Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 22, 2003
MARCIA SNIECINSKI,
Plaintiff-Appellee,
v No. 119407
BLUE CROSS AND BLUE SHIELD
OF MICHIGAN,
Defendant-Appellant.
_____________________________________
BEFORE THE ENTIRE BENCH.
CORRIGAN, C.J.
In this pregnancy discrimination case, we have been asked
to decide whether the trial court erred by denying defendant
Blue Cross and Blue Shield of Michigan’s (BCBSM) motions for
directed verdict and judgment notwithstanding the verdict. We
hold that because plaintiff failed to adduce evidence of a
causal connection between her pregnancy and BCBSM’s failure to
hire her, BCBSM was entitled to a finding of no cause of
action as a matter of law. The trial court erred by denying
defendant’s motions for directed verdict and judgment
notwithstanding the verdict.
I. Underlying Facts and Procedural History
Blue Care Network of East Michigan (BCN), a wholly owned
subsidiary of BCBSM, employed plaintiff as a telemarketing
representative. Plaintiff, a high school graduate, began work
at BCN’s predecessor, Group Health Services (GHS), in 1983.
She held a variety of positions. In 1987, she became a
telemarketing representative. In 1989, GHS merged into BCN.
BCN honored the seniority that plaintiff had acquired at GHS.
Also in 1989, plaintiff became pregnant. She experienced
pregnancy complications that required her to take a medical
leave for seven months. In October of that year, plaintiff
gave birth to her daughter. In November, she returned to work
for BCN.
Plaintiff became pregnant again in 1992 while she was
supervised by Michael Curdy. Plaintiff testified that after
she informed Curdy about her pregnancy, he seemed upset. He
referred to plaintiff’s chair as the “pregnancy chair.” He
stated that he would not let anyone sit in that chair again.
He asked plaintiff whether she was going to experience
problems with her pregnancy as she had in 1989. Curdy further
told plaintiff that he would not permit her to use either sick
2
time or unpaid leave because of her pregnancy.
In January 1993, Curdy placed a memo regarding
plaintiff’s attendance in her personnel file. When plaintiff
learned about the memo, she complained to Patricia Stone, the
Regional Human Resources Manager at BCN. Stone informed Curdy
that he had not followed the appropriate procedure for
discipline. She advised Curdy to follow the correct procedure
to determine whether a problem existed regarding plaintiff’s
attendance before a disciplinary memo could be placed in
plaintiff’s file. Stone then removed the memo from
plaintiff’s file.
Plaintiff again experienced pregnancy complications that
required her to take one week off from work in February 1993.
During that time, she suffered a miscarriage. Plaintiff
testified that upon her return to work Curdy spoke to her
about future pregnancies and stated, “We’ll have to deal with
that problem when it comes.”
During 1993, the marketing departments of BCN and BCBSM
were merged. Because the merger was going to eliminate the
telemarketing positions at BCN, BCN telemarketers seeking to
continue their employment were required to interview for a
position of account representative at BCBSM.
In August 1993, plaintiff interviewed for an account
representative position with Donald Whitford, BCBSM Regional
3
Sales Director; Donald Roseberry, BCBSM Sales Team Manager;
and Curdy.1 Plaintiff testified that Curdy asked about her
time off from work related to her previous pregnancy
complications. He also asked whether plaintiff thought her
pregnancies would be a future problem. After a second
interview with Whitford and Roseberry only, plaintiff was
offered an account representative position at BCBSM.
Immediately thereafter, plaintiff told Whitford and Roseberry
that she was pregnant. Plaintiff testified that they “seemed
surprised” and were “taken aback,” but congratulated her.
Plaintiff and other BCN employees expecting to transfer
to BCBSM continued to work for BCN until the merger.
Plaintiff testified that when Curdy heard about her pregnancy,
he remarked, “I’ll have to make sure I don’t hire anybody in
child bearing years in the future.” In September 1993, soon
after receiving the job offer, plaintiff began experiencing
pregnancy-related complications. She was again required to
take time off from work. She remained on medical leave from
September 1993 until May 1994, six weeks after giving birth to
her son.
