                           STATE OF MICHIGAN

                            COURT OF APPEALS



DENISE ANFIELD,                                                      UNPUBLISHED
                                                                     January 22, 2015
               Plaintiff-Appellant,

v                                                                    No. 317984
                                                                     Wayne Circuit Court
SECRETARY OF STATE,                                                  LC No. 12-005783-CD

               Defendant-Appellee.


Before: MURRAY, P.J., and SAAD and K. F. KELLY, JJ.

PER CURIAM.

        In this employment discrimination case, plaintiff appeals as of right the trial court’s order
granting defendant Secretary of State’s motion for summary disposition and dismissing her
wrongful termination claim filed under the Elliot-Larsen Civil Rights Act (ELCRA), MCL
37.2101 et seq. Plaintiff was terminated for her role in an acquaintance’s fraudulently obtaining
a commercial driver’s license with a hazardous materials endorsement. Plaintiff claims she made
a mistake and that defendant did not fire others similarly situated, but instead fired her because
she is black and a woman. Because plaintiff failed to present the evidence necessary to establish
a prima facie case of disparate treatment, we affirm.

                                       I. BACKGROUND

         As the following makes clear, the facts of this case are straightforward. Plaintiff is a
former employee of the Department of State. Her nearly 24-year career with the Department
started in 1986 and ended with her termination on October 22, 2010. At the time she was fired,
plaintiff served as a “DOS Aide-E” at the Secretary of State branch office on East Eight Mile
Road in Detroit. A DOS Aide-E is a clerk whose job duties encompass assisting customers with
transactions including, among others, the issuance of driver’s licenses and the processing of
related documents. Relevant to this case is plaintiff’s role in processing documents related to the
issuance of a Commercial Driver’s License (CDL) for an acquaintance. Before relating those
details, however, a brief explanation of that multi-step process bears mention.

        The process to obtain a CDL commences when the applicant takes a knowledge test,
administered by a clerk like plaintiff. Upon completion of the test (and the fulfillment of certain
other requirements), the applicant obtains a temporary instruction permit and reports to a third-
party vendor (also called a third-party tester or “TPT”) for a driving test. Successful completion
of the driving test results in the applicant’s receiving a Driving Skills Test Certificate, known as
                                                -1-
a DSTC-TPT-010 (“DSTC”). The applicant then presents the DSTC to a clerk for validation and
processing. At this time, the clerk also performs any federal checks necessary to obtain certain
endorsements, such as a hazardous materials endorsement. If everything is proper, the clerk
takes the applicant’s picture and issues the final CDL by mail. It was plaintiff’s participation in
this process with an acquaintance named Stephen Belser that ostensibly led to her firing.

        The conduct in question stretches back to November 26, 2008. On that day, Belser
returned to plaintiff’s branch office to obtain his CDL. He had apparently completed his driving
test earlier, having already passed the knowledge test twice, and on this occasion presented
plaintiff with his DSTC. Plaintiff processed the DSTC and gave Belser a “paper license” which
he could presumably use until receiving the final CDL in the mail. The license contained a
hazardous materials endorsement.

        The next workday, plaintiff’s supervisor informed her that Belser’s DSTC was a copy,
and clerks are only to accept originals. So plaintiff contacted Belser, who delivered another
DSTC to plaintiff the following morning in the branch office parking lot before work started.
This DSTC was altered, however—a fact plaintiff knew because Besler indicated “he had made
some changes” when plaintiff asked why he didn’t provide this version in the first place.
Plaintiff accepted the DSTC anyway, which she gave to her supervisor with the
acknowledgment, “It looks like it’s been altered.”

        An internal investigation ensued. The first certificate was found counterfeit, the second
altered. The investigation ultimately determined that plaintiff had “knowingly ignored” a
questionable DSTC as a favor to Belser. The investigation concluded that as a consequence,
Belser fraudulently obtained a CDL rendering him eligible to transport hazardous materials,
which posed a significant risk to public safety. Plaintiff’s conduct in this matter allegedly
violated several provisions of the Department of State Employees Handbook and Civil Service
Rules, and she was terminated on October 22, 2010.1 Plaintiff filed a grievance, maintaining that
she had simply made a mistake, but an arbitrator subsequently upheld plaintiff’s termination.

