            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



THOMAS TOLES,                                                     UNPUBLISHED
                                                                  October 10, 2019
              Plaintiff-Appellant,

v                                                                 No. 342285
                                                                  Genesee Circuit Court
MICHIGAN BELL TELEPHONE COMPANY,                                  LC No. 16-107452-CD

              Defendant-Appellee.


Before: REDFORD, P.J., and JANSEN and LETICA, JJ.

PER CURIAM.

        Plaintiff, Thomas Toles, appeals as of right the trial court’s order granting summary
disposition on his claim of race-based employment discrimination in favor of defendant,
Michigan Bell Telephone Company, under MCR 2.116(C)(10). We affirm.

                                     I. BACKGROUND

         Plaintiff brought this employment discrimination action under the Elliott-Larsen Civil
Rights Act (ELCRA), MCL 37.2101 et seq., on the basis of several of defendant’s managers
permitting and enabling a discriminatory workplace environment by making racially
discriminatory statements, disproportionately disciplining African-American employees, and
failing to report allegations of discriminatory conduct. Plaintiff began working as a premises
technician at defendant’s Flint, Michigan, location in 2013. Plaintiff was responsible for
installing and repairing U-verse telephone, Internet, and television services at customers’
residences. Plaintiff received a work vehicle and worked independently. Plaintiff was also
allocated two 15-minute breaks and one unpaid meal break. During the period relevant to
plaintiff’s claim, plaintiff reported to a network services manager (“NSM”) and an area manager.

        Plaintiff alleged that defendant’s managers treated African-American employees less
favorably than Caucasian employees, made racist comments, and contributed to or allowed a
racially discriminatory atmosphere. Plaintiff also alleged that defendant’s actions constituted
race discrimination in violation of the ELCRA and that he suffered economic and noneconomic
damages because of defendant’s actions. Plaintiff further alleged that defendant took adverse
employment actions against him, including issuing verbal and written discipline and suspending


                                              -1-
him. Plaintiff argued that these adverse employment actions gave rise to an inference of race-
based discrimination and that defendant treated plaintiff and other employees in the same
protected class less favorably than similarly situated Caucasian employees.

        Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that
plaintiff did not establish a prima facie claim of discrimination because he did not suffer any
adverse employment action and plaintiff failed to demonstrate that defendant’s reason for the
disciplinary actions were a pretext for unlawful discrimination.

        In response to defendant’s motion, plaintiff identified only one adverse employment
action: the NSM issued him a one-day suspension in January 2014 for a misuse of company time
when he took an unauthorized work break, including stopping at his aunt’s house, on his way
back to the Flint garage. Plaintiff presented evidence that defendant’s reason for this suspension
was pretextual. Plaintiff’s supporting evidence included defendant’s managers’ multiple racially
discriminatory comments, violations of defendant’s policies for reporting and addressing
discrimination allegations, tolerance of a discriminatory atmosphere, and discipline of African-
American employees more frequently than Caucasian employees.

        Defendant responded that plaintiff failed to demonstrate that he was treated less favorably
than individuals outside of his protected class.

        Although the trial court initially granted defendant’s motion for summary disposition and
dismissed plaintiff’s claim without prejudice, it allowed plaintiff the opportunity to present
admissible evidence of disparate treatment as well as a racially-motivated adverse employment
action. And the trial court permitted supplemental briefing regarding whether plaintiff suffered a
financial loss because of his suspension and permitted plaintiff to move to reinstate the case or
refile his claim if he was able to present admissible evidence of disparate treatment and a racial
motivation for his suspension.

        After supplemental briefing, the trial court found that, as an African-American, plaintiff
was a member of a protected class and that he was qualified for his employment position. The
trial court noted that the parties disputed whether plaintiff suffered an adverse employment
action. The trial court further found that plaintiff’s proffered comparable examples of less severe
discipline involving Caucasian employees, which were the basis for plaintiff’s disparate
treatment argument, were dissimilar and not comparable to plaintiff and his disciplinary
treatment. The trial court further determined that plaintiff’s allegations of discriminatory
conduct against him and other African-American employees did not establish that defendant’s
articulated reason for plaintiff’s one-day suspension was pretextual. The trial court then granted
defendant’s motion for summary disposition and dismissed plaintiff’s claim.

