                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0664n.06
                           Filed: September 5, 2006

                                           No. 05-2151

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DEBORAH SCOTT,                                   )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
TOTAL RENAL CARE, INC., a foreign                )    EASTERN DISTRICT OF MICHIGAN
corporation,                                     )
                                                 )
                                                 )
DAVITA, INC., a foreign corporation,             )
                                                 )
       Defendants-Appellees.                     )
                                                 )
                                                 )




       Before: GIBBONS, ROGERS, Circuit Judges; HOLSCHUH, District Judge.*
       ROGERS, Circuit Judge. This is a diversity action for retaliatory discharge in violation

of Michigan public policy and statutory law. The plaintiff, Deborah Scott, seeks reversal of the

district court’s grant of summary judgment to the defendants, DaVita, Inc., Scott’s former employer,

and Total Renal Care, Inc., DaVita’s corporate predecessor. The district court’s judgment is

affirmed.


       *
         The Honorable John D. Holschuh, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 05-2151
Scott v. Total Renal Care, Inc., et al.

                                                 I.


       On March 26, 1996, Scott began working for DaVita as a social worker. DaVita is a private,

for-profit dialysis clinic located in North Oakland, Michigan. Scott was terminated on February 5,

2004, allegedly in retaliation for internal complaints to DaVita management related to DaVita’s

inadequate staffing and racially discriminatory hiring practices.


       Scott addressed a letter to Regional Director Martin Konal, dated July 8, 2003, complaining

about various happenings at DaVita. Scott also enclosed a four-page letter written by co-worker

Marietta Kroll. Scott “signed and verified for accuracy” the letter by Kroll. Scott also “verif[ied]

points covered” in a recent meeting with Konal, Janet Matsura (Scott’s then-supervisor), and Kroll.


       In her letter to Konal, Scott complained about so-called “critical issue[s],” such as a lack of

“enough staff,” the hiring of inexperienced staff, management’s coercion of some employees to quit

their jobs, and unspecified violations of the employee handbook and DaVita’s “values.” These same

sorts of allegations also appeared in Kroll’s letter, which was attached to Scott’s letter. While

discussing this letter in her deposition, Scott emphasized DaVita’s inadequate staffing.


       In November of 2003, Scott made an anonymous complaint about DaVita’s staffing and some

other practices to Michigan authorities, but the authorities did not pursue Scott’s complaint.


       In December of 2003, Scott spoke to Konal and expressed concern that Facility Administrator

Geraldo Todd, who at the time was Scott’s immediate supervisor, “was terminating the white


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employees and hiring all blacks, and that he was favoring the black race in general.” Konal told

Scott that he would review her complaint. Konal admitted in his deposition that Todd had in fact

been “replacing whites with blacks,” but Konal was not troubled by this because “the team was

predominantly Caucasian while the patients are 70 percent African American. I thought that it was

a positive thing for the unit to have a better—a more diverse team.”


       Scott also brought up Todd’s alleged racial discrimination in a meeting in January of 2004

with People Services Manager Mary Nixon. Todd in his deposition denied any knowledge of Scott’s

racial discrimination complaints.


       In a letter dated January 28, 2004, addressed to Bob Schlichenmaier of Renal Network 11,

Scott accused colleague and Unit Secretary Kristin Clark of failing to provide important paperwork

in a timely manner. Renal Network is an organization that gathers information on renal clinics in

Michigan. It is a private, cooperative association of clinics and is not a part of DaVita. Scott

provided a copy of her Renal Network letter to Todd and others at DaVita.


       Scott’s letter to Schlichenmaier stated that Clark missed a January 12, 2004, deadline to

complete required data forms. Further, Clark requested an extended deadline of January 16, but she

missed that deadline too. A letter, dated January 28, stated that “we will need another extension for”

Clark to do her work. The letter also stated that Scott and others were not at fault for the delay but

that Clark had failed to retrieve the needed information for the forms.


       In early February 2004, Todd saw the letter that Scott addressed to Renal Network 11 for the

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first time. He faxed a copy of it to Konal along with a message that it contained untruthful

statements. Konal said in his deposition that he considered Scott’s letter “unprofessional” and that

he thought Scott’s letter misrepresented the company. Konal and Todd discussed the letter. Todd

made known to Konal his plan to “give [Scott] a written warning for that conduct,” referring to the

letter.


