Opinion
No. 342172
02-26-2019
JENNIFER LEIGH GOLDEN, Plaintiff-Appellant, v. CITY OF FLINT, CITY OF FLINT POLICE DEPARTMENT, and TIM JOHNSON, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court
LC No. 16-108027-CD Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ. PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition under MCR 2.116(C)(10) in favor of defendants, the city of Flint, the city of Flint Police Department, and Police Chief Tim Johnson, in this case alleging employment discrimination based on gender. We reverse and remand for further proceedings.
Plaintiff began her career with the city of Flint as a police officer in 1996. She continued her education and earned several promotions. In May 2014, she was promoted to the rank of captain and became the shift commander for the patrol operations bureau where she supervised and managed hundreds of patrol officers. At some point, she also became the public information officer for the police department. After defendant Johnson was appointed as chief of police in February 2016, multiple changes took place within the police department. And according to plaintiff, she became the target of defendant Johnson's harassment. For example, between April and August of 2016, plaintiff's request for grant-sponsored police training was denied, a subordinate officer was allowed to speak and treat plaintiff disrespectfully during a staff meeting, she was no longer permitted to work overtime, and defendant Johnson sought plaintiff's medical records pertaining to a work-related knee injury for which she underwent several surgeries and multiple rounds of physical therapy. Then, at a command staff meeting held on August 31, 2016, that was attended by police and department heads from the city of Flint as well as subordinate officers and the public, defendant Johnson "went on a five-minute tirade" against plaintiff that constituted "a completely unwarranted and inappropriate thrashing." Plaintiff then filed a harassment complaint with the city of Flint's Human Resources/Labor Relations Department, alleging that defendant Johnson was harassing her, as evidenced by his conduct at the August 31, 2016 meeting, and had been since March 2016. The day after plaintiff was interviewed with regard to the investigation of her harassment complaint, on September 16, 2016, defendant Johnson removed plaintiff from her position as shift commander for the patrol operations bureau, and she was relieved of her duties as the public information officer. Plaintiff was transferred to a newly created division called "support services" or "identification bureau" which is comprised of civilians and non-uniformed services, and she was told to reorganize the property room located in the basement. Plaintiff admitted that her transfer was not a demotion, but was a lateral move and a "slap in the face." She believed she was transferred in retaliation for filing the harassment complaint against defendant Johnson.
In October 2016, plaintiff filed her four-count complaint alleging: a violation of the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq.; a public policy wrongful discharge claim; gender discrimination in violation of the Elliott-Larsen Civil Rights Act (CRA), MCL 37.2101 et seq.; and retaliation in violation of Article 7 of the CRA.
In November 2017, defendants moved for summary disposition under MCR 2.116(C)(10), arguing that all of plaintiff's claims must be dismissed because she was not discharged and suffered no adverse employment action under the WPA or the CRA. Plaintiff was merely transferred from one division to another division, which was a lateral move. Plaintiff responded to the motion, arguing that a genuine issue of material fact existed as to whether she suffered an adverse employment action under the WPA and CRA, but she stipulated to the dismissal of her public policy wrongful discharge claim. Plaintiff argued that she was improperly transferred out of her position, was denied training opportunities, and was removed from her public information officer role which resulted in a loss of overtime pay.
Following oral arguments, the trial court granted defendants' motion for summary disposition and dismissed the case in its entirety. The court referred to the case of Wilcoxon v Minn Mining & Mfg Co, 235 Mich App 347; 597 NW2d 250 (1999), regarding its determination as to whether plaintiff suffered an adverse employment action. The court noted that this was a lateral transfer with the same pay and the same rank, and the only thing different in terms of plaintiff's actual job assignment was that she did not supervise actual police work, but that was not really adverse to her. Thus, the court concluded that plaintiff did not suffer an adverse employment action for purposes of the WPA and CRA. Accordingly, defendants were entitled to summary disposition. This appeal followed.
Plaintiff argues that the trial court improperly granted defendants' motion for summary disposition regarding her WPA and gender discrimination claims. We agree.
