LEONARD THOMAS V AIN PLASTICS OF MICH
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STATE OF MICHIGAN
COURT OF APPEALS
LEONARD THOMAS,
UNPUBLISHED
Plaintiff-Appellant,
v
No. 181318
LC No. 94-471157-NI
AIN PLASTICS OF MICHIGAN, INC., MEL
ETTENSON, BRIAN MCCULLOUGH, DAVID
DITMAN and ROBERT BOGNER,
Defendants-Appellees.
Before: McDonald, P.J., and White and P.J. Conlin,* JJ.
WHITE, J. (concurring)
I concur in the affirmance of the dismissal of plaintiff’s discrimination claim because I agree with
the majority that defendants articulated a legitimate nondiscriminatory reason for plaintiff’s discharge—
plaintiff’s tardiness and absenteeism--and that plaintiff failed to establish that defendants’ reason was a
mere pretext for his discharge.
As to plaintiff’s retaliation claim, I concur in the affirmance of the dismissal because, while I do
not agree with the majority’s interpretation of McLemore v Detroit Receiving Hospital, 196 Mich
App 391; 493 NW2d 441 (1992),1 I conclude that plaintiff failed to present sufficient evidence to raise
a genuine issue of fact in support of his claim. The record, including plaintiff’s own deposition, the
notice of probation, and Bogner’s unrebutted affidavit, provides insufficient support for plaintiff’s
assertion that defendants’ warnings and reprimands occurred only after plaintiff threatened to consult an
attorney, and thus failed to create a genuine issue whether plaintiff’s discharge was linked to his raising
the possibility of seeking legal counsel.
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
/s/ Helene N. White
1
McLemore states in its analysis of the plaintiff’s retaliation claim under the CRA:
In Booker v Brown & Williamson Tobacco Co, Inc, 879 F2d 1304, 1312-1314 (CA
6, 1989), the federal court of appeals decided that the Civil Rights Act did not protect
from retaliation an employee who had merely expressed concern to his employer about
possible discrimination. We strongly disapprove with this interpretation of the
act. Regardless of the vagueness of the charge or the lack of formal invocation
of the protection of the act, if an employer’s decision to terminate or otherwise
adversely effect [sic] an employee is a result of that employee raising the
spectre of a discrimination complaint, retaliation prohibited by the act occurs.
[196 Mich App at 396. Emphasis added.]
-2
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