            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS


STEPHANIE BRITT,                                                     UNPUBLISHED
                                                                     July 23, 2020
               Plaintiff-Appellee/Cross-Appellant,

v                                                                    No. 347763
                                                                     Genesee Circuit Court
MCLAREN FLINT,                                                       LC No. 17-109646-CL

               Defendant-Appellant/Cross-Appellee.


Before: METER, P.J., and BECKERING and O’BRIEN, JJ.

PER CURIAM.

        Defendant, McLaren Flint, appeals by leave granted the order denying in part its motion
for summary disposition under MCR 2.116(C)(10) in this action in which plaintiff, Stephanie Britt,
alleged weight discrimination and retaliation under the Elliott-Larsen Civil Rights Act (ELCRA),
MCL 37.2101 et seq. Plaintiff cross-appeals that part of the same order partially granting summary
disposition in defendant’s favor under MCR 2.116(C)(7). We affirm in part, reverse in part, and
remand for entry of an order granting summary disposition of Counts II and III in favor of
defendant.

                          I. FACTS AND PROCEDURAL HISTORY

        Plaintiff worked for defendant as a unit clerk from December 27, 1999, until her discharge
on March 1, 2016. In May 2014, she transferred to the surgical services department’s preop
services, in October 2014 she transferred to the surgical services department’s PACU, and in
December 2015 she transferred back to preop services. From May 2014 until July 2017 plaintiff
was supervised by Lori Peters. When Peters left defendant’s employ, Jamie Messer became
plaintiff’s supervisor in July 2017. Plaintiff had a history of violating defendant’s attendance and
punctuality policy, resulting in disciplinary action under defendant’s corrective action policy,
which is a progressive discipline policy with four steps: verbal warning, written warning,
suspension, and termination. Major infractions are exempted from the progressive discipline
policy and can result in immediate termination. On February 23, 2016, plaintiff was suspended
for canceling a patient’s surgery and accessing patient information for her own personal use. After
an investigation, defendant terminated plaintiff’s employment on March 1, 2016. Plaintiff grieved



                                                -1-
the discharge and the matter proceeded to arbitration with plaintiff’s union representing her. The
arbitrator concluded that neither of plaintiff’s infractions constituted a major infraction warranting
immediate action rather than discipline through the corrective action policy. The arbitrator
concluded that plaintiff should be reinstated. The arbitrator rejected plaintiff’s claim that
defendant had engaged in an unfair labor practice by discharging her because she was a union
steward and engaged in union activities.

        When plaintiff returned to work in October 2016, she was specifically instructed that lunch
breaks were 30 minutes, including leaving and returning to the unit, and that “undergarments worn
with scrubs should not hang loose out-side [sic] the scrubs.” Plaintiff’s tardies and unplanned
absences continued. On January 31, 2017, plaintiff received a verbal warning because she had
been tardy on December 6 and 8, 2016, and on January 10, 13, and 18, 2017. On February 6, 2017,
plaintiff received a written warning because she incurred additional tardies on January 30, 2017,
and February 1 and 3, 2017. On June 6, 2017, plaintiff received a “working suspension” because
she incurred additional tardies on February 27, 2017, and May 15, 2017. At a disciplinary meeting
with respect to the working suspension, Stacey Vanucci, defendant’s senior human resources
consultant, told plaintiff “where she was at, that she was at the last level, one more occurrence she
would be at the termination level. I wanted to make it perfectly clear during that meeting that she
was aware of that.” On September 6, 2017, defendant terminated plaintiff’s employment because
she incurred another tardy on August 25, 2017. Plaintiff refused to sign the corrective action form,
but wrote on the form that there were discrepancies with the time clocks in the hospital. Although
not the reason for her discharge, plaintiff also incurred 20 unplanned absences since she returned
to work in October 2016.1 Plaintiff filed a grievance with the union, which declined to arbitrate
the matter.

        Meanwhile, on December 1, 2016, plaintiff filed a charge of discrimination with the
Michigan Department of Civil Rights (MDCR). Plaintiff listed the cause of discrimination as
“retaliation, race, weight” and indicated that the discrimination occurred on October 18 and 20,
2016. Plaintiff alleged that she received a written warning on October 18, 2016, for being absent
on six occasions within the previous year. She claimed that she had been absent only three times
within the previous year and that she was disciplined because she previously filed a civil rights
complaint against defendant on June 6, 2016. Plaintiff also claimed that she had been called to the
HR office three times since returning to work in October 2016. She claimed that during the first
incident she was advised that she was not permitted to wear long sleeved shirts under her scrubs.
She maintained that “everyone” wore long sleeves in cold weather. Plaintiff claimed that during
the second incident she received a write-up regarding her absences. Plaintiff claimed that during
the third incident she was chastised for taking an extended break. She maintained that she was
being subjected to such treatment because she engaged in protected activity. Plaintiff did not make
any allegations regarding race or weight discrimination.

