Daniel Wiegert v. Blue Cross Blue Shield of Michigan

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
DANIEL WIEGERT, UNPUBLISHED
October 15, 2020
Plaintiff-Appellant,
v No. 348931
Wayne Circuit Court
BLUE CROSS BLUE SHIELD OF MICHIGAN, LC No. 18-001952-CD
Defendant-Appellee.
Before: GADOLA, P.J., and RONAYNE KRAUSE and O’BRIEN, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition to
defendant. We affirm.
I. BACKGROUND
In 2015, plaintiff interviewed with defendant for a position in defendant’s Human
Performance Department. Defendant’s employees, Valarie Keesee and Steven Weingarden,
conducted plaintiff’s interview. In plaintiff’s words, the “interview was not [his] best.” Five
minutes into the interview, plaintiff got nervous that Keesee and Weingarden were not pleased
with how the interview was going, so he interrupted the interview to inform Keesee and
Weingarden that he had a military-service-related disability that caused him to have a flat affect
and lack of outward emotion, but he wanted them to know he was happy to be there. Keesee and
Weingarden said “okay” and the interview continued. Two other candidates interviewed for the
same position as plaintiff, and Keesee and Weingarden rated the three candidates. Plaintiff
received the lowest rating from both interviewers. Keesee had the ultimate choice of which
candidate to hire, and she decided to not offer plaintiff the internship.
A few weeks later, Weingarden offered to give plaintiff feedback on his interview, and
plaintiff accepted. According to plaintiff, during the ensuing telephone call, Weingarden told
plaintiff that he was “an emotionless, monotone, like battle-scarred, shell-shocked veteran”; that
Weingarden “ had to work with someone just like [plaintiff] in grad school” and it “wasn’t good”;
“You know, it’s part of being in the military, and it happens”; and, “There’s no way that you’re
going to be able to ever work like in the applied world, which includes every corporation, every
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consulting firm, every job possibility . . . [s]o your best bet would just be to go to some no-name
college in the middle of nowhere and just rot for the rest of your life.”1
In February 2018, plaintiff filed a complaint alleging that defendant violated the Persons
with Disabilities Civil Rights Act (PWDCRA), MCL 37.1202 et seq. Plaintiff alleged that he
informed Keesee and Weingarden of his disability during his interview and that he was not offered
the internship because of his disability. In January 2019, defendant moved for summary
disposition arguing that plaintiff failed to raise a genuine issue of material fact whether plaintiff
was not offered the internship because of his disability. Defendant also argued that plaintiff failed
to prove that defendant’s nondiscriminatory reason for hiring a different candidate was false or a
pretext for discrimination. After a hearing on the motion, the trial court held that plaintiff failed
to demonstrate that Weingarden’s alleged statements were related to defendant’s hiring decision
or that plaintiff would have been offered the internship but for his disability.
This appeal followed.
II. STANDARD OF REVIEW
“This Court generally reviews de novo a trial court’s ruling on summary disposition
motions.” Bennett v Russell, 322 Mich App 638, 642; 913 NW2d 364 (2018). A motion under
MCR 2.116(C)(10) “tests the factual sufficiency of a claim” and “may only be granted when there
is no genuine issue of material fact.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160;
934 NW2d 665 (2019). “A genuine issue of material fact exists when the record leaves open an
issue upon which reasonable minds might differ.” Id. (citation and quotation marks omitted). In
making a decision on a motion for summary disposition under MCR 2.116(C)(10), the trial court
“must consider all evidence submitted by the parties in the light most favorable to the party
opposing the motion.” Id.III. ANALYSIS
Plaintiff argues that Weingarden’s statements during the feedback session with plaintiff,
viewed in the light most favorable to plaintiff, were direct evidence that plaintiff’s disability was
a motivating factor in defendant’s decision to not hire plaintiff, and that the trial court erred by
holding otherwise. We disagree.
Plaintiff claims that defendant decided not to hire him because of his disability in violation
of the PWDCRA. MCL 37.1202(1)(a)-(e) of the PWDCRA prohibits an “employer” “from taking
any number of adverse employment actions against an individual because of a disability . . . that
is unrelated [or not directly related] to the individual’s ability to perform the duty or a particular
job or position.” Peden v Detroit, 470 Mich 195, 203-204; 680 NW2d 857 (2004) (quotation
marks omitted; alteration in original). “To prove a discrimination claim under the [PWDCRA],
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Weingarden and defendant adamantly deny that Weingarden ever made these statements, but for
purposes of this opinion, we accept as true that Weingarden made the statements. The alleged
statements, if made, would be unquestionably offensive and have no place in civil society. This
Court disavows and highly disapproves of any such alleged statements.
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the plaintiff must show (1) that he is [disabled] as defined in the act, (2) that the [disability] is
unrelated to his ability to perform his job duties, and (3) that he has been discriminated against in
one of the ways delineated in the statute.” Chmielewski v Xermac, Inc, 457 Mich 593, 602; 580
NW2d 817 (1998).
