Order Michigan Supreme Court
Lansing, Michigan
April 2, 2010 Marilyn Kelly,
Chief Justice
139891 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
CLAYTON JENKINS, Stephen J. Markman
Plaintiff-Appellee, Diane M. Hathaway,
Justices
v SC: 139891
COA: 284659
Washtenaw CC: 05-000894-CD
TRINITY HEALTH CORPORATION, d/b/a
ST. JOSEPH MERCY HOSPITAL,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the July 28, 2009
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
I dissent from the majority’s order denying leave to appeal. Because I agree with
the Court of Appeals’ dissent that plaintiff has presented no evidence of a “causal
connection between the protected activity and the adverse employment action,” which is
one of the elements of a retaliation claim, I would reverse the Court of Appeals. See
Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 273 (2005) (“To
establish a prima facie case of retaliation, a plaintiff must show [among other things]
‘that there was a causal connection between the protected activity and the adverse
employment action.’”) (citation omitted).
Plaintiff, a messenger, complained to his supervisor, Hines, about Johnson, a
dispatcher, touching him inappropriately. Johnson and several other hospital employees
made numerous complaints to Hines about plaintiff’s work performance and attitude.
Hines and Buehler, the human resources representative for the department, who knew
nothing about plaintiff’s complaint against Johnson, placed plaintiff on a performance
improvement plan (PIP). Hines subsequently received a report that a female hospital
employee had accused plaintiff of sexual abuse. Hines turned the matter over to Buehler,
and after Buehler investigated the accusation by speaking to the accuser, witnesses, and
plaintiff himself, Buehler and his manager agreed that plaintiff should be terminated
based on the assault and his failure to successfully perform under the PIP.
2
Plaintiff filed a civil rights complaint asserting quid pro quo sexual harassment
and retaliation. The trial court dismissed the quid pro quo claim, but not the retaliation
claim. The jury ruled in plaintiff’s favor. Defendant appealed and plaintiff cross-
appealed, and the Court of Appeals affirmed. Jenkins v Trinity Health Corp, unpublished
opinion per curiam of the Court of Appeals, issued July 28, 2009 (Docket No. 284659).
Judge TALBOT agreed with the majority with regards to the quid pro quo claim, but
dissented with regards to the retaliation claim. Only defendant has filed an application
for leave to appeal with this Court.
Defendant argues that the trial court should have granted its motion for summary
disposition with regards to the retaliation claim. Judge TALBOT agreed on the basis that
plaintiff had presented no evidence of a causal connection between the protected activity
and the adverse employment action. I agree with defendant and with Judge TALBOT.
There is ample evidence that defendant terminated plaintiff based on legitimate
reasons wholly unrelated to plaintiff’s reports of sexual harassment. First, Buehler, who
recommended that plaintiff be placed on the PIP, made this recommendation with
absolutely no knowledge that plaintiff had made any complaint of sexual harassment.
Second, a number of employees other than Johnson complained about plaintiff’s work
performance and his bad attitude. Even plaintiff admitted, “And when I look back
overall, I need to take ownership of part of my behaviors as not getting along with
people.” Finally, a female employee complained that plaintiff sexually assaulted her and
was verbally demeaning her to other employees. A witness confirmed that plaintiff
acknowledged the behavior he was accused of by the female employee and other
witnesses concurred that plaintiff was referring to her as a “bitch” and indicating that he
would retaliate against her.
While there is ample evidence that plaintiff was terminated for legitimate reasons,
there is absolutely no evidence that plaintiff was terminated for illegitimate reasons other
than the mere fact that plaintiff engaged in a ‘protected activity’ ten months before being
terminated. This is not enough to sustain a retaliation claim. See Garg, 472 Mich at 286
(“[I]n order to show causation in a retaliatory discrimination case, ‘plaintiff must show
something more than merely a coincidence in time between protected activity and
adverse employment action.’”) (citation omitted). For these reasons, I would reverse the
Court of Appeals.
CORRIGAN, J., joins the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 2, 2010 _________________________________________
s0330 Clerk