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
MARY WILLIAMS, UNPUBLISHED
October 28, 2021
Plaintiff-Appellee,
v No. 355203
St. Clair Circuit Court
STATE OF MICHIGAN DEPARTMENT OF LC No. 17-002595-CD
HEALTH AND HUMAN SERVICES,
Defendant-Appellant
and
KRISTIN ANDERSON,
Defendant.
Before: SHAPIRO, P.J., and BORRELLO and O’BRIEN, JJ.
PER CURIAM.
Defendant Department of Health and Human Services appeals by leave granted1 the trial
court order denying DHHS’s motion for summary disposition under MCR 2.116(C)(10) in this
action alleging employment discrimination and retaliation. We affirm the denial of summary
disposition on the discrimination claim, but reverse the denial of summary disposition on the
retaliation claim.
I. BACKGROUND
Plaintiff worked for DHHS for 27 years, from 1989 to 2016, holding several different
positions during her career. In 2016, plaintiff was working in the St. Clair County DHHS office
1
Williams v Mich Dep’t of Health & Human Servs, unpublished order of the Court of Appeals,
entered November 18, 2020 (Docket No. 355203).
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as a foster care specialist. In this role she appeared at a permanency planning hearing. Plaintiff
had been asked to complete an “ICPC request”2 relating to a child potentially being placed with
her father out of the state, and had also, more recently, been asked to look into a potential
alternative plan. Plaintiff had worked on the ICPC request but not yet finished it. After the court
clarified that the alternative plan was not feasible, the court inquired if the ICPC request was
complete:
The Court: Has it been done?
Ms. Williams: It hasn’t been done yet because—
The Court: You haven’t made the request yet?
Ms. Williams: No, we have not.
The Court: Well, I met with you and your supervisor and told you that that
had to be done.
Ms. Williams: I was following the directions of my supervisor.
The Court: Instead of following the directions of the Court?
Ms. Williams: Sorry, yes, you’re right.
The Court: Get it done.
The court, Judge Elwood L. Brown, met with plaintiff’s supervisor, Kristin Anderson, and
Program Manager Deborah Walbecq, regarding this incident. The court eventually held a show-
cause hearing regarding whether plaintiff had committed criminal contempt of court by falsely
implying to the court that Anderson had directed plaintiff not to work on the ICPC request. The
court found plaintiff guilty of criminal contempt of court. This Court eventually affirmed
plaintiff’s conviction on appeal, holding that, while plaintiff’s words “could be open to multiple
interpretations,” there was sufficient evidence to support her conviction.3
After plaintiff’s contempt of court conviction, Judge Brown sent an e-mail to the DHHS
St. Clair County Director, William Weston:
Bill,
It is with regret that I tell you that having found Mary Williams in contempt
of court for not being truthful in response to questions that I asked her directly
during a review hearing regarding [a minor child] that I can no longer trust that she
2
ICPC refers to the Interstate Compact on the Placement of Children. See MCL 3.711 et seq.
3
In re Williams, unpublished per curiam opinion of the Court of Appeals, issued December 28,
2017 (Docket No. 334460), pp 4-5.
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will be forthright and truthful in the future. I ask that she not be assigned to present
reports in cases before me.
Judge Brown
Soon thereafter, Walbecq conducted an investigation of the incident and recommended plaintiff
be terminated because her conduct constituted “neglect of duty,” “inappropriate behavior,” and
“conduct unbecoming a state employee.” Plaintiff was terminated effective October 6, 2016.
Plaintiff filed the instant action alleging, among other things, 4 that her termination
constituted racial discrimination and retaliation in violation of the Civil Rights Act (CRA), MCL
37.2010 et seq. Plaintiff is African-American and previously filed Equal Employment Opportunity
Commission (EEOC) charges against DHHS alleging discrimination. DHHS’s initial motion for
summary disposition under MCR 2.116(C)(7) and (C)(8) was denied, and this Court affirmed with
regard to plaintiff’s CRA claims.5
After the close of discovery, DHHS moved for summary disposition, arguing that plaintiff
failed to establish a prima facie case of discrimination or retaliation, and that she has not created a
fact question that DHHS’s reason for firing plaintiff was pretextual.
