YOLANDA CARR V FORD MOTOR COMPANY
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STATE OF MICHIGAN
COURT OF APPEALS
YOLANDA CARR,
UNPUBLISHED
April 24, 2008
Plaintiff-Appellee,
v
No. 273675
Wayne Circuit Court
LC No. 04-426910-CD
FORD MOTOR COMPANY,
Defendant-Appellant.
YOLANDA CARR,
Plaintiff-Appellee,
v
No. 274251
Wayne Circuit Court
LC No. 04-426910-CD
FORD MOTOR COMPANY,
Defendant-Appellant.
Before: Murray, P.J., and Hoekstra and Wilder, JJ.
PER CURIAM.
In these consolidated appeals, defendant, Ford Motor Company, appeals by leave granted
the trial court’s October 11, 2006, orders denying its motion for summary disposition, and
alternative motion for partial summary disposition, as well as the trial court’s November 3, 2006,
order denying its motion in limine to exclude “me too” evidence. We reverse the trial court’s
order denying Ford’s motion for summary disposition.
Background
Plaintiff, an African American female, began working at Ford’s Wixom plant as an
hourly employee in 1992. Although plaintiff was discharged in 2000, she sued Ford and was
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later reinstated in 2001 as a part of a settlement.1 In December 2001, Ishmael Graham, an
African American hourly employee at the Wixom plant, approached plaintiff at a union meeting
and asked how she was doing and wished her a happy new year.2 On January 10, 2002, Graham
again approached plaintiff in the cafeteria and told her “the only thing I was trying to do was
apologize.” After walking away, Graham came back, got “everybody’s attention” and stated,
“oh, by the way I love her.” Plaintiff filed a complaint with labor relations, which led to Graham
being disciplined.
On March 12, 2002, plaintiff was walking to her car when Graham pulled up, rolled
down his window and said “something” to her before driving away. Plaintiff filed another
complaint with labor relations, which led to further disciplinary actions against Graham,
including stern instructions not to have any further contact with plaintiff. Although plaintiff
never had any further direct contact with Graham, he had his friend “Darryl” approach her on
June 27, 2002, and convey a message to her inquiring whether she would accept Graham’s phone
number and give him a call. Finally, on December 13, 2002, Graham sent plaintiff a bottle of
perfume along with a note stating, “Yolanda Carr please accept,” “can you forgive a person at
this time of love and peace,” and “Merry Christmas I love you.” Plaintiff filed another complaint
and Graham was terminated.
Graham appealed his termination and was eventually reinstated in July of 2003 as part of
an agreement between Ford and the United Auto Workers Union (UAW) resolving the
grievance.3 Before reinstating Graham, Ford took measures to ensure that Graham was not a
risk. Specifically, Ford had Graham evaluated by an outside psychiatrist, who concluded that
Graham was not angry about being terminated, was remorseful for his actions that led to his
termination, and would not be a threat to plaintiff. Ford subsequently had a meeting with
plaintiff and informed her that although Graham was going to be reinstated, he had been in
therapy, would not be allowed in the front of the plant where she worked and would not be a
threat to her. Plaintiff was also informed that Ford would look into her ongoing request to be
transferred.
Graham was never a problem to plaintiff after he was reinstated. Plaintiff admitted that
Graham never attempted to contact her after he was terminated.4 However, even though Graham
1
The trial court barred plaintiff from relying on any alleged incidents predating plaintiff’s July 2,
2001, settlement. The trial court also ruled that evidence of incidents that occurred prior to
August 27, 2001, a date beyond the statute of limitations, could not be presented as substantive
evidence, though it could be used to establish a “historical context.”
2
Graham had been previously instructed in 1998 not to contact plaintiff because she had
complained about him to labor relations.
3
Although Graham was brought back to the Wixom plant because there was no room for him at
any other plant, he was eventually transferred to Ford’s Dearborn plant in November 2003 under
Ford’s “return home provision.”
