PATRICK NNANABU V DEPT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
PATRICK NNANABU,
UNPUBLISHED
March 21, 1997
Plaintiff-Appellant,
v
No. 192877
Lenawee Circuit Court
LC No. 95-006458
MICHIGAN DEPARTMENT OF
CORRECTIONS, ADRIAN CORRECTION
FACILITY, and GUS HARRISON
CORRECTIONAL FACILITY,
Defendants-Appellees.
Before: Corrigan, C.J., and Doctoroff and R.R. Lamb,* JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting summary disposition in favor of defendants.
We affirm in part, reverse in part, and remand.
Although the trial court’s order granted defendants’ motion pursuant to both MCR 2.116(C)(8)
and (C)(10), our review of the record indicates that the parties relied on matters outside the pleadings to
argue the motion. Therefore, we will construe the motion as having been granted solely pursuant to
MCR 2.116(C)(10). See Osman v Summer Green Lawn Care, Inc, 209 Mich App 703, 705; 532
NW2d 186 (1995). On appeal, a trial court’s determination of a motion for summary disposition is
reviewed de novo. Pinckney Schools v Continental Casualty Co, 213 Mich App 521, 525; 540
NW2d 748 (1995). A motion for summary disposition under MCR 2.116(C)(10) may be granted
when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of
law. Id. Giving the benefit of reasonable doubt to the nonmoving party, the trial court must determine
whether a record might be developed that would leave open an issue upon which reasonable minds
might differ. Id. A trial court should grant such a motion if it is satisfied that the claim suffers a
deficiency that cannot be overcome. SSC Associates v General Retirement System, 192 Mich App
360, 365; 480 NW2d 275 (1991).
* Circuit judge, sitting on the Court of Appeals by assignment.
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On appeal, plaintiff contends that genuine issues of material fact exist with regard to his claim of
racial discrimination. We agree. Under the Elliot-Larsen Civil Rights Act, MCL 37.2101 et seq.;
MSA 3.548(101) et seq., a prima facie case of race discrimination can be made by showing either
intentional discrimination, disparate treatment, or disparate impact. Reisman v Regents of Wayne
State University, 188 Mich App 526, 538-539; 470 NW2d 678 (1991). In the instant case, plaintiff
asserts a claim of disparate treatment. To prove disparate treatment, a plaintiff must show that he was a
member of a class entitled to protection under the act and that he was treated differently than a person
of a different class for the same or similar conduct. Reisman, supra at 538.
The burden of proof for employment discrimination cases brought under Title VII of the Civil
Rights Act of 1964, 42 USC 2000e et seq., as stated by the United States Supreme Court in Texas
Dep’t of Community Affairs v Burdine, 450 US 248, 252-253; 101 S Ct 1089; 67 L Ed 2d 207
(1981), also applies in employment discrimination cases brought under the Elliot-Larsen Civil Rights
Act. Sisson v Board of Regents of the University of Michigan, 174 Mich App 742, 746; 436
NW2d 747 (1989). Under Burdine, the establishment of a prima facie case creates a presumption that
the employer unlawfully discriminated against the employee. Burdine, supra, at 254. The defendant
may rebut the presumption of discrimination by articulating (not proving) a legitimate, nondiscriminatory
reason for the adverse employment decision. Lytle v Malady, 209 Mich App 179, 186-187; 530
NW2d 135 (1995), citing Burdine, supra at 253-258. If the defendant articulates a legitimate,
nondiscriminatory reason for the adverse action, the presumption of discrimination is dispelled, and the
plaintiff bears the burden of proving both that the defendant’s proffered reason was pretextual and that
illegal discrimination was more likely the defendant’s true motivation for the adverse employment
decision. Lytle, supra at 187; see also St Mary’s Honor Center v Hicks, 509 US 502, 515-517;
113 S Ct 2742; 125 L Ed 2d 407 (1993).
Plaintiff, a black man, has alleged several instances of disparate treatment. We find that there
exist genuine issues of material fact regarding two of plaintiff’s allegations. First, plaintiff has presented
his deposition testimony stating that, during his tenure of employment with defendants, he was the only
sergeant assigned to perform officer’s duties, which were lower in rank. Conversely, defendants claim
that there was no disparate treatment because white sergeants were also assigned officer’s duties.
Giving the benefit of reasonable doubt to plaintiff, a record might be developed regarding this issue upon
which reasonable minds might differ. Pinckney Schools, supra at 525. Because, at the time summary
disposition was granted, discovery had not been completed, we find that the issue was not ripe for
resolution.
Likewise, plaintiff testified in his deposition that, although arrangements were customarily made
to allow white sergeants assigned to the segregation unit to attend staff meetings, such arrangements
were not made when plaintiff was assigned to the segregation unit. As a result, plaintiff was forced to
miss an important staff meeting. Defendant has not proffered a legitimate, nondiscriminatory reason for
this allegation of disparate treatment. See Lytle, supra at 186-187.
As to both of these allegations, plaintiff has presented documentary evidence upon which he
may ultimately be able to establish disparate treatment, and thus a presumption of racial discrimination.
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Burdine, supra, at 254. Thus, we hold that the trial court’s grant of defendants’ motion for summary
disposition as to plaintiff's claim of racial discrimination was premature. Pinckney Schools, supra at
525. Accordingly, we reverse as to these claims and remand the case to the trial court.
Next, plaintiff contends that genuine issues of material fact exist regarding his claim of racial
harassment. We disagree. The Elliot-Larsen Civil Rights Act provides that discrimination because of
sex includes sexual harassment which creates a hostile work environment. MCL 37.2103(i)(iii); MSA
3.548(103)(i)(iii). This Court, in Malan v General Dynamics Land Systems, Inc, 212 Mich App
585, 586-587; 538 NW2d 76 (1995), reasoned that, despite the “sex”-specific language of MCL
37.2103(i); MSA 3.548(103)(i), actionable claims of harassment are not limited solely to the category
of sex. Specifically, the Malan Court upheld a jury verdict that found the defendant liable for national
origin harassment. Malan, supra at 586.
