                          STATE OF MICHIGAN

                           COURT OF APPEALS



KAREN CAMIL COOK,                                                   UNPUBLISHED
                                                                    October 2, 2018
               Plaintiff-Appellant,

v                                                                   No. 339879
                                                                    Wayne Circuit Court
DTE ENERGY CORPORATE SERVICES, LLC,                                 LC No. 16-002930-CD

               Defendant-Appellee.


Before: M. J. KELLY, P.J., and MARKEY and FORT HOOD, JJ.

PER CURIAM.

        In this employment dispute, plaintiff, Karen Camil Cook, appeals by right the trial court’s
order dismissing all her claims against defendant, DTE Energy Corporate Services, LLC. On
appeal, she maintains that the trial court erred when it dismissed her claims that DTE engaged in
conduct prohibited under the Persons with Disabilities Civil Rights Act (the Disabilities Civil
Rights Act), MCL 37.1101 et seq. We conclude that the trial court did not err when it
determined that Cook failed to establish a genuine issue of material fact on one or more elements
of each claim. Accordingly, we affirm.

                                        I. BASIC FACTS

        Cook began working for Mich Con in 1980 and worked for DTE after it merged with
Mich Con. Cook worked as a business support specialist. DTE expected its specialists to submit
weekly production schedules to document their work. The productivity reports tracked the
invoices that the specialist processed and how much other work he or she performed during the
week. The specialists were expected to maintain a productivity level of 90% or more. A
specialist with productivity of 90% to 124% would get a rating of “fully meets” expectations. A
specialist with productivity from 80% to 89% would get a rating of “meets many” expectations.
And a specialist with productivity less than 80% would get a rating of “does not meet”
expectations. The productivity rating was calculated using the data from days that the specialist
actually worked; the figure did not reflect time off.

       Cook took intermittent family leave to care for her father in 2010 and 2011. There was
also evidence that she suffered a fall and took time off for her injury. She additionally had
various physical ailments, such as diabetes and carpal tunnel syndrome.




                                                -1-
        Philip Arnold was Cook’s supervisor in 2010 and prepared Cook’s evaluation. He wrote
that Cook had a 114% productivity rating and gave her a “fully meets” rating for productivity,
but he noted that there were “three months of missing data” because Cook did not timely submit
“productivity schedules.” Arnold testified that that Cook’s performance had “dropped” by 2012.
He stated that he worked around Cook’s problems with making entries into the system which
were caused by her carpal tunnel syndrome. She was given a different responsibility, and the
number of payments that she had to process were reduced. Arnold stated that Cook was not
rated negatively because she took leaves of absence. Rather, he worked with her to enable her to
perform, and the goals assigned to her reflected what she had to meet.

       Arnold also raised the issue of productivity reports in Cook’s evaluation for 2012. He
gave Cook a “does not meet” rating for productivity because there was “[n]o data to assess”;
Cook “did not turn in production reports [for] the whole year.” He further wrote that they
“discussed” the problem “at least three (3) times during the year and it was never completed.”

       Arnold again discussed Cook’s need to submit production reports      in her evaluation for
2013. He gave her a “does not meet” expectations rating for productivity.   He explained that he
could not “assess her production and use of her time” because Cook          did not “submit her
production schedules.” Arnold gave Cook an overall rating of “meets         many” expectations.
Cook refused to sign the evaluation.

        Phyllis Bartell testified that she was Cook’s supervisor from late 2013 to October or
November 2014. Bartell gave Cook a “coaching” in January 2014 for attendance issues. Bartell
filled out a coaching note in February 2014. She wrote that Cook had missed 155.75 hours in the
last “rolling 12 month period,” which burdened the other employees who had to cover for her in
her absences. Bartell indicated that Cook should minimize her use of sick time. She warned
Cook that she may be subject to formal discipline or termination if she failed to improve.

        Bartell filled out another coaching note in March 2014. She related that Cook again used
sick time for part of a day and called in sick on another. She wrote that the oral reminder would
remain active for six months. Bartell wrote in the discussion notes that Cook expressed concern
that no one had told her before that her use of time off was unacceptable and that she was
working on obtaining intermittent Family Medical Leave.

       Bartell testified that Cook wanted to be exempted from going down to retrieve payments
from the kiosk because of her knees. She stated that she told Cook to contact Disability Claims
Management so that it could review her case and determine if she had a restriction. She also
reminded Cook that she still needed to submit her production sheets.

