Order Michigan Supreme Court
Lansing, Michigan
May 1, 2009 Marilyn Kelly,
Chief Justice
138114 & (19)(20) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
JANICE M. POWERS, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 138114
COA: 288582
Wayne CC: 07-705775-CD
POST-NEWSWEEK STATIONS, MICHIGAN,
INC., d/b/a WDIV-TV, ALAN FRANK,
STEVEN WASSERMAN, and THEODORE
PEARSE,
Defendants-Appellants.
_________________________________________/
On order of the Court, the motion for immediate consideration is GRANTED.
The application for leave to appeal the December 11, 2008 order 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. The motion for stay is DENIED.
KELLY, C.J. (concurring).
Plaintiff, an African-American woman, worked for defendant WDIV-TV as an
advertising account executive. She was eventually promoted to the position of sales
manager. When she was not made general sales manager (GSM), she filed suit alleging
that she had been discriminated against on the basis of her race and gender.
The previous GSM, Matt Kell, held the position until he succumbed to cancer.
While he was ill, plaintiff applied for and received short-term disability leave for
depression. Plaintiff claimed that defendants discriminated against her by terminating her
employment after denying her an extension of her medical leave of absence. Finally, she
alleged that defendants’ conduct constituted intentional infliction of emotional distress.
Defendants moved for summary disposition on the ground that plaintiff had failed
to create a genuine issue of material fact concerning racial discrimination or intentional
infliction of emotional distress. The trial court denied the motions. On interlocutory
appeal, the Court of Appeals reversed the trial court’s ruling on the intentional infliction
of emotional distress claim, but denied leave to appeal with respect to her discrimination
claims. Defendants now seek leave to file an interlocutory appeal in this Court.
Under the Michigan Civil Rights Act (CRA),1 a claim of racial or gender
discrimination in employment may be made with direct or indirect evidence.2 Where the
1
MCL 37.2201 et seq.
2
employee adduces direct evidence of bias, a plaintiff can go forward and prove unlawful
discrimination in the same manner as a plaintiff would prove any other civil case.3
Where direct evidence is unavailable, to avoid summary disposition, the employee must
present evidence from which the fact-finder could infer that the plaintiff was the victim of
unlawful discrimination.4 Thus, to establish a prima facie case of discrimination, a
plaintiff must present evidence that she was
(1) a member of a protected class; (2) subject to an adverse employment
action; (3) qualified for the position; and that (4) others, similarly situated
and outside the protected class, were unaffected by the employer’s adverse
conduct.[5]
Once the employee establishes a prima facie case, the employer must articulate a
nondiscriminatory reason for its actions. If the employer adduces such a reason, even if
that reason later turns out to be incredible, the presumption of discrimination evaporates.6
Nonetheless, the evidence supporting an employee’s prima facie case may also be
considered in deciding whether a genuine issue exists about whether the employer’s
purported nondiscriminatory reasons constitute a pretext.7
Here, defendants claim that plaintiff failed to create a genuine issue of material
fact that she suffered an adverse employment action in defendants’ failure to promote her
to GSM. According to defendants, plaintiff failed to show that the position was open at
any time before she became disabled. But plaintiff asserts that, although she was
available for the job, defendant never formally offered it to anyone and took no steps to
screen candidates to fill it. Plaintiff states that she was forced to assume the duties and
responsibilities of the position and yet was never given the title or the pay.
Plaintiff gave deposition testimony about Theodore Pearse, the head of her
department, showing that he acted in a discriminatory manner. Plaintiff also testified
about disparate treatment by Pearse concerning the hours that she worked and the duties
that she performed. This contrasted with the favorable treatment that Pearse gave to Kell.
Plaintiff’s testimony establishes a genuine issue of material fact about adverse
2
Town v Michigan Bell Tele Co, 455 Mich 688, 694-695 (1997).
3
“Direct evidence” is evidence that, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions. Hazle v Ford
Motor Co, 464 Mich 456, 462 (2001).
4
Hazle, supra at 462-463.
5
Town, supra at 695.
6
Id.
7
Id. at 696.
3
employment actions. It also raises an inference that Pearse acted out of racial animus in
failing to pay plaintiff for her work as GSM and in refusing to promote her to that
position. According to plaintiff’s testimony, Pearse could have chosen a GSM when Kell
died, but did not. If plaintiff’s testimony is believed, a finder of fact could infer racial
animus from Pearse’s decision not to formally promote plaintiff to the position of GSM.
Defendants also argue that plaintiff failed to provide evidence of an adverse
employment action with respect to her medical leave extension. They assert that she did
not show that she was disparately treated compared to similarly situated employees.
Defendants point out that white employees were also denied leave extensions.
However, plaintiff persuasively argues that the failure to extend her medical leave
resulted in the termination of her employment, which could clearly constitute an adverse
employment action. Moreover, although plaintiff’s employment was terminated in
accord with defendants’ standard policy, an exception to that policy had been made for
Kell. But, no exception to defendants’ standard policy exists for terminally ill
employees. As a result, a genuine issue of fact exists concerning whether plaintiff was
treated differently because of her race.
Finally, defendants contend that plaintiff’s retaliation claim fails as a matter of
law. They assert that no one involved in the decision not to offer her the GSM position
or to deny her a medical leave extension knew of the alleged protected activity.
However, plaintiff claimed that Pearse was aware of her complaints of racial
discrimination. Thus, if believed, plaintiff’s testimony demonstrates resentment toward
plaintiff by Pearse that could constitute retaliation.
For these reasons, summary disposition, in favor of defendants, of plaintiff’s
discrimination claims was inappropriate. The case should proceed to trial. Therefore, I
concur in the Court’s order denying defendants’ application for leave to appeal.