        Defendant’s representative, Janet Borgerding, responded to the charge and said that
plaintiff had been disciplined in accordance with defendant’s attendance and punctuality policy,


1
 Plaintiff maintained that FMLA (Family Medical Leave Act) would be “covering” some of her
absences because of her father’s illness.


                                                 -2-
which provided that employees would receive a written warning if they incurred six unplanned
absences within a rolling 12-month period. Borgerding also said that plaintiff tended to wear
“whatever she wanted under and over her scrubs,” which necessitated conversations regarding her
clothing. Borgerding stated that no employees working in the surgical services unit were permitted
to wear long sleeves.

        The MDCR determined that there was no causal connection between plaintiff’s discipline
regarding her absences and her protected activity. The MDCR stated that plaintiff had been
disciplined in accordance with defendant’s policy regarding unexcused absences. The MDCR
noted that defendant had provided documentation regarding two other surgical services employees
who had been disciplined in a similar manner. The MDCR concluded that defendant would have
taken the same action regardless of plaintiff’s involvement in protected activity. Regarding
plaintiff’s attire, the MDCR stated that there were no other employees who were similarly situated
and reported to the same supervisor. The MDCR dismissed the complaint.

        Plaintiff filed this action on August 21, 2017, alleging weight discrimination with respect
to her March 2016 discharge (Count I). Following her September 2017 discharge, she amended
her complaint to add weight discrimination (Count II) and retaliation (Count III) claims regarding
that discharge. Plaintiff’s weight discrimination claims are based on her allegation that Lori Peters,
plaintiff’s supervisor from May 2014 to May 2017, repeatedly criticized her because of her weight.
In July 2017, Jamie Messer became plaintiff’s supervisor and was plaintiff’s direct supervisor at
the time of her September 2017 discharge. Plaintiff’s retaliation claim is based on her allegation
that her December 1, 2016 charge of discrimination with the MDCR was a substantial factor in
defendant’s decision to discharge her in September 2017.

        Plaintiff testified at her deposition that she is morbidly obese. She said that most of the 55
people who reported to Peters “picked on her” and complained to Peters about her. Peters
investigated each complaint. Plaintiff testified that she was in the HR office several times each
week responding to complaints made against her by coworkers. On one occasion, a nurse
complained that plaintiff was wearing ripped scrubs to work. Plaintiff told Peters that the chairs
in the department were old and that the metal on the sides of the chairs would rip her scrubs. Peters
arranged for new chairs for the department and, according to plaintiff, she was provided a chair
designed for a 600-pound bariatric person. Plaintiff said that she had heard through others that
Peters told them that plaintiff’s chair cost $1,000 and “blew the budget.” Peters also ordered
special scrubs for plaintiff in a size 7X. Plaintiff testified that Peters had previously complained
about plaintiff wearing clothing that hung outside of her scrubs and that when giving plaintiff the
new scrubs told her that she should not have a problem with the scrubs fitting properly. Plaintiff
stated that Peters continually harassed her about her weight. She said that she and Peters discussed
bariatric surgery and dieting and that Peters told her that she was 100 pounds overweight and had
“kids to live for.” She said that when a coworker, who was overweight, told plaintiff and Peters
that she had joined a fitness class and was losing weight, and told plaintiff that she could lose her




                                                 -3-
“abdominal apron”2 if she joined the class, Peters did not intervene. Plaintiff felt that Peters was
being mean to her because of her weight.

        Plaintiff testified that, on her last day of employment, August 25, 2017, someone else let
her in because her badge had not been reactivated after she had taken FMLA time. She testified
that her shift began at 5:00 a.m. and that she was in the elevator at approximately 4:45 a.m. She
maintained that she set up her workstation and logged in on her computer before she clocked in
that day. She stated that “Pam” told her to clock in because it was almost 5:00 a.m., but that, when
she went to the time clock, it showed 5:03 a.m. She told Messer that she clocked in late but that
she had been there by 5:00 a.m.

        Messer testified that she was unaware that plaintiff had filed a complaint with the MDCR.
She said that on August 25, 2017, plaintiff approached her and informed her that she had been late.
Messer asked plaintiff why she was late, and plaintiff responded that she was with “Maryanne”
and that Maryanne ran for the time clock to clock in on time, but plaintiff stated, “I’m not running.”
Messer testified that plaintiff said she was not running in a “joking” manner. Thereafter, Bardell,
the department manager, notified Messer that plaintiff’s August 25, 2017 tardy put her at the next
disciplinary step, which was termination.