                                      II. PROCEEDINGS

       Acting in propria persona, plaintiff filed a two-count complaint on April 30, 2012. Only
Count II is germane to this appeal.2 That count specifically alleges disparate treatment based on
race and gender discrimination in violation of the ELCRA. During discovery, plaintiff identified
four Department employees whom she claimed either were not fired or were permitted to return
to work despite conduct similar to her own. Three were men—two white and one black, while


1
  Plaintiff’s violations included: wanton or willful neglect in the performance of her duties,
violation of the duty to report known fraudulent activity, providing favors to the general public,
conduct unbecoming an employee, and violation of the prohibition against processing
transactions for friends or relatives.
2
 Count I impugned the arbitrator’s impartiality and was dismissed following defendant’s first
motion for summary disposition.


                                                -2-
the fourth was a white woman. Their alleged misconduct variously included taking bribes,
accepting forged documents, and waiting on family members.

        At the close of discovery, defendant moved for summary disposition. Defendant argued
that plaintiff based her allegations on inadmissible hearsay and had otherwise failed to establish a
prima facie case of disparate treatment where the other employees’ situations involved different
supervisors, job titles, work locations, and conduct. Defendant added that public safety
legitimately motivated its decision to fire plaintiff.

        Plaintiff responded—through counsel this time—that other employees retaining their jobs
despite accepting bribes, accepting forged documents, and waiting on family members was
sufficiently similar to her own conduct to expose the real reason for her firing: her race and her
gender. Plaintiff cited as proof the fact that the same ultimate decision-maker, i.e., the Human
Resources Office, was involved in all these employment decisions, and that defendant waited
until two years after the incident to fire her, which decision defendant based on an inadequate
investigation and Belser’s inconsistent statements.

       Following a hearing, the trial court rejected plaintiff’s arguments. The court noted that
three of the employees at issue held positions different than plaintiff’s and the fourth had
engaged in substantially different and less egregious conduct that did not endanger public safety.
Accordingly, the court concluded plaintiff could not establish a prima facie case of disparate
treatment. Defendant’s motion was granted and plaintiff’s claim was dismissed. Plaintiff then
moved for reconsideration, this time identifying the misconduct of a fifth co-worker, but the
court denied that motion as well. Plaintiff now presents this appeal.

                                         III. ANALYSIS

        Plaintiff maintains she established a prima facie case of disparate treatment because other
Department employees retained their jobs despite engaging in substantially similar conduct at
least as serious as her own.

                                 A. STANDARD OF REVIEW

       The trial court granted summary disposition under MCR 2.116(C)(10). We review a trial
court’s ruling on a motion for summary disposition under that subrule de novo. McCoig
Materials, LLC v Galui Const, Inc, 295 Mich App 684, 693; 818 NW2d 410 (2012). “A motion
for summary disposition pursuant to MCR 2.116(C)(10) should be granted when there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”
Curry v Meijer, Inc, 286 Mich App 586, 590; 780 NW2d 603 (2009) (citation omitted). “A
genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ.” West v
Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In reviewing this issue, we
consider all of the pleadings, affidavits, depositions, admissions and other documentary
evidence. Corely v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). “Where the
burden of proof rests with the nonmoving party, that party must respond with documentary
evidence to demonstrate the existence of a genuine issue of material fact for trial.” Curry, 286
Mich App at 591 (citation omitted). Such evidence must be admissible in form; opinions,

                                                -3-
conclusory denials, unsworn averments, and inadmissible hearsay won’t cut it. SSC Assoc Ltd
Partnership v Gen Retirement Sys of the City of Detroit, 192 Mich App 360, 364; 480 NW2d 275
(1991). If a nonmoving party’s response is deficient in this way, judgment for the moving party
results. Curry, 286 Mich App at 591 (citation omitted).

       To the extent plaintiff raises arguments contained in her motion for reconsideration, our
review is for an abuse of discretion. Charbeneau v Wayne Co Gen Hosp, 158 Mich App 730,
733; 405 NW2d 151 (1987).

                                         B. THE ELCRA

        The ELCRA forbids, among other things, an employer from discharging an individual
because of her race or age. MCL 37.2202(1)(a). Two broad categories of claims exist under this
section: “disparate treatment” and “disparate impact” claims. Wilcoxon v Minnesota Mining &
Mfg Co, 235 Mich App 347, 358; 597 NW2d 250 (1999). Plaintiff alleges only the former.

