                          STATE OF MICHIGAN

                            COURT OF APPEALS



CYNTHIA JONES,                                                       UNPUBLISHED
                                                                     May 10, 2016
               Plaintiff-Appellant,

v                                                                    No. 327304
                                                                     Calhoun Circuit Court
MUSASHI AUTO PARTS MICHIGAN, INC.,                                   LC No. 2014-000825-CZ

               Defendant-Appellee.


Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

        Plaintiff, Cynthia Jones, appeals as of right the trial court’s order granting summary
disposition under MCR 2.116(C)(10) to defendant, Musashi Auto Parts (Musashi), on her claims
of retaliatory employment discrimination. We affirm.

                                 I. FACTUAL BACKGROUND

        Jones began employee training at Musashi in January 2008. As part of her training, she
signed a document acknowledging that she had received the handbook of policies, which
included the respectful workplace policy. Musashi’s respectful workplace policy prohibits
verbal bullying, which includes “[a]busive or offense remarks towards another associate and/or
their family; [and] spreading rumors or gossiping about another associate and/or their
family . . . .”

        Over the course of her employment, Jones took multiple leaves under the Family and
Medical Leave Act (FMLA), 29 USC 2601, et seq, because of various health conditions.
Musashi approved her requests for leave in March 2009, April 2009, and July 2009, May 2010,
and September 2010. After Jones requested to return to work in April 2011, Musashi placed her
in the environmental health and safety department to accommodate her light duty restrictions.

       Jones stated that she told the human resources director, Malcolm Satterfield, that she had
smelled liquor on her supervisor’s breath. According to Jones, she heard from colleagues that
management was angry with her, and her employment was terminated shortly thereafter. Jones
provided a recording of a conversation in which, during a discussion about how Jones was
required to wear her hair, she stated to Satterfield that it was petty and unfair that hers were the
only offenses being addressed and that she did not “run up here” when her supervisor asked her
for Halls “to cover up that liquor on his breath.”

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         Jones admitted that she received corrective actions in August 22, 2012, for
insubordination and distracting other associates, and that she was issued a “Final Warning” in
January 2012. Rhonda Robinson, Musashi’s human resources manager, testified that in
December 2012, a coworker complained that Jones was spreading gossip by making negative
remarks about another coworker’s decision to date a man of another race. Robinson investigated
and discovered that several other employees stated that Jones engaged in gossip. Based on
Jones’s previous disciplinary history and the investigation, Robinson decided that she did not
need to speak with Jones about the allegations. She typed up her notes, shared them with
Satterfield, and recommended that he terminate Jones’s employment relationship. Satterfield
testified that he signed off on Jones’s termination. The termination letter indicates that Jones
was terminated for “spreading gossip, speaking about your coworkers in a derogatory tone and
becoming argumentative with your supervisor,” which was “a violation of our Respectful
Workplace policy and cannot be tolerated.”

        In March 2014, Jones filed her complaint in this action, alleging claims of retaliatory
disability, FMLA, workers’ compensation discrimination, and claiming that her termination was
a “public policy violation.” In December 2014, Musashi filed a motion for summary disposition
under MCR 2.116(C)(10), contending that it had a legitimate nondiscriminatory reason for
terminating Jones’s employment and that Jones had not identified a clearly mandated public
policy to support her claims. Jones responded that there was evidence that Musashi treated
similarly situated employees differently and that her termination was temporally connected to the
resolution of a workers’ compensation matter. After reviewing the evidence, the trial court
granted summary disposition, determining that Jones had not provided evidence showing a
genuine issue of material fact regarding whether Musashi’s stated reason for terminating her
employment was a pretext for discrimination.

                                  II. STANDARD OF REVIEW

        This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223
(2013). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no
genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter
of law.” The trial court must consider all the documentary evidence in the light most favorable
to the nonmoving party. MCR 2.116(G)(5). A genuine issue of material fact exists if, when
viewing the record in the light most favorable to the nonmoving party, reasonable minds could
differ on the issue. Gorman, 302 Mich App at 116.

