            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


 RAYMOND J. CAREY,                                                     UNPUBLISHED
                                                                       March 19, 2020
                Plaintiff-Appellant,

 v                                                                     No. 344940
                                                                       Wayne Circuit Court
 FOLEY & LARDNER, LLP,                                                 LC No. 13-013005-CK

                Defendant-Appellee.


Before: TUKEL, P.J., and MARKEY and SWARTZLE, JJ.

PER CURIAM.

       Plaintiff appeals by right the trial court’s order granting summary disposition to defendant
on plaintiff’s claim of unlawful retaliation under the Elliott-Larsen Civil Rights Act (ELCRA),
MCL 37.2101 et seq., in this employment discrimination case. We affirm.

       Plaintiff is an attorney who was previously employed by defendant law firm. The litigation
between the parties has a lengthy history, winding its way through state and federal trial and
appellate courts over several years, including an appeal to this Court. See Carey v Foley &
Lardner, LLP (On Reconsideration), unpublished per curiam opinion of the Court of Appeals,
issued August 9, 2016 (Docket No. 321207). We will forgo a recitation of much of the factual and
procedural history of the dispute because it is not relevant to this appeal.

        In an amended complaint filed in the trial court back in January 2014, plaintiff added a
cause of action for retaliation under the ELCRA, which he had never alleged in the past in either
state or federal court. The amended complaint contained eight other counts, and those claims had
been in the original complaint. With respect to the new retaliation claim, plaintiff alleged that he
complained to defendant about “discriminatory treatment . . . each time he was notified of his
annual compensation . . . since and beginning with Defendant’s 2001 fiscal year.” Plaintiff further
asserted that his complaints “were one factor that made a difference in Defendant’s compensation
determinations concerning Plaintiff” every fiscal year since 2001. Plaintiff contended that had he
“not complained, he would have been more highly compensated.” Additionally, plaintiff alleged
that defendant treated him “differently than similarly situated younger partners with respect to
compensation during each of its fiscal years since and beginning with . . . 2001 . . . because of his



                                                -1-
complaints.” Finally, plaintiff maintained that the manner in which defendant compensated him
constituted “intentional retaliation . . . for his complaints although Defendant knew or should have
known that its conduct violated the [ELCRA].”

        Defendant moved for summary disposition under MCR 2.116(C)(7), (8), and (10) with
respect to the eight original causes of action a couple of weeks before plaintiff filed his amended
complaint. After the amended complaint was filed, defendant moved to strike the amended
complaint, arguing that the amendment violated the court rules and was futile. According to
defendant, the retaliation claim could not stand scrutiny and would be subject to summary
dismissal like the other claims. The trial court granted in part and denied in part defendant’s
motion for summary disposition. The trial court denied defendant’s motion to strike the amended
complaint, along with denying summary disposition with regard to the retaliation claim.

         Defendant filed an application for leave to appeal, this Court granted the application, and
subsequently this Court issued its unpublished opinion on reconsideration that disposed of all of
plaintiff’s causes of action, except for the retaliation count. Carey, unpub op. In the earlier
opinion, the panel addressed defendant’s argument that the trial court erred by failing to strike
plaintiff’s amended complaint that raised the claim of retaliation under the ELCRA. Id. at 12. The
Court noted that plaintiff had served his state complaint on defendant on December 27, 2013, that
in lieu of filing an answer defendant moved for summary disposition on January 16, 2014, and that
plaintiff filed the amended complaint on January 31, 2014, while the summary disposition motion
was pending. Id. at 13. The Court determined that plaintiff was permitted to file the amended
complaint as a matter of course under MCR 2.118(A)(1). Id. For reasons unknown to us, the panel
then examined whether granting leave to amend would have been futile.1 Id. at 14. The Court
then held:

               Plaintiff’s retaliation claim is not futile. The retaliation claim added to
       plaintiff’s complaint alleged that he complained to defendant yearly, in conjunction
       with his receipt of notification of his compensation, that he was dissatisfied with
       the amount received and attributed the perceived disparity as being attributable to
       age discrimination. Because we find that this is a jury question, the amended
       complaint should be allowed. Defendant however, is not precluded from
       challenging plaintiff’s retaliation claim by timely filing a motion for summary
       disposition with the trial court. [Id. (emphasis added).]

