Trina Turner v. Ford Motor Company ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TRINA TURNER, UNPUBLISHED
April 23, 2020
Plaintiff-Appellant,
v No. 345727
Wayne Circuit Court
FORD MOTOR COMPANY, LC No. 17-006018-CD
Defendant-Appellee.
Before: RIORDAN, P.J., and FORT HOOD and SWARTZLE, JJ.
PER CURIAM.
Plaintiff brought this action alleging race discrimination in employment, as well as
retaliation for reporting race discrimination. The trial court granted defendant’s motion for
summary disposition. Because plaintiff has failed to establish entitlement to appellate relief, we
affirm.
I. BACKGROUND
Plaintiff is multiracial and identifies as African-American. She began working for
defendant in 1993 and held a number of engineering positions. Beginning in 2012, her attendance
became irregular. In early 2015, Tony Greco supervised plaintiff in the Special Vehicle Teams
department. In March 2015, plaintiff was allowed to transfer to defendant’s Vehicle Integration
department, where Christina Hunter served as her new supervisor. As plaintiff was transitioning
to Vehicle Integration, she filed a formal complaint with defendant’s human-resources department
regarding allegedly inappropriate comments that Greco had made regarding Asians and Mexicans.
The human-resources staff investigated the complaint, and Greco explained what he meant by the
comments, stated that plaintiff had taken the comments out of context, and indicated that he did
not mean the comments to be offensive.
Shortly after transferring to Vehicle Integration in April 2015, Hunter noticed plaintiff’s
attendance and performance deficiencies, which continued throughout 2015. In December 2015,
plaintiff failed to attend two meetings at which she was supposed to make presentations. In the
2015 year-end-performance review of plaintiff, Hunter gave plaintiff an average rating but noted
her failure to make the required presentations in December 2015. Plaintiff made numerous
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complaints about this comment and was allowed to submit a written rebuttal to be attached to the
evaluation. Plaintiff complained to the personnel-relations department that she was being unfairly
treated as “the only black in [Hunter’s] section.” The personnel-relations staff investigated the
matter and determined that plaintiff’s complaint was unsubstantiated.
In March 2016, plaintiff unsuccessfully sought a transfer to positions in the Project
Management department. According to defendant, it denied plaintiff’s transfer requests due to a
budgetary freeze on hiring persons outside a given department.
In April 2016, plaintiff filed a complaint against defendant with the federal Equal
Employment Opportunity Commission (EEOC), alleging age and race discrimination as well as
retaliation for making her earlier complaint about Greco’s comments. The EEOC dismissed the
charge, finding that there was no statutory violation.
Meanwhile, plaintiff continued to perform her work in a manner that created difficulties,
including by failing to attend or cancelling meetings. In May 2016, plaintiff filed another
complaint against defendant with the EEOC, this time claiming that the denial of her request for a
transfer to the Project Management department was in retaliation for her filing of her earlier EEOC
complaint. The EEOC dismissed this charge, finding that there was no statutory violation.
In June 2016, Hunter met with her supervisor, Dawn Paluszny, along with human-resources
representative Mickey Mikonczyk and personnel-relations representative Pam Pierce, to discuss
plaintiff’s continuing performance and attendance deficiencies. They decided to implement a
performance-enhancement plan (PEP) to provide plaintiff with coaching and feedback on how to
meet the objectives of her position. Hunter prepared the PEP from a sample document provided
by Pierce. The goal was for plaintiff to satisfy the objectives of the PEP by August 11, 2016.
On July 27, 2016, plaintiff sent an e-mail to Mikonczyk objecting to the PEP in various
respects. Plaintiff objected most strenuously to an example provided in the PEP for one of the
desired behaviors identified in the PEP, i.e., transparency; the PEP provided an example of this
goal by stating, “Answer the question asked—simply with a yes or no; followed by relevant
statements if needed.” Plaintiff claimed that this language implied “discriminatory racial
undertones.” Hunter saw nothing discriminatory about this language, which she had obtained from
the sample document provided by Pierce, but Hunter nonetheless removed the language at issue
and replaced it with other language.
Plaintiff’s performance and attendance problems purportedly continued during the PEP
period. Defendant maintained that plaintiff performed inadequately in meetings and was absent
from work 25% of the time. She was argumentative in meetings and blamed others for her issues.
On August 12, 2016, defendant extended the PEP to continue efforts to improve plaintiff’s
performance. Plaintiff responded to the extension by suggesting that her performance was not
deficient and that the PEP was being used as a tool to discriminate against her based on her race.
