SHANNON KING V DENTON TOWNSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
SHANNON KING and THOMAS KING,
UNPUBLISHED
July 6, 2004
Plaintiffs-Appellants,
v
No. 243350
Roscommon Circuit Court
LC No. 00-722089
DENTON TOWNSHIP and DENTON
TOWNSHIP AMBULANCE SERVICE,
Defendants-Appellees.
Before: Murray, P.J., and Neff and Donofrio, JJ
PER CURIAM.
Plaintiff1 appeals as of right from a judgment granting defendants’ motion for summary
disposition pursuant to MCR 2.116(C)(10) dismissing plaintiff’s claim of retaliatory discharge.
We affirm.
I. Material Facts
In 1997, plaintiff was hired as a paramedic for the emergency medical service (EMS) in
Denton Township. On June 27, 1999, plaintiff participated in the drafting of a letter to the
township supervisor, Joseph Faino, regarding her supervisor, Gregory Wagner. The letter
generally addressed complaints of sexual harassment and verbal abuse by Wagner, among other
things. Although the letter was not signed, plaintiff testified at her deposition that she was one of
four people who collaborated in writing the letter to Faino.
After Faino received the anonymous letter, he posted a note along with a copy of the
letter on the refrigerator in the ambulance dormitory, and requested that the drafter of the letter
contact him. According to plaintiff, she and three other individuals responded to the notice and
met with Faino to discuss their concerns. Plaintiff testified that she and the other three
employees said the allegations were true and elaborated on them, although no one specifically
admitted to writing the letter.
In September 1999, plaintiff learned that she was pregnant and notified Wagner of her
pregnancy. According to plaintiff, Wagner told her that she would not receive any preferential
1
Because plaintiff Thomas King’s claim is derivative in nature, we will, for ease of reference,
use the singular term “plaintiff” to refer to plaintiff Shannon King.
-1-
treatment and that she would be required to perform her job duties as a paramedic. A few weeks
later, plaintiff’s doctor restricted her workweek to no more than forty hours a week. At this
point, Wagner asked plaintiff to have a “return-to-work”2 form signed by her doctor, which her
doctor did not do. According to Wagner, his motivation for having plaintiff fill out the form was
because he was concerned for plaintiff’s safety, the safety of her unborn child, and the safety of
the patients served by the EMS. Plaintiff testified that she had to request a ninety-day maternity
leave from the township board under the Family Medical Leave Act (FMLA) because her doctor
would not sign the return-to-work form.
According to plaintiff, Wagner understood that she would not be able to return to work
after the initial ninety-day leave period because she would still be pregnant, and he informed her
that she could request an extension of the initial ninety days. Plaintiff testified that Wagner told
her that she could request the extension at the same time that she requested the initial ninety days
of leave. Plaintiff’s letter to the township board contradicted this testimony, as in the letter
plaintiff stated that Wagner told her she could seek the initial ninety-day leave, and at the end of
the leave, seek an extension. Nonetheless, in the letter, plaintiff requested both ninety days of
maternity leave and an additional extension for the duration of her pregnancy:
I am writing this letter to request my 90 day maternity leave. Do [sic] to
the fact that my physician will not sign the return to work slip that was given to
me by Greg Wagner, I will be unable to work on the ambulance. Unless there are
hours available to me at the township hall where I could work less than 40 hours a
week and lift less than 25 LB I will have to take my maternity leave. It was
brought to my attention by Mr. Wagner that I can ask for an extenuation [sic] on
my maternity leave after I have been off and will be unable to return to work
without restrictions. I am submitting that request at this time. If hours that I
could work at the township become available I would like to work them to reduce
my maternity leave. [Emphasis added.]
Plaintiff also testified that Wagner told her “not to worry” and that if she did not seek an
extension with the initial request, he would do so for her.
On October 6, 1999, the Denton Township board unanimously approved plaintiff’s
request for ninety days of maternity leave, but also determined that plaintiff must request any
extension, in writing, at the end of the ninety-day period. Plaintiff did not attend the board
meeting. The board’s decision was reflected in detail in its minutes. Carol Asher, the Denton
Township clerk, testified that she mailed a copy of the minutes of the board meeting to plaintiff;
however, plaintiff denied receiving it. Plaintiff indicated that she did not make an additional
request for an extension because Wagner told her that he would take care of everything.
2
The return-to-work form required the signing doctor to certify that the patient could work a
twenty-four-hour shift with undiminished mental alertness, and that the patient could perform
specific tasks, such as lifting a 125-pound load for ten seconds. Interestingly, the return to work
form was initially provided by plaintiff to Wagner for use by the township. Plaintiff received the
form from her husband, who obtained it from his employer, Houghton Lake Ambulance Service.