Shortly after plaintiff was offered the account
representative position, Whitford and Curdy contacted Stone to
1
Although Curdy was a BCN employee at the time of the
interview, he was slated to become the new team leader for
BCBSM in the Flint region after the merger.
4
discuss placing a disciplinary note in plaintiff’s file
regarding her attendance problems during previous pregnancies.
Stone testified that Whitford wanted Curdy’s January 1993 memo
put back in plaintiff’s file because plaintiff was continuing
to have attendance problems. Stone advised them that placing
a memo in plaintiff’s file was inappropriate.
On November 22, 1993, while plaintiff was on medical
leave, the planned merger of the sales departments of BCN and
BCBSM occurred, and all BCN employees who had been offered
jobs with BCBSM terminated their employment with BCN and began
working for BCBSM. Plaintiff did not report for work at BCBSM
because she was on medical leave at that time. Instead, BCBSM
held open an account representative position for her. On
March 1, 1994, plaintiff’s short-term disability benefits
expired, and she began to collect long-term disability (LTD)
benefits. Under BCN’s LTD policy, an employee on medical
leave converts from short-term to LTD status on the first day
of the employee’s sixth month off work. The LTD policy
provides that the employee is separated from the company and
issued a final pay check, including accrued vacation and
personal time.
On October 11, 1993, while plaintiff was on short-term
disability, she requested an extension of her medical leave.
Plaintiff was concerned that the account representative
5
position at BCBSM would no longer be available when she was
ready to return to work. Stone informed plaintiff that the
position would be held open until plaintiff went on LTD, if
plaintiff’s medical leave extended that long. Stone’s
notations in her Franklin planner corroborated this account of
her conversation with plaintiff. The notes read as follows:
Marcia concerned over job security-
Advised her that not issue until LTD
If LTD –> Blue Cross job not possible.
We will attempt to find position similar
qualifications/pay.
Because plaintiff did not return to work before March 1,
1994, she began collecting LTD benefits. BCN issued plaintiff
a vacation and incentive payout and separated her from the
company.
In late May 1994, plaintiff informed BCBSM that she was
ready to return to work. Because of the 1993 merger, her
telemarketing position at BCN had been eliminated. The BCBSM
account representative position previously offered to her was
not filled because of a company-wide hiring freeze resulting
from a loss of Medicare business.
Plaintiff thereafter collected unemployment benefits for
six months while making periodic efforts to find another job.
In December 1994, BCN offered, and plaintiff accepted, a
position as a marketing representative that was unrelated to
her previous job. After resuming work, plaintiff learned that
6
BCBSM had recently hired an account representative who was a
college graduate. Both before and after the merger, the BCBSM
account representative position required a college degree.
The degree requirement had been waived only for those BCN
employees transferring to BCBSM during the merger. Plaintiff
had no college degree.
In March 1996, while still employed at BCN, plaintiff
sued BCBSM, alleging sex (pregnancy) discrimination in
violation of Michigan’s Civil Rights Act (CRA), MCL 37.2101 et
seq. In August 1996, plaintiff saw a posting for an account
representative with BCBSM. The position still required a
college degree. Upon her inquiry, the BCBSM human resources
department informed her that the degree requirement could not
be waived. On September 20, 1996, plaintiff resigned from her
position with BCN. She did not seek employment, instead
opting to enroll in college to attend classes part-time.
Plaintiff’s lawsuit proceeded to trial. The jury
rendered a verdict for plaintiff, awarding her $125,000 for
past economic loss, $136,000 for future economic loss, and
$90,000 in noneconomic damages. Defendant moved for judgment
notwithstanding the verdict (JNOV), a new trial, and
remittitur of plaintiff’s economic damages. The trial court
denied the motions. The Court of Appeals affirmed the
7
verdict.2 We granted BCBSM’s application for leave to appeal.3
II. Standard of Review
Defendant contends that the trial court erred by denying
its motions for directed verdict or JNOV.4 We review de novo
the trial court’s denial of both motions. Forge v Smith, 458
Mich 198, 204; 580 NW2d 876 (1998); Smith v Jones, 246 Mich
App 270, 273-274; 632 NW2d 509 (2001). We “review the
evidence and all legitimate inferences in the light most
favorable to the nonmoving party.” Wilkinson v Lee, 463 Mich
388, 391; 617 NW2d 305 (2000); Forge, supra at 204, quoting
Orzel v Scott Drug Co, 449 Mich 550, 557; 537 NW2d 208 (1995).