        Bartell testified that Cook was placed on a performance improvement plan as a result of
her evaluation from 2013. The plan notes showed that Cook had to submit weekly production
reports. By April 2014, Cook had been completing the reports and showed a productivity rate of
106%. Nevertheless, Bartell listed the goal as not completed because Cook did not provide
enough detail in her reports. Bartell indicated that Cook’s attendance was satisfactory during the
week. Bartell noted that Cook continued to submit her reports over the following weeks and
continued to be present for work.



                                               -2-
        Bartell summarized the results for Cook’s participation in the plan in July 2014. She
wrote that Cook completed the required productivity reports but did not consistently maintain a
100% rating. She also noted that Cook did not have any non-managed time off during the
period. Bartell congratulated Cook on her successful completion of the plan, but she warned that
the failure to maintain the “current level of performance may result in discipline, up to and
including termination without another [performance plan] opportunity.”

        Cook admitted that a document showed that her production rate dropped to 36% in the
month after she completed the performance plan. Cook also had a midyear performance review
on September 10, 2014. Bartell stated that Cook stopped submitting production reports after the
first two weeks in July. She reminded Cook that she needed to submit her production reports.
Bartell said she also told Cook that, “although she had made strides in improving her overall
productivity, she was still struggling with meeting the minimum and that [she] was not providing
the documentation for her production.”

        Cook testified that she was hospitalized after having three strokes on September 11,
2014. She stated that there were no external indications of the strokes, but there were internal
signs. She suffered from confusion and vision impairment. Cook said her doctors told her that
she could not go back to work and that she “was not fit to work at any time.” Cook took leave
from work after her hospitalization which was extended through December 2014. Cook’s
physician gave a tentative return date of March 2, 2015. The note indicated that Cook was
totally disabled and could not return to work.

        In Cook’s 2014 Evaluation, Bartell wrote that Cook was “at risk” or “off track” on
several goals. She wrote that Cook had not submitted any documentation for her work since
“late July.” As a result, her productivity for July and August was 0% and her year-to-date
productivity rating was 78%. Bartell gave her an overall rating of meets many expectations.

        On January 13, 2015, Cook submitted to examination by an independent medical
examiner, Dr. Shlomo Mandel, and he opined that Cook did not have any medical conditions that
would prevent her from returning to her regular employment activities. For that reason, DTE
sent a letter to Cook asking her to return to work by January 27, 2015, and closed her disability
claim.

        Pat Artist became Cook’s temporary supervisor in December 2014. Artist stated that she
received an e-mail from “Disability Management” indicating that Cook was expected to return
on a specific date. Cook returned to work on February 3, 2015. Cook said she thought she
informed someone that she was going to be gone on March 3, 2015, but DTE treated her as a no-
call and no-show on that day. Artist sent Cook a letter terminating her employment on March 4,
2015.

        In March 2016, Cook sued DTE. She alleged that DTE violated the Disabilities Civil
Rights Act in various ways related to her use of medical leave and short-term disability, which
included disparate treatment premised on her actual or perceived disability (Count I) and
harassment (Count II). She also alleged that DTE retaliated against her (Count III) and created a
hostile work environment (Count IV) in violation of the Disabilities Civil Rights Act because she
exercised her right to use medical leave. Finally, she alleged that DTE failed to promote her on


                                               -3-
the basis of her race in violation of the Elliott-Larsen Civil Rights Act (Count V), which Cook
later agreed to dismiss.

        DTE moved for summary disposition of Cook’s remaining claims in March 2017. The
trial court held a hearing on the motion in August 2017. After hearing arguments, the trial court
agreed that DTE had established grounds for dismissing all Cook’s claims. It determined that
Cook failed to establish that she had a disability that was unrelated to her ability to perform the
duties of her job, which precluded her claims under the Disabilities Civil Rights Act. It also
determined that Cook failed to establish that she engaged in protected activity, let alone that
there was a causal connection between her engagement in protected activity and her termination.
It similarly opined that Cook failed to present any evidence that she was harassed as a result of
her disability or that anyone made a discriminatory comment about her disability. As such, it
dismissed her harassment and hostile environment claims too. Finally, the court stated that it
was also dismissing Cook’s claims for “all the other many reasons” cited in DTE’s brief in
support of its motion for summary disposition.

        The trial court entered its order dismissing Cook’s claims for the reasons stated on the
record later that same month.