          On January 29, 2004, Scott and some of her co-workers met with People Services Manager

Mary Nixon. The meeting’s attendees included Nixon, Scott, Kroll, and Linda Aiken. The

employees complained that staffing was insufficient. Scott also complained that Todd was not

approachable, that management had treated some employees with “favoritism,” and that Clark could

not be depended on “to do anything.” As noted above, at this meeting Scott also brought up Todd’s

alleged racial discrimination.


          On February 5, 2004, Todd requested a meeting with Scott.                According to Todd’s

documentation of the meeting, he met with Scott to “discuss a letter [she] had written on January 28,

2004” to Renal Network 11 as well as some memoranda written by Scott. Todd brought a witness

with him, Marcia Schweisthal, the Clinic Coordinator. Todd noted in his documentation for the

meeting that “[e]fforts to focus on the DaVita values violations such as Integrity, Team,

Accountability, as well as Service Excellence proved unsuccessful.” According to Todd,


          The session quickly digressed to a point where the DaVita teammate mentioned in
          the letter, Krist[i]n Clark, Unit Secretary, was asked to join the discussion to clear up
          inconsistent comments made by [Scott]. At this point [Scott] repeated her statement
          that Krist[i]n informed her that all the requested documents for the Renal Network

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Scott v. Total Renal Care, Inc., et al.

       were completed. Krist[i]n emphasized that she made no such statement to [Scott] as
       well as asked why with a team of three full time clerical teammates and one part time
       clerical teammate she was singled out by full name in [Scott’s] letter to the Renal
       Network. Regarding the completed documents, [Scott] stated to Krist[i]n, “You are
       a liar!” . . . [Scott] abruptly stated she felt that all three teammates had planned this
       meeting in advance and was “out to get her”. [Scott] stated she would sue me if her
       opinion proved correct.


               [Scott] then walked out of the meeting and stated she was leaving the facility
       for the day. I asked [Scott] not to leave the facility and to resume the meeting to
       bring some closure. I also informed [Scott] that if she immediately left the facility
       for the day, I would view this as job abandonment on her part. [Scott] stated
       emphatically she was having no part of the meeting and was leaving. At this point
       I again informed [Scott] that if she left the facility I would view this as job
       abandonment and that I would be forced to take appropriate actions. [Scott] then for
       the first time abruptly stated that she was sick with cold-like symptoms and was
       leaving immediately. Up to this point [Scott] not only appeared physically healthy
       but also had not previously shared a desire to leave the facility due to illness. I stated
       to [Scott] that I was requesting that she remain at North Oakland Dialysis for at least
       one hour to conclude the meeting tasks. For a third time, I informed [Scott] that if
       she left immediately I would view this as job abandonment. [Scott] continued to
       gather her coat and personal items and left the facility. . . .


              I immediately contacted [and consulted] my Regional Director, Marty Konal,
       and my People Services Manager, Mary Nixon. . . . Following a promptly arranged
       conference call with our DaVita Legal Counselor, Steve Cooper, the decision was
       made to immediately terminate Deborah Scott due to job abandonment. A letter
       informing [Scott] of this decision was written by me and reviewed by Marty and
       Mary.


       According to the sworn declaration of Schweisthal, she witnessed the February 5 meeting.

It was “Mr. Todd’s practice” to bring a witness “when he met with individual employees to discuss

performance improvement or disciplinary issues.” Schweisthal stated that during the meeting Todd

attempted to discuss with Scott “a letter she had sent to Renal Network 11 on DaVita stationery


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Scott v. Total Renal Care, Inc., et al.

blaming . . . Unit Secretary Kris Clark for the facility’s failure to provide certain information to the

Network in a timely manner.” Todd also attempted to bring up a memo by Scott on the same

subject. Todd “tried to explain” to Scott that “she should have spoken to him first [about these

matters], that she had violated the proper chain of command, and that her actions had been

unacceptably disrespectful to a co-worker.”


        According to Schweisthal, “Clark knocked on the door with a question for Mr. Todd, and Mr.

