CLAYTON JENKINS V TRINITY HEALTH CORP
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STATE OF MICHIGAN
COURT OF APPEALS
CLAYTON JENKINS,
UNPUBLISHED
July 28, 2009
Plaintiff-Appellee/Cross-Appellant,
v
TRINITY HEALTH CORPORATION, d/b/a ST.
JOSEPH MERCY HOSPITAL,
No. 284659
Washtenaw Circuit Court
LC No. 05-000894-CD
Defendant-Appellant/CrossAppellee.
Before: Fitzgerald, P.J., and Talbot and Shapiro, JJ.
TALBOT, J. (concurring in part, dissenting in part).
I concur with the majority regarding the trial court’s proper dismissal of plaintiff’s quid
pro quo sexual harassment claim and the determination that the preclusion of certain evidence
did not comprise error. However, I am compelled to disagree with the majority’s affirmance of
plaintiff’s claim of retaliatory discharge because I believe it cannot be sustained and should have
been resolved in favor of defendant on summary disposition. I am especially concerned by the
majority’s selective recitation of facts and failure to give an even-handed and objective
representation of undisputed facts, which are both necessary and determinative for the proper
resolution of this matter. In particular, the majority treats defendant’s explanations for its action
in terminating plaintiff’s employment as merely tertiary or irrelevant, rather than, as I believe,
comprising a sufficient and non-retaliatory basis for plaintiff’s firing. As such, I believe it
necessary to proceed in this dissent by providing a more comprehensive and inclusive recitation
of the factual history in this case.
I. Factual and Procedural History
Plaintiff worked the midnight shift in the Central Supply Processing Distribution
Department (CSPD) as a stat messenger. Although dispatchers assigned work to the stat
messengers and directed their activities during the shift, they did not have supervisory authority.
Plaintiff’s direct supervisor was the director for CSPD, James (Jim) Hines.
The incidents which led to plaintiff’s complaint arose from interactions involving
dispatcher Donald (Donny) Johnson. In late April/early May 2003, plaintiff indicated that
Johnson brought in body oils to work and invited plaintiff to go with him to a karaoke bar.
Plaintiff did not claim that Johnson made any suggestive comments or engaged in any explicit
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sexual remarks during these interactions. While these incidents made plaintiff uncomfortable, he
did not immediately report the events or seek the intervention of his supervisor.1 In addition to
these incidents, plaintiff reported three specific interactions to demonstrate sexual harassment.
These incidents involved: (1) Johnson touching plaintiff on the arm and shoulder and verbally
complimenting his appearance; (2) Johnson touching plaintiff and running his hand down
plaintiff’s back, while indicating he would accompany plaintiff on his stat messenger runs; and
(3) while plaintiff was sitting in a chair reading in the CSPD area, Johnson placing his hand on
the front of plaintiff’s left thigh. Plaintiff asserts that the incidents made him uncomfortable and
he verbally instructed Johnson not to touch him.
Following the third incident of touching, plaintiff complained to Hines, who immediately
scheduled a meeting with a representative of defendant’s human resources department, Arlene
Malvitz. Plaintiff identified an alleged “witness” who would confirm that Johnson was gay.
Plaintiff also complained that Johnson fell asleep at work, failed to answer the phones, held
assignments until the end of plaintiff’s shift and alleged inequity regarding the number of runs he
was being assigned, asserting the work was not being evenly distributed amongst messengers.
Malvitz determined that plaintiff’s claims could not be sufficiently substantiated following her
completion of an investigation. Although plaintiff contended that he did not receive written
confirmation of this outcome, he acknowledged that Hines verbally informed him of the general
determination but would not discuss any detailed findings based on confidentiality. While
plaintiff continued to express complaints regarding Johnson’s work performance, none of
plaintiff’s subsequent complaints referenced improper physical contact by Johnson or any
sexually suggestive comments. Plaintiff contends that following notification of his complaint
Johnson told him he would make his work-life miserable and that defendant would fire plaintiff
before it would terminate Johnson.
I believe it is important to correct certain purported factual representations made in the
majority opinion. Although plaintiff contended that Hines responded to one of his complaints by
indicating “I don’t care if you two hug and kiss, I just want the work done,” Hines denied
making this statement but did agree that he probably indicated he did not care whether plaintiff
and Johnson liked each other as long as the work was completed and the department ran
smoothly on their shift. In addition, the majority opinion asserts Hines refused to transfer
plaintiff to an alternative shift or department. In actuality, Hines investigated the options
available to plaintiff on another shift in his department. However, no open positions for a stat
messenger existed on the alternative shifts and other employees did not wish to voluntarily
switch shifts with plaintiff. Hence, an intra-departmental transfer was not available. In addition,
the availability to plaintiff of an inter-department transfer is not automatic because plaintiff must
follow a job posting and application procedure, and it was not within the Hines’ authority to
merely effectuate such a transfer. As a matter of policy, transfers could not be implemented
when a Performance Improvement Plan (PIP) remained in effect. In addition, plaintiff did
1
Contrary to the majority’s version, plaintiff indicated he might have informed his supervisor,
Hines, of Johnson’s actions before the third incident, but was not definitive regarding having
verbalized a complaint.
