JUDITH BURKHARDT V BLUE CROSS BLUE SHIELD OF MICHIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
JUDITH BURKHARDT,
UNPUBLISHED
January 22, 1999
Plaintiff-Appellant,
v
BLUE CROSS BLUE SHIELD OF MICHIGAN,
No. 197988
Wayne Circuit Court
LC No. 94-434092-NZ
Defendant-Appellee.
Before: Whitbeck, P.J., and MacKenzie and Murphy, JJ.
WHITBECK, J. (concurring in part and dissenting in part).
I concur in part and respectfully dissent in part.
I. Basic Facts and Procedural History
Plaintiff-appellant Judith Burkhardt appeals the trial court’s orders dismissing her claims against
defendant-appellee Blue Cross Blue Shield (“BC/BS”) of a racially hostile work environment, retaliation
and intentional infliction of emotional distress. Burkhardt does not appeal the jury’s verdict of no cause
on her race discrimination claim.
BC/BS employed Burkhardt, a white female, since 1985. In April of 1993, Burkhardt began a
new assignment as manager of BC/BS’s Facilities Utilization Review Department (the “FUR”). In the
new position, Burkhardt reported to Mary Wisgerhof, the director of the FUR. Burkhardt managed
four supervisors, three of whom were white and one of whom was African-American. Each supervisor
had a support staff.
Upon beginning her new assignment, Burkhardt had several meetings with the supervisors and
members of their support staffs to discuss the FUR. According to Burkhardt, two weeks after she
began her position, African-American members of the support staffs told her that there were racial
problems in the FUR and that they were considering filing a complaint alleging discrimination.
Thereafter, Burkhardt met with the four FUR supervisors and advised them that racial preferences or
discrimination of any kind within the FUR would not be tolerated. According to Burkhardt,
approximately one week later, Wisgerhof accused Burkhardt of giving favored treatment to African
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American employees who were under Burkhardt’s supervision and causing racial division within the
FUR.
On May 21, 1993, Wisgerhof and the three white supervisors filed a complaint against
Burkhardt in BC/BS’s Human Resources Department (“HR”) alleging, among other things, that
Burkhardt had created a hostile work environment and intimidated and harassed the three white
supervisors. On May 31, 1993, Wisgerhof advised Burkhardt not to report to work. Wisgerhof
eventually removed Burkhardt from her position as manager of the FUR.
HR conducted a formal investigation of the charges against Burkhardt and concluded that the
charges against her were not supported. HR further concluded that the FUR was neither irreparably
harmed nor disrupted and that, absent a cause, BC/BS should return Burkhardt to her position as the
FUR manager. However, Wisergof’s superior, Thomas Walters, agreed that the decision to remove
Burkhardt should not be revisited, despite the recommendation of HR to the contrary, and BC/BS did
not return Burkhardt to her position.
In her First Amended Complaint, Burkhardt alleged race discrimination, racially hostile work
environment and retaliation in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101)
et seq., and intentional infliction of emotional distress. In her race discrimination claim, Count I,
Burkhardt claimed that race was a factor that made a difference in her demotion from her position at the
FUR. Burkhardt claimed that she was “punished for attempting to change the status quo from one
where racial discrimination and racial favoritism was practiced and tolerated within Defendant’s FUR
Department to a Department that was supervised in a color blind manner.” Burkhardt further claimed
that the Civil Rights Act “prohibits racial discrimination on the basis of association.”
In Count II, Burkhardt claimed a racially hostile working environment and asserted that “she
was subjected to a racially hostile, intimidating and abusive working environment for attempting to
manage the FUR Department without regard to race” in violation of the Civil Rights Act. In her
retaliation claim, Count III, Burkhardt asserted that she was “retaliated against for attempting to manage
the FUR Department without regard to a [sic] employee’s race, racial favoritism, or color.” In Count
IV, Burkhardt claimed that BC/BS had “wantonly and intentionally engaged in extreme and outrageous
conduct” by racially discriminating against her as alleged in Count I, by subjecting her to a racially
hostile and intimidating working environment as alleged in Count II and by retaliating against her as
alleged in Count III. With respect to all Counts except Count IV, Burkhardt alleged generalized “loss
of earning capacity, loss of dignity, and enjoyment of life, extreme harassment and mental, emotional
distress, all past and future ….”
BC/BS had previously moved for summary disposition under MCR 2.116(C)(8) and/or MCR
2.116(C)(10). BC/BS argued that Burkhardt lacked standing to bring a race discrimination claim and
that Wisgerhof removed Burkhardt from the FUR because Burkhardt was an ineffective manager and
caused problems in the FUR. The trial court denied this summary disposition motion and BC/BS’s
subsequent motion for reconsideration. However, on the first day of trial, during arguments on the
parties’ motions in limine, the trial court partially reversed its initial ruling and summarily dismissed
Burkhardt’s claims for hostile work environment and intentional infliction of emotional distress.1
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Following Burkhardt’s case in chief, BC/BS moved for a directed verdict on Burkhardt’s
remaining claims of unlawful retaliation and race discrimination. The trial court reserved its ruling on
BC/BS’s motion, but eventually dismissed Burkhardt’s unlawful retaliation claim before submitting the
case to the jury. The jury returned a verdict of no cause on Burkhardt’s remaining claim of race
discrimination.
II. Racially Hostile Work Environment
A. Introduction and Standard of Review
Burkhardt argues that the trial court erred in summarily dismissing her claims alleging a racially
hostile work environment. This Court reviews a trial court’s order of summary disposition de novo.
Weisman v US Blades, Inc, 217 Mich App 565, 566-567; 552 NW2d 484 (1996). A trial court may
grant summary disposition when “[e]xcept as to the amount of damages, there is no genuine issue as to
any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.”
MCR 2.116(C)(10). When reviewing a motion under MCR 2.116(C)(10), this Court considers the
pleadings and all documentary evidence available to it. Patterson v Kleiman, 447 Mich 429, 434;
526 NW2d 879 (1994). Giving the benefit of reasonable doubt to the nonmovant, the court must
determine whether a record might be developed which will leave open an issue upon which reasonable
minds could differ. Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995).
B. Section 202(1) of the Civil Rights Act
Section 202(1) of the Civil Rights Act, MCL 37.2202(1); MSA 3.548(202)(1), provides that
an employer shall not do any of the following:
(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.
(b) Limit, segregate, or classify an employee or applicant for employment in a
way that deprives or tends to deprive the employee or applicant of an employment
opportunity, or otherwise adversely affects the status of an employee or applicant
because of religion, race, color, national origin, age, sex, height, weight, or marital
status....
C. Hostile Work Environment Not Involving Conduct or Communication
“of a Sexual Nature”
Under the facts of this case, it is unnecessary to decide whether a claim of discrimination based
on hostile work environment, when the allegations of discrimination involve conduct or communication
that are not “of a sexual nature,” is encompassed by the Civil Rights Act. Rather, for the purpose of
deciding this case, we can assume without deciding that Burkhardt is within a protected class and may
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maintain a hostile work environment claim on conduct involving race or national origin. See Quinto v
Cross & Peters Co, 451 Mich 358, 368; 547 NW2d 314 (1996).2
D. Federal Precedent
(1) Overview
Burkhardt relies on two federal cases, Chandler v Fast Lane, Inc, 868 F Supp 1138 (ED
Ark, 1994) and Clayton v White Hall School Dist (“Clayton II”), 875 F2d 676 (CA 8, 1989). We
often turn to federal precedent interpreting title VII of the Civil Rights Act of 1964, 42 USC 2000e
2000e-17, for guidance when interpreting the Civil Rights Act, although federal precedent is not binding
when interpreting Michigan law. Radtke v Everett, 442 Mich 368, 381-382; 501 NW2d 155 (1993).