Todd asked her to join the meeting.          Unfortunately, the meeting then became even more

acrimonious.” Schweisthal stated that “Scott accused Ms. Clark of lying,” and Todd admonished

her for making an offensive comment to a co-worker. In Schweisthal’s telling “Scott then said,

‘That’s it, I’m done.’ Mr. Todd responded that ‘we aren’t finished.’” Scott began to leave and “said

that she was going to file a grievance and a lawsuit,” according to Schweisthal. Scott then said “I’m

ill, I’m going home.” According to Schweisthal:


        Mr. Todd clearly told Ms. Scott that if she left before he was finished with what he
        had to say to her, he would consider her to have abandoned her job. Ms. Scott left
        the facility anyway. Mr. Todd repeated this two more times as he followed her down
        the hallway to her office. I followed them down the hallway. She closed the door in
        his face. She came out approximately ten minutes later and left the building.


Just before leaving, according to Schweisthal’s contemporaneous, handwritten account of the

incident, Scott “told a teammate she was leaving for lunch.”


        According to the declaration of Clark, she was present at the February 5 meeting involving

Todd, Scott, and Schweisthal. Clark stated that the “meeting was, in part, about a letter Ms. Scott

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Scott v. Total Renal Care, Inc., et al.

had written to Renal Network 11 about missing documentation for which she blamed me. . . . [Scott]

called me a liar.” According to Clark, Scott denied calling Clark a liar, but was contradicted by

Todd, Schweisthal, and Clark, who each “said Yes you did,” according to Clark’s contemporaneous,

handwritten account of the event. Scott then announced, “That’s it, I’m done.” Before Scott left

“Scott announced that she was going to lunch.”


       Scott’s account of the February 5 meeting disagrees with the accounts of Todd, Schweisthal,

and Clark in several of its details. Scott stated that Todd called her into a meeting to discuss

delegating back to the secretaries some of the workload that had shifted to others. According to

Scott, she was “getting ready to leave for the day” because she was ill. Scott “said I was going to

be leaving early, and basically I was getting ready to leave,” but Todd “came in and said, well, I’d

like you just to take a minute, you know, would you grab your coffee or whatever, it won’t take long,

I want to talk to you.” Scott in her deposition related that Schweisthal was already in the meeting

room when Scott and Todd arrived, and that Clark arrived before the meeting began.


       In Scott’s recollection, the meeting was “short-lived.” Todd became “abusive” and the others

shot “glances towards each other, kind of smiling and snickering” in a manner that Scott disliked.

Todd told Scott that she “wasn’t a team player.” Scott in her deposition attributed her lack of “team

player” status in Todd’s eyes not to her complaints in the Renal Network letter but to her “resisting,

you know, taking on all of these responsibilities, and you know, for clerical tasks and the fact that

I was trying to move forward to allow the secretaries to take these secretarial responsibilities back,

that that somehow I was not a team player . . . .”

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Scott v. Total Renal Care, Inc., et al.

       Scott responded by saying, “you know, Geraldo, I’m sorry, you know I’m sick, I’m leaving

and that’s it, you know.” She also said, “I’m sick, I’m going home, I have the right to go home, and

I am not going to be—I’m not going to sit here and be abused by you and I got up and left.”

According to Scott, Todd followed her while screaming. Scott told Todd that she would “take a brief

lunch hour and I will come back, you know, but I have to go to the doctor.” Scott said in her

deposition that she did not remember whether Todd told her that she would be fired for “job

abandonment” if she left without permission. Later in her deposition, Scott agreed with opposing

counsel’s question that Todd told her “that if you left, he would consider it an act of termination,”

with the following response, “Yeah, but I didn’t leave.” When asked by opposing counsel whether

she left, she said, “No. I just left for my lunch hour, which is what he told me to do, and come back,

which is what I did.”


       According to Scott, she left the clinic and went to Coney Island and then came back to the

clinic about twenty minutes later. She claims that she wrote Todd a note telling him how to reach

her and informing Todd that she “was going to my doctor’s and that’s what I did.” Scott said in her

deposition that she missed work for the remainder of February 5 and the full day on February 6,

calling in sick, but had no idea that she had been terminated on February 5. “I just continued to call

in sick,” she said. DaVita co-workers informed Scott via telephone that her termination had been

announced and that the company website listed her position as vacant. Scott remarked in her

deposition that her memory of the events surrounding the February 5 meeting is “kind of muddled.”