       Cook then appealed in this Court.

                                II. SUMMARY DISPOSITION

                                 A. STANDARD OF REVIEW

         On appeal, Cook argues that she presented sufficient evidence to establish a question of
fact on all four of her claims under the Disabilities Civil Rights Act. As such, she maintains that
the trial court erred when it granted DTE’s motion for summary disposition. This Court reviews
de novo a trial court’s decision on a motion for summary disposition. Barnard Mfg Co, Inc v
Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009).

               B. DISCRIMINATION PREMISED ON ACTUAL DISABILITY

        When reviewing a trial court’s decision on a motion for summary disposition, this Court
must review the moving party’s motion in the same way that the trial court was obligated to
review it. Bronson Methodist Hosp v Auto-Owners Ins Co, 295 Mich App 431, 440; 814 NW2d
670 (2012). This Court must first determine whether the moving party properly identified “the
issues as to which the moving party believes there is no genuine issue as to any material fact.”
MCR 2.116(G)(4). The moving party must be specific enough to place the non-moving party on
notice of the need to respond. Barnard Mfg, 285 Mich App at 369. The moving party must also
support the “motion with affidavits, depositions, admissions, or other documentary evidence in
support of the grounds asserted.” Id. at 369-370, citing MCR 2.116(G)(3). If the moving party
adequately supports the motion, the burden shifts to the non-moving party to establish that a
genuine issue of disputed fact exists. Barnard Mfg, 285 Mich App at 370.

        In assessing a motion for summary disposition, courts must examine all the substantively
admissible evidence proffered by the parties in the light most favorable to the non-moving party
to determine whether it establishes a question of fact. Maiden v Rozwood, 461 Mich 109, 120-

                                                -4-
121; 597 NW2d 817 (1999). A trial court should only grant a motion under MCR 2.116(C)(10)
when the evidence properly before the trial court shows that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Id.

         The Legislature provided that employment without discrimination because of a disability
is a civil right. MCL 37.1102(1). For that reason, an employer must accommodate a person with
a disability for purposes of employment unless the accommodation would impose an undue
hardship. MCL 37.1102(2). The Legislature also barred employers from engaging in certain
discriminatory practices against persons with disabilities, stating that an “an employer shall not:”

               (a) Fail or refuse to hire, recruit, or promote an individual because of a
       disability or genetic information that is unrelated to the individual’s ability to
       perform the duties of a particular job or position.

              (b) Discharge or otherwise discriminate against an individual with respect
       to compensation or the terms, conditions, or privileges of employment, because of
       a disability or genetic information that is unrelated to the individual’s ability to
       perform the duties of a particular job or position.

              (c) Limit, segregate, or classify an employee or applicant for employment
       in a way which deprives or tends to deprive an individual of employment
       opportunities or otherwise adversely affects the status of an employee because of
       a disability or genetic information that is unrelated to the individual’s ability to
       perform the duties of a particular job or position. [MCL 37.1202(1).]

        “The purpose of the act is to mandate the employment of the handicapped to the fullest
extent reasonably possible.” Peden v Detroit, 470 Mich 195, 203; 680 NW2d 857 (2004)
(quotation marks and citation omitted). To prove a violation of the Disabilities Civil Rights Act,
Cook must show: (1) that she was disabled, as defined in the act, (2) that her disability was
unrelated to her ability to perform her job duties, and (3) that DTE discriminated against her in
one of the ways prohibited under the act. Id. at 204.

        The Legislature defined a disability for purposes of the article involving employers to
mean a “determinable physical or mental characteristic of an individual” that “substantially
limits 1 or more of the major life activities of that individual and is unrelated to the individual’s
ability to perform the duties of a particular job or position . . . .” MCL 37.1103(d)(i)(A). A
disability is unrelated to an individual’s ability if the disability—with or without
accommodation—does not prevent the individual from performing the duties of a particular job
or position. MCL 37.1103(l). Thus, the Disabilities Civil Rights Act “generally protects only
against discrimination based on physical or mental disabilities that substantially limit a major life
activity of the disabled individual, but that, with or without accommodation, do not prevent the
disabled individual from performing the duties of a particular job.” Peden, 470 Mich at 204.

