Natasha Atkinson v. City of Lansing

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

NATASHA ATKINSON, UNPUBLISHED

July 18, 2025

Plaintiff-Appellant, 10:11 AM

and

TERRY ISRE’AL, BRUCE ODOM, JWAN VANEZ

RANDLE, and RANDALL TALIFARRO,

Plaintiffs,

v No. 368528

Ingham Circuit Court

CITY OF LANSING, SAMANTHA HARKINS, and LC No. 20-000437-CZ

MAYOR OF LANSING,

Defendants-Appellees.

Before: O’BRIEN, P.J., and M. J. KELLY and KOROBKIN, JJ.

PER CURIAM.

In this race-discrimination action brought under the Elliott-Larsen Civil Rights Act

(ELCRA), MCL 37.2101 et seq., plaintiff-appellant, Natasha Atkinson, appeals as of right the trial

court’s order granting summary disposition in favor of defendants, city of Lansing (the City),

Andrew Schor (the Mayor), and Samantha Harkins (the Deputy Mayor). We affirm for the reasons

stated in this opinion.

I. BASIC FACTS

Atkinson, an African-American woman, began working for the city as an office assistant

in June 2019. In August 2019, Atkinson accepted a position as the Mayor’s scheduler and event

coordinator, primarily reporting to the Mayor, Harkins, and Nicholas Tate, the city’s chief labor

negotiator and chief administrative officer. She was fired in February 2020. In August 2020,

plaintiff, along with other individuals, filed a complaint against defendants, asserting claims of

race discrimination, harassment, and retaliation. Defendants filed a motion for summary

disposition under MCR 2.116(C)(10), arguing that Atkinson failed to establish prima facie cases

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with respect to each of her claims. Following a motion hearing, the trial court granted defendants’

motion for summary disposition. Thereafter, the court denied Atkinson’s motion for

reconsideration. This appeal follows.

II. SUMMARY DISPOSITION

A. STANDARD OF REVIEW

Atkinson argues that the trial court erred by granting defendants’ motion for summary

disposition. Challenges to a trial court’s decision on a motion for summary disposition are

reviewed de novo. Chisholm v State Police, 347 Mich App 646, 651-652; 16 NW3d 563 (2023).

“A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the

claim and is properly granted when there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law.” Id. at 652. “In reviewing a motion under MCR

2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant

documentary evidence of record in the light most favorable to the non-moving party to determine

whether any genuine issues of material fact exists to warrant a trial.” Walsh v Taylor, 263 Mich

App 618, 621; 689 NW2d 506 (2004). A properly supported motion for summary disposition

shifts the burden to the opposing party to establish that a genuine issue of disputed fact exists.

Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). In doing so, the

nonmoving party cannot rely on mere allegations or denials, but must instead, “by affidavits or as

otherwise provided in [MCR 2.116], set forth specific facts showing that there is a genuine issue

for trial.” Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 374;

775 NW2d 618 (2009) (quotation marks and citations omitted).

B. ANALYSIS

1. RACE DISCRIMINATION

ELCRA prohibits employers from discriminating on the basis of race. MCL 37.2202(1)(a).

There are two broad categories of claims under MCL 37.2202(1)(a), “disparate treatment and

disparate impact claims.” White v Dep’t of Transp, 334 Mich App 98, 107; 964 NW2d 88 (2020)

(quotation marks and citation omitted). This case concerns disparate treatment because Atkinson

alleges that she was intentionally discriminated against on the basis of her race. Discriminatory

treatment in violation of ELCRA can be established “by direct evidence or by indirect or

circumstantial evidence.” Major v Newberry, 316 Mich App 527, 540; 892 NW2d 402 (2016)

(quotation marks and citation omitted). Direct evidence is “evidence which, if believed, requires

the conclusion that unlawful discrimination was at least a motivating factor in the employer’s

actions.” Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001) (quotation marks

and citation omitted).

On appeal, Atkinson argues for the first time that she presented direct evidence of

discrimination as it relates to her claim that she was provided with less pay than her coworkers

because of her race. Atkinson did not argue below, however, that there was direct evidence that

she was paid less because of her race. Although a party is free to make a “more developed or

sophisticated argument on appeal,” Mueller v Brannigan Brothers Restaurants and Taverns LLC,

323 Mich App 566, 585; 918 NW2d 545 (2018), Atkinson did not make a clumsy or inartful

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argument that part of her claim was established through direct evidence. Rather, she wholly failed

to raise this argument in the trial court. By failing to raise this issue below, Atkinson has waived

review of it on appeal. See Tolas Oil & Gas Exploration Co v Bach Srvs & Mft, LLC, 347 Mich

App 280, 289; 14 NW3d 472 (2023). Although the preservation requirement may be overlooked

under some circumstances, id., we decline to do so in this case.