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contend that Hines should not be involved because of a business or personal relationship with
Johnson. However, this claim was never substantiated as Hines denied any close or personal
relationship with Johnson and merely agreed on one occasion to allow Johnson to speak with
him, outside of the work place at Hines’ home, regarding his interest in being an Amway
distributor, which Hines declined.
Although plaintiff asserts his work record was unblemished until he complained of the
events involving Johnson, defendant proffered evidence that other employees complained of
plaintiff’s job performance and demeanor both before and after the filing of his sexual
harassment complaint. For example, other CSPD employees complained that plaintiff was
asking other messengers to make his runs or refused assignments, was displaying an openly
hostile attitude to Johnson, was disrespectful when he received calls from dispatchers and would
stare in an intimidating manner.2 Specifically, in September 2003, a confrontation ensued
between plaintiff and Johnson, resulting in the completion of a report by hospital security staff.
The disagreement involved the transportation of oxygen tanks and centered on Johnson’s refusal
to give plaintiff new oxygen tanks until he had brought the expended tanks back to CSPD from
the units and plaintiff’s attempt to transport the tanks in an improper manner, using a regular
messenger cart. According to security personnel, plaintiff brought a staff person from another
department in to witness the confrontation and that plaintiff repeatedly sought to have security
staff “catch” Johnson asleep on the job. Security documented a statement by a witness provided
by plaintiff indicating that Johnson made a comment, which implied that Johnson was arbitrarily
changing the procedure in requiring the retrieval of the expended oxygen tanks before
distributing new tanks. Notably, plaintiff did not deny that the procedure for transportation of
the tanks had been posted and discussed in a CSPD staff meeting.
After receiving a number of complaints and counseling plaintiff on several occasions,
Hines instructed plaintiff to report to him if he felt he was being treated unfairly and that Hines,
as his supervisor, would follow-up. Hines also consulted with Rocky Buehler, the assigned
Human Resources representative for CSPD. At the time he was contacted by Hines, Buehler had
no knowledge of plaintiff’s previous sexual harassment complaint against Johnson. Buehler
recommended that plaintiff be placed on a Performance Improvement Plan (PIP) to formally
address job performance concerns. Hines completed the form, which was reviewed by Buehler
and his supervisor before being implemented. The PIP was to be in effect for a 90-day period
and contained a list of “Performance Behaviors Expected,” which primarily required plaintiff to
(a) maintain personal confidentiality within his assigned work area, (b) not behave in an
offensive or hostile manner toward co-workers, (c) remain in his assigned work area unless
fulfilling a job responsibility, (d) display courteous and respectful behavior within his
department and to other employees and (e) refrain from the use of derogatory comments or racial
slurs. According to defendant, the behaviors listed in the PIP comprise expectations consistent
for all employees in plaintiff’s position and the initiation of a PIP is not considered a disciplinary
2
By way of example, it was reported that plaintiff referred to Johnson as an “Uncle Tom” and,
on at least one occasion, referenced Johnson by using the “N” word. Plaintiff denied having
made such statements.
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procedure but, rather, is a “support process” intended to assist employees in meeting job
performance expectations.
Following review of the PIP with Hines and Buehler, plaintiff refused to sign the
document without first discussing it with an attorney. Plaintiff’s attorney forwarded
correspondence to defendant’s Director of Human Resources indicating his client was the subject
of retaliation for having filed a sexual harassment complaint and disputed the necessity of the
PIP. Shortly after receiving the PIP, plaintiff initiated treatment for depression and was off work
from early November 2003 until January 2, 2004, overlapping almost completely with the
effective dates of the PIP. When plaintiff returned from his medical leave, Buehler and Hines
verbally informed him that the PIP remained in effect and that the dates had been extended due
to his being off work.
In March 2004, Hines received a complaint from Joseph Sophie, the manager of
Environmental Services regarding plaintiff questioning his staff about the demotion of an
employee in Sophie’s department. Approximately one week later, Hines received a report from
the Security Department in which another employee, Sheila Turner, accused plaintiff of sexual
assault in addition to verbally demeaning her to other employees. Following receipt of these
allegations, Hines immediately turned the matter over to Buehler in Human Resources for
investigation. Buehler discussed the complaint with Turner, but did not interview plaintiff.