On August 18, 2016, plaintiff began a three-month leave of absence to have surgery on her feet.
When plaintiff returned to work on November 10, 2016, she received a notice of
performance coaching and counseling that extended the end date of her PEP to December 1, 2016.
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The notice provided that “[f]ailure to demonstrate significant and sustained improvements by
12/1/2016 [will] result in separation under the terms of the Career Transition Program.”
Meanwhile, personnel-relations manager Susan Moseley agreed to conduct a further
review of plaintiff’s claims that she was being unfairly treated. Moseley met with plaintiff on
August 17, November 15, and November 16. In addition to her three meetings with plaintiff,
Moseley conducted an extensive investigation that included interviewing numerous persons and
reviewing documentation submitted regarding plaintiff’s complaints. Moseley found no evidence
of discrimination and concluded that defendant’s employment policies and processes were
followed properly. On November 30, 2016, Moseley informed plaintiff that the investigation was
being closed.
According to Paluszny, plaintiff failed to make any progress on achieving the objectives of
her PEP; instead, plaintiff used vacation time for the week of Thanksgiving 2016 “and otherwise
spent her time arguing about why she thought she should not be on a PEP in the first place.”
Paluszny, Hunter, and Mikonczyk held a meeting and decided to recommend to upper management
that defendant terminate plaintiff’s employment because of her lack of progress under the PEP,
her attitude regarding efforts to improve her performance, and her continuing performance
deficiencies and failure to satisfy the objectives of her position. After upper management approved
the recommendation, defendant terminated plaintiff’s employment in December 2016. In March
2017, plaintiff obtained a job at Toyota making more money than she did with defendant.
On April 20, 2017, plaintiff commenced this action against defendant by filing a complaint
alleging race discrimination and retaliation for reporting race discrimination. Plaintiff alleged that
Hunter was friends with Greco and that she retaliated against plaintiff for her complaints about
Greco, including by changing plaintiff’s job duties, failing to give critical-work assignments to
plaintiff, and failing to notify plaintiff of meetings where she was required to make a presentation.
Plaintiff claimed she was treated differently from her white peers, including by being denied the
opportunity to work from home. Hunter allegedly handled meetings or assignments for other
employees who were out sick or on vacation but refused to provide the same support to plaintiff.
According to plaintiff, she tried to call in to one of the December 2015 meetings to participate by
telephone but then learned that Hunter was already conducting the meeting and had rescheduled
plaintiff’s portion of the meeting for a later date. Plaintiff claimed that Hunter falsified information
on plaintiff’s 2015 performance evaluation. Plaintiff alleged that the denials of her transfer
requests in 2016 were due to her filing of a complaint against defendant with the EEOC. Plaintiff
noted that it was only after she made complaints about racial discrimination that defendant placed
her on a PEP, claimed she was performing poorly, and then terminated her employment. Plaintiff
alleged that her employment was terminated because of her race and that she was harassed and
retaliated against for making complaints about discrimination. In Count 1 of her complaint,
plaintiff alleged race discrimination and harassment, and in Count 2, she alleged retaliation for
having complained about discrimination and harassment. Plaintiff sought damages in excess of
$1 million.
On June 29, 2018, defendant filed a motion for summary disposition under MCR
2.116(C)(10), arguing that plaintiff had not established a genuine issue of material fact in support
of her claims. The trial court agreed and granted defendant’s motion. This appeal followed.
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II. ANALYSIS
A. RACE-DISCRIMINATION CLAIM
Plaintiff first argues that the trial court erroneously granted summary disposition to
defendant on her race-discrimination claim.
This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 NW2d 665 (2019). A
motion under MCR 2.116(C)(10) tests whether a claim is factually sufficient. Id. at 160.
When considering such a motion, a trial court must consider all evidence submitted
by the parties in the light most favorable to the party opposing the motion. A
motion under MCR 2.116(C)(10) may only be granted when there is no genuine
issue of material fact. A genuine issue of material fact exists when the record leaves
open an issue upon which reasonable minds might differ. [Id. (cleaned up).]
1. ABANDONED CLAIM
Initially, plaintiff has abandoned this issue by failing to provide adequate briefing in many
respects. After summarizing legal principles, plaintiff asserts in a cursory fashion that, “pursuant
to the above facts,” presumably meaning the facts set forth in the fact section of her brief, she
“establishes a prima facie case of discrimination.” Plaintiff does not provide any meaningful
explanation of how the facts establish a prima-facie case. She also alleges that she “was the victim
of racial harassment which resulted in an offensive or hostile work environment[]” and again refers
to “the above facts” but fails to articulate exactly how the facts of the case support her conclusion.