In response, plaintiff argued, in part, that the pervasive racism in the St. Clair County
DHHS office supported an inference of discrimination. Plaintiff relied on her deposition testified
that her coworkers would make toy blackbirds crow the “n” word when they walked by her; that
she was called offensive nicknames, including “Trouble” and “Sunshine;” that she was told
repeatedly to smile so she would not seem like an “angry black woman”; and that coworkers posted
offensive cartoons of monkeys. Plaintiff also asserted that Walbecq, who completed the DHHS
investigation leading to plaintiff’s discharge, was a perpetrator of racist behavior. Plaintiff testified
that she reported an offensive comment made by Walbecq about African-American homes
smelling like fried chicken, after which Anderson began spraying air freshener whenever plaintiff
visited Anderson’s office. Plaintiff also provided the deposition transcript of Cheryl Howell, who
is African-American and worked for DHHS in the St. Clair County Office in various roles from
2002 through about 2013. Howell confirmed that she experienced racism at the St. Clair office
and testified that Walbecq had sent her a picture of a monkey “walking like a regular person and
talking like a rapper.”6
4
All of plaintiff’s other claims have been dismissed or are no longer at issue. Anderson was
dismissed from this action because she was not served with process.
5
Williams v Dep’t of Health & Human Servs, unpublished per curiam opinion of the Court of
Appeals, issued September 17, 2019 (Docket No. 343261), pp 4-5.
6
Howell showed the e-mail to plaintiff, who described the monkey as being dressed with a gold
chain around his neck, a gold tooth and a pimp hat.
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After hearing oral argument, the trial court denied DHHS’s motion for summary
disposition, holding that “[a] genuine issue of material fact has been presented.”
II. ANALYSIS
A. COLLATERAL ESTOPPEL
As an initial matter, DHHS argues that collateral estoppel bars plaintiff from arguing that
she did not make a false statement to Judge Brown and that there was no factual basis for her
criminal contempt conviction.7
“The doctrine of collateral estoppel precludes relitigation of an issue in a subsequent,
different cause of action between the same parties when the prior proceeding culminated in a valid
final judgment and the issue was actually and necessarily determined in that prior proceeding.”
King v Munro, 329 Mich App 594, 599; 944 NW2d 198 (2019) (quotation marks and citation
omitted). Three elements are generally required for the application of collateral estoppel: “(1) a
question of fact essential to the judgment must have been actually litigated and determined by a
valid and final judgment; (2) the same parties must have had a full [and fair] opportunity to litigate
the issue; and (3) there must be mutuality of estoppel.”8 Monat v State Farm Ins Co, 469 Mich
679, 682-684; 677 NW2d 843 (2004) (quotation marks and citation omitted). “To be necessarily
determined in the first action, the issue must have been essential to the resulting judgment[.]” Bd
of Co Rd Comm’rs for Co of Eaton v Schultz, 205 Mich App 371, 377; 521 NW2d 847 (1994).
To begin, the question of whether plaintiff made a false statement to Judge Brown was
actually litigated in the criminal contempt proceedings. The show-cause order stated that plaintiff
“was asked a direct question by the court and it appears . . . that it was intentionally false.” After
the hearing, Judge Brown found beyond a reasonable doubt that plaintiff misrepresented “the status
of the Interstate Compact when she indicated that it had not been done because her supervisor told
her not to do it.” Thus, whether plaintiff made a false statement to the court was the crux of the
criminal contempt matter, and Judge Brown’s ruling was affirmed on appeal. In direct conflict
with this prior adjudication, plaintiff maintains in this case that she did not make a false statement
to Judge Brown. Because this specific issue was actually litigated in the prior action, the first
element of collateral estoppel is satisfied.
