Michael T Thomas Sr v. Cair Michigan Inc ( 2023 )

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
MICHAEL T. THOMAS, SR., UNPUBLISHED
July 13, 2023
Plaintiff/Counterdefendant-Appellee,
v No. 362387
Wayne Circuit Court
CAIR MICHIGAN, INC., LC No. 20-016064-PZ
Defendant,
and
ALI R. JABER,
Defendant/Counterplaintiff/Third-
Party Plaintiff-Appellant/Cross-
Appellee,
and
HENRY FORD COLLEGE,
Third-Party Defendant-
Appellee/Cross-Appellant.
Before: PATEL, P.J., and BOONSTRA and RICK, JJ.
PER CURIAM.
Defendant/counterplaintiff/third-party plaintiff Ali R. Jaber (Jaber) appeals by right, and
third-party defendant Henry Ford College cross-appeals by right, the judgment in favor of
plaintiff/counterdefendant Michael T. Thomas, Sr. (Thomas) entered by the trial court after a jury
trial. More specifically, Jaber’s appeal is of the trial court’s pre-trial order granting Thomas’s and
Henry Ford College’s motions for summary disposition of Jaber’s counterclaims and third-party
claims under MCR 2.116(C)(10). Henry Ford College’s appeal is of the trial court’s denial of its
post-trial request for case-evaluation sanctions. We affirm in both appeals.
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I. PERTINENT FACTS AND PROCEDURAL HISTORY
Jaber, who is Muslim and of Lebanese descent, attended Henry Ford College in 2019 and
enrolled in a business course taught by Thomas. Jaber was interested in raising money to assist
those living in poverty in Lebanon, and was aware that Thomas was involved in various nonprofit
organizations. In October 2019, Jaber stayed after class and asked Thomas for advice about getting
help with using his Facebook page to send money to people in need in Lebanon. According to
Jaber, Thomas responded by engaging in an Islamophobic and anti-Lebanese rant. Two other
students, D’El Rapp and Mohamad Dbouk, overheard some of the conversation. Rapp testified
that she interfered to defend Jaber, while Dbouk claimed he thought Jaber was being too sensitive
if he was offended by the comments.
Jaber eventually complained to Henry Ford College about the incident. He was given the
option to transfer to a new course taught by a different professor, or to withdraw from the course.
Jaber initially thought he wanted to transfer, but was informed by the new professor that he was
unlikely to be successful in the class because of the late transfer. Jaber decided to withdraw.
Representatives of Henry Ford College informed Jaber that it was too late to receive a refund and
that his withdrawal would be noted in his transcript. Jaber contacted defendant, the Michigan
Chapter of the Council for American-Islamic Relations (CAIR), for its support in asserting his
rights. CAIR and Jaber held a press conference during which the accusations against Thomas were
repeated; this received news coverage.
Henry Ford College eventually began an investigation into the alleged comments made by
Thomas. Lynn Borczon (Borczon), the Assistant Director of Human Resources for Henry Ford
College, initially headed the investigation. Thomas denied saying anything Islamophobic or anti-
Lebanese in nature. Instead, Thomas claimed that he was giving advice to Jaber about the dangers
of sending money overseas. Thomas sought to ensure that Jaber was aware of certain presumptions
other people in society might make when hearing that Jaber was sending money to Lebanon.
Thomas insisted that he did not hold any Islamophobic or anti-Lebanese beliefs.
About a week after the incident was reported, Henry Ford College decided to employ an
independent party, Thomas Fleury (Fleury), to conduct the investigation. After interviewing Jaber,
Thomas, Dbouk, and some others, Fleury concluded that Thomas’s comments were not
Islamophobic or anti-Lebanese. Fleury did not interview Rapp. Henry Ford College closed the
investigation on the basis of Fleury’s findings, and Thomas was not disciplined.
This litigation began when Thomas sued Jaber and CAIR, alleging that they had defamed
him and tortiously interfered with his business relationship with Henry Ford College. Jaber filed
a counterclaim and third-party complaint, alleging that Thomas and Henry Ford College had
violated his rights under the Elliott-Larsen Civil Rights Act (CRA), MCL 37.2101 et seq. Thomas
and Henry Ford College moved for summary disposition of Jaber’s claims in November 2021.