4
However, plaintiff did file another complaint with labor relations regarding a November 11,
2003, incident where a co-worker informed her that she saw Graham near “K1 canteen,” an area
(continued…)
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had never touched plaintiff, never used threatening words, had no contact with plaintiff since his
termination, and was transferred to Dearborn, plaintiff still felt threatened by Graham, describing
herself as a “sitting duck” because Graham knew where she worked.5
In 2003, Ford’s Thunderbird production line, which plaintiff was a part of, closed down,
resulting in “substantial displacement of hourly workers.” Because plaintiff had seniority over
many other workers, she was not laid off; rather, she was integrated into the main “trim” line at
the Wixom plant.6 Indeed, many of plaintiff’s fellow Thunderbird chassis department members
were also integrated to the main “trim” line. Matthew Swift, a Ford manufacturing-planning
specialist, was assigned the task of integrating 350 workers from the Thunderbird line to the
main line. Swift placed workers based on production needs, and could not grant most preference
requests. In relevant part, Swift placed 70 workers in the chassis department, and 80 workers in
the trim department. An individual’s race or gender was not used as a factor in the placement of
the displaced workers, as male and females of all ethnic backgrounds were placed in various
departments.
Greg Lemanski, a white male who worked with plaintiff in the Thunderbird line chassis
department, was placed in “chassis” because Swift felt that he had prior experience that
translated well to chassis. Plaintiff did not initially show any preference regarding where she
was assigned prior to her assignment to trim, but did request a move to chassis after she had been
placed in trim. As a result, Ann Dye asked plaintiff if she wanted to be placed in the pool of
those wanting to transfer to chassis. Plaintiff declined Dye’s offer, stating that although she was
more familiar with chassis, she did not see chassis as more preferable.
Sherrie Winfield, the human resources (HR) manager at the Wixom plant, testified that
“substantially increased economic pressures caused greater scrutiny of all employees and a
renewed emphasis on accountability.” As a result, unexcused absences were coded as “AWOL,”
and were to be reviewed by labor relations or management if they reached a certain level. The
Wixom plant kept a top 50 AWOL list to monitor and control unexcused absences, and anyone
who was on the list was denied “go home” time privileges7 and the use of unpaid personal days.
Plaintiff was on the top 50 AWOL list in 2002, 2004 and 2005, as well as the 2003 employee
follow up checklist, which was a temporary replacement to the AWOL list in 2003. As a result,
plaintiff was monitored by management and was not allowed “go home” time unless her union
representative spoke with her supervisor. Plaintiff filed an internal complaint over this practice,
which resulted in an investigation and finding that plaintiff was not being retaliated or
(…continued)
where Graham was not supposed to be. This complaint led to an email authored by labor
relation’s supervisor, Brian Hinton, where he referred to plaintiff as the “scared rabbit.”
5
Apparently, in 1996 a man entered the Wixom plant and shot a woman with whom he had been
infatuated.
6
Plaintiff’s job classification did not change.
7
“Go home” privileges allowed eligible employees to go home without pay if their shift had
excess manpower.
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discriminated against. Nevertheless, she was subsequently allowed go-home time without
having to go through any special procedures.
Plant medical staff also watched plaintiff closely. Ford physician Dr. Golicz, who
plaintiff was generally required to see before taking a medical leave, consistently denied her
medical leave on the grounds that she was healthy, while also opining that plaintiff should stop
attempting to abuse medical privileges.8 Golicz disagreed with Dr. Fergusson’s (plaintiff’s
psychiatrist) assessment that plaintiff had “adjustment disorder mixed.” As a result, and
according to the terms of the collective bargaining agreement, Golicz ordered that plaintiff see an
independent third party psychologist, who would break the “tie” and determine whether plaintiff,
depending on the situation, could go on medical leave (or continue medical leave). The third
party doctor generally agreed with Golicz’s assessment, and depending on the situation, plaintiff
was either denied medical leave or ordered to return from medical leave. Plaintiff admitted that
other employees were also sent back to work after seeing a third party doctor.