Plaintiff further asserts that she has presented direct evidence of discrimination but fails to identify
any such direct evidence. Plaintiff states that defendant cannot articulate a legitimate,
nondiscriminatory reason for its treatment of plaintiff, but she fails to explain why this is so. An
appellant may not merely announce her position and leave it to this Court to discover and
rationalize the basis for her claims, nor may she give issues cursory treatment with little or no
citation of supporting authority. Peterson Novelties, Inc v Berkley, 259 Mich. App. 1, 14; 672
NW2d 351 (2003). That is, plaintiff cannot rely on this Court to make her arguments for her.
Seifeddine v Jaber, 327 Mich. App. 514, 521; 934 NW2d 64 (2019). Plaintiff’s failure to brief this
issue adequately constitutes abandonment of it. Id.; Peterson Novelties, 259 Mich. App. at 14.
In any event, the trial court correctly granted summary disposition to defendant on
plaintiff’s claim of race discrimination under the Elliott-Larsen Civil Rights Act, MCL 37.2101 et
seq. MCL 37.2202(1)(a) provides, in relevant part, that an employer shall not “[f]ail or refuse to
hire or recruit, discharge, or otherwise discriminate against an individual with respect to
employment, compensation, or a term, condition, or privilege of employment, because of . . .
race.” A plaintiff may prove unlawful discrimination through direct or indirect evidence. Hazle v
Ford Motor Co, 464 Mich. 456, 462; 628 NW2d 515 (2001). Direct evidence is “evidence which,
if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in
the employer’s actions.” Id. (cleaned up). In the absence of direct evidence of unlawful
discrimination, a plaintiff may “present a rebuttable prima facie case on the basis of proofs from
which a factfinder could infer that the plaintiff was the victim of unlawful discrimination.” Id.
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(cleaned up). To do so, the plaintiff must present evidence that (1) she belongs to a protected class;
(2) she suffered an adverse-employment action; (3) she was qualified for the position; and (4) she
suffered the adverse-employment action under circumstances giving rise to an inference of
unlawful discrimination. Id. at 463.
An inference of unlawful race discrimination may arise from evidence that the employer
provided differential or unequal treatment to employees who were similarly situated in all relevant
respects except for their race. Hecht v National Heritage Academies, Inc, 499 Mich. 586, 608; 886
NW2d 135 (2016). But in order for such evidence of similarly situated employees to give rise to
an inference of unlawful discrimination, “the comparable employees must be nearly identical to
the plaintiff in all relevant respects.” Id. (cleaned up).
If a plaintiff establishes a rebuttable prima-facie case of unlawful discrimination, a
defendant may rebut the prima facie case by articulating “a legitimate, nondiscriminatory reason
for the adverse employment action.” Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich.
124, 134; 666 NW2d 186 (2003). If the defendant rebuts the prima-facie case, then “the burden
shifts back to the plaintiff to show that the defendant’s reasons were not the true reasons, but a
mere pretext for discrimination.” Id.
2. DIRECT EVIDENCE OF DISCRIMINATION
Although plaintiff perfunctorily asserts that she has presented direct evidence of
discrimination, she identifies no direct evidence to support that assertion. Seifeddine, 327 Mich
App at 521; Peterson Novelties, 259 Mich. App. at 14. Plaintiff claims that Greco made two racially
insensitive comments, but Greco had exercised no authority over plaintiff for more than 18 months
by the time of plaintiff’s discharge. Also, his comments were, at worst, ambiguous and did not
indicate any discriminatory bias against African-Americans in general or against plaintiff in
particular. Greco’s comments thus constituted, at most, stray remarks, which do not constitute
direct evidence of discriminatory intent. See Sniecinski, 469 Mich. at 136 n 8. While plaintiff’s
affidavit asserts in a conclusory fashion that Greco and Hunter had a prior relationship and suggests
that Hunter was acting on behalf of Greco, this is mere conjecture. Speculation aside, there is no
evidence that Greco and Hunter had any relationship other than being coworkers.
3. INDIRECT EVIDENCE OF DISCRIMINATION
Because plaintiff has not produced direct evidence of discrimination, her claim can survive
only if she demonstrates a genuine issue of material fact under the framework for presenting
indirect evidence of discrimination. Plaintiff has failed to do so.
