FRANKLIN B JACKSON V GENESEE CNTY ROAD COMM
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STATE OF MICHIGAN
COURT OF APPEALS
FRANKLIN B. JACKSON,
UNPUBLISHED
August 3, 1999
Plaintiff-Appellant,
v
No. 206941
Genesee Circuit Court
LC No. 96-046567 NZ
GENESEE COUNTY ROAD COMMISSION,
ROGER WALTHER, and DENNIS KAYE,
Defendants-Appellees.
Before: Gage, P.J., and Smolenski and Zahra, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s orders granting summary disposition in favor of
defendants; awarding costs to defendants; and denying in part plaintiff’s motion for an order compelling
discovery. We affirm.
Plaintiff began his employment with defendant Genesee County Road Commission (“GCRC”)
as an Equipment Operator I on July 3, 1973. Plaintiff was promoted to an Equipment Operator II on
June 8, 1992. In 1995, GCRC had an opening for foreman of its Swartz Creek garage, for which
plaintiff applied but was denied. Anthony Branch, an African-American male, was promoted to this
position. Defendants maintain that Branch was the best qualified person because of his previous
management experience, his leadership and communication skills, his intelligence, and his college
education. In 1996, plaintiff applied for another open foreman position, this time at the Linden Road
garage. Defendants promoted Rick Ray to this position, based on his many years of employment at the
Linden garage and his familiarity with the territory and townships to be maintained. Defendants maintain
that plaintiff was not chosen to interview for these two foreman positions because of his poor attendance
record.
Plaintiff filed the instant lawsuit on March 28, 1996, claiming that he was not promoted to
foreman of the Swartz Creek garage in retaliation for his filing of a claim for worker’s compensation
benefits in 1990, which constituted a violation of the Worker’s Disability Compensation Act (WDCA),
MCL 418.301(11); MSA 17.237(301)(11). Plaintiff also claimed that defendants’ actions in refusing
to promote him to foreman of the Swartz Creek garage constituted age discrimination in violation of the
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Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and handicap
discrimination under the Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq.; MSA
3.550(101) et seq.
On January 31, 1997, plaintiff filed a motion for leave to amend his complaint to add a claim of
reverse race discrimination in violation of the Civil Rights Act, MCL 37.2202; MSA 3.548(202),
regarding defendants’ failure to promote him to foreman at the Swartz Creek garage. Plaintiff also
sought to add claims under the WDCA, the Civil Rights Act, and the HCRA regarding his failure to be
promoted to foreman of the Linden garage in 1996. Plaintiff did not include in his motion an explanation
for his failure to bring these claims in his original complaint. The trial court granted plaintiff leave to
amend his complaint and, apparently agreeing with defendants’ contention that plaintiff had acted with
undue delay, awarded defendants $250 in costs.
I.
This Court reviews decisions on motions for summary disposition de novo to determine if the
moving party was entitled to judgment as a matter of law. UAW-GM Human Resource Center v KSL
Recreation Corp, 228 Mich App 486, 490; 579 NW2d 411 (1998). When reviewing a motion for
summary disposition based on MCR 2.116(C)(10), this Court must determine whether any genuine
issue of material fact exists which would preclude judgment for the moving party as a matter of law.
Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998). “[A]n adverse party
may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as
otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial.”
MCR 2.116(G)(4).
Plaintiff contends that he established the existence of a genuine issue of material fact regarding
whether defendants’ failure to promote him constituted retaliation in violation of the WDCA. An
employee has a cause of action in tort under the WDCA if he is discharged in retaliation for filing a
worker’s compensation claim. MCL 418.301(11); MSA 17.237(301)(11); See also Phillips v
Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 245-249; 531 NW2d 144
(1995). In order to prevail on a retaliation claim, plaintiff must present proof of (1) an adverse
employment action; (2) that was a result of plaintiff’s decision to pursue a claim under the WDCA.
Phillips, supra.
The trial court found that plaintiff failed to present evidence that GCRC’s failure to promote
plaintiff was a result of plaintiff’s claim under the WDCA. We agree. The mere fact that plaintiff filed a
claim and received benefits under the Act does not support his contention that defendants’ failure, five
years later, to promote him to foreman was motivated by retaliation for filing the claim. Moreover,
plaintiff actually received a promotion soon after filing this claim, from Equipment Operator I to
Equipment Operator II. Because plaintiff failed to present any evidence demonstrating the existence of
a genuine issue of material fact regarding whether he was retaliated against because he sought and
received worker’s compensation benefits, summary disposition as to this claim was appropriate.
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Plaintiff also argues that the trial court erred in granting summary disposition to defendants on
the age, race, and handicap discrimination claims. The Civil Rights Act provides that employers may
not “[f]ail 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.” MCL 37.2202(1)(a);
MSA 3.548(202)(1)(a). The HCRA prohibits employers from “[f]ail[ing] or refus[ing] to hire, recruit,
or promote an individual because of a handicap that is unrelated to the individual’s ability to perform the
duties of a particular job or position.” MCL 37.1202(1)(a); MSA 3.550(202)(1)(a).
The burden of proof in a discrimination case brought under either the Civil Rights Act or the
HCRA is allocated as follows: First, the plaintiff must establish a prima facie case of discrimination.
Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906 (1998); Rollert v Dep’t
of Civil Service, 228 Mich App 534, 538; 579 NW2d 118 (1998); Harrison v Olde Financial
Corp, 225 Mich App 601, 607; 572 NW2d 679 (1997). If the court concludes that the plaintiff has
sufficiently established a prima facie case, a presumption of discrimination arises. Lytle, supra at 173.
The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action.