They argued that Thomas was not a “decision-maker” regarding Jaber’s rights and privileges while
a student at Henry Ford College. Jaber argued that he had provided direct evidence of
discrimination, which warranted submitting the case to a jury. Alternatively, he asserted that he
had offered sufficient indirect evidence of discrimination to survive the motions for summary
disposition. While the motions for summary disposition were pending, the parties underwent case
evaluation in December 2021. The case evaluators issued an award on December 3, 2021, valuing
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Jaber’s third-party complaint against Henry Ford College at $100. Henry Ford College accepted
the award. Jaber rejected the award by failing to respond by the January 4, 2022 deadline.
At a motion hearing on January 18, 2022, the trial court agreed with Thomas and Henry
Ford College and orally granted their motions for summary disposition. The trial court
subsequently entered written orders memorializing these decisions. Shortly thereafter, Henry Ford
College moved the trial court for an award of case-evaluation sanctions under MCR 2.403(O). The
trial court denied the motion. This appeal and cross-appeal followed.
II. MAIN APPEAL
A. STANDARD OF REVIEW
“This Court [] reviews de novo decisions on motions for summary disposition brought
under MCR 2.116(C)(10).” Pace v Edel-Harrelson, 499 Mich 1, 5; 878 NW2d 784 (2016). A
motion for summary disposition under MCR 2.116(C)(10) “tests the factual sufficiency of the
complaint . . . .” Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). “In
evaluating a motion for summary disposition brought under this subsection, a trial court considers
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties,
MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” Maiden v
Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper when there
is no “genuine issue regarding any material fact.” Id. “A genuine issue of material fact exists
when reasonable minds could differ on an issue after viewing the record in the light most favorable
to the nonmoving party.” Auto-Owners Ins Co v Campbell-Durocher Group Painting & Gen
Contracting, LLC, 322 Mich App 218, 224; 911 NW2d 493 (2017) (quotation marks and citation
omitted). We review de novo issues of statutory interpretation. Saugatuck Dunes Coastal Alliance
v Saugatuck Twp, 509 Mich 561, 577; 983 NW2d 798 (2022).
B. ANALYSIS
Jaber argues that the trial court improperly granted summary disposition in favor of
Thomas and Henry Ford College. We disagree.
The CRA proscribes certain discriminatory conduct, being “designed to target the
prejudices and biases borne against persons because of their membership in a certain class, and . . .
to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Doe v
Alpena Pub Sch Dist, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 359190); slip
op at 3 (quotation marks and citations omitted, alteration in original). The CRA provides in
relevant part:
An educational institution shall not do any of the following:
(a) Discriminate against an individual in the full utilization of or benefit from the
institution, or the services, activities, or programs provided by the institution
because of religion, race, color, national origin, or sex.
(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking
admission as a student or an individual enrolled as a student in the terms,
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conditions, or privileges of the institution, because of religion, race, color, national
origin, or sex. [MCL 37.2402(a) and (b).]
“This Court has recognized the lack of education-based []CRA claims,” and has concluded that “it
is appropriate to turn to employment-based []CRA cases for guidance.” Doe, ___ Mich App at
___; slip op at 7, citing Fonseca v Michigan State Univ, 214 Mich App 28, 30; 542 NW2d 273(1995).
The ultimate question in these cases “is whether the plaintiff was the victim of intentional
discrimination.” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 606; 886 NW2d 135(2016). “Michigan courts have recognized two basic theories for establishing a prima facie case
of [] discrimination: showing intentional discrimination or proving disparate treatment.” Major v
Village of Newberry, 316 Mich App 527, 547; 892 NW2d 402 (2016), quoting Lytle v Malady (On
Rehearing), 458 Mich 153, 181 n 31; 579 NW2d 906 (1998). Stated differently, “[p]roof of
discriminatory treatment in violation of the CRA may be established by direct evidence or by
indirect or circumstantial evidence.” Major, 316 Mich App at 540, quoting Sniecinski v Blue Cross
& Blue Shield of Michigan, 469 Mich 124, 132; 666 NW2d 186 (2003).
“In some discrimination cases, the plaintiff is able to produce direct evidence of [unlawful]
bias. In such cases, the plaintiff can go forward and prove unlawful discrimination in the same
manner as a plaintiff would prove any other civil case.” Hazle v Ford Motor Co, 464 Mich 456,
462; 628 NW2d 515 (2001). However, in cases where “there is no direct evidence of
impermissible bias, plaintiff’s claim of intentional discrimination must proceed under the
McDonnell Douglas[1] burden-shifting framework.” White v Dep’t of Transportation, 334 Mich
App 98, 107; 964 NW2d 88 (2020) (quotation marks and citation omitted). In either case, “ ‘a
plaintiff must establish a causal link between the discriminatory animus and the adverse
employment decision.’ ” Major, 316 Mich App at 542, quoting Sniecinski, 469 Mich at 134-135.
