JONATHON MOORE V CITY OF FLINT
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STATE OF MICHIGAN
COURT OF APPEALS
JONATHON MOORE,
UNPUBLISHED
May 4, 2004
Plaintiff-Appellee,
v
No. 245027
Genesee Circuit Court
LC No. 2001-069767-CZ
CITY OF FLINT,
Defendant-Appellant.
Before: O’Connell, P.J., and Jansen and Murray, JJ.
JANSEN, J. (concurring in part and dissenting in part).
I respectfully dissent with regard to the majority's conclusion that the trial court erred in
denying defendant’s motion for summary disposition on plaintiff’s retaliation claim. In all other
aspects, I concur with the majority's opinion.
As provided by the majority, to establish a prima facie case of retaliation under the
Persons With Disabilities Civil Rights Act (PWDCRA), a plaintiff must prove the following:
"(1) that he engaged in a protected activity; (2) that this was known by the
defendant; (3) that the defendant took an . . . action adverse to the plaintiff; and
(4) that there was a causal connection between the protected activity and the
adverse . . . action." [Bachman v Swan Harbour Associates, 252 Mich App 400,
435; 653 NW2d 415 (2002) quoting DeFlaviis v Lord & Taylor, Inc, 223 Mich
App 432, 436; 566 NW2d 661 (1997).]
In denying defendant’s motion for summary disposition on the retaliation claim, the trial
court stated:
[T]he Defendant raises the position - - or raises the point that timing cannot be
used exclusively to show the causal connection. But, in this case, I think an
argument can be made that it is more than just the timing. I think it is admitted a
little bit that there was some tolerance in an effort to work out these issues prior to
the filing of the complaint, and, then, subsequent to the filing of the complaint,
there were discipline issues not only related to the timing but they were also,
arguably, related to the level of tolerance that would be permitted. So it’s more
than just that the discipline began after the filing of the EEOC complaint, there is
also an issue raised on these facts that there was less tolerance than before, which,
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in my view, creates an issue of fact as to whether or not there was a causal
connection.
Thus, the trial court held that the evidence showed more than simply a causal connection based
upon the timing of the two events. And, the trial court recognized that there was evidence that
before plaintiff filed his complaint with the Equal Employment Opportunities Commission
(EEOC), defendant was more tolerant of his absences and tardiness because defendant tried to
work out a solution. The trial court also observed that there was evidence supporting that after
plaintiff filed his complaint with the EEOC, the discipline increased and defendant was less
tolerant, which the court concluded was sufficient to create a genuine issue of material fact.
A trial court's decision on a motion for summary disposition is reviewed de novo.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion for summary
disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim. Spiek v
Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When deciding a motion
for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions
and other documentary evidence submitted in the light most favorable to the nonmoving party.
Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). All reasonable
inferences are to be drawn in favor of the nonmovant. Shepherd Montessori Ctr Milan v Ann
Arbor Charter Twp, 259 Mich App 315, 324; 675 NW2d 271 (2004). This Court is liberal in
finding a genuine issue of material fact. Lash v Allstate Ins Co, 210 Mich App 98, 101; 532
NW2d 869 (1995). A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds could
differ. Allstate Ins Co v State, 259 Mich App 705, 709-710; 675 NW2d 857 (2003).
The only disputed issue with regard to plaintiff’s retaliation claim is whether a causal
connection existed between the protected activity and the alleged adverse employment action.
Recognizing that this Court is liberal in finding a genuine issue of material fact, upon a review de
novo, I agree with the trial court that the evidence in this case was sufficient to create a question
of fact on the causal connection element. See Lash, supra at 101.
Plaintiff filed a complaint for discrimination with the EEOC on March 8, 2000. Plaintiff
claimed that he became a target for disciplinary action shortly after he filed his EEOC complaint.
Moreover, plaintiff claimed that after defendant learned of the EEOC complaint, it stopped
paying him for hours he worked after 5:00 p.m. Plaintiff submitted a copy of a memorandum
sent to Matthew Grady, defendant's finance director, on April 4, 2000, through defendant's legal
department, regarding plaintiff ’s complaint with the EEOC. Therefore, it appears that plaintiff ’s
superiors did not receive notice of that complaint until April 2000, which the evidence suggests
was around the same time that the disciplinary action against plaintiff began to significantly
increase.
