Gina K Hensley v. Botsford General Hospital ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
GINA K. HENSLEY, UNPUBLISHED
January 12, 2016
Plaintiff-Appellee,
v No. 323805
Oakland Circuit Court
BOTSFORD GENERAL HOSPITAL and DR. LC No. 2013-136596-CD
JEFFREY D. JOSHOWITZ,
Defendants-Appellants.
Before: TALBOT, C.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Defendants appeal by leave granted the trial court’s order denying in part their motion for
summary disposition of plaintiff’s claim for unlawful retaliation under the Michigan Civil Rights
Act (CRA), MCL 37.2101 et seq. We reverse the trial court’s order to the extent that it denied
summary disposition of the retaliation claim and remand for entry of judgment in favor of
defendants on that claim.
In June 2012, plaintiff began working for Botsford General Hospital (“Botsford”) in an
off-campus clinic run by Dr. Jeffery D. Joshowitz, with two other female employees. Plaintiff’s
job included working at the front desk, greeting and assisting patients, and answering the
telephone. Plaintiff alleged that Dr. Joshowitz and her two female coworkers engaged in
inappropriate talk of a sexual nature on almost a daily basis. Some of the discussions were about
sexual paraphernalia that Dr. Joshowitz allegedly kept in his office or displayed on his telephone.
Plaintiff alleged that Dr. Joshowitz also made sexually suggestive or lewd comments to her and
other women. On one occasion, Dr. Joshowitz was counseled after a female computer technician
complained that he had made an inappropriate sexual comment and gestured toward his genitals.
Plaintiff admitted at her deposition that she usually just “tuned out” the inappropriate
conversations and remarks, and kept to herself at work. On a couple of occasions, however,
plaintiff voiced her displeasure to comments directed at her. Plaintiff explained that her female
coworkers discussed names they had given to their vaginas, and they told plaintiff that her vagina
should be named “Taco.” The female coworkers mentioned that name when a male
pharmaceutical representative was visiting the office while Dr. Joshowitz was present. After
plaintiff told her coworkers not to use that term, no one called her by that name again. Plaintiff
explained that on another occasion, Dr. Joshowitz, who usually called her “Ms. G.,” instead
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referred to her as “G-spot.” Plaintiff told Dr. Joshowitz that she did not like being called that
name, and she admitted that he never used that term again.
Plaintiff admitted that she was frequently disciplined while working at Dr. Joshowitz’s
office, including for excessive personal telephone usage, excessive tardiness, and patient
complaints of rudeness. Faith Bazzell, the team leader in the office, evaluated plaintiff’s
performance and found that she had performed poorly from the beginning. Dr. Joshowitz
expressed his displeasure to Bazzell about plaintiff’s poor performance, and he later expressed
his desire that she be fired. While Bazzell was hopeful that plaintiff’s performance would
improve after her performance evaluation on March 20, 2013, her performance continued to
suffer. On April 2, 2013, Bazzell met with plaintiff to go over a list of matters with patients that
plaintiff had handled incorrectly. Plaintiff became upset and angry, and then sent an e-mail to
the practice administrator, Amy Bone. The e-mail stated:
Good morning Amy,
I would like to ask you if I am able to transfer to another location within
Botsford with a write up? I am not happy here at this office, I have been working
in the hospital setting doing pretty much the same job, for over 14 years, and I
have never gotten called into the office, given verbal warnings and gotten write
ups the way that I have here at this office. There is a lot of
unacceptable/inappropriate behavior that goes on here and I don’t make a fuss
about any of it, but I am being treated unfairly and I do not have the stress
capacity to handle it any longer. I am worried that I will end up getting fired due
to keep [sic] getting write ups.
Can you please tell me what I can do.
Thanks,
Gina
Bazzell provided documentation to the human resources department regarding plaintiff’s
performance, but was not involved in deciding what employment action would follow.
Bone admitted that Dr. Joshowitz told her that he wanted plaintiff fired or gone from his
practice, because of her performance issues and the number of patient complaints. On April 4,
2013, Bone met with Lisa Garner, a human resources business partner for Botsford. Garner
advised Bone to take steps toward terminating plaintiff’s employment. Bone and Garner
discussed plaintiff’s April 2 e-mail, but were not aware of the nature of any inappropriate or
unacceptable behavior occurring in the office.
Although there were discussions about offering plaintiff additional training in customer
service skills, Botsford’s vice president of human resources, Barbara Palmer, advised that the
number of patient complaints was serious enough to warrant termination of her employment. On
April 9, 2013, plaintiff was advised that her employment was being terminated for both violating
customer service standards and failing to meet acceptable work standards.