The emphasized language was not part of the original opinion issued by this Court and was added
upon reconsideration after defendant, in a motion for reconsideration, raised the issue concerning




1
  Having just concluded that plaintiff could amend his complaint by right, we are at a loss to
understand why the earlier panel proceeded to address futility for purposes of analyzing whether
granting leave to amend the complaint would have been proper.


                                                -2-
a future motion for summary disposition. The panel remanded the case to the trial court for further
proceedings consistent with the opinion. Id.2

        On remand, defendant moved for summary disposition regarding plaintiff’s retaliation
claim, presenting numerous arguments in support of the motion. The trial court granted
defendant’s motion for summary disposition. The court rejected defendant’s attempt to restrict
plaintiff’s retaliation claim to events occurring three years before the filing of the amended
complaint, explaining that “under MCR 2.118(D), Plaintiff’s retaliation claim relates back to his
original complaint, which was filed on October 8, 2013.” But the trial court also rejected plaintiff’s
argument that his ELCRA claims were tolled from the date of the filing of his federal complaint
on February 28, 2011, ruling that plaintiff’s “retaliation claim cannot be tolled by the filing of the
federal lawsuit because it was never pled in the federal lawsuit.” Thus, the court concluded that
plaintiff’s “retaliation claim for each alleged adverse employment action that occurred prior to
October 8, 2010, is barred.”

        The trial court next determined that the only protected activities under the ELCRA that
could conceivably support plaintiff’s retaliation claim was an EEOC charge filed in December
2010, the federal lawsuit filed in February 2011, and the filing of the state lawsuit in October 2013.
The court then ruled that plaintiff failed to show that defendant’s compensation decisions
constituted adverse employment actions. The trial court next found that plaintiff “provided no
direct or circumstantial evidence that raises an inference that his protected activity was a
‘significant factor’ in any adverse compensation decisions after 10-8-10.” The court observed that
“the annual compensation reports demonstrate that the determination of [plaintiff’s] compensation
for 2011/2012 and forward were reflective of his diminishing performance, diminishing billable
hours, and refusal to leverage his client base.” The trial court further determined that defendant
offered legitimate, nonretaliatory reasons for its compensation decisions relative to plaintiff, i.e.,
business assessments of his performance. The court found that plaintiff had failed to show that
those reasons were pretextual or that retaliation was a motivating factor.3



2
  Earlier in the opinion, this Court noted that collateral estoppel did not bar the retaliation claim
because it had not been alleged or addressed in the federal lawsuit. Carey, unpub op at 9. The
panel also indicated that defendant had argued that plaintiff could not “establish the causal link
between the complaints and the subsequent years’ compensation decisions.” Id. The Court only
examined this issue in regard to the length of time between the protected activity and the adverse
employment actions, observing that a lengthy period can preclude the finding of a nexus between
the two events and that the determination of what constitutes a lengthy period is case specific. Id.
at 8-9. The panel concluded, “Since compensation was a yearly decision, we cannot say as a matter
of law that time alone bars this cause of action.” Id. at 9.
3
  The trial court additionally concluded that collateral estoppel barred relitigation of the issue
regarding whether defendant had legitimate reasons for its compensation decisions, where the
federal district court had ruled that defendant provided legitimate, nondiscriminatory reasons and
this Court had ratified that assessment in the earlier appeal. The court subsequently indicated that
collateral estoppel also precluded relitigation of the issue of pretext given the federal court’s
finding that pretext was not established.

                                                 -3-
        Plaintiff now appeals by right the trial court’s order granting summary disposition in favor
of defendant. Plaintiff first argues that the trial court’s rulings regarding the statute of limitations,
protected activity, causation, and collateral estoppel were all precluded by this Court’s earlier
decision. Plaintiff invokes the law of the case doctrine, maintaining that the previous panel
determined that his retaliation claim in the amended complaint was not futile and presented a jury
question.

      In Grievance Administrator v Lopatin, 462 Mich 235, 259-260; 612 NW2d 120 (2000), our
Supreme Court explained the nature and parameters of the law of the case doctrine:

                Under the law of the case doctrine, if an appellate court has passed on a
        legal question and remanded the case for further proceedings, the legal questions
        thus determined by the appellate court will not be differently determined on a
        subsequent appeal in the same case where the facts remain materially the same. The
        appellate court's decision likewise binds lower tribunals because the tribunal may
        not take action on remand that is inconsistent with the judgment of the appellate
        court. Thus, as a general rule, an appellate court's determination of an issue in a
        case binds lower tribunals on remand and the appellate court in subsequent appeals.
        [Quotation marks and citations omitted.]

