            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



JAMES HAMPTON,                                                     UNPUBLISHED
                                                                   November 26, 2019
               Plaintiff-Appellant,

v                                                                  No. 342286
                                                                   Genesee Circuit Court
MICHIGAN BELL TELEPHONE COMPANY,                                   LC No. 16-107442-CD

               Defendant-Appellee.


Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

        Plaintiff, James Hampton, appeals as of right a trial court order granting summary
disposition in favor of his former employer defendant, Michigan Bell Telephone Company,
pursuant to MCR 2.116(C)(10). We affirm.

        Plaintiff commenced this action alleging that defendant, his former employer, engaged in
race-based discrimination and retaliation in violation of the Elliott-Larsen Civil Rights Act
(ELCRA), MCL 37.2101 et seq. The trial court granted summary disposition in favor of
defendant after concluding that there was no genuine issue of material fact to support that
plaintiff’s termination was (1) racially motivated or (2) in retaliation for engaging in protected
activity.

                                  I. STANDARD OF REVIEW

       “We review de novo a trial court’s decision on a motion for summary disposition to
determine whether the moving party is entitled to judgment as a matter of law.” Cuddington v
United Health Servs, Inc, 298 Mich App 264, 270-271; 826 NW2d 519 (2012). “In reviewing a
motion brought under MCR 2.116(C)(10), we review the evidence submitted by the parties in a
light most favorable to the nonmoving party to determine whether there is a genuine issue
regarding any material fact.” 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).




                                               -1-
                             II. RACE-BASED DISCRIMINATION

        In his amended complaint, plaintiff alleged that defendant discriminated against him on
the basis of race and in violation of the ELCRA. MCL 37.2202(1)(a) provides, in relevant part,
as follows:

               (1) An employer shall not do any of the following:

               (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate
       against an individual with respect to employment, compensation, or a term,
       condition, or privilege of employment, because of religion, race, color, national
       origin, age, sex, height, weight, or marital status.

       “In some discrimination cases, the plaintiff is able to produce direct evidence of racial
bias. In such cases, the plaintiff can go forward and prove unlawful discrimination in the same
manner as a plaintiff would prove any other civil case.” Hazle v Ford Motor Co, 464 Mich 456,
462; 628 NW2d 515 (2001). Direct evidence of racial discrimination 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).

        “In many cases, however, no direct evidence of impermissible bias can be located.” Id.
In these cases, “[i]n order to avoid summary disposition, the plaintiff must then proceed through
the familiar steps set forth in [McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36
L Ed 2d 668 (1973)].” Id. The McDonnell Douglas framework “allows a plaintiff to 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.” Id. (quotation marks and citations omitted).
Under McDonnell Douglas, a plaintiff must establish a prima facie case of discrimination by
presenting evidence that (1) he was a member of a protected class; (2) he suffered an adverse
employment action; (3) he was qualified for the position; and, (4) the adverse action occurred
“under circumstances giving rise to an inference of unlawful discrimination.” Id. at 463.

        If a plaintiff establishes a prima facie case of discrimination, “a presumption of
discrimination arises.” Id. (quotation marks and citation omitted). However, summary
disposition is not necessarily precluded; rather, the burden shifts to the defendant to “articulate a
legitimate, nondiscriminatory reason for its employment decision in an effort to rebut the
presumption created by the plaintiff’s prima facie case.” Id. at 464. “If the employer makes
such an articulation, the presumption created by the McDonnell Douglas prima facie case drops
away.” Id. at 465. Then, in order to survive a motion for summary disposition, “the plaintiff
must demonstrate that the evidence in the case, when construed in the plaintiff’s favor, is
sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating
factor for the adverse action taken by the employer toward the plaintiff.” Id. (quotation marks
and citations omitted). Specifically, a plaintiff “must not merely raise a triable issue that the
employer’s proffered reason was pretextual, but that it was a pretext for [unlawful]
discrimination.” Id. at 465-466 (quotation marks and citations omitted).