Plaintiff also saw her name on what she referred to as a “hit list” on a post it note at the
Wixom medical center. Of the nine employees on the list, eight of them were African American.
Plaintiff filed an internal complaint about the list. Hinton performed an investigation and
determined that the list existed so that medical staff would know who was supposed to be closely
monitored. Plaintiff additionally complained about an incident where she brought a doctor’s
excuse in after she had been AWOL, and the nurse warned her that the next time she was AWOL
she would have to bring in a medical certification form to justify being AWOL, even though
“Kim” (an African American female) was not required to bring in the same form when she was
AWOL.
Plaintiff generally attended physical therapy sessions during her work shift. Because of
reduced manpower and production demands, it became hard to relieve hourly employees so that
they could attend physical therapy during their respective shifts. Therefore, a policy was
implemented at Wixom providing that if no relief were available, workers would have to attend
physical therapy at the end of their respective shifts, and would receive overtime pay for doing
so. Employees’ physical therapy attendance was monitored closely so that employees did not
inadvertently get paid overtime for a rescheduled therapy session that they never attended.
Supervisors were instructed to discipline hourly employees who did not show up for physical
therapy sessions and/or call to cancel or reschedule the therapy sessions. As a result, plaintiff’s
supervisor, Brian Ridley, suspended plaintiff from one day of work after she missed two
scheduled therapy sessions without calling to cancel the sessions and/or reschedule.9 Plaintiff
unsuccessfully appealed her suspension through the internal grievance procedure.
8
Faye Green, a staff member at the Wixom medical center, stated that Golicz did what HR told
him to do, and would send employees back to work even if they were not better.
9
Chadd Howard, the manufacturing planning specialist at the Wixom plant, stated that
Caucasians were similarly disciplined for the same actions.
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According to Plaintiff, Ridley, who she admitted was known as a tough supervisor,
harassed her by pulling her off the line to have discussions with her, making her use a heavier air
gun that affected her speed, and threatening to write her up for poor work performance for not
keeping up and dropping screws. Plaintiff, however, admitted that others were also pulled off
the line and threatened to be written up for poor work performance, that she did drop screws, had
trouble keeping up because of the heavier gun, was only issued a heavier gun when her lighter
gun broke down and was being repaired, and that she was even provided with a helper when her
gun was being repaired. Plaintiff filed an internal complaint about Ridley with plant manager
Patricia Reid in March 2004, and admittedly has not had any problems with Ridley since doing
so.
On January 13, 2004, plaintiff and six other individuals sent a letter to labor relations
alleging that they had been discriminated against on the basis of their race and gender, as well as
sexually harassed. Ford conducted a separate investigation for each individual, which consisted
of interviewing each individual to find out about their specific allegations, and interviewing other
plant workers, supervisors, managers, etc.. Ford’s investigation led them to conclude that all of
the complaints were unsubstantiated.
Shortly after returning to work from a medical leave on April 25, 2005, plaintiff saw a
picture of a vagina on a bulletin board in the rail area with “this is where we all come from”
written by it in chalk. Plaintiff filed an internal complaint, which resulted in the graffiti being
removed. Plaintiff was AWOL on August 15, 2005. The day after, hourly worker Joe Camarelli
told plaintiff “How do you know you’re free? Do you have a price tag on your back?” and “Are
you for sale?” Plaintiff filed another complaint the next day, which labor relations investigated.
Although labor relations could not substantiate plaintiff’s claim, plaintiff admittedly had no
subsequent problems with Camarelli (and had none previous to this either).
On August 27, 2004, plaintiff and six co-plaintiffs filed a complaint.10 In relevant part,
plaintiff alleged that she was subjected to a race, gender and sexually hostile work environment,
was discriminated against based on her race and gender, and was retaliated against for partaking
in a protected activity. Ford subsequently filed a motion for summary disposition, a motion for
partial summary disposition and a motion in limine to exclude “me too” evidence, all of which
were denied. We granted Ford’s applications for leave to appeal the respective orders denying
its motions.