Id.; Rollert, supra at 538; Harrison, supra at 608. Finally, the plaintiff is afforded an opportunity to
demonstrate, by a preponderance of the evidence, that the employer’s articulated nondiscriminatory
reason is merely pretext. Lytle, supra at 174; Victorson v Dep’t of Treasury, 439 Mich 131, 143;
482 NW2d 685 (1992); Rollert, supra at 538; Harrison, supra at 608.
Defendants offered a non-discriminatory reason for their decision not to promote plaintiff:
excessive absenteeism. Defendants showed that plaintiff had been absent from work a total of 376
days from 1990 to 1995. Not surprisingly, defendants maintained that the consistent attendance of a
foreman was a critical aspect of the job.
Plaintiff presented no evidence to rebut defendants’ articulated reason for not promoting him.
While he refers to the “anticipated testimony” of two GCRC employees, which he claims will support
his claims of age and handicap discrimination, their testimony is not a part of the record and may not be
considered. Because plaintiff failed to establish the existence of a genuine issue of material fact for trial,
the trial court properly granted summary disposition to defendants on the discrimination claims.
II.
Next, plaintiff contends that the trial court improperly awarded costs to defendants when it
granted plaintiff’s motion to amend his complaint. This Court reviews a trial court's grant or denial of a
motion to amend for an abuse of discretion. Hakari v Ski Brule, Inc, 230 Mich App 352, 355; 584
NW2d 345 (1998). Leave to amend pleadings should be freely granted if justice so requires. Id.;
MCR 2.118(A)(2). The remedy for undue delay in bringing the request to amend the pleading is not to
deny the request, but rather to sanction the offending party to reimburse the opponent for the additional
expenses and attorney fees incurred because of the inexcusable delay in requesting an amendment.
MCR 2.118(A)(3); Traver Lakes Community Maintenance Ass'n v Douglas Co, 224 Mich App
335, 344; 568 NW2d 847 (1997).
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Plaintiff argues that his request to amend was timely in that he did not have sufficient information
at the time the complaint was originally filed to assert the race, age and handicap claims. However, we
note that MCR 2.114(D) imposes upon a litigant and his counsel a duty to conduct a prefiling
investigation of the facts supporting a claim. We also note that plaintiff presented no evidence to
support his argument that he did not have sufficient information at the time of filing his initial complaint to
bring these newly asserted claims regarding his failure to be promoted to foreman of the Linden garage.
Nor has plaintiff offered an explanation of how or when these claims were discovered. Under the
circumstances, we cannot find that the trial court abused its discretion by imposing a $250 sanction
upon finding that plaintiff’s motion to amend was less than timely.
III.
Finally, plaintiff argues that the trial court erred in denying his motion to compel discovery of
confidential settlement agreements. Parties may discover any relevant, nonprivileged matter, provided
that the information sought appears reasonably calculated to lead to the discovery of admissible
evidence. MCR 2.302(B)(1); Harrison, supra at 614. This Court reviews the trial court's decision to
grant or deny discovery for an abuse of discretion. Harrison, supra.
Plaintiff sought production of settlement agreements entered into by defendants in previous
discrimination claims. The trial court granted in part and denied in part plaintiff’s motion, finding as
follows:
Well, what I’m saying is, is that the parties themselves also entered into those
agreements not to disclose. That’s what concerns me here, it’s not just the Road
Commission entering into those.
So I’m going to deny that. I will allow you to discover the settlement
agreements which do not have confidentiality clauses or any clauses that would indicate
that those settlements are not to be disclosed. And see what you have at that point, and
then you can come back later if you want and see if - - after you see what you get with
that, okay? It may very well be that you don’t need the rest after that.
Plaintiff argues that the documents with confidentiality agreements were relevant because they may
contain an agreement by defendants to promote employees on the basis of race and thus support his
claim of reverse race discrimination. Specifically, plaintiff argued that the confidential agreement in a
lawsuit to which Branch was a party would likely show that he was promised a promotion or admittance
to a training program, and as a result of this agreement, Branch was promoted to foreman instead of
plaintiff.
We find no abuse of discretion in the trial court’s decision. The trial court did not categorically
deny plaintiff’s motion. Instead, the court offered plaintiff the opportunity to review the nonconfidential
agreements first and if plaintiff still thought the confidential agreements were necessary, plaintiff could
come back. While plaintiff brought a motion for reconsideration of the court’s ruling, plaintiff never
followed the court’s instruction to look at the nonconfidential settlement agreements and, if still
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dissatisfied, come back to court and explain why the confidential settlement agreements were needed.
We do not find that the trial court abused its discretion under these circumstances.
We also find that plaintiff has failed to establish that the confidential documents were relevant to
the case at bar. Plaintiff’s assertions as to what the settlement agreements would contain were pure
speculation. In fact, Branch testified that promises of a promotion or admittance to a training program
were not a part of the settlement of his case. Moreover, even if a settlement agreement contained a
provision regarding Branch’s promotion or admittance into a training program, we fail to see how such
information is reasonably calculated to lead to the discovery of admissible and relevant evidence. Such
a provision would indicate an economic decision to settle a pending lawsuit; not a decision to promote
on the basis of race. Therefore, we find that plaintiff has not shown that the confidential settlement
agreements are discoverable.
Moreover, we note that this state’s public policy encourages the settlement of lawsuits because
it benefits both the parties and the public. Dep’t of Transportation v Christensen, 229 Mich App
417, 429; 581 NW2d 807 (1998). Allowing plaintiff to discover settlement agreements that the parties
had understood would remain confidential would be contrary to this policy. For all of the above stated
reasons, we find that the trial court did not abuse its discretion in denying plaintiff’s request for discovery
of the confidential settlement agreements.
Affirmed.
/s/ Hilda R. Gage
/s/ Michael R. Smolenski
/s/ Brian K. Zahra
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