Opinion
352294
10-28-2021
ELIZABETH K. CHAPMAN-STANFORD, Plaintiff-Appellant, v. MIDMICHIGAN MEDICAL CENTER-CLARE and MIDMICHIGAN MEDICAL CENTER-GRATIOT, Defendants-Appellees.
UNPUBLISHED
Midland Circuit Court LC No. 19-006057-CD
Before: Murray, C.J., and M. J. Kelly and Rick, JJ.
Per Curiam.
In this retaliation action under the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq., plaintiff, Elizabeth Chapman-Stanford, appeals as of right the trial court's order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendants, MidMichigan Medical Center-Clare ("MMMC-Clare") and MidMichigan Medical Center-Gratiot ("MMMC-Gratiot"). We affirm.
I. BACKGROUND
Plaintiff began her employment as a surgical technologist with defendant MMMC-Clare in July 2013. On August 15, 2017, plaintiff hit her head on a monitor in an operating room and suffered serious cognitive complications as a result. Subsequently, plaintiff applied for workers' compensation benefits. On August 28, 2017, plaintiff was given medical restrictions that prevented her from performing her job as a surgical technologist. MMMC-Clare found plaintiff alternative work that met her restrictions and offered the same pay and benefits. Plaintiff's recovery was slow and she was not cleared to return to her previous position until June 2018.
In 2018 MidMichigan Health underwent system-wide budget cuts that included reductions in force. Plaintiff's MMMC-Clare supervisor was required to eliminate a surgical technologist position. Plaintiff's supervisor decided which person's position to eliminate by completing a "matrix" that considered each employee's seniority, disciplinary record, and job performance. Plaintiff had the least seniority, was the only one who had been subjected to discipline, and received the lowest performance scores. During a meeting, MMMC-Clare management informed plaintiff that her position was being eliminated and that they would assist her in finding a similar position in the MidMichigan Health system. On June 3, 2018, defendant transferred plaintiff to MMMC-Gratiot to begin employment there as a surgical technologist. This transfer came with the same benefits and a pay raise. However, plaintiff was subjected to a 120-day probationary period. At MMMC-Gratiot, plaintiff frequently needed to leave work early for medical appointments. Additionally, plaintiff was not able to be "on call" after hours because of her medical restrictions.
On July 24, 2018, plaintiff injured her knee while working at MMMC-Gratiot. Plaintiff missed approximately 20 days of work and returned when she depleted her available medical leave. Upon returning, plaintiff received a disciplinary notice that arose from attendance problems. Plaintiff testified during her deposition that she had been tardy on several occasions because she was not aware that the attendance policy at MMMC-Gratiot was different from that of MMMC-Clare. On October 3, 2018, plaintiff was terminated from her position at MMMC-Gratiot. Plaintiff's MMMC-Gratiot supervisor testified at her deposition that plaintiff was terminated because she was disciplined during her probationary period. In the trial court, defendants argued that plaintiff's termination was also based on poor performance.
On February 27, 2019, plaintiff filed a complaint against defendants in which she alleged violations of the antiretaliation provision of the WDCA. Defendants filed a motion for summary disposition and argued that plaintiff failed to establish a causal connection between plaintiff's workers' compensation claim and the adverse employment actions. The trial court granted defendants' motion. It reasoned that plaintiff failed to establish that she suffered an adverse employment action while working at MMMC-Clare, that plaintiff failed to establish a causal connection between the protected activities and the adverse employment actions taken by MMMC-Gratiot, and that plaintiff failed to establish that the justifications offered by defendants were pretextual. This appeal followed.
II. DISCUSSION
Plaintiff argues that she demonstrated the existence of genuine issues of material fact regarding whether a causal connection existed between the protected activity and adverse employment actions and whether defendants' justifications were pretextual. We disagree.
We review de novo a trial court's decision to grant or deny a motion for summary disposition and the evidence is viewed in a light most favorable to the nonmoving party. West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003). "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Id. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Id. When responding to a motion properly made under this rule, "an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial." MCR 2.116(G)(4).
MCL 418.301(13) of the WDCA provides:
A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.