        DTE argued in its motion for summary disposition that Cook’s claims under the
Disabilities Civil Rights Act failed as a matter of law because she alleged in her complaint that
her disability affected her ability to perform her duties and because she represented to the Social
Security Administration and the Michigan Unemployment Agency that she was totally disabled


                                                -5-
and unable to work in any capacity. DTE supported its motion with citations to Cook’s
complaint, a letter from the Social Security Administration, and a letter from Cook’s physician.
It also submitted the notice of determination from the Michigan Unemployment Agency, and
cited Cook’s own testimony in which she stated that she applied for unemployment but that her
request was denied because she informed the agency that she was unable to work.

         The evidence DTE presented established that Cook was totally disabled and unable to
perform any job duties during the relevant time period. A condition related to an individual’s
ability to perform his or her duties is not a disability within the meaning of the Disabilities Civil
Rights Act. Consequently, if DTE’s evidence were left unrebutted, it would be entitled to
summary disposition. See MCL 37.1103(d)(i)(A); Tranker v Figgie Int’l (On Remand), 231
Mich App 115, 125; 585 NW2d 337 (1998) (stating that the plaintiff was not entitled to relief
because he admitted that he was unable to perform his job duties as a result of his condition).
Once DTE properly asserted and supported its motion in this respect, Cook had the obligation to
present evidence that established a question of fact as to whether she had a disability as defined
under the act. Barnard Mfg, 285 Mich App at 370.

       In response to DTE’s motion, Cook argued that she had numerous preexisting
conditions—diabetes, peripheral blockage, tendinitis, carpal tunnel, neck and back injury, pain,
and wrist surgery—that substantially limited her ability to perform some major life activities.
She indicated that these conditions existed from 2002 to 2015 and did not prevent her from
performing her job duties. She cited three exhibits to establish that she had a condition that
amounted to a disability: two performance evaluations and a Family Medical Leave request to
have physical therapy in July 2010. This response was insufficient to establish a question of fact
as to whether Cook had a disability within the meaning of MCL 37.1103(d)(i)(A).

         Cook discussed her various medical conditions in her statement of the facts and cited
evidence to support the existence of those conditions. She did not, however, discuss those
conditions in that portion of her response in which she argued that there was a genuine issue of
fact as to whether she had a qualifying disability. She further did not cite any evidence that
permitted an inference that her conditions substantially limited one or more of her major life
activities. She also did not identify the point at which she qualified as disabled under the
applicable law. She did not discuss the evidence that she had had a stroke and that after her
stroke she claimed that she was unable to return to work. Thus, she did not establish that, even if
she eventually did have a condition that affected her ability to perform her job duties, she
nevertheless had a qualifying disability before that point that could serve as the underlying
disability involved in her discrimination claim.

        Cook also did not rectify her failure to establish a question of fact at the hearing on
DTE’s motion. See Barnard Mfg, 285 Mich App at 380 (noting that the non-moving party may
cite evidence orally at the hearing on the motion for summary disposition). Her counsel
informed the trial court that Cook had “various disabilities,” which included “diabetes, peripheral
blockage, tendinitis, carpal tunnel, neck and back injuries, and pain,” and asserted that those
“disabilities were unrelated” to her ability to perform her work, but she failed to cite any record
evidence to support the assertion that those conditions actually met the act’s definition of a
disability or that the conditions were the relevant disability involved in DTE’s allegedly unlawful
discrimination. Cook’s trial counsel only cited Cook’s performance evaluations and e-mails that


                                                -6-
showed that Bartell was generally aware that Cook had doctor’s appointments and physical
therapy related to her back, shoulder, and wrist. She also again failed to address Cook’s stroke,
and the evidence that Cook claimed to be totally disabled and unable to work after the stroke.

        Cook’s response to DTE’s motion for summary disposition was inadequate to establish a
question of fact as to whether she had a determinable physical characteristic that substantially
limited one or more of her major life activities and which was unrelated to her ability to perform
her job duties. Peden, 470 Mich at 204. The evidence that Cook actually cited in response to
DTE’s claim that Cook was totally disabled and unable to work during the relevant timeframe,
even when viewed in the light most favorable to her, established only that she had some
problems with her back, neck, and wrist that required occasional doctor’s appointments and
therapy and which generally did not preclude her from working for some years before the events
at issue. Merely asserting that Cook was “in a protected class, with multiple disabilities” that
were “pre-stroke”, did not establish that her physical ailments qualified as disabilities under the
Disabilities Civil Rights Act and, even if those ailments qualified as disabilities, did not establish
that those were the relevant disabilities involved in DTE’s allegedly unlawful discrimination.
Her failure to cite and discuss evidence that established a question of fact on that element
essentially left DTE’s evidence unrebutted. See Barnard Mfg, 285 Mich App at 380-381 (stating
that this Court’s review of a decision on a motion for summary disposition is limited to the
evidence actually raised and considered before the trial court). Consequently, the trial court did
not err when it determined that DTE established grounds for summary disposition. See id. at 375
(concluding that the trial court properly granted summary disposition where the non-moving
party left the moving party’s evidence completely unrebutted).