1. DIRECT EVIDENCE OF DISCRIMINATION
Jaber argues that the trial court incorrectly concluded that he had not presented direct
evidence of discrimination by Thomas and Henry Ford College. “Perhaps the best general
definition of direct evidence is that it is evidence that proves impermissible discriminatory bias
without additional inference or presumption.” Hecht, 499 Mich at 607 n 34. For example, in
DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 538-539; 620 NW2d 836(2001), our Supreme Court determined there was direct evidence of discriminatory intent when,
during the meeting in which the employee was fired, the employer told the employee “he was
getting too old for this [expletive].” (Quotation marks omitted); see also Harrison v Olde Fin
Corp, 225 Mich App 601, 610; 572 NW2d 679 (1997) (holding that “racial slurs by a
decisionmaker constitute direct evidence of racial discrimination that is sufficient to get the
plaintiff’s case to the jury”).
We note that the trial court in this case did not explicitly state that there was no direct
evidence of discrimination by Thomas. Instead, the trial court determined that there was no factual
1
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
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support for concluding that Thomas was involved in deciding whether Jaber would have “the full
utilization of or benefit from the institution, or the services, activities, or programs provided by the
institution,” or that Thomas had any power to “[e]xclude, expel, limit, or otherwise discriminate
against . . . an individual enrolled as a student in the terms, conditions, or privileges of the
institution . . . .” MCL 37.2402(a) and (b). In other words, the trial court relied on the lack of
proof that Thomas was a “decision-maker” with respect to Jaber’s involvement with Henry Ford
College. Harrison, 225 Mich App at 610.
The trial court’s reasoning appears to have focused on the issue of causation and whether
Jaber could establish a causal link between Thomas’s alleged statements and an adverse
educational action. See Major, 316 Mich App at 542 (quotation marks and citation omitted).
“Under the direct evidence test, a plaintiff must present direct proof that the discriminatory animus
was causally related to the adverse [educational action].” Sniecinski, 469 Mich at 135. The trial
court held that Jaber could not prove causation with respect to his claims against Thomas, because
Thomas, not being a “decision-maker” with respect to the loss of privileges or rights at Henry Ford
College, could not possibly have caused the alleged adverse educational actions suffered by Jaber.
Id.; see also Major, 316 Mich App at 542.
Resolution of the causation issue requires analysis of what, if any, adverse educational
actions were taken against Jaber. Again, turning to the employment-discrimination context, this
Court previously has explained that “there is no exhaustive list of adverse employment
actions . . . .” Pena v Ingham County Rd Comm’n, 255 Mich App 299, 311; 660 NW2d 351 (2003).
Further, “what might constitute an adverse employment action in one employment context might
not be actionable in another employment context.” Chen v Wayne State Univ, 284 Mich App 172,
201; 771 NW2d 820 (2009). Therefore, whether Jaber suffered the effects of an adverse
educational action “must be ascertained in light of the unique characteristics of his status . . . .”
See id. This Court has stated that, generally,
in order for an employment action to be adverse for purposes of a discrimination
action, (1) the action must be materially adverse in that it is more than mere
inconvenience or an alteration of job responsibilities, and (2) there must be some
objective basis for demonstrating that the change is adverse because a plaintiff’s
subjective impressions as to the desirability of one position over another [are] not
controlling. [Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 364;
597 NW2d 250 (1999) (quotation marks and citation omitted; alteration in
original).]
Jaber argues that Thomas caused two interrelated adverse actions. First, Jaber claims that
Thomas caused an unhealthy and discriminatory learning environment in Thomas’s course.
Second, as a result of this improper learning environment, Jaber alleges that he was required to
choose between transferring to a new class where he was unlikely to be successful or withdrawing
from the class without a refund, which also would result in a negative mark on his transcript. For
his first claim, Jaber has compared his situation to employment-discrimination cases involving a
hostile work environment.
Our Supreme Court has stated:
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In order to establish a claim of hostile environment harassment, an
employee must prove the following elements by a preponderance of the evidence:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the
basis of sex;
(3) the employee was subjected to unwelcome sexual conduct or
communication;
(4) the unwelcome sexual conduct or communication was intended
to or in fact did substantially interfere with the employee’s
employment or created an intimidating, hostile, or offensive work
environment; and
(5) respondeat superior. [Chambers v Trettco, Inc, 463 Mich 297,
311; 614 NW2d 910 (2000) (quotation marks and citation omitted).]
