                          STATE OF MICHIGAN

                            COURT OF APPEALS



CAROL L. KONIECZKI,                                                  UNPUBLISHED
                                                                     November 18, 2014
               Plaintiff-Appellant,

v                                                                    No. 316097
                                                                     Jackson Circuit Court
CITY OF JACKSON,                                                     LC No. 12-000854-CD

               Defendant-Appellee.


Before: OWENS, P.J., and MARKEY and SERVITTO, JJ.

PER CURIAM.

       Plaintiff appeals by right the trial court’s order granting summary disposition to
defendant under MCR 2.116(C)(10) and dismissing her retaliation and sex/gender discrimination
claims. We affirm.

        At the time of her termination, plaintiff was employed by defendant as the Director of
Community Development; she had worked for defendant in several positions since 1999. She
had discussed an issue relating to the sexual harassment of her secretary with Warren Renando,
the retired city manager. Plaintiff did not follow appropriate procedures in addressing the issue
and months later, after plaintiff spoke with the alleged harasser, the issue subsided. Renando
eventually returned as city manager and having heard rumors about the harassment decided to
conduct an investigation into the issue. Although plaintiff participated in the investigation, she
was not the principal in charge or heavily involved. The issue was resolved following a meeting
where plaintiff’s secretary signed a statement that there was no sexual harassment and was told
to report any issues that may arise in the future. At some point the alleged harasser left for a new
position.

         While in the past plaintiff had received positive performance reviews, the evidence
illustrated that her performance quality fell, and her relationships with other employees and the
newly elected mayor deteriorated in the period just before her employment termination.
Renando attested that he had multiple discussions with plaintiff before September 12, 2010,
regarding her poor work performance, her poor relationships with her staff and other department
heads, and her attendance. On September 14, 2010, Mayor Dunigan sent a memorandum to
Renando stating that she was dissatisfied with a report from the Michigan State Housing
Development Authority regarding the Jackson Neighborhood Stabilization Program, which was
under plaintiff’s control. The mayor requested that steps be taken to establish a system of

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checks to insure the problem would not happen again. While plaintiff denied she was ever
accused of poor performance before September 20, 2010, notes handwritten by plaintiff during a
September 13, 2010 meeting with Renando evidenced his concerns about her performance and
the possibility she was on the mayor’s “target list.” The notes indicated that he criticized her
attendance and relationships with department heads.

        Plaintiff sent an email to Renando on September 20, 2010, stating that she had been
under significant stress over the previous few months, caring for a dying ex-husband and helping
her children. She stated that she was one of Renando’s supporters and for this reason, she turned
to him for advice during his retirement. She stated that, after he again became city manager, she
was relieved that the harassment issue was resolved. She noted that because the alleged harasser
left to take another position, there would be additional stress in the city government, and she
hoped this did not have an adverse impact on her. She then stated that she had completed her job
duties competently. Renando commented to plaintiff that morning that he wished she had not
sent the email because now he would have to respond. Because plaintiff had mentioned her
competent work, he needed to correct this in writing.

        He did so on September 24, 2010, with a letter of reprimand regarding her performance,
specifically mentioning her attendance, relationships with other department heads and the mayor,
failure to submit timely agenda items to City Council, and asking staff to do personal favors.
Renando requested that plaintiff provide detailed charts about what each employee under her
direction did and statistics that showed what had been done and needed to be done. He expected
progress in 30 to 60 days. Renando noted that plaintiff was an at-will employee and could be
dismissed with or without cause. On November 23, 2010, Renando issued a letter to plaintiff
terminating her employment. The letter outlined plaintiff’s failure to perform adequately,
specifically her failure to improve the issues presented in the letter of reprimand. Plaintiff never
provided the requested chart, gained the trust of external organizations and co-workers, or
punctually attended meetings.