Plaintiff does not dispute that there is sufficient privity between the special prosecutor who
presented proofs at the show-cause hearing on behalf of the State of Michigan and DHHS such
that the “same parties’” requirement is met in this case. See People v Gates, 434 Mich 146, 156;
452 NW2d 627 (1990) (holding that “both the department and the prosecutor’s office are creatures
of the state and thus should be considered to be the same party” for purposes of collateral estoppel).
7
We review de novo the application of legal doctrines such as collateral estoppel. See Estes v
Titus, 481 Mich 573, 578; 751 NW2d 493 (2008).
8
The third element need not be considered in this case because, when “collateral estoppel is being
asserted defensively against a party who has already had a full and fair opportunity to litigate the
issue, mutuality is not required.” Monat, 469 Mich at 695.
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We further conclude that plaintiff had a full and fair opportunity to litigate this issue in the criminal
contempt proceedings. Plaintiff obtained appellate review of the criminal contempt judgment; the
issue was one of fact, not law; there are no differences in the quality or extensiveness of the
proceedings that would warrant relitigation; there was a higher burden of persuasion in the criminal
contempt case; and plaintiff has not demonstrated a clear and convincing need for a new
determination of the issue. See Monat, 469 Mich at 683 n 2 (outlining the factors to consider when
determining whether “a party has had a ‘full and fair’ opportunity to litigate an issue[.]”).
For these reasons, we hold that plaintiff is collaterally estopped from arguing that she did
not commit contempt of court.
B. RACE DISCRIMINATION
Next, DHHS argues that plaintiff has not made out a prima facie case of discrimination and
that she has not created a fact question that DHHS’s reason for firing plaintiff was pretextual.9
The CRA precludes employers from discriminating on the basis of race:
(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. [MCL 37.2202.]
Plaintiff has not produced direct evidence that discrimination motivated her firing, and so
she must rely on the McDonnell Douglas10 framework. Hazle v Ford Motor Co, 464 Mich 456,
463; 628 NW2d 515 (2001). “To establish a prima facie case of discrimination, plaintiff must
prove by a preponderance of the evidence that (1) she was a member of the protected class; (2) she
suffered an adverse employment action, in this case . . . discharge; (3) she was qualified for the
position; but (4) she was discharged under circumstances that give rise to an inference of unlawful
9
We review de novo a grant or denial of summary disposition. State Farm Fire & Cas Co v Corby
Energy Servs, Inc, 271 Mich App 480, 482; 722 NW2d 906 (2006). “In reviewing a motion under
MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant
documentary evidence of record in the light most favorable to the nonmoving party to determine
whether any genuine issue of material fact exists to warrant a trial.” Walsh v Taylor, 263 Mich
App 618, 621; 689 NW2d 506 (2004). “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 NW2d 468
(2003).
10
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
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discrimination.”11 Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906
(1998).
1. PRIMA FACIE CASE—QUALIFICATION REQUIREMENT
“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)
(opinion by BRICKLEY, J.). This Court has described the qualification prong of a prima facie case
as requiring “only minimal qualification.” Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich
App 347, 369; 597 NW2d 250 (1999).
There is no dispute that, prior to her criminal contempt conviction, plaintiff was qualified
for her position. Indeed, Anderson testified that plaintiff was “meeting all of her stats.” Yet
DHHS contends that, following the contempt conviction, plaintiff was no longer qualified for her
position considering Judge Brown’s request that she not appear before him.
This argument raises the question of whether the employer’s legitimate, nondiscriminatory
reason for the termination should be considered in determining whether the plaintiff satisfied the
“qualified” prong of the prima facie case. While we are not aware of any Michigan caselaw
addressing this issue, the Sixth Circuit Court of Appeals has held that “when assessing whether a
plaintiff has met her employer’s legitimate expectations at the prima facie stage of a termination
case, a court must examine plaintiff’s evidence independent of the nondiscriminatory reason
‘produced’ by the defense as its reason for terminating plaintiff.” Cline v Catholic Diocese of
Toledo, 206 F3d 651, 660-661 (CA 6, 2000).12 We find this approach persuasive. As the Sixth
Circuit reasoned, consideration of the employer’s nondiscriminatory reason at the outset
“improperly import[s] the later stages of the McDonnell Douglas inquiry into the initial prima facie
stage.” Id. at 660.
