Opinion
No. 352134
03-11-2021
GAIL WATSON, Plaintiff-Appellant, v. GENESYS REGIONAL MEDICAL CENTER, DON KAISER, and KATHERINE ROBERTSON-CAIN, 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 UNPUBLISHED Genesee Circuit Court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. 18-111381-CZ Before: MURRAY, C.J., and M. J. KELLY and RICK, JJ. PER CURIAM.
Plaintiff, Gail Watson, filed this action against her former employer, defendant Genesys Regional Medical Center (GRMC), its director, defendant Katherine Robertson-Cain, and Watson's immediate supervisor, defendant Don Kaiser, alleging that she was discharged in violation of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2701 et seq. The trial court granted partial summary disposition for defendants under MCR 2.116(C)(10) on Watson's claims for race and gender discrimination and unlawful retaliation, but denied their motion with respect to Watson's claim for religious discrimination. Following a jury trial, the trial court entered a judgment of no cause of action on the religious-discrimination claim. Watson appeals as of right, challenging the trial court's dismissal of her claims for race and gender discrimination, and unlawful retaliation. For the reasons stated in this opinion, we affirm.
We reject defendants' argument that this Court lacks jurisdiction over this appeal because Watson failed to timely file her claim of appeal. Defendants rely on an entry in the register of actions indicating that a final order or judgment was filed on December 9, 2019. Although that was the date of the jury's verdict, the record does not contain an actual order or judgment entered on that date. Instead, the judgment on the jury's verdict was not entered until January 3, 2020. Therefore, Watson's claim of appeal, filed on January 6, 2020, was timely filed. MCR 7.204(A)(1).
I. BASIC FACTS
Watson, a black female, was employed at GRMC from June 2005 to January 2017. Her job involved sterilizing and preparing surgical equipment. Her immediate supervisor, Kaiser, and the director of the department, Robertson-Cain, are both white. In her amended complaint, plaintiff alleged that GRMC, Kaiser, and Robertson-Cain violated the ELCRA by discriminating against her on the basis of her race, religion, and gender, and also retaliated against her for raising claims of civil rights violations.
GRMC has a five-step corrective-action policy that allows for progressively harsher penalties for workers who violate GRMC's rules and policies. Before Watson's termination in January 2017, her disciplinary history at GRMC included disrespectful and insubordinate conduct that placed her at step four. Step five allows for termination of employment. In January 2017, Robertson-Cain scheduled a meeting with Watson to investigate complaints she had received from coworkers about Watson's conduct. Coworkers reported that Watson had been bringing a bag with her to daily staff meetings that contained cards with writings on them. Watson testified that the cards contained religious scriptures, which brought her comfort. Coworkers described that Watson would position the bag on a table so that it faced Kaiser, her supervisor, and whenever Kaiser moved, Watson repositioned the bag to face him. The bag contained cards that said, "God has everything under control," "The Devil is a liar," and "Satan's power is limited." Watson also was observed placing the bag in Kaiser's line of sight whenever he went near her workstation. Watson was also described as being disrespectful toward Kaiser by turning her back to him and not responding when he spoke. Watson and Kaiser had a cordial relationship until approximately August 2016, when Kaiser, who is gay, married another man.
On January 24, 2017, Robertson-Cain met with Watson for the purpose of investigating the complaints by coworkers. Watson's union representative was present, as was Kaiser. Watson told Robertson-Cain that the sayings on her bag were religious scriptures, and Watson questioned whether Robertson-Cain was harassing her for expressing her religious beliefs. Robertson-Cain responded that Watson could continue to have her bag or cards at work if she kept them in her pocket so they were not visible to her coworkers because some found it offensive that she was using them in a manner that was disrespectful to her manager. According to Robertson-Cain, Watson was rude, disrespectful, and raised her voice at Robertson-Cain during the meeting. Watson also repeatedly pointed her finger at Robertson-Cain, hummed a song, chanted, and questioned whether Robertson-Cain intended to call a "code gray," which is a code for summoning security when someone becomes violent or combative. Watson continued this behavior after Robertson-Cain asked her to stop. Because of Watson's continuous conduct, Robertson-Cain ended the meeting prematurely and suspended Watson pending further investigation. Watson refused to sign the discipline form.