         Peters testified that she and plaintiff discussed plaintiff’s weight when plaintiff told her
that her scrubs did not fit. Peters said that plaintiff told her that she was trying to lose weight by
drinking ionic water. Peters stated that she and plaintiff then purchased ionic water together.
Peters said that she was overweight at five-foot-six-inches and 361 pounds. Peters recalled one
conversation during which Peters informed plaintiff that she needed to return from lunch on time.
Plaintiff responded that she should be provided extra time because of her weight. Peters also
testified that she discussed with plaintiff the fact that her clothes were “messy and dirty,” which
was when plaintiff told her that her scrubs did not fit and Peters ordered her five pairs of size 7X
scrubs. Peters said that she ordered plaintiff a bariatric chair because plaintiff was uncomfortable
in her chair. Peters denied telling others the cost of the chair and testified that she did not know
the cost of the chair. Peters testified that she talked to plaintiff about her timeliness and that
plaintiff had a habit of not punching in if she was late or punching in late. Peters said that plaintiff
often wore “a negligée” that hung to her knees under her scrubs, in violation of defendant’s attire
policy, which resulted in a verbal warning from Peters and Bardell. Peters also testified that
plaintiff sometimes appeared for work in dirty scrubs. Peters stated that the hospital could not put
plaintiff’s scrubs in the hospital laundry because they had to be special ordered from a different
company than provided other employees’ scrubs. The company that provided other employees’
scrubs would not launder scrubs from a different company. Therefore, plaintiff was permitted to
launder her scrubs at home.

        Peters testified that another employee wore an inappropriate shirt under her scrubs, and she
directed the employee to remove it. Peters denied suggesting that plaintiff lose weight or undergo
bariatric surgery. Peters recalled that plaintiff asked for additional time during lunch because she


2
 Plaintiff said that she was told by the nurse that an abdominal apron is the fat covering the lower
abdomen.


                                                  -4-
weighed more than other employees and took longer to walk through the hospital. Peters said that
she had no criticisms of plaintiff because of her weight. She said that she never disciplined plaintiff
because of her weight and was unaware until the arbitration with respect to plaintiff’s June 6, 2016
charge of discrimination that plaintiff was complaining about discrimination because of her
weight. Peters was not employed by defendant at the time of plaintiff’s termination and was not
involved in the decision to terminate plaintiff’s employment.

        Defendant moved for summary disposition of Count I under MCR 2.116(C)(7), asserting
that plaintiff’s claim for weight discrimination related to her March 2016 discharge was barred by
a contractual period of limitations. Defendant also asserted that plaintiff had no damages related
to her March 2016 discharge because she had been reinstated and “made whole.” Defendant
moved for summary disposition of Counts II and III under MCR 2.1167(C)(10). Regarding Court
II, defendant asserted that plaintiff had failed to establish a prima facie case for weight
discrimination related to her September 2017 discharge, and that defendant had provided a
legitimate, nondiscriminatory reason for discharging plaintiff, which reason plaintiff could not
establish was pretextual. Regarding Count III, defendant asserted that plaintiff had failed to
establish a prima facie case for retaliation and that plaintiff could not establish a causal connection
between her December 2016 MDCR charge and her September 2017 discharge.

        The trial court granted defendant’s motion with respect to Count I, finding that the
contractual limitations period was reasonable and that plaintiff’s claim of weight discrimination
with respect to her March 2016 discharge was barred. The trial court denied defendant’s motion
with respect to Count II, finding that plaintiff presented a prima facie case of weight
discrimination, that defendant had provided a legitimate, nondiscriminatory reason for discharging
plaintiff, and that plaintiff had shown sufficient disputed facts regarding whether the stated reason
was merely a pretext for weight discrimination. The trial court also denied defendant’s motion
with respect to Count III, finding a genuine issue of material fact regarding a causal connection
between plaintiff’s MDCR complaint and defendant’s decision to discharge her.

                                  II. STANDARD OF REVIEW

        This Court reviews de novo a trial court’s decision on a motion for summary disposition.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). “In reviewing
a motion for summary disposition under MCR 2.116(C)(7), a court considers the affidavits,
pleadings, and other documentary evidence presented by the parties and accepts the plaintiff’s
well-pleaded allegations as true, except those contradicted by documentary evidence.” McLean v
Dearborn, 302 Mich App 68, 73; 836 NW2d 916 (2013). A summary disposition motion brought
under subrule (C)(7) “does not test the merits of a claim but rather certain defenses,” such as prior
judgment or statute of limitations, that may eliminate the need for a trial. Nash v Duncan Park
Comm, 304 Mich App 599, 630; 848 NW2d 435 (2014), judgment vacated in part 497 Mich 1016
(2014).