With respect to her prima-facie case, it is undisputed that plaintiff, who identifies as
African-American, is a member of a protected class. Plaintiff alleges several actions by defendant
that do not amount to materially adverse employment actions. Meyer v Center Line, 242 Mich
App 560, 569; 619 NW2d 182 (2000). Plaintiff was, however, discharged from her employment,
which is a materially adverse employment action. Wilcoxon v Minnesota Mining & Mfg Co, 235
Mich. App. 347, 363; 597 NW2d 250 (1999). Moreover, for purposes of this appeal, we will assume
that she was qualified for her desired positions.
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Yet, plaintiff cannot make out the fourth element of her prima-facie case. Plaintiff has
failed to identify any similarly situated employee outside the protected class who was treated
differently. The “comparable employees must be nearly identical to the plaintiff in all relevant
respects.” Hecht, 499 Mich. at 608 (cleaned up). “Differences in job title, responsibilities,
experience, and work record can be used to determine whether two employees are similarly
situated.” Leadbetter v Gilley, 385 F3d 683, 691 (CA 6, 2004). There is no evidence of any
employees working in Vehicle Integration who had attendance or performance deficiencies similar
to plaintiff or who were required to be placed on a PEP. At her deposition, plaintiff was unable to
identify any similarly situated employees who were treated more favorably than her. Moreover,
although an inference of discriminatory animus may be supported by evidence that the plaintiff
was replaced by someone outside the protected class, Feick v Monroe Co, 229 Mich. App. 335, 338;
582 NW2d 207 (1998), plaintiff was not replaced by anyone; after plaintiff’s discharge, her duties
were reallocated to Hunter and other employees. And as noted earlier, Greco’s alleged racial
comments do not support an inference of discriminatory animus given that he was not a
decisionmaker regarding any alleged adverse employment action and there was no evidence that
Greco had any influence on Hunter’s decisions.
Furthermore, defendant has articulated a legitimate, nondiscriminatory reason for its
discharge of plaintiff. She exhibited numerous attendance and performance deficiencies.
Defendant attempted to provide informal coaching to plaintiff to improve her attendance and
performance issues, and when those efforts failed, plaintiff was placed on a formal PEP. Plaintiff
failed to make any improvement while on the PEP and instead argued that she should not be on
the PEP and blamed others for her deficiencies. Defendant extended the PEP period beyond the
original expiration date, and plaintiff still did not make improvement. Defendant discharged
plaintiff when the extended PEP period ended. Also, the denial of plaintiff’s transfer to Project
Management was based on a freeze on hiring persons outside that department. These facts
establish legitimate, nondiscriminatory reasons for any adverse employment action.
Finally, plaintiff has failed to present evidence that defendant’s articulated
nondiscriminatory reasons for discharging plaintiff constituted a pretext for unlawful
discrimination.
A plaintiff can establish that a defendant’s articulated legitimate, nondiscriminatory
reasons are pretexts (1) by showing the reasons had no basis in fact, (2) if they have
a basis in fact, by showing that they were not the actual factors motivating the
decision, or (3) if they were factors, by showing that they were jointly insufficient
to justify the decision. [Feick, 229 Mich. App. at 343.]
Plaintiff offers no argument that defendant’s proffered reasons for discharging her were a pretext
for discrimination other than to make a cursory assertion that she had no performance issues. But
there was extensive evidence of plaintiff’s attendance and performance deficiencies that defendant
tried to help plaintiff improve. Plaintiff’s mere disagreement with defendant’s judgment regarding
her performance fails to establish that defendant’s proffered reasons are pretextual. “The plaintiff
cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute
at issue is whether discriminatory animus motivated the employer, not whether the employer is
wise, shrewd, prudent, or competent.” Hazle, 464 Mich. at 476 (cleaned up). “The soundness of
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an employer’s business judgment . . . may not be questioned as a means of showing pretext.”
Dubey v Stroh Brewery Co, 185 Mich. App. 561, 566; 462 NW2d 758 (1990).
