                           STATE OF MICHIGAN

                           COURT OF APPEALS



GREGORY PERTTUNEN,                                   UNPUBLISHED
                                                     March 13, 2018
              Plaintiff-Appellant,
and

SHELLY HOLLOWAY,

              Plaintiff,

v                                                    No. 333014
                                                     Wayne Circuit Court
CITY OF LIVONIA,                                     LC No. 14-007990-CD

              Defendant-Appellee.


GREGORY PERTTUNEN,

              Plaintiff-Appellee,
and

SHELLY HOLLOWAY,

              Plaintiff,


v                                                    No. 334594
                                                     Wayne Circuit Court
CITY OF LIVONIA,                                     LC No. 14-007990-CD

              Defendant-Appellant.


Before: SAWYER, P.J., and MURRAY and STEPHENS, JJ.

PER CURIAM.




                                          -1-
         In this civil rights action, plaintiffs Gregory Perttunen (plaintiff) and Shelly Holloway
(Holloway)1 alleged that the defendant City of Livonia’s Police Department (defendant)
discriminated against them based on their gender. Plaintiff specifically pled that he was
improperly disciplined by defendant as part of defendant’s effort to use a male to shield against
an anticipated gender discrimination lawsuit filed by Holloway. In docket number 333014,
plaintiff appeals as of right the circuit court’s order that granted defendant’s motion for summary
disposition of his gender discrimination claim. In docket number 334594, defendant appeals as
of right the circuit court’s order that denied defendant’s motion for sanctions against plaintiff for
filing a frivolous action. We affirm in both appeals.

        The factual predicate of plaintiff’s gender discrimination claim centers around
defendant’s investigation of an incident that occurred on June 7, 2011, that led to plaintiff and
Holloway being disciplined, and a conversation heard by Sergeant and Union Representative
Patrick Moug during the investigation where Captain Benjamin McDermott referred to plaintiff
as “collateral damage.” The incident, described as a “stand-by,” was when Holloway and
plaintiff were reported to have been parked behind a local business while on-duty for over an
hour engaged in conversation. The incident was part of a more extensive investigation focused
on Holloway and claims of her dereliction of duty. It also led to plaintiff being further
investigated and called into a meeting with his supervisors to review his in-car video recordings
that documented other periods of inactivity. Plaintiff claimed that after his meeting with
supervisors about the stand-by, Moug told him, “McDermott stated they had to go after him to
protect the Department from a lawsuit by Shelly Holloway” and that “[b]ecause Shelley [was] a
female” the department was “going to have to investigate [plaintiff] because if” they did not,
“her potential lawsuit down the road [would] look stronger.”

        On June 29, 2011, plaintiff submitted a letter to McDermott admitting with explanation to
extensive periods of inactivity where he made himself unavailable during his patrol shift.
Plaintiff later received a charging letter from Chief of Police Robert Stevenson wherein plaintiff
was advised that he was found to be in violation of multiple department rules and regulations.
Plaintiff initially wanted to have a “chief’s hearing” where he could have explained his situation
to Chief Stevenson. However, he testified that he was dissuaded from a hearing by Chief
McDermott. According to plaintiff, McDermott pulled him into the lieutenant’s office and told
him, “Don’t take this personal, it’s all business” and “I’m not going to try to talk you out of a
chief’s hearing, but the chief has said he wants me to add up all your downtime and double it or
you can take the five days.” Thereafter, Moug also informed plaintiff that, “if he accepted five
(5) days off they could be done with this.” Thereafter, plaintiff sent Chief Stevenson a “Waiver
of Chief Hearing.” Notice of a five-day suspension from Chief Stevenson followed on July 25,
2011. Plaintiff served his suspension and retired soon thereafter. Three years later, he and
Holloway filed this suit.2 Defendant motioned for summary dismissal of the complaint. During


1
    Holloway settled her case with defendant and is not a party to this appeal.
2
  John Nolan was also an original complainant. His claims for wrongful termination and
constructive discharge in violation of the Whistleblower’s Protection Act were severed from this
suit prior to defendant’s motion.