       Plaintiff appeals as of right.

                                  II. STANDARD OF REVIEW

        We review de novo a trial court’s decision to grant a motion for summary disposition.
See Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775
NW2d 618 (2009). A motion for summary disposition under MCR 2.116(C)(10) tests the factual
sufficiency of a claim and may be granted when there is no genuine issue of material fact and the
                                                -2-
moving party is entitled to judgment as a matter of law. Joseph v Auto Club Ins Ass’n, 491 Mich
200, 206; 815 NW2d 412 (2012). In reviewing such a motion, a court considers the pleadings,
affidavits, depositions, admissions, and documentary evidence in a light most favorable to the
nonmoving party. Id. “A genuine issue of material fact exists when the record leaves open an
issue on which reasonable minds could differ.” Bennett v Detroit Police Chief, 274 Mich App
307, 317; 732 NW2d 164 (2006).

                                       III. ANALYSIS

        Plaintiff argues the trial court erred by: (1) determining that he failed to establish a prima
facie claim of discrimination1; and (2) failing to consider evidence that defendant’s reason for
plaintiff’s one-day suspension was pretextual. We disagree.

                                    A. PRIMA FACIE CLAIM

        The ELCRA prohibits an employer from discriminating against an individual on the basis
of race. Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 606; 886 NW2d 135 (2016). In
relevant part, MCL 37.2202(1)(a) provides that an employer may not:

       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 may prove unlawful discrimination on the basis of direct or indirect evidence.
Hazle v Ford, 464 Mich 456, 462; 628 NW2d 515 (2001). Direct evidence is “evidence which,
if believed, requires the conclusion that unlawful discrimination was at least a motivating factor
in the employer’s actions.” Id. (quotation marks and citation omitted). Absent direct evidence of
unlawful discrimination, 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
discrimination” by meeting the requirements set forth in McDonnell Douglas v Green, 411 US
792; 93 S Ct 1817; 36 L Ed 2d 668 (1973) (quotation marks omitted). To do so, a plaintiff must
show that (1) he is a member of a protected class; (2) he was subject to an adverse employment



1
  Arguably, plaintiff abandoned any argument challenging the trial court’s determination that he
failed to establish a prima facie claim of race discrimination. Although, he argues that his
suspension constituted an adverse employment action, he never specifically addresses the trial
court’s determination that he failed to present evidence that the suspension occurred under
circumstances giving rise to an inference of discrimination. See Yee v Shiawassee County Bd of
Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002) (“[W]here a party fails to brief the
merits of an allegation of error, the issue is deemed abandoned by this Court” (quotation marks
omitted)). However, generously reading plaintiff’s arguments relating to pretext, which address
the alleged disparate treatment between defendant’s Caucasian and African American
employees, we will not treat plaintiff’s claim as abandoned.


                                                 -3-
action; (3) he was qualified for the position; and (4) he suffered the adverse employment action
under circumstances that give rise to an inference of unlawful discrimination. Id. at 463; see also
Wilcoxon v Minn Mining & Mfg Co, 235 Mich App 347, 360-361; 597 NW2d 250 (1999).

        A plaintiff can demonstrate an inference of unlawful discrimination by showing that an
employer treated employees who were similarly situated to the plaintiff in all relevant respects,
except for their respective races, unequally to the plaintiff. Hecht, 499 Mich at 607-608. “In
order for this type of ‘similarly situated’ evidence alone to give rise to such an inference,
however, our cases have held that the ‘comparable’ employees must be ‘nearly identical’ to the
plaintiff in all relevant respects.” Id. at 608. Additionally, a plaintiff must demonstrate that he
or she was treated differently than persons of a nonprotected class for the same or similar
conduct. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538; 470 NW2d 678
(1991). “Under either the direct evidence test or the McDonnell Douglas test, a plaintiff must
establish a causal link between the discriminatory animus and the adverse employment decision”
in order to establish the plaintiff’s prima facie discrimination claim. Sniecinski v Blue Cross and
Blue Shield of Mich, 469 Mich 124, 134-135; 666 NW2d 186 (2003).