This Court has articulated how to establish a retaliation claim:
To establish a prima facie case of retaliation under the WDCA, an employee who has suffered a work-related injury must present evidence: (1) that the employee asserted a right to obtain necessary medical services or actually exercised that right, (2)that the employer knew that the employee engaged in this protected conduct, (3)that the employer took an employment action adverse to the employee, and (4) that the adverse employment action and the employee's assertion or exercise of a right afforded under MCL 418.315(1) were causally connected. [Cuddington v United Health Servs, Inc, 298 Mich.App. 264, 275; 826 N.W.2d 519 (2012).]
A retaliation action under the WDCA follows the same structure as a retaliation action under the Whistleblowers' Protection Act, MCL 15.361 et seq., and the Civil Rights Act, MCL 37.2101 et seq. Id. "The last element, causation, is usually difficult to prove." Id. "Rarely will an employer openly admit having fired a worker in retaliation for exercising a right of employment." Id. at 276. Causation can be proved with direct or circumstantial evidence. Id.
When a plaintiff presents circumstantial rather than direct evidence of an employer's retaliatory motive, we examine the claim under the McDonnell Douglas/Burdine burden-shifting framework.
Under the McDonnell Douglas/Burdine analysis, when a plaintiff asserting a claim for retaliatory discharge under MCL 418.301(13) circumstantially establishes a rebuttable prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, nonretaliatory reason for its adverse employment action. If the defendant produces a legitimate, nondiscriminatory reason for its action, the plaintiff must demonstrate that the evidence in the case, when construed in the plaintiff's favor, is sufficient to permit a reasonable trier of fact to conclude that retaliation was a motivating factor for the adverse action taken by the employer toward the plaintiff. A plaintiff can establish that the employer's proffered reasons for the adverse employment action qualify as pretextual by demonstrating that the reasons (1) had no basis in fact, (2) were not the actual factors motivating the decision, or (3) were insufficient to justify the decision. [Id. at 276-277 (cleaned up).]
Plaintiff argues that the circumstances would enable a fact-finder to infer that her position in Clare was eliminated and that she was terminated from her position in Gratiot because of the burdens caused by her restrictions and that the justifications offered for the actions were pretextual. However, the record supports a conclusion that a rational trier of fact would have found that defendants had genuine justifications for their actions. Multiple officials employed by defendants stated under oath that plaintiff's position in Clare was eliminated as part of system-wide budget cuts, and plaintiff did not present any evidence to the contrary. Although, plaintiff testified that she believed that her position was selected for elimination because of the burdens caused by her restrictions, she also testified that she did not believe that her supervisor chose to eliminate her position at MMMC-Clare to retaliate against her for exercising her workers' compensation rights.
Plaintiff argues that this Court should infer pretext from the fact that the "matrix" used to select plaintiff's position for elimination was a highly subjective tool. The performance evaluation portion of the matrix did involve subjective assessments of qualities such as skills, quality of work, customer service, and adaptability. However, plaintiff did not submit any evidence from which a fact-finder could infer that frustration with plaintiff's restrictions influenced her former supervisor's evaluation of the matrix that led to the elimination of her position. Furthermore, the matrix also considered disciplinary record and seniority, and plaintiff does not dispute that she was the only employee considered who had been subjected to discipline or that the other employees who were considered had more seniority than her.
The record did not support a finding of a genuine issue of material fact that plaintiff's termination was retaliation for engaging in a protected activity. Rather, the record supported there was no genuine issue of material fact that plaintiff was terminated from her position in Gratiot because of attendance problems during her probationary period. It was undisputed that plaintiff was disciplined for attendance problems during her probationary period. Plaintiff's supervisor testified that it was within her discretion to terminate an employee who had been disciplined during their probationary period. Although plaintiff testified that she believed she had been terminated because her work restrictions were more burdensome than expected, she did not submit any evidence to support this belief. Further, plaintiff testified that she did not believe that she was terminated as retaliation against her protected activities. It is undisputed that plaintiff was not aware of her probationary period. However, this does not prove that the procedure was improper or retaliatory. Plaintiff argues that the fact that her former MMMC-Clare supervisor did not comment on her evaluation while she was employed in Gratiot was evidence of pretext. While it appears that it was unusual that the supervisor did not comment on the evaluation, this fact did not establish that defendants retaliated against plaintiff.