       In a letter dated February 5, 2004 and sent to Scott’s address, Todd terminated Scott’s

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Scott v. Total Renal Care, Inc., et al.

employment with the clinic. The letter reads: “This letter serves as official notification of your

termination from DaVita North Oakland Dialysis facility effective immediately. The reasons cited

for your termination are the result of unprofessional conduct resulting in job abandonment on your

behalf.”


       Todd, in his deposition, testified, “Once I made the decision to terminate Deborah Scott, I

conferred with our People Service Manager, my manager, the legal department in DaVita just for

clarification. . . .” In his deposition, Konal explained that he, Todd, Nixon, and Cooper discussed

the proper response to Scott’s decision to walk off the job. Everyone agreed that Scott could be fired

for her conduct, and Nixon recommended that she be terminated. According to Konal, Todd made

the ultimate decision to terminate Scott.


       Company records show that Konal, Nixon, and DaVita Vice President Greg Hartman

administratively approved Scott’s termination for payroll purposes. Todd created a termination

report explaining Scott’s termination as follows: “[a]bandoned job, walked out during performance

management plan discussion.” Konal stated in his deposition that “job abandonment” means

“[l]eaving the facility without permission.” Konal also implied that the clinic has never fired any

employee other than Scott for “job abandonment.” Nixon said in her deposition that the clinic has

no policy pertaining to “job abandonment.”


       Scott filed this suit following her termination. Her complaint set forth three counts, each

alleging retaliatory discharge. Scott claimed in the complaint that by retaliating against her,


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Scott v. Total Renal Care, Inc., et al.

defendants violated (1) Michigan’s Whistleblowers’ Protection Act, Mich. Comp. Laws § 15.361

et seq.; (2) Michigan public policy; and (3) Michigan’s Elliott-Larsen Civil Rights Act (ELCRA),

Mich. Comp. Laws § 37.2101 et seq.


       The district court granted summary judgment in favor of defendants and dismissed the case.

Regarding Scott’s whistleblower claim, the district court observed that the Whistleblowers’

Protection Act (WPA) forbids employers from retaliating against employees for reporting violations

of law to a public body. Scott alleged that DaVita fired her in retaliation for reporting DaVita’s

inadequate staffing, among other problems, to State authorities. The district court held that Scott’s

whistleblower claim should be rejected because she had failed to produce evidence tending to prove

a causal connection between her termination and her complaints to the State. Scott had merely

shown that she was terminated after her complaints, not because of them, which is insufficient to

raise a genuine dispute over causation.


       The district court held that Scott’s public policy-based claim could not proceed because the

WPA is the exclusive cause of action governing employer retaliation against employees for their

reports of legal violations to public bodies. Reasoning that Scott’s exclusive cause of action lies

with the WPA, the district court held that she may not bring a public policy-based action grounded

in the Michigan Public Health Code.


       Regarding Scott’s ELCRA claim, the district court held that Scott “cannot establish a prima

facie case of retaliation under” ELCRA “and thus her retaliation claims must be dismissed.” In


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Scott v. Total Renal Care, Inc., et al.

particular, Scott had failed to establish a causal connection between Scott’s complaints of racial

discrimination and her termination. Scott’s whole argument for such causation, the district court

observed, “relied solely on the proximity in time between her November 2003, December 2003, and

January 2004 complaints about possible racial discrimination and her February 5, 2004 discharge.”

Reasoning that time-order, without more, is insufficient to create a genuine dispute over causation,

the district court dismissed the case.


        This appeal followed. Scott does not appeal the dismissal of her WPA claim. Scott

challenges only the dismissal of the public policy and ELCRA claims. With respect to the public

policy claim, in this appeal Scott challenges its dismissal only to the extent that the claim is based

on her internal complaints to her DaVita superiors.


                                                   II.


        “This court reviews the grant of summary judgment de novo.” Reeves v. Swift Transp. Co.,

Inc., 446 F.3d 637, 640 (6th Cir. 2006). “The judgment sought shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).


                                                   A.