As explained by our Supreme Court, the existence of a hostile environment “shall be determined
by whether a reasonable person, in the totality of circumstances, would have perceived the conduct
at issue as substantially interfering with the plaintiff’s employment or having the purpose or effect
of creating an intimidating, hostile, or offensive employment environment.” Quinto v Cross &
Peters Co, 451 Mich 358, 369; 547 NW2d 314 (1996) (quotation marks and citation omitted).
“Consequently, to survive summary disposition, [the] plaintiff had to present documentary
evidence to the trial court that a genuine issue existed regarding whether a reasonable person would
find that, in the totality of circumstances, [the] comments to plaintiff were sufficiently severe or
pervasive to create a hostile work environment.” Id.Jaber has not established that he suffered an adverse educational action in the form of a
hostile learning environment. As noted, a hostile environment must be severe or pervasive enough
to interfere with Jaber’s educational experience. Id. Jaber’s situation differs significantly from
most hostile work environment claims. In the case of a hostile work environment, a person
generally is required to continue working in that environment or face discipline by an employer.
However, in the present case, it is difficult to see how one event after one class committed by one
professor could cause a hostile learning environment. The reason for such difficulty is clear from
the facts of this case. Despite the severity of the claims rendered against Thomas, Jaber continued
on in school and eventually obtained his degree. By his own testimony, he never had contact with
Thomas again after the single event on October 31, 2019. The situation alleged by Jaber at Henry
Ford College, by its very nature, is not conducive to finding a hostile learning environment because
a student will necessarily have different classes with different professors, and is generally free to
transfer or drop a class rather than being compelled by economic necessity to keep attending. Jaber
did not provide any evidence that his learning environment was in any way hostile after the incident
with Thomas. Jaber did not establish a genuine issue of material fact regarding whether Thomas
created a hostile learning environment at Henry Ford College. Id.Jaber also argues that he suffered an adverse educational action by being required to choose
between transferring to a new class under circumstances where he was unlikely to succeed, or
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withdrawing without a refund and receiving a negative mark on his transcript. For the purposes
of our analysis with respect to Thomas, it is enough to state that Thomas did not have the decision-
making authority to subject Jaber to the challenged action. Indeed, Jaber does not seriously
contend that Thomas was engaged in deciding what specific options would be provided to Jaber
after he complained to Henry Ford College about the incident at issue. The record shows that
Thomas was not involved in the decision-making process behind Henry Ford College’s response
to his complaint, other than to give his side of the story to investigators. Therefore, even if Jaber
provided direct evidence that Thomas had made discriminatory statements on the basis of Jaber’s
national origin and religion, Jaber failed to meet his burden to prove a causal link between those
statements and any adverse educational action Jaber faced. Sniecinski, 469 Mich at 135.
Jaber also argues that there was direct evidence of discrimination on behalf of Henry Ford
College. Jaber has not alleged, or provided direct proof of, any discriminatory statements by
anyone other than Thomas. Rather, Jaber asserts that Henry Ford College’s alleged failure to
conduct a fair and complete investigation was tacit approval of Thomas’s discriminatory animus.
In support of this theory, Jaber cites only Campbell v Dundee Community Sch, unpublished opinion
of the United States District Court for the Eastern District of Michigan, issued July 1, 2015 (Case
No. 12-cv-12327), aff’d 661 F Appx 884 (CA 6, 2016). In addition to its non-binding nature, that
case does not support Jaber’s position. The section of the opinion cited by Jaber discusses a claim
for violation of a constitutional right under 42 USC § 1983. Campbell, unpub op at 8-9. Further,
while the opinion discusses the possibility that a school district can be considered to tacitly approve
of sexually inappropriate conduct by expressing deliberate indifference to a continuing pattern of
such conduct, the plaintiff in Campbell failed to provide evidence supporting such a conclusion.
Id. at 9. Importantly, the Campbell court specifically stated that a claim would not be permitted
to go forward on a theory of tacit approval when a “plaintiff failed to identify ‘a single incident of
alleged harassment against any individual but herself[.]’ ” Id., quoting Swanson v Livingston
County, 121 F Appx 80, 85 (CA 6, 2005). In this case, Jaber has only alleged one instance of
discriminatory conduct by Thomas. He did not present evidence of any other instances when
Thomas or another professor discriminated against him or other Lebanese or Muslim students and
the students were subsequently ignored by Henry Ford College. Consequently, even if Campbell,
unpub op at 8-9, could possibly be analogized to this case, it does not support Jaber’s position.