       In this case, in responding to the motion for summary disposition, plaintiff did not allege,
nor can he prove, direct evidence of discrimination. Applying the McDonnell Douglas burden

                                                -2-
shifting analysis, it is undisputed that plaintiff established the first three elements of a prima facie
case of race-based discrimination. Specifically, defendant does not dispute that plaintiff was a
member of a protected class, that plaintiff suffered an adverse employment action when he was
terminated, and that plaintiff was qualified for his former position. See id. at 463.

        With respect to the fourth element, plaintiff contends that the termination occurred under
circumstances giving rise to an inference of unlawful discrimination because following
plaintiff’s termination defendant hired a Caucasian manager to replace him. Plaintiff cites Lytle
v Malady (On Rehearing), 458 Mich 153, 177; 579 NW2d 906 (1998) in support of his position.
In Lytle, the Michigan Supreme Court explained that in order to establish a prima facie case of
age discrimination, the plaintiff was required to prove the following elements: “(1) she was a
member of the protected class; (2) she suffered an adverse employment action; (3) she was
qualified for the position; and (4) she was replaced by a younger person.” Id. (emphasis added).
See also Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 608; 886 NW2d 135 (2016)
(noting that a plaintiff may show race discrimination by proving that the plaintiff was replaced
by a person of another race or by using the “similarly situated” method). Plaintiff argues that in
this case he can show that he was replaced with someone who was not a member of his protected
class.

       It is unclear who replaced plaintiff following his termination, and there was conflicting
evidence whether defendant in fact hired a Caucasian male to replace plaintiff. However,
viewing the evidence in a light most favorable to plaintiff, there was sufficient evidence
regarding whether plaintiff’s termination occurred under circumstances that gave rise to the
inference of unlawful discrimination. See id.

        Because plaintiff successfully set forth all four elements of a prima facie case of race-
based discrimination, the burden shifted to defendant to “articulate a legitimate,
nondiscriminatory reason for its employment decision in an effort to rebut the presumption
created by the plaintiff’s prima facie case.” Hazle, 464 Mich at 464. In this case, defendant
satisfied this burden. John Clark, plaintiff’s second-level manager, testified that he decided to
terminate plaintiff because plaintiff recorded a meeting with plaintiff’s first-level supervisor
Sheri Balliet and Tim Schnorenberg, a union representative; shared the recording with another
employee named Tera Dunning; and, lied to Dunning by accusing Schnorenberg of stating that
he did not know whether to call Dunning a “he, she, or it.” Clark also considered that plaintiff
falsified company records by untruthfully representing that he had verified that a technician had
a valid driver’s license and that he verified that another technician’s first aid kit was not expired.
In addition, Clark testified that he considered “the bigger picture” of plaintiff’s relationships with
his peers and plaintiff’s disruption of workplace relationships. Clark’s testimony was a sufficient
articulation of legitimate nondiscriminatory rationale to support his decision to terminate
plaintiff.

        Considering that defendant satisfied its burden to articulate a legitimate,
nondiscriminatory reason for the termination, in order to avoid summary disposition plaintiff was
required to show that there was a question of fact regarding whether defendant’s rationale was a
pretext for unlawful discrimination. See id. at 465-466. Pretext may be established by



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       (1) by showing that the reason(s) had no basis in fact, (2) if the reason(s) had a
       basis in fact, by showing that they were not actual factors motivating the decision,
       or (3) if the reason(s) were motivating factors, by showing that they were jointly
       insufficient to justify the decision. [Meagher v Wayne State Univ, 222 Mich App
       700, 711-712; 565 NW2d 401 (1997).]

“However, the soundness of an employer’s business judgment may not be questioned as a means
of showing pretext.” Id.