        On appeal, although Cook argues that she established a question of fact as to whether she
had a qualifying disability, she merely restates the same arguments that she presented to the trial
court in her amended response to DTE’s motion for summary disposition. Therefore, on the
record before this Court, the trial court did not err when granted DTE’s motion for summary
disposition on the ground that Cook failed to establish a question of fact as to whether she had a
disability within the meaning of the Disabilities Civil Rights Act. Id. at 375.

              C. DISCRIMINATION PREMISED ON PERCEIVED DISABILITY

       Cook similarly failed to establish a question of fact as to whether DTE regarded her as
disabled.

        The Legislature defined the term disability to include those situations were an individual
is “regarded as having a determinable physical or mental characteristic described” under MCL
37.1103(d)(i). MCL 37.1103(d)(iii). As such, an employer can violate MCL 37.1202 by
engaging in the practices prohibited under that section because the employer “regarded” a person
as having a disability, even if the person did not in fact have a determinable physical or mental
characteristic described under MCL 37.1103(d)(i). See Michalski v Bar-Levav, 463 Mich 723,
731-732; 625 NW2d 754 (2001). To establish a claim under that section, Cook had to show that
(1) DTE regarded her as having a determinable physical or mental characteristic, (2) that DTE
regarded the characteristic as substantially limiting one or more of Cook’s major life activities,
and that (3) DTE regarded the characteristic as being unrelated either to Cook’s ability to
perform her duties. Id. at 732.


                                                 -7-
        In her amended brief and at oral arguments on DTE’s motion, Cook argued that there was
a question of fact as to whether DTE perceived her to be disabled; however, she did not proffer
any evidence to establish that proposition. During oral arguments she did cite e-mails between
Cook and Bartell for the proposition that Bartell knew that she had taken time off for doctor’s
appointments, physical therapy, and surgery, but the e-mails—at best—established that Bartell
knew that Cook occasionally suffered from some physical impairments. But evidence that
Bartell knew that Cook had episodic physical impairments did not establish a question of fact as
to whether DTE regarded Cook as disabled. See Chiles, 238 Mich App at 479-480 (explaining
that temporary, intermittent, or episodic impairments—even if they require extensive leave from
work—do not constitute disabilities within the meaning of the act). Moreover, since the decision
in Chiles, our Supreme Court has clarified that a plaintiff must establish that the employer
regarded the plaintiff as having a determinable physical or mental characteristic that substantially
limited one or more major life activities and that the employer regarded the characteristic as
being unrelated to the employee’s ability to perform his or her job. See Michalski, 463 Mich at
732. Cook argued before the trial court—and continues to argue on appeal—that the evidence
showed that DTE regarded Cook’s physical impairments as having “disabled” her and rendered
her “unable to perform her job” or that she was otherwise “disabled from work,” which, she
claimed, was a “major life activity.”

        By arguing that the evidence showed that DTE thought she had an impairment that
affected her ability to perform her job, Cook conceded that she could not show that DTE
regarded her as having a disability within the meaning of MCL 37.1103(d)(i)(A); more
specifically, she conceded that the evidence showed that DTE did not regard her characteristics
to be unrelated to her ability to perform her job. See Michalski, 463 Mich at 732. Consequently,
the trial court did not err when determined that Cook failed to establish a genuine issue of
material fact on one or more elements of her claim of disability discrimination premised on the
allegation that DTE regarded her as disabled. See Quinto v Cross & Peters Co, 451 Mich 358,
362-363; 547 NW2d 314 (1996).

                D. HARASSMENT AND HOSTILE WORK ENVIRONMENT

        This Court has held that “harassment or hostile work environment” claims premised on a
person’s disability are actionable under Michigan law. See Downey v Charlevoix Co Bd of Rd
Comm’rs, 227 Mich App 621, 628; 576 NW2d 712 (1998). To establish a prima facie case of
hostile work environment, Cook had to show: (1) that she belonged to a protected group, (2) that
she was subjected to communication or conduct on the basis of the protected status, (3) that she
was subjected to unwelcome conduct or communication on the basis of her protected status, (4)
that the unwelcome conduct or communication was intended to, or in fact did, interfere
substantially with her employment or created an intimidating, hostile, or offensive work
environment, and (5) respondeat superior. Id. at 629.