This Court reviews de novo a decision on a motion for summary disposition. Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013). A motion for summary disposition under MCR 2.116(C)(10) challenges the "factual adequacy of a complaint on the basis of the entire record, including affidavits, depositions, admissions, or other documentary evidence." Id. at 115. We consider only the evidence that was presented at the time that the trial court made its decision on the motion. Id. at 120. A trial court's grant of summary disposition under MCR 2.116(C)(10) is proper when the evidence, "viewed in the light most favorable to the nonmoving party, show[s] that there is no genuine issue as to any material fact and the moving party is therefore entitled to judgment as a matter of law." Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 344 (2016). "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." Gorman, 302 Mich App at 116 (citation omitted). "Whether a plaintiff has established a prima facie case under the WPA is a question of law subject to review de novo." Manzo v Petrella, 261 Mich App 705, 711; 683 NW2d 699 (2004). Questions of statutory interpretation are also reviewed de novo. Id.
I. WHISTLEBLOWERS' PROTECTION ACT CLAIM
Plaintiff argues that the trial court erred in dismissing her WPA claim because the court did not recognize the difference between "adverse employment actions" under the WPA as compared to the CRA, and it did not properly consider caselaw providing that reassignment can be an adverse employment action under the WPA. We agree that the trial court did not apply the proper standard in determining whether plaintiff suffered an adverse employment action under the WPA, and improperly granted defendants' motion for summary disposition related to plaintiff's WPA claim.
"The WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body." Anzaldua v Neogen Corp, 292 Mich App 626, 630; 808 NW2d 804 (2011). Its underlying purpose is to protect the public. Id. at 631. MCL 15.362 of the WPA provides:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.The WPA protects the whistleblowing employee, and removes barriers that may prevent employees from reporting violations or suspected violations of the law in the future. Anzaldua, 292 Mich App at 631 (citation omitted). It is a remedial statute that must be construed liberally to favor the individuals that the Legislature intended to protect. Id.
A prima facie case under the WPA has been described by Michigan courts with differing language for the second element. For example, in Anzaldua, this Court stated: "A prima facie case under the WPA arises when (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the adverse employment decision." Id. at 630-631. In Whitman v City of Burton, 493 Mich 303; 831 NW2d 223 (2013), the Court stated: "To establish a prima facie case under the WPA, a plaintiff need only show that (1) he or she was engaged in protected activity as defined by the act, (2) he or she suffered an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse employment action." Id. at 313.
However, in Wurtz v Beecher Metro Dist, 495 Mich 242; 848 NW2d 121 (2014), our Supreme Court clarified the elements, "[d]rawing from the statutory language," as follows:
(1) The employee was engaged in one of the protected activities listed in the provision.In a footnote, the Wurtz Court explained that courts have used the term "adverse employment actions" as a label for retaliatory acts that an employer may take toward a whistleblower, "[b]ut the way that the term has obtained meaning resembles the telephone game in which a secret is passed from person to person until the original message becomes unrecognizable." Id. at 251 n 14. The term originated in the context of federal antidiscrimination statutes, then appeared in the Michigan Supreme Court in the context of age discrimination—although not contained in the statute—and then Michigan courts adopted the federal definition of the term for the element of a prima facie case under the CRA. Id. Then the term "crept into WPA cases." Id. at 251-252 n 14 (citations omitted). For clarification of the use of the term in WPA cases, the Wurtz Court provided:
(2) [T]he employee was discharged, threatened, or otherwise discriminated against regarding his or her compensation, terms, conditions, location, or privileges of employment.
(3) A causal connection exists between the employee's protected activity and the employer's act of discharging, threatening, or otherwise discriminating against the employee. [Id. at 251-252 (footnotes omitted).]
While the term "adverse employment action" may be helpful shorthand for the different ways that an employer could retaliate or discriminate against an employee, this case illustrates how such haphazard, telephone-game jurisprudence can lead courts far afield of the statutory language. That is, despite courts' freewheeling transference of the term from one statute to another, the WPA actually prohibits different "adverse employment actions" than the federal and state antidiscrimination statutes. So we take this opportunity to return to the express language of the WPA when it comes to the necessary showing for a prima facie case under that statute. Put another way, a plaintiff's demonstration of some abstract "adverse employment action" as that term has developed in other lines of caselaw will not be sufficient. Rather, the plaintiff must demonstrate one of the specific adverse employment actions listed in the WPA. [Id. at 242 n 14.]