According to Buehler, a witness confirmed that plaintiff acknowledged the behavior he was
accused of by Turner and other witnesses concurred that plaintiff was referring to Turner as a
“bitch” and indicating he would retaliate against her. Following these interviews, Buehler spoke
with his supervisor who concurred that plaintiff’s employment should be terminated and that
recommendation was conveyed to Hines. Concurrently, Hines informed Buehler that plaintiff
was not meeting the expectations delineated in his PIP. Buehler and Hines called plaintiff into
work and asked him to comment on the allegations. Plaintiff denied the incident or any verbally
inappropriate references pertaining to Turner and averred that he and Turner had a previous
sexual relationship that had ended poorly and that she was a “scorned woman.” At the
conclusion of this meeting, plaintiff was informed that he was discharged. The Corrective
Action Report indicated the reasons for termination as the violation of hospital policy prohibiting
sexual harassment and “[c]onduct, behavior or language creating unsafe, offensive, hostile or
threatening environment for employees,” and failure to successfully complete the PIP.
At plaintiff’s request, a Fair Treatment Review hearing was scheduled to appeal his
discharge. Plaintiff was provided the opportunity to submit written testimonials comprised of
letters and commendations he received in previous employment settings and while with
defendant along with photographs and letters to substantiate his previous relationship with
Turner.
Plaintiff denied any intimidation or improperly interceding in situations in
Environmental Services. Following conclusion of the review hearing, plaintiff’s termination was
sustained.
II. Retaliatory Discharge
Plaintiff claimed he was discharged in retaliation for filing a same-sex sexual harassment
complaint against another co-worker, Johnson. Defendant asserts the trial court erred in failing
to dismiss this claim because there is no direct evidence or indication that plaintiff’s filing of the
complaint was a “significant factor” in the decision to terminate his employment.
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In order to establish a prima facie case of retaliation, a plaintiff is required to
demonstrate:
(1) that he 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. [Garg v Macomb Co Community Mental
Health Services, 472 Mich 263, 273; 697 NW2d 646 (2005), amended 473 Mich
1205 (2005) (citation omitted).]
To meet the requirement of establishing a “causal connection,” a plaintiff must show that his
participation or involvement in a protected activity comprised a “significant factor” in his
employer’s adverse employment action. Merely demonstrating a causal link is insufficient.
Barrett v Kirtland Community College, 245 Mich App 306, 315; 628 NW2d 63 (2001).
Consistent with claims of discrimination, if a plaintiff can establish a prima facie case for
retaliation, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. Once the employer articulates a legitimate and
nondiscriminatory reason, a plaintiff must present evidence that the asserted reason by the
employer is merely pretextual. Roulston v Tendercare, Inc, 239 Mich App 270, 280-281; 608
NW2d 525 (2000).
While plaintiff established the first three elements of his retaliation claim, causation was
not established. The primary question to be resolved is whether plaintiff created a question of
material fact regarding the existence of a sufficient causal connection between the protected
activity and the adverse employment decision. Plaintiff vociferously contends that Johnson’s
myriad of complaints regarding his job performance, after filing of the harassment complaint,
unduly influenced the actions of Hines and Human Resources staff in both placing him on a PIP
and ultimately, deciding to terminate his employment. At best, plaintiff’s contention is tenuous
and speculative. Johnson was certainly not the only co-worker complaining about plaintiff’s
attitude and work behavior, which plaintiff admitted had deteriorated but blamed on others and
his situation.3 While Johnson’s complaints may have influenced the decision to place plaintiff
on a PIP, the record is void of any connection to demonstrate that such influence comprised a
significant factor in his termination other than plaintiff’s own subjective belief and assertion,
which is insufficient to meet his burden of proof in opposing the motion for summary
disposition. Marsh v Dep’t of Civil Service (After Remand), 173 Mich App 72, 81; 433 NW2d
820 (1988).
Plaintiff does not dispute that Hines placed him on the PIP based on Buehler’s
recommendation and has not contradicted Buehler’s testimony that he was unaware of plaintiff’s
filing of a sexual harassment complaint approximately four months prior. Although plaintiff
contends that the content of the PIP mirrors Johnson’s complaints, he ignores that other
3
Specifically, at trial, when questioned by his own attorney regarding complaints by other staff
members about his job performance, plaintiff stated: “And when I look back overall, I need to
take ownership [sic] part of my behaviors as not getting’ along with people.”
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dispatchers and employees also voiced concerns similar to Johnson and has not contradicted
defendant’s position that the behaviors described in the PIP were not unique to plaintiff, but
rather comprised important job expectations for any stat messenger. Even if Johnson’s provision
of assignments to plaintiff or treatment during his shift was different or retaliatory, there is no
evidence that such behavior was a significant factor in the decision to terminate plaintiff’s
employment, as Johnson had no authority over plaintiff’s hiring or firing. While plaintiff may
have experienced or perceived a hostile work environment, there is no causal connection
between that alleged experience and his termination and plaintiff has not included in his
complaint a claim of hostile work environment. Therefore, plaintiff has failed to establish a
prima facie case of retaliatory discharge because there was no evidence of a “significant” causal
connection between his dismissal and his engagement in a protected activity ten months
previously.