       DTE did not contest whether Cook belonged to a protected group for purposes of its
motion to dismiss Cook’s harassment and hostile work environment claims. Rather, it argued
that Cook could not establish that she was subjected to unwelcome conduct or comments that
were so severe that the conduct or communications substantially interfered with her work
environment. It also argued that Cook could not establish respondeat superior.



                                                -8-
       Cook responded that the evidence showed that DTE subjected her to unwelcome conduct
by subjecting her to disciplinary measures based in part on her absences and by forcing her to
return to work before she was ready. Evidence that DTE subjected Cook to disciplinary
measures does not, however, standing alone amount to unwelcome conduct or communication
“on the basis of the protected status.” Downey, 227 Mich App at 629. Cook testified that she
never heard, or had anyone tell her about, any disparaging or discriminatory remarks about
persons with disabilities at work. She also stated that she had no reason to believe that any of her
supervisors would discriminate against her on the basis of disability. In the absence of such
evidence, Cook could not show that DTE’s disciplinary measures amounted to unwelcome
conduct or communication on the basis of her status as a disabled person. See id.

        Cook also failed to establish that the disciplinary measures were intended to, or in fact
did, interfere substantially with her employment or created an intimidating, hostile, or offensive
work environment. Id. To establish this element, Cook had to present evidence that her
supervisors or coworkers created an atmosphere “so infused with hostility” toward disabled
persons that the atmosphere altered her conditions of employment. Radtke v Everett, 442 Mich
368, 385; 501 NW2d 155 (1993)(citation omitted). The standard is one of reasonableness:
“whether a hostile work environment existed shall be determined by whether a reasonable
person, in the totality of the circumstances, would have perceived the conduct at issue as
substantially interfering with the plaintiff’s employment or having the purpose or effect of
creating an intimidating, hostile, or offensive employment environment.” Id. at 394. Cook
failed to identify any evidence that her supervisor’s disciplinary measures were intended to
interfere with her employment or had the purpose or effect of creating an intimidating, hostile, or
offensive environment as perceived by a reasonable person. Accordingly, she failed to establish
that element of her hostile work environment claim as well. Downey, 227 Mich App at 629.

        Finally, Cook failed to present evidence that DTE knew or should have known that
Cook’s supervisors were harassing her and failed to take prompt remedial action sufficient to
establish respondeat superior. See Radtke, 442 Mich at 396-397. Cook asserted that she told her
supervisor that she felt that she was forced to return to work before she was ready to do so for the
sole purpose of firing her. Even assuming that Cook informed DTE that she felt that she had
been forced to return to work for the sole purpose of terminating her employment, that statement
did not constitute evidence that DTE knew or should have known that she was being subjected to
a hostile work environment on the basis of a disability. Cook failed to present any evidence that
she complained to anyone at DTE that she was being subject to unwanted conduct or
communications regarding her disability and that the actions created a hostile work environment.

      The trial court did not err when it granted DTE’s motion for summary disposition on
Cook’s harassment and hostile work environment claims. See Quinto, 451 Mich at 362-363.

                                E. UNLAWFUL RETALIATION

         In addition to the practices prohibited under MCL 37.1202, the Legislature prohibited any
person or persons from retaliating or discriminating “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.”
MCL 37.1602(a). To establish her claim of retaliation, Cook had to show: (1) that she engaged


                                                -9-
in an activity protected under the statute, (2) that DTE knew she was engaging in a protected
activity, (3) that DTE took an adverse employment action against Cook, and (4) that there was a
causal connection between the protected activity and the adverse employment action. Aho v
Dep’t of Corrections, 263 Mich App 281, 288-289; 688 NW2d 104 (2004). “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.” Id. at 289 (quotation marks and citation omitted).

        In its motion for summary disposition, DTE argued that Cook could not show that she
engaged in protected activity or that DTE’s decision to terminate her employment had a causal
relationship to any potentially protected activity. In response, Cook argued that the evidence
showed that she opposed a violation of the Disabilities Civil Rights Act and that DTE terminated
her employment in retaliation for doing so. Specifically, in her response to DTE’s motion for
summary disposition, Cook cited her own testimony in which she claimed to have “told
everybody” that “they forced [her] back to terminate [her].”