                                                  -2-
discovery, McDermott acknowledged telling plaintiff that he was “collateral damage” but
explained the statement to mean that, “[h]ad it not been for the investigation into Holloway, and
the findings made in that investigation, [plaintiff’s] misconduct would likely not have been
discovered.” Chief Stevenson also submitted an affidavit averring that he was the sole person
responsible for plaintiff’s discipline and that plaintiff’s gender was never a consideration in his
decision. The circuit court granted the motion as to plaintiff, but denied it as to Holloway. It
held that plaintiff did not present evidence of direct discrimination, that the collateral damage
testimony was inferential at best, and plaintiff failed to present evidence of similarly situated
female employees. These issues form the basis of plaintiff’s appeal in docket number 333014.

        After its motion was granted against plaintiff, defendant filed a motion requesting
sanctions arguing that plaintiff’s gender discrimination claim was frivolous and devoid of
arguable legal merit. The circuit court disagreed and denied the motion. That denial forms the
basis of defendant’s appeal in docket number 334594.

  I. SUMMARY DISPOSITION OF PLAINTIFF’S GENDER DISCRIMINATION CLAIM

                                 A. STANDARD OF REVIEW

        Defendant requested summary disposition under MCR 2.116(C)(8) and (C)(10). The
court did not state on the record, or in its order, under which subsection it granted summary
disposition. We will review the court’s decision under MCR 2.116(C)(10) because the court
considered evidence outside the pleadings in deciding defendant’s motion. See Peters v Dept of
Corr, 215 Mich App 485, 487-488; 546 NW2d 668 (1996) (“A motion for summary disposition
under MCR 2.116(C)(8) relies on the pleadings alone, . . .).

       “We review a grant of summary disposition de novo.” Id. at 486. “A motion under MCR
2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich 109,
120; 597 NW2d 817 (1999). “Affidavits, pleadings, depositions, admissions, and documentary
evidence are considered in reviewing a motion for summary disposition pursuant to MCR
2.116(C)(10), and the evidence is viewed ‘in the light most favorable to the party opposing the
motion.’ Summary disposition is proper under MCR 2.116(C)(10) if the documentary evidence
shows that there is no genuine issue of material fact, and the moving party is entitled to judgment
as a matter of law.” Universal Underwriters Group v Allstate Ins Co, 246 Mich App 713, 720;
635 NW2d 52 (2001) quoting Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). “Circumstantial evidence may be sufficient to establish a case. However, parties
opposing a motion for summary disposition must present more than conjecture and speculation
to meet their burden of providing evidentiary proof establishing a genuine issue of material fact.”
Libralter Plastics, Inc v Chubb Group of Ins Companies, 199 Mich App 482, 486; 502 NW2d
742 (1993) (internal citation omitted).

                                         B. ANALYSIS




                                                -3-
        In docket number 333014, plaintiff argues the circuit court erred in summarily dismissing
his gender discrimination claim under the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., 3
because he presented direct evidence of discrimination by defendant and defendant’s
administration that he was disciplined only to avoid the implications of a gender discrimination
suit from Holloway.

         The circuit court held:

                 Plaintiff has not mete [sic] out a prima fascia [sic] case. First we do not
         have direct evidence of discrimination. The closest we come to it relate [sic] to
         the collateral damage issue. This evidence requires the fact finder to draw an
         inference of discriminatory intent regarding him. In other words, the relevancy of
         the comment is only provided by inference. And we refer you to the Johnson
         versus Kroger4 case we talked about the other day.

                                              * * *

         . . . Further, Plaintiff had not presented evidence that similarly situated females
         were treated differently. In fact, the comparable female, Plaintiff Holloway was
         more severely disciplined.

         Michigan’s Civil Rights Act prohibits an employer from doing any of the following:

                 (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate
         against an individual with respect to employment, compensation, or a term,
         condition, or privilege of employment, because of religion, race, color, national
         origin, age, sex, height, weight, or marital status. [MCL 37.2202(1)(a)].

Discrimination under MCL 37.2202 may be shown through direct or indirect evidence. Hazle v
Ford Motor Co, 464 Mich 456, 461-463; 628 NW2d 515 (2001). “[D]irect evidence” is
“evidence which, if believed, requires the conclusion that unlawful discrimination was at least a
motivating factor in the employer’s actions.” Id. at 462 (citation and quotation marks omitted).
Such evidence “proves impermissible discriminatory bias without additional inference or
presumption.” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 607 n 34; 886 NW2d 135
(2016). “Direct evidence of discrimination may consist of statements made by a decision maker
which show an illegal motive for employment decisions.” Kresnak v City of Muskegon Hts, 956
F Supp 1327, 1335 (WD Mich, 1997). On the other hand, “threats and intimidation by a person

3
 Defendant urges this Court to disregard a number of plaintiff’s exhibits on appeal, specifically
A through G, L and M. This Court’s review is limited to evidence actually presented to the trial
court at the time of its ruling on summary disposition. Innovative Adult Foster Care, Inc v
Ragin, 285 Mich App 466, 476; 776 NW2d 398 (2009). As a result, we did not consider exhibits
A, B, E through G, L and M. Other exhibits not mentioned were presented to the court by
defendant.
4
    Johnson v Kroger Co, 319 F3d 858, 865 (CA 6, 2003).