Further, it is unclear that DHHS’s proffered reason actually rendered plaintiff unqualified
for her job. While testifying in court was part of plaintiff’s job duties, DHHS has not argued that
Judge Brown had actual authority to forbid plaintiff from appearing in his courtroom in the future.
Moreover, Judge Brown’s e-mail was not a court order, but a request. For all the record shows,
then, plaintiff could still have appeared in front of Judge Brown, albeit to his possible displeasure.
Moreover, plaintiff testified that there was another judge and a magistrate who also heard foster
care cases in St. Clair County, and that plaintiff appeared more often before the magistrate than
before Judge Brown. Plaintiff also testified that she could have performed her job in “any [other]
11
“[T]he elements of the McDonnell Douglas prima facie case should be tailored to fit the factual
situation at hand.” Hazle, 464 Mich at 463 n 6. Considering that Lytle, 458 Mich 153, was also a
termination case, we will follow the formulation of the prima facie case stated there.
12
“We are not bound by federal precedent interpreting analogous questions under Title VII of the
federal Civil Rights Act, but that caselaw is generally considered persuasive.” White v Dep’t of
Transp, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 349407); slip op at 6.
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county.” Anderson testified that she also “felt that Ms. Williams could still do the job.” And
plaintiff was only required to show that she was minimally qualified.
For these reasons, we conclude that plaintiff satisfied the “qualified” prong.
B. PRIMA FACIE CASE—INFERENCE OF DISCRIMINATION
Next, DHHS argues that plaintiff has not presented evidence giving rise to an inference of
unlawful discrimination.
There are “multiple ways of proving the ultimate question of discrimination in a
circumstantial evidence case.” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 607-608;
886 NW2d 135 (2016). Here, plaintiff relies on her testimony that white employees at the St.
Clair County DHHS office were disciplined less harshly than African-Americans as well as the
racist behavior displayed by some of the employees and managers at that office.
DHHS argues that evidence regarding the discipline of white employees has no probative
value because those employees were not similarly situated to plaintiff. “An employer’s differing
treatment of employees who were similar to the plaintiff in all relevant respects, except for their
race, can give rise to an inference of unlawful discrimination.” Hecht, 499 Mich at 608. However,
for this type of evidence to alone give rise to such an inference, “the ‘comparable’ employees must
be ‘nearly identical’ to the plaintiff in all relevant respects.” Id. (citation omitted). In terms of the
seriousness of the offenses committed by the other employees, both parties cite caselaw holding
that the infractions must be of “comparable seriousness.” See e.g., Wright v Murray Guard, Inc,
455 F3d 702, 710 (CA 6, 2006) (emphasis and citation omitted).
Plaintiff testified about several white employees who violated work rules and were not
fired. These included two employees who had daycare fraud “proven against them,” and were
simply required to “pay the money back.” In contrast, plaintiff was given a five-day suspension in
2014—reduced from termination after arbitration—for sharing her PIN in a manner that allowed
a caregiver to improperly obtain Department Child Care benefits. And plaintiff can use evidence
of older conduct as “background evidence,” even if that conduct is no longer actionable. Campbell
v Human Servs Dep’t, 286 Mich App 230, 238; 780 NW2d 586 (2009) (holding “acts occurring
outside the limitations period, although not actionable, may, in appropriate cases, be used as
background evidence to establish a pattern of discrimination”). Considering the substantial
similarities and the drastically different responses by DHHS, these prior incidents have probative
value.