A motion for directed verdict or JNOV should be granted only
if the evidence viewed in this light fails to establish a
claim as a matter of law. Wilkinson, supra at 391; Forge,
supra at 204.
III. Analysis
Section 202 of the CRA, MCL 37.2202, provides in part:
(1) An employer shall not do any of the
following:
(A) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate against an
2
Unpublished opinion per curiam, issued March 9, 2001
(Docket No. 212788).
3
466 Mich 859 (2002).
4
Given our holding on this issue, we need not address
BCBSM’s remaining issues.
8
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.]
The CRA defines “sex,” within the meaning of the above
section, as “‘[s]ex’ includes, but is not limited to,
pregnancy, childbirth, or a medical condition related to
pregnancy or childbirth . . . .” MCL 37.2201(d). Plaintiff
claims that defendant discriminated against her in violation
of the CRA by refusing to hire her because she was pregnant.5
Proof of discriminatory treatment in violation of the CRA may
be established by direct evidence or by indirect or
circumstantial evidence. DeBrow v Century 21 Great Lakes, Inc
(After Remand), 463 Mich 534, 539; 620 NW2d 836 (2001);
Harrison v Olde Financial Corp, 225 Mich App 601, 606-607; 572
NW2d 679 (1997).
In cases involving direct evidence of discrimination, a
plaintiff may 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). We have
previously cited with approval the United States Court of
Appeals for the Sixth Circuit’s definition of “‘direct
5
The Court of Appeals improperly characterized
plaintiff’s claim as wrongful discharge. Plaintiff concedes
that her claim stems from BCBSM’s failure to hire her rather
than from wrongful discharge.
9
evidence’ as ‘evidence which, if believed, requires the
conclusion that unlawful discrimination was at least a
motivating factor in the employer’s actions.’” Hazle, supra
at 462, quoting Jacklyn v Schering-Plough Healthcare Products
Sales Corp, 176 F3d 921, 926 (CA 6, 1999); Harrison, supra at
610.
In a direct evidence case involving mixed motives, i.e.,
where the adverse employment decision could have been based on
both legitimate and legally impermissible reasons, a plaintiff
must prove that the defendant’s discriminatory animus was more
likely than not a “substantial” or “motivating” factor in the
decision. Price Waterhouse v Hopkins, 490 US 228, 244; 109 S
Ct 1775; 104 L Ed 2d 268 (1989);6 Harrison, supra at 612-613.
In addition, a plaintiff must establish her qualification or
other eligibility for the position sought and present direct
proof that the discriminatory animus was causally related to
the adverse decision. Harrison, supra at 612-613. Stated
another way, a defendant may avoid a finding of liability by
proving that it would have made the same decision even if the
impermissible consideration had not played a role in the
6
Although the United States Supreme Court’s decision in
Price Waterhouse involved title VII of the federal Civil
Rights Act of 1964, 42 USC 2000e et seq., its analysis is
persuasive. We agree with Harrison that the reasoning of
Price Waterhouse is applicable in cases arising under the CRA.
See Harrison, supra at 612.
10
decision. Price Waterhouse, supra at 244-245.
In cases involving indirect or circumstantial evidence,
a plaintiff must proceed by using the burden-shifting approach
set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S
Ct 1817; 36 L Ed 2d 668 (1973). Hazle, supra at 462; DeBrow,
supra at 540. This approach allows “a plaintiff to present a
rebuttable prima facie case on the basis of proofs from which
a factfinder could infer that the plaintiff was the victim of
unlawful discrimination.” DeBrow, supra at 538. To establish
a rebuttable prima facie case of discrimination, a plaintiff
must present evidence that (1) she belongs to a protected
class, (2) she suffered an adverse employment action, (3) she
was qualified for the position, and (4) her failure to obtain
the position occurred under circumstances giving rise to an
inference of unlawful discrimination. Hazle, supra at 463;
Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d
906 (1998) (opinion by WEAVER , J.); see also McDonnell Douglas,
supra at 802.7 Once a plaintiff has presented a prima facie
case of discrimination, the burden then shifts to the
defendant to articulate a legitimate, nondiscriminatory reason
7
As required by Hazle and Lytle, the elements of the
McDonnell Douglas prima facie case are adapted to the present
factual situation. The elements of a prima facie case under
the McDonnell Douglas approach should be tailored to the facts
and circumstances of each case. Hazle, supra at 463 n 6; see
also Lytle, supra at 173 n 19 (opinion by WEAVER , J.).