                       III. RETALIATION AGAINST PUBLIC POLICY

        Jones contends that the trial court erred by concluding that she had not provided the basis
for a claim of retaliatory discharge against public policy. We disagree.

         Even an at-will employee may not have his or her employment terminated for a reason
that is against public policy. Suchodolski v Mich Consol Gas Co, 412 Mich 692, 695; 316 NW2d
710 (1982). “Most often these proscriptions are found in explicit legislative statements
prohibiting the discharge, discipline, or other adverse treatment of employees who act in
according with a statutory right or duty.” Id. The Michigan Occupational Safety and Health Act

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(MIOSHA) requires an employer to “[f]urnish each employee, employment and a place of
employment that is free from recognized hazards that are causing, or are likely to cause, death or
serious physical harm to the employee.” MCL 408.1011. MIOSHA prohibits an employer from
discharging an employee “because the employee filed a complaint or instituted or caused to be
instituted a proceeding under or regulated by this act . . . .” MCL 408.1065.

        Other than conclusory assertions that a supervisor having alcohol on his breath “clearly”
creates a health and safety risk, Jones failed to identify any particular provision of MIOSHA that
prohibits any consumption of alcohol. While such provisions are commonly against an
employer’s internal politics, “[t]he code of ethics of a private association does not establish
public policy.” Suchodolski, 412 Mich at 696. Jones has also failed to support how her brief
verbal report, made in the middle of an argument about unrelated matters, constituted filing a
complaint. Because Jones failed to support her claim that her discharge was against public
policy, we conclude that the trial court properly granted summary disposition.

                            IV. PRETEXT FOR DISCRIMINATION

       Next, Jones contends that the trial court erred by granting summary disposition on her
various retaliatory discharge claims because she established a genuine question of material fact
regarding whether Musashi’s stated reason for terminating her employment was pretextual.
Again, we disagree.

        MCL 37.1102 provides that “[t]he opportunity to obtain employment . . . without
discrimination because of a disability is . . . a civil right.” To prevail on a discrimination claim,
the plaintiff must show that he or she (1) is disabled, (2) the disability is unrelated to his or her
ability to perform job duties, and (3) he or she has been impermissibly discriminated against.
Peden v Detroit, 470 Mich 195, 204; 680 NW2d 857 (2004). The Worker’s Disability
Compensation Act, MCL 418.801 et seq, and the FMLA also provide that an employer shall not
discharge an employee for exercising their rights under those acts. MCL 418.301(13); 29 USC
2615(b).

        Indirect evidence of employment discrimination exists if: (1) the plaintiff has shown a
prima facie case of employment discrimination, and (2) the employer cannot articulate a
legitimate, nondiscriminatory reason for its employment decision, or (3) the employer has
articulated such a reason, but the plaintiff has shown that the employer’s reason is merely a
pretext. Lytle v Malady (On Rehearing), 458 Mich 153, 172-174; 579 NW2d 906 (1998). Once
the employee has established a prima facie case, the employer has the burden to articulate
legitimate reasons for terminating the employee’s employment. Id. If the employer does so, the
employee must demonstrate that the employer’s reason was merely a pretext for unlawful
discrimination. Id. at 174. A party proves that the employer’s reason for termination is
pretextual “(1) by showing that the reason(s) had no basis in fact, (2) by showing that they were
not actual factors motivating the decision, or (3) if the reason(s) were motivating facts, by




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showing that they were jointly insufficient to justify the decision.” Meagher v Wayne State
Univ, 222 Mich App 700, 712; 565 NW2d 401 (1997).1

        In this case, Musashi stated a legitimate, nondiscriminatory reason for terminating
Jones’s employment—that Jones violated Musashi’s respectful workplace policy by spreading
gossip after Musashi gave Jones a final warning about such behavior. Jones asserted that
Musashi’s stated reason was pretextual because Musashi treated similarly situated employees
differently and because the resolution of her workers’ compensation claim was temporally
connected to her termination.