Plaintiff also testified that one employee who showed up to work intoxicated many times
was simply given rides home, and another who was caught hunting or fishing without a license
was moved to another job. Plaintiff did not testify what positions these coworkers held, and gave
only wide date ranges, if any. Given the dissimilarities and the vague information provided by
plaintiff, we agree with DHHS that these incidents have little probative value.
However, plaintiff also relies on DHHS’s decision to merely demote Anderson after she
improperly disclosed confidential information about the child protection case underlying
plaintiff’s contempt of court conviction that was then made public. This incident is of comparable
severity as Anderson agreed that a breach of confidentially could result in termination. And it is
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particularly compelling considering that Anderson’s misconduct related to the same child
protection case that resulted in plaintiff’s termination.
Assuming plaintiff’s “similarly situated employee” evidence does not create an inference
of discrimination by itself, other circumstantial evidence may be considered when evaluating “the
ultimate question of discrimination.” Hecht, 499 Mich at 609 (holding that plaintiff is not limited
to the “similarly situated” method to show circumstances suggesting race discrimination).
As noted, plaintiff offered evidence suggesting there was a significant discriminatory
atmosphere toward African-American workers at the St. Clair County DHHS office. Background
evidence of racial discrimination, harassment, or slurs can support an inference of intentional
discrimination in at least some circumstances. The United States Supreme Court has stated that a
plaintiff can establish pretext in an intentional discrimination case by presenting “evidence of
respondent’s past treatment of petitioner, including the instances of the racial harassment which
she alleges . . . .” Patterson v McLean Credit Union, 491 US 164, 188; 109 S Ct 2363; 105 L Ed
2d 132 (1989), quoted in Hazle, 464 Mich at 469. In that case, the racial harassment constituted
staring, disparate assignment of tasks, disparate criticism, and a discriminatory statement, all
committed by a supervisor. Patterson, 491 US at 178.
Other federal courts have addressed the use of background evidence of discrimination to
create an inference of discrimination at the prima facie case stage. For instance, the Sixth Circuit
Court of Appeals has held that:
Circumstantial evidence establishing the existence of a discriminatory
atmosphere at the defendant’s workplace in turn may serve as circumstantial
evidence of individualized discrimination directed at the plaintiff. While evidence
of a discriminatory atmosphere may not be conclusive proof of discrimination
against an individual plaintiff, such evidence does tend to add “color” to the
employer’s decisionmaking processes and to the influences behind the actions
taken with respect to the individual plaintiff. [Rachells v Cingular Wireless
Employee Servs, LLC, 732 F3d 652, 665 (CA 6, 2013) (holding that the plaintiff
had established a prima facie case based in part on such evidence) (citations
omitted).
Further,
“evidence of a . . . discriminatory atmosphere is not rendered irrelevant by its failure
to coincide precisely with the particular actors or timeframe involved in the specific
events that generated a claim of discriminatory treatment.” Thus, even the conduct
of a nondecisionmaker may be probative of whether an adverse action directed at a
plaintiff was racially motivated. [Id. (citation omitted).]
The court identified the following factors to determine whether evidence of a discriminatory
atmosphere is probative of intentional discrimination:
“the [actor]’s position in the [employer’s] hierarchy, the purpose and content of the
[conduct], and the temporal connection between the [conduct] and the challenged
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employment action, as well as whether the [conduct] buttresses other evidence of
pretext.” [Id. (citations omitted).]
The Michigan Supreme Court has outlined similar factors to determine whether
discriminatory remarks constitute direct evidence of bias or are merely “stray remarks” that should
be excluded from evidence:
Factors to consider in assessing whether statements are “stray remarks”
include: (1) whether they were made by a decision maker or an agent within the
scope of his employment, (2) whether they were related to the decision-making
process, (3) whether they were vague and ambiguous or clearly reflective of
discriminatory bias, (4) whether they were isolated or part of a pattern of biased
comments, and (5) whether they were made close in time to the adverse
employment decision. [Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich
124, 136 n 8; 666 NW2d 186 (2003).]