In cases where there is “no direct evidence of impermissible bias, [the] plaintiff’s claim of

intentional discrimination must proceed under the McDonnell Douglas1 burden-shifting

framework.” Under that framework, a plaintiff must set forth a rebuttable prima facie case by

presenting evidence that (1) she belongs to a protected class, (2) she suffered an adverse

employment action, (3) she was qualified for the position, and (4) she suffered the adverse-

employment action under circumstances giving rise to an inference of unlawful discrimination.

See Hazle, 464 Mich at 462.2 On appeal, defendants concede that Atkinson belongs to a protected

class and that she suffered an adverse employment action when her employment was terminated.3

Accordingly, only the third and fourth elements of a prima facie case of racial discrimination are

at issue, i.e., whether Atkinson was qualified for her position and whether her employment was

terminated under circumstances that give rise to an inference of discrimination. See Hazle, 464

Mich at 465.

“An employee is qualified if he was performing his job at a level that met the employer’s

legitimate expectations.” Town v Mich Bell, 455 Mich 688, 699; 568 NW2d 64 (1997). This

requires a plaintiff to show that he or she was minimally qualified for the job. See Wilcoxon v

Minnesota Mining & Mfg Co, 235 Mich App 347, 369; 597 NW2d 250 (1999) (“Being qualified

for a job, for purposes of establishing a prima facie case of discrimination, requires only minimal

qualification.”). As the Mayor’s scheduler, Atkinson’s role was to schedule meetings and

appointments for the Mayor. The record reflects that she consistently failed to schedule important

meetings, was often tardy to or missed meetings, and did not always invite necessary individuals

to City events. Harkins explained that Atkinson’s performance was “consistently below”

expectations and unsatisfactory. The Mayor also testified that Atkinson “was not a very efficient

scheduler.” In her deposition, Atkinson admitted that she lacked punctuality and would sometimes

miss entire meetings. She described herself as “a little disorganized” and indicated that she would

skip meetings if she felt that there were “conflicting things.” Atkinson further explained that she

was often late to work because she had begun to look after her brother’s children in addition to her

own children. She stated that she told the Mayor and Harkins about the change in her

1

McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).

2

“[T]he elements of the McDonnell Douglas prima facie case should be tailored to fit the factual

situation at hand.” Hazle, 464 Mich at 463 n 6.

3

On appeal, Atkinson appears to argue that she suffered an adverse employment action related to

her compensation and her parking privileges. Her complaint, however, did not include any such

allegations. Moreover, she did not address either contention in her response to defendants’ motion

for summary disposition. To the extent that she is now suggesting that she suffered adverse

employment actions in connection with her compensation and parking privileges, we conclude that

the issues are waived. See Tolas Oil & Gas Exploration Co, 347 Mich App at 289.

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circumstances, but admitted that she was pulled aside by Tate, who discussed her attendance issues

with her. However, the record also reflects that she was being counseled regarding her job

deficiencies and that no reprimands were placed in her file. As such, viewing the evidence in the

light most favorable to her, it is reasonable to infer that she was at least minimally qualified for

her job, notwithstanding the unrefuted deficiencies in her performance.

We conclude, however, that Atkinson has failed to establish that the circumstances of her

adverse-employment action give rise to an inference of unlawful discrimination. Hazle, 464 Mich

at 464. “While a plaintiff is not required to show circumstances giving rise to an inference of

discrimination in any one specific manner, the plaintiff’s burden of production remains to present

evidence that the employer’s actions, if otherwise unexplained, are more likely than not based on

the consideration of impermissible factors.” Id. at 470. On appeal, Atkinson directs this Court to

several comments and incidents that she maintains give rise to an inference of unlawful racial

discrimination. We address each in turn.

First, Atkinson presented evidence that a motivating factor in hiring her was that she was

a young black woman. Although she testified below that this rationale was a “good thing,” she

now argues on appeal that it demonstrates that, rather than being viewed as a college-educated

professional, she was merely hired to make the Mayor’s office appear to be more diverse. Atkinson

also notes Harkins admitted to her that she did not have a lot of experience with African Americans

until she went to college. Harkins then stated that she was sexually attracted to African American

men and that she liked the appearance of mixed-race children. Harkins further made crude sexual-

based comments regarding the physical appearance of Tate, indicating that she was physically

attracted to him. Even viewed in the light most favorable to Atkinson, Harkins’s comments during

the interview process suggest that the City had a bias in favor of African Americans. Similarly,

Harkins’s statements expressing her attraction to African American men does not give rise to an

inference that she held a racial animus toward African Americans.