         A claim of disparate treatment is a claim for intentional discrimination. Meagher v
Wayne State Univ, 222 Mich App 700, 709; 565 NW2d 401 (1997). It may be proven by direct
or circumstantial evidence. Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 132;
666 NW2d 186 (2003). Because plaintiff presents only circumstantial evidence, we employ the
familiar McDonnell Douglas burden-shifting test. Id. at 133-134, citing McDonnell Douglas
Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). The test has three parts: (1)
the plaintiff must first make out a prima facie case of discrimination; (2) if the plaintiff is
successful, the burden shifts to the defendant to put forth a legitimate, nondiscriminatory reason
for its actions; (3) if the defendant presents such a reason, the burden shifts back to the plaintiff
to expose the proffered reason as a mere pretext. Sniecinski, 469 Mich at 134.

        To establish a prima facie case of disparate treatment employment discrimination, the
employee must show, among other things, that “others, similarly situated and outside the
protected class [of which the employee is a member], were unaffected by the employer’s adverse
conduct.” Town v Michigan Bell Tel Co, 455 Mich 688, 695; 568 NW2d 64 (1997) (opinion by
BRICKLEY, J.).3 Another employee is similarly situated if “all of the relevant aspects of the
[other employee’s] employment situation were nearly identical to those of the plaintiff’s
situation.” Smith v Goodwill Indus of West Mich, Inc, 243 Mich App 438, 449; 622 NW2d 337
(2000) (quotation marks and citations omitted). A showing that “all relevant aspects” were
nearly identical does not mean there must be “an exact correlation” between the employment
situations. Ercegovich v Goodyear Tire & Rubber Co, 154 F3d 344, 352 (CA 6, 1998) (citation



3
  Although a prima facie case of employment discrimination contains four elements, defendant
contests only the one listed above. See Town, 455 Mich at 695 (a prima facie case of
employment discrimination requires evidence 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.”).


                                                -4-
omitted).4 Rather, “the plaintiff and the employee with whom the plaintiff seeks to compare
himself must be similar in all of the relevant aspects.” Id. (emphasis in original, citation
omitted); accord Town, 455 Mich at 699-700, and Smith, 243 Mich App at 449. While courts
must make a case-by-case determination on this score, relevant considerations in the disciplinary
context may include whether the employees dealt with the same supervisor, were subject to the
same standards, or were engaged in the same conduct without circumstances that distinguish
their conduct or mitigate their employer’s treatment of them for it. Id., quoting Mitchell v Toledo
Hosp, 964 F2d 577, 583 (CA 6, 1992).

        Before addressing plaintiff’s specific claims, we reject plaintiff’s preliminary argument
that the trial court improperly required her to demonstrate that she was similarly situated to other
employees “in all respects” and failed to apply the allegedly broader “in all relevant aspects”
analysis of Ercegovich to a disciplinary case like this one. The trial court’s opinion flatly
contradicts this accusation. Indeed, the court not only articulated the correct standard, but also
reviewed the relevant conduct and job functions at issue. Smith, 243 Mich App at 449-450.
Moreover, the Ercegovich decision, which is not binding, Chambers v Trettco, Inc, 463 Mich
297, 313; 614 NW2d 910 (2000), sets forth a standard no different than what we articulated in
Smith. Plaintiff’s argument is without merit.

                            C. PLAINTIFF’S PRIMA FACIE CASE

        In her response below, plaintiff identified four coworkers as similarly situated employees
who were not fired or were permitted to return despite their misconduct: (1) Eric Semenjunk, (2)
Joe Toth, (3) Marvin Berry, and (4) Jenna Jean. Plaintiff claims both race and gender
discrimination with respect to Semenjunk and Toth, gender discrimination with respect to Berry,
and race discrimination with respect to Jean. None of the evidence plaintiff cites was properly
submitted with her response to defendant’s summary disposition motion, however, since it all
suffers from the same fatal flaw: inadmissibility.

         Indeed, by plaintiff’s own admission, the only way she knows of her co-workers’
misconduct is through generic “state gossip.” Even worse, she offers nothing about the
circumstances of these nondescript disclosures, let alone the specific sources of it. At least one
federal court has aptly described such “stray gossip” as “rank hearsay,” Clark v APAC Mid-S,
Inc, 912 F Supp 2d 1273, 1291 (ND Ala, 2012), and we are hard pressed to conclude otherwise
here. See In re Utrera, 281 Mich App 1, 18; 761 NW2d 253 (2008) (statements made out of
court and offered for their truth are generally inadmissible hearsay absent an exception). Absent
more, then, this evidence is inadmissible and incapable of sustaining plaintiff’s burden. SSC
Assoc Ltd Partnership, 192 Mich App at 364.




