings Mut Ins, 319
Mich App at 583-584. Applying the proper evidentiary standard to the record facts by viewing
the evidence in the light most favorable to plaintiff as the nonmoving party, Maiden, 461 Mich at
120, plaintiff presented evidence that he was at least minimally qualified for the position.
Consequently, plaintiff satisfied the requirement of establishing a prima facie case. Hazle, 464
Mich at 463; Town, 455 Mich at 699 (Opinion by BRICKLEY, J.); Wilcoxon, 235 Mich App at 369.
In reaching this conclusion, we note that “[t]he purpose of the prima facie case is to force the
defendant to provide a nondiscriminatory explanation for the adverse employment action.” Town,
455 Mich at 699 (Opinion by BRICKLEY, J.).
The trial court thus erred by ruling as a matter of law that plaintiff had failed to establish a
prima facie case under McDonnell Douglas framework. Because plaintiff demonstrated a prima
facie case, the burden shifted to defendant to provide evidence of a legitimate, nondiscriminatory
reason for plaintiff’s termination. Hazle, 464 Mich at 464-465.
2. LEGITIMATE NONDISCRIMINATORY REASON
In articulating a legitimate, nondiscriminatory reason for plaintiff’s discharge, defendants
rely on the testimony of Dietz and Williams indicating that plaintiff’s employment was terminated
based solely on his deposits of his personal funds into the dormant accounts that constituted a
violation of the code of conduct. Both Dietz and Williams testified that plaintiff’s conduct was a
serious and terminable offense. Clearly, this reason relates only to plaintiff’s actions and has
nothing to do with his race or sex. Thus, defendants articulated a legitimate, nondiscriminatory
reason that was supported by the evidence. Id. at 464-465. Resolution of this appeal thus turns on
whether plaintiff produced evidence to create a genuine issue of material fact that defendants’
asserted reason was a pretext for unlawful discrimination. White, ___ Mich App at ___; slip op at
4 (quotation marks and citation omitted).
3. PRETEXT
Plaintiff essentially argues that defendants’ articulated reason for discharging him was a
pretext for unlawful discrimination because the rules and policies at issue were selectively
enforced. Plaintiff argues that there is record evidence that he was punished more severely than
others for the same conduct and, particularly, that there was record evidence showing that other
white female employees who had deposited personal funds into client accounts or who were
involved in his transaction that is at issue in this case were not disciplined at all even though he
was terminated from his employment.
-9-
As our Supreme Court has noted, “[t]here are multiple ways to prove that a plaintiff was
the victim of unlawful discrimination.” Hecht, 499 Mich at 607. “A plaintiff can establish that a
defendant’s articulated legitimate, nondiscriminatory reasons are pretexts (1) by showing the
reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the
actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly
insufficient to justify the decision. Major v Village of Newberry, 316 Mich App 527, 542; 892
NW2d 402 (2016) (quotation marks and citation omitted). Additionally,
A plaintiff can attempt to prove discrimination by showing that the plaintiff was
treated unequally to a similarly situated employee who did not have the protected
characteristic. An employer’s differing treatment of employees who were similar
to the plaintiff in all relevant respects, except for their race [or gender], can give
rise to an inference of unlawful discrimination. In order for this type of “similarly
situated” evidence alone to give rise to such an inference, however, our cases have
held that the “comparable” employees must be “nearly identical” to the plaintiff in
all relevant respects. [Hecht, 499 Mich at 608 (citations omitted; emphasis added).]
In this case, defendants contend that the only sufficiently comparable employee to plaintiff
is a Ohio woman who was also discharged for the similar action of using $1.57 of her own personal
funds to pay the remaining balance on a customer’s loan. We concur with defendants that the Ohio
discharge is evidence that plaintiff was not treated differently than a similarly situated employee
who was not the same race or gender as plaintiff, and such evidence would tend to undermine
plaintiff’s argument that he was subjected to unlawful discrimination. Id.
However, plaintiff also argues that there are other similarly situated employees to be
considered as comparators. Plaintiff testified that there was a culture in the private banking
department that tolerated deviations from the rules while emphasizing or prioritizing the focus on
pleasing the customers. According to plaintiff, there were instances where Root-Palinsky had
given him a dollar from her wallet to deposit in client accounts that had not been properly funded
so as to prevent those accounts from closing. Plaintiff testified that this occurred on at least three
occasions while he and Root-Palinsky were employed at Huntington. Plaintiff stated further that
Root-Palinsky “had given [him] instructions before to do transactions into client accounts and had
given [him] funds to do deposits into accounts.” Root-Palinsky seemed to admit in her deposition
that she had done this while at First Merit, but claimed she had never done so with dormant
accounts or at Huntington.