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Plaintiff thereafter filed this action against Botsford Hospital and Dr. Joshowitz, alleging
both sexual harassment and unlawful retaliation under the CRA. Defendants filed a motion for
summary disposition with respect to both claims. The trial court granted the motion in part and
dismissed the sexual harassment claim pursuant to MCR 2.116(C)(7), because it was not filed
within a 180-day contractual limitations period, but denied the motion with respect to the
retaliation claim, concluding that it was not barred by the 180-day limitations period, thereby
precluding summary disposition under MCR 2.116(C)(7), and that there were “genuine issues of
material fact related to whether defendants . . . conspired to retaliate or discriminate against
plaintiff because she opposed a violation of the [CRA],” thereby precluding summary disposition
under MCR 2.116(C)(10).
On appeal, defendants challenge the trial court’s denial of their motion for summary
disposition of the retaliation claim under MCR 2.116(C)(10). A trial court’s summary
disposition decision is reviewed de novo. Spiek v Dep’t of Transp, 456 Mich 331, 337; 572
NW2d 201 (1998). A motion under MCR 2.116(C)(10) tests the factual support for a claim.
Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). A reviewing court must
consider the pleadings, affidavits, depositions, admissions, and other documentary evidence
submitted by the parties. MCR 2.116(G)(5). Summary disposition should be granted if, except
as to the amount of damages, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Babula, 212 Mich App at 48.
The CRA prohibits not only discriminatory conduct, but also provides that “[t]wo or
more persons shall not conspire to, or a person shall not” “[r]etaliate or discriminate against a
person because the person has opposed a violation of this act, or because the person has made a
charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or
hearing under this act.” MCL 37.2701(a). The purpose of MCL 37.2701 is “to protect access to
the machinery available to seek redress for civil rights violations and to protect the operation of
that machinery once it has been engaged.” Meyer v City of Ctr Line, 242 Mich App 560, 571-
572; 619 NW2d 182 (2000), quoting Booker v Brown & Williamson Tobacco Co, Inc, 879 F2d
1304, 1313 (CA 6, 1989). A retaliation claim requires that the defendant must have specifically
retaliated against the plaintiff for conduct that is protected by the CRA. Garg v Macomb Co
Community Mental Health Servs, 472 Mich 263, 272; 696 NW2d 646, amended 473 Mich 1205(2005).
Plaintiff relies on circumstantial or indirect evidence of retaliation to support her claim.
When proceeding on the basis of circumstantial or indirect evidence, the plaintiff may establish a
rebuttable prima facie case by presenting evidence that would allow a factfinder to infer that the
plaintiff was the victim of unlawful discrimination. Sniecinski v Blue Cross & Blue Shield of
Mich, 469 Mich 124, 133-134; 666 NW2d 186 (2003). To establish a prima facie claim for
retaliation, a plaintiff is required to prove (1) that she engaged in a protected activity, (2) that this
was known by the defendant, (3) that the defendant took an employment action that was adverse
to plaintiff, and (4) that there was a causal connection between the protected activity and the
adverse employment action. Garg, 472 Mich at 273. Once a prima facie case has been
established, the burden of production shifts to the defendant to articulate a legitimate business
reason for the discharge. Roulston v Tendercare, Inc, 239 Mich App 270, 281; 608 NW2d 525
(2000). If the defendant produces evidence establishing the existence of a legitimate reason for
the discharge, the plaintiff must have the opportunity to prove that the legitimate reason offered
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by the defendant was not the true reason, but was only a pretext for the discharge. Id. The
plaintiff can prove pretext either directly by showing that a retaliatory reason more likely
motivated the employer, or indirectly by showing that the employer’s proffered explanation is
unworthy of credence. Id.A “mere pretext” may be proved (1) by showing that the reason(s) had no
basis in fact, (2) if the reason(s) had a basis in fact, by showing that they were not
actual factors motivating the decision, or (3) if the reason(s) were motivating
factors, by showing that they were jointly insufficient to justify the decision.
However, the soundness of an employer’s business judgment may not be
questioned as a means of showing pretext. Moreover, unfairness will not afford a
plaintiff a remedy unless the unfair treatment was because of . . . discrimination.
[Meagher v Wayne State Univ, 222 Mich App 700, 712; 565 NW2d 401 (1997)
(internal citations omitted).]
Although plaintiff’s termination qualifies as an adverse employment action, Peña v
Ingham Co Rd Comm, 255 Mich App 299, 312; 660 NW2d 351 (2003), we conclude that the trial
court erred in ruling that there were genuine issues of material fact regarding the remaining
elements of a claim for retaliation.