4
 Michigan courts may look to federal court interpretations of the counterpart federal statute
when interpreting provisions of the ELCRA. Chambers v Trettco, Inc, 463 Mich 297, 313; 614
NW2d 910 (2000).


                                                -5-
        While we may affirm on this ground alone,5 it bears mention that the alleged substance of
this gossip wouldn’t help plaintiff anyway. As for the men, plaintiff accuses Semenjunk of
accepting bribes while administering road tests, and accuses Toth and Berry of accepting forged
documents from “foreigners.” However, even if true, plaintiff admits that, except for several
isolated exceptions, each worked at a different location than her and held a different position
than her (they were managers). And while plaintiff alleges that these co-workers were subject to
the same investigation, she cites no evidence to support these contentions. Her ipse dixit is not
enough. Mudge v Macomb Co, 458 Mich 87, 104; 580 NW2d 845 (1998).

        In contrast, defendant points to the Department Handbook, which specifically provides
that supervisory employees are subject to different standards. Even the Handbook’s list of
terminable offenses reveals that the proscribed conduct ostensibly applying to all employees
“may result in immediate discharge.” (Emphasis added.) The record reveals the results of the
Department’s thorough investigation of plaintiff that led to her termination. But it contains no
such information concerning the circumstances of the other male employees’ misconduct. Thus,
the evidence is insufficient to make out a prima facie case, let alone undercut defendant’s
proffered reason for filing plaintiff.6

        Plaintiff’s reliance on Jean’s situation fares no better. While during her deposition
plaintiff accused Jean of waiting on family members, she accuses Jean of a whole host of
wrongdoings on appeal (including, for example, falsifying documents and rendering special
favors to the public). While those wrongdoings were set forth in an exhibit presented below,
plaintiff did not argue them before the trial court. Her argument on this score is therefore not
properly before us. Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791
(1992).

        Regardless, Jean was fired for her misconduct, and only subsequently reinstated after an
arbitration hearing. Her continued employment therefore was not defendant’s decision, and it
cannot constitute disparate treatment. Nevertheless, processing transactions for family members,
even fraudulently, is hardly akin to enabling the potential transport of hazardous materials.
Where plaintiff otherwise introduced no evidence that Jean was treated differently than her, this
argument is a nonstarter.




5
  See Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 82; 592 NW2d 112
(1999) (“This Court may affirm a decision of a trial court for reasons different than those relied
on by the trial court.”).
6
  Plaintiff’s only argument that defendant’s proffered reason, i.e., public safety, was not based in
fact or actually motivated its decision is the nearly two-year delay between the incident and her
termination. But this alone does not cast doubt on defendant’s reason, and is certainly not
tethered to any discriminatory animus. To the contrary, it appears a thorough investigation
occasioned this delay, which was appropriate considering the drastic disciplinary measure
employed.


                                                -6-
        Finally, plaintiff identifies the misconduct of a fifth co-worker by the name of Nancy
Luna-Rodriguez whom she claims was similarly situated to her. Luna-Rodriguez was apparently
disciplined for botching too many cashier transactions. But this is not what plaintiff argued in
her response below. Instead, plaintiff claimed that discovery related to this employee was
incomplete. It was not until her motion for reconsideration that plaintiff raised the arguments she
now presents on appeal. An attempt like this to take a second bite at the apple is improper,
however, and the trial court was right to preclude it. See Charbeneau, 158 Mich App at 733
(“We find no abuse of discretion in denying a motion resting on a legal theory and facts which
could have been pled or argued prior to the trial court’s original order.”).

        But even setting that aside, mishandling cash is not the same as participating in fraud that
puts public safety at risk. And, again, plaintiff failed to present evidence of other circumstances
surrounding Luna-Rodriguez’s disciplinary investigation and process, let alone of her race—a
key component in any racial discrimination claim. Plaintiff and Luna-Rodriguez are not
similarly situated on this record.

       Affirmed.

                                                             /s/ Christopher M. Murray
                                                             /s/ Henry William Saad
                                                             /s/ Kirsten Frank Kelly




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