Williams testified that when she spoke to Root-Palinsky before plaintiff was terminated
about plaintiff’s handling of the dormant accounts, Root-Palinsky mentioned this procedure that
had been used at First Merit. Dietz, who supervised Root-Palinsky, testified that he had never
investigated or requested an investigation whether Root-Palinsky had ever conducted improper
transactions of depositing her own personal funds into dormant accounts. Williams testified that
she never investigated Root-Palinsky.
Defendants argue that Root-Palinsky is not similarly situated to plaintiff because she did
not deposit her own funds into client accounts, she was not directly involved in the specific
transactions made by plaintiff that are at issue in this case, and Huntington was unaware of her
alleged conduct. First, defendants ignore the conflicting evidence that Root-Palinsky actually did
-10-
deposit personal funds into client accounts while employed by Huntington and that Williams
learned during the investigation that plaintiff believed his actions were the same as actions Root-
Palinsky had taken in the past with respect to the deposits. It is improper for a court to resolve
these factual conflicts on summary disposition. Hastings Mut In, 319 Mich App at 583-584.
Moreover, it is evident from the testimony of Diezt and Williams, as well as from Huntington’s
reliance on the treatment of the Ohio employee to justify plaintiff’s termination, that it is the act
of depositing an employee’s personal funds into any client account that is considered a serious
offense, not just such a deposit in a dormant account.
Second, the “plaintiff need not demonstrate an exact correlation with the employee
receiving more favorable treatment in order for the two to be considered ‘similarly-situated;’
rather . . . the plaintiff and the employee with whom the plaintiff seeks to compare himself or
herself must be similar in ‘all of the relevant aspects.’ ” Ercegovich v Goodyear Tire & Rubber
Co, 154 F3d 344, 352 (CA 6, 1998) (citation omitted); accord Hecht, 499 Mich at 608 (“[O]ur
cases have held that the “comparable” employees must be “nearly identical” to the plaintiff in all
relevant respects.”) (citation omitted). “We are not bound by federal precedent interpreting
analogous questions under Title VII of the 1964 Civil Rights Act, but that caselaw is generally
considered persuasive.” White, ___ Mich App at ___; slip op at 6. Courts “should make an
independent determination as to the relevancy of a particular aspect of the plaintiff’s employment
status and that of the non-protected employee.” Ercegovich, 154 F3d at 352.
Here, both plaintiff and Root-Palinsky worked in the private banking department and were
supervised by Dietz. There was evidence that Root-Palinsky, like plaintiff, had deposited personal
funds into client accounts. The record evidence reflects that Huntington considered an employee’s
deposit of personal funds into a client account of any kind to be a terminable offense: Dietz testified
that this was the case because it constituted manipulation of a client’s account, and Huntington
relied on the termination of an employee in Ohio for using personal funds to pay off a customer’s
loan to justify plaintiff’s discharge in this case. Accordingly, even if Root-Palinsky did not deposit
personal funds into a dormant account, her alleged actions are still sufficiently similar to plaintiff’s
conduct. We therefore conclude that plaintiff and Root-Palinsky were nearly identical in all
relevant respects for purposes of comparison in this context under the facts of this case. Hecht,
499 Mich at 608; Ercegovich, 154 F3d at 352.
Additionally, plaintiff testified that Sova, Carey, and Doerr were involved to various
degrees in the specific dormant account transactions at issue. Plaintiff claimed that Sova and Carey
had contacted some of the clients involved to obtain their authorization to make the one-cent
deposits. Both Sova and Carey were employed in the private bank department. Plaintiff claimed
that Sova directed him to complete the transactions at issue to remove the dormant status for her
client’s account, although Sova denied ever giving such an instruction and disavowed having any
prior knowledge that plaintiff planned to deposit his own funds into a client’s account. Plaintiff
further testified that he told Carey of his plan for removing the dormant status of these accounts.
