                          STATE OF MICHIGAN

                           COURT OF APPEALS



JEAN BERRY,                                                         UNPUBLISHED
                                                                    December 29, 2015
               Plaintiff-Appellant,

v                                                                   No. 323188
                                                                    Bay Circuit Court
IN YOUR GOLDEN YEARS, LLC,                                          LC No. 13-003399-NZ

               Defendant-Appellee.


Before: SHAPIRO, P.J., and O’CONNELL and WILDER, JJ.

PER CURIAM.

        In this whistleblower action, plaintiff appeals by leave granted1 the trial court’s order
granting summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) in
favor of defendant. We conclude that the trial court failed to consider plaintiff’s direct evidence
of a retaliatory motive in her termination of employment, and that a genuine issue of material
fact exists regarding whether plaintiff was fired because she engaged in protected activity under
the Whistleblower Protection Act (WPA), MCL 15.361 et seq. Thus, we reverse and remand this
case for further proceedings.

                       I. PROCEDURAL AND FACTUAL SUMMARY

        Defendant hired plaintiff to work as a home health aide in June 2012. Plaintiff reported
directly to Judith Girardin, defendant’s owner. Plaintiff alleged that she originally worked about
36 hours per week, caring for the same client (an Alzheimer’s patient) six days a week. In early
fall of 2012, the client’s husband died, requiring plaintiff’s hours to increase to 48 hours per
week, according to plaintiff. Girardin testified that plaintiff worked 48 hours per week for “a
period of time” because the client had Alzheimer’s, and it would confuse the client to exchange
aides. Girardin also stated that plaintiff had “begged and cried” to be given extra work hours.

       In March 2013, plaintiff requested that defendant pay her overtime for the hours worked
in excess of 40 per week. Girardin initially refused to pay plaintiff overtime because it was


1
 Berry v In Your Colden Years LLC, unpublished order of the Court of Appeals, entered
December 22, 2014 (Docket No. 323188).


                                                -1-
against company policy. Plaintiff then filed a complaint with the Wage and Hour Division of the
Department of Licensing and Regulatory Affairs. On April 10, 2013, the State sent Girardin a
letter notifying her of plaintiff’s complaint alleging a violation of Michigan’s Minimum Wage
Law and requesting $447.75 for payment of her overtime hours. Upon receiving the notification,
plaintiff was paid for her overtime hours.

        Plaintiff alleges that on April 15, 2013, Girardin called her while she was working at a
client’s home and stated, “you will never work overtime again,” and “I really hope that you don’t
need anything because paybacks are Hell.” Girardin testified that she may have called plaintiff,
but she did not remember making those statements. Plaintiff also alleges that the following
Wednesday, when she attempted to pick up her paycheck as she had routinely done, Girardin
told her that she could no longer continue this practice. Instead, plaintiff was instructed to pick
her check up from the mailbox on the back of defendant’s building after 5:00 p.m. on Thursdays,
the scheduled payday. Plaintiff claims that Girardin knew that it was a “major benefit” for her to
pick up her checks early because plaintiff was short on money. Girardin did not recall telling
plaintiff that she could no longer pick her checks up on Wednesdays.

        Plaintiff claims that a work schedule for May 2013 was attached to her April 25, 2013
paycheck, and that “for the first time” her hours had been cut from 41 to 27 hours per week.
Girardin explained that she had not known that she was breaking the law in allowing plaintiff to
work overtime and not paying her an overtime rate, and thus, she hired Rebecca Bills to
supplement the hours necessary for the Alzheimer’s client’s care. Bills averred that Girardin told
her that she was hired because plaintiff was “trying to get [Girardin] in trouble with the State and
that Ms. Girardin planned on terminating” plaintiff. Plaintiff claimed that Girardin knew that
plaintiff depended on her income and needed additional hours, and even after Bills was
terminated on May 29, 2013, plaintiff was not offered her hours. The client’s daughter, Joanie
Herber, submitted an affidavit in which she explained that although Girardin had originally
spoke very highly of plaintiff, Herber noticed that there was a change in Girardin’s attitude
toward plaintiff in the summer or spring of 2013. Herber explained that “Ms. Girardin went
from really liking Ms. Berry, to really saying that she wanted to get rid of Ms. Berry.” Herber
also explained that she was contacted by Girardin to sign an affidavit stating that she had
requested plaintiff’s termination. She said she refused to do so because it was not true.