Further, direct evidence “proves impermissible discriminatory bias without additional
inference or presumption.” Hecht, 499 Mich at 607 n 34. In this case, Jaber’s claim that Henry
Ford College had discriminatory bias during the investigation requires the inference of
discriminatory intent behind its allegedly improper or poor investigation. Because this argument
relies on an inference imputed to Henry Ford College, it is not direct evidence of discrimination
as argued by Jaber. Id. Therefore, the trial court did not err when it concluded that there was no
direct evidence of discrimination with respect to Henry Ford College.
2. INDIRECT EVIDENCE OF DISCRIMINATION
Jaber also argues that the trial court erred by granting Henry Ford College’s and Thomas’s
motions for summary disposition on the basis of indirect evidence of discrimination. We disagree.
As noted, in cases in which “there is no direct evidence of impermissible bias, [a] plaintiff’s claim
of intentional discrimination must proceed under the McDonnell Douglas burden-shifting
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framework.” White, 334 Mich App at 107 (quotation marks and citation omitted). In Town v
Michigan Bell Telephone Co, 455 Mich 688, 695; 568 NW2d 64 (1997), our Supreme Court stated:
The modified McDonnell Douglas prima facie approach requires an
employee to show that the employee was (1) a member of a protected class, (2)
subject to an adverse employment action, (3) qualified for the position, and that (4)
others, similarly situated and outside the protected class, were unaffected by the
employer’s adverse conduct.
“Once [a] plaintiff has sufficiently established a prima facie case, a presumption of discrimination
arises.” Lytle, 458 Mich at 173. “In Furnco Constr[] Corp v Waters, 438 US 567, 577; 98 S Ct
2943; 57 L Ed 2d 957 (1978), the Court explained that the McDonnell Douglas prima facie case
raises an inference of discrimination ‘because we presume these acts, if otherwise unexplained,
are more likely than not based on the consideration of impermissible factors.’ ” Hazle, 464 Mich
at 463. That presumption of discrimination, however, can be rebutted. Id. at 463-464.
To rebut the presumption created by a plaintiff’s establishment of “a prima facie case of
discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse employment decision.” Campbell v Dep’t of Human Servs, 286 Mich App
230, 241; 780 NW2d 586 (2009). Our Supreme Court has described this as “the second stage of
proof,” and held that the defendant employer “need not persuade the court that it was actually
motivated by the proffered reasons.” Lytle, 458 Mich at 173, quoting Texas Dep’t of Community
Affairs v Burdine, 450 US 248, 254-255; 101 S Ct 1089; 67 L Ed 2d 207 (1981). Instead, the
defendant must present admissible evidence of a legitimate explanation that would be “legally
sufficient to justify a judgment for the defendant.” Lytle, 458 Mich at 174 (citation omitted). “If
the defendant carries this burden of production, the presumption raised by the prima facie case is
rebutted, and the factual inquiry proceeds to a new level of specificity.” Id., quoting Texas Dep’t
of Community Affairs, 450 US at 254-255.
“The plaintiff, for his or her claim to survive following such an articulation by the
employer, must then demonstrate that the articulated reason was merely a pretext for unlawful
discrimination.” Campbell, 286 Mich App at 241. In doing so, the plaintiff “has the opportunity
to come forward with evidence, including the previously produced evidence establishing the prima
facie case, sufficient to permit a reasonable factfinder to conclude that the discrimination was
defendant’s true motive in making the adverse employment decision.” Town, 455 Mich at 696. In
other words, “a plaintiff ‘must not merely raise a triable issue that the employer’s proffered reason
was pretextual, but that it was a pretext for [unlawful] discrimination.’ ” Hazle, 464 Mich at 465-
466, quoting Lytle, 458 Mich at 175-176 (alteration in Hazle).
In this case, Thomas and Henry Ford College only challenged the second and fourth
elements of the required proof of a prima facie case for discrimination, arguing that Jaber did not
suffer an adverse educational action and had failed to identify a similarly situated student outside
of the protected classes who was treated differently. We conclude, at a minimum, that Jaber did
not carry his burden with regard to the fourth element.
To establish a prima facie case of discrimination, Jaber had to present proof that “others,
similarly situated and outside the protected class, were unaffected by the [] adverse conduct.”