11
for the adverse employment action. Hazle, supra at 464;
Lytle, supra at 173 (opinion by WEAVER , J.). If a defendant
produces such evidence, the presumption is rebutted, and the
burden shifts back to the plaintiff to show that the
defendant’s reasons were not the true reasons, but a mere
pretext for discrimination. Hazle, supra at 465-466; Lytle,
supra at 174 (opinion by WEAVER , J.).
Under either the direct evidence test or the McDonnell
Douglas test, a plaintiff must establish a causal link between
the discriminatory animus and the adverse employment decision.
Because a prima facie case under the McDonnell Douglas test
creates a presumption of unlawful discrimination, causation is
presumed. Texas Dep’t of Community Affairs v Burdine, 450 US
248, 254; 101 S Ct 1089; 67 L Ed 2d 207 (1981). A defendant
may rebut the presumption of causation by articulating a
legitimate, nondiscriminatory reason for the employment
decision. Under the direct evidence test, a plaintiff must
present direct proof that the discriminatory animus was
causally related to the adverse employment decision. Price
Waterhouse, supra at 244-245; Harrison, supra at 612-613.
In support of her claim, plaintiff relied in part upon
the following alleged statements regarding her pregnancies:
(1) Curdy referred to plaintiff’s chair as the
“pregnancy chair” and stated that he was not going
to allow anyone else to sit in the chair;
12
(2) Curdy informed plaintiff that she would
not be permitted to use sick time or unpaid leave
in connection with her second pregnancy;
(3) When discussing possible complications
with future pregnancies, Curdy stated, “We’ll have
to deal with that problem when it comes”;
(4) Curdy asked plaintiff whether she was
going to have complications with her second
pregnancy “like she had in 1989";
(5) Curdy asked plaintiff about her pregnancy
complications at the interview for the BCBSM
account representative position; and
(6) Curdy stated that he would never hire
anyone in child-bearing years again.
BCBSM argued that the above statements were merely “stray
remarks” and not direct evidence of discrimination.8 We need
not determine whether the cited comments were mere “stray
remarks.” Regardless of whether these were “stray remarks” or
direct evidence of a discriminatory animus, plaintiff failed
as a matter of law to prove that the remarks were causally
related to BCBSM’s failure to hire her. Stated another way,
plaintiff failed to establish causation under either the
8
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. Cooley v Carmike Cinemas, Inc, 25 F3d 1325, 1330
(CA 6, 1994); Krohn v Sedgwick James, Inc, 244 Mich App 289,
292; 624 NW2d 212 (2001).
13
McDonnell Douglas test or the direct evidence test.
BCBSM preserved its causation argument by raising it in
both the motion for directed verdict and the motion for JNOV.
The trial court did not specifically address BCBSM’s causation
argument in ruling on the motion for directed verdict. The
court merely stated that reasonable minds could differ
regarding the interpretation of the facts of this case.
Further, the trial court failed altogether to address BCBSM’s
causation argument when deciding the JNOV motion.
Defendant presented evidence that plaintiff’s job offer
for an account representative position at BCBSM expired
administratively because of the neutral operation of the LTD
policy. Plaintiff produced no evidence that Curdy or Whitford
manipulated the operation of that neutral policy to prevent
BCBSM from hiring her because of her pregnancy. Human
resources manager Stone’s direct testimony and corroborative
evidence established that BCBSM offered to hold the position
open for plaintiff only until she went on long-term
disability. Thereafter, the job was “not possible” by virtue
of the neutral operation of the LTD policy and plaintiff’s
resulting separation from BCN. Plaintiff was informed of the
terms of the LTD policy in October 1993, five months before
she accepted LTD benefits.