MARKMAN, J. (dissenting).
I respectfully dissent. Plaintiff filed suit alleging multiple claims of racial and
gender discrimination. The trial court denied defendants’ motions for summary
disposition, and the Court of Appeals denied leave to appeal on all but one of these
motions. Powers v Post-Newsweek Stations Michigan Inc, unpublished order of the
Court of Appeals, entered December 11, 2008 (Docket No. 288582). Because I believe
that all but one of plaintiff’s remaining claims should be dismissed, I dissent.
To raise an inference of discrimination, a plaintiff must establish a prima facie
case by showing that
4
(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. [Hazle v Ford Motor Co, 464 Mich 456, 463
(2001).]
Establishing a prima facie case, however, “does not necessarily preclude summary
disposition in the defendant’s favor.” Id. at 463-464. Instead, the defendant can
“articulate a legitimate, nondiscriminatory reason for its employment decision” that
rebuts the inference of discrimination. Id. at 464. Once the defendant has articulated
such a reason, the plaintiff can only survive summary disposition by demonstrating that
the evidence would allow a reasonable trier of fact to conclude that the employer’s action
was motivated by discriminatory animus and that the employer’s proffered reason was
“‘a pretext for [unlawful] discrimination.’” Id. at 465-466 (alteration in original), quoting
Lytle v Malady (On Rehearing), 458 Mich 153, 176 (1998).
Plaintiff first claims that defendants discriminated against her by not promoting
her to the general sales manager (GSM) position, which was the next level above her
local sales manager position. The previous GSM, Matt Kell, held the position until he
died from cancer. While Kell was sick, plaintiff applied for and received short-term
disability leave for work-induced depression. She was still on short-term leave when
Kell died. Defendants did not seek to fill the GSM position until approximately a year
after Kell passed away. By that time, defendants had terminated plaintiff’s employment
because she did not return after her short-term disability leave expired. The GSM
position was eventually filled by a black man.
Plaintiff has failed to establish a material issue of fact regarding an adverse
employment action, because the GSM position did not open until after she had effectively
ended her employment by not returning when her short-term leave expired. Plaintiff has
also not established an inference of a discriminatory purpose because defendants hired an
individual in the same “protected class” to which she belonged. Additionally, even
assuming plaintiff has established a prima facie case, defendants’ non-discriminatory
reason, that defendants did not want to remove Kell from the position while he battled
terminal cancer, clearly overcomes any presumption of discrimination. See Hazle, 464
Mich at 473. Plaintiff presented no evidence showing that defendants’ reason was a
pretext for keeping her out of the position.
Plaintiff next claims discrimination based on defendants’ decision to not extend
her short-term disability leave. The thrust of her argument is that defendants’ denial of
an extension was based on race because Kell, a white male, had received short-term
disability extensions while he battled cancer. Kell was the only employee who received
extensions beyond the period set by defendants’ policy (two other white employees also
did not receive extensions). I do not believe that this raises an inference of
5
discrimination, because the differences between plaintiff’s and Kell’s medical situations
were drastic.8 However, again, even assuming that plaintiff established a prima facie
case, she did not rebut defendants’ non-discriminatory reason for extending Kell’s
benefits (that he was battling terminal cancer). Accordingly, I believe the presumption of
discrimination “drops away,” Hazle, 464 Mich at 465, and plaintiff’s claim cannot
continue because she did not present further evidence showing that defendants’ actions
were motivated by discriminatory animus.
Plaintiff lastly claims that defendants retaliated against her for complaining to
their general manager about the mistreatment of black employees. To establish a prima
facie case of retaliation, 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.” [Garg v Macomb Co
Community Mental Health Services, 472 Mich 263, 273 (2005) (citation
omitted).]
For one of plaintiff’s claims, there are material facts in dispute regarding these
elements. Plaintiff alleged that Kell’s supervisor did not discipline Kell for making
plaintiff’s job more difficult. A “supervisor’s decision not to take action to stop
harassment” can be considered an “adverse employment action.” Meyer v Center Line,
242 Mich App 560, 571 (2000). When plaintiff complained to the supervisor regarding
Kell’s behavior, he told her that Kell was upset that plaintiff had complained to the
general manager about racial mistreatment and that she should leave if she did not like
Kell’s behavior. I believe this arguably establishes a material dispute about whether the
supervisor’s inactivity was causally connected to plaintiff’s earlier complaints to the
general manager.
8
I respectfully disagree with Chief Justice Kelly that an inference of discrimination was
raised because “no exception to defendants’ standard policy exist[ed] for terminally ill
employees.” Ante at 3. I do not believe any formal exception is required to explain an
employer’s decision to provide an employee with extended disability care while he
battled a serious cancer that would eventually cause his death.
6
However, I do not believe that plaintiff has presented any evidence of a causal
connection between her complaints and defendants’ decisions not to promote her to the
GSM position and not to extend her short-term disability. Plaintiff only shows that the
decision-makers for those actions had knowledge of plaintiff’s past complaints, which I
believe alone is insufficient to establish a causal connection between plaintiff’s
complaints and the alleged adverse employment actions. See West v Gen Motors Corp,
469 Mich 177, 186 (2003) (“Something more than a temporal connection between
protected conduct and an adverse employment action is required to show causation where
discrimination-based retaliation is claimed.”).
Accordingly, I would reverse the trial court’s decision and dismiss plaintiff’s
claims with respect to the GSM promotion and short-term disability leave. Likewise, I
would dismiss plaintiff’s retaliation claim, except with respect to the portion of that claim
arising out of the supervisor’s failure to correct Kell’s alleged mistreatment of plaintiff.
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.
May 1, 2009 _________________________________________
0428 Clerk