Rare Published Opinion Bad News For Michigan Employers

Over the years, the Michigan Court of Appeals has taken some heat for not issuing more published opinions, while frowning on parties citing unpublished opinions in their briefs. What’s an attorney to do?

Well, this is one opinion that employers may wish wasn’t published. The opinion likely won’t be earth shattering in the human resources world, but it does make a difference when arguing that a lawsuit should be dismissed. I’m talking about White v Department of Transportation and the related ruling concerning retaliation claims under the Michigan Elliott-Larsen Civil Rights Act (ELCRA).

As you know, an employee who asserts rights under state and federal civil rights laws has protection from retaliation for having done so. For discrimination claims under both the federal civil rights law (Title VII) and ELCRA, a plaintiff must show that he/she suffered an adverse employment act. This generally means ultimate employment decisions (discharge) or decisions that affect the terms and conditions of employment such as a pay cut, failure to promote, demotions, etc.

But lateral transfers, losing the corner office or being reassigned to a different office nearby are not the kind of decisions that will support a discrimination claim. Under ELCRA, this was established in Wilcoxson v Minnesota Mining & Manufacturing Co, 235 Mich App 347 (1999). I still remember sitting in my hotel room at Disney World writing the appellate brief in that case knowing that Mickey was out there somewhere just waiting for me. Okay, so I am bragging, a little.

However, retaliation claims have had different proofs under Title VII and ELCRA ever since the United States Supreme Court held that, for purposes of retaliation claims, a “materially adverse” action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” and is not limited to actions that affect the terms and conditions of employment. Burlington Northern and Santa Fe Ry Co v White, 548 US 53, 64, 68 (2006).

So, for nearly 15 years, it has been more difficult to defend retaliation claims brought under federal law, versus state law. Under White, this is also now the standard for retaliation claims under ELCRA.

Why does this matter? Glad you asked. There are times that a former employee can only bring a claim under the state law. For example, the employer may not have enough employees for Title VII to apply, the employee failed to file the requisite administrative charge at the Equal Employment Opportunity Commission, or the federal limitations period may have already expired. Or, quite frankly, some plaintiffs’ attorneys are not comfortable in federal court and prefer to litigate only state claims in the state court system.

Thus, there were times when the plaintiff had to satisfy the more stringent adverse action as explained by the Wilcoxson court for both the discrimination and retaliation claims. Now, the plaintiff only needs to show that what happened to him when he asserted his rights under the ELCRA, if known, could dissuade another worker from doing so.

So, what were the employment actions that satisfied the retaliation claim in White? She was given a poor performance review, triggering a Performance Improvement Plan. Scary right?

There was one other alleged retaliatory act that leaves me shaking my head and is too good not to share. White filed her discrimination lawsuit in Wayne County where she worked. At the time, she lived closer to Lansing and only had to go to the Lansing office for biweekly meetings.

However, a month after the lawsuit was filed, the defendant filed a motion for a change of venue to Ingham County. The plaintiff, wanting to have her discrimination case heard in Wayne County, submitted an affidavit opposing the change in venue. Just two days later, White was reassigned to the Lansing office, requiring her to report there each day, and only permitting her travel to Detroit when she had an appointment there with property owners.

The court noted that “[g]enerally, being reassigned closer to one’s home would not be a [sic] considered an adverse employment action.” However, a jury could find that being located away from the projects that plaintiff oversaw and property owners with whom she met made it far more difficult to do her job (and more difficult for her to litigate her claims in Wayne County).

Thus, the court found the lateral reassignment was sufficient to support White’s retaliation claim. Quite frankly, the reassignment leaves me shaking my head. Raise your hand if you would have thought this to be a good idea two days after she filed her affidavit in the discrimination case seeking to keep the case in Wayne County. You guessed it, that is when she amended the complaint to add the retaliation claim.

As I indicated, changing proofs required during litigation may not rock the human resources world. But employers need to be aware just how easy it is to support a retaliation claim and to always seek guidance from an experienced employment attorney.

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