Plaintiff failed to establish that she was engaged in protected activity at the time of her
discharge. MCL 37.2701(a) defines the type of activity protected under the CRA. It provides
that retaliation is prohibited against a person who “has opposed a violation of” the CRA or
“because the person has made a charge, filed a complaint, testified, assisted, or participated in an
investigation, proceeding, or hearing under” the CRA. In Booker, 879 F2d at 1312, the Sixth
Circuit, applying the Michigan CRA, explained that a retaliation claim can be based on either
opposing a violation of the act (the “opposition clause”) or by filing a complaint with the
employer or participating in proceedings under the CRA (the “participation clause”). Claims
based on the “participation clause” are generally broader and afforded more protection. Id. The
“opposition clause” does not extend to protect all opposition activity. Id.It is undisputed that plaintiff did not file a complaint under the CRA before she was
terminated, nor did she testify, assist, or participate in any investigation, proceeding, or hearing
under the CRA. Plaintiff claims that she opposed a violation of the CRA, or made a “charge”
under the act, in two ways: (1) by objecting to inappropriate or offensive sexual comments or
actions when they occurred, and (2) by sending the email to Bone on April 2, 2013, in which she
complained about inappropriate behavior.
Plaintiff testified at her deposition that she sometimes spoke up when she or her female
coworkers made offensive comments, such as referring to her as “G-spot” or “Taco.” Plaintiff
argues that it was enough that Dr. Joshowitz was aware of plaintiff’s objections to the comments
to show that she opposed a violation of the CRA. We disagree. Although plaintiff objected to
the comments by her coworkers, she never expressed that she felt the comments were illegal or
amounted to sexual harassment. Plaintiff’s mere verbal objections to her coworkers’ remarks are
insufficient to convey that she was opposing a violation of the CRA. See Cremonte v Mich State
Police, 232 Mich App 240, 244 n 4; 591 NW2d 261 (1998) (where the plaintiff’s writings to his
superiors did not raise the specter of a discrimination complaint, nor did they contain any hint of
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any illegality on the part of the defendant, the plaintiff had no evidence that he had opposed a
violation of the CRA), and Barrett v Kirtland Community College, 245 Mich App 306, 319; 628
NW2d 63 (2001) (to make a “charge” under the CRA, the employee must “clearly convey to an
objective employer that the employee is raising the specter of a claim of unlawful discrimination
pursuant to the CRA”).
Plaintiff’s e-mail to Bone, in which she expressed that there is “a lot of
unacceptable/inappropriate behavior that goes on” at the workplace, is also insufficient to
establish either that plaintiff was opposing a violation of the CRA, or that she was making a
charge under the CRA. In Booker, 879 F2d at 1313, the court explained:
[W]e hold that a vague charge of discrimination in an internal letter or
memorandum is insufficient to constitute opposition to an unlawful employment
practice. An employee may not invoke the protections of the Act by making a
vague charge of discrimination. Otherwise, every adverse employment decision
by an employer would be subject to challenge under either state or federal civil
rights legislation simply by an employee inserting a charge of discrimination. In
our view, such would constitute an intolerable intrusion into the workplace.
Plaintiff’s generalized complaint of “unacceptable/inappropriate behavior” did not refer to any
unlawful behavior, or reference any specific activity or conduct within the ambit of the CRA.
Thus, it is insufficient to constitute opposition to an unlawful employment practice.
Plaintiff’s e-mail to Bone also fails to qualify as a “charge” under the CRA. In Barrett,
245 Mich App at 318-320, this Court explained that vague references to unspecified complaints
about working conditions are insufficient to constitute a “charge” under the CRA:
Plaintiff did not take any action that could be construed as a “charge”
under the act. An employee need not specifically cite the CRA when making a
charge under the act. However, the employee must do more than generally assert
unfair treatment. See Mitan v Neiman Marcus, 240 Mich App 679, 682; 613
NW2d 415 (2000) (holding complaints amounting to generic claims of “job
discrimination” did not qualify as a charge made under the Persons with
Disabilities Act, MCL 37.1101 et seq.). The employee’s charge must clearly
convey to an objective employer that the employee is raising the specter of a
claim of unlawful discrimination pursuant to the CRA. McLemore v Detroit
Receiving Hosp & Univ Medical Center, 196 Mich App 391, 396; 493 NW2d 441
(1992). Plaintiff’s oral complaint to Franke in January 1994 failed to meet this
standard. Plaintiff alleges unlawful discrimination because of sex. According to
plaintiff, he complained to Franke that Vajda had severely limited or closed the
line of communication between Vajda and plaintiff. Plaintiff further claimed
Vajda had implemented policies that were enforced only with respect to plaintiff.
Plaintiff asserted Vajda’s conduct changed after Vajda discovered plaintiff and
Goshorn were involved romantically. Plaintiff never complained that he was
subjected to any physical or verbal conduct of a sexual nature relating to either
plaintiff or Goshorn. Nor did plaintiff complain that he was treated differently
because of his gender. Under these circumstances, an objective employer could
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not conclude that plaintiff was raising the specter of a claim pursuant to the CRA.