Plaintiff also suggests that defendant lied regarding the reasons for denying her requests
for a transfer to Project Management. The record does not support that contention. Plaintiff relies
on deposition testimony of Shelia Thompson, a Project Management supervisor who was
interested in making an offer to plaintiff when she sought a transfer. Thompson testified that she
was told by upper management not to make an offer to plaintiff, that Thompson was not given a
reason for this directive, and that Thompson was not informed about a freeze on hiring persons
from outside the department. But the fact that Thompson, a lower-level supervisor, was unaware
of a hiring-freeze decision imposed by upper management does not establish that no hiring freeze
existed or that any agent of defendant lied regarding the existence of the hiring freeze. To the
extent that Thompson’s testimony is read to suggest that no hiring freeze existed, her testimony
amounts only to speculation because there is no evidence that she had personal knowledge of all
upper-management decisions. See MRE 602. A party opposing a motion for summary disposition
must present more than speculation or conjecture in order to demonstrate a genuine issue of
material fact. Meisner Law Group, PC v Weston Downs Condo Ass’n, 321 Mich. App. 702, 723;
909 NW2d 890 (2017).
In sum, plaintiff failed to present direct or indirect evidence of race discrimination.
Therefore, the trial court properly granted summary disposition to defendant on plaintiff’s race
discrimination claim.
B. RETALIATION CLAIM
Plaintiff next argues that the trial court erroneously granted summary disposition to
defendant on plaintiff’s retaliation claim.
MCL 37.2701 provides, in relevant part:
Two or more persons shall not conspire to, or a person shall not:
(a) Retaliate or discriminate against a person because the person has opposed a
violation of [the Civil Rights Act], or because the person has made a charge, filed
a complaint, testified, assisted, or participated in an investigation, proceeding, or
hearing under [the Civil Rights Act].
To establish a prima-facie case of unlawful retaliation, a plaintiff must demonstrate: “(1) that he
engaged in a protected activity, (2) that this was known by defendant, (3) that defendant took an
employment action adverse to plaintiff, and (4) that there was a causal connection between the
protected activity and the adverse employment action.” Landin v Healthsource Saginaw, Inc, 305
Mich. App. 519, 533; 854 NW2d 152 (2014). “To establish causation, the plaintiff must show that
[her] participation in activity protected by the [Civil Rights Act] was a significant factor in the
employer’s adverse employment action, not just that there was a causal link between the two.”
Rymal v Baergen, 262 Mich. App. 274, 303; 686 NW2d 241 (2004) (cleaned up). Moreover, to
demonstrate causation, the “[p]laintiff must show something more than merely a coincidence in
time between protected activity and adverse employment action.” West v Gen Motors Corp, 469
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Mich 177, 186; 665 NW2d 468 (2003). If the plaintiff meets the initial burden of establishing a
prima-facie case of retaliation, then the burden shifts to the defendant to proffer a legitimate,
nondiscriminatory reason for its action, and if that burden is met, then the plaintiff has the burden
to prove that the proffered reason was a pretext for unlawful retaliation. Roulston v Tendercare
(Mich), Inc, 239 Mich. App. 270, 280-281; 608 NW2d 525 (2000).
Once again, plaintiff has abandoned this issue because her argument is cursory. Seifeddine,
327 Mich. App. at 521; Peterson Novelties, 259 Mich. App. at 14. In the section of her brief on
appeal addressing this issue, plaintiff fails to identify precisely the protected activity upon which
she is basing her argument. She suggests that defendant denied her requests to transfer to Project
Management in retaliation for her complaints about alleged harassing behavior. Plaintiff has made
numerous complaints to various entities. She does not identify what complaints and which alleged
harassing behavior upon which she bases her argument. Further, plaintiff has presented no
coherent argument regarding how a causal connection exists between her complaints and any
adverse employment action. Again, plaintiff cannot rely on this Court to make her arguments for
her. Seifeddine, 327 Mich. App. at 521. Plaintiff has thus abandoned this issue. Id.
In any event, the record is bereft of any evidence that a causal connection exists between
plaintiff’s complaints, either to defendant or the EEOC, and any adverse employment action. A
mere coincidence in time is insufficient to establish causation. West, 469 Mich. at 186. Plaintiff
has offered nothing more on the element of causation. Also, the decision to discharge plaintiff
was made approximately eight months after the filing of the first EEOC charge. This time lapse
further undermines any argument for causation. Because plaintiff has presented no evidence of
causation, the trial court properly granted summary disposition to defendant on plaintiff’s
retaliation claim. Also, for the reasons discussed earlier, even if plaintiff could make a prima facie
case, defendant has articulated legitimate, nondiscriminatory reasons for its actions, and plaintiff
has failed to present evidence that those reasons were a mere pretext for unlawful retaliation.
Affirmed. Defendant, having prevailed in full, may tax costs under MCR 7.219(F).
/s/ Michael J. Riordan
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle
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