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On December 14, 1999, plaintiff’s ninety-day leave period ended, and plaintiff did not
request an extension. In fact, after submitting the initial letter requesting the leave, plaintiff did
not contact anyone at the township regarding whether her leave was granted or to request an
extension. On January 3, 1999, Wagner wrote a letter to the township board asking that plaintiff
be terminated because her leave expired, she did not call him to return to work, and she did not
request an extension of her leave as instructed by the board. On January 5, 2000, the township
board granted Wagner’s request.
The trial court granted defendants’ motion for summary disposition, concluding that there
was no genuine issue of material fact that plaintiff was not engaged in protected activity and that
there was no causal connection between Wagner’s alleged animus and plaintiff’s termination.
II. Standard of Review
This Court reviews a trial court’s grant of summary disposition de novo. Beaudrie v
Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). In Maiden v Rozwood, 461 Mich 109,
119-120; 597 NW2d 817 (1999), our Supreme Court outlined the review standard applicable to
motions brought under MCR 2.116(C)(10):
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. In evaluating a motion for summary disposition brought under this
subsection, a trial court considers affidavits, pleadings, depositions, admissions,
and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most
favorable to the party opposing the motion. Where the proffered evidence fails to
establish a genuine issue regarding any material fact, the moving party is entitled
to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross &
Peters Co, 451 Mich 358, 547 NW2d 314 (1996).
III. Discussion
On appeal, plaintiff contends that the trial court erred in granting defendants’ motion for
summary disposition. We disagree.
The specific provision of the Civil Right’s Act (CRA) under which plaintiff’s claim is
brought is MCL 37.2701(a), which provides:
Two or more persons shall not conspire to, or a person shall not:
(a) Retaliate or discriminate against a person because the person has
opposed a violation of this act, or because the person has made a charge, filed a
complaint, testified, assisted, or participated in an investigation, proceeding, or
hearing under this act.
In order to establish a prima facie case of retaliation under the CRA, a plaintiff must prove the
following:
(1) that [the plaintiff] engaged in a protected activity; (2) that this was
known by the defendant; (3) that the defendant took an employment action
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adverse to the plaintiff; and (4) that there was a causal connection between the
protected activity and the adverse employment action. [Peña v Ingham Co Rd
Comm, 255 Mich App 299, 310-311; 660 NW2d 351 (2003); see also Barrett v
Kirtland Community College, 245 Mich App 306, 315; 628 NW2d 63 (2001).]
In order to meet the first element necessary in a claim for retaliatory discharge, plaintiff
must demonstrate that she was engaged in a protected activity. Here, plaintiff claimed that she
participated in the drafting of the June 27, 1999, letter3 along with three other employees, and
that they met with Faino, admitting the truth of the allegations contained in the letter and
elaborating further on such allegations. Although Faino contradicts plaintiff’s contentions, we
cannot make findings of fact or judge the credibility of witnesses in deciding a motion for
summary disposition. Featherly v Teledyne Industries, Inc, 194 Mich App 352, 357; 486 NW2d
361 (1992). Accordingly, viewing the evidence in a light most favorable to plaintiff, a genuine
issue of material fact exists regarding this element.
The second element necessary to establish a prima facie case of retaliation requires
plaintiff to demonstrate that the employer knew of the protected activity. Here, plaintiff’s
employer was Denton Township, and not Wagner, and it was the township board that actually
terminated plaintiff’s employment. There is no evidence to suggest that any board member knew
that plaintiff had engaged in protected activity. However, plaintiff contends that Wagner’s
actions should be imputed to the board. Where a supervisor consciously works toward the
opportunity to employ a neutral mechanism, such as the township board in this case, in order to
accomplish a discriminatory purpose, the mechanism can no longer be considered neutral.
Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 540-541; 398 NW2d 368 (1986). In such
cases, the discriminatory animus of the supervisor may be imputed to those who actually made
the decision to terminate. Rasheed v Chrysler Corp, 445 Mich 109, 136; 517 NW2d 19 (1994).
Under this theory, there must be evidence that Wagner had knowledge of plaintiff’s protected
activity.