                                                 -4-
who is not in a position to make the relevant employment decision is not direct evidence of
discrimination.” Id.

        In the absence of direct evidence of discrimination under the ELCRA, a plaintiff “must
then proceed through the familiar steps set forth in McDonnell Douglas. The McDonnell
Douglas approach allows a plaintiff to ‘present a rebuttable prima facie case on the basis of
proofs from which a factfinder could infer that the plaintiff was the victim of unlawful
discrimination.’ ”5 Hazle, 464 Mich at 462, quoting DeBrow v Century 21 Great Lakes, Inc, 463
Mich 534, 537-538; 620 NW2d 836 (2001) (emphasis in original). To establish a prima facie
case of discrimination under the McDonnell Douglas approach, a plaintiff must show he 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.” Town v Michigan Bell Tel Co, 455 Mich 688, 695; 568
NW2d 64 (1997). “If a plaintiff establishes a prima facie case of discrimination based on either
age or sex, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason
for the adverse employment action taken.” Major v Village of Newberry, 316 Mich App 527,
541; 892 NW2d 402 (2016). A plaintiff, in turn, must show that the defendant’s reasons are
really pretext for discrimination. Hazle, 464 Mich. at 465–466.

         A plaintiff can establish that a defendant's articulated legitimate,
         nondiscriminatory reasons are pretexts (1) by showing the reasons had no basis in
         fact, (2) if they have a basis in fact, by showing that they were not the actual
         factors motivating the decision, or (3) if they were factors, by showing that they
         were jointly insufficient to justify the decision. [Feick v Monroe Co, 229 Mich
         App 335, 343; 582 NW2d 207 (1998).]

“Under either the direct evidence test or the McDonnell Douglas test, a plaintiff must establish a
causal link between the discriminatory animus and the adverse employment decision.”
Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 134-135; 666 NW2d 186
(2003).

       Plaintiff argues that the statements made by Moug and McDermott about his discipline
being collateral damage were direct evidence of discrimination by defendant’s police department
because the statements showed that plaintiff was singled out and treated adversely on account of
his gender and constituted admissions against interest. We disagree.

        First, the record gives way to multiple interpretations of the meaning of “collateral
damage.” Moug understood the phrase to mean that defendant had to discipline plaintiff to
weaken a future claim of gender discrimination by Holloway. Plaintiff interpreted the phrase as
meaning that he was only investigated and disciplined to cover-up defendant’s discriminatory
conduct toward Holloway. McDermott testified that he meant the exposure of plaintiff’s
inactivity that led to subsequent discipline was a collateral consequence of the investigation into



5
    McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).


                                                -5-
Holloway’s dereliction. Under these circumstances, we cannot attach one meaning to the phrase
to find that it was direct evidence of discrimination.

        Second, the discriminatory intent cannot be attributed to the person responsible for
plaintiff’s discipline. “[T]he ultimate factual inquiry in any discrimination case is whether
unlawful discrimination was a motivating factor in the employer’s decision.” Hazle, 464 Mich at
470. Chief Stevenson was the ultimate decision-maker and therefore, the person responsible to
decide whether plaintiff would be disciplined and what that discipline would look like. Chief
Stevenson indicated in plaintiff’s formal charge letter, that his decision to charge plaintiff was
based on the investigation into plaintiff’s periods of inactivity and plaintiff’s June 29, 2011
statement. In plaintiff’s suspension letter, Chief Stevenson indicated that his determination that
plaintiff be suspended was based on a review of the incident, plaintiff’s correspondence in which
he admitted rule infractions and plaintiff’s choice to not have a chief’s hearing. On this record, it
takes an inference to conclude that plaintiff was disciplined based on his gender because Chief
Stevenson did not mention plaintiff’s gender as the reason for his discipline. In other terms,
McDermott’s statement, even if believed, does not require the conclusion that unlawful
discrimination was a motivating factor in Chief Stevenson’s actions. Hazle, 464 Mich at 461-
463. Further shown is that McDermott was not the person in a position to make the relevant
employment decision. Kresnak, 956 F Supp at 1335.