When plaintiff was ready to return to work in May 1994,
14
her previous job at BCN no longer existed because the
marketing departments had been unified and transferred to
BCBSM. Under BCN’s general practices, the company would
attempt to place a former employee returning from long-term
disability in her previous position or a comparable position,
but BCN no longer had such a position because of the
unification. In addition, it is undisputed that, at the time
plaintiff was able to return to work, both BCN and BCBSM were
in the midst of the hiring freeze precipitated by the loss of
Medicare business.
Plaintiff argues that BCBSM should have hired her as an
account representative in May 1994 because of her previous job
offer. In addition, the dissent contends that BCBSM’s failure
to “rehire” plaintiff as an account representative is contrary
to its custom of allowing an employee to resume a previous
position upon return from disability status. In support of
her argument, plaintiff produced evidence that eighty-nine
other individuals returning from LTD status were returned to
their previous jobs. That evidence is inapposite, however,
because plaintiff did not seek to return to her previous job.
Rather, she sought to begin new employment at BCBSM. The
eighty-nine individuals to whom plaintiff refers had returned
to the same company, either BCN or BCBSM, from which they were
separated under the LTD policy. Neither BCN’s general
15
practices nor the LTD policy required, or for that matter
authorized, BCN to transfer a former employee to BCBSM, a
separate corporate entity. In short, plaintiff never worked
for BCBSM, and she has not demonstrated a causal relationship
between the alleged evidence of discriminatory animus and
BCBSM’s failure to hire her.
Plaintiff further argues that BCBSM kept her on BCN’s
payroll, thus forcing her to collect LTD benefits as a BCN
employee rather than as a BCBSM employee. In addition, she
contends that BCBSM did not inform her that she would have had
to come to work on November 22, 1993, the date of the
unification, to fill out paperwork necessary to transfer her
to BCBSM. Plaintiff incorrectly assumes that merely filling
out paperwork was sufficient to effect her transfer to BCBSM.
Further, although plaintiff presented conflicting evidence on
this point at trial, she now maintains that she was able to go
to work on that day to fill out the paperwork notwithstanding
her medical leave.
Plaintiff’s arguments fail because she was required to
begin working for BCBSM as an account representative in order
to accept the job offer and become a BCBSM employee. Whitford
testified that an individual becomes a BCBSM employee by
reporting to work and performing the functions of the job,
not by merely completing paperwork. According to Whitford,
16
until a prospective employee reports to work and performs her
job functions, a job offer is simply that—“strictly a job
offer . . . .”9
Plaintiff did not report to work after the unification
and before her separation from BCN. Thus, she never performed
the functions of a BCBSM account representative to thereby
accept the job offer. While plaintiff argued at trial that
completing the paperwork was sufficient to execute her
transfer, she offered no evidence in support of her argument.
9
Whitford’s testimony is consistent with the law
regarding unilateral contracts. Generally, employment
contracts are unilateral and may be accepted only by
performance. In re Certified Question, 432 Mich 438, 445-447;
443 NW2d 112 (1989); Cunningham v 4-D Tool Co, 182 Mich App
99, 106-107; 451 NW2d 514 (1989).
A unilateral contract is one in which the
promisor does not receive a promise in return as
consideration. 1 Restatement Contracts, §§ 12, 52,
pp 10-12, 58-59. In simplest terms, a typical
employment contract can be described as a
unilateral contract in which the employer promises
to pay an employee wages in return for the
employee’s work. In essence, the employer’s
promise constitutes the terms of the employment
agreement; the employee’s action or forbearance in
reliance upon the employer’s promise constitutes
sufficient consideration to make the promise
legally binding. In such circumstances, there is
no contractual requirement that the promisee do
more than perform the act upon which the promise is
predicated in order to legally obligate the
promisor. [Certified Question, supra at 446, citing
Toussaint v Blue Cross & Blue Shield of Michigan,
408 Mich 579, 630-631; 292 NW2d 880 (1980)
(separate opinion of RYAN , J).]
17
Rather, her argument was based wholly on speculation. Because
plaintiff never accepted the job offer by working for BCBSM,
she never became a BCBSM employee. She remained on BCN’s
payroll and collected LTD benefits as a BCN employee.