In addition, plaintiff was terminated immediately following the filing and investigation of
Turner’s sexual harassment complaint. Even if a link could be established between plaintiff’s
filing of a sexual harassment complaint and his subsequent discharge; it is insignificant in light
of defendant’s articulated reasons for the firing. Although plaintiff may assert that the method
and outcome of the investigation for this complaint was unfair or different from the treatment of
his prior sexual harassment complaint, that comprises a claim of disparate treatment, which
plaintiff did not raise. It is undisputed that Buehler and his supervisor recommended plaintiff’s
termination following Turner’s complaint and that concurrently Hines reached a similar
conclusion based on plaintiff’s failure to improve his job performance. Having substantiated
Turner’s complaint against plaintiff, defendant was imminently justified in acting to terminate
his employment as a violation of known policies and expectations of behavior. As such,
defendant came forward with legitimate nonretaliatory reasons for the termination, which
plaintiff has failed to demonstrate constituted a mere pretext.
Citing to various federal cases, plaintiff contends that Hines served as a conduit or “cat’s
paw” for Johnson’s retaliatory animosity. “In the employment discrimination context, ‘cat’s
paw’ refers to a situation in which a biased subordinate, who lacks decision-making power, uses
the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory
employment action.” EEOC v BCI Coca-Cola Bottling Co, 450 F3d 476, 484 (CA 10, 2006).4
In addressing this argument, it is important to note that while federal decisions in civil rights
cases are often used for guidance they are not binding on Michigan courts. Meagher v Wayne
State Univ, 222 Mich App 700, 710; 565 NW2d 410 (1997).5
4
See also Arendale v City of Memphis, 519 F3d 587, 604 n 13 (CA 6, 2008), which held: “When
an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that
supervisor was influenced by another individual who was motivated by such bias, this Court has
held that the employer may be held liable under a ‘rubber-stamp’ or ‘cat’s paw’ theory of
liability.”
5
Our Supreme Court has, at least nominally, recognized the “cat’s paw” theory in retaliatory
discharge cases. See Ramanathan v Wayne State Univ Bd of Governors, 480 Mich 1090, 1096;
745 NW2d 115 (2008).
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Pursuant to the “cat’s paw” theory, the subordinate rather than the nominal
decisionmaker, serves as the impetus for the adverse employment action. Accordingly, when the
decisionmaker acts in conformance with the retaliator’s animus or bias, “without [him]self
evaluating the employee’s situation,” the retaliator “clearly causes the tangible employment
action, regardless of which individual actually” implements the discharge. Llampallas v MiniCircuits Lab, Inc, 163 F3d 1236, 1249 (CA 11, 1998) (citations omitted). “In effect, the
[retaliator] is the decision maker, and the titular ‘decisionmaker’ is a mere conduit for the
[retaliator’s] discriminatory animus.” Id.
Plaintiff’s reliance on this theory is misplaced. It is important to recognize that when a
decisionmaker makes a determination based on an independent investigation, any causal link
between the subordinate’s retaliatory animus and the adverse action is deemed to be severed.
Wilson v Stroh Cos, 952 F2d 942, 946 (CA 6, 1992); BCI Coca-Cola, supra at 485. The fact that
Buehler and Human Resources made an independent investigation of Turner’s charges,
demonstrates that Hines, in following their recommendation to terminate plaintiff’s employment,
was acting in his true role as an agent of the employer and not merely a conduit or dupe of the
subordinate. Even if plaintiff were to decry that the investigation merely comprised a sham or a
façade, the record is not supportive. Buehler investigated Turner’s complaint by speaking with
her and alleged witnesses. Hines was not involved in this investigation as Turner’s complaint
was immediately turned over to Human Resources. Contrary to plaintiff’s contention, his
version of the event was obtained before he was actually terminated. Even if Turner had an
ulterior motive in making the allegations, it is insufficient to find that her personal agenda caused
the adverse action and is irrelevant with regard to plaintiff’s claims regarding the existence of
retaliatory motives. When an employer’s decisionmaker obtains or attempts to procure all sides
of the story or complaint, the employer is not held liable solely because one of the participants
may retain a hidden bias against plaintiff. Llampallas, supra at 1250. “[S]imply asking an
employee for his version of events may defeat the inference that an employment decision was . . .
discriminatory.” BCI Coca-Cola, supra at 488. Notably, plaintiff cannot establish any causal
connection between Turner’s allegations and his prior filing of a sexual harassment complaint.
Because plaintiff failed to establish a sufficient causal connection between the filing of
his sexual harassment complaint and his termination, I believe the judgment should be reversed
and the damages award vacated.
/s/ Michael J. Talbot
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