In this case, the trial court erred when it dismissed plaintiff's WPA claim based on its determination that plaintiff could not establish the second element of her claim, i.e., that she suffered an "adverse employment action." The trial court relied on Wilcoxon for its analysis, but the plaintiff in Wilcoxon alleged claims under the CRA, not the WPA. Wilcoxon, 235 Mich App at 353. As noted in Wurtz, the prima facie case for a WPA claim differs from that for a CRA claim, and plaintiff had to establish one of the specific actions provided in the WPA to establish a prima facie case. Wurtz, 495 Mich at 251-252 n 14. Although the trial court incorrectly used the standard for an adverse employment action under the CRA to dismiss plaintiff's claim under the WPA, we may affirm a trial court's decision if the correct result was reached, albeit for the wrong reason. Gleason v Dep't of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003).
The first element of plaintiff's prima facie case under the WPA is not in dispute. Defense counsel conceded at the motion hearing that plaintiff engaged in a protected activity when she filed a complaint with Human Resources (HR) on August 31, 2016. And, as discussed above, the second element of a prima facie case under the WPA is whether plaintiff was discharged, threatened, or otherwise discriminated against regarding her compensation, terms, conditions, location, or privileges of employment. Wurtz, 495 Mich at 251. Plaintiff was not discharged by defendants and was still employed with the department as captain of the identification bureau. Plaintiff asserts several ways that she was otherwise discriminated against regarding her compensation, terms, conditions, location, or privileges of employment. However, she admitted that her transfer as captain of the patrol operations bureau to captain of the identification bureau was a lateral transfer, not a demotion. She maintained her rank as captain. She did not receive a new work location away from the police department due to this transfer. As captain of the identification bureau, she was tasked with reorganizing the department property room, which seemingly is located in a different area of the police department. This change of location of plaintiff's office within the building of the department does not rise to discrimination against plaintiff in terms of location.
Plaintiff also failed to establish that she was discriminated against by being denied training. Plaintiff's first denied training request, dated August 15, 2016, occurred before she filed her HR complaint on August 31, 2016. A note was placed on this request form from Joan Ketzler, defendant Johnson's administrative assistant, indicating that Johnson wanted Lieutenant Todd Pillsbury, a male, to attend instead of plaintiff. Plaintiff submitted another training request on September 1, 2016, one day after she filed her HR complaint. Plaintiff was not approved for this training, but Lieutenant Mark Boudreau was. Defendant Johnson testified that this second training request was denied because he felt that the lieutenant was in more need of the training than plaintiff. Defendant Johnson does not approve every training request that he receives, and he approved several other training requests from plaintiff. This training cost $295, and the department finance director indicated that the department was running out of training funds, so defendant Johnson denied several training requests from many officers, not just plaintiff.
However, a question of fact exists regarding whether plaintiff was otherwise discriminated against in terms of overtime pay. The memorandum requiring lower ranking officers to work overtime hours before a captain could work was issued to all department members, and it was issued before plaintiff filed her HR complaint. Thus, this was not discrimination in retaliation to her complaint. But plaintiff's removal as public information officer appears to be a privilege of employment tied to her position as captain of patrol operations that she lost because of her transfer. As a result, she claims to have lost $9,000 in salary each year. Defendant Johnson testified that plaintiff was removed as public information officer after her transfer because it was not a part of the support services bureau. He "guessed" that he could have made it a part of support services, but he was trying to keep all the transfers simple, and place the best employee in the best position. Plaintiff responded to interrogatories by defendant, stating that she suffered from a reduction of nine standby hours of pay each week after being removed from the position of public information officer. Her overtime or standby rate of pay was $57.977 each hour. Plaintiff's counsel asserted at the motion hearing in January 2018 that, by that point in time, plaintiff had lost $22,000 in pay from no longer being the public information officer.
Plaintiff also established that a genuine issue of material fact existed as to the third element of her WPA claim—that a causal connection existed between the protected activity and the alleged discriminatory action. See Wurtz, 495 Mich at 252. "A temporal connection between protected activity and an adverse employment action does not, in and of itself, establish a causal connection, but it is evidence of causation[.]" Shaw v City of Ecorse, 283 Mich App 1, 15; 770 NW2d 31 (2009) (citations omitted). As recognized by this Court:
A plaintiff may establish a causal connection through either direct evidence or indirect and circumstantial evidence. Direct evidence is that which, if believed, requires the conclusion that the plaintiff's protected activity was at least a motivating factor in the employer's actions. To establish causation using circumstantial evidence, the circumstantial proof must facilitate reasonable inferences of causation, not mere speculation. Speculation or mere conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. In other words, the evidence presented will be sufficient to create a triable issue of fact if the jury could reasonably infer from the evidence that the employer's actions were motivated by retaliation. [Id. at 14-15 (quotation marks and citations omitted).]