Analysis
Ford argues that the trial court should have granted its motion for summary disposition
because plaintiff did not present any admissible evidence establishing a genuine issue of material
fact regarding any of her claims. We review a trial court’s decision to grant or deny a motion for
summary disposition de novo, Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003),
viewing the pleadings, affidavits, depositions, admissions and other documentary evidence
10
The trial court subsequently granted Ford’s motion to sever the seven plaintiffs’ cases and try
them separately.
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submitted in a light most favorable to the nonmoving party, Corley v Detroit Bd of Ed, 470 Mich
274, 278; 681 NW2d 342 (2004). Summary disposition is proper under MCR 2.116(C)(10) if the
documentary evidence shows that there is no genuine issue regarding any material fact and the
moving party is entitled to judgment as a matter of law. Veenstra v Washtenaw Country Club,
466 Mich 155, 164; 645 NW2d 643 (2002).
Hostile Work Environment Claims
To establish a prima facie case of a hostile work environment,11 a plaintiff must establish
(1) that she belonged to a protected group;12 (2) that she was subjected to unwelcome
communication or conduct on the basis of her protected status; (3) the unwelcome conduct or
communication was intended to, or in fact did, substantially interfere with the employee’s
employment or created an intimidating, hostile or offensive work environment, and (4)
respondeat superior. Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993). To
establish a hostile work environment claim based on sex, the complained of conduct or
communication must be “inherently” sexual, Corley, supra at 279-280, as sexual harassment is
defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct or communication of a sexual nature.” MCL 37.2103(i). See, also, Robinson v Ford
Motor Co, 277 Mich App 146, 154; 744 NW2d 363 (2007) (recognizing a sexual harassment
claim must be based on either (1) unwelcome sexual advances, (2) requests for sexual favors, or
(3) other verbal or physical conduct of a sexual nature).
A determination whether an employer’s conduct created a sexually hostile work
environment involves an examination of whether, in the totality of the circumstances, the work
place is so tainted by sexual harassment that a reasonable person 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.
Radtke, supra at 382-383. Under the respondeat superior element, an employer may avoid
liability if it adequately investigated and took prompt and appropriate remedial action upon
notice of the alleged hostile work environment. Sheridan v Forest Public Schools, 247 Mich
App 611, 622; 637 NW2d 536 (2001).
Plaintiff contends that she established a prima facie case of sexual harassment by
presenting evidence that she saw a picture of a vagina in the rail area, and evidence that Graham
stalked her. We first note that Graham’s behavior was neither a sexual advance nor a request for
sexual favors, and did not include any physical conduct. Robinson, supra. Thus, if his conduct
is actionable, it must be, inter alia, “verbal conduct of a sexual nature.” Id. See, also, Corley,
supra at 279-280. Assuming that it was, Graham’s behavior was sporadic, never occurred in
plaintiff’s work area, involved few verbal exchanges, and as noted did not involve any
11
Michigan recognizes hostile work environment claims based on sexual or racial harassment.
Malan v General Dynamics, 212 Mich App 585, 587; 538 NW2d 76 (1995).
12
All employees are inherently members of a protected class in hostile work environment cases
because all persons may be discriminated against. Haynie v Department of State Police, 468
Mich 302, 308; 664 NW2d 129 (2003).
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threatening or sexual words. We therefore hold, as have countless other courts addressing
similar facts, that although Graham’s romantic interest in plaintiff was clearly unwelcome, it was
not objectively severe or pervasive conduct of a sexual nature, and thus, the complained of
conduct did not rise to the level of a sexually hostile work environment. See, e.g., Henthorn v
Capital Communications, Inc, 359 F3d 1021, 1027-1028 (CA 8, 2004) (holding that repetitive
requests for a date, in the absence of any sexual comments or touching, did not create a sexually
hostile environment); Algana v Smithville R-II School Dist, 324 F3d 975, 980 (CA 8, 2003)
(same); Clark v United Parcel Service Inc, 400 F3d 341, 351-352 (CA6, 2005). Moreover, Ford
investigated plaintiff’s graffiti complaint, and promptly had the offensive graffiti, which was not
directed at plaintiff, removed. Sheridan, supra.