        Summary disposition under MCR 2.116(C)(10) is appropriate where, “[e]xcept as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” In reviewing the motion, this Court
considers the “pleadings, admissions, and other evidence submitted by the parties in the light most
favorable to the nonmoving party.” Piccione v Gillette, 327 Mich App 16, 19; 932 NW2d 197


                                                 -5-
(2019) (quotation marks and citation omitted). The moving party has the initial burden of
production, and may satisfy that burden by either submitting “affirmative evidence that negates an
essential element of the nonmoving party’s claim,” or by demonstrating “that the nonmoving
party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.”
Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). When a motion under
subrule (C)(10) is made and supported as provided in the rule, an adverse party may not rest upon
the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise
provided in the rule, set forth specific facts showing that there is a genuine issue for trial; if the
adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.
MCR 2.116(G)(4). “A genuine issue of material fact exists when the record leaves open an issue
upon which reasonable minds might differ.” Johnson v VanderKooi, 502 Mich 751, 761; 918
NW2d 785 (2018) (quotation marks, citation, and brackets omitted).

      Questions of contract interpretation are also reviewed de novo. Kloian v Domino’s Pizza
LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006).

                       III. CONTRACTUAL PERIOD OF LIMITATION

        With respect to Count I of plaintiff’s complaint, plaintiff argues in her cross-appeal that
the trial court erred by granting defendant summary disposition to defendant in relation to her
March 1, 2016 discharge. We disagree.

       Defendant moved for summary disposition on the ground that the claim was barred by the
period of limitations contained in the acknowledgment of conditions provision of the candidate
assessment form that plaintiff electronically signed when applying for the position from which she
was discharged. Paragraph 4 of the acknowledgment of conditions stated:

       In consideration of McLaren’s review of my application, I agree that any lawsuit or
       state administrative claim arising out of my employment, my application for
       employment, or the termination of my employment with McLaren or any of its
       subsidiaries must be filed no more than six (6) months after the date of the
       employment action that is the subject of this lawsuit or claim. I waive any statute
       of limitations to the contrary. Should a court determine that this period of time is
       unreasonable, the court shall enforce this provision as far as possible and shall
       declare the lawsuit or claim barred unless it was brought within the reasonable time
       within which it should have been commenced.

        Defendant produced the candidate assessment form and the most current acknowledgment
of conditions signed by plaintiff on March 16, 2017. Rachelle Hulett, defendant’s vice-president
of HR, stated in her affidavit that defendant stopped using paper applications in March 2011, so
individuals who wished to apply for a position would submit the electronic candidate assessment
form that contained the acknowledgment of conditions. (Id.) Hulett said that the contractual
limitations period language in paragraph 4 of the acknowledgment of conditions is a standard part
of defendant’s electronic employment application and has been since defendant began using the
electronic method. In other words, the form’s content with respect to the six-month deadline in
which to file a lawsuit had not changed. An applicant cannot update their candidate assessment
form without electronically signing the acknowledgment of conditions. Hulett said that plaintiff


                                                 -6-
applied for 279 positions between March 29, 2011 and 2018. Plaintiff had to electronically sign
the acknowledgment of conditions in order to submit the candidate assessment form. Hulett said
that when an applicant updates their candidate assessment form and electronically signs the
acknowledgment of conditions, any former electronic signature is overwritten in defendant’s
applicant tracking system by the new signature. Consequently, defendant did not have a copy of
every acknowledgment of conditions that plaintiff signed. Hulett said that defendant reviewed
plaintiff’s candidate assessment form on numerous occasions, including her April 12, 2014 form,
which resulted in plaintiff’s initial transfer to the position in the surgical services preop, and her
November 6, 2015 form, which resulted in her transfer back to the surgical services preop, which
was the position from which she was discharged on March 1, 2016.

        Defendant argued that plaintiff’s claim with respect to her March 1, 2016 discharge was
barred by the contractual period of limitations because it was not filed within six months of her
discharge. Plaintiff’s counsel argued that defendant failed to produce the acknowledgment of
conditions signed by plaintiff when she was hired for the position from which she was terminated
on March 1, 2016, and that defendant had “no reasonable excuse for the . . . failure to produce the
document.” However, Hulett explained that the system would overwrite the previous form each
time a candidate submitted a new application and signed a new acknowledgment of conditions
form. Plaintiff produced no evidence to refute defendant’s explanation, nor did she produce any
evidence to raise a material question of fact with respect to whether the acknowledgment of
conditions form she electronically signed when she submitted the November 15, 2015 candidate
assessment form for the position she held at the time of her March 1, 2016 discharge differed from
the acknowledgment of conditions form she electronically signed on May 16, 2017. Instead, she
argued that the court should not consider the May 16, 2017 acknowledgment of conditions because
of “spoliation of evidence.” She claimed that it was for a jury to decide whether “overwriting”
and updating an electronically signed form is a “reasonable excuse” for failure to produce the
actual form signed by plaintiff at the time of her application. In response, defendant’s counsel
noted that plaintiff testified in her deposition she applied for positions using the electronic
candidate assessment form and that she signed the acknowledgment of conditions when she
submitted candidate assessment forms.