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Town, 455 Mich at 695. To prove that another student was “similarly situated,” Jaber had to
present evidence of a student who experienced a situation that was “nearly identical” to Jaber’s in
“all of the relevant aspects . . . .” Id. at 699-700. In this case, Jaber did not identify any other
similarly-situated persons at all. Instead, Jaber merely noted Borczon’s testimony that she
typically began investigations into allegations made by students within a day or two of receiving
the complaint, and that Borczon did not begin the investigation into Thomas until more than a
week after Jaber made his formal complaint. Jaber also argued that he was treated differently
because Fleury performed an unsatisfactory investigation, which allowed Thomas to avoid being
challenged on his statements that were at least partially disputed by Dbouk and Rapp. Jaber noted
that Borczon testified that she saw no reason to reopen the investigation even after Rapp came
forward and told a story different from Thomas’s, and after learning that Fleury did not interview
Rapp. Jaber contends that these general comparisons and faults in the investigation are enough to
satisfy the requirement that some other student was afforded a more thorough or timely
investigation, and that the other student likely was not Lebanese or Muslim.
Jaber’s argument misses the point of the final element of the McDonnell Douglas prima
facie case of discrimination. Michigan caselaw is clear that a plaintiff is required, at some point,
to produce “evidence, whether direct or circumstantial, that proves that discrimination was a
determining factor in the employer’s decision.” Town, 455 Mich at 697. In other words, “[d]irect
evidence and the McDonnell Douglas formulation are simply different evidentiary paths by which
to resolve the ultimate issue of the defendant’s discriminatory intent.” Harrison, 225 Mich App
at 610 (quotation marks, citation, and alteration omitted). The McDonnell Douglas burden-shifting
framework reaches the conclusion, in part, by showing that the decision-maker treated the
employee differently than another employee for no other possible reason than unlawful
discrimination. Pertinently, if two specifically-identified employees are in nearly identical
positions, and one was subject to an adverse action while the other was not, it allows for a
presumption that the reason for the distinction was discriminatory animus.
Jaber was therefore required to identify a specific student or set of students outside of his
protected group. Jaber failed, however, to present any evidence of any student who made a formal
complaint about a professor and received different treatment. His speculation regarding
hypothetical students does not permit the inference necessary when addressing a claim under the
McDonnell Douglas framework. Town, 455 Mich at 697; Harrison, 225 Mich App at 610.
Consequently, because Jaber failed to establish a prima facie case for discrimination under the
McDonnell Douglas framework, the trial court did not err when it granted summary disposition in
favor of Thomas and Henry Ford College.
III. CROSS-APPEAL
A. STANDARD OF REVIEW
“A trial court’s decision whether to grant case-evaluation sanctions under MCR 2.403(O)
presents a question of law, which this Court reviews de novo.” Smith v Khouri, 481 Mich 519,
526; 751 NW2d 472 (2008). “This Court reviews de novo a trial court’s decision on . . . questions
of . . . the construction and application of court rules.” Citizens for Higgins Lake Legal Levels v
Roscommon County Bd of Comm’rs, 341 Mich App 161, 176; 988 NW2d 841 (2022). “[H]owever,
a trial court’s decision whether to apply the ‘interest of justice’ exception” when addressing a court
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rule amended during litigation, “is reviewed for an abuse of discretion.” Centria Home Rehab,
LLC v Philadelphia Indemnity Ins Co, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket
Nos. 359371 and 359372); slip op at 5. “An abuse of discretion occurs when the decision results
in an outcome falling outside the range of principled outcomes.” Id. (quotation marks and citation
omitted).
B. ANALYSIS
Henry Ford College argues that trial court considered the wrong legal standards and applied
the wrong version of MCR 2.403 when deciding Henry Ford College’s motion for case-evaluation
sanctions. We disagree.
MCR 2.403 governs the case evaluation procedure. Prior to its amendment in 2022,
MCR 2.403(O) provided in relevant part:
If a party has rejected an evaluation and the action proceeds to verdict, that party
must pay the opposing party's actual costs unless the verdict is more favorable to
the rejecting party than the case evaluation. However, if the opposing party has
also rejected the evaluation, a party is entitled to costs only if the verdict is more
favorable to that party than the case evaluation. [MCR 2.403(O)(1), prior to
amendment effective January 1, 2022.]
Substantial amendments to MCR 2.403 went into effect on January 1, 2022. Relevant to this
appeal, the amendment removed subsection (O) in its entirety; what were commonly known as
“case evaluation sanctions” are no longer available under the current version of the rule.
MCR 1.102 provides:
These rules take effect on March 1, 1985. They govern all proceedings in actions
brought on or after that date, and all further proceedings in actions then pending.
A court may permit a pending action to proceed under the former rules if it finds
that the application of these rules to that action would not be feasible or would work
injustice.
