                          STATE OF MICHIGAN

                           COURT OF APPEALS



AMIYRAH MARTIN,                                                     UNPUBLISHED
                                                                    December 22, 2016
               Plaintiff-Appellant,

v                                                                   No. 328815
                                                                    Wayne Circuit Court
LISA LANGFORD, DDS, PC,                                             LC No. 14-007744-CD
and LISA LANGFORD,

               Defendants-Appellees.


Before: SERVITTO, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Plaintiff appeals as of right a grant of summary disposition in favor of defendants in this
employment discrimination action brought arising under the Civil Rights Act (CRA), MCL
37.2101 et seq. We reverse.

        On September 9, 2013, plaintiff began working for defendants as a dental assistant.
Defendant Lisa Langford DDS, PC (Langford PC), is a domestic professional corporation, and
defendant Lisa Langford (Langford) is the president of Langford PC. Langford hired plaintiff
after both phone and in-person interviews. Plaintiff wore a hijab to her in-person interview with
Langford, and during the interview Langford asked plaintiff when she converted to Islam. The
two were prior acquaintances.

        However, tensions between the two arose, and Langford ultimately terminated plaintiff
on December 2, 2013. According to plaintiff’s deposition testimony, on the day of her
termination, when plaintiff asked Langford why she was being terminated, Langford replied that
plaintiff did not culturally fit in the environment of the office. Additionally, Langford also said
that plaintiff was unsympathetic, that maybe this was due to her religion, because “Islam is
unsympathetic.”

        On appeal, plaintiff challenges the trial court’s grant of defendants’ motion for summary
disposition on plaintiff’s employment discrimination claim, arguing that the trial court erred
because it did not consider the direct evidence of discrimination that she presented. We agree.

      This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Zaher v Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013). Defendants’ motion for
summary disposition was made under both “MCR 2.116(C)(9)” and MCR 2.116(C)(10).

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However, this Court reviews this motion only under MCR 2.116(C)(10) because it is clear that
the trial court considered documentation outside of the pleadings when it ruled on defendants’
summary disposition motion. See Innovation Ventures, LLC v Liquid Mfg, LLC, 499 Mich 491,
506-507; 885 NW2d 861 (2016) (explaining that where a motion was made under both MCR
2.116(C)(8) and MCR 2.116(C)(10), review under only MCR 2.116(C)(10) was proper because
the trial court considered information outside of the pleadings).

        “A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of
the plaintiff’s claim and should be granted, as a matter of law, if no genuine issue of any material
fact exists to warrant a trial.” Doe v Henry Ford Health Sys, 308 Mich App 592, 596-597; 865
NW2d 915 (2014), citing Spiek v Michigan Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201
(1998). “When evaluating a motion for summary disposition under MCR 2.116(C)(10), ‘a trial
court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by
the parties . . . in the light most favorable to the party opposing the motion.’ ” Innovation, 499
Mich at 507, citing Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “ ‘Where
the proffered evidence fails to establish a genuine issue regarding any material fact, the moving
party is entitled to judgment as a matter of law.’ ” Innovation, 499 Mich at 507, citing Maiden,
461 Mich at 120.

       The trial court erred by granting defendants’ motion for summary disposition. Plaintiff
presented direct evidence of discrimination, and thus, provided evidence sufficient to raise a
question of material fact.

       MCL 37.2202(1) of the CRA provides, in relevant part:

       (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 . . .

        “The ultimate question in an employment discrimination case is whether the plaintiff was
the victim of intentional discrimination.” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586,
606; 886 NW2d 135 (2016), citing Reeves v Sanderson Plumbing Prod, Inc, 530 US 133, 153;
120 S Ct 2097; 147 L Ed 2d 105 (2000). The Michigan Supreme Court has interpreted the CRA
to require “ ‘but for causation’ or ‘causation in fact.’ ” Hecht, 499 Mich 606, citing Matras v
Amoco Oil Co, 424 Mich 675, 682; 385 NW2d 586 (1986) (quotation marks omitted).

       “Proof of discriminatory treatment in violation of the CRA may be established by direct
evidence or by indirect or circumstantial evidence.” Sniecinski v Blue Cross & Blue Shield of
Michigan, 469 Mich 124, 132; 666 NW2d 186 (2003). In cases where direct evidence of
discrimination is unavailable, claims of discrimination are examined under the McDonnel
Douglas framework for assessing motions for summary disposition and directed verdict cases.
See Hazle v Ford Motor Co, 464 Mich 456, 466; 628 NW2d 515 (2001). “Where direct
evidence is offered to prove discrimination, a plaintiff is not required to establish a prima facie
case within the McDonnell Douglas framework, and the case should proceed as an ordinary civil



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matter.” DeBrow v Century 21 Great Lakes, Inc, 463 Mich 534, 539-540; 620 NW2d 836
(2001).

        Direct evidence “is evidence that proves impermissible discriminatory bias without
additional inference or presumption.” Hecht, 499 Mich at 607 n 34. However, stray or isolated
remarks by a decision maker or their agent are not direct evidence of discrimination. See Krohn
v Sedgwick James of Mich, Inc, 244 Mich App 289, 298-299; 624 NW2d 212 (2001); see also
Sniecinski, 469 Mich at 135-136. This Court evaluates whether comments are stray remarks by
applying four factors: “(1) Were the disputed remarks made by the decisionmaker [sic] or by an
agent of the employer uninvolved in the challenged decision? (2) Were the disputed remarks
isolated or part of a pattern of biased comments? (3) Were the disputed remarks made close in
time or remote from the challenged decision? (4) Were the disputed remarks ambiguous or
clearly reflective of discriminatory bias?” Krohn, 244 Mich at 292.