        “The doctrine applies to questions specifically decided in an earlier decision and to
questions necessarily determined to arrive at that decision.” Webb v Smith, 224 Mich App 203,
209; 568 NW2d 378 (1997). We review de novo the question whether the law of the case doctrine
applies. Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001).

        Because we do not resolve the instant appeal on the basis of the statute of limitations, it is
unnecessary to assess the application of the law of the case doctrine relative to the statute of
limitations. But we do note that this Court in the earlier appeal did not specifically examine
whether the statute of limitations barred all or some of the aspects of the retaliation claim. With
respect to the elements of a retaliation cause of action, this Court’s previous reference to there
being a “jury question,” Carey, unpub op at 14, while muddying the waters, was made in the
context of determining whether the amendment of the complaint would have been futile. The
Court was essentially stating that the retaliation count was not legally insufficient on its face. To
the extent that the “jury question” language created an ambiguity relative to the law of the case,
the matter was cleared up on reconsideration when the Court added language that defendant was
“not precluded from challenging plaintiff’s retaliation claim by timely filing a motion for summary
disposition with the trial court.” Id. Because the Court ultimately determined that a summary
disposition motion could be pursued on remand, which would necessarily encompass a challenge
regarding the merits of the retaliation claim, the law of the case doctrine did not preclude the trial
court’s various rulings that summarily rejected the substance of the retaliation claim.4




4
  We do conclude that the length of time between the protected activity and the adverse
employment actions cannot, in and of itself, serve as a basis to find in favor of defendant because
that matter was addressed by this Court in the earlier appeal. Carey, unpub op at 8-9.

                                                  -4-
        Under MCL 37.2701(a), 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.” In Meyer v City of Center Line, 242 Mich App 560, 568-569; 619 NW2d 182
(2000), this Court set forth the elements of an ELCRA-based retaliation claim under MCL
37.2701(a), explaining:

               To establish a prima facie case of retaliation under the Civil Rights Act, a
       plaintiff must show (1) that the plaintiff engaged in a protected activity, (2) that this
       was known by the defendant, (3) that the defendant took an employment action
       adverse to the plaintiff, and (4) that there was a causal connection between the
       protected activity and the adverse employment action. [See also DeFlaviis v Lord
       & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997).]

        We conclude that the only issue that we need address is causation, i.e., whether there was
a causal connection between the protective activity—plaintiff’s complaints of discrimination—
and the alleged adverse employment actions—unequal compensation decisions. To establish the
element of causation, a plaintiff must show that his or her participation in protected activity
identified in the ELCRA was a “significant factor” in the employer’s adverse employment action,
not simply that a causal link existed between the two. Barrett v Kirtland Community College, 245
Mich App 306, 315; 628 NW2d 63 (2001). “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 factfinder to infer that an action
had a discriminatory or retaliatory basis.” Rymal v Baergen, 262 Mich App 274, 303; 686 NW2d
241 (2004).

        With respect to establishing a causal connection, if there is direct evidence of retaliation, a
“plaintiff can go forward and prove unlawful [retaliation] 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).
In retaliation cases, direct evidence “establishes without resort to an inference that an employer’s
decision to take an adverse employment action was at least in part retaliatory.” Cuddington v
United Health Servs, Inc, 298 Mich App 264, 276; 826 NW2d 519 (2012).

        “Absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or
her employer’s unlawful motivation to show that a causal link exists . . . .” Debano-Griffin v Lake
Co, 493 Mich 167, 176; 828 NW2d 634 (2013). In such a case, we apply the burden-shifting
framework set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d
668 (1973). Debano-Griffin, 493 Mich at 176. Under the framework, a plaintiff can present a
rebuttable prima facie case based on proofs from which a factfinder could infer that the plaintiff
was the victim of unlawful retaliation. Id. A presumption of retaliation arises if a plaintiff
establishes a prima facie case because an employer's adverse action is more likely than not based
on impermissible factors if the employer cannot otherwise justify its actions. Id. “The employer,
however, may be entitled to summary disposition if it offers a legitimate reason for its action . . .
.” Id. This “articulation requirement means that the defendant has the burden of producing
evidence that its employment actions were taken for a legitimate, [nonretaliatory] reason.” Hazle,
464 Mich at 464. “If the employer makes such an articulation, the presumption created by the
McDonnell Douglas prima facie case drops away.” Id. at 465.