        Plaintiff claimed that she continued to have difficulty getting her paychecks and was
treated in a “disparate, hostile and more adverse manner” than other employees. By the summer
of 2013, her hours were fluctuating, and she was written up for conduct that was not against
company policy or was frequently done by other employees without penalty, as well as for things
she had not done. Before plaintiff filed this lawsuit and the complaint with the State, plaintiff
was written up for being late once and for being unable to travel to work on another day.
Moreover, Girardin’s December 18, 2012 evaluation of plaintiff had rated her “excellent” on
Attendance/Punctuality, as well as Initiative, Communication/Listening Skills, and
Dependability, and “good” on Job Knowledge. The statement, “Great job Jean,” is handwritten
on the evaluation, and plaintiff was informed she would be getting a raise.

        Plaintiff’s original complaint was filed on June 26, 2013, before she was terminated.
Plaintiff alleged a violation of the WPA, claiming that Girardin reduced her hours and was
unfairly treating plaintiff because she filed a complaint with the State regarding Girardin’s

                                                -2-
refusal to pay overtime. Subsequently, the trial court allowed plaintiff to amend her complaint
because the situation had evolved, i.e., plaintiff was terminated on February 14, 2014. On March
10, 2014, defendant filed a motion for summary disposition, arguing that plaintiff failed to
establish that an adverse employment action occurred.

         The trial court concluded that plaintiff established a prima facie case of impermissible
retaliation under the WPA. However, the court granted summary disposition in favor of
defendant because it found sufficient defendant’s proffered legitimate reasons for terminating
plaintiff’s employment. The court concluded that plaintiff offered nothing but speculation to
establish that the reasons for her termination were a pretext for retaliation.

                                        II. ANALYSIS

        At issue is whether the trial court erred in granting summary disposition in favor of
defendant under MCR 2.116(C)(10). A trial court’s ruling on a motion for summary disposition
is reviewed de novo. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013). “A
motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support
for a claim.” Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 474-475; 776
NW2d 398 (2009). The moving party “has the initial burden of supporting its position with
affidavits, depositions, admissions, or other admissible documentary evidence[.]” Id. at 475.
The burden then shifts to the nonmoving party to “go beyond the pleadings to set forth specific
facts showing that a genuine issue of material fact exists.” Id. (citation and internal quotation
marks 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).

       Plaintiff asserts a claim under § 2 of the WPA, which states as follows:

               An employer shall not discharge, threaten, or otherwise discriminate
       against an employee regarding the employee’s compensation, terms, conditions,
       location, or privileges of employment because the employee, or a person acting on
       behalf of the employee, reports or is about to report, verbally or in writing, a
       violation or a suspected violation of a law or regulation or rule promulgated
       pursuant to law of this state, a political subdivision of this state, or the United
       States to a public body, unless the employee knows that the report is false, or
       because an employee is requested by a public body to participate in an
       investigation, hearing, or inquiry held by that public body, or a court action.
       [MCL 15.362.]

Pursuant to MCL 15.362, a plaintiff must establish the following to prove his or her prima facie
case: “(1) he or she was engaged in protected activity as defined by the act, (2) he or she
suffered an adverse employment action,[2] and (3) a causal connection exists between the


2
  Our Supreme Court recently clarified that the WPA does not expressly include the term
“adverse employment action,” and thus, “a plaintiff’s demonstration of some abstract ‘adverse

                                               -3-
protected activity and the adverse employment action.” Whitman v City of Burton, 493 Mich
303, 313; 831 NW2d 223 (2013). The parties do not dispute that plaintiff engaged in protected
activity when she reported Girardin’s failure to pay overtime. However, there is a dispute
regarding what actions in this case constitute adverse employment actions and whether there is a
genuine issue of material fact regarding causation.