BCBSM held open the account representative position for
plaintiff until she began collecting LTD benefits. When
plaintiff contacted Stone because of concern about BCBSM
filling the account representative position while she was on
medical leave, Stone informed her that the job would not be
“possible” if plaintiff went on long-term disability.
Therefore, when plaintiff began accepting LTD benefits and was
separated from BCN, the job offer expired under the terms of
the neutral LTD policy.
Plaintiff did not show that she was treated differently
from others under the LTD policy because of her pregnancy.
She also did not show that Curdy, Whitford, or anyone at BCBSM
or BCN manipulated the operation of the LTD policy to prevent
her hire because she was pregnant. Rather, plaintiff relied
on conjecture and speculation to support her claim that BCBSM
failed to hire her because of an unlawful pregnancy animus.
Mere speculation or conjecture is insufficient to establish
reasonable inferences of causation. Skinner v Square D Co,
445 Mich 153, 164; 516 NW2d 475 (1994).
Plaintiff failed to establish a causal nexus between her
18
pregnancy and the adverse employment action. Because the
evidence, viewed in the light most favorable to plaintiff,
fails to establish her claim as a matter of law, the trial
court should have granted BCBSM’s motion for a directed
verdict or a JNOV. Wilkinson, supra at 391; Forge, supra at
204.
IV. Conclusion
We conclude that because plaintiff failed to establish a
causal connection between her pregnancy and BCBSM’s failure to
hire her, BCBSM was entitled to a finding of no cause of
action as a matter of law. Given this holding, we need not
address BCBSM’s remaining issues. We reverse the judgment in
favor of plaintiff and remand this case to the trial court for
entry of judgment in favor of BCBSM.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
CAVANAGH, J.
I concur in the result only.
Michael F. Cavanagh
19
S T A T E O F M I C H I G A N
SUPREME COURT
MARCIA SNIECINSKI,
Plaintiff-Appellee,
v No. 119407
BLUE CROSS AND BLUE SHIELD
OF MICHIGAN,
Defendant-Appellant.
___________________________________
WEAVER, J. (concurring in part and dissenting in part).
I concur with the majority to the extent that it reverses
the trial court’s decision to deny defendant’s motion for
directed verdict regarding plaintiff’s noneconomic damages.
As stated by Judge SAWYER , who concurred in part and dissented
in part on the Court of Appeals panel below, “plaintiff failed
to present any ‘specific and definite evidence of mental
anguish, anxiety or distress’ as she was required to do.”1
However, I disagree with the majority conclusion that
plaintiff failed to establish a causal nexus between her
1
Unpublished opinion per curiam, issued March 9, 2001
(Docket No. 212788), quoting Wiskatoni v Michigan Nat’l Bank-
West, 716 F2d 378, 389 (CA 6, 1983).
pregnancy and the adverse employment action.2 Although
plaintiff was told that if she went on long-term disability,
the account representative job was “not possible,” she was
also reassured by defendant’s management employees that she
need not worry about her job opportunity. Indeed, she was
given the impression that her future transfer to BCBSM was
essentially an administrative matter. The record reveals that
she was told that BCBSM “did not want to absorb the medical
disability at that time . . . they wanted [her] to take the
disability benefits through Blue Care Network and then once
[she] was—six weeks after [she] had her child and returned to
work [she] would be transferred to Blue Cross and Blue Shield
. . . ." In my view, this evidence provides a reasonable
inference that the defendant’s failure to hire plaintiff was
causally connected to her pregnancy.
Regarding defendant’s remaining issues on appeal, I would
affirm the result and reasoning of the Court of Appeals
majority.
Elizabeth A. Weaver
2
As noted by the majority, ante at 9 n 9, the Court of
Appeals mischaracterized plaintiff’s claim as wrongful
discharge rather than failure to hire.
2
S T A T E O F M I C H I G A N
SUPREME COURT
MARCIA SNIECINSKI,
Plaintiff-Appellee,
v No. 119407
BLUE CROSS AND BLUE SHIELD
OF MICHIGAN,
Defendant-Appellant.
___________________________________
KELLY, J. (dissenting).