We point out that we have considered these allegations collectively, rather than
individually. However, what the evidence presents is that plaintiff was subjected to unwanted
and annoying attention from Graham, and viewed one unrelated sexually graphic drawing, and
nothing more. That is said not to discount the unpleasantness of the situation, but to instead
point out that plaintiff’s workplace was not “permeated” with discriminatory intimidation,
ridicule or insults based on her sex. Harris v Forklift Systems Inc, 510 US 17, 21; 114 S Ct 367;
126 L Ed 2d 295 (1993).
Additionally, none of the co-worker’s affidavits13 contain any evidentiary support that
plaintiff was subjected to a sexually or racially hostile work environment. Andrina Spencer’s
affidavit does not suggest that Ridley’s action towards plaintiff was racially motivated, while
Dorius Reynolds’ and Brian Allen’s affidavits contain short conclusory statements that do not
provide evidence of discrimination. Quinto v Cross and Peters Co, 451 Mich 358, 370-371; 547
NW2d 314 (1996). Similarly, Joe Badalamenti’s testimony cited to the trial court does not at all
detail what foremen said what, to whom anything was said, or when any utterances occurred. Id.
Beth Murphy’s brief testimony established only that the “list” contained both Caucasians and
African Americans. These affidavits therefore do not provide evidence that plaintiff was subject
to a racially or sexually hostile work environment.
Ford also promptly investigated each complaint that was made regarding Graham, and
progressively disciplined Graham until his employment was terminated. And, although Ford
eventually reinstated Graham by resolving his grievance through the cba, Graham never made
any further contact with plaintiff after he was reinstated, and he was eventually moved to a
different plant. We therefore further conclude that even if it were found that the complained of
graffiti and conduct constituted sexual harassment, the claim would still fail on the ground of
respondeat superior. Sheridan, supra at 622; See also Knabe v. Boury Corp, 114 F3d 407, 412
(CA 3, 1997).
13
The affidavits of Spencer, Reynolds and Murphy were attached to plaintiff’s appeal brief. The
affidavits of Allen and Badalamenti were not, nor were they contained in the lower court record.
For those two, we relied on the testimony quoted in plaintiff’s response to Ford’s motion for
summary disposition.
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Plaintiff next contends that she established a prima facie case of racial harassment by
presenting evidence that Camerelli stated “are you for sale?” and “how do you know you’re free.
Is there a price tag on your back,” as well as evidence that Ridley yelled at and disciplined her,
and that Golicz denied her medical leave. In regard to Ridley’s and Golicz’s complained of
actions, plaintiff has presented no evidence, direct or circumstantial, that any of the actions were
linked to her status as an African American female. The evidence established that Golicz would
send employees back to work who were African American, Caucasian, and men and women.
Likewise, evidence was presented that Ridley was tough on all of his employees. Therefore, in
regard to plaintiff’s claim that Ridley and Golicz racially harassed her, we conclude that she has
failed to establish a genuine issue of material fact that she was subjected to unwelcome
communication or conduct on the basis of her protected status.
In regard to Camerelli’s alleged statements, even assuming the comments could be
interpreted as unwelcome communication on the basis of plaintiff’s status as an African
American, we conclude that these isolated comments14 by a co-worker would not have
substantially interfered with a reasonable person’s employment or created an intimidating,
hostile or offensive work environment. Radtke, supra at 382-383.15 Significantly, plaintiff
reported the comments and admittedly never had another problem with Camarelli. Sheridan,
supra.