Here, plaintiff argues that a day or two after she filed her complaint, defendant Johnson started soliciting statements from witnesses at the command meeting. And one day after she reported to HR that Johnson was harassing her because of her gender, she was transferred to a new position. As noted above, the overtime memorandum changing the entire department policy was issued before plaintiff filed her HR complaint, so she cannot establish a causal connection in this regard. Additionally, plaintiff's HR complaint did not specifically allege that she was being harassed based on her gender. However, the investigation report of HR Specialist, Tia Lewis, indicates that she and the HR Director, Charley McClendon, met with plaintiff on September 15, 2016 as part of their investigation, and plaintiff said that she was being harassed because she was female. The memorandum ordering plaintiff's transfer was issued the same day. This close proximity in events is evidence of causation, and at the very least, establishes a question of fact regarding the final element of the prima facie case. See Gorman, 302 Mich App at 116. A trier of fact could reasonably infer that defendant Johnson's actions were motivated by retaliation. See Shaw, 283 Mich App at 14-15.
Because questions of fact exist regarding a prima facie case under the WPA, the trial court improperly dismissed this claim. See Gorman, 302 Mich App at 115. Where evidence is conflicting regarding an element of a prima facie case, summary disposition is improper. DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 442; 566 NW2d 661 (1997). Therefore, the trial court's order dismissing plaintiff's WPA claim is reversed.
II. CIVIL RIGHTS ACT DISCRIMINATION CLAIM
Plaintiff also argues that the trial court erred when it granted defendants' motion for summary disposition regarding her claim of gender discrimination under the CRA because she did experience an adverse employment action. We agree.
MCL 37.2202(1)(a) of the CRA provides:
(1) An employer shall not do any of the following:Courts have recognized two categories of discrimination claims under this section: disparate treatment claims and disparate impact claims. Wilcoxon, 235 Mich App at 358. In this case, plaintiff alleged that she was treated differently because she was female. Therefore, her claim is one of disparate treatment.
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an 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.
Discrimination may be proven by direct or indirect evidence. Hazle v Ford Motor Co, 464 Mich 456, 462-463; 628 NW2d 515 (2001). Direct evidence is "evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Id. at 462 (citations omitted). When there is no direct evidence of discrimination, the plaintiff "must then proceed through the familiar steps" outlined in McDonnell Douglas Corp v Green, 411 US 792, 802-803; 93 S Ct 1817; 36 L Ed 2d 668 (1973), to avoid summary disposition. Hazle, 464 Mich at 462. "The McDonnell Douglas 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." Id. at 462 (quotation marks and citation omitted).
First, the plaintiff must establish a prima facie case of discrimination by presenting 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) the job was given to another person under circumstances giving rise to an inference of unlawful discrimination." Id. at 463. If the plaintiff does so, a rebuttable presumption of discrimination arises, id., and the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment action taken." Major v Village of Newberry, 316 Mich App 527, 541; 892 NW2d 402 (2016). If the defendant is able to do so, the presumption of discrimination "drops away," Hazle, 464 Mich at 465, unless the plaintiff can establish that the proffered reason was pretext, Major, 316 Mich App at 452. The plaintiff may present evidence that the explanation provided by the employer constitutes pretext for discrimination:
(1) by showing the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if
they were factors, by showing that they were jointly insufficient to justify the decision. [Id. at 542 (citation omitted).]However, in cases of both direct and indirect evidence, the plaintiff must establish a causal link between the discriminatory animus of the employer and the adverse employment action. Id. (citation omitted).
The element of a prima facie case under the CRA in dispute in this appeal is whether plaintiff suffered an adverse employment action. Regarding the first element, plaintiff is female, and therefore, a member of a statutorily protected class. See Donajkowski v Alpena Power Co, 219 Mich App 441, 449; 556 NW2d 876 (1996). It is undisputed that plaintiff was qualified for her position as captain; she had an associate's degree in criminal justice, graduated from police staff and command school, and was promoted from police officer recruit to sergeant, lieutenant, and then captain. Plaintiff was transferred from her position as captain of the patrol operations bureau to captain of the identification bureau, and she was replaced by a male employee, Lieutenant Devon Bernritter; thus, the fourth element of a prima facie case was met. See Hazle, 464 Mich at 463.