See also Dep’t of Civil Rights ex rel Jones v Dep’t of Civil Service, 101 Mich App 295, 303; 301
NW2d 12 (1980). It is instructive, therefore, to review these cases, and the underlying precedents, for
the light they may shed on Burkhardt’s claims in this matter.
(2) Chandler
In Chandler, the plaintiffs, employees of the defendant, brought claims under 42 USC 1981
and under title VII of the Civil Rights Act of 1964. While categorizing the title VII claim as “somewhat
novel,” the federal district court noted that a white person’s right to associate with African-Americans is
protected by § 1981. Chandler, supra at 1143. Therefore, the court concluded that an employer’s
implementation of an employment practice that impinges upon this right is actionable under title VII. Id.
at 1144. The court commented:
While the Court recognizes that the Eighth Circuit has not yet been required to address
this issue directly, it is nevertheless convinced that the Eighth Circuit would choose, in a
case such as this, to follow the lead of those courts which have dealt with the issue. See
Clayton [supra at 679-680] (holding that a white person has standing to assert a Title
VII claim based upon a work environment alleged to be hostile to African-Americans.)
[Chandler, supra at 1144.]
Thus, three points are readily apparent with respect to Chandler. First, the federal district court’s
primary line of reasoning with respect to the right of white persons to associate with African-Americans
relied upon §1981. There is no direct counterpart to § 1981 in Michigan law. Second, the court
recognized that the Eighth Circuit Court of Appeals, and indeed the United States Supreme Court, had
yet to rule directly on this issue. We have discovered no subsequent federal appellate ruling dealing with
this issue. Third, the court also relied heavily on Clayton II for the proposition that a white person has
standing to assert a title VII claim based upon a work environment alleged to be hostile to AfricanAmericans.
(3) Clayton II
Although accurate in the broad sense, the Chandler court’s summary of Clayton II does not
capture an important aspect of that case. Clayton was a white woman employed by the White Hall
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School District in Arkansas. Clayton moved outside the White Hall district in 1980, but her child
continued to attend a school in the district until 1983. At the end of the 1982-1983 school year, Lloyd
Gaynor, an African-American male, employed as a janitor by the White Hall School District, attempted
to enroll his child in the district. As did Clayton, Gaynor lived outside the district. The White Hall
School District refused to enroll Gaynor’s child and began enforcing its policy of requiring residence
within the district as a prerequisite for enrollment in the district. After Gaynor’s inquiry, the White Hall
School District informed Clayton that, pursuant to this policy, Clayton’s child could no longer attend the
White Hall schools. Clayton II, supra at 678.
Clayton sued but the federal district court dismissed her suit with prejudice for failure to allege
any theory of recovery based on a racially motivated change in her terms and conditions of employment.
However, on appeal, the Eighth Circuit Court of Appeals remanded for entry of dismissal without
prejudice. Clayton v White Hall School Dist (“Clayton I”), 778 F2d 457 (CA 8, 1985).
Clayton then filed an amended complaint alleging various theories of recovery. Most
importantly for our analysis here, she claimed that the White Hall School District’s actions created a
hostile working environment permeated by racial discrimination. The federal district court dismissed this
claim without prejudice, and Clayton again appealed to the Eighth Circuit Court of Appeals. Clayton
II, supra at 678.
When dealing with Clayton’s standing to raise issues of racial discrimination directed against a
minority co-worker, the court observed:
The hostile working environment theory of discrimination is based upon an
employee’s right to work in an environment free of unlawful discrimination, and the
injury results from the lost benefits of associating with persons of other racial groups.
See id. [Clayton I, supra] at 459. “[I]t is an emotional or psychological injury to the
plaintiff herself which is the gravamen of this cause of action.” [Id.]
Standing for purposes of Title VII is not limited to minority groups. See id. at
459; Waters v Heublein, Inc, 547 F2d 466, 469 (9th Cir. 1976), cert denied, 433
U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1100 (1977). Rather, it is dependent upon
whether the plaintiff is a person claiming to be aggrieved by such discrimination. In
Trafficante v Metropolitan Life Insurance Co., 409 U.S. 205, 209-10, 93 S.Ct.
364, 366-67, 34 L.Ed. 415 (1972), a unanimous Supreme Court held that such
“persons aggrieved” included those who were not themselves the objects of
discrimination, but were nevertheless injured “[by] the loss of important benefits from
interracial associations.” [Clayton II, supra at 679.]
The court then found that, because Clayton’s claim of a racially discriminatory work environment
alleged an injury in f that was within the zone of interest protected by title VII, she had standing to
act
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bring the suit. Id. at 680. Again, three points are readily apparent with respect to this analysis. First,
the claim of a hostile work environment, although a non-minority claimant can assert it, is not an abstract
one. Rather, the non-minority claimant must assert some damage to the claimant as a result of the
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allegedly hostile work environment. Secondly, in deciding Clayton II, the court relied heavily on its
previous decision in Clayton I. Thirdly, the court also relied heavily on the decision of the United States
Supreme Court in Trafficante, supra.
(4) Clayton I
These points are equally apparent in the decision in Clayton I. There, the court described, but
did not explicitly adopt, two related theories. The first it labeled the “work environment” theory, that
holds that an employee has a right to work in an environment free of discrimination and that a plaintiff
has standing to sue for the violation of that right even if he or she is not a member of the minority group
allegedly discriminated against. The second, citing Trafficante, it labeled the “associational” theory,
that provides standing for a plaintiff in similar circumstances who alleges a deprivation, as a result of
discrimination, of the right to associate with members of the targeted minority group. Clayton I, supra
at 459.
(5) The Cases Underlying Clayton I
With respect to the “work environment” theory, the court in Clayton I cited six cases in
support of the proposition that an employee has a right to work in an environment free of discrimination.
Of these, four—Stewart v Hannon, 675 F2d 840 (CA 7, 1982), EEOC v Mississippi College, 626
F2d 477 (CA 5, 1980), EEOC v Bailey Co, 563 F2d 439 (CA 6, 1977) and Waters v Heublein,
Inc, 547 F2d 466 (CA 9, 1976)—rely, to a greater or lesser degree, upon the reasoning in
Trafficante, supra. It can easily be contended, therefore, that the Clayton I court’s “work
environment” theory is an outgrowth, in the employment setting, of the “associational” theory in
Trafficante.
In Trafficante, the United States Supreme Court construed the meaning of the term “person
aggrieved” contained in § 810(a) of the Civil Rights Act of 1968, 42 USC § 3610(a). In that case, two
tenants, one white and one African-American, of an apartment complex filed separate complaints with
the Secretary of Housing and Urban Development. Each complaint alleged that the owner of the
apartment complex discriminated on the basis of race in t e rental of apartments in the complex in
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violation of § 804 of the Civil Rights Act of 1968, 42 USC § 3604. The two tenants claimed that they
had been injured in that (1) they had lost the social benefits of living in an integrated community, (2) they
had missed business and professional advantages that would have accrued if they had lived with
members of minority groups and (3) they had suffered embarrassment and economic damage in social,
business and professional activities from being “stigmatized” as residents of a “white ghetto.”