The disciplinary records produced by defendant reveal that plaintiff was disciplined for
his absenteeism and tardiness on numerous occasions, dating back to 1992, well before he filed
his complaint with the EEOC. In 2000, however, the number of disciplinary actions taken
against plaintiff increased substantially, beginning in either April 2000 or May 2000. Most of
these disciplinary actions were for failing to inform the supervisor of absences or failing to
adhere to the flex-time schedule. When plaintiff was charged with failing to adhere to the flex-
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time schedule, he was not paid for those hours he worked beyond his flex-time schedule. This
form of discipline was not imposed before 2000.
There was evidence that before 2000, plaintiff was able to work on a flexible schedule to
accommodate for days that he was late for work. As noted above, defendant subsequently
stopped paying plaintiff for when he worked later hours. This was evidence, as noted by the trial
court, that defendant had become less tolerant of plaintiff ’s condition and was no longer willing
to allow him to work a later schedule, after defendant became aware of the complaint filed with
the EEOC. The evidence submitted by plaintiff showed that he was subject to substantially more
instances of discipline, and more severe discipline, after he filed his complaint with the EEOC.
This was evidence sufficient to create a genuine issue of material fact regarding whether
defendant was attempting to increase its discipline against plaintiff in retaliation for filing the
complaint with the EEOC. In addition, as the trial court noted, defendant was apparently less
tolerant of plaintiff ’s need for accommodation by refusing to pay him when he worked late.
This was further indication that plaintiff was being retaliated against for reporting alleged
discrimination to the EEOC.
I would conclude, upon a review de novo, that plaintiff established a prima facie case of
retaliation. I would further conclude the plaintiff has shown that his participation in the
protected activity was a "significant factor" in the employer's adverse employment action. See
Barrett v Kirtland Community College, 245 Mich App 306, 315; 628 NW2d 63 (2001). I
disagree with the majority because, when viewing the evidence submitted in a light most
favorable to plaintiff, shortly after plaintiff filed his EEOC claim plaintiff was subject to
substantially more disciplinary actions than in the past and defendant stopped paying him for
hours he worked after his scheduled work hours. Plaintiff produced evidence to support a causal
connection because he produced sufficient evidence of both the timing of the disciplinary action
and the increase in discipline to establish a genuine issue of material fact as to whether defendant
retaliated against him for filing the EEOC complaint. While "[p]laintiff must show something
more than merely a coincidence in time between protected activity and adverse employment
action," West v General Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003), something
more than a “temporal connection” exists in the present case as evidence has been presented that
goes well beyond timing in that the discipline records and a lack of tolerance all support
plaintiff’s claim, see id. The evidence supporting that defendant became less tolerant of
plaintiff’s condition only after it became aware of the EEOC complaint was sufficient to raise a
genuine issue of material fact as to whether there was a causal connection between defendant’s
actions and plaintiff’s filing of the EEOC complaint.1
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Once a plaintiff establishes a prima facie case of retaliation, the burden of production shifts to
the defendant to articulate a legitimate business reason for the adverse employment action. See
Roulston v Tendercare, Inc, 239 Mich App 270, 280-281; 608 NW2d 525 (2000). Defendant
argues that the trial court erroneously failed to consider whether it presented a legitimate,
nondiscriminatory reason for disciplining plaintiff after the EEOC complaint was filed. Issues
not addressed by the trial court are not properly before this Court. Alan Custom Homes, Inc v
Krol, 256 Mich App 505, 513; 667 NW2d 379 (2003). Moreover, defendant only alluded to this
(continued…)
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For the above stated reasons, I would affirm the trial court’s denial of defendant’s motion
for summary disposition on plaintiff’s retaliation claim, and reverse and remand for entry of
summary disposition in favor of defendant on plaintiff’s discrimination claim.
/s/ Kathleen Jansen
(…continued)
argument in the last paragraph of its brief in support of its motion for summary disposition, and
failed to cite any law in support of its position. A party moving for summary disposition under
MCR 2.116(C)(10) "must specifically identify the issues as to which the moving party believes
there is no genuine issue as to any material fact." MCR 2.116(G)(4). Because defendant did not
sufficiently identify this issue as a basis for summary disposition, and it was not considered or
addressed by the trial court, it is unnecessary to address the issue on appeal. Defendant is free to
raise the issue below in a properly presented motion for summary disposition.
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