The Michigan Supreme Court, in Quinto v Cross & Peters Co, 451 Mich 358, 368; 547
NW2d 314 (1996), assuming, without deciding, that a hostile environment claim could be based on
harassing conduct not of a sexual nature, listed five elements necessary to establish a prima facie case of
discrimination based on a hostile work environment:
(1) the employee belonged to a protected group; (2) the employee was
subjected to communication or conduct on the basis of [her protected status]; (3) the
employee was subjected to unwelcome . . . conduct or communication [involving her
protected status]; (4) the unwelcome . . . conduct was intended to or in fact did
substantially interfere with the employee’s employment or created an intimidating,
hostile, or offensive work environment; and (5) respondeat superior [Id. at 368-369,
quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993).]
A hostile work environment has been created by unwelcome conduct when a reasonable person, in the
totality of circumstances, would perceive the conduct at issue as having substantially interfered with the
plaintiff’s employment or as having the purpose or effect of creating an intimidating, hostile, or offensive
employment environment. See Quinto, supra at 369, citing Radtke, supra at 394.
Plaintiff’s claim of a hostile work environment centers around statements by co-workers which
plaintiff interpreted as racially motivated. Specifically, plaintiff complained that he was referred to as
“sergeant jabjabdo” by one of his co-workers. However, this alleged slur occurred on only one
instance. Plaintiff further complained that, approximately once a week he would encounter subordinate
officers who addressed him as “hey yo man.” However, plaintiff admitted that he never made
management aware of their specific behavior. Giving the benefit of the doubt to plaintiff, see Pinckney
Schools, supra at 525, we conclude that, at most, plaintiff faced only occasional exposure to perceived
racial epithets. Under an analogous provision in Title VII, 42 USC 2000e, et seq., the mere utterance
of an ethnic or racial epithet which engenders offensive feelings in an employee does not affect the
conditions of employment to a sufficiently significant degree to create a hostile work environment.
Meritor Savings Bank v Vinson, 477 US 57, 67; 106 S Ct 2399; 91 L Ed 2d 49 (1986), citing
Rogers v Equal Opportunity Comm, 454 F2d 234, 238 (CA 6, 1971). Therefore, we find plaintiff
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has failed to present evidence that would allow a reasonable person to conclude, under the totality of
circumstances, that the comments of plaintiff’s co-workers were sufficiently severe or pervasive to
create a racially-hostile work environment. Quinto, supra at 369; see also Vinson, supra at 67.
Accordingly, we hold that the trial court properly granted defendants’ motion for summary judgment as
to plaintiff's claim of racial harassment. SSC Associates, supra at 365.
Finally, plaintiff contends that genuine issues of material fact exist regarding his claim of
retaliation. We disagree. In order to establish a prima facie case of retaliation under the Elliot-Larsen
Civil Rights Act, a plaintiff must establish (1) that he opposed violations of the act or participated in
activities protected by the act and (2) that the opposition or participation was a significant factor in an
adverse employment decision. Booker v Brown & Williamson Tobacco Co, Inc, 879 F2d 1304,
1310 (CA 6, 1989); Polk v Yellow Freight System, Inc, 801 F2d 190, 198-199 (CA 6, 1986); Cox
v Electronic Data Systems Corp, 751 F Supp 680, 694-695 (ED Mich, 1990).
In determining whether a plaintiff’s claim of retaliatory discharge is sufficient to withstand
summary disposition, a court should consider the shifting burden analysis of Burdine, supra, at 252
253. See Cox, supra at 695, citing Booker, supra at 1311. Therefore, if the defendant alleges a
legitimate, nondiscriminatory reason for its adverse employment decision, the plaintiff must tender
specific factual evidence that could lead a reasonable jury to conclude that the defendant’s reasons are
pretextual. See Lytle, supra at 187-188; Cox, supra at 695; see also Burdine, supra at 255-256.
Plaintiff's filing of his initial complaint of racial discrimination and harassment was a protected
activity under MCL 37.2701(a); MSA 3.548(701)(a). However, plaintiff failed to introduce any
evidence that his participation in the protected activity was a significant factor in defendants’ subsequent
adverse employment decisions. Booker, supra at 1310; Polk, supra at 198-199; Cox, supra at 694
695. Both of plaintiff’s disciplinary suspensions were for conduct that occurred prior to the filing of
plaintiff's initial complaint and came as a result of investigations that commenced before the initial
complaint was filed. Furthermore, in both cases, plaintiff admitted to all or part of the alleged conduct.
Finally, defendants assert that plaintiffs’ demotion was based on his unsatisfactory performance review
which in turn was based on his two suspensions and another disciplinary action that took place before
plaintiff filed has initial complaint. The mere fact that the adverse employment decisions occurred after
plaintiff’s charge of discrimination, standing alone, is insufficient to support a finding of retaliation, and
the fact that plaintiff’s performance problems and the investigations occurred before he filed his
complaint weighs heavily against a finding of pretext. See Booker, supra at 1314; Cox, supra at 695.
Therefore, we hold that plaintiff has failed to raise a genuine issue of material fact regarding his claim of
retaliation. Pinckney Schools, supra at 525.
Affirmed in part, reversed in part, and remanded for further proceedings. No taxable costs
pursuant to MCR 7.219, neither party having prevailed in full.
/s/ Maura D. Corrigan
/s/ Martin M. Doctoroff
/s/ Richard R. Lamb
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