On January 30, 2017, Watson was notified that she was being terminated from her employment "for violations within the corrective action policy. Discourteous conduct; specifically, disrespectful treatment of supervisor." Watson subsequently filed this action, raising claims of religious, race, and gender discrimination, and unlawful retaliation, contrary to the ELCRA. On appeal, Watson challenges the trial court's order granting defendants summary disposition of her claims for race and gender discrimination, and unlawful retaliation.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Watson argues that the trial court erred by granting summary disposition. We review de novo a trial court's decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). In reviewing a motion for summary disposition under MCR 2.116(C)(10), a court considers "affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion." Greene v A P Prods, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006) (citation marks and quotations omitted). The motion for summary disposition "tests the factual support for a claim and should be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." MEEMIC Ins Co v DTE Energy Co, 292 Mich App 278, 280; 807 NW2d 407 (2011). A genuine issue of material fact exists if the record, viewed in a light most favorable to the nonmoving party, establishes a matter in which reasonable minds could differ. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
B. ANALYSIS
Watson argues that she was retaliated against because of her opposition to religious, racial, and gender discrimination. She relies on the burden-shifting approach rather than relying on direct evidence of retaliation. DeBrow v Century 21 Great Lakes, Inc, 463 Mich 534, 537-538; 620 NW2d 836 (2001). Under this approach, the plaintiff has the initial burden of establishing a prima facie case of retaliation. Roulston v Tendercare (Mich), Inc, 239 Mich App 270, 280; 608 NW2d 525 (2000).
MCL 37.2701(a) provides that a person shall not "[r]etaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act." To establish a prima facie claim of retaliation, a plaintiff must show
(1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. [Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 273; 696 NW2d 646 (2005), amended 473 Mich 1205 (2005).]
Causation may be proven by circumstantial evidence, but the "circumstantial proof must facilitate reasonable inferences of causation, not mere speculation." Shaw v City of Ecorse, 283 Mich App 1, 14-15; 770 NW2d 31 (2009) (citation omitted). To prevail, a plaintiff must show that her employer took the adverse employment action because of the protected activity. West v Gen Motors Corp, 469 Mich 177, 185; 665 NW2d 468 (2003). A temporal relationship between protected conduct and an adverse employment action, "standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action." Id. at 186.
Once a prima facie case is established, "the burden shifts to the defendant to articulate a legitimate business reason" for the adverse employment action. Roulston, 239 Mich App at 281. "If the defendant produces evidence establishing the existence of a legitimate reason" for the adverse employment action, the plaintiff has an opportunity to prove that the proffered legitimate reason "was not the true reason, but was only a pretext" for the adverse action. Id. As explained in Feick v Monroe Co, 229 Mich App 335, 343; 582 NW2d 207 (1998):
A plaintiff can establish that a defendant's articulated legitimate, nondiscriminatory reasons are pretexts (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.
Watson argues that she was discriminated against for opposing religious discrimination, racial discrimination, and gender discrimination. We address each claim in turn.
1. RETALIATION FOR OPPOSING RELIGIOUS DISCRIMINATION
Watson argues that she opposed religious discrimination at the investigative meeting with Robertson-Cain on January 24, 2017. At that meeting, Robertson-Cain was investigating both whether Watson's use of her plastic bag with religious sayings was disruptive or offensive to other workers, and whether Watson was otherwise acting disrespectfully toward Kaiser. Although the trial court allowed Watson's claim for religious discrimination to proceed to trial, it dismissed her claim for retaliation for opposing religious discrimination.
Based on the evidence submitted in connection with the motion for summary disposition, we conclude that Watson failed to establish a question of fact regarding whether her discharge was causally connected to any opposition to religious discrimination. Defendants' evidence indicated that Watson had a history of behavioral issues in the workplace, which had led to prior disciplinary actions and efforts to counsel her about her behavior. She had progressed through the five-step corrective action process because of previous disciplinary problems involving disrespectful and insubordinate behavior toward coworkers, vendors, and supervisors. The purpose of the January 24, 2017 meeting was to investigate complaints from coworkers that Watson's conduct during staff meetings was disruptive and inappropriate. That conduct involved not only displaying her bag with religious sayings and references to Satan and the devil, which plaintiff allegedly would frequently redirect to face Kaiser, but also involved Watson acting disrespectfully toward Kaiser during meetings by turning her back and not communicating with him. According to Robertson-Cain, she did not know why the other workers felt that the sayings on the bag were inappropriate, which was why she was conducting the investigation, and she did not even know if the sayings were religious scriptures. At the meeting, however, Watson continued her display of disrespectful conduct toward Robertson-Cain by becoming heated and loud, continuously pointing her finger at Robertson-Cain, humming a song, questioning whether Roberson-Cain intended to call a code gray, and continuing this pattern of behavior after Roberson-Cain repeatedly told her to stop. Watson's conduct caused Robertson-Cain to end the meeting prematurely. Watson was terminated because of her disrespectful and insubordinate conduct toward Robertson-Cain, and because she had reached the last step in GRMC's progressive corrective-action process, which called for termination.