Applying the “stray remarks” framework, the factor weighing most strongly against
consideration of plaintiff’s background evidence is that none of the evidence was “related to the
decision-making process” resulting in plaintiff’s termination. Much, but not all, of plaintiff’s
evidence could also be characterized as “vague and ambiguous”—for example, Anderson’s
spraying of air freshener or body spray, which could be taken as either racially discriminatory or
an innocent misunderstanding. More generally, some of plaintiff’s testimony is vague on who
made the racist statement or act and their position. For example, plaintiff could not identify who
was behind the blackbird imagery or who made the birds crow racial slurs.
On the other hand, some of the conduct is linked to Walbecq, who conducted DHHS’s
investigation of the contempt of court incident. Plaintiff testified that Walbecq said African-
American homes smelled like fried chicken. Walbecq told plaintiff to smile to “soften up [her]
expression.” Howell testified that Walbecq refused to act when confronted about a manager
referring to nonwhite managers as “colored people” at an event Walbecq organized at which only
white managers were present. See Rachells, 732 F3d at 665 (considering a decisionmaker’s “non-
responsiveness to . . . complaints that . . . evaluations were racially motivated” as evidence of
“whether a discriminatory atmosphere existed”). Howell also confirmed that Walbecq sent her a
picture of a monkey that Howell found offensive.
Further, there is strong evidence Walbecq had influence in plaintiff’s termination.
Walbecq conducted the investigation finding that plaintiff had violated several DHHS work rules.
Anderson’s testimony indicates that it was Weston, the St. Clair County Director, and Walbecq,
the St. Clair County Program Manager, who made the recommendation to DHHS’s Human
Resources department to terminate plaintiff. Any doubt of Walbecq’s involvement in the decision
to terminate was removed by DHHS’s answers to interrogatories stating that Walbecq “conducted
the investigation and recommended termination of Plaintiff.” This is sufficient evidence to create
a material question of fact on whether Walbecq influenced the decision to terminate plaintiff’s
employment. See Harrison v Olde Fin Corp, 225 Mich App 601, 608 n 7; 572 NW2d 679 (1997)
(holding the plaintiff “established a question of material fact regarding whether” a “decision was
influenced by a person” when there was testimony the decisionmaker “consulted with and
considered” that person’s views).
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With regard to whether the incidents were “close in time” to plaintiff’s firing, the specific
timing of many of the events is vague. The background evidence of racial animus offered by
plaintiff spans at least a decade, from some time before 2008 or 2009—when plaintiff moved
“upstairs”—to about the time of plaintiff’s termination in 2016. Older evidence, even if “not
actionable, may, in appropriate cases, be used as background evidence to establish a pattern of
discrimination.” Campbell, 286 Mich App at 238, but older evidence is less likely to be probative
of the reasons for plaintiff’s termination.
Some of plaintiff’s evidence does concern relatively recent conduct. Plaintiff testified that
the blackbirds continued to appear, though they were no longer crowing racial slurs, until soon
after Anderson became plaintiff’s supervisor, which was in approximately February 2016.
Plaintiff testified that she was bypassed for overtime in approximately October 2015. Plaintiff
testified that Anderson began spraying air freshener whenever plaintiff was in Anderson’s office
after plaintiff reported Walbecq’s “fried chicken” remark to Anderson. The strong implication is
this occurred after Anderson became plaintiff’s manager in approximately February 2016. The
use of nicknames for plaintiff, as well as plaintiff being told to smile on the phone so she would
not sound like an “angry black woman,” were repeated throughout plaintiff’s time at the St. Clair
office.
Finally, the evidence of a discriminatory atmosphere, taken as a whole, appears much more
reflective of a pattern than of isolated incidents. Viewed in the light most favorable to plaintiff,
there is evidence of repeated use of racially discriminatory comments, imagery, and nicknames
against African-American workers in the St. Clair County DHHS office, and evidence that
management generally downplayed these issues, along with evidence of negative employment
consequences, such as being bypassed for overtime, and workers of color not being given questions
ahead of time for a position.