        In this case, plaintiff failed to cite evidence to create an issue of fact regarding whether
defendant’s proffered rationale for the termination was pretextual. Plaintiff argues that the
racially disparaging remarks that defendant’s employees made over the years created a question
of fact regarding pretext in that the remarks show defendant’s motivation. Plaintiff specifically
cites a comment referring to Kwanzaa that one of his peers, Chris LaMarbe, allegedly made at a
holiday party when plaintiff went to sign a holiday card for Balliet. However, this comment was
remote in time to the termination, and LaMarbe had no input into plaintiff’s termination.
Similarly, plaintiff’s argument that he was accused of “hitting on” elderly women was not
evidence of pretext. There was no evidence this statement was racially motivated or that the
person who made the statement had any input into plaintiff’s termination. There is no evidence
that any of plaintiff’s superiors or anyone involved in the decision to terminate plaintiff made
racially insensitive comments. In short, the stray remarks cited by plaintiff did not create a
question of fact regarding pretext.

        Plaintiff also argues that defendant treated him differently from other managers. Plaintiff
argues that there was evidence that other first-level managers swore at employees, falsified
certain forms, hid an accident, and had an improper sexual relationship with a subordinate.
Plaintiff argues that none of these infractions led to termination. This argument lacks merit.

       To prove disparate treatment, the United States Court of Appeals for the Sixth Circuit1
has explained the follwoing:

               It is fundamental that to make a comparison of a discrimination plaintiff’s
       treatment [sic] to that of non-minority employees, the plaintiff must show that the
       “comparables” are similarly-situated in all respects. Thus, to be deemed
       “similarly-situated”, the individuals with whom the plaintiff seeks to compare
       his/her treatment must have dealt with the same supervisor, have been subject to
       the same standards and have engaged in the same conduct without such
       differentiating or mitigating circumstances that would distinguish their conduct
       or the employer’s treatment of them for it. [Mitchell v Toledo Hosp, 964 F2d 577,
       583 (CA 6, 1992) (citations omitted) (emphasis added).]




1
  “Although lower federal court decisions may be persuasive, they are not binding on state
courts.” Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).


                                                -4-
        In this case, there is no evidence to support that another first-level supervisor engaged in
the same or similar conduct as plaintiff. As noted above, Clark testified that he decided to
terminate plaintiff because plaintiff recorded a meeting with his supervisor and a union
representative, provided the recording to an employee, and misrepresented what the union
representative said. Clark also explained that plaintiff verified a subordinate’s driver’s license
when the license was invalid and that plaintiff incorrectly verified that a first aid kit was not
expired. In addition, Clark testified that he made his decision in the context of plaintiff’s
disruptive relationships with his peers and with the union. Plaintiff fails to cite evidence to show
that another first-level supervisor engaged in similar conduct and had similar disruptive
relationships with peers and with the union. As such, there is no evidence of disparate treatment,
and plaintiff has failed to establish a genuine issue of material fact regarding pretext.

        Plaintiff also argues that the trial court improperly relied on the “same group inference”
when it granted the motion for summary disposition. Plaintiff is correct that the “same-group
inference” is an impermissible reason to find that there was no discrimination. See, e.g., Oncale
v Sundowner Offshore Servs, Inc, 523 US 75, 78; 118 S Ct 998; 140 L Ed 2d 201 (1998)
(“Because of the many facets of human motivation, it would be unwise to presume as a matter of
law that human beings of one definable group will not discriminate against other members of
their group.”) (quotation marks and citation omitted). However, in this case, the trial court’s
reference to Clark’s race was limited and was not the central analysis of the trial court’s
reasoning. Instead, the trial court articulated why the evidence was insufficient to create an issue
of material fact regarding pretext. Moreover, as previously discussed, based on the record
evidence the trial court did not err in holding that there was no genuine issue of material fact
regarding plaintiff’s claim. Accordingly, the trial court did not err in granting summary
disposition. See Gleason v Mich Dep’t of Trans, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A
trial court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong
reason.”).

