Listen to this article
Where a defendant employer was awarded summary disposition, the judgment should be affirmed in part and reversed in part, as the trial court did not err by dismissing plaintiff’s hostile work environment claim but the trial court erred in granting summary disposition of the plaintiff’s retaliation claim.
“Plaintiff, Felicia Scotland, brought this action alleging age, gender and race discrimination; hostile work environment; and retaliation under the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq. She appeals as of right from the trial court’s December 6, 2023 order granting defendant’s motion for summary disposition.
“On appeal, plaintiff argues the trial court erred in: (1) granting summary disposition of her ELCRA hostile work environment discrimination claim; (2) denying her cross-motion for summary disposition of her ELCRA retaliation claim; and (3) subsequently revisiting its earlier opinion and order and granting summary disposition of her ELCRA retaliation claim sua sponte, shortly after declaring a mistrial in the midst of plaintiff’s opening statement on the first day of trial. Plaintiff further argues the trial court abused its discretion by improperly: (1) excluding certain evidence as hearsay when it was: being admitted for its effect upon the listener, constituted admissions of a party-opponent, and/or was being offered to show why plaintiff made certain complaints and her good faith in doing so; (2) quashing several of plaintiff’s trial subpoenas for witnesses who would testify that plaintiff’s complaints were filed in good faith or would testify for other permissible purposes; (3) precluding plaintiff’s internal complaints of discrimination in limine; and (4) barring evidence of future damages in limine. Finally, plaintiff contends this matter should be reassigned to a new judge upon remand in light of the assigned trial judge’s allegedly pervasive bias against plaintiff and her counsel.
“We reverse in part, affirm in part, and remand to the trial court for further proceedings consistent with the opinion. We find there is no basis for disqualification of the trial judge. …
“Plaintiff contends that the trial court committed reversible error when it (1) denied her cross-motion for partial summary disposition on her retaliation claim, and (2) later sua sponte dismissed that retaliation claim after twice ruling that it presented a genuine issue of material fact. We agree that the trial court erred in granting summary disposition of plaintiff’s retaliation claim and likewise find that the trial court erred in limiting the scope of plaintiff’s claim to retaliatory termination for filing her initial civil complaint in this matter on January 31, 2020.
“We find, however, that plaintiff has not established entitlement to summary disposition of her retaliation claim as a matter of law, as there is a genuine issue of material fact whether defendant terminated her on the basis of her breach of its internal rules as opposed to terminating her because of her ongoing complaints of discrimination, hostile work environment, and retaliation, including this litigation. …
“In Niswander v Cincinnati Ins Co, 529 F3d 714 (CA 6, 2008), the plaintiff appealed the grant of summary judgment of her retaliatory wrongful termination claim for providing confidential documents to her counsel. The Sixth Circuit, viewing the evidence in the light most favorable to the non-movant plaintiff, balanced ‘the employer’s recognized, legitimate need to maintain an orderly workplace and to protect confidential business and client information, and the equally compelling need of employees to be properly safeguarded against retaliatory actions’ in the context of whether disclosure of confidential documents could be deemed to be a protected activity under Title VII’s retaliation provision. …
“We find the balancing test adopted by the Sixth Circuit in Niswander to be persuasive. Niswander appropriately identifies some factors courts should consider when an employee’s conduct that is otherwise in violation of an employer’s reasonable and valid policies may constitute protected activity sufficient to garner protection under the ELCRA. They are to be balanced together, with no one factor controlling.
“The facts of the present case, viewed in the non-movant’s favor, for purposes of whether plaintiff was engaged in protected activity are quite different from those in Niswander and tilt the balance to plaintiff. …
“In light of this evaluation of the six Niswander factors, plaintiff providing the subject document only to her counsel for its use in proceedings on her ELCRA complaint, subject to a protective order, does not comprise an independent intervening cause for the termination too far removed from the filing of the original complaint as a matter of law. There is a genuine issue of material fact whether this action (that defendant asserts to be the sole basis for plaintiff’s termination) was protected activity—opposition to retaliation and participation in her civil rights litigation—and is likewise part and parcel of the ongoing retaliation plaintiff claims she has endured for years following her initial internal complaint regarding Mary Lewis’ ageist remarks when she was seeking a promotion in 2015, and her internal complaints that followed. …
“Properly viewing the evidence in the non-movant’s favor, including the evidence of plaintiff having been subjected to acts of retaliation at her workplace (that she reported and for which there is evidence that she was against subjected to retaliation) there is a ready, reasonable inference to be drawn that defendant merely seized on this tax document issue as an opportunity to remove plaintiff from its workforce and to avoid the vesting of her benefits. …
“Properly viewed in the light most favorable to the non-movant and making all reasonable inferences in the non-movant’s favor, defendant’s purported termination of plaintiff’s employment, in addition to plaintiff’s other protected activity for which she contends she has also suffered continued retaliation, provides evidence of it being retaliation for her ongoing protected activity. …
“We reverse in part, affirm in part, and remand to the trial court for further proceedings consistent with the opinion. We find there is no basis for disqualification of the trial judge.”