        Even still, plaintiff argues a “cat’s paw” theory, whereby he contends, defendant “may be
liable for the acts of a biased subordinate,” here, McDermott, “even if that subordinate is not the
formal decisionmaker.”6 EEOC v BCI Coca-Cola Bottling Co of Los Angeles, 450 F3d 476, 482
(CA 10, 2006). The theory has not been formally adopted by the courts of this State and fails for
that reason alone. Even with the application of “cat’s paw” however, plaintiff fails to show, as
required, that McDermott “played a meaningful role in the decision” to discipline plaintiff.
Ercegovich v Goodyear Tire & Rubber Co, 154 F3d 344, 354-355 (CA 6, 1998). The record
shows that McDermott was only charged with the initial investigations of Holloway, plaintiff,
Zoski and Keon, and with reporting the results to Chief Stevenson while Chief Stevenson
determined whether plaintiff would be disciplined. This record corroborates Chief Stevenson’s
affidavit that while others gathered information about plaintiff’s conduct, it was his decision
alone to determine if any discipline would occur, and that plaintiff’s gender played no role
whatsoever in his decision to discipline. There is otherwise no evidence that McDermott met
with Chief Stevenson regarding plaintiff’s discipline, gave recommendations as to discipline, or
sent correspondence regarding discipline.

        Plaintiff offers no complementary claim that Moug’s and McDermott’s statements were
indirect evidence of discrimination. The oversight of not including this analysis also means
plaintiff fails to rebut defendant’s articulated nondiscriminatory reason for its decision to



6
  “In the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased
subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a
deliberate scheme to trigger a discriminatory employment action.” EEOC v BCI Coca-Cola
Bottling Co of Los Angeles, 450 F3d 476, 484 (CA 10, 2006).


                                                -6-
discipline plaintiff. Feick, 229 Mich App at 343. Plaintiff’s gender discrimination claim fails for
a want of evidence of discriminatory intent attributable to the decision-maker in this case and for
failure to rebut defendant’s business judgment.

        Plaintiff’s statement of questions presented states that the circuit court also erred in
granting defendant summary disposition on plaintiff’s public policy claim however, plaintiff fails
to brief or even mention this issue in his argument section. The issue is therefore abandoned.
See In re JS & SM, 231 Mich App 92, 98; 585 NW2d 326 (1998) (“The failure to brief the merits
of an allegation of error is deemed an abandonment of an issue.”).

        Plaintiff also contends that the court erred in denying him an adverse inference jury
instruction, M Civ JI 6.01, regarding his lost performance records. We decline to address this
issue because it was not stated in plaintiff’s statement of questions presented. Albers, 258 Mich
App at 584. We also consider this issue abandoned because, while plaintiff states the correct
law, there is no application of the law to the facts of his case. 7

                                        II. SANCTIONS

                                 A. STANDARD OF REVIEW

        “This Court reviews a trial court’s decision to deny sanctions for clear error.” Robert A
Hansen Family Tr v FGH Indus, LLC, 279 Mich App 468, 485; 760 NW2d 526 (2008). “A
decision is clearly erroneous when, although there may be evidence to support it, we are left with
a definite and firm conviction that a mistake has been made.” Guerrero v Smith, 280 Mich App
647, 677; 761 NW2d 723 (2008).

                                         B. ANALYSIS

       In docket number 334594, defendant argues that the circuit court erred in denying it
sanctions under MCR 2.114 and MCL 600.2591, because plaintiff’s claim was devoid of
arguable legal merit and frivolous. Again, we disagree.

        “Our Supreme Court and our Legislature have sought to deter attorneys and parties from
advancing frivolous legal claims, defenses, and documents, without stifling their good-faith
efforts at pursuing novel or arguable legal theories. To achieve this balance, the Supreme Court
has adopted MCR 2.114, and the Legislature has enacted M.C.L. § 600.2591.” FMB-First Mich
Bank v Bailey, 232 Mich App 711, 719; 591 NW2d 676 (1998).