Although Wagner denied knowing who drafted the letter, viewing the evidence in a light
most favorable to plaintiff, a reasonable jury could conclude that Wagner had knowledge of
plaintiff’s participation in the letter. First, there was evidence that plaintiff was one of Wagner’s
most vocal critics. Additionally, the general rumor around the station was that plaintiff wrote the
letter. Further, according to plaintiff, Wagner’s two best friends at the EMS indicated to her that
they knew she wrote the letter. Thus, viewing this circumstantial evidence in a light most
favorable to plaintiff, a genuine issue of material fact exists regarding this element.
Under the third element of a retaliation claim, plaintiff must demonstrate that there was
an adverse employment action. This element is not contested on appeal. Plaintiff was
discharged and this constitutes an adverse employment action. Peña, supra.
In order to establish the fourth element necessary for a retaliation claim, plaintiff must
show that there was a causal connection between her termination and her complaint of sexual
3
Although plaintiff did not specifically allege a violation of her civil rights under the CRA, an
expression of concern to an employer regarding possible discrimination may be sufficient to
apprise the employer of a possible claim under the CRA. McLemore v Detroit Receiving Hosp &
Univ Medical Ctr, 196 Mich App 391, 396; 493 NW2d 441 (1992).
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harassment. DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997);
see also West v General Motors Corp, 469 Mich 177, 184-185; 665 NW2d 468 (2003).4 “To
establish causation, the plaintiff must show that his participation in activity protected by the
CRA was a ‘significant factor’ in the employer’s adverse employment action, not just that there
was a causal link between the two.” Barrett, supra at 315. “Summary disposition for the
defendant is appropriate when a plaintiff cannot factually demonstrate a causal link between the
protected activity and the adverse employment action.” West, supra at 184. In order to prevail, a
plaintiff must show that his employer took adverse employment action “because of” the
plaintiff’s protected activity, and that the adverse employment action was “in some manner
influenced by the protected activity . . . .” Id. at 185. Moreover, “[s]omething more than a
temporal connection between protected conduct and an adverse employment action is required to
show causation where discrimination based retaliation is claimed.” Id. at 186 (footnote omitted).
We conclude, as did the trial court, that plaintiff failed to demonstrate that her
participation in writing the letter was a significant factor in the board’s decision to terminate her
employment. Plaintiff’s retaliation claim is premised on two main factors: (1) that another
employee, Melissa Clewley, was treated differently than she was, and (2) that Wagner assured
plaintiff that she did not need to worry about her position with Denton Township.5
Plaintiff initially contends that Clewley was treated differently from plaintiff in four
ways: (1) that plaintiff was not permitted to perform light work whereas Clewley was; (2) that
plaintiff was forced to take leave under the Family Medical Leave Act (FMLA) whereas Clewley
was not; (3) that plaintiff was forced to have a medical release signed, unlike Clewley; and (4)
that a temporary full-time employee was not hired to take plaintiff’s place as was done for
Clewley. A close examination of the record evidence shows, however, that no such dissimiliar
treatment existed.
First, plaintiff offered no evidence that light work was available for her at the time of her
pregnancy, as it was for Clewley. Additionally, plaintiff was admittedly unable to perform the
duties of a paramedic at the time of her pregnancy. It was undisputed that plaintiff was to avoid
prolonged lifting and working shifts greater than eight hours. Plaintiff admitted that she worked
twelve or twenty-four hour shifts as part of her job as a paramedic, and that, in the course of her
job as a paramedic, she had to be able to move 125 pounds for ten feet in ten seconds. Although
she was unsure if 125 pounds of lifting was an accurate requirement, plaintiff admitted that, as a
paramedic, there is strenuous lifting. Further, plaintiff admitted that the return-to-work form was
not in use by the EMS at the time Clewley left her position in 1998 because it was plaintiff who
supplied the form to the EMS in spring or summer of 1999.
Remaining is plaintiff’s contention that she was treated differently than Clewley because
a temporary, full-time paramedic was hired in Clewley’s place, but not for plaintiff. The
4
Although the West Court was faced with a claim brought under the Whistleblowers’ Protection
Act, the Court indicated that a whistleblower claim is analogous to an antiretaliation claim based
on other prohibited kinds of employment discrimination. West, supra at 186 n 11.
5
On appeal, plaintiff presents evidence that other employees were “harassed” by Wagner. Such
evidence detracts from plaintiff’s claim, in that the evidence tends to show that Wagner treated
all the employees in the same fashion, including plaintiff. See West, supra at 187.