        Plaintiff filed a complaint alleging she was terminated in retaliation for her involvement
in the sexual harassment investigation and because she was subjected to different attendance and
conduct standards than male department heads. Plaintiff asserted that she suffered sex-based
discrimination contrary to MCL 37.2202(1), and retaliation contrary to MCL 37.2701(a).
Following discovery, the trial court granted summary disposition to defendant. The court held
that with regard to the elements of the retaliation claim, plaintiff was engaged in protected
activity but there was no causal connection between the protected activity and her termination.
Regarding the sex discrimination claim, the trial court held that there was no evidence plaintiff
was discriminated against in terms of the attendance policy, and criticism of her use of
inappropriate language was unrelated to her termination. Plaintiff appeals the trial court’s order.

        This Court reviews an order granting summary disposition de novo. Van v Zahorik, 460
Mich 320, 326; 597 NW2d 15 (1999). Under MCR 2.116(C)(10), summary disposition is
properly granted where there is no genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597
NW2d 28 (1999). The trial court must consider all affidavits, pleadings, depositions, admissions,
and documentary evidence filed in the action or submitted by the parties in the light most
favorable to the party opposing the motion. Id.

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      The Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., prohibits an employer from
making adverse employment decisions on the basis of sex. MCL 37.2202(1)(a); Elezovic v Ford
Motor Co, 472 Mich 408, 419; 697 NW2d 851 (2005).

         A plaintiff may prove discrimination by direct or circumstantial evidence. Where the
evidence is circumstantial, Michigan applies the test articulated in McDonnell Douglas Corp v
Green, 411 US 792, 802; 93 S Ct 1817; 36 L Ed 2d 668 (1973), wherein a plaintiff bears the
initial burden of establishing a prima facie case of discrimination. DeBrow v Century 21 Great
Lakes, Inc (After Remand), 463 Mich 534, 539-540; 620 NW2d 836 (2001). A plaintiff can
establish a prima facie case by showing that (1) she was a member of a protected class; (2) she
suffered an adverse employment action; (3) she was qualified for the position, and (4) she was
subjected to the adverse action under circumstances giving rise to an inference of discrimination.
Hazle v Ford Motor Co, 464 Mich 456, 463; 628 NW2d 515 (2001). If the plaintiff succeeds in
establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory business reason for the adverse employment action. Id. at 464. If the
defendant produces evidence establishing a legitimate reason for the discharge, the plaintiff has
the opportunity to prove that the reason offered was not the true reason, but was only a pretext
for the true discriminatory motivation for the adverse action. Id. at 465-465. Where there is
direct evidence of unlawful discrimination, the McDonnell Douglas test does not apply.
DeBrow, 463 Mich at 539. Direct evidence refers to evidence that if believed requires the
conclusion that unlawful discrimination was at least a motivating factor in the employer’s
actions. Sniecinski v Blue Cross & Blue Shield, 469 Mich 124, 132-133; 666 NW2d 186 (2003).

        In this case, plaintiff relied on circumstantial evidence to show that she was the victim of
sex discrimination. She relied on Renando’s statement that using profanity was “unladylike” and
asserted that she was treated differently from male department heads when it came to attendance.
Specifically, she asserted that they left work early on Fridays to attend golf league games.

        Plaintiff failed to establish a prima facie case of discrimination. While permitting
different standards of language based on sex would be discriminatory, this incident must be
viewed in context. The sum of the evidence shows that it was likely not the use of the language
that was problematic but that the language was used to describe a co-worker. There is no
evidence male employees were allowed to use profanity to describe co-workers. Furthermore,
and most significantly, this statement had nothing to do with plaintiff’s termination. Nowhere
was this statement reflected as a ground or factor in plaintiff’s termination. The only loose
connection was that plaintiff was terminated in part for her poor relationships with her co-
workers, which was based on general issues beyond this event. Regarding plaintiff’s allegations
that she was held to a different attendance standard than male department heads, the only
evidence plaintiff put forth was that the men were allowed to leave early to attend golf league
games. But plaintiff was not prevented from being in the golf league. Furthermore, the evidence
showed that while male department heads did leave early on Fridays, they were otherwise fully
present at work through their timely attendance of staff meetings, timely arrival to work, and
keeping in contact with their staffs. This was in contrast to plaintiff, who was repeatedly warned
about her lack of attendance and presence at work. Plaintiff’s sex discrimination claim consisted
of mere allegations regarding single events that did not support an inference of sex
discrimination.