        Cook’s testimony did not establish that she was engaged in activity protected under MCL
37.1602(a). There was no evidence that Cook had made a charge, filed a complaint, testified,
assisted, or participated in an investigation, proceeding, or hearing under the Disabilities Civil
Rights Act. See MCL 37.1602(a). Moreover, telling “everybody” that DTE forced her to return
to work because it wanted to terminate her employment, at best, established that she was
opposed to DTE’s decision to inform her that she had to return to work. Nothing about the
statement permitted an inference that Cook felt that DTE’s decision violated the Disabilities
Civil Rights Act and that she was speaking out in opposition to that violation. Cook also failed
to present any evidence permitting an inference that there was causal connection between DTE’s
decision to terminate her employment and her statement protesting her recall to work. Because
Cook failed to present any evidence to establish that she engaged in activity protected by MCL
37.1602(a) or that DTE terminated her employment because she complained about being recalled
to work, she failed to establish the elements of a prima facie case of retaliation. The trial court
properly dismissed her claim of retaliation on that ground. See Quinto, 451 Mich at 362-363.

                                          F. PRETEXT

        Had Cook established a prima facie case of discrimination or retaliation under the
Disabilities Civil Rights Act, the burden would then have shifted to DTE to articulate a
legitimate business reason for terminating her employment. See Aho, 263 Mich App at 289.
DTE argued and presented evidence that it terminated Cook’s employment because of her
substandard performance over a period of months culminating in the no-call and no-show after
DTE recalled her to work. For that reason, the burden shifted back to Cook, and she had to
present evidence that established a question of fact as to whether the reason proffered by DTE
was only a pretext for unlawful discrimination. Id.

        Cook contended that DTE’s proffered reason was “untrue;” she supported that claim by
alleging that DTE did not follow its own disciplinary policies. Cook did not present any
evidence that DTE’s stated reason had no basis in fact or that the stated reason did not justify the
decision. She also did not present any evidence permitting an inference that her termination was
motivated by a discriminatory animus. See Campbell v Dep’t of Human Servs, 286 Mich App


                                               -10-
230, 241; 780 NW2d 586 (2009) (stating the ways in which an employee can establish pretext).
Cook did not analyze DTE’s disciplinary policies and did not state how the disciplinary process
that her supervisors actually used differed from the policies stated in DTE’s manuals. She also
did not explain how the differences gave rise to an inference of pretext. Instead, she merely
asserted that DTE’s failure to use some other disciplinary procedure and the shifting statements
by the department manager, Karoline Sheldon, concerning the grounds for termination permitted
an inference that DTE’s stated reason was pretext.

       Sheldon did not offer alternate or contradictory bases for Cook’s termination. Rather,
Sheldon stated they decided to terminate Cook after her no-call, no-show because of her past
performance issues; that is, she testified that the no-call, no-show precipitated the decision, but
that Cook’s performance issues were the reason she was not given further opportunities.

        Because Cook failed to present evidence that established a question of fact as to whether
DTE’s proffered reason for terminating Cook’s employment was mere pretext for unlawful
discrimination or retaliation under the Disabilities Rights Act, the trial court did not err to the
extent that it dismissed her claims on that basis too. See Maiden, 461 Mich at 120.

                                       III. CONCLUSION

       On the record before it, the trial court did not err when it dismissed each of Cook’s claims
under the Disabilities Civil Rights Act.

       We affirm. As the prevailing party, DTE may tax its costs. MCR 7.219(A).

                                                            /s/ Michael J. Kelly
                                                            /s/ Jane E. Markey
                                                            /s/ Karen M. Fort Hood




                                               -11-
                            Court of Appeals, State of Michigan

                                            ORDER
                                                                          Michael J. Kelly
Karen Camil Cook v DTE Energy Corporate Services LLC                        Presiding Judge

Docket No.    339879                                                      Jane E. Markey

LC No.        16-002930-CD                                                Karen M. Fort Hood
                                                                            Judges


               The Court orders that the September 25, 2018 opinion is hereby VACATED, and
a new opinion is attached. The new opinion corrects a drafting error in the second full paragraph on
page 7; the opinion is otherwise unchanged.


                                                         /s/ Michael J. Kelly




                              October 2, 2018