        Defendant presented unrefuted evidence that plaintiff electronically signed the
acknowledgment of conditions form when she submitted her candidate assessment on November
6, 2015, which resulted in her being hired for the position from which she was discharged on
March 1, 2016, and that the relevant portion of the claims limitation remained the same on latter
versions signed by plaintiff. Reasonable jurors could not disagree that defendant had a reasonable
excuse for failing to produce the November 6, 2015 electronic form under the circumstances of
plaintiff’s multiple applications and the electronic application system’s design. Plaintiff had until
September 1, 2016—six months from the date her employment was terminated—in which to file
a lawsuit arising out of her March 1, 2016 discharge. Plaintiff did not file her lawsuit until August




                                                 -7-
21, 2017. Consequently, her claim of weight discrimination arising from her March 1, 2016
discharge was time-barred.3

                                IV. WEIGHT DISCRIMINATION

        Defendant argues on appeal that the trial court erred by denying its motion for summary
disposition of plaintiff’s claim in Count II of her complaint for weight discrimination arising out
of her September 2017 discharge. Defendant contends that plaintiff failed to offer sufficient direct
or circumstantial evidence to create a genuine issue of material fact regarding whether her
discharge was causally related to her weight, and she failed to offer sufficient evidence of whether
defendant’s proffered reasons for her discharge were pretextual. We agree.

         MCL 37.2202(1)(a) states:

                 (1) An employer shall not do 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.

A plaintiff asserting discrimination under MCL 37.2202(1)(a) may show discrimination through
(1) direct evidence or (2) indirect evidence under the McDonnell Douglas4 framework. Hazle v
Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001).

                                     A. DIRECT EVIDENCE

         “Under the direct evidence test, a plaintiff must present direct proof that the discriminatory
animus was causally related to the adverse employment decision.” Sniecinski v Blue Cross & Blue
Shield of Mich, 469 Mich 124, 135; 666 NW2d 186 (2003). Direct evidence of discrimination is
evidence that, if believed, requires the conclusion that discrimination was at least a motivating
factor in the employer’s decision. Id. at 133. “In a direct evidence case involving mixed motives,
i.e., where the adverse employment decision could have been based on both legitimate and legally
impermissible reasons, a plaintiff must prove that the defendant’s discriminatory animus was more
likely than not a substantial or motivating factor in the decision.” Id.(quotation marks and citation
omitted). A plaintiff must also “present direct proof that the discriminatory animus was causally
related to the adverse decision.” Id. “Stated another way, a defendant may avoid a finding of
liability by proving that it would have made the same decision even if the impermissible
consideration had not played a role in its decision.” Id.




3
  The trial court granted summary disposition to defendant because it determined that plaintiff had
14 months after being discharged and before she signed a new acknowledgment of conditions form
to file her lawsuit, and she did not do so.
4
    McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).


                                                 -8-
        In her response to defendant’s motion for summary disposition, plaintiff asserted that her
direct evidence consisted of Peters’s alleged weight-related comments and conduct when she
supervised plaintiff. Derogatory remarks may constitute direct evidence, provided that the remarks
“display, on their face, hostility toward a group” and the remarks “reasonably may be considered
as indicating a likelihood that the speaker would discriminate against the targets of the remarks.”
Lamoria v Health Care & Ret Corp, 230 Mich App 801, 810 n 8; 584 NW2d 589 (1998), reasoning
adopted by special panel, 233 Mich App 560; 593 NW2d 699 (1999). For example, with regard
to weight in particular, all references to weight or weight loss are not necessarily an indication of
hostility or evidence that the speaker would be likely to discriminate against an individual on the
basis of weight. See id.

       [W]eight is an aspect of oneself that is subject to some control by one’s conduct. It
       is common knowledge that many health professionals advise against being
       “overweight.” Accordingly, comments that could be reasonably taken as mere
       advice about diets and the like do not amount to expressions of animus sufficient
       to indicate a likelihood that one would engage in illegal weight discrimination. [Id.]

Further, “stray” remarks are typically not direct evidence of discrimination. See Sniecinski, 469
Mich at 135.

       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 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.
       [Sniecinski, 469 Mich at 136 n 8; see also Krohn v Sedgwick James of Mich, Inc,
       244 Mich App 289, 292, 300; 624 NW2d 212 (2001).]

In this case, viewing the evidence in a light most favorable to plaintiff, plaintiff failed to present
direct evidence of discrimination.