Trafficante, supra at 208. Justice Douglas, writing for a unanimous court, summarized the alleged
injury to existing tenants by exclusion of minority persons from the apartment complex as being “the loss
of important benefits from interracial associations.” Id. at 209-210.
Justice Douglas, while noting that the legislative history of the Civil Rights Act of 1968 was “not
too helpful,” nevertheless discerned an emphasis by proponents of the legislation that “those who were
not the direct objects of discrimination had an interest in ensuring fair housing, as they too suffered.” Id.
at 210. Justice Douglas then noted that the Assistant Regional Administrator for HUD had determined
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that “‘the complainants are aggrieved persons and as such are within the jurisdiction’ of the [Civil
Rights] Act [of 1968]” and stated that this construction is entitled to “great weight.” Id. Justice
Douglas also touched upon the role of private individual complainants as private attorneys general:
... [T]he complainants act not only on their own behalf but also “as private attorneys
general in vindicating a policy that Congress considered to be of the highest priority.”
The role of “private attorneys general” is not uncommon in modern legislative programs
... . It serves an important role in this part of the Civil Rights Act of 1968 in protecting
not only those against whom a discrimination is directed but also those whose complaint
is that the manner of managing a housing project affects “the very quality of their daily
lives.” … [Id. at 211.]
Justice Douglas then reached the heart of the matter in his concluding paragraphs:
The dispute tendered by this complaint is presented in an adversary context. …
Injury is alleged with particularity, so there is not present the abstract question raising
problems under Art III of the Constitution. The person on the landlord’s blacklist is not
the only victim of discriminatory housing practices; it is, as Senator Javits said in
supporting the bill, “the w
hole community,” … and as Senator Mondale who drafted
§ 810(a) said, the reach of the proposed law was to replace the ghettos “by truly
integrated and balanced living patterns.” …
We can give vitality to §810(a) only by a generous construction which gives
standing to sue to all in the same housing unit who are injured by racial discrimination in
the management of those facilities within the coverage of the statute. [Id. at 211-212.]
One can certainly question the creation of a “right” of association in title VIII of the Civil Rights Act of
1968 based upon the snippets of legislative history quoted by Justice Douglas. Further, while one can
certainly challenge the wisdom of transplanting the “associational” theory from a housing setting to an
employment setting,4 it is nonetheless apparent that the federal courts have done so. And yet, it is also
clear that there must be injury to a non-minority complainant, rather than only to the minority persons
who are the direct victims of the alleged discrimination, that this injury must be alleged with particularity
and not merely in the abstract, and that this injury must result from some action or inaction by the
employer.
Mississippi College, supra, is particularly instructive in this regard. There, the Fifth Circuit
Court of Appeals discussed the holding in Stroud v Delta Air Lines, Inc, 544 F2d 892 (CA 5, 1977).
In Stroud, the court had held that “plaintiff [a female former flight attendant] is not a person who may
assert the rights of prospective male flight attendants who would complain of this illegality.” Id. at 893.
The Mississippi College court interpreted Stroud as holding that a title VII plaintiff may assert only that
plaintiff’s right to be free from discrimination that has an effect on that plaintiff and may not assert the
rights of others to be free from discrimination. Mississippi College, supra at 482. The Mississippi
College court then prefaced its discussion of Trafficante by observing that the decision in Trafficante
“will not permit the language in Stroud to bar every charge of discriminatory employment practices
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directed against a group of which the charging party is not a member.” Mississippi College, supra at
482. The Mississippi College court concluded by returning to the theme that a complainant under title
VII must show a violation of his or her own right to work in a racially neutral environment:
We conclude that § 706 of Title VII permits Summers [the white female who
had charged Mississippi College with discrimination that affected her working
environment] to file a charge asserting that Mississippi College discriminates against
blacks on the basis of race in recruitment and hiring. Our decision today does not allow
Summers to assert the rights of others. We hold no more than that, provided she meets
the standing requirements imposed by Article III [of the United States Constitution],
Summers may charge a violation of her own personal right to work in an
environment unaffected by racial discrimination. [Id. at 483 (emphasis supplied).]
This emphasis on a right that is personal to the complainant, and therefore an injury that is personal to
the complainant, was also central to the two cases cited by the Clayton I court that did not rely
explicitly on Trafficante. In EEOC v T.I.M.E.—D.C. Freight, 659 F2d 690, 692, n, 2 (CA 5,
1981), the court found that the two white complainants may be “persons aggrieved” by discrimination
against African-Americans, “provided they can establish a personal injury.”
The other case, Rogers v EEOC, 454 F2d 234 (CA 5, 1971), presents a much more complex
situation. The complainant, a Spanish-surnamed woman, brought a complaint before the EEOC against
a group of optometrists doing business as “Texas State Optical” and apparently seeing patients in their
facility. The complainant alleged that the company discriminated against her because of her national
origin by, among other things, “segregating the patients.” Id. at 236. Two judges found the
complainant to be a “person aggrieved” within the meaning of § 706(a) of title VII, although on very
different grounds. Judge Goldberg favored a very broad interpretation of title VII, stating that the
company’s “failure to direct intentionally any discriminatory treatment toward … [the complainant] is
simply not material to the finding of an unlawful employment practice.” Id. at 239.5 Judge Goldberg
went on to say, however, that:
… Moreover, I believe that petitioners’ [the optometrists] argument [that title
VII does not apply because the complaint alleged discrimination directed toward the
patients and not toward any employee, id. at 238] does not countenance the distinct
possibility that an employer’s patient discrimination may constitute a subtle scheme
designed to create a working environment imbued with discrimination and directed
ultimately at minority group employees. As patently discriminatory practices become
outlawed, those employers bent on pursuing a general policy declared illegal by
Congressional mandate will undoubtedly devise more sophisticated methods to
perpetuate discrimination among employees.
The petitioners’ alleged patient
discrimination may very well be just such a sophisticated method and, if so, then ... [the
complainant], as the primary object of the discriminatory treatment, suffers directly the
consequences of such a practice and is entitled to protection in accordance with the
provisions of Title VII. [Id. at 239.]
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Thus, while emphasizing that title VII is an expansive concept that “sweeps within its protective ambit
the practice of creating a working environment heavily charged with ethnic or racial discrimination,” id.
at 238, Judge Goldberg’s actual position may have rested as much, if not more, upon his theory that the
company was actually discriminating directly, albeit subtly, against the complainant by “segregating the
patients.”
Judge Godbold, in concurring with the opinion of Judge Goldberg, seized upon this narrower
ground. He noted that, at the hearing before the federal district court, the EEOC appeared to argue that
the complainant “claims only that she is offended by the manner in which her former employers treated
their customers.” See Rogers v EEOC, 316 F Supp 422, 425 (ED Texas, 1970), rev’d 454 F2d 234
(CA 5, 1971). However, on appeal, the EEOC asserted an alternative, and narrower, rationale: that
the charge of “segregating the patients” could also be interpreted as meaning that the company’s
minority group employees “are not permitted to have contact with Anglo-Saxon patients.” Rogers,
supra at 241. Judge Godbold saw this construction of the complaint as falling within the prohibition
against discrimination in title VII because of an individual’s race or national origin, etc.6 or against a
limitation, segregation or classification of an individual that adversely affected that individual’s status as
an employee because of that individual’s race, national origin, etc.7 Id. at 242. Judge Godbold
concluded his discussion by noting:
This strikes me as a much sounder judicial approach than construing the charge
as asserting a type of discrimination indirect and collateral, pursuant to which ... [the
complainant] was offended by segregation practices directed against others who are of
another ethnic group, and who are not employees, and directed at such others because
of their race, national origin, etc. [Id.]8
(6) Conclusion
This mosaic of federal cases provides at least some guidance in evaluating Burkhardt’s hostile
work environment claim. At a minimum, we can draw from these cases, with the possible exception of
Judge Goldberg’s opinion in Rogers, the concept that the creation and maintenance of a racially hostile
work environment by some act or failure to act of the employer is actionable by a non-minority plaintiff
under title VII if there is an actual injury to the claimant in the form of a showing that the racially hostile
work environment has actually had a deleterious effect on that claimant. By contrast, however, a
generalized allegation of a racially hostile work environment, without a showing of some action or
inaction by the employer, or an allegation that such an environment has damaged other minority
employees or minority members of the public and without a showing of actual harm to the claimant, will
not be sufficient to withstand summary disposition. With this guidance in mind, one must turn to the
situation in Michigan under the Civil Rights Act.