On appeal, Watson relies, in part, on testimony from the trial on religious discrimination that occurred after the trial court summarily dismissed her claims for retaliation based on her opposition to religious, racial, and gender discrimination, and her claims for racial and gender discrimination. We do not consider the trial testimony or any other evidence that was not submitted by the parties in connection with the motion for summary disposition. See Greene, 475 Mich at 507 (recognizing that when reviewing a motion under MCR 2.116(C)(10), the reviewing court considers that "affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion.") (emphasis added).
Specifically, Robertson-Cain testified at her deposition that Watson was pointing fingers at her, but denied that Watson pointed her finger directly in Robertson-Cain's face. Robertson-Cain also made it clear at her deposition that Watson was terminated because of her history of disrespectful and insubordinate conduct that put her at the end of the progressive disciplinary process, not simply because she pointed her finger at Robertson-Cain or was disrespectful to Robertson-Cain.
On appeal, Watson asserts that she actually was not at the fifth stage of the progressive disciplinary process at the time of her discharge. However, the submitted evidence indicated that plaintiff was at the fifth step at the time of her discharge, and plaintiff never challenged the accuracy of that contention in the trial court. Watson's argument on appeal is based on her own post hoc analysis of her disciplinary record and GRMC's policies, but because she did not contest this point below, a record was never properly developed on this issue. Accordingly, we decline to accept Watson's post hoc argument on appeal.
Watson argues that the timing of her discharge is sufficient to establish a genuine issue of material fact whether she was terminated for opposing religious discrimination because she was terminated only one week after her meeting with Robertson-Cain at which the subject of the religious sayings on her bag were discussed. However, the focus of that meeting was not on whether the sayings were of a religious nature, but rather whether Watson was displaying material in a disrespectful and inappropriate manner that was disruptive to other workers and whether Watson was acting disrespectfully toward Kaiser, her supervisor, during group meetings, which was disruptive to other workers. Robertson-Cain never completed her investigation of these matters because she had to prematurely end her meeting with Watson due to Watson's continued inappropriate and disrespectful conduct during the meeting, and Watson was terminated a week later because she was at the last step of GRMC's corrective-action process, which was termination. The proffered reason for Watson's termination did not involve her display of her bag with the religious sayings, but her continued disrespectful and insubordinate conduct at the meeting with Robertson-Cain. For the foregoing reasons, we conclude that Watson failed to establish her prima facie case because she could not establish a causal connection between the protected activity and the adverse employment action.
In addition, even if Watson had established her prima facie case, summary disposition was still warranted. Although defendants articulated a legitimate business reason for Watson's discharge, Watson failed to establish a question of fact whether GRMC's proffered reason for her discharge (i.e., her disrespectful conduct toward Robertson-Cain) was a pretext for unlawful retaliation. Kaiser, who was also present at the meeting with Robertson-Cain, acknowledged that Watson was rude and disrespectful during the meeting, pointed her fingers at Roberson-Cain, began to sing and hum, and questioned whether Robertson-Cain intended to call a code gray. It was undisputed that Watson had a disciplinary history involving disrespectful and insubordinate conduct toward coworkers, vendors, and supervisors. Dawn Beindit, a labor-relations partner for GRMC, testified that she had attended several prior meetings with Watson to address her behavior at work. According to Beindit, the union and the hospital had done everything they could to get through to Watson about her conduct. Beindit testified that because of Watson's previous disciplinary history, she had reached the last stage of GRMC's progressive disciplinary process, which was termination. Thus, summary disposition was warranted because Watson could not establish that the articulated reasons for her discharge were pretextual.
On appeal, Watson argues that each of the stated reasons for discharge were false. However, her argument relies on evidence from her trial on the religious discrimination claim that was not, in fact, submitted by the parties in connection with the summary-disposition motion. It also relies on her post hoc evaluation of her disciplinary record. We do not consider either. See notes, 2 and 4, supra.