       To create an inference of discrimination on the basis of disparate treatment, a plaintiff
must show that all the relevant aspects of employment between the plaintiff and another
employee were “nearly identical,” but the plaintiff was treated differently. Town v Mich Bell Tel
Co, 455 Mich 688, 700; 568 NW2d 64 (1997). Jones alleged that Musashi treated two other
employees more leniently because they both had received more discipline than Jones. However,
the other employees’ offenses were not identical to Jones’s—both employees had multiple
offenses for attendance and poor quality work, but neither had any offenses for violating the
respectful workplace policy. Additionally, Robinson named several other specific employees
that Musashi fired for violating the respectful workplace policy. One of them was fired on a first
offense. We conclude that the trial court properly determined that Jones did not establish a
question of fact regarding whether disparate treatment supported an inference of discrimination.

         Additionally, temporal proximity between an action and retaliatory act may establish that
the action had a discriminatory basis. Rymal v Baergen, 262 Mich App 274, 303; 686 NW2d
241 (2004). However, “[s]omething more than a temporal connection between protected conduct
and an adverse employment action is required to show causation where a discrimination-based
retaliation is claimed.” West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003). A
close temporal relationship may support a claim, but it may not be the sole basis of the claim. Id.
at 186-187.

        Contrary to Jones’s assertion, the trial court did not require temporal proximity evidence;
it merely stated that “the law is clear that ‘temporal proximity’ alone seldom proves causation,”
which is an accurate statement. The trial court went on to note that even considering temporal
proximity, Jones did not provide evidence to support an inference. Like in West, Jones did not
show any evidence that Musashi was upset by her repeated requests for leave, disability claims,
or accommodation. See West, 469 Mich at 187 (stating that “plaintiff has not shown any reaction
or conduct on the part of his supervisor that reasonably suggests that they were upset by the fact
that plaintiff reported an assault to the police.”) To the contrary, Jones’s testimony and the
documentary evidence both indicate that Musashi repeatedly accommodated Jones’s disability
leaves, and Robinson testified that Musashi facilitated Jones’s workers’ compensation claims
because it did not have a basis to contest them. Jones’s evidence of disparate treatment failed,


1
 This burden-shifting framework also applies to retaliation claims under the Worker’s Disability
Compensation Act, see Cuddington v United Health Servs, Inc, 298 Mich App 264, 276-277; 826
NW2d 519 (2013), and the FMLA, see Edgar v JAC Prods, Inc, 443 F3d 501, 508 (CA 6, 2006).


                                                -4-
and Jones offered no further evidence of discrimination. Even presuming that the resolution of
Jones’s workers’ compensation claim was temporally close to her termination, that evidence
alone did not support Jones’s claim.

        The trial court did not err in concluding that Jones did not produce evidence that
Musashi’s decision was a pretext for unlawful discrimination. Jones produced no evidence that
there was a lack of factual basis for the decision, that Musashi was not actually motivated by
articulated reason, or that these reasons were insufficient to support terminating her employment.
Though Jones argues that the investigation into her conduct relied heavily upon the word of
others, this does not in any way call into question Musashi’s conclusion that there were
complaints that Jones was gossiping about coworkers in the workplace. Although Jones argues
that under Kocsis v Multi-Care Management Inc, 97 F3d 876, 883 (CA 6, 1996), pretext can be
shown by evidence that the employer never before used the motivating reason for a prior
termination, Kocsis says no such thing and Jones has provided no other law to support her
theory.

        We conclude that the trial court did not err by determining that Jones failed to show that
similarly situated employees were treated differently or that Jones had failed to establish an
inference of discrimination from temporal proximity. The trial court properly granted summary
disposition because Jones had failed to show a genuine issue of material fact regarding whether
Musashi’s reason was a pretext.

       We affirm.

                                                            /s/ Joel P. Hoekstra
                                                            /s/ Peter D. O’Connell
                                                            /s/ Christopher M. Murray




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