Thus, we turn to the second element, i.e., whether plaintiff suffered an adverse employment action. The trial court noted that one materially adverse effect on plaintiff was her loss of overtime as the captain of patrol operations. However, the court noted its lack of knowledge on this issue. The court also acknowledged its struggle with the issue of whether plaintiff suffered an adverse employment action because she was laterally transferred with the same pay and rank. She no longer supervised actual police work, but the court considered this a benefit, rather than being adverse, because she was no longer in harm's way. Plaintiff was not discharged. Therefore, the court determined that plaintiff did not suffer an adverse employment action under Wilcoxon.
"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 NW2d 820 (2009) (citation omitted). This element of a prima facie case requires a showing that an employment action was "materially adverse," including "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." Wilcoxon, 235 Mich App at 363 (quotation marks and citations omitted). "In determining the existence of an adverse employment action, courts must keep in mind the fact that '[w]ork places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.' " Peña v Ingham Co Rd Comm, 255 Mich App 299, 312; 660 NW2d 351 (2003) (citation omitted).
[I]n order for an employment action to be adverse for purposes of a discrimination action, (1) the action must be materially adverse in that it is more than "mere inconvenience of an alteration of job responsibilities," . . . and (2) there must be some objective basis for demonstrating that the change is adverse because "a plaintiff's 'subjective impressions as to the desirability of one position over
another' [are] not controlling[.]" [Wilcoxon, 235 Mich App at 364 (citations omitted).]
In Wilcoxon, a black female appealed the summary dismissal of her claims for unlawful race and sex discrimination in her former employment. Id. at 350. In her original complaint, she alleged that she was: (1) provided less training and support staff than white males in similar positions, (2) undermined by defendants' employees, (3) denied reimbursement for continuing education although white males were reimbursed, and (4) demoted and replaced by a white male. Id. at 353. The issue on appeal was whether the plaintiff's transfer from one managerial position to another was an adverse employment action. Id. at 362. Throughout her employment, the plaintiff received promotions, raises, and above-average performance evaluations. Id. at 350. But the plaintiff had difficulty dealing with other managers, and attributed her problems to racism and sexism. Id. at 351. The plaintiff's direct supervisor testified that her transfer was "to take advantage of her strengths, while minimizing her role in her areas of weakness." Id. The plaintiff's replacement in her former position was a white male. Id. at 352. The plaintiff's transfer did not include a reduction in salary or benefits. Id. at 351-352. This Court determined that the plaintiff failed to establish that her transfer was an adverse employment action, and she had only advanced her own subjective views. Id. at 365. The plaintiff was not stripped "of the accouterments of her former position," and "advanced no objective reason why the new position would be unbearable or even undesirable." Id. Thus, the Wilcoxon trial court did not err in finding that the plaintiff's discrimination claim failed with regard to her transfer. Id. at 365-366.
In this matter, plaintiff conceded that her transfer from one captain position to another was a lateral transfer, rather than a demotion. She maintained her rank as captain. The only "relocation" she incurred was from one area of the department office to another, where the property room was located. She provided no reason why the new position was unbearable or undesirable, but rather, initially told HR that she was "fine" with the transfer, and testified at her deposition that she was happy in her position, enjoyed her work, and declined an offer to return to her former position as captain of patrol operations.
However, a question of fact remains regarding whether her removal as public information officer was an adverse employment action. Plaintiff was removed as public information officer when she was transferred, and therefore, received $9,000 less in salary. Defendant Johnson testified that she was removed from this position because it was not a part of the identification bureau. Thus, a question of fact exists as to whether plaintiff suffered an adverse employment action, i.e., was "stripped" of an "accoutrement of her former position." See Wilcoxon, 235 Mich App at 365. Where evidence is conflicting with regard to an element of the prima facie case, summary disposition is improper. DeFlaviis, 223 Mich App at 442. Therefore, the trial court's order dismissing plaintiff's claim of gender discrimination under the CRA is reversed.
Because plaintiff failed to properly raise and brief the issue whether her retaliation claim under Article 7 of the CRA was erroneously dismissed, that matter is deemed abandoned. See Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
/s/ James Robert Redford