Sniecinski v. Blue Cross & Blue Shield of Michigan

                                                                       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,



                                 4

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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