       “If a party is represented by an attorney, the attorney has an affirmative duty to conduct a
reasonable inquiry into the factual and legal viability of a pleading before it is signed.”
Cvengros v Farm Bureau Ins, 216 Mich App 261, 266; 548 NW2d 698 (1996) citing MCR
2.114(D). Under MCR 2.114, an attorney’s signature on a document submitted to the court


7
  See Etefia v Credit Technologies, Inc, 245 Mich App 466, 471; 628 NW2d 577 (2001)
(“Insufficiently briefed issues are deemed abandoned on appeal.”).



                                                -7-
certifies that the document is “well grounded in fact and is warranted by existing law or a good-
faith argument for the extension, modification, or reversal of existing law ...” MCR 2.114(D)(2).
“If a document is signed in violation of this rule, the court, on the motion of a party or on its own
initiative, shall impose upon the person who signed it, a represented party, or both, an
appropriate sanction . . .” MCR 2.114(E). The court rule also provides for sanctions when a
party pleads a frivolous claim or defense. MCR 2.114(F). Under MCL 600.2951, “if a court
finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil
action shall award to the prevailing party the costs and fees incurred by that party in connection
with the civil action by assessing the costs and fees against the nonprevailing party and their
attorney.” MCL 600.2591(1). “Whether a claim is frivolous within the meaning of MCR
2.114(F) and M.C.L. § 600.2591 depends on the facts of the case.” Kitchen v Kitchen, 465 Mich
654, 662; 641 NW2d 245 (2002). According to MCL 600.2591(3), an action is frivolous if at
least one of the following conditions is met:

           (i) The party’s primary purpose in initiating the action or asserting the defense
           was to harass, embarrass, or injure the prevailing party.

           (ii) The party had no reasonable basis to believe that the facts underlying that
           party’s legal position were in fact true.

           (iii) The party’s legal position was devoid of arguable legal merit.         [MCL
           600.2591(3)(i)-(iii)].

           In this case, the court determined that plaintiff’s discrimination claim was not frivolous.
It held:

           I disagree. Looking at the circumstances here this was not a frivolous case and
           was not brought in bad faith considering the significant testimony relating to the
           collateral-damage issue. For those reasons then the motion is denied.

Defendant contends that the court’s holding did not consider defendant’s additional arguments
that the collateral damage statement did not give rise to a claim in law and that there was no
argument for an extension or modification of the law. After a review of the record, we conclude
otherwise. The court’s ruling, while brief, sufficiently addressed aspects of both the statute and
court rule, although the court was not required to address every point of contention raised by
defendant. This Court presumes that the circuit court knows the law, People v Alexander, 234
Mich App 665, 675; 599 NW2d 749 (1999), therefore, the Court is satisfied that the circuit
court’s determination that plaintiff’s action was not frivolous included consideration of the
meaning of frivolous under MCL 600.2591. Similarly, that the court’s finding that plaintiff did
not file his action in bad faith meant that it did not find that the action was brought to harass,
injure or embarrass defendant. Further, its focus on the collateral-damage testimony under MCR
2.114(D)(2), evidenced that it believed plaintiff’s action was well-grounded in fact.

        “To determine whether sanctions are appropriate under MCL 600.2591[,] ... it is
necessary to evaluate [a] claim at the time the lawsuit was filed.” In re Attorney Fees & Costs,
233 Mich App 694, 702; 593 NW2d 589 (1999). At the time of the filing of the complaint,
nearly three years had passed since plaintiff and Holloway retired. Plaintiff knew from Moug

                                                   -8-
that Captain McDermott said the investigation into plaintiff’s inactivity was “to protect the
Department from a lawsuit by Shelley Holloway.” According to plaintiff, Captain McDermott
later confirmed what Moug had said when he told plaintiff he “was simply ‘collateral damage’ ”
“that the standby with Holloway made them look at” him and “it was ‘nothing personal.’ ”
Further, Moug told plaintiff that if he accepted the five-day suspension “they could be done with
this per McDermott.” Given this evidence, plaintiff had a reasonable basis to believe that he was
disciplined because he was a male and it was necessary to discipline a male to cover-up
discrimination against a woman. Plaintiff’s position was not devoid of arguable legal merit, as
defendant argues, because the ELCRA prohibits using gender as a basis to discriminate against a
person. MCL 37.2202(a).

        Defendant argues that the references in the complaint to other lawsuits that were
successfully prosecuted against the defendant supports his argument the complaint was filed to
harass defendant. We disagree.

       Affirmed.

                                                           /s/ David H. Sawyer
                                                           /s/ Christopher M. Murray
                                                           /s/ Cynthia Diane Stephens




                                               -9-