Discrimination Claim
Under the Civil Rights Act (CRA), an employer may not discriminate against an
individual with respect to employment, compensation, or a term, condition or privilege of
employment because of that individual’s race or sex. MCL 37.2202(1)(a); Veenstra, supra at
160. To establish a prima facie case of discrimination, a plaintiff must establish (1) that she is a
member of a protected class, (2) was subjected to an adverse employment action, and (3) others,
similarly situated and outside the protected class, were unaffected by the employer’s adverse
conduct. Town v Michigan Bell, 455 Mich 688, 695; 568 NW2d 64 (1997). If a plaintiff
establishes a prima facie case, the employer must articulate a nondiscriminatory reason for the
adverse employment action. Id. If the defendant asserts legitimate, nondiscriminatory reasons
for its actions, the presumption of discrimination created by the prima facie showing is
eliminated, and the plaintiff must then produce evidence that the reasons asserted were a mere
pretext for discrimination, and that discrimination was the defendant’s true motive in making the
adverse employment decision. Id. at 696-697.
Ford argues that plaintiff did not present evidence showing that she suffered an adverse
employment action and dissimilar treatment based on her race or gender. For purposes of a
retaliation claim under the CRA, an adverse employment action has been defined as an
14
Plaintiff admitted that she was never subjected to any other racial or gender slurs.
15
We further note that the “scared rabbit” email is irrelevant to plaintiff’s hostile environment
claims because although insensitive to plaintiff’s situation, it does not make a sexual reference,
nor does it otherwise reveal any link to plaintiff’s status as an African American female.
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employment decision that is materially adverse in that it is more than a mere inconvenience or an
alteration of job responsibilities. Peña v Ingham Co Road Comm, 255 Mich App 299, 311-312;
660 NW2d 351 (2003). Typically, there must be some ultimate employment decision, such as a
termination in employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices which might be unique to a particular situation. Id. at 312.
Here, adverse employment actions can result from an alleged denial of her request to
transfer to another plant, see Randlett v Shalala, 118 F3d 857, 862 (CA 1, 1997), and her oneday suspension without pay, Page v Connecticut Dep’t of Public Safety, 185 F Supp 2d 149, 557
(D Conn, 2002). However, plaintiff’s allegation of being closely monitored by the plant’s
medical staff16 and being placed on the trim line do not constitute adverse employment actions.
Despite these two acts, plaintiff remained employed with full benefits and no diminished job
responsibilities, has the same job classification/title, and admitted that the trim line was not less
desirable than chassis. Peña, supra at 311-312.
Furthermore, and setting aside for the moment the alleged denial of a transfer and one
day unpaid suspension, even if it were found that plaintiff suffered an adverse employment
action, she has still failed to establish that other employees, outside of her protected class, were
treated more favorably under similar circumstances. Town, supra. Plaintiff provided no
evidence regarding the racial composition of the AWOL list, and all individuals on the top 50
AWOL list were closely monitored by medical staff, and required to see Golicz before taking
medical leave. Additionally, the post-it note list found on a computer in the medical center
contained the names of both African Americans and Caucasians, and the only individual plaintiff
complained of that was not required to bring in a medical certification form after being AWOL
was also an African American female. And, all employees who missed a physical therapy
session and failed to cancel or reschedule the appointment were disciplined.
Plaintiff also failed to submit evidence that race or gender was a factor in determining
where Thunderbird line employees were placed when the line was shut down. Plaintiff admitted
that she could not give an example of a situation were another employee was ever treated more
favorably than her under similar circumstances, including an example of where another
employee was treated more favorably under similar circumstances regarding a transfer
opportunity. In fact, the only example plaintiff presented regarding an individual who was
transferred involved dissimilar circumstances. Specifically, Dennis Morton (a Caucasian male)
voluntarily transferred (while giving up his seniority) to a plant in Atlanta, Georgia, which had
openings for 55 hourly employees, only 47 of which were filled. The identified transfer took
place months before plaintiff ever requested a transfer, of any sort, and plaintiff’s transfer request
was limited to plants near her home and was made at time when there were no openings. Finally,
as to the one-day suspension without pay, plaintiff admitted that she missed the therapy session
and did not cancel it.