Therefore, the general rule when a court rule is amended is to “apply the newly adopted court rules
to pending actions unless there is a reason to continue applying the old rules.” Reitmeyer, 237
Mich App at 337 (quotation marks and citation omitted). “However, an injustice is not present
merely because a different result would be reached under the new rules. Rather, a new court rule
would ‘work injustice’ where a party acts, or fails to act, in reliance on the prior rules and the
party’s action or inaction has consequences under the new rules that were not present under the
old rule.” Id. (citations omitted). This Court noted in Reitmeyer that “MCR 1.102 focuses on
‘injustice’ in the context of whether changes in rules in the midstream of the legal process have
operated unfairly on one of the parties.” Id. at 340. However, “the exception for ‘injustice’ must
not be read too broadly, such that it encompasses nearly every case where the new and old court
rules would affect a case differently.” Id. at 339. Therefore the “injustice” exception to
MCR 1.102 “must be applied narrowly and with restraint.” Id. at 603.
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In this case, the parties participated in case evaluation on December 3, 2021. The case-
evaluation award was prepared on that date. The amendment to MCR 2.403(O) became effective
on January 1, 2022. The parties agree that Jaber’s deadline to respond to the award was January
4, 2022, and that Jaber effectively rejected the award on that day by failing to respond to it. See
MCR 2.403(L)(1) and (2). About one month later, the trial court entered its written order granting
summary disposition of all of Jaber’s claims against Henry Ford College and dismissing the third-
party complaint. Consequently, the end result of the case between Jaber and Henry Ford College
was not more favorable to Jaber than was the $100 case evaluation. Under the version of the court
rule in effect before January 1, 2022, Henry Ford College was entitled to seek case-evaluation
sanctions. The trial court, however, applied the current version of MCR 2.403, which no longer
allows for such sanctions.
Henry Ford College argues that the trial court failed to appropriately consider which
version of MCR 2.403 should apply in this case. We disagree.
Henry Ford College argues that the trial court did not apply MCR 1.102 when deciding
whether to apply the amended or old version of MCR 2.403. Instead, the trial court relied solely
on the effective date of the amendment being on January 1, 2022, and the deadline for accepting
or rejecting the award occurring on January 4, 2022. The record shows that Henry Ford College
is incorrect in its assertion that the trial court applied an incorrect legal standard. Although the
trial court’s written opinion did not cite to MCR 1.102, it did cite to Ligons v Crittenton Hosp, 490
Mich 61, 88; 803 NW2d 271 (2011). In pertinent part, Ligons considered whether to apply an
amended version of a court rule or the older version. In deciding that issue, our Supreme Court
cited Reitmeyer, 237 Mich App at 337. Ligons, 490 Mich at 88 n 75. As discussed, this Court in
Reitmeyer considered and applied MCR 1.102 in addressing a similar issue. Indeed, Henry Ford
College cites to Reitmeyer in its brief on cross-appeal more than 10 times. The language from
Reitmeyer quoted by our Supreme Court in Ligons, 490 Mich at 88, concerns when the application
of an amended court rule would work an injustice under MCR 1.102. Therefore, although Ligons
did not specifically cite MCR 1.102, it analyzed the issue using the standards found in the court
rule, via the opinion from this Court in Reitmeyer. As a result, the trial court did consider the
proper legal standard when citing to Ligons and deciding to apply the amended version of
MCR 2.403 in this case, notwithstanding its lack of explicit citation to MCR 1.102.
Henry Ford College also argues that the trial court improperly concluded that the amended
version of MCR 2.403 applied in this case, because there were no “further proceedings” regarding
case evaluation after the effective date of the amendment. We again disagree. This argument
relies on the specific language used in MCR 1.102, which states that an amended court rule applies
to “all further proceedings in actions then pending.” This issue requires us to interpret and construe
a court rule.
This Court interprets court rules using the same principles that govern the
interpretation of statutes. Our purpose when interpreting court rules is to give effect
to the intent of the Michigan Supreme Court. The language of the court rule itself
is the best indicator of intent. If the plain and ordinary meaning of a court rule’s
language is clear, judicial construction is not necessary. [Wolfenbarger v Wright,
336 Mich App 1, 29; 969 NW2d 518 (2021) (quotation marks and citation
omitted).]