2. RETALIATION FOR OPPOSITION TO RACIAL DISCRIMINATION
Watson argues that there is a question of fact whether defendants retaliated against her for raising the issue whether Caucasian coworkers were treated more favorably with regard to their display of religious ornaments or quotes. In the trial court, Watson argued that the causation element for this claim was supported by evidence of Kaiser's statement about her "twisted little mind," Kaiser calling a code gray on her, defendants violating their own policies with regard to religious expressions in the workplace and selectively enforcing those policies against Watson only, and defendants failing to investigate Watson's claims of racial discrimination. The substance of Watson's claim is that she was treated differently than similarly situated white employees with respect to the display of religious ornaments or quotes in the workplace.
However, with regard to whether there was differential treatment related to the display of religious ornaments or quotes, the submitted evidence showed that even when Watson filed a written complaint in August 2016 accusing Kaiser of racial discrimination, there were no allegations that she was treated differently on account of her race with respect to religious expression in the workplace. Moreover, although Watson presented evidence that religious displays by white employees were permitted or tolerated in the workplace, the evidence demonstrated that the circumstances surrounding Watson's religious displays were significantly different than other workers. Watson was allowed to display religious quotes on her bag for several months without any interference by defendants. The evidence showed that it was not until Watson began using her plastic bag and the statements written on cards attached to that bag in a harassing manner directed at Kaiser during morning meetings, or whenever he went near her workspace, that the displays became a problem. Watson did not present any evidence that any white employee was allowed to display religious material in a similar manner without being disciplined. In sum, even viewing the evidence in the light most favorable to Watson, it was not the displays themselves, but her use of them in a harassing manner that was deemed objectionable. Moreover, while Watson cites possible evidence of a discriminatory intent by Kaiser, she did not show that she opposed how she was treated with regard to religious displays in the workplace on the basis of her race, and she did not show that she was similarly situated to any other worker in the manner in which religious quotes were displayed in the workplace. Therefore, the trial court did not err by granting summary disposition for defendants with respect to this claim.
Watson also argues that she was subject to retaliation for complaining that Kaiser treated her differently than her white coworkers. In an August 2016 complaint that Watson filed with GRMC, she complained that Kaiser retaliated and discriminated against her because of her race. She cited as examples the incident when Kaiser contacted security by calling a code gray and her suspension for three days, which she alleged was because of a phrase she used, but Caucasian coworkers were not similarly disciplined when they used the same phrase. Watson argues that this August 2016 complaint supports her claim for retaliation based on her race. However, Dawn Beindit testified that the allegations of racial discrimination were investigated by GRMC's Human Resources Department, which included interviewing Watson's coworkers, and the discrimination allegations were found to have not been supported by the evidence. However, GRMC agreed that Kaiser had overreacted by calling a code gray and he was required to apologize to plaintiff. Watson's conduct in that incident was also found to have violated GRMC's policies, but her suspension for that incident was removed from her record to rectify Kaiser's inappropriate response to the situation.
Furthermore, defendants presented evidence that Watson's dismissal was based on legitimate business reasons, unrelated to her previous complaints of discrimination. The evidence showed that Watson was insubordinate to Kaiser and refused to follow his orders regarding work she was asked to perform. Her continued disrespectful conduct in the workplace created disruptions and problems for Kaiser and coworkers, and, despite being counseled by union and Human Resources representatives, her disrespectful and disruptive behavior continued over time, resulting in harsher discipline under GRMC's progressive disciplinary policy.
Watson failed to show that there was a genuine issue of material fact whether defendants' proffered reasons for her dismissal were a pretext for discrimination. Her history of insubordinate and disruptive conduct was well-documented and attested to by her coworkers and her employment records, which Watson conceded in many instances were accurate. Watson, at times, refused to perform duties for which she was hired. She was counseled by union representatives, supervisors, and representatives from human resources about her disrespectful conduct, but it continued and did not improve. Accordingly, the trial court did not err by dismissing this claim for retaliation involving racial discrimination.
3. RETALIATION FOR OPPOSITION TO GENDER DISCRIMINATION
Watson next asserts that she was fired for engaging in protected activity because one of the reasons cited for her discharge was that she was "disrespectful." According to the evidence, Watson was terminated because of her discourteous and disrespectful conduct toward Robertson- Cain, who is female. Although Kaiser is male, he was not directly involved in the decision to terminate Watson's employment. Watson did not present any other evidence suggesting that her gender was a factor in any adverse employment action. And, again, Watson's conduct involving insubordination toward Kaiser was well-documented and had nothing to do with raising opposition to instances of gender discrimination. Accordingly, the trial court did not err by dismissing any claim for retaliation involving gender discrimination.