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E. The Quinto/Radtke Five-Element Test
(1) Overview
If it is assumed that a hostile work environment claim can include conduct of a racial, as well as
a sexual, nature, Quinto, supra at 368-369, and Radtke, supra at 382-383, set out the five following
elements as necessary to establish a prima facie case of discrimination:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the basis of [a
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.
(2) Unwelcome Conduct or Communication;
Interference with Employment; Hostile Work Environment
Burkhardt has failed to establish the third and fourth elements of the Quinto/Radtke test. As
the Michigan Supreme Court explained, whether a hostile work environment was created by
unwelcome conduct “shall be determined by whether a reasonable person, in the totality of
circumstances, would have perceived the conduct at issue as substantially interfering with the plaintiff’s
employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment
environment.” Quinto, supra at 369 quoting Radtke, supra at 394 (emphasis supplied).9
In this respect, the case law in Michigan correlates reasonably well with the federal precedents
under title VII discussed above. The conduct upon which Burkhardt relied10 did not establish that she
was subjected to a workplace that was permeated with discriminatory intimidation, ridicule and insult
sufficiently severe or pervasive to alter the conditions of her employment. Indeed, there was no
allegation that Burkhardt, prior to her transfer, experienced any unwelcome conduct that substantially
interfered with her employment or created a hostile work environment that, directly or indirectly,
affected her.11 Even if one assumes, as Burkhardt alleges, that there were racial problems within the
FUR and if one further assumes that BC/BS took some action or failed to take an action thereby
creating these racial problems, Burkhardt did not establish that these problems were either so severe or
pervasive that they affected the conditions of her employment or that they created a hostile work
environment that affected her.12 In this regard, Burkhardt’s generalized allegations of “loss of earnings,
earning capacity, loss of dignity, and enjoyment of life, extreme harassment, mental, emotional distress,
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all past and future” in her First Amended Complaint are simply insufficient to establish a prima facie case
of actual harm to Burkhardt.13
F. Conclusion
Burkhardt’s, entirely laudable, expression of a desire to work in a race neutral environment,
standing alone or even when coupled with generalized allegations of racial problems, did not establish a
prima facie case of a hostile work environment under the Civil Rights Act. Accordingly, the trial court
properly granted summary disposition on Burkhardt’s hostile work environment claim.
III. Intentional Infliction of Emotional Distress
Burkhardt also failed to establish a prima facie case of intentional infliction of emotional distress.
The tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous
conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts v AutoOwners Ins, Co, 422 Mich 594, 602; 374 NW2d 905 (1985); Haverbush v Powelson, 217 Mich
App 228, 234; 551 NW2d 206 (1996). In reviewing such a claim, it is initially for the court to
determine whether the defendant’s conduct reasonably may be regarded as so extreme and outrageous
as to permit recovery. Doe v Mills, 212 Mich App 73, 91-92; 536 NW2d 824 (1995). In assessing a
claim for intentional infliction of emotional distress, the Michigan Supreme Court has held that the
following should be used to determine whether the alleged conduct constitutes extreme and outrageous
conduct that is necessary to support an actionable claim for intentional infliction of emotional distress:
Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to an average member of
the community would arouse his resentment against the actor, and lead him to exclaim,
“Outrageous!”
The liability clearly does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. The rough edges of our society
are still in need of a good deal of filing down, and in the meantime plaintiffs must
necessarily be expected and required to be hardened to a certain amount of rough
language, and to occasional acts that are definitely inconsiderate and unkind. There is
no occasion for the law to intervene in every case where some one’s feelings are hurt.
There must still be freedom to express an unflattering opinion, and some safety valve
must be left through which irascible tempers may blow off relatively harmless steam.
[Roberts, supra, quoting Restatement Torts, 2d, § 46, comment d, pp 72-73; emphasis
supplied.]14
The alleged conduct in this case, as it relates to Burkhardt, does not rise to a level of being “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized community.” Roberts, supra. The fact
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that Burkhardt sought psychological treatment does not of itself create a prima facie claim of intentional
infliction of emotional distress. Accordingly, the trial court properly granted summary disposition on
Burkhardt’s intentional infliction of emotional distress claim.
IV. Unlawful Retaliation
A. Introduction
It is here that I part company with my colleagues, and my discussion therefore is a dissent to
their majority opinion that remands for a new trial on this claim.15 Burkhardt contends that the trial court
erred in directing a verdict in favor of defendant on her unlawful retaliation claim and my colleagues
agree. I respectfully disagree.
B. Section 701 of the Civil Rights Act
Section 701 of the Civil Rights Act, MCL 37.2701; MSA 3.548(701), prohibits retaliation or
discrimination 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. [Emphasis supplied.]
C. Elements of An Unlawful Retaliation
I agree with the majority that to establish a case of unlawful retaliation under § 701 of the Civil
Rights Act, a plaintiff must show: (1) that she 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.
DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432; 566 NW2d 661 (1997); Polk v Yellow
Freight System, Inc, 876 F2d 527, 531 (CA 6, 1989).16
D. Protected Activity
Burkhardt contends that she engaged in protected opposition when, after some AfricanAmerican employees complained to her about discrimination, she informed the four supervisors whom
she managed that she would not tolerate “any kind of discrimination, be it race or sex or disabilities or
age, or anything.”
It is possible that an informal complaint can constitute distinct action. See, e.g., Barber v CSX
Distribution Servs, 68 F3d 694, 702 (CA 3, 1995) (a court must “analyze the message that [the
plaintiff] conveyed ... not the medium of conveyance.”) However, it can certainly be contended that
Burkhardt’s announcement that she would not tolerate racial discrimination was not, even in the
broadest reading of the terms, an informal complaint. Indeed, it can be argued, it was not a complaint
of any kind. Rather, again it can be argued, it was an expression, entirely laudable, of her managerial
and personal philosophy. Therefore, one can certainly contend that Burkhardt was engaged in no
-12
protected activity, no matter how expansively that activity might be viewed. Simply put, while such an
expression of philosophy is certainly appropriate and while it remains unfortunate that one might have
the need to make it at all in our society, I believe that this Court could legitimately find that the making of
such an expression does not trigger the protection of § 701 of the Civil Rights Act for the one who felt
called upon to make it. I am, however, willing to assume without deciding that, for the purposes of this
decision, Burkhardt’s statement that she did not want and would not tolerate “any kind of
discrimination, be it race or sex or disabilities or age, or anything” may have been sufficient to trigger the
protection provided by MCL 37.2701, MSA 3548(701) to a person who “has opposed a violation of
[the Civil Rights Act].”17
I am not willing, however, to join with my colleagues in finding that Burkhardt presented
sufficient evidence to establish that she engaged in a protected activity. Further, I note that one aspect
that differentiates the unlawful retaliation claim in this case from an ordinary claim of retaliation
discrimination by an employer is that Burkhardt directed her statement at employees who were
subordinate to her. The majority reaches the conclusion that Burkhardt’s “act of instructing
department supervisors [the subordinate employees] that discrimination would not be tolerated, when
done in the wake of complaints regarding racial discrimination, was based on a reasonable belief that
defendant [BC/BS] was engaging in an unlawful employment practice, and, therefore, qualified as a
protected activity under § 701 of the CRA.”