        Here, plaintiff failed to establish a prima facie case of race discrimination because there
was no evidence he suffered the adverse employment action under circumstances that give rise to
an inference of unlawful discrimination. Hazle, 464 Mich at 463; Sniecinski, 469 Mich at 134-
135. As an initial matter, plaintiff did not assert that he had direct evidence of discrimination.
Accordingly, plaintiff was required to satisfy the McDonnell Douglas test but he failed to do so.
Hazle, 464 Mich at 463.

        Plaintiff failed to present evidence to establish that the suspension occurred under
circumstances that gave rise to an inference of unlawful discrimination because he did not
properly identify similarly situated Caucasian employees.2 Hecht, 499 Mich at 607-608.
Plaintiff identified a technician as a similarly situated, Caucasian employee who returned from
disability leave shortly after plaintiff returned from his disability leave. This Caucasian
technician received a new work vehicle and more comprehensive training on updated work
procedures than plaintiff received. But plaintiff presented no evidence that defendant failed to
follow company procedures for assigning the vehicles or conducting training. Additionally,
these apparent differences in treatment were not disciplinary in nature and, therefore, did not
demonstrate that defendant treated plaintiff less favorably than the technician for the same or
similar conduct. See Reisman, 188 Mich App at 538.

        Plaintiff provided other instances to demonstrate African-American and Caucasian
employees were disciplined differently: (1) the technician mentioned above, who damaged
company property, but was not disciplined; (2) another technician, who brought a gun on site
and, although he received a five-day suspension, was not terminated; (3) one employee, who
masturbated in his work vehicle, but was not terminated; and (4) another employee, who used



2
 Although the parties previously disputed whether plaintiff’s one-day suspension qualified as an
adverse employment action, defendant now concedes that it does.


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cocaine while at work, but was not terminated.3 Although these Caucasian employees were in a
similar position as plaintiff, their conduct was not sufficiently similar to plaintiff’s conduct of
taking an extended, unapproved break. Thus, plaintiff failed to offer evidence proving disparate
treatment or demonstrating an inference of discrimination. See Hecht, 499 Mich at 607-608.

        Moreover, the provided employee discipline data did not support plaintiff’s
discrimination claim. Plaintiff argued that the NSM issued more, but less severe, disciplinary
actions to Caucasian employees. He also argued that, in contrast, the NSM issued more severe
disciplinary actions, including termination, with fewer opportunities to correct improper conduct
to African-American employees. For example, plaintiff compared the NSM’s discipline of one
Caucasian employee, which included three five-day suspensions, one two-day suspension, one
one-day suspension, and a verbal warning, with the NSM’s discipline of an African-American
technician, which included two one-day suspensions, one five-day suspension, and termination.
Plaintiff asserted that the NSM terminated the African-American employee after fewer
opportunities to correct his behavior than the Caucasian employee. However, the record reveals
that these employees both received the same discipline—a written warning and a one-day
suspension—for the same conduct of failing to secure their work vehicle. The African-American
employee received the five-day suspension for failing to secure his work vehicle on a separate
occasion, whereas the Caucasian employee received discipline for other conduct, including a
work attendance issue. This comparison did not demonstrate that the NSM generally treated
Caucasian employees more favorably because the NSM issued the same discipline for the same
conduct, and the other conduct and disciplinary results were not sufficiently similar. See id.