In its motion for summary disposition, defendant did not challenge whether plaintiff has a
disability within the meaning of the PWDCRA, whether plaintiff’s disability was unrelated to his
ability to perform the duties of the internship, or whether defendant’s decision not to hire plaintiff,
if based on his disability, was one of the forms of discrimination delineated in the PWDCRA.
Rather, defendant argued that it did not discriminate against plaintiff. More specifically, defendant
argued, and the trial court agreed, that the evidence was insufficient to establish that plaintiff was
not offered the internship because of his disability.
“Proof of discriminatory treatment in violation of the [PWDCRA] may be established by
direct evidence or by indirect or circumstantial evidence.” Sniecinski v Blue Cross and Blue
Shield, 469 Mich 124, 132; 666 NW2d 186 (2003). In cases involving indirect or circumstantial
evidence, a plaintiff must proceed by using the burden-shifting approach set forth in McDonnell
Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).” Sniecinski, 469 Mich
at 133-134. But “[t]he shifting burdens of proof described in McDonnell Douglas are not
applicable if a plaintiff can cite direct evidence of unlawful discrimination.” DeBrow v Century
21 Great Lakes, Inc, 463 Mich 534, 539; 620 NW2d 836 (2001). Direct evidence of discrimination
is “evidence that proves impermissible discriminatory bias without additional inference or
presumption.” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 608 n 34; 886 NW2d 135
(2016). If the plaintiff has direct evidence that his disability was at least a motivating factor in the
employer’s adverse employment decision, then “the case should proceed as an ordinary civil
matter.” DeBrow, 463 Mich at 539-540. In Hecht, 499 Mich 586 at 608 n 34, our Supreme Court
explained that the “hallmarks” of a case involving direct evidence of discrimination as a motivating
factor for an adverse employment action are “a statement made by a decision-maker, to the
plaintiff, at the meeting in which the plaintiff suffered the adverse employment decision, and
evincing a causal nexus.”
The Hecht Court cited DeBrow for its “hallmarks” of direct evidence of discrimination.
On appeal, plaintiff relies extensively on DeBrow and contends that Weingarden’s statements were
similar to the employer’s statements in DeBrow and therefore were “direct evidence that a
motivating factor in [plaintiff’s] rejection from the position for which he applied was his
disability.” Weingarden’s statements, however, differed from the employer’s statements in
DeBrow in several key respects. While it is true that, when viewed in the light most favorable to
plaintiff, Weingarden’s statements were evidence of discriminatory animus, direct evidence of
discrimination requires proof that discriminatory animus was a motivating factor for the
defendant’s adverse employment action. See Sniecinski, 469 Mich at 136 (noting that even if the
plaintiff presented “direct evidence of a discriminatory animus,” her claim still failed because she
could not prove that the discriminatory animus was “causally related to [the defendant’s] failure
to hire her”). Weingarden’s statements, even when viewed in the light most favorable to plaintiff,
are simply not direct evidence that discriminatory animus could have been a motivating factor for
defendant’s adverse employment action. Keesee, not Weingarden, was responsible for deciding
whether to hire plaintiff, so unlike in DeBrow, there was no evidence of discriminatory animus by
a decision-maker. Compare DeBrow, 463 Mich at 539. Weingarden’s statements were made
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weeks after defendant decided to not hire plaintiff, not at the time that plaintiff suffered the adverse
employment action. Compare id. And Weingarden’s statements did not evince a causal nexus
between discriminatory animus and the adverse employment action, particularly because it was
Keesee who decided to not hire plaintiff. Compare id. Thus, Weingarden’s statements bear none
of the “hallmarks” of a case involving direct evidence of discrimination. See Hecht, 499 Mich 586at 608 n 34.
Moreover, Weingarden’s statements do not fit the general definition of direct evidence of
discrimination stated in Hecht. To conclude that Weingarden’s alleged discriminatory animus was
a motivating factor to not hire plaintiff, a factfinder would have to assume (1) that Weingarden
held this bias weeks before, (2) that Weingarden informed Keesee of his bias before Keesee made
her decision, and, most significantly, (3) that Weingarden’s bias affected Keesee’s hiring decision.
The need for these assumptions to conclude that discriminatory animus was a motivating factor in
defendant’s decision to not hire plaintiff undercuts plaintiff’s contention that Weingarden’s
statements are direct evidence of discrimination. See id. (“Perhaps the best general definition of
direct evidence is that it is evidence that proves impermissible discriminatory bias without
additional inference or presumption.”) (Some emphasis added.) In sum, plaintiff’s evidence bears
none of the “hallmarks” of a case involving direct evidence of discrimination, and is otherwise not
direct evidence of discrimination being a motivating factor for defendant’s adverse employment
action because additional inferences are necessary to arrive at that conclusion.
Plaintiff does not contest that, if there was no direct evidence of discrimination, the trial
court’s decision was proper based on defendant’s evidence that it hired the candidate who received
the highest rating from defendant’s interviews and that plaintiff received the lowest rating from
his interview with defendant. We therefore conclude that the trial court did not err in granting
summary disposition to defendant.
Affirmed.
/s/ Michael F. Gadola
/s/ Amy Ronayne Krause
/s/ Colleen A. O’Brien
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