I do not believe that an organizational employer being sued by an employee (or former
employee) may reasonably be held liable for employment discrimination under the Civil Rights Act
based on discriminatory animus harbored b an employee who was subordinate to the aggrieved
y
employee at the time of the alleged discrimination.18 Notably, an “employer” is defined by the Civil
Rights Act, as “a person who has 1 or more employees, and includes an agent of that person.” MCL
37.2201(a); MSA 3.548(201)(a). In the context of an employer-employee relationship with a
particular employee, a supervisor of the employee also employed by the same employer is
unquestionably an agent of the employer. However, I do not believe that a subordinate employee may
reasonably be regarded as an agent of the employer in relation to that employee’s immediate
supervisor. Accordingly, it seems to me that while an organizational employer is liable for discriminatory
acts violative of the Civil Rights Act by a supervisory employee against a subordinate employee, the
converse does not follow.
Indeed, in the analogous context of a hostile environment sexual harassment claim, by prevailing
Michigan Supreme Court precedent, an employer is liable for such harassment by a supervisor of an
aggrieved employee, but not for such conduct by co-workers of the employee. See Radtke, supra at
394-397 & n, 41. In the circumstances of this case, it appears to me that if there were arguably any
retaliatory discriminatory animus, it was on the part of the subordinate employees not BC/BS (including
its employees and officers at a higher level of authority than Burkhardt at the time of the incidents
underlying this case).19 In such a circumstance, I do not see how the employer may be said to have
engaged in retaliation discrimination in violation of the Civil Rights Act. While BC/BS through
decisionmaker(s) at a higher level than Burkhardt ultimately decided to demote Burkhardt, there is no
evidence to support a finding of discriminatory animus at that higher level of organizational authority.
-13
I fear that holding an organizational employer liable in such circumstances will largely require an
employer to insure that none of its “rank and file” employees will act against a superior employee with
discriminatory animus. In hiring employees who have supervisory responsibilities and/or responsibility
for decisions related to hiring, firing and the like, an employer is plainly on notice that it is wise to
attempt to assure that such employees will not harbor discriminatory animus that would wrongly
influence personnel decisions. Further, an employer can undertake some steps to monitor the exercise
of organizational authority by a supervisory level employee over subordinate employees for indications
of discriminatory treatment.
I fear, however, that expecting an employer to police subordinate employees, including even
employees having no supervisory responsibility whatsoever, for possible discriminatory attitudes
because those employees might take some discriminatory act that would, through an attenuated chain of
causation, negatively impact a superior level employee constitutes an unreasonable burden. Because
subordinate employees do not ordinarily make personnel related decisions regarding superior
employees, there is no conceivable way for an employer to monitor subordinate employees as to
whether they are attempting to undermine superiors based on protected characteristics under the Civil
Rights Act. This is akin to the doctrine of proximate causation. As this Court has thoughtfully noted:
“[L]egal or proximate causation involves a determination that the nexus between the
wrongful acts (or omissions) and the injury sustained is of such a nature that it is socially
and economically desirable to hold the wrongdoer liable. In this sense, proximate
causation, and hence liability, hinges on principles of responsibility, not physics.
Thus, proximate causation is a determination that must be made in addition to a
determination of cause in fact or “but for” causation.” [Adas v Ames Color-File, 160
Mich App 297, 301; 407 NW2d 640 (1987), quoting 1 American Law of Products
Liability (3d ed), § 4:2 (emphasis supplied).]
As reflected in the definition of “employer” in the Civil Rights Act and case law regarding workplace
sexual harassment, an employer is considered responsible on an agency theory for the acts of
supervisory employees against subordinate employees, but not vice versa.20
I also note the following quite recent academic commentary that tends to support my view about
the legal principles that should apply to a claim of retaliation discrimination predicated on retaliatory
animus by a subordinate employee:
Despite consensus that a plaintiff alleging employment retaliation must p
rove
causation, courts struggle, often with widely differing results, over how to determine
whether a causal link exists between protected activity and an adverse employment
decision. This struggle is due, in part, to the amorphous concept of “employer.”
Courts agree the evidence must show that the “employer” retaliated by making an
adverse employment decision. The more difficult task is identifying who, exactly, is
the employer. When the owner of a business is a sole proprietor who directly oversees
a few employees, it is clear that the sole proprietor is the “employer” for purposes of
establishing a causal link. But, in a large corporation or government agency employing
-14
many people in numerous divisions that may include layers of supervisors overseeing
varying levels of employees, the concept of an employer becomes nebulous. Some
employees may consider their direct supervisors to be their “employer”; others may
equate “employer” with the workplace in general, encompassing co-workers within
their understanding of the term.
Everyone is entitled to envision his or her own notion of “employer”; however,
for purposes of assigning liability for workplace retaliation, the judicial definition
of employer should be limited to the ultimate decisionmaker responsible for an
adverse employment action taken against an employee. In other words, because
retaliation requires proof of a causal link between an adverse employment decision and
an employee’s protected activity, courts adjudicating employment suits should focus on
two questions: (1) who ultimately made the adverse decision and (2) why?
Narrowing the focus to the ultimate decisionmaker will limit the potential for
distraction by the misconduct of employees who may harbor or even openly display ill
will toward an employee who has engaged in protected activity, but who play no role in
the adverse employment decision. Drawing this distinction is crucial, because ill will
amongst co-workers, or even between subordinates and supervisors, is not, itself,
actionable as retaliation. Unpleasantness at work is unfortunate, but not illegal. Only an
adverse employment decision made because of an employee’s protected activity may
form the basis for a retaliation suit. That is not to say that courts should ignore claims
that an employee has been subjected to hostile working conditions; such claims may be
actionable, depending on the circumstances. But, absent evidence that an employer
was involved in, or on notice of, retaliatory harassment, courts should not automatically
infer a causal connection between that harassment and a subsequent adverse
employment action. It is unrealistic simply to assume that an employer has control
over, or even knowledge of, all interactions among employees in the workplace.
Unless evidence shows that that employee alerted the employer to workplace
retaliation, or indicates that the ultimate decisionmaker was driven by retaliatory motive,
no basis exists to infer a connection between the adverse action and the employee’s
protected activity. [Snell & Eskow, What motivates the ultimate decisionmaker?
An analysis of legal standards for proving causation and malice in employment
retaliation suits, 50 Baylor L R (1998) (emphasis supplied).]