        In sum, the trial court did not err in granting summary disposition in favor of defendant
with respect to plaintiff’s claim of race-based discrimination under the ELCRA.

                                       II. RETALIATION

       Plaintiff argues the trial court erred in granting summary disposition with respect to his
claim of unlawful retaliation.

        Under the ELCRA, it is unlawful to “[r]etaliate or discriminate against a person because
the person has opposed a violation of [the] act.” MCL 37.2701(a). To establish a prima facie
case of retaliation, a plaintiff must show:

               (1) that he engaged in a protected activity; (2) that this was known by the
       defendant; (3) that the defendant took an employment action adverse to the
       plaintiff; and (4) that there was a causal connection between the protected activity
       and the adverse employment action. [DeFlaviis v Lord & Taylor, Inc, 223 Mich
       App 432, 436; 566 NW2d 661 (1997).]




                                                -5-
        In this case, plaintiff established the first three elements of a retaliation claim. Plaintiff
engaged in protected activity when he filed Equal Employment Opportunity Commission
complaints and commenced this lawsuit alleging race-based discrimination. In addition,
defendant does not dispute that plaintiff served notice of this lawsuit before Clark terminated
plaintiff. Therefore, defendant had notice of the protected activity. With respect to the third
element, it is undisputed that defendant took an adverse employment action against plaintiff
when defendant terminated plaintiff’s employment.

       With respect to the fourth element, “[a] plaintiff may establish a causal connection
through either direct evidence or indirect and circumstantial evidence. Direct evidence is that
which, if believed, requires the conclusion that the plaintiff’s protected activity was at least a
motivating factor in the employer’s actions.” Shaw v Ecorse, 283 Mich App 1, 14-15; 770
NW2d 31 (2009).

         In this case, there was no direct evidence to establish a causal connection between the
termination and the protected activity. Plaintiff’s cites a specific e-mail as direct evidence of
retaliation. However, the e-mail did not list plaintiff’s protected activity as a reason for the
termination. The e-mail did not refer to plaintiff filing an EEOC complaint or filing a complaint
to commence this lawsuit. Similarly, plaintiff’s argument that Balliet stated to him that she did
not want to hear “things” from third parties was not direct evidence of discrimination. Balliet
had no involvement in plaintiff’s termination and there is no evidence that Clark was aware of
Balliet’s alleged statement. In short, there was no other direct evidence of retaliation.

         “To establish causation using circumstantial evidence, the circumstantial proof must
facilitate reasonable inferences of causation, not mere speculation.” Id. (quotation marks and
citations omitted). Circumstantial evidence is “sufficient to create a triable issue of fact if the
jury could reasonably infer from the evidence that the employer’s actions were motivated by
retaliation.” Id.

        In this case, there was insufficient evidence to allow a rational jury to infer that
defendant’s actions were motivated by retaliation. Although plaintiff was terminated less than
two months after he filed the instant lawsuit, “such a temporal relationship, standing alone, does
not demonstrate a causal connection between the protected activity and any adverse employment
action.” West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003). Rather,
“[s]omething more than a temporal connection between protected conduct and an adverse
employment action is required to show causation where discrimination-based retaliation is
claimed.” Id. Plaintiff fails to cite other evidence that would create a genuine issue of material
fact regarding causation. Clark considered plaintiff’s conduct in relation to the context of his
overall tenure of employment. Clark explained that plaintiff had a history of undermining
relationships with coworkers and union representatives. Although plaintiff contends that
defendant treated other similarly situated managers differently, as previously discussed plaintiff




                                                 -6-
failed to cite evidence establishing that there were similarly situated managers who were treated
differently. In sum, there was no genuine issue of material fact regarding causation. Therefore,
the trial court did not err in granting summary disposition with respect to plaintiff’s retaliation
claim.

       Affirmed.



                                                            /s/ Stephen L. Borrello
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Deborah A. Servitto




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