In sum, we conclude that the evidence of a discriminatory atmosphere in this case can be
considered as probative circumstantial evidence of whether plaintiff was terminated for
discriminatory reasons. And the totality of plaintiff’s evidence reasonably suggests a
discriminatory bias behind her termination. Accordingly, she has established a prima face case of
discrimination.
C. PRETEXT
“[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.” Hazle, 464 Mich at
464. If the employer has offered evidence of a legitimate nondiscriminatory reason for the
employment decision, “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.” Id. at 465 (quotation marks and citation omitted). A plaintiff can show that the
legitimate, nondiscriminatory reason is pretext for discrimination in one of three ways: “(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
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were jointly insufficient to justify the decision.” Major v Newberry, 316 Mich App 527, 542; 892
NW2d 402 (2016).
DHHS has presented evidence that it fired plaintiff for a nondiscriminatory reason—
because she misled the court at the permanency planning hearing and Judge Brown asked that she
not appear before him in the future. As discussed, plaintiff is collaterally estopped from arguing
that there was no factual basis for her criminal contempt conviction. Plaintiff’s other argument in
support of pretext essentially amount to a contention that her termination was an overly severe
consequence, which would not have been imposed on her but for the fact that she is African-
American. If she were not African-American, she might have been simply demoted, transferred,
or disciplined in some other way.
For the reasons discussed, we conclude that the same evidence supporting a reasonable
inference of discrimination also creates a genuine fact issue that the nondiscriminatory reason for
plaintiff’s firing is pretextual. See Town, 455 Mich at 697 (“The proofs offered in support of the
prima facie case may be sufficient to create a triable issue of fact that the employer’s stated reason
is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the
employer’s decision had a discriminatory basis.”). Accordingly, we affirm the denial of summary
disposition on the discrimination claim.
D. RETALIATION
DHHS also argues that the trial court erred by not dismissing plaintiff’s claim for
retaliation. The CRA states:
Two or more persons shall not conspire to, or a person shall not:
(a) Retaliate or discriminate against a person because the person has
opposed a violation of this act, or because the person has made a charge, filed a
complaint, testified, assisted, or participated in an investigation, proceeding, or
hearing under this act. [MCL 37.2701.]
“[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; (2) that this was known by the defendant;
(3) that the defendant took an employment action adverse to the plaintiff; 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 NW2d 665 (2019) (quotation marks and
citation omitted).
Plaintiff argues only that she engaged in protected activity by filing EEOC complaints, and
that her termination was an adverse employment action. Plaintiff makes no attempt to address the
knowledge and causation elements of the prima facie case. The record contains one EEOC
complaint dated March 23, 2015. In her deposition testimony, plaintiff indicated she filed a total
of three EEOC complaints. One of the other two was in 2014, and no date was given for the third.
The March 23, 2015 EEOC complaint is dated over a year before the June 27, 2016
permanency planning hearing which gave rise to plaintiff’s contempt of court conviction, and 18
months before her October 6, 2016 termination. A “[p]laintiff must show something more than
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merely a coincidence in time between protected activity and adverse employment action.” Garg
v Macomb Co Cmty Mental Health Servs, 472 Mich 263, 286; 696 NW2d 646 (2005), amended
on den of reh 473 Mich 1205 (2005). Plaintiff has not offered any evidence to suggest a connection
between the filing of her complaints and her termination. Plaintiff cannot rely solely on “temporal
proximity”—in the form of a gap of more than a year—to demonstrate a causal connection between
her EEOC complaints and her termination. See id. Plaintiff has failed to make out a prima facie
case of retaliation, and so we reverse the denial of summary disposition on this claim.
III. CONCLUSION
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No costs may be taxed under MCR 7.219(F) as neither
party has prevailed in full.
/s/ Douglas B. Shapiro
/s/ Stephen L. Borrello
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