        Plaintiff likewise failed to demonstrate that this disciplinary data created an inference that
the NSM disciplined plaintiff more severely because of his race. Hazle, 464 Mich at 463.
Plaintiff did not present any evidence that a one-day suspension for misusing company time for
an unapproved break was a deviation from disciplinary standards. Conversely, the disciplinary
data supports the conclusion that the NSM treated African-American employees, including
plaintiff, more favorably than Caucasian employees who also misused company time. Plaintiff
and another African-American technician each received a written warning and one-day
suspension from the NSM for misusing company time. In contrast, the NSM gave a Caucasian
employee written warning and a five-day suspension for misusing company time and gave a


3
  It is unclear whether the NSM was the area manager for all of the proffered Caucasian
employees. The provided discipline data indicates that the NSM issued various written and
verbal warnings and suspensions to three of the employees. The area manager testified during
her deposition that another manager addressed the allegation that the remaining employee
masturbated in his work vehicle. These facts support the conclusion that plaintiff failed to
establish that the same managers supervised the comparable Caucasian employees and plaintiff,
the same managers issued plaintiff’s proffered examples of disciplinary action, and plaintiff was
similarly situated but treated less favorably than the proffered Caucasian employees. See Town v
Mich Bell Telephone Co, 455 Mich 688, 699-700; 568 NW2d 64 (1997) (holding that the
plaintiff must demonstrate that all relevant aspects of the plaintiff’s employment situation were
nearly identical to the comparable employee’s employment situation).


                                                 -5-
Caucasian technician written warnings and one-day and three-day suspensions for two instances
of misusing company time. Plaintiff failed to present evidence of a similarly situated Caucasian
employee who received more favorable treatment than he or any other African-American
technician received. The trial court thus properly concluded that plaintiff’s examples of
comparative employees and conduct were unpersuasive, not sufficiently similar, and did not
support his discrimination claim. See Hecht, 499 Mich at 608.

        Furthermore, plaintiff failed to demonstrate how defendant’s differing treatment of
plaintiff and a specific Caucasian technician, and the NSM’s general discipline record of
African-American and Caucasian employees, were related to plaintiff’s suspension. Sniecinski,
469 Mich at 134-135. Plaintiff did not show that the NSM disciplined him differently because of
his race. Plaintiff also did not present evidence that his conduct was not punishable or was
unfairly punished. Plaintiff presented no evidence that defendant, or more specifically the NSM,
treated or disciplined a Caucasian employee more favorably for taking an unapproved break at a
family member’s house. Therefore, plaintiff failed to establish a causal link between his race
and the adverse employment action. See id.

       In conclusion, plaintiff failed to establish that the suspension occurred under
circumstances that gave rise to an inference of unlawful discrimination because he did not
demonstrate that defendant treated similarly situated Caucasian employees more favorably.
Moreover, plaintiff failed to establish a causal link between his race and the suspension.
Therefore, the trial court properly determined there were no genuine issues of material fact
regarding whether plaintiff had established a prima facie claim of race discrimination and
properly determined that defendant was entitled to summary disposition as a matter of law. See
Hazle, 464 Mich at 463; Joseph, 491 Mich at 206.

                                          B. PRETEXT

         Plaintiff’s primary argument on appeal is that the trial court erroneously ignored his
evidence of pretext. But because the trial court did not err in determining that plaintiff failed to
establish a prima facie claim of discrimination, the burden never shifted to defendant to articulate
a non-discriminatory reason for its adverse employment action. See id. at 464 (stating that if
plaintiff establishes a prima facie case of discrimination, the employer may articulate and “has
the burden of producing evidence that its employment actions were taken for a legitimate,
nondiscriminatory reason”). Given that the burden never shifted to defendant, we decline to
address plaintiff’s arguments regarding pretext. See Major v Newberry, 316 Mich App 527, 541-
542; 892 NW2d 402 (2016) (stating that if the employer articulates a non-discriminatory reason
for its given action, a plaintiff can prevail if he presents evidence that the employer’s explanation
constituted a pretext for discrimination).

       Affirmed.



                                                              /s/ James Robert Redford
                                                              /s/ Kathleen Jansen
                                                              /s/ Anica Letica

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