16
Plaintiff was required to see Dr. Golicz before taking medical leave, was placed on a list and
was required to bring in a medical certification form to justify being AWOL.
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Moreover, Ford presented non-discriminatory reasons to justify its actions, and plaintiff
has failed to present any evidence creating a genuine issue of material fact regarding whether
Ford’s stated reasons were pretext. Ford produced evidence that it required all employees to see
Golicz before taking medical leave, closely monitored employees’ attendance if they had a
history of consistently being AWOL, and disciplined all employees for missing scheduled
therapy sessions because employees were paid overtime for attending the sessions and Ford did
not want to pay overtime to employees who were not attending scheduled sessions. It further
established that it had to close down its Thunderbird line because of production needs, and
integrated as many Thunderbird workers as possible, including plaintiff, to main line trim or
chassis based on the plants needs. Finally, Ford submitted evidence that it inquired into transfer
opportunities for plaintiff, but none were available due to Ford’s economic situation and current
downsizing of most local plants. We therefore conclude that plaintiff failed to establish a
discrimination claim. Town, supra at 695-697.
Retaliation Claim
The CRA prohibits an employer from retaliating against an employee for making a
charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding or
hearing under the act. Feick v Monroe County, 229 Mich App 335, 344; 582 NW2d 207 (1998).
The Worker’s Disability Compensation Act (WDCA) also prohibits an employer from retaliating
against an employee who files a complaint or exercises a right afforded by the Act. MCL
418.301(11). To establish a prima facie case of retaliation under either the CRA or WDCA, a
plaintiff must establish “(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, 436; 566 NW2d 661 (1997). To
establish causation in a retaliation claim, a plaintiff must show that her participation in protected
activity was a significant factor in the employer’s adverse employment action. Rymal v Baergen,
262 Mich App 274, 303; 686 NW2d 241 (2004). A causal connection can be established through
circumstantial evidence, such as close temporal proximity between the protected activity and
adverse actions, if such evidence would enable a reasonable factfinder to infer that an action had
a discriminatory or retaliatory basis. Id.
After review of the evidence cited by plaintiff, we hold that she failed to create a genuine
issue of material fact that there was any causal connection between her engagement in a
protected activity and the subsequent adverse actions she complains of, Rymal, supra at 303.
Instead, plaintiff has merely established that she engaged in a protected activity by filing a
discrimination and harassment complaint with human resources on January 13, 2004, and that
she was subsequently integrated to the main line trim department. However, plaintiff admitted
the position was no less desirable than her previous position in the chassis department, and the
integration affected 350 other workers. Furthermore, although her new supervisor, Ridley,
subsequently disciplined plaintiff, it was for an admitted violation of plant policy when she (on
more than one occasion) skipped a scheduled physical therapy session without canceling or
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rescheduling the session. We therefore conclude that plaintiff failed to establish a genuine issue
of material fact on her retaliation claims. DeFlaviis, supra at 436.17
We reverse the trial court’s order denying Ford’s motion for summary disposition, and
remand for entry of a judgment in favor of defendant. All other issues raised on appeal are
therefore moot.
/s/ Christopher M. Murray
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder
17
Although plaintiff did not counter Ford’s argument that all of plaintiff’s claims under the
Michigan Persons With Disabilities Act (MPWDA) should have been dismissed, we will still
briefly address Ford’s argument. The MPWDA only protects employees who are disabled,
which is defined in pertinent part as individuals having a determinable physical or mental
characteristic that substantially limits a major life activity and is unrelated to her ability to
perform the duties of a particular job or position. Peden v Detroit, 470 Mich 195, 202; 680
NW2d 857 (2004). A major life activity has been defined as a basic activity which the average
person in the general population can perform with little or no difficulty, such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,
working, sitting, standing, lifting and reaching. Lown v JJ Eaton Place, 235 Mich App 721, 728;
598 NW2d 633 (1999). Here, plaintiff has not presented any evidence that she was disabled, and
thus, she is not protected under the MPWDA.
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