        The district court properly dismissed Scott’s claim for retaliatory discharge in violation of


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Michigan public policy because no law or policy tells Michigan employers that they must not

retaliate against employees who report legal violations to their supervisors.


       This court’s unpublished opinion in Cushman-Lagerstrom v. Citizens Insurance Co. of

America, 72 Fed. Appx. 322 (6th Cir. 2003), is on point in all respects and is persuasive. In

Cushman-Lagerstrom, this court rejected the plaintiff’s argument—advanced here by Scott—that

it is generally contrary to Michigan public policy to fire an employee for reporting violations of the

law to superiors. Compare id. at 328, with Appellant’s Br. at 24-26.


       The Cushman-Lagerstrom court assumed that the plaintiff had reported actual or impending

Michigan Insurance Code violations but nevertheless was “not persuaded that Michigan has provided

a ‘public policy’ cause of action for an employee who is discharged for reporting violations of law

to a superior.” Id. The court supplied two reasons for this conclusion, both of which apply to Scott’s

analogous claim.


       First, the Cushman-Lagerstrom court noted that the reporting of Michigan Insurance Code

violations to one’s superiors at work was not listed among the recognized grounds for public policy

retaliatory discharge claims. Id. at 328-29. Claims of retaliatory discharge based on Michigan

public policy may rely on the following three grounds only:


       (1) the employee is discharged in violation of an explicit legislative statement
       prohibiting discharge of employees who act in accordance with a statutory right or
       duty, (2) the employee is discharged for the failure or refusal to violate the law in the
       course of employment, [or] (3) the employee is discharged for exercising a right
       conferred by a well-established legislative enactment.

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Id. at 328 (quoting Edelberg v. Leco Corp., 599 N.W.2d 785, 786-87 (Mich. Ct. App. 1999)). The

Cushman-Lagerstrom court noted that the factual situation presented in that case simply did not

match any of these three public policy grounds for a claim. Id. That is true here as well. The federal

regulations cited by Scott in her brief govern dialysis clinics’ staffing and sanitation levels; they do

not explicitly create a duty or right of employees to report violations to their superiors. See

42 C.F.R. § 405.2162(b)(3) and § 405.2163(d). Just as the Cushman-Lagerstrom plaintiff’s reports

of Insurance Code violations did not match the public policy grounds for a retaliatory discharge

claim, neither do Scott’s reports match them. Michigan public policy does not protect Scott’s right

to make such complaints to her employer.


        Second, Cushman-Lagerstrom noted that no “controlling or persuasive Michigan case law”

had “extended the public policy exception [to at-will employment] to discharges in retaliation for

reporting violations of law to superiors” in general. 72 Fed. Appx. at 328-29. That remains true

today and requires affirmance of the district court’s judgment.


        In drawing this conclusion, the Cushman-Lagerstrom court held inapplicable the two cases

on which Scott principally relies. Those two cases are Watassek v. Michigan Department of Mental

Health, 372 N.W.2d 617 (Mich. Ct. App. 1985), and Meury v. Connie Kalitta Services/American

International Airways, Inc., No. 97-1877, 1999 U.S. App. LEXIS 21188 (6th Cir. May 20, 1999).

Appellant’s Br. at 24 (citing Watassek and Meury). Cushman-Lagerstrom demonstrated that neither

Watassek nor Meury is persuasive.



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        Watassek held that Michigan common law prior to the WPA’s passage created a public

policy cause of action for retaliatory discharge where an employer fires an employee for reporting

legal violations to supervisors. See 372 N.W.2d at 621. Meury cursorily adopted the position of

Watassek in this regard as an alternative ground for its decision that an employee who had been fired

for reporting violations of federal aviation regulations had a public policy-based cause of action for

retaliatory discharge under Michigan law. 1999 U.S. App. LEXIS 21188, at *4-*5.


       Cushman-Lagerstrom demonstrated that Watassek is unpersuasive and had been essentially

rejected in all relevant respects in subsequent Michigan court cases.