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evidence demonstrated that the temporary, full-time paramedic6 program was unsuccessful, and
that it was a one-time experiment. Further, both pregnant employees were provided the same
opportunity to return to the ambulance service after their pregnancies. However, plaintiff never
sought reemployment with the township, and she did not seek an extension of her leave as
instructed by the board. Therefore, plaintiff has not demonstrated that she was treated differently
than Clewley for the same or similar conduct, and therefore did not demonstrate a causal
connection between her engaging in a protected activity and her discharge.7
Plaintiff further contends, however, that along with disparate treatment, she was also
“set-up” for termination by Wagner. In support of this contention, plaintiff relies on her
deposition testimony that Wagner informed her that her job was safe. According to plaintiff,
Wagner told her that she could request at the same time both her initial leave, and an extension
of that leave, from the township board. Plaintiff further contended that Wagner stated that if she
did not simultaneously seek the extension and initial request, he would seek the extension for
her:
Q. (By Mr. Parker) Okay. At what – was it at that same time that Mr. Wagner
told you that if you did not ask for an extension he would do it for you?
A. Yes.
Q. Okay. It was the day you took that slip in to him. Correct?
A. Yes.
Q. Well, what – do you remember specifically what it was he said?
A. That I could ask for an extension at the same time that I had asked for my
FMLA. And so, therefore, I did so in that (indicating) letter right there. And
– but, however, if I did not, not to worry, my job was not in jeopardy, that he
would do so for me. [Emphasis added.]
As previously noted, plaintiff submitted a FMLA letter to the township board indicating
that Wagner informed her that she could request an extension of her maternity leave after she had
been off and if she was still unable to return to work. However, it is further apparent from the
letter that plaintiff did make a simultaneous request for leave and an extension of that leave,
which according to plaintiff’s testimony, alleviated Wagner from later making a request on
plaintiff’s behalf. Thus, Wagner’s failure to seek an extension from the board on plaintiff’s
behalf was not part of a “set-up” or because of any animus, but resulted from plaintiff’s decision
to seek the extension at the time she made the initial request.
6
It was uncontradicted that the temporary paramedic was terminated due to her below-average
performance.
7
Although plaintiff testified that Wagner treated her differently following the drafting of the
letter by yelling at her and calling her “stupid,” plaintiff admitted that Wagner had a history of
yelling and swearing at her and the other employees, one of the reasons the letter was initially
drafted.
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Moreover, the township clerk testified that plaintiff was mailed a copy of the minutes of
the township board’s meeting, informing her of the need to seek an extension at the end of her
initial ninety days of maternity leave. Michigan courts presume that a letter mailed out in the
ordinary course of business is received by the addressee. Good v Detroit Auto Inter-Insurance
Exchange, 67 Mich App 270, 274-275; 241 NW2d 71 (1976), citing Long Bell Lumber Co v
Nyman, 145 Mich 477, 481; 108 NW 1019 (1906).8 And, although plaintiff created a factual
dispute over whether she actually received the letter, Long Bell, supra at 481, we do not believe
this created a genuine issue of material fact regarding whether plaintiff was unlawfully retaliated
against. The undisputed facts remain that plaintiff knew the board’s decision was discretionary,
she knew that she had made both requests in her original request, and that she had not appeared
at the board meeting where her request was to be considered. That there is a question regarding
whether plaintiff actually received the minutes in the mail from someone other than Wagner does
not address whether the board acted unlawfully because of Wagner’s alleged animus. See, e.g.,
English v Colorado Dept of Corrections, 248 F3d 1002, 1010-1011 (CA 10, 2001). In other
words, whether plaintiff actually received the letter is of no consequence to whether the board’s
decision was discriminatory, for Wagner was uninvolved with the mailing of the letter, and
plaintiff has only asserted that the board acted with a retaliatory motive because of Wagner’s
alleged animus, not the clerk’s.
In conclusion, plaintiff provides no evidence that demonstrates a causal connection
between plaintiff’s protected activity and her termination other than her allegation that Wagner
knew that she wrote the complaint about him. There is no evidence to suggest that plaintiff’s
participation in writing the letter was a significant factor in her termination, or that she was
terminated because of her engaging in a protected activity. Accordingly, as plaintiff has failed to
demonstrate a causal connection between her conduct and her termination or that her conduct
was a significant factor in her termination, the trial court properly granted defendants’ motion for
summary disposition.
Affirmed.
/s/ Christopher M. Murray
/s/ Janet T. Neff
/s/ Pat M. Donofrio
8
We note that plaintiff made no effort to determine whether her request had been approved by
the township board. Assuming she did not receive the minutes in the mail, it remains undisputed
that the minutes of the board meetings were a matter of public record, providing plaintiff with
either constructive notice of their content, or at least an opportunity to find out what the board
decided regarding her requests.
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