Second, Atkinson directs this Court to her belief that she was paid less than everyone in

the Mayor’s office, which she contends was as a result of her race. She explained that when she

was hired, she was told that she made less than everyone but that she would receive an increase in

salary in January 2020. Atkinson believed that three other employees were each making $2,000

to $4,000 more than her. One of the office workers, however, was making approximately $9,000

less than Atkinson. The other two employees, one with two years of experience and the other with

one and a half years of experiences, were making $2,000 more than Atkinson when Atkinson

started working, but were only making approximately $400 more than Atkinson after Atkinson

had been employed by the City for around six months. The employee with one and a half years of

experience is an African-American. The record, therefore, reflects that Atkinson was paid less

than two other employees but was paid significantly more than a third employee. The gap between

her pay and the two employees receiving a higher salary was dramatically reduced within six

months of her being employed by the City. One of the employees, like Atkinson, was an African-

American. Even viewed in the light most favorable to her, Atkinson’s position that the disparity

was the result of unlawful racial discrimination is supported only by her belief that she was paid

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less because of her race.4 That is insufficient to overcome a motion for summary disposition. See

Karbel v Comerica Bank, 247 Mich App 90, 97; 635 NW2d 69 (2001) (stating that “a party

opposing a motion for summary disposition must present more than conjecture and speculation to

establish that genuine issue of material fact exists.”).

Third, Atkinson asserts that her parking space under City Hall was taken away because of

her race. She also stated that when another employee offered for her to use their parking spot, the

privilege was also revoked as soon as Harkins learned about it. Again, however, she supports this

claim only by pointing her own feelings that this was racially discriminatory, which is insufficient

to overcome summary disposition. See id. Moreover, defendants presented testimony that parking

spaces under City Hall were given based upon seniority, not position. Further, there was evidence

that other African Americans were allowed to park under City Hall.

Fourth, Atkinson states that she was present when two white employees were discussing

the music that was going to be played from the lamp posts in Lansing’s downtown area. She

explained that she realized that no African-American artists were being included and she offered

to pick out some songs by such artists. Atkinson testified that her offer was met with a joke and

that one of the employees later complained about her to others. Atkinson asked Harkins if they

could have a meeting regarding the incident. At the meeting, Harkins supported Atkinson and the

other woman left crying. Harkins told Atkinson that the other woman did not have a lot of

experience with African Americans, that the woman felt intimidated by Atkinson, and that she was

concerned that Atkinson would take her job. On appeal, Atkinson suggests that this incident shows

that Harkins failed to recognize that the other woman’s actions were race related and that she

excused the racial hostility rather than address it. She contends that, because Harkins did not

address the issue, the other woman’s prejudices “infected” the entire office and resulted in

Atkinson being “iced out.” Again, however, this is based solely upon Atkinson’s belief that the

actions of the other woman were made on the basis of racial prejudice. The fact that the dispute

was between two women of different races and that it involved a suggestion that more music by

racially diverse artistes be played does not allow for an inference that the other woman was

prejudiced against African Americans. Moreover, the record reflects that Harkins acted on

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Atkinson spoke with the City’s acting finance director, Shelbi Frayer, before the matter of her

compensation was addressed by the Mayor in January 2020. She recalled specifically telling

Frayer that she believed it was “unfair that somebody who gets to leave—come to work and leave

at 5:00 gets paid more than I do when I get 2 ‘o’clock-in-the-morning phone calls and I’m

essentially on call whenever the mayor decided to call.” Further, Atkinson told Frayer that she

believed she was being paid less than everyone else because of her race. Atkinson testified that

Frayer “agreed with the conclusion that [Atkinson] had in her mind.” Frayer also recounted that

she had “strong-armed” the Mayor into paying a different African-American employee an

additional $30,000 per year so that he would be making closer to what his Caucasian predecessor

had been making. Frayer did not testify. Accordingly, only Atkinson’s testimony regarding

Frayer’s alleged belief is in the record. Given that Frayer’s alleged belief is based on the

conclusions that Atkinson reached and on a single instance where she believed there was a racial

pay disparity, Frayer’s alleged opinion appears to be based upon conjecture, rather than the

objective facts related to Atkinson’s pay vis-à-vis her coworkers.

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Atkinson’s concerns, calling a meeting to address the matter and siding with Atkinson rather than

the other woman. Harkins’s actions in supporting Atkinson do not give rise to an inference of

unlawful discrimination.

Fifth, Atkinson directs this Court to an incident occurring at a Christmas party. She stated

that the husband of one of her coworkers told her that he usually dated African-American women,

but that he had married a white woman because she had a body like an African-American woman.