       The Watassek court reasoned that the 1981 passage of the Whistleblowers’ Protection
       Act (“WPA”) after the plaintiff’s 1976 termination meant that there must have
       existed prior thereto a common law counterpart to the WPA: consequently, it held
       that a public policy claim for discharge in retaliation for reporting violations to a
       superior (i.e., a common law counterpart to the WPA) was available in 1976. Id. at
       620. The court was silent as to whether such a common law claim survived the
       WPA’s passage, which essentially limited the reach of its holding to discharges
       occurring before the WPA’s passage in 1981. Plaintiff’s discharge, on the other
       hand, occurred in 2000, well after the passage of the WPA. Therefore, Watassek is
       not controlling. . . .


       We find more persuasive Covell v. Spengler, 141 Mich. App. 76, 366 N.W.2d 76,
       79-80 (Mich. Ct. App. 1985) (holding that no common-law cause of action for a
       discharge in retaliation for reporting violations existed before passage of the WPA,
       which thereafter became the exclusive remedy for an employee whose employment
       is terminated in retaliation for reporting an employer’s violation of the law), as well
       as Shuttleworth v. Riverside Osteopathic Hosp., 191 Mich. App. 25, 477 N.W.2d
       453, 454-55 (Mich. Ct. App. 1991) (declining to find a common law counterpart to
       the WPA). Indeed, Shuttleworth specifically criticized the Watassek court’s
       approach, which it viewed as “nothing more than an attempt to give preenactment
       effect to a statutory right by fabricating a supposed preexisting common-law right
       wholly from the provisions of the subsequently enacted statute.” Id. at 455. We

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        therefore hold that Michigan does not recognize a common law cause of action for
        an employee who has been discharged for reporting violations of law to a superior.


72 Fed. Appx. at 329-30 (footnote omitted). Cushman-Lagerstrom further held that Meury’s cursory

alternative holding was also unpersuasive insofar as it adopted the view of Watassek. Id. at 329.

Cushman-Lagerstrom thus held that “Michigan does not recognize a common law cause of action

for an employee who has been discharged for reporting violations of law to a superior” in general.

Id. at 330.


        Scott’s public policy claim cannot be distinguished from Cushman-Lagerstrom. Scott, like

the plaintiff there, cites the unpersuasive cases of Watassek and Meury, and no others, to support her

assertion that her cause of action is cognizable.           Appellant’s Br. at 24.       Just as the

Cushman-Lagerstrom plaintiff had brought no cognizable public policy claim for retaliatory

discharge, neither has Scott done so.


        Therefore, the district court did not err when it dismissed Scott’s Michigan public policy

claim based on her internal complaints.


                                                 B.


        Scott’s ELCRA claim presents no genuinely disputed issue of material fact because Scott has

not supplied sufficient Rule 56 evidence to demonstrate a causal connection between her racial

discrimination complaints and her termination, as is required to establish a prima facie case under

ELCRA. See Barrett v. Kirtland Cmty. Coll., 628 N.W.2d 63, 70 (Mich. Ct. App. 2001).

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       The elements of a prima facie case under ELCRA are as follows:


       (1) that the plaintiff 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.


Id. Arguably, the first and second elements are met, respectively, because Scott complained about

alleged illegal racial discrimination, and because Konal and Nixon (both of whom approved Todd’s

termination of Scott) knew about Scott’s complaints. The third element is met because Scott’s

termination qualifies as an adverse employment action.


       Even assuming, however, that the first, second, and third prima facie elements are met, Scott

has not sufficiently established the fourth element, i.e., a causal connection between her termination

and her discrimination complaints. The Michigan Supreme Court’s recent opinion in Garg v.

Macomb County Community Mental Health Services is analogous to this case and supports the

conclusion that Scott has not adequately established the required causal connection between her

termination and her racial discrimination complaints. See 696 N.W.2d 646, 660-61 (Mich. 2005).


       In Garg, the Michigan Supreme Court held that the employee plaintiff had supplied

insufficient evidence to establish a causal connection between her supervisor’s denial of a promotion

request and her filing of an internal grievance. Id. The Garg plaintiff had filed a grievance

complaining that she had suffered discrimination in employment on the basis of her national origin.

Id. at 655. The Garg plaintiff’s supervisor, Kent Cathcart, received the grievance, which was denied


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without investigation. Id. at 651. Cathcart subsequently denied one of the Garg plaintiff’s requests

for promotion. Id. at 651. The plaintiff filed other promotion requests involving four other

supervisors. Id. at 651, 660. These other promotion requests were denied as well. Id. These other

four supervisors “had no knowledge of plaintiff’s grievance.” Id.