        Plaintiff argues that the trial court erroneously limited its consideration of Girardin’s
alleged adverse employment actions to plaintiff’s eventual termination. Plaintiff asserts that
before she was terminated, Girardin reduced her hours and employed Bills to replace her. In
Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 364; 597 NW2d 250 (1999), this
Court defined an adverse employment action as a decision that is “materially adverse in that it is
more than mere inconvenience or an alteration of job responsibilities[;]” there must be “some
objective basis for demonstrating that the change is adverse because a plaintiff’s subjective
impressions as to the desirability of one position over another are not controlling.” (Citations,
internal quotation marks, and alteration omitted.) See also Peña v Ingham Co Rd Comm, 255
Mich App 299, 312; 660 NW2d 351 (2003) (stating that work places are not “idyllic retreats,”
and there is no exhaustive list of adverse employment actions, but they take the “form of an
ultimate employment decision”) (citations omitted).

        Plaintiff readily admitted in her deposition that defendant’s policy capping employee’s
hours at 40 hours per week is reasonable because defendant does not receive reimbursement for
paid overtime. Further, plaintiff admitted that Girardin justifiably hired Bills to supplement the
hours of care that plaintiff’s client needed, which necessarily meant that Bills and plaintiff would
have to equitably split the hours in some manner. That meant that plaintiff would not be working
40 hours per week. Moreover, defendant’s employee handbook expressly states that employees
are not guaranteed full-time hours. Accordingly, the reduction of her hours was not a “materially
adverse” employment decision, given the particular nature of plaintiff’s line of work. See Peña,
255 Mich App at 312 (indicating that the determination of adverse employment decisions may
hinge on the aspects of employment unique to a particular situation).

        Plaintiff further argues that, before she was terminated, she was forced to wait an extra
day to pick up her paycheck. To the extent that plaintiff asserts that this action is an adverse
employment action for the purposes of the WPA, it amounts to an inconvenience, not a material
adverse employment change or an ultimate employment decision. See Wilcoxon, 235 Mich App
at 364. That is not to diminish the fact that plaintiff may have very well needed her check on the
particular Wednesday following Girardin’s notice of plaintiff’s report to the State. However, for
the purposes of establishing an actionable employment decision under the WPA, the adversity
must be objectively material. Id.3


employment action’ as that term has developed in other lines of caselaw will not be sufficient.”
Wurtz v Beecher Metro Dist, 495 Mich 242, 251 n 14; 848 NW2d 121 (2014). Nevertheless, the
term may be used as helpful shorthand for ways that an employer may discriminate under the
WPA. Id.
3
  To the extent that plaintiff argues that she was treated differently than other employees with
respect to when she could pick up her check and Girardin’s selective enforcement of cell phone

                                                -4-
        Plaintiff next argues that because her WPA claim involved evidence of direct
discrimination, the trial court erred in only analyzing this case pursuant to the burdening shifting
framework established in McDonnell Douglas v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d
668 (1972). Under the McDonnell Douglas test, a plaintiff may “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 retaliation.” Debano-Griffin, 493 Mich at 176 (citations, internal quotation marks,
alteration, and emphasis omitted). Where a presumption of retaliation arises, the employer may
nevertheless be entitled to summary disposition if it presents a legitimate reason for its
employment decision. Id. It would then be the plaintiff’s burden to show that “a reasonable
fact-finder could still conclude that the plaintiff’s protected activity was a ‘motivating factor’ for
the employer’s adverse action.” Id. (citation omitted). A plaintiff can establish pretext by
showing that the defendant’s reasons have no basis in fact, the reasons did not actually motivate
the defendant, or if they did, the reasons were insufficient to justify the employment action. Id.
at 180. In that regard, “a ‘plaintiff cannot simply show that the employer’s decision was wrong
or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or competent.’ ” Id., quoting
Hazle v Ford Motor Co, 464 Mich 456, 476; 628 NW2d 515 (2001).

       However, “[i]t is well settled that if a plaintiff presents direct evidence of discrimination,
she need not proceed under the McDonnell Douglas formula.” Christopher v Stouder Mem
Hosp, 936 F2d 870, 879 (CA 6, 1991).4 Direct evidence is “ ‘evidence which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor in the
employer’s actions.’ ” Hazle, 464 Mich at 462, quoting Jacklyn v Schering-Plough Healthcare
Prod Sales Corp, 176 F3d 921, 926 (CA 6, 1999). Direct evidence has been defined as
excluding “stray remarks in the workplace,” “statements by nondecisionmakers,” or “statements
by decisionmakers unrelated to the decisional process itself.” Price Waterhouse v Hopkins, 490
US 228, 277; 109 S Ct 1775; 104 L Ed 2d 268 (1989). “However, direct evidence may include
employer remarks that reflect a discriminatory attitude, . . . or that demonstrate a discriminatory
animus in the decisional process.” Kneibert v Thomson Newspapers, Mich, Inc, 129 F3d 444,
452 (CA 8, 1997) (citation and internal quotation marks omitted).

              Factors to consider in assessing whether statements are “stray remarks”
       include: (1) whether they were made by a decision maker or an agent within the
       scope of his employment, (2) whether they were related to the decision-making
       process, (3) whether they were vague and ambiguous or clearly reflective of
polices and rules regarding talking about personal matters with clients, any alleged disparate
treatment is properly considered in determining whether a sufficient causal link exists between
the established protected activity and adverse employment decision, which includes the
consideration of the employer’s intent as evidenced by any disparate treatment. See Sniecinski v
Blue Cross & Blue Shield of Mich, 469 Mich 124, 140; 666 NW2d 186 (2003); Meagher v
Wayne State Univ, 222 Mich App 700, 709; 565 NW2d 401 (1998).
4
  For the purposes of analyzing WPA claims, reliance on caselaw involving claims based on
other antiretaliatory statutes is proper. Debano-Griffin, 493 Mich at 175-176. Further, while not
binding, Michigan courts have often turned to federal caselaw for guidance relating to such
claims. See, e.g., Meagher, 222 Mich App at 710.


                                                 -5-
       discriminatory bias, (4) whether they were isolated or part of a pattern of biased
       comments, and (5) whether they were made close in time to the adverse
       employment decision. Cooley v Carmike Cinemas, Inc, 25 F3d 1325, 1330 (CA
       6, 1994); Krohn v Sedgwick James, Inc, 244 Mich App 289, 292; 624 NW2d 212
       (2001). [Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 136 n 8;
       666 NW2d 186 (2003).]

        In this case, plaintiff argues that her affidavit, coupled with those of Bills and Herber, are
direct evidence of Girardin’s retaliatory motive. However, Herber’s affidavit does not provide
direct evidence that Girardin made employment decisions adversely affecting plaintiff based on
the fact that plaintiff reported Girardin’s failure to pay overtime rates to the State in March 2013.
Herber’s affidavit asserts that Girardin’s opinion of plaintiff changed in the summer or spring of
2013, and she went from really liking plaintiff to wanting to “get rid” of her. However,
assuming that statement to be true, an inference based on the timing of Girardin’s alleged change
in attitude is required to show that Girardin wanted to fire plaintiff because of the protected
activity plaintiff engaged in during March and April 2013. Thus, this statement is not direct, but
rather, circumstantial evidence of Girardin’s improper motives. See Shaw v City of Ecorse, 283
Mich App 1, 15; 770 NW2d 31 (2010) (stating that “[a] temporal connection between protected
activity and an adverse employment action does not, in and of itself, establish a causal
connection, . . . but it is evidence of causation”).

        Nonetheless, plaintiff and Bills aver that Girardin made statements that expressly link
plaintiff’s protected activity to Girardin’s intent to terminate plaintiff. Plaintiff claims that
Girardin called her immediately after she received notice that plaintiff had filed a complaint with
the State regarding her overtime pay, threatening that “paybacks are Hell.” Plaintiff’s affidavit
obviously serves her interests in this case, but that does not mean that it disingenuous or
deceitful. Moreover, Bills’s affidavit corroborates plaintiff’s allegations. Bills, who was hired
directly following plaintiff’s complaint filed with the State, stated that Girardin told her that she
would have to “work more hours because Jean Berry was trying to get her into trouble with the
State and that Ms. Girardin planned on terminating Jean Berry.” Girardin was the primary
decision-maker for defendant, and this statement clearly reflects a retaliatory attitude. Indeed, it
evidences concrete actions being taken by Girardin to “payback” plaintiff for reporting the
overtime matter to the State. Thus, Bills’s affidavit is direct evidence of Girardin’s motive to
retaliate against plaintiff because she engaged in protected activity.

        Admittedly, however, Girardin did not actually terminate plaintiff until February 2014,
almost a year after plaintiff filed her complaint relating to overtime with the State. Defendant
asserts that this interval shows that the protected activity was an isolated remark, not direct
evidence of discrimination. However, in this case, that Girardin may have formed an improper
motive almost a year before acting on that motive does not necessarily lead to the conclusion that
Bills’s assertions are not direct evidence, especially in light of the fact that Bills’s assertions are
consistent with the retaliatory comments that plaintiff alleges. Where the plaintiff meets his or
her burden in providing “direct proof” of causation, “the case ordinarily must be submitted to the
factfinder for a determination whether the plaintiff’s claims are true.” Harrison v Olde Fin
Corp, 225 Mich App 601, 613; 572 NW2d 679 (1997).



                                                 -6-
       The fact that Girardin did not terminate plaintiff until February 2014 and defendant
presented proofs in the trial court that plaintiff violated several company policies in December
2013 and February 2014 means that this may be a mixed-motive case, “i.e., where the adverse
employment decision could have been based on both legitimate and legally impermissible
reasons . . . .” Sniecinski, 469 Mich at 133. In such a case, this Court has held that “the plaintiff
always bears the burden of persuading the trier of fact that the employer acted with illegal
discriminatory animus” and establishing “direct proof that the discriminatory animus was
causally related to the decisionmaker’s action.” Harrison, 225 Mich App at 612-613. See also
Sniecinski, 469 Mich at 134-135 (stating that regardless of whether a plaintiff relies on direct or
circumstantial evidence, “a plaintiff must establish a causal link between the discriminatory
animus and the adverse employment decision”).

        Our Supreme Court has explained that in a mixed-motive case, “a plaintiff must prove
that the defendant’s discriminatory animus was more likely than not a ‘substantial’ or
‘motivating’ factor in the decision.” Id. at 133. See also Veenstra v Washtenaw Country Club,
466 Mich 155, 164; 645 NW2d 643 (2002) (“Evidence of mixed motives . . . is sufficient to
withstand summary disposition. In such a case, the impermissible factor must be a determining
factor.”).

        We conclude that a genuine issue of material fact exists in that regard, and thus, the trial
court erred in granting summary disposition in favor of defendant. The trial court, in applying
the McDonnell Douglas test, concluded that plaintiff presented no evidence refuting defendant’s
articulated legitimate justifications for firing plaintiff and did not meet her burden to establish
that those reasons were a pretext for retaliation. However, a jury could find plaintiff’s and
Bills’s assertions credible, see Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475
(1994) (stating that a trial court may not weigh the credibility of witnesses in reviewing a motion
for summary disposition), and reasonable minds could differ regarding whether plaintiff’s
protected activity was a substantial or motivating factor in Girardin’s termination of plaintiff, see
Innovative Foster Care, 285 Mich App at 475. Defendant presented evidence of plaintiff’s
violations of company policies that could have served as the basis for her termination. But that
does not rule out the possibility that Girardin was nevertheless motivated to fire plaintiff because
she reported a violation of law to the State. Girardin flatly denies that she made the statements
alleged by plaintiff and Bills and that she thereafter treated plaintiff with hostility as asserted by
plaintiff and Herber. Such evidence would have critical role in a fact-finder’s ultimate
determination of the case.

       Furthermore, the record reveals that there was a marked difference between the
employment-related evaluations from before and after plaintiff reported defendant’s violation of
law to the State. Specifically, Girardin’s stated reasons for formalizing plaintiff’s violations of
company policy (to which plaintiff claims she was treated differently than other employees)
occurred not only after she reported the violation of law to the State, but also after she filed this
lawsuit.

        Accordingly, viewing the evidence in a light most favorable to plaintiff, defendant is not
entitled to summary disposition as a matter of law because genuine issues of material fact exist
regarding the causation requirement of plaintiff’s WPA claim. See id.


                                                 -7-
       We reverse the trial court’s order granting summary disposition and remand for further
proceedings consistent with this opinion. We do not retain jurisdiction.



                                                         /s/ Douglas B. Shapiro
                                                         /s/ Peter D. O’Connell




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