In response, Atkinson joked, “once you go Black, you can go back.” The following day, the head

of Human Resources approached Atkinson to discuss Atkinson’s inappropriate racial and sexual

comment. After Atkinson explained her reasons for making the comment, she was told that she

“would do better to learn that the . . . rules to the game are different for every player.” Atkinson

responded that, as an African-American woman, she did not know what to do when someone made

racist, stereotypical comments that objectified bodies or body styles. Other than being told not to

respond with inappropriate sexual and racial comments, it does not appear that her question was

answered. Overall, the fact that a coworker’s husband allegedly made inappropriate racial and

sexual comments at a Christmas party does not excuse Atkinson from also making inappropriate

racial and sexual comments. Nor does it give rise to an inference that the defendants unlawfully

discriminated against Atkinson.

Sixth, Atkinson notes that her office was ransacked on two occasions. She reported the

incident to the Mayor and Harkins, but the matter was not investigated further. A coworker stated

that the second incident must have been “personal” because no one else had experienced something

similar. The coworker’s speculation that the incident was “personal” does not constitute evidence

that it was “personal” as a result of Atkinson’s race. Moreover, the coworker’s statement that it

had not happened to anyone else is contradicted by the Mayor’s testimony that a similar incident

had occurred to his own office. Atkinson’s belief that the ransacking of her office and the failure

to investigate it were based upon her race are mere conjecture. As such, it cannot defeat

defendant’s motion for summary disposition. See id.

Seventh, Atkinson points to comments that Harkins made in relation to her hair while they

were speaking generally about “clothes and sales in different stores.” According to Atkinson,

Harkins noted on one occasion that Atkinson’s hair was “bushy and big” and that she imagined

that Atkinson’s hair made it difficult to look “professional.” On another occasion, she stated that

she liked the appearance of Atkinson’s hair when it was straightened. Atkinson never told Harkins

that she found the comments offensive or that they made her uncomfortable. Instead, when she

was asked at her deposition whether she recalled Harkins saying anything “that was racially

insensitive,” Atkinson answer, “No, not towards me.” When asked if she overheard Harkins

making any racially insensitive remarks, she recalled that after Harkins had an argument with a

different African American employee, she heard Harkins say that “maybe rightfully so” African

American women had a “chip on their shoulder” and needed “to learn how to get along.” Atkinson

stated that she just “brushed” that comment off and that she did not report it to anyone. Viewed

in isolation, these comments could be construed as racially insensitive and offensive. They do not,

however, give rise to an inference of unlawful discrimination.

Finally, Atkinson asserts that, after trying to find a legitimate reason to terminate her,

defendants made up some unfounded and untrue reasons to do so. Specifically, a coworker alleged

that Atkinson told people “that she wanted to burn down city hall.” She denied making such a

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statement and asserts that the comment was not investigated because it was being used as a pretext

to terminate her employment. Atkinson also complained that there were “unfounded” allegations

that she was revealing confidential information related to another employee. Yet, she admitted

that she spoke to the employee who was under federal investigation and that she advised that

employee that she was going to be suspended. Although she was asked to speak with the employee

to encourage her to cooperate with the federal investigation, she admitted that she was not

authorized to tell the employee that she would be suspended. Further, she acknowledged that this

was confidential information and that sharing such information was a terminable offense.

Atkinson alleges that the allegation that she disclosed confidential information was used to

give Tate access to her e-mail. Once in her e-mail, Tate discovered that she had e-mailed a

potential employee’s resume to herself. Tate classified that disclosure as a breach of

confidentiality. He stated that he did not know how Atkinson had gotten a copy of the e-mail, but

noted that she should not have it. The Mayor confirmed that he had given the resume to Atkinson

so she could call the potential employee to schedule an interview. He did not, however, indicate

that he had authorized her to e-mail it to her personal address.

“A plaintiff can attempt to prove discrimination by showing that the plaintiff was treated

unequally to a similarly situated employee who did not have the protected characteristic.” Hecht

v Nat’l Heritage Academies, Inc, 499 Mich 586, 608; 886 NW2d 135 (2016). An inference of

unlawful discrimination can also arise where an employer engages in “differing treatment of

employees who were similar to the plaintiff in all relevant respects, except for their race . . . .” Id.

Atkinson points to testimony that she was replaced by a Caucasian woman, and she maintains that

her replacement is paid more money. However, there is nothing on the record to suggest that she

is similarly situated to the woman who replaced her.

Based upon the foregoing, we conclude that Atkinson failed to establish that the

circumstances in her case give rise to an inference of unlawful