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In this case, there undoubtedly were further proceedings,2 relevant to Henry Ford College’s
request for case-evaluation sanctions. First, and besides Jaber’s effective rejection of the award
by failing to respond, Henry Ford College would not have been entitled to seek case-evaluation
sanctions under the old version of MCR 2.403 until it was granted summary disposition or
otherwise resolved Jaber’s claims against it. The trial court considered Henry Ford College’s
motion for summary disposition during oral arguments on January 18, 2022. Although the trial
court ruled from the bench during the hearing, it did not enter a written order granting Henry Ford
College’s summary-disposition motion until February 7, 2022. Moreover, there still were more
proceedings after February 7, 2022. Pertinently, Henry Ford College moved for case-evaluation
sanctions on February 9, 2022; Jaber responded to the motion on February 22, 2022; and the trial
court did not decide Henry Ford College’s motion until May 4, 2022. Therefore, regardless of
whether the January 4, 2022 deadline was a “further proceeding” under MCR 1.102, there
undoubtedly were other further proceedings requiring the trial court to consider whether to apply
the amended or older version of MCR 2.403. Consequently, this argument from Henry Ford
College lacks merit. Wolfenbarger, 336 Mich App at 29; MCR 1.102.
Henry Ford College also argues that the trial court should have applied the prior version of
MCR 2.403 because doing otherwise caused Henry Ford College to suffer an injustice under
MCR 1.102. We disagree. Although Henry Ford College has attempted to construe its inability
to obtain case-evaluation sanctions under the amended court rule as a consequence that was not
present under the old rule, Henry Ford College has actually only identified that a different result
would have been warranted under the older version of MCR 2.403. “[A]n injustice is not present
merely because a different result would be reached under the new rules.” Reitmeyer, 237 Mich
App at 337.
At the time Henry Ford College participated in the case-evaluation proceedings, considered
the award, and accepted it, Henry Ford College did not know whether it would be entitled to seek
sanctions under the preamendment version of MCR 2.403. Jaber still had time to accept the award,
which would disqualify any potential sanctions and close the case. Further, the trial court may
have denied Henry Ford College’s motion for summary disposition, and Jaber could have
performed better during a trial. Therefore, Henry Ford College did not even know that it could
2
Although in a dissent, Justice ZAHRA stated the term “proceeding” was a term of art and turned
to a legal dictionary to define the term:
Because “proceedings” is a legal term of art, consulting legal dictionaries is
appropriate. Black’s Law Dictionary (11th ed) defines “proceeding,” in pertinent
part, as “[t]he regular and orderly progression of a lawsuit, including all acts and
events between the time of commencement and the entry of judgment” and as “[a]n
act or step that is part of a larger action.” [Maples v State, 507 Mich 461, 482-483;
968 NW2d 446 (2021) (ZAHRA, J., dissenting).]
As is clarified below, there undoubtedly were “proceedings” after January 1, 2022, relevant to
Henry Ford College’s request for case-evaluation sanctions, regardless of whether we consider the
acceptance or rejection deadline as one such proceeding. Id.-12-
seek case-evaluation sanctions (under the prior rule) until, at the earliest, January 18, 2022, the
date the trial court announced that it was granting Henry Ford College’s motion for summary
disposition. Because Henry Ford College had no basis for seeking a sanction until after the
effective date of the amendment of MCR 2.403, there was no injustice in applying the amended
version of the court rule. Reitmeyer, 237 Mich App at 337.3
The trial court properly concluded that the amended version of MCR 2.403 applied to
Henry Ford College’s motion for case-evaluation sanctions. MCR 1.102; Reitmeyer, 237 Mich
App at 337. Because the amended version of the court rule eliminated the provision allowing for
such sanctions, the trial court properly denied the motion. MCR 2.403.
IV. CONCLUSION
For these reasons, we affirm the trial court’s orders granting Thomas’s and Henry Ford
College’s motions for summary disposition and denying Henry Ford College’s motion for case-
evaluation sanctions. Having prevailed in full in the main appeal, Thomas and Henry Ford College
may tax costs related to that appeal. MCR 7.219(A)(1). Jaber may tax costs as the prevailing party
in Henry Ford College’s cross-appeal. Id.
Affirmed.
/s/ Sima G. Patel
/s/ Mark T. Boonstra
/s/ Michelle M. Rick
3
We also note the possibility that Jaber decided not to respond to the award on the basis of the
change in the court rule . Although MCR 1.102 only requires us to consider whether application
of a current rule would work injustice, we note that application of the prior version of the rule
would at least arguably be unjust to Jaber. In any event, the fact that plaintiff’s decision was yet
to be made when the rule was changed provides support for the conclusion that Henry Ford College
did not act in reliance on the previous rule to its detriment. See Reitmeyer, 237 Mich App at 337.
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