          The Michigan Supreme Court held on these facts that “a juror could not reasonably conclude

that the reasons behind the denials within [the place of employment] were related to the grievance,”

because no evidence “suggest[ed] any distinction between the promotion denial that occurred while

plaintiff was in Cathcart’s chain of command and those denials involving supervisors who had no

knowledge of plaintiff’s grievance.” Id. at 660. The supervisors who lacked knowledge of the Garg

plaintiff’s grievance consequently “could not have ‘retaliated’ against plaintiff for its filing.” Id.

Moreover, the Garg plaintiff’s qualifications had not “changed in any meaningful way in the time

between the [promotion] denial by Cathcart and the denials by the other supervisors.” Id.


          Since the Garg plaintiff had been treated the same by all supervisors, and her qualifications

had not materially changed, the plaintiff had only one basis for asserting that Cathcart had retaliated

against her for filing a grievance: time-order, i.e., the grievance preceded Cathcart’s promotion

denial. See id. at 660-61. But time-order is insufficient as a matter of law to establish a causal

connection between an adverse employment action and protected activity. Id. Therefore, no juror

could reasonably find that Cathcart’s promotion denials were causally related to the grievance. Id.

at 660.



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       Garg controls the causation issue in this case. Here, Scott’s termination involved three

supervisors (Konal, Nixon, and Todd) and one company lawyer (Cooper), all of whom agreed that

Scott could be fired for job abandonment but only two of whom knew about Scott’s racial

discrimination complaints. Konal and Nixon alone knew about Scott’s complaints. Similarly, in

Garg five supervisors denied the plaintiff’s requests for promotion but only one, Cathcart, knew

about the plaintiff’s grievance. Just as no evidence in Garg suggested any distinction between the

promotion denials by Cathcart and the four other supervisors, here no evidence suggests such a

distinction between Konal’s and Nixon’s position favoring termination and Todd’s and Cooper’s

identical inclination. Just as the Garg supervisors all treated the plaintiff the same way regardless

of whether they knew about her grievance, here Konal, Nixon, Todd, and Cooper all agreed that

Scott could be fired for job abandonment regardless of whether they knew about her racial

discrimination complaints. In Garg, no juror could reasonably find that Cathcart’s denial of

promotion had anything to do with the grievance. Likewise, in this case Todd’s and Cooper’s

agreement that Scott could be fired, despite not knowing about her complaints, prevents any

reasonable inference of a causal connection between Scott’s termination and her complaints.


       One might argue that Garg is distinguishable from this case by pointing out that in Garg

successive supervisors denied promotions apparently without Cathcart’s input, while in this case

Scott’s superiors consulted each other. Konal and Nixon, the argument could be made, might have

retaliated against Scott for her complaints by convincing Todd and Cooper to fire Scott. But such

an argument would be unpersuasive for two reasons. First, Scott has not argued in her brief that


                                               - 18 -
No. 05-2151
Scott v. Total Renal Care, Inc., et al.

Konal or Nixon compromised Todd’s or Cooper’s independent judgment. Nor has Scott produced

any Rule 56 evidence that would support such an argument, such as elicited deposition testimony

from Todd or Cooper that he was ambivalent about firing Scott before coming under pressure from

Konal or Nixon.


       Second, Todd’s preliminary decision to fire Scott must have been made independent of any

influence from Konal or Nixon because Todd warned Scott that she could be terminated before he

consulted Konal and Nixon. The record indicates, therefore, that Todd arrived at his initial decision

to terminate Scott just as independently as the four Garg supervisors who denied the plaintiff’s

promotion requests arrived at their decisions. And the undisputed testimony of Konal stated that

Todd also made the ultimate decision to terminate Scott. On this record, Garg cannot be

distinguished from this case on the basis that Konal or Nixon unduly influenced Todd or Cooper.

Garg thus supports the conclusion that Scott has not produced sufficient Rule 56 evidence of

causation to survive summary judgment. Scott has not established a prima facie case for retaliation

under ELCRA.


                                                III.


       For the foregoing reasons, the district court’s judgment is affirmed.




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