III. DISCRIMINATION CLAIMS
Watson also challenges the trial court's decision to summarily dismiss her substantive claims of race and gender discrimination. We address each claim in turn.
A. RACIAL DISCRIMINATION
Watson contends that she was treated dissimilarly from white employees who were allowed to display religious icons or sayings, but were not discharged. Watson established a prima facia claim of race discrimination with regard to the possession and display of religious sayings in the workplace. She presented documentary evidence showing that three white employees brought religious sermons and ornaments to work without any repercussions. Yet, as discussed earlier, the evidence demonstrated that defendants terminated plaintiff's employment because of her continued disrespectful and insubordinate conduct, which caused her to reach the end of the five-step disciplinary process. Watson failed to show that this proffered reason for her termination was a mere pretext for discrimination.
Watson also argues that she was discriminated against on the basis of her race when Kaiser called a code gray in 2016 after she insisted on calling Robertson-Cain instead of returning to her workstation. Again, the evidence established that this matter was investigated by GRMC, which resulted in a determination that Kaiser had overreacted by calling security, but his actions were not racially motivated. As a result, he apologized to Watson, her discipline for that incident was reduced, and she received full pay for that day. There is nothing on the record indicating that Kaiser's decision to call a code gray was racially motivated. Kaiser testified that he had never called a code gray before and since the incident with Watson, and Watson did not present any evidence that any other similarly situated employee was treated differently for similar conduct. Instead, Watson merely argues that the evidence that she was wrongly subjected to a code gray is evidence of racial discrimination because Kaiser is white and she is black. That is not enough to give rise to an inference that Kaiser's decision to call the code gray was racially motivated.
Next, Watson argues that the trial court erred by dismissing her claim that defendants discriminated against her on the basis of her race by failing to investigate her complaints against Kaiser, which she contends involved both racial and gender discrimination. On appeal, Watson states that her complaints against Kaiser were not investigated, but she does not provide any actual support for that position. Regardless, the evidence showed that defendants did investigate her complaints, some of which were resolved through the grievance process. According to Karen Weiss, a labor relations partner for GRMC, after Watson filed her written complaint in 2016 raising a variety of issues regarding interactions with Kaiser, many of the issues were addressed by a previous labor-relations partner and then, later, the union president and Watson's representative, Steve Justice, met with Weiss to discuss other issues that were not addressed in the summer of 2016. Watson has not shown that the trial court erred by dismissing this claim.
Finally, Watson appears to also rely on the discipline she received because of her conduct toward a vendor's representative, whom she believed had made derogatory comments about workers at Hurley Medical Center, questioning their competence. Watson explained that she found the comments offensive because she had previously worked at Hurley Medical Center and knew many of the people there. This incident was investigated by GRMC and Watson was disciplined for being disrespectful to the representative. Watson admitted in her deposition that she confronted the individual involved instead of reporting it to her supervisor. Although Watson testified at her deposition that she thought the vendor's remarks were racially insensitive because many of the workers at Hurley Medical Center are minorities, the remarks themselves were racially neutral and there was no evidence that defendants were aware that Watson's conduct involved perceived racial discrimination. Further, there was no evidence to support an inference that the discipline she received for that incident was racially motivated. She incurred a five-day suspension not only for her conduct in that incident but also because of her history of behavioral problems and past discipline. Watson did not present evidence that she was treated differently than other workers who engaged in similar conduct and were at a similar level under GRMC's progressive disciplinary process.
B. GENDER DISCRIMINATION
Finally, Watson argues that she was treated differently than Kaiser, a male, as it related to her complaints of discrimination. However, she did not present evidence that she and Kaiser were similarly situated. Instead, the record reflects that Watson was a member of the union and was subject to the five-step disciplinary action plan. There is no evidence as to Kaiser's status as a union member or non-union member. Furthermore, there is no evidence that Kaiser had engaged in insubordinate and discourteous conduct. Thus, the trial court did not err by dismissing the gender discrimination claim.
Affirmed. Defendants may tax costs. MCR 7.219(A).
/s/ Christopher M. Murray
/s/ Michael J. Kelly
/s/ Michelle M. Rick