        After a plaintiff has presented direct evidence of discrimination, the plaintiff must also
prove his or her qualification for the position. Sniecinski, 469 Mich at 133. However, “a
defendant may avoid a finding of liability by proving that it would have made the same decision
even if the impermissible consideration had not played a role in the decision.” Sniecinski, 469
Mich at 133. “Upon such a presentation of proofs, an employer may not avoid trial by merely
‘articulating’ a nondiscriminatory reason for its action. Under such circumstances, the case
ordinarily must be submitted to the factfinder for a determination whether the plaintiff’s claims
are true.” Harrison v Olde Fin Corp, 225 Mich App 601, 613; 572 NW2d 679 (1997).

        The trial court erred by granting defendants’ motion for summary disposition because
plaintiff presented direct evidence of discrimination. Plaintiff testified during her deposition
that, on the day she was terminated, Langford told her she was terminating plaintiff because she
did not culturally fit in the environment of her office. Langford also said that plaintiff was
unsympathetic, that maybe this was due to her religion, and that “Islam is unsympathetic.”
These remarks, if believed, do not require an additional inference or presumption to demonstrate
an impermissible discriminatory bias, and thus, constitute direct evidence of discrimination.
Further, these remarks are akin to other comments that have been held to constitute direct
evidence of discrimination. In DeBrow, a supervisor’s statement that the plaintiff was “getting
too old for this s**t,” in the conversation where the plaintiff was fired, could be considered direct
evidence of age discrimination. DeBrow 463 Mich at 538-539. See also Bachman v Swan
Harbour Ass’n, 252 Mich App 400, 433; 653 NW2d 415 (2002) (holding that a statement by a
residential apartment manager to a disabled individual that “ ‘I don’t know who you people think
you are but you are not going to get any special treatment here,’ ” constituted direct evidence of
discrimination).

       To determine whether Langford’s remarks mere “stray comments,” this Court applies the
Krohn factors to weigh whether the comments constitute direct evidence of discrimination.
Here, three of the Krohn factors strongly weigh in plaintiff’s favor: (1) Langford, the decision
maker for the office, made the disputed remarks; (2) the discriminatory remarks were isolated,
however plaintiff also testified that Langford referenced her own need to engage in prayer,
sometimes for the benefit of plaintiff, prior to plaintiff’s termination; (3) the disputed remarks
were made at the time of plaintiff’s termination; and (4) the remarks were clearly reflective of a
discriminatory bias. Thus, when viewing the evidence in a light most favorable to plaintiff, there

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is a genuine issue of material fact regarding whether plaintiff was discriminated against based on
her religion.

        On appeal, plaintiff also challenges the trial court’s apparent reliance on the “same-actor
inference” as a basis for granting summary disposition. We first note that only a plurality of
Michigan Supreme Court justices adopted the “same-actor inference” in Town v Michigan Bell
Tel Co, 455 Mich 688; 568 NW2d 64 (1997), where the fact that the same actor hired and fired
the plaintiff in a short period of time is treated as presumptive evidence there was no
discriminatory motive behind the discharge. See Town, 455 Mich at 700-701 (applying the
same-actor inference, opinion by BRICKLEY, J., BOYLE and WEAVER, JJ. concurring). See also
id. at 708 n 3 (RILEY, J., concurring) (rejecting the lead opinion’s reliance on the same-actor
inference, and stating that the same-actor inference should not accorded any presumptive value);
and see id. at 715-716 (CAVANAGH, J., concurring in part and dissenting in part) (rejecting the
lead opinion’s reliance on the same-actor inference to shield the defendant from liability, rather,
inference is mere evidence that supports the defendant’s claim). We also note that no published
decision of this Court, or of the Michigan Supreme Court has subsequently applied the same-
actor inference, therefore, we are not bound to apply the same-actor inference. See Rowland v
Washtenaw Co Rd Comm, 477 Mich 197, 206 n 7; 731 NW2d 41 (2007) (stating that “decisions
in which no majority of the justices participating agree with regard to the reasoning are not an
authoritative interpretation under the doctrine of stare decisis,”); see e.g. MCR 7.215(C) (only
published opinions of the Court of Appeals have precedential effect under the rule of stare
decisis).

        Regardless, applying the same-actor inference here would be improper, because the Town
plurality applied the same-actor inference in the context of a case of circumstantial evidence of
discrimination under the McDonnel Douglas framework, and not a case of direct evidence of
discrimination. See Wexler v White’s Fine Furniture, Inc, 317 F3d 564, 572 (CA 6, 2003)
(holding that the same-actor inference has never been applied in cases of direct evidence of
stereotyping). As only plaintiff addresses this argument, defendants have not articulated any
reason why this Court should consider extending the application of the same-actor inference to
cases of direct evidence of discrimination. Further, this Court may look for guidance in its
interpretation of the CRA by consulting “federal court interpretations of its counterpart federal
statute.” Chambers v Trettco, Inc, 463 Mich 297, 313; 614 NW2d 910 (2000). In considering
the amount of weight to assign the same-actor inference where a plaintiff has presented direct
evidence of discrimination, the Sixth Circuit has held that where “the factfinder [sic] decides to
draw the same-actor inference, it is insufficient to warrant summary judgment for the defendant
if the employee has otherwise raised a genuine issue of material fact.” Wexler, 317 F3d at 573-
574.

       We reverse the trial court’s order granting defendants’ motion for summary disposition,
and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

                                                            /s/ Deborah A. Servitto
                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Amy Ronayne Krause



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