Rather, the evidence merely established that plaintiff was asserting generic, non-
sex-based complaints regarding his working conditions and that those complaints
were not based on sex. [Footnote omitted.]
See also Booker, 879 F2d at 1313.
Plaintiff’s vague reference to unspecified “unacceptable/inappropriate behavior” does not
refer to sexual harassment or conduct of a sexual nature, or conduct believed to be illegal. The
email would not convey to an objective employer that plaintiff was raising the specter of a claim
of unlawful conduct pursuant to the CRA.
For the foregoing reasons, the trial court erred in ruling that there was a genuine issue of
material fact regarding whether plaintiff was engaged in protected activity under the CRA.
Because plaintiff cannot prove the first element of a claim for retaliation, that she was engaged in
protected activity at the time of her termination, the trial court erred in denying defendants’
motion for summary disposition on the retaliation claim.
Plaintiff acknowledges that she may not be able to prove that those in the human
resources department who ultimately made the decision to terminate her employment,
particularly Barbara Palmer, were aware of the sexual harassment, but argues that this deficiency
should not be fatal to her retaliation claim because she can prove that Palmer and others in the
human resources department acted at the behest of Dr. Joshowitz in terminating her employment.
Plaintiff relies on the “cat’s paw” theory, in which federal courts have found direct evidence of
discrimination when a supervisor engages in a discriminatory act and the act influences another
supervisor to make an employment decision adverse to the plaintiff. See Staub v Proctor Hosp,
562 US 411, 415-416; 131 S Ct 1186; 179 L Ed 2d 144 (2011). Even assuming, however, that
Dr. Joshowitz exercised some supervisory authority over plaintiff, that theory does not apply to
plaintiff’s claim because, as previously discussed, plaintiff failed to show that Dr. Joshowitz was
aware that plaintiff had opposed sexual harassment in the office before she was terminated.
Defendants also argue that they were entitled to summary disposition because there is no
evidence to support a causal connection between any protected activity under the CRA and the
decision to terminate plaintiff’s employment. We agree with defendants’ argument on this point
as well. To establish a causal connection, the plaintiff must show that her participation in the
protected activity was a “significant factor” in the employer’s adverse employment action, not
merely that there was a causal link between the two events. Barrett, 245 Mich App at 315.1
1
Defendants urge this Court to apply Univ of Texas Southwestern Med Ctr v Nassar, ___ US
___; 133 S Ct 2517, 2525; 186 L Ed 2d 503 (2013), and require that plaintiff prove that the
adverse employment action would not have occurred “but for” the defendant’s conduct. As
applied to this case, however, we conclude that the result would be the same under either
standard.
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To prove causation, the plaintiff is required to show something more than a coincidence
in timing between the protected activity and the adverse employment action. Garg, 472 Mich at
286. In Rymal v Baergen, 262 Mich App 274, 303; 686 NW2d 241 (2004), this Court explained
that
[a] causal connection can be established through circumstantial evidence, such as
close temporal proximity between the protected activity and adverse actions, as
long as the evidence would enable a reasonable fact-finder to infer that an action
had a discriminatory or retaliatory basis. [Citations omitted.]
The deposition testimony established that no one involved in the disciplinary process was
aware of plaintiff’s allegations of sexual harassment until after the decision was made to
terminate her employment. Plaintiff admitted that she did not complain to Bone, and Palmer was
the person who ultimately made the decision to terminate plaintiff’s employment. Garner also
was not aware of those claims until plaintiff told her at the discharge meeting, after plaintiff had
already been informed that she was being terminated, about Dr. Joshowitz calling her “G-spot.”
Furthermore, at the time plaintiff wrote her email in April 2013, she acknowledged that
she was already subject to disciplinary action based on her job performance. In addition,
plaintiff’s email only made vague references to inappropriate conduct; it did not refer to any
violation of the CRA, or even mention sexual harassment or inappropriate conduct of a sexual
nature. Plaintiff also did not mention her claims of sexual harassment at any point while she was
subject to disciplinary action, or before the decision was made to terminate her employment.
Thus, plaintiff cannot show a causal connection between her email and the termination of her
employment sufficient to raise a genuine issue of material fact regarding a causal connection
between any alleged protected activity and the termination of her employment.
Although plaintiff argues that defendants’ reasons for terminating her employment were a
mere pretext for discrimination, we need not address that issue because plaintiff failed to
establish a prima facie claim of retaliation in the first instance.
In conclusion, we reverse in part the trial court’s July 21, 2014 order to the extent that it
denied defendants’ motion for summary disposition of plaintiff’s retaliation claim under MCR
2.116(C)(10), and we remand for entry of judgment in favor of defendants on that claim.
Reversed in part and remanded. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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