I note that my analysis would not deprive a supervisory level employee who suffered retaliation
discrimination at the hands of one or more subordinate employees of any remedy. MCL 37.2701;
MSA 3.548(701) prohibits any “person” from retaliating “against a person because the person has
opposed a violation of this act.” Under the circumstances of the case at hand, Burkhardt would have
had an actionable claim against the subordinate employees as natural persons if they had retaliated
against her based on a protected expression of opposition to discrimination in violation of the Civil
Rights Act. However, it does not follow that Burkhardt has a claim against BC/BS as an organizational
employer based on any such wrongful conduct by the subordinate employees. Rather, it seems to me
-15
desirable that liability for a such retaliation discrimination by subordinate employees be placed on
ny
those employees themselves, not on employers who will generally lack substantial capacity to monitor
and prevent such wrongful discrimination.21
E. Causal Connection22
In analyzing this issue, it is important to bear in mind three critical sets of circumstances and, as I
will develop, the lack of evidence of a causal relationship between the first set of circumstances and the
latter two. At the risk of repetition, these circumstances are: (1) Burkhardt’s alleged actions in
opposition to discrimination; (2) complaints made to Wisgerhof about Burkhardt’s conduct as the
manager of the FUR by three supervisors, all white females, who reported to Burkhardt; and
(3) Wisgerhof’s ultimate decision to remove Burkhardt as manager of the FUR.
Burkhardt testified that, during a discussion in which Wisgerhof essentially first confronted
Burkhardt about problems in the FUR, the following transpired:
And [Wisgerhof] said that people were complaining to her and she said I was dividing
the area racially. [Wisgerhof] said I was giving preferential treatment to minorities.
Burkhardt also said that Wisgerhof “almost accused me of taking a minority to lunch and paying for it.”
Also, Burkhardt testified that she asked Wisgerhof if “minority employees” were complaining and that
Wisgerhof replied, “no, white employees are complaining.” Wisgerhof’s comments do not reflect that,
in removing Burkhardt from her position as manager of the FUR, Wisgerhof was motivated by a desire
to retaliate against Burkhardt for opposing a violation of the Civil Rights Act. Rather, they, reflect that
Wisgerhof may have been concerned that Burkhardt was engaging in racially discriminatory treatment in
favor of non-white employees.23 The Civil Rights Act, MCL 37.2202(1); MSA 3.548(202)(1), of
course, by its plain language prohibits racial discrimination against any employee, of whatever race. See
Laitinen v Saginaw, 213 Mich App 130; 539 NW2d 515 (1995) (holding that the trial court erred in
granting summary disposition on a white employee’s claim of “reverse discrimination in employment”).
Burkhardt did not present any other evidence in her case-in-chief to support a determination
that, in deciding to remove Burkhardt as the manager of the FUR, Wisgerhof harbored a motive to
retaliate against Burkhardt for opposing discrimination prohibited by the Civil Rights Act. On the
contrary, there was substantial evidence that Wisgerhof’s decision was motivated by the complaints
made by t ree of the four supervisors in the FUR about Burkhardt’s conduct as their supervisor.
h
Accordingly, to draw a causal connection between Burkhardt’s alleged conduct in opposition to
discrimination, one must conclude that such opposition to discrimination by Burkhardt was a causal
factor of the supervisors’ complaints to Wisgerhof that resulted in Wisgerhof ultimately removing
Burkhardt as manager of the FUR. In my opinion, Burkhardt did not offer evidence at trial to support
such a conclusion.
During her trial testimony, Burkhardt replied affirmatively when asked if some employees came
to her because they had concerns “that they were being treated unfairly because of either race or racial
favoritism.” Burkhardt also testified that, in a telephone conversation with BC/BS Vice President
-16
Charles Boyer, she asked him about a meeting that he had with the three complaining supervisors and
Wisgerhof. Burkhardt said that Boyer told her “they had complained about the work environment, the
charges of I believe of racial disharmony and that’s what he said.” From Boyer’s testimony, one could
well infer that the three complaining supervisors, who were all white, expressed a belief that Burkhardt
was treating people differently based on race. However, there is no evidence to support a finding that
these three supervisors expressed this belief in retaliation for opposition by Burkhardt to actual or
perceived racial discrimination or other discrimination prohibited by the Civil Rights Act.
Citing McLemore v Detroit Receiving Hospital, 196 Mich App 391; 493 NW2d 441
(1992), the majority notes that circumstantial evidence is oftentimes the only evidence available to show
that a defendant was motivated by a desire to retaliate. I agree. However, the circumstantial evidence
of unlawful retaliation presented by Burkhardt falls far short of the circumstantial evidence in
McLemore. There, the female plaintiff was employed as a clinical instructor at the defendant hospital’s
school of radiologic technology. Id. at 393. Two male individual defendants in that case, at different
times, appraised her work in that position as “effective.” Id. Later, the plaintiff applied for a vacant
educational coordinator position, but the two individual male defendants and another person chose a
male for the position. Id. at 393-394. Thereafter, the plaintiff filed a complaint with the hospital
expressing concern that the hiring decision may have resulted from bias and requesting an explanation to
avoid litigation. Id. at 394. In reaction to the complaint, the two male defendants sent the plaintiff
memoranda critical of her job performance. Id. Eventually, after the male who was first hired resigned
and the plaintiff was again rejected for the educational coordinator position in favor of another male, she
“filed a complaint with the EEOC [the federal Equal Employment Opportunity Commission].” Id.
Within two months thereafter, the two male defendants recommended eliminating the plaintiff ’s position
as part of a hospital-wide staff reduction, and the plaintiff was laid off. Id. The jury in McLemore
found that the defendants terminated the plaintiff ’s employment in retaliation for her filing a charge of sex
discrimination with the EEOC and awarded damages. Id. at 393. This Court found sufficient
circumstantial evidence to support the jury’s verdict in light of the positive job evaluations of the plaintiff
by the defendants who “suddenly viewed [her job performance] as unsatisfactory after she raised the
issue of bias” and the “evidence t at defendants had begun to compile a paper record that would
h
support [the plaintiff ’s] discharge long before the layoff.” Id. at 396-397.
In contrast, in the situation at hand, Burkhardt never brought a formal complaint of
discrimination against the three supervisors that would give rise to a readily apparent motive for
retaliation. In McLemore, therefore, the plaintiff came much closer to accusing the individual defendants
who acted against her of discrimination than did Burkhardt. Here, Burkhardt essentially stated that she
would not tolerate discrimination, without accusing the complaining supervisors of committing
discrimination. Indeed, Burkhardt offered no evidence to reasonably support a conclusion that any of
the three supervisors who complained to Wisgerhof and others about Burkhardt engaged in, or desired
to engage in, racial discrimination or other discrimination prohibited by the Civil Rights Act.
Thus, there is no reasonable basis upon which one could conclude that the complaining
supervisors reacted negatively to Burkhardt’s original – and arguably protected – expressions of
opposition to prohibited discrimination, as opposed to her later statements and conduct. Accordingly,
-17
the circumstances of McLemore evinced a greater motive for retaliatory discrimination by the
defendants in that case than by the three complaining supervisors in this case. In McLemore, the same
individuals who once provided positive evaluations of the plaintiff ’s job performance later acted to
effectively discharge her after she alleged discrimination. In contrast, the complaints against Burkhardt
in her capacity as the manager of the FUR were made by three supervisors who did not have prior
contact with her. There simply was no evidence in Burkhardt’s case-in-chief from which a reasonable
factfinder could find sufficient circumstantial evidence to support her retaliation claim.