                                                 -5-
         At this stage of the McDonnell Douglas analysis, in order for a plaintiff to survive a motion
for summary disposition, the plaintiff must demonstrate that the evidence in the case, when
construed in the plaintiff's favor, is sufficient to permit a reasonable trier of fact to conclude that
retaliation was a motivating factor for the adverse action. Hazle, 464 Mich at 465. “[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 retaliation].” Debano-Griffin, 493 Mich at 176 (quotation marks and
citation omitted). There are three ways that a plaintiff can demonstrate that a defendant's purported
legitimate, nonretaliatory reasons are pretextual. Id. at 180. A plaintiff can show that the reasons
had no basis in fact, that the reasons were not the actual factors motivating the decision, or that the
reasons were jointly insufficient to justify the decision. Id. But the soundness of an employer's
business judgment cannot be questioned as a means of showing pretext. Id.5

        We initially note that in Carey v Foley & Lardner, LLP, unpublished opinion of the United
States District Court for the Eastern District of Michigan, issued September 4, 2013 (Case No. 11-
10818); unpub op at 6, the federal court ruled:

              Although Plaintiff may disagree with Defendant's justifications for any
       perceived pay disparity or feel that Defendant's method of determining
       compensation is unfair, Plaintiff has not set forth facts that raise an inference that
       any such differential was based upon gender or that Defendant's reasoning is
       pretextual.

        While the federal court was not examining pretext in the context of a retaliation claim, the
court nonetheless found that defendant’s business-related reasons for compensation decisions
relative to plaintiff were not shown to be pretextual. An argument can be made that collateral
estoppel, which concerns issue preclusion on matters actually decided in a prior action, Ditmore v
Michalik, 244 Mich App 569, 577; 625 NW2d 462 (2001), defeats plaintiff’s retaliation claim
because the federal court ruled that plaintiff failed to show that defendant’s compensation
decisions were a pretext for unlawful conduct. But because the panel in the earlier appeal found
that collateral estoppel did not apply to any aspect of the retaliation claim, the law of the case
doctrine prevents us from applying collateral estoppel. See Duncan v Michigan, 300 Mich App
176, 189; 832 NW2d 761 (2013) (“Even if the prior decision was erroneous, that alone is
insufficient to avoid application of the law of the case doctrine.”).6



5
  A plaintiff cannot simply show that the employer's decision was mistaken or wrong, because the
factual dispute at issue is whether retaliatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent. Debano-Griffin, 493 Mich at 180.
6
  Previously, in affirming summary disposition of plaintiff’s age, race, and gender discrimination
claims, this Court held that “[t]he federal district court explicitly found that the reasons or
justifications provided by defendant for any disparity in pay were legitimate, nondiscriminatory
and not pretextual. As such, plaintiff’s claims under the ELCRA are precluded based on collateral
estoppel.” Carey, unpub op at 8-9. This reasoning, perhaps arguably, could have been extended
by the panel to summarily dismiss the retaliation claim, but again, the Court refused to apply
collateral estoppel to the retaliation cause of action.

                                                 -6-
        Assuming that plaintiff presented a prima facie case of retaliation, we find that defendant
provided ample evidence that its compensation determinations with respect to plaintiff were
predicated on business assessments and criticisms of his performance. Stated otherwise, defendant
articulated legitimate, nonretaliatory reasons for its compensation determinations and supported
those reasons with evidence. Plaintiff points to a litany of evidence that he claims constituted
direct and indirect evidence of retaliation and established that defendant’s reasons were pretextual.
We have scoured and scrutinized this evidence and, as a matter of law, it simply did not constitute
direct evidence of retaliation, nor did it indirectly reflect that retaliation was a motivating factor
for defendant’s compensation decisions. Plaintiff failed to demonstrate, as a matter of law, that
the business and performance-related reasons for defendant’s compensation decisions had no basis
in fact, were not the actual factors motivating the decisions, or were insufficient to justify the
decisions. In light of our holding, it is unnecessary to address the other issues raised by plaintiff
on appeal.

       We affirm. Having fully prevailed on appeal, defendant may tax costs under MCR 7.219.



                                                              /s/ Jonathan Tukel
                                                              /s/ Jane E. Markey
                                                              /s/ Brock A. Swartzle




                                                 -7-