In resolving this appeal for defendant, the majority
interprets the facts in the light most favorable to defendant.
It ignores the fact that the jury is entitled to infer
causation from the proofs presented. Viewed properly, in the
light most favorable to plaintiff, the facts support the
jury's verdict. Therefore, I respectfully dissent.
I
This Court reviews motions for a directed verdict or
judgment notwithstanding the verdict by drawing all legitimate
factual inferences in the light most favorable to the
nonmoving party. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d
305 (2000). This rule reflects the longstanding understanding
of our appellate courts that a jury's verdict should not be
lightly disturbed. However, the majority does just that,
viewing the evidence that reached the jury through a distorted
lens.
A plaintiff must convince a jury that he has satisfied
each element of his cause. He may do that either with direct
evidence or with evidence that permits the jury to infer the
required conclusion. Here, the majority properly catalogues
the discriminatory actions undertaken by Mr. Curdy, ante at
13, but ignores the jury's ability to infer that the same
discriminatory animus caused plaintiff's job loss later.
Rather, the majority simply concludes that the existence of
defendant's long-term disability (LTD) policy made it
unreasonable to conclude that plaintiff established causation
and, therefore, plaintiff loses.
However, plaintiff presented abundant proof to create an
inference regarding causation consistent with the jury's
finding. The jury was entitled to believe that the facts
precipitating the loss of her account representative position
were an extension of the discriminatory animus to which
defendant subjected plaintiff. Specifically, defendant's
words and actions made it unclear whether it required
plaintiff to report for work at defendant before the onset of
LTD benefits.
Several important facts support the jury's conclusion.
2
First, defendant's management employees repeatedly assured
plaintiff that her position would be available when she
returned from medical leave. However, no one informed her
that, to preserve her job, she would need to report to
defendant before she began collecting LTD benefits. Instead
of transferring her to defendant's medical leave roster on the
date of the merger, one of defendant's executives, Joel
Gibson, decided to keep plaintiff on the Blue Care Network
(BCN) roll.
In September 1993, plaintiff asked Pat Stone, the human
resources manager at BCN, how the leave of absence would "fall
within the merger . . . ." Plaintiff testified that Stone
talked to Gibson and then explained to plaintiff that because
defendant "did not want to absorb the medical disability at
that time . . . they wanted [her] to take the disability
benefits through Blue Care Network and then once [she]
was--six weeks after [she] had her child and returned to work
-
[she] would be transferred to Blue Cross and Blue Shield
. . . ." Plaintiff testified that had defendant transferred
plaintiff to defendant's disability roster, she would have
been entitled to resume the account representative position
upon returning from LTD leave.
Additionally, despite having received repeated phone
calls from plaintiff to check on the status of her BCBSM job,
3
Curdy, Whitford, and Roseberry neglected to return plaintiff's
calls. Plaintiff managed to reach Roseberry by telephone on
one occasion, but he told her not to worry and that he would
keep her informed of the merger. He never did. Consequently,
plaintiff's termination proceeded administratively and without
notice to her. These intentional omissions supported
plaintiff's position that the discriminatory animus earlier
exhibited led to her dismissal.
Moreover, defendant's posttermination actions support the
inference of a causal link between the discrimination alleged
and defendant's employment actions. Specifically, defendant
refused to rehire plaintiff to the account representative
position upon her return, despite its custom of allowing an
employee to resume his old position, if it remained available.
When the account representative position became available
after plaintiff's return, defendant refused to waive its new
college degree requirement and consider plaintiff for the
position. These posttermination facts support a jury
inference that defendant's discriminatory animus caused it to
exclude plaintiff from the account representative position
after her disability leave.
II
The factual scenario presented in this case is scarcely
so one-sided that a court could rule, as does the majority,
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that defendant prevails as a matter of law. Considering that
plaintiff presented sufficient proof for the jury to infer a
causal link between her pregnancy and defendant's failure to
hire her, the jury's verdict should not be disturbed. The
jury was entitled to disbelieve that the LTD policy was the
cause of her losing the job. This Court should not supersede
the jury's factual findings with its own evaluation of the
facts; rather, it should affirm the Court of Appeals decision
and allow the verdict to stand.
Marilyn Kelly
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