I conclude that, while there was evidence that Burkhardt expressed opposition to prohibited
discrimination in the presence of the three complaining supervisors and that the supervisors complained
to higher levels of management about Burkhardt, there was simply no evidence presented to reasonably
support a finding that the supervisors’ complaints were motivated by Burkhardt’s original expression of
opposition to prohibited discrimination. Burkhardt offered no evidence showing that any of the three
complaining supervisors engaged or desired to engage in discrimination based on race or any other
protected characteristic under the Civil Rights Act. One might, perhaps, speculate regarding whether
there was a relationship between Burkhardt’s expression of opposition to discrimination and the three
supervisors’ complaints about her. However, mere speculation does not create a factual issue for the
jury. Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App 482, 486; 502 NW2d 742
(1993).
V. Abuse of Discretion
Burkhardt claims that she is entitled to a new trial because the trial court abused its discretion in
excluding BC/BS’s HR investigation file relating to charges brought against Burkhardt. Burkhardt
contends that the file is admissible under the business records exception to the hearsay rule. MRE
803(6).
This Court reviews a trial court’s evidentiary rulings for an abuse of discretion. Haberkorn v
Chrysler Corp, 210 Mich App 354, 361; 533 NW2d 373 (1995). An abuse of discretion exists when
the result is so palpably and grossly violative of fact and logic that it evidences perversity of will or the
exercise of passion or bias rather than the exercise of discretion. Dacon v Transue, 441 Mich 315,
329; 490 NW2d 369 (1992). Error requiring reversal may not be predicated upon a ruling that admits
evidence unless a substantial right was affected. MRE 103(a).
Although the trial court may have erred in failing to ascertain whether the investigation and
creation of the HR file was done in the course of a regularly conducted business activity and, if so,
whether the file was trustworthy,24 any error was harmless and is not sufficient to set aside the verdict.
MCR 2.613(A); Price v Long Realty, Inc, 199 Mich App 461; 502 NW2d 337 (1993).
The record indicates that BC/BS’s HR manager testified independently about much of the
information contained in the HR investigation file. Moreover, several witnesses offered independent
testimony that supported Burkhardt’s claim that racial discrimination existed in the FUR before she
became manager. Burkhardt does not explain the significance of the file as it relates to her being
“unable to give the jury a roadmap of what she thought the evidence would show.” While the trial court
-18
generally held that the file was inadmissible, it did allow Burkhardt to lay a proper foundation to admit
certain documents as it became necessary. Accordingly, the trial court did not commit error requiring
reversal.
VI. Judicial Bias
Burkhardt claims that she was denied a fair trial because of judicial bias and prejudice.
However, Burkhardt did not preserve this issue for appellate review by filing a motion to disqualify the
trial judge below. MCR 2.003; In re Forfeiture of $53, 178 Mich App 480, 497; 444 NW2d 182
(1989). Further, Burkhardt has not shown, nor does the record reveal, actual bias or prejudice.
Wayne Co Prosecutor v Parole Bd, 210 Mich App 148, 155; 532 NW2d 899 (1995); Elsasser v
American Motors Corp, 81 Mich App 379, 388; 265 NW2d 339 (1978).
I would therefore affirm as to all counts, including—unlike my colleagues—unlawful retaliation.
/s/ William C. Whitbeck
1
Although BC/BS moved for summary disposition prior to Burkhardt’s filing of her First Amended
Complaint, the trial court actually granted summary disposition after that filing. However, the trial court
and the parties have apparently proceeded on the assumption that that summary disposition was granted
as to the First Amended Complaint and we adopt that assumption.
2
One may note, however, that if the Legislature had meant to include a hostile work environment as
such among the chargeable offenses under § 202, it could certainly have done so in 1980 when it added
the bar against sexual harassment. However, the Legislature in 1980 chose instead to amend a
definitional section, §103, MCL 37.2103; MSA 3.458(103), to include a definition of discrimination
because of sex that included verbal or physical conduct or communication of a sexual nature that has
the purpose or effect of substantially interfering with an individual’s employment, public
accommodations, or public services, education or housing or creating an intimidating, hostile or
offensive employment, public accommodations, public services, education or housing environment.
Thus, not only is the “hostile work environment” category a subset of the more general definitional
category of verbal or physical conduct of a sexual nature, that more general category is itself a subset of
the even broader definitional category of discrimination because of sex. As the Michigan Supreme
Court recognized in Quinto, supra at 368, n, 4, federal courts have held that harassing behavior based
on ethnicity is violative of title VII of the Civil Rights Act of 1964. See Boutros v Canton Regional
Transit Authority, 997 F2d 198, 202-203 (CA 6, 1993) (national origin harassment actionable under
title VII.) In the Michigan Supreme Court’s recent opinion in Koester v Novi, 458 Mich 1, 11, n, 3;
580 NW2d 835 (1998), the Court, when dealing with a sexual harassment case under the Civil Rights
Act, stated that:
Under the dissent’s reasoning claims of racial harassment would also fail (despite being
recognized by the federal courts) because [the Civil Rights Act] prohibits racial
-19
“discrimination” not “racial harassment.” This interpretation defies logic. See Harrison
v Metropolitan Government of Nashville & Davidson Co, Tennessee, 80 F3d 1107
(CA 6, 1996), and Snell v Suffolk Co, 782 F2d 1094 (CA 2, 1986) (allowing a claim
for racial harassment.)
Under such circumstances, it is certainly questionable whether the Legislature intended the hostile work
environment subset to extend to conduct involving race or national origin.
3
The court went on to find, however, that Clayton’s single allegation of discrimination was insufficient,
as a matter of law and that the district court should have granted summary judgment in favor of the
White Hall School District on Clayton’s hostile working environment claim. Id.
4
For example, it would generally appear much easier for a landlord simply to treat potential tenants in a
race neutral manner than for an employer to monitor pervasively its employees for their commitment to
racial integration and harmony.
5
Judge Goldberg interpreted the charge that the company “segregated the patients” as meaning that the
company afforded its patients different treatment depending on their ethnic origins. Rogers, supra at
237.
6
42 USC 2000e-2(a)(1).
7
42 USC 2000e-2(a)(2).
8
Judge Roney dissented, arguing that the words “segregating the patients” did not, and were not
intended to, constitute an allegation that the complainant was permitted to have contact with only one
group of patients. Id. at 244. Judge Roney thus would not have adopted the narrower ground referred
to by Judge Goldberg and explicitly adopted by Judge Godbold. Judge Roney dismissed the more
expansive ground out of hand:
There is no indication in the Act [the Civil Rights Act of 1964] or in the legislative
history that Congress in passing Title VII was concerned about whether an employer’s
business presents conditions for employment that are environmentally attractive to all,
whether the manner of his operation suits everyone, or whether a particular individual
might be uncomfortable or have feelings of unhappiness in his employment. The merit of
this kind of approach is not up for decision. Congress has simply not given this scope
to its legislation. [Id. at 246.]
9
See also Radtke, supra at 398:
A hostile work environment claim is actionable only when, in the totality of the
circumstances, the work environment is so tainted by harassment that a reasonable
person would have understood that the defendant’s conduct or communication had
either the purpose or effect of substantially interfering with the plaintiff’s employment,
or subjecting the plaintiff to an intimidating, hostile or offensive work environment.
[Emphasis supplied.]