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        Furthermore, to the degree plaintiff showed discrimination, defendant clearly presented
nonpretexual and legitimate reasons for her termination. Specifically, there was significant
evidence that plaintiff was terminated based on her poor work performance, including her failure
in the Jackson Neighborhood Stabilization Program, her poor attendance at work and in
meetings, her failure to maintain relationships externally and with fellow department heads, and
her failure to maintain a working relationship with the mayor. Plaintiff failed to remedy these
problems as instructed in the letter of reprimand sent to her. Furthermore, she failed to submit
charts outlining her staff and their work product as requested in the letter of reprimand. While,
as claimed by plaintiff, many of these issues would have been challenging to remedy, this does
not mean the termination was motivated by sex discrimination for her failure to do so. Plaintiff’s
contention that her problems, in part, resulted from the mayor’s lack of experience also does not
equate to actions being discriminatory on the basis of plaintiff’s sex. While it is possible the
termination was arbitrary, it was not discriminatory. Accordingly, the trial court did not err in
dismissing plaintiff’s sex discrimination claim.

      Next, plaintiff asserts that the trial court erred in dismissing her retaliation claim. MCL
37.2701(a) provides in relevant part:

               Two or more persons shall not conspire to, or a person shall not:

              (a) Retaliate 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 order to demonstrate a claim and establish a prima facie case of retaliation under the statute, a
plaintiff is required to show that (1) the plaintiff engaged in a protected activity; (2) this was
known by the defendant; (3) the defendant took an employment action adverse to the plaintiff,
and (4) there was a causal connection between the protected activity and the adverse employment
action. Meyer v City of Center Line, 242 Mich App 560, 568-569; 619 NW2d 182 (2000).

        The only issue on appeal pertains to the fourth element—whether there was a sufficient
casual connection between the protected activity and the adverse employment action. While
defendant asserted in the trial court that plaintiff was also not engaged in a protected activity, the
trial court ruled that she was and decided the issue based on causation. Defendant does not now
challenge the holding that plaintiff was involved in a protected activity.

        To establish causation, the plaintiff must show that his or her participation in protected
activity was a significant factor in motivating the employer’s adverse employment action, not
just that there was a causal link between the two. Barrett v Kirtland Community College, 245
Mich App 306, 315; 628 NW2d 63 (2001). Proof of temporal proximity between the protected
activity and the adverse employment action is not sufficient to support a finding of a causal
connection without evidence that plaintiff’s participation in the protected activity was a
significant factor in the adverse employment action. Stevens v Estes Exp Lines, 833 F Supp 2d
729, 736 (ED Mich 2011). As with claims of sexual discrimination, Michigan applies the
burden-shifting test of McDonnell Douglas, 411 US at 802, to retaliation claims. Roulston v
Tendercare (Michigan) Inc, 239 Mich App 270, 280-281; 608 NW2d 525 (2000).

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        Plaintiff failed to demonstrate that her termination was retaliatory. The only evidence
plaintiff offered was the temporal proximity between events relating to the investigation and her
email to Renando in part on the issue, and the letters of reprimand and termination. The
temporal proximity between the events was distant. Additionally, there was sufficient evidence
to show a history of complaints about plaintiff’s work performance dating before plaintiff’s
email to Renando. Even if the temporal proximity did show a prima facie case, as previously
discussed, defendant offered extensive evidence to show legitimate and unrelated reasons for the
termination. As explained by Renando, the reason a letter of reprimand followed the email from
plaintiff was that the email contained statements about her competent work performance, and, in
light of his previous discussions with her on the issue, he was forced to respond to correct what
she had asserted in her email. He expressed that he wished she had not sent the email’ so he
would not have had to respond. The evidence showed that plaintiff merely attempted to use her
involvement in the sexual harassment investigation to shield herself from the results of her poor
work performance. Accordingly, the trial court did not err in dismissing the retaliation claim.

       We affirm. As the prevailing party, defendant may tax costs pursuant to MCR 7.219.



                                                           /s/ Donald S. Owens
                                                           /s/ Jane E. Markey
                                                           /s/ Deborah A. Servitto




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