Carey testified, however, that she was not made aware that plaintiff put his own money into any
customer’s account and that she trusted plaintiff to know how to proceed on the “banking side”
since she only worked with trusts. At the summary disposition stage, we must view this evidence
in the light most favorable to plaintiff and may not resolve the conflicting evidence. Maiden, 461
Mich at 120; Hastings Mut Ins, 319 Mich App at 583-584.
-11-
Plaintiff also testified that Doerr had told him that this procedure was one she used. Doerr
disputed this, but we do not resolve or weigh conflicting evidence on summary disposition.
Hastings Mut Ins, 319 Mich App at 583-584. Doerr was the employee who actually processed
plaintiff’s deposits. She told him that the customer’s needed to be present, thus demonstrating her
awareness of proper protocol, and nonetheless processed the deposits despite that the customers
were not present.
While defendants are correct that plaintiff was the person who actually deposited his own
personal funds into clients’ accounts, we conclude that it is highly relevant under the particular
circumstances of this case that Doerr, Carey, and Sova were allegedly so closely connected to the
completion of the transaction and that there is evidence supporting that they helped facilitate the
transaction in various ways, including processing the deposits (Doerr) and obtaining authorization
from the clients for the transactions (Carey and Sova). Doerr, Carey, and Sova were thus similarly
situated to plaintiff for purposes of comparison in this context under the facts of this case. Hecht,
499 Mich at 608; Ercegovich, 154 F3d at 352.
Turning to a comparison of plaintiff’s treatment with that of other similarly situated
employees, Williams testified that she was aware before plaintiff was discharged that he claimed
to have been coached by other Huntington employees regarding the action he took. Yet, she did
not speak to him as part of her fact-gathering investigation to obtain more information about these
claims. Further, the testimony of Doerr, Carey, and Sova, indicates that none of them were
questioned by Huntington’s human resources or compliance departments. Although Williams
discussed plaintiff’s conduct specifically with Root-Palinsky, Root-Palinsky’s similar prior actions
were never questioned. Plaintiff testified that on the day his employment was terminated, Dietz
told him “that this has happened before but never punished to this degree.” Dietz testified that he
never made such a statement. Dietz testified that the clients affected by plaintiff’s transactions
were never contacted or notified about the transactions.
Viewing the evidence in a light most favorable to plaintiff as the nonmoving party, a
reasonable jury could conclude Huntington failed to contact other employees closely connected
with the underlying factual circumstances of the actions for which plaintiff was discharged, and
failed to question or investigate allegations of similar conduct by another employee, and as such,
demonstrated a lack of diligence and completeness in the investigation leading to plaintiff’s
termination. Yet, defendants maintain strongly, that the conduct at issue is considered by
Huntington to be a serious offense. Given that other employees were white women and defendant
was a black man, taking the evidence in the light most favorable to the nonmoving party, a
reasonable jury could conclude that a more thorough investigation was warranted for such a serious
allegation and that such an incomplete investigation demonstrated that defendants’ articulated
reason for plaintiff’s discharge was a pretext for unlawful discrimination. A reasonable jury could
further conclude that such discrimination was a motivating factor in termination plaintiff’s
employment. Major, 316 Mich App at 542; Hecht, 499 Mich at 607-608.
We acknowledge that there was also evidence that a white female employee in Ohio was
discharged for an action similar to plaintiff’s actions in the instant case. However, when there are
multiple similarly situated employees who were treated differently than the plaintiff and did not
share the plaintiff’s protected classification, an employer “cannot defeat the inference of a
discriminatory motive with one comparator who was treated similarly.” Ondricko v MGM Grand
-12-
Detroit, LLC, 689 F3d 642, 652 (CA 6, 2012). The genuine issues of material fact discussed above
constitutes evidence from which a jury could reasonable infer that unlawful racial and gender
discrimination were motivating factors in Huntington’s decision to terminate plaintiff’s
employment. See id. (“Based on these disputed issues of material fact, Ondricko has presented
evidence from which a reasonable jury could logically infer that gender was a motivating factor in
MGM’s decision to terminate her employment.”).
Because plaintiff demonstrated that the evidence in this 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 (quotation marks and citation omitted), the trial court erred by granting summary
disposition in favor of defendants. We therefore reverse.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Plaintiff having prevailed is entitled to costs. MCR 7.219(A).
/s/ Thomas C. Cameron
/s/ Stephen L. Borrello
/s/ James Robert Redford
-13-