-20
10
Indeed, other than alleging in Count II of her First Amended Complaint that she was “subjected to” a
racially hostile, intimidating and abusive working environment for attempting to manage the FUR without
regard to race, Burkhardt failed in Count II to allege any action or inaction by BC/BS leading to the
creation or maintenance of such a hostile work environment. Contrast Bryant v Automatic Data
Processing, Inc, 151 Mich App 424; 390 NW2d 732 (1986). There, the plaintiff, a white female
married to an African-American male, asserted that the defendant had discriminated against her by
refusing to maintain an employment relationship with her “because of the race or color of her spouse”
and that the defendant engaged in a pattern or practice of discriminating against African-Americans that
served to deny the plaintiff her “rights to equal employment opportunities free from discrimination as
proscribed under the Elliot-Larsen Civil Rights Act.” The Bryant panel held that claims of racial
discrimination based on alleged interracial marriage discrimination are cognizable under §202 of the
Civil Rights Act. Without really dealing with the plaintiff’s “associational” theory, the panel went on to
say:
Plaintiff was only required to allege that racial considerations motivated the defendant’s
conduct. Her complaint clearly states that she was a victim of discrimination based on
her interracial marriage. Thus, it can be inferred that plaintiff’s race, as well as her
husband’s race, motivated the defendant’s conduct. While defendant correctly points
out that plaintiff states in her brief that she is not complaining of discrimination based on
her own race, that statement must be read in context with the type of action the plaintiff
has asserted. Therefore, we believe that plaintiff has properly stated a claim for racial
discrimination. [Id. at 430-431.]
11
See Vermont v Hough, 627 F Supp 587, 605-606 (WD Mich, 1986) (isolated incident ordinarily
not enough to sustain a cause of action for a hostile work environment).
12
Clearly, and axiomatically, Wisgerhof’s transfer of Burkhardt affected Burkhardt. However this
transfer, discussed below under § 701 of the Civil Rights Act, is not a part of Burkhardt’s hostile work
environment claim.
13
Burkhardt’s “associational” claim was actually contained in Count I and therefore went to the jury
and was rejected by it. However, since Burkhardt reasserted this claim in Count II, it is discussed here.
14
See also Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583, 591; 349 NW2d 529 (1984)
(liability may exist only where one’s intended conduct has been so outrageous in character or extreme in
degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly
intolerable in a civilized society). See also Novosel v Sears, Roebuck & Co, 495 F Supp 344, 347
(ED Mich, 1980) (wrongful discharge of long-time employee does not constitute intentional infliction of
emotional distress) and Hetes v Schefman & Miller Law Office, 152 Mich App 117, 393 NW2d 577
(1986) (as a matter of law, allegations of malicious termination were insufficient to state a cause of
action).
15
My colleagues, as they note in their separate opinion, concur in the other aspects of this opinion. We
therefore unanimously affirm the trial court on all other points.
-21
16
See also Booker v Brown & Williamson Tobacco Co, 879 F2d 1304, 1310 (CA 6, 1989): to
establish a case of unlawful retaliation under the Act, a plaintiff must establish (1) the he or she 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. The significant factor standard
requires more than the showing of a casual link. A factor can be a cause without being significant, and
only the latter is sufficient to show retaliatory discharge.
17
I note that Melinda Ross, one of the supervisors who complained to Wisgerhof about Burkhardt,
testified that after Burkhardt came to the FUR:
[Burkhardt] called me into her office and told me that everyone on my [work] team was
white and I didn’t know where that was even coming from and I didn’t understand what
she meant, and I said no I have a Filipino on my team. And she said that’s not what I
mean. Everyone on your team is white and we have to do something about it. And that
bothered me.
Ross further said, “I felt that if you concentrated on the team being white that that was a racist attitude.”
These alleged comments by Burkhardt cannot reasonably be considered activity in opposition to a
violation or suspected violation of the Civil Rights Act, nor can any action taken by Ross as a negative
reaction to them reasonably be considered retaliation for action in opposition to racial discrimination.
Obviously that a particular “team” or relatively small unit in a workplace happens to consist entirely or
predominantly of members of one race is not in itself racial discrimination. Indeed, if Ross’ testimony on
this point is accurate, far from opposing a violation of the Civil Rights Act, Burkhardt was advocating
conduct violative of the Act by proposing to consider race in making assignments of employees to a
“team.” MCL 37.2202(1)(b); MSA 3.548(202)(1)(b) (an employer shall not classify an employee in a
way that deprives or tends to deprive the employee of “an employment opportunity” because of race)
Clearly, ad hoc considerations of race by a supervisor with regard to a particular “team” in a
department of an organization cannot constitute an acceptable “affirmative action” plan that might
permit limited consideration of the race of employees for the purpose of eliminating present effects of
past discrimination. See Victorson v Dep’t of Treasury, 439 Mich 131, 143-146; 482 NW2d 685
(1992); MCL 37.2210; MSA 3.548(210).
18
Neither Sumner v United States Postal Serv, 899 F2d 203, 209 (CA 2, 1990), nor EEOC v
Crown Zellerbach Corp, 720 F2d 1008, 1013 (CA 9, 1983), cited by the majority, deals with
discriminatory animus by a subordinate employee.
19
The majority states that the discriminatory animus underlying the decision of BC/BS lies with plaintiff's
supervisor and not with her subordinates. I am constrained to note, however, that plaintiff presented no
evidence whatever of discriminatory animus on the part of her supervisor or indeed, and more generally,
on the part of BC/BS.
20
Of course, I do not suggest that an employer could never be held liable for retaliation discrimination in
the context of a demotion or discharge initially triggered by the animus of subordinate employees. For
example, if prejudiced subordinate employees told the CEO of an employer that they disliked a
-22
supervisor specifically because of the supervisor’s protected opposition to discrimination prohibited by
the Civil Rights Act and this led the CEO to discharge or demote the supervisor, the employer would be
liable for retaliation discrimination based on the CEO’s knowing participation in retaliation
discrimination. However, from my review of the record, there is no such evidence of retaliation
discrimination by the higher level supervisors in this case.
21
I also note that I remain unconvinced that plaintiff’s actions in this case constituted “opposition” to a
“violation” of the Civil Rights Act. In this regard, see Cremonte v Michigan State Police, ____ Mich
App ____; ____ NW2d ____, slip op, p 7, n, 4 (Docket Nos. 195669, 195670, released
October 20, 1998):
The Civil Rights Act protects those who seek redress for civil rights violations. Pursuant
to the Act, an employer may not “[r]etaliate or discriminate against a person because
the person has opposed a violation of this act.” MCL 37.2701(a); MSA
3.548(701)(a). In reviewing the record, we found no evidence that plaintiff “opposed a
violation” of the Civil Rights Act. Plaintiff’s writings to his superiors did not raise the
spectre [sic] of a discrimination complaint, nor did they contain any hint of any illegality
on the part of defendant. Indeed, the writings can, at best, be interpreted as plaintiff’s
expression of disagreement with defendant’s employment practices. We do not believe
that the protections of the Civil Rights Act extend to such statements. Compare
McLemore v Detroit Receiving Hosp, 196 Mich App 391, 396; 493 NW2d 441
(1992). See also Booker[, supra at 1311-1314].
22
It is fairly clear that BC/BS was aware of Burkhardt’s statements and that Burkhardt suffered an
adverse employment decision when Wisgerhof removed her from the FUR. Thus, I am willing to
assume that the second and third elements of the four part test in MCL 37.2701; MSA 3.548(701)
were satisfied.
23
Of course, it is not our role to make any such factual determination. Thus, my comment here should
certainly not be taken as any type of belief that Burkhardt, a white woman, actually engaged in any
“reverse discrimination” in favor of non-white employees.
24
See MRE 803(6); Solomon v Shuell, 435 Mich 104, 115; 457 NW2d 669 (1990); see also Crimm
v Missouri Pacific R Co, 750 F2d 703 (CA 8, 1984).
-23
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