         First, the alleged statements and actions did not occur around the time of plaintiff’s
September 2017 discharge, and Peters was not involved in the decision to discharge plaintiff. In
fact, Peters was not even employed by defendant at the time of plaintiff’s discharge, as she had
left months earlier. Second, plaintiff’s characterization of several of the alleged instances is not
supported by the evidence in context. Plaintiff claimed that Peters called her into her office three
to four times a week to talk about her weight. However, plaintiff testified that she was called in to
Peters’s office several times a week “responding to complaints made against her by co-workers.”
Plaintiff claimed that Peters purchased a chair designed for a 600-pound person though plaintiff
did not ask for a chair. However, plaintiff testified that Peters purchased the new chair after a
coworker complained about plaintiff wearing ripped scrubs at work and plaintiff told Peters that
the exposed metal on her broken chair was ripping her scrubs. Plaintiff also claimed that Peters
bought her new scrubs in size 7X though plaintiff did not ask for new scrubs. However, plaintiff
testified that her scrubs were old and that they were ripped, and she has not alleged that the scrubs
purchased after she discussed the scrubs with Peters did not fit her. Plaintiff also claimed that
Peters criticized her for wearing oversized shirts beneath her scrubs, even though the long shirts


                                                 -9-
were necessary to “cover her backside.” However, plaintiff did not dispute that the attire policy
did not allow clothing to show outside the scrubs.5 Further, she testified that she wore the
oversized shirts to cover the rips in her scrubs, and that because her scrubs had a drawstring waist,
they tended to pull down in the back and needed to be covered. Plaintiff notes that Peters told her
that her compliance with the attire policy should not be an issue because she was being provided
with scrubs that would fit her. Plaintiff’s subjective interpretation of Peters’s actions does not
transfer the actions into direct evidence of discriminatory animus based on weight. Peters’s alleged
urging that plaintiff diet or undergo bariatric surgery, and her comments that plaintiff “had kids to
live for” and was “over 100 pounds overweight,” cannot reasonably be taken as an expression of
animus sufficient to indicate a likelihood that Peters would engage in illegal weight discrimination,
particularly where it appears that the comments were made in the context of general discussion
among plaintiff and Peters, who was also overweight, about diet and exercise.

        Further, there is no causal connection between any of Peters’s comments and actions and
defendant’s decision to terminate plaintiff’s employment in September 2017. See Sniecinski, 469
Mich at 135. Even if Peters routinely talked about weight and even if some of the remarks appear
insensitive, none of the remarks suggest that Peters would terminate, or otherwise illegally
discriminate, against an individual based on weight. The evidence showed that the remarks in
question occurred over the course of three years and that plaintiff continued to be employed while
she was overweight. The evidence also showed that Peters was not involved in the decision to
discharge plaintiff and was not even employed by defendant at the time of plaintiff’s discharge.
Reasonable minds could not view Peters’s comments and actions as causally related to defendant’s
decision to discharge plaintiff in September 2017. Even if a jury believed that Peters made the
statements identified by plaintiff and engaged in the conduct alleged, these statements and actions
do not require the conclusion that unlawful discrimination based on plaintiff’s weight was at least
a motivating factor in defendant’s decision to discharge plaintiff. Hazle, 464 Mich at 462. Thus,
plaintiff did not present direct evidence to merit a trial.

                                   B. INDIRECT EVIDENCE

        In cases involving indirect, or circumstantial, evidence of discrimination, the McDonnell
Douglas burden-shifting framework applies. Sniecinski, 469 Mich at 133-134. That approach
“allows a plaintiff to present a rebuttable prima facie case of the basis of proofs from which a
factfinder could infer that the plaintiff was the victim of unlawful discrimination.” Id. at 134
(quotation marks and citation omitted; emphasis in original). To establish a prima facie case of
discrimination, plaintiff must show that (1) she was a member of the protected class; (2) she
suffered an adverse employment action, such as discharge; (3) she was qualified for the position;
but (4) she was discharged under circumstances that give rise to an inference of unlawful
discrimination. Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906 (1998).


5
  Defendant’s “Protocol for Proper Operating Room/PACU/Anesthesia/CPD/Endo Attire” policy
provides, in relevant part, that “[a]ll personal clothing should be completely covered by the
surgical attire. Undergarments such as T-shirts with a V-neck, which can be contained underneath
the scrub top, may be worn; personal clothing that extends above the scrub top neckline or below
the sleeve of the scrub should not be worn.”


                                                -10-
“When the plaintiff has sufficiently established a prima facie case, a presumption of discrimination
arises.” Hazle, 464 Mich at 463 (quotation marks and citation omitted). The defendant then “has
the opportunity to articulate a legitimate, nondiscriminatory reason for its employment decision in
an effort to rebut the presumption created by the plaintiff’s prima facie case.” Id. at 464. “If a
defendant produces such evidence, the presumption is rebutted, and the burden shifts back to the
plaintiff to show that the defendant’s reasons were not the true reasons, but a mere pretext for
discrimination.” Sniecinski, 469 Mich at 134. At the summary disposition stage, “a plaintiff need
only create a question of material fact upon which reasonable minds could differ regarding whether
discrimination was a motivating factor in the employer’s decision.” Hazle, 464 Mich at 466.