An unblemished record can serve as circumstantial evidence of a causal connection. See West, 469 Mich. at 187. However, plaintiff did not have an unblemished record. Plaintiff was disciplined in 2016 for throwing a pair of scissors across an operating room and was disciplined again in 2018 for attendance problems. A close temporal relationship between the protected activity and the adverse employment action can also serve as circumstantial evidence of a causal connection. Rymal v Baergen, 262 Mich.App. 274, 303; 686 N.W.2d 241 (2004). Plaintiff's injury which led to her workers' compensation claim occurred on August 15, 2017. Plaintiff was not transferred to Gratiot until June 3, 2018, and a temporal relationship of approximately 10 months is not indicative of a causal relationship. Plaintiff was not terminated until 14 months after the injury on October 3, 2018. Although there was only a three-month gap between plaintiff's July 24, 2018 knee injury and her termination, this alone is insufficient to establish a causal relationship. West, 469 Mich. at 186. Evidence that plaintiff's supervisors were frustrated by her exercise of a protected activity could support an inference of causation. Id. at 186-187. However, plaintiff testified that her supervisors were not frustrated with her as a result of her injuries or engaging in a protected activity. Further, the evidence supports a conclusion that defendants repeatedly accommodated plaintiff's restrictions.
Plaintiff also argues that the trial court erred by concluding that plaintiff did not suffer an adverse employment action in Clare. "There is no exhaustive list of what constitutes adverse employment actions. And what might constitute an adverse employment action in one employment context might not be actionable in another employment context." Chen v Wayne State Univ, 284 Mich.App. 172, 201; 771 N.W.2d 820 (2009) (cleaned up). Additionally, "there must be an objective basis for demonstrating that the employment action is adverse because a plaintiff's subjective impressions are not controlling." Id. at 201-202. Examples of materially adverse employment actions include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Id. at 202 (cleaned up).
This Court has held that being transferred to a new location is not, on its own, sufficient to establish an adverse employment action. For example, in Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich.App. 347, 352-353; 597 N.W.2d 250 (1999), the plaintiff argued that she suffered an adverse employment action when she was required to transfer from Detroit to Chicago. This Court held that the plaintiff failed to establish an objective basis upon which to conclude that the action was materially adverse. Id. at 365. This Court reached this conclusion because the plaintiff's compensation did not change and because the plaintiff did not present an objective reason why the new job would be undesirable. Id. at 364-365.
In the present case, MMMC-Clare transferred plaintiff to a similar position in Gratiot that came with higher pay and the same benefits. This standing alone, similarly to Wilcoxon, would be insufficient to constitute an adverse employment action. However, as a result of the transfer, plaintiff was subjected to a 120-day probationary period. This probationary period is what led to plaintiff's ultimate termination and provides "an objective basis for demonstrating that the employment action [was] adverse . . . ." Chen, 284 Mich.App. at 201-202. Accordingly, the trial court erred to the extent that it concluded that no genuine issue of material fact existed with respect to whether plaintiff suffered an adverse employment action.
"A trial court's error is harmless if, based on review of the entire record, it is more probable than not that the error was not outcome determinative; if the probability runs in the other direction, then it is reversible error." Nahshal v Fremont Ins Co, 324 Mich.App. 696, 717; 922 N.W.2d 662 (2018). Our review of the record confirms that it was more probable than not that the trial court's error was not outcome determinative. As discussed, plaintiff failed to establish that the adverse employment action was causally connected to her asserting rights under the WDCA or that a genuine issue of material fact existed regarding defendants' justification for eliminating her position at MMMC-Clare. Because we conclude that the trial court's ruling on the issue of casual connection was correct, as discussed above, any purported error regarding the adverse employment action was harmless.
Affirmed.
Christopher M. Murray, Michael J. Kelly, Michelle M. Rick