        Defendant does not dispute that, as an overweight individual, plaintiff is a member of a
protected class, nor does it dispute that she suffered an adverse employment decision when her
employment was terminated. See MCL 37.2202(1)(a). Thus, plaintiff established the first two
elements of a prima facie case of discrimination. Although defendant disputed whether plaintiff
was qualified for the position given her history of unexcused absences and tardies, on appeal
defendant focuses on the fourth element—whether plaintiff was discharged under circumstances
giving rise to an inference of unlawful discrimination. To establish an inference of unlawful
discrimination, plaintiff must present evidence that the employer’s actions, if unexplained, “are
more likely than not based on the consideration of impermissible factors.” Hazle, 464 Mich at
470-471.

        Plaintiff alleged in her complaint that she was subjected to negative comments about her
weight. In her response to defendant’s motion for summary disposition, plaintiff alleged that she
could create an issue of fact with respect to an inference of unlawful discrimination (1) by showing
that she was replaced by an individual outside the protected class, (2) by showing that she was
treated less favorably than similarly situated individuals outside her protected class, or (3) through
Peters’s statements.

        First, plaintiff maintained that she was replaced by Tracy Jackson, “an individual much
less heavy than plaintiff.” Plaintiff did not provide any evidence in support of this statement.
However, during her deposition, plaintiff testified that Jackson was overweight “by BMI
standards.” Consequently, plaintiff failed to provide evidence that she was replaced by an
individual outside the protected class. Second, plaintiff alleged that she was treated less favorably
than numerous women supervised by Peters who were subject to the same attire policy as plaintiff
but were allowed to “[violate the attire policy] without repercussion.” Plaintiff was not discharged,
however, because of her violation of the dress code. She was discharged because of her violation
of the attendance and punctuality policy for tardiness. She did not point to any similarly situated
employees outside of her protected class who were not disciplined under the corrective action
policy for tardiness. Defendant presented evidence that other individuals were disciplined for
similar tardiness of one to three minutes in accordance with the corrective action policy. Third,
plaintiff alleged that Peters’s comments and conduct created an inference of weight discrimination.
As previously discussed, several of the comments and conduct were not supported by the evidence,
and several of the comments, including those related to attire in violation of the attire policy, were
unrelated to weight. The remaining weight-related comments made by Peters, who herself was
overweight—those related to diets, being overweight, and bariatric surgery—even if otherwise
unexplained, would not permit a jury to infer unlawful discrimination by defendant.



                                                -11-
         Assuming that plaintiff presented evidence to establish a prima facie case of unlawful
discrimination based on weight, the burden shifts to defendants to articulate a legitimate,
nondiscriminatory reason for their employment decision. . Defendant offered documentary
evidence to support its proffered justification for defendant’s decision—plaintiff’s repeated
violation of defendant’s attendance and punctuality policy. Defendant made a sufficient showing
that it had a legitimate, nondiscriminatory reason for terminating plaintiff’s employment.

        Given defendant’s legitimate, nondiscriminatory reason for terminating plaintiff’s
employment, the question becomes whether, viewing the evidence in a light most favorable to
plaintiff and drawing any reasonable inferences in her favor, plaintiff created a triable issue for the
jury concerning whether defendant’s legitimate, nondiscriminatory reason for terminating
plaintiff’s employment plaintiff was pretextual and that weight was, in fact, a motivating factor in
defendant’s employment decision. Hazel, 464 Mich at 473-474.

        Plaintiff asserts that her violation of the attendance and punctuality policy was a mere
pretext because her final tardy was “trivial.”

       There are three ways a plaintiff can establish that a defendant’s stated legitimate,
       nondiscriminatory reasons are pretextual: (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. The soundness of an employer’s
       business judgment, however, may not be questioned as a means of showing pretext.
       [Dubey v Stroh Brewery Co, 185 Mich App 561, 565-566; 462 NW2d 758 (1990).]

Here, the documentary evidence established that defendant had a basis in fact for terminating
plaintiff’s employment. Given the undisputed record evidence of plaintiff’s violation of the
attendance and punctuality policy, plaintiff could not show that tardiness was not an actual factor
motivating the decision to discharge her. Although plaintiff again relies on Peters’s comments and
conduct, there is no evidence that Peters, who no longer worked for defendant at the time of
plaintiff’s 2017 discharge, had any role in defendant’s decision to terminate plaintiff’s
employment. Plaintiff also could not show that her tardiness was insufficient to justify the decision
pursuant to the neutral operation of the corrective action program policy. At most, plaintiff is
raising questions about the soundness of defendant’s business judgment and that is insufficient to
show a genuine issue of fact regarding pretext. Dubey, 185 Mich App at 566. Because plaintiff
has failed to create a genuine issue of material fact concerning pretext, defendant was entitled to
summary disposition of the weight discrimination claim.6




6
  In light of our conclusion, we need not address defendant’s argument that the trial court erred by
failing to make a finding under MCR 2.116(C)(J) that plaintiff’s damages were barred as of
November 2017 when she received an offer of employment and that she was not entitled to back
pay for the two months that she was unable to work following her discharge.


                                                 -12-
                                        V. RETALIATION

        Defendant claims that the trial court erred by denying its motion for summary disposition
of plaintiff’s claim of retaliation in Count III of her complaint because plaintiff failed to establish
a material question of fact with respect to a causal connection between her termination and the
protected activity. We agree.

       MCL 37.2701 of the ELCRA provides:

       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 establish a prima facie retaliation claim, a plaintiff must show:

       (1) that [s]he engaged in a protected activity; (2) that this was known by the
       defendant; (3) that the defendant took an employment action adverse to the
       plaintiff; and (4) that there was a causal connection between the protected activity
       and the adverse employment action. [Garg v Macomb Co Community Mental
       Health Servs, 472 Mich 263, 273; 696 NW2d 646 (2005), quoting DeFlaviis v Lord
       & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997).]

The issue here is causation, i.e., whether there was a causal connection between the protected
activity—plaintiff’s complaint to the MDCR of discrimination—and the alleged adverse
employment action—termination. “To establish a causal connection, a plaintiff must demonstrate
that his participation in the protected activity was a ‘significant factor’ in the employer’s adverse
employment action, not merely that there was a causal link between the two events.” Aho v Dep’t
of Corrections, 263 Mich App 281, 289; 688 NW2d 104 (2004). “Thus, mere discriminatory or
adverse action will not suffice as evidence of retaliation unless the plaintiff demonstrates a clear
nexus between such action and the protected activity.” Id. “A causal connection can be established
through circumstantial evidence, such as close temporal proximity between the protected activity
and adverse actions, as long as the evidence would enable a reasonable factfinder to infer that an
action had a discriminatory or retaliatory basis.” Rymal v Baergen, 262 Mich App 274, 303; 686
NW2d 241 (2004).

        Plaintiff’s December 1, 2016 MDCR complaint listed “retaliation, race, weight” as the
alleged cause of the discrimination, but her complaint contained no allegations or alleged instances
of discrimination based on weight. Rather, plaintiff specifically alleged that she had been
disciplined because she filed a civil rights complaint on June 1, 2016. Defendant responded that
plaintiff had been disciplined in accordance with its attendance and punctuality policy regarding
unscheduled absences. The MDCR investigation resulted in the following determination:

       4. Causal connection between protected activity and adverse action.




                                                 -13-
       Respondent has a specific corrective action policy with regard to attendance that
       dictates how disciplines are issued (ex[hibits]. Rl, R3, D2, and D3). Claimant was
       disciplined based upon her number of unexcused absences in accordance with
       Respondent’s policy (ex. Rl, R3, D2, and D3). While Claimant was disciplined
       within a short timeframe of her protected activity, Respondent’s policies legitimize
       and support the actions taken.

       Additionally, Respondent was able to provide documentation of two other Surgical
       Services employees (who never participated in a protected activity) that received
       disciplines for violations of the attendance policy as well (ex. R7).

       Conclusion: There is no causal connection between Claimant’s protected activity
       and the adverse action.

        Plaintiff alleged that she was subject to increased discipline after the above decision.
Assuming for the sake of argument that plaintiff presented a prima facie case of retaliation,
defendant provided ample evidence that its decision to discharge plaintiff was predicated on
plaintiff’s violation of the attendance and punctuality policy. Stated otherwise, defendant
articulated a legitimate, nonretaliatory reason for its decision and supported that reason with
evidence. Plaintiff points to the same evidence she relied on with respect to her September 2017
weight discrimination claim as evidence of retaliation and pretext. This evidence does not reflect
that retaliation was a motivating factor for defendant’s decision to terminate plaintiff’s
employment. And Messer, who terminated plaintiff, testified that she was not aware plaintiff had
filed a complaint with the MDCR. Thus, plaintiff failed to create a genuine issue of material fact
with respect to whether her filing of the December 1, 2016 charge of discrimination was a
significant factor in defendant’s decision to terminate plaintiff’s employment. The trial court erred
by denying defendant’s motion for summary disposition of plaintiff’s claim of retaliation.

        We affirm the trial court’s grant of summary disposition of Count I in favor of defendant.
We reverse the trial court’s denial of defendant’s motion for summary disposition of Counts II and
III and remand for entry of an order granting summary disposition of Counts II and III in favor of
defendant. We do not retain jurisdiction.



                                                              /s/ Patrick M. Meter
                                                              /s/ Jane M. Beckering
                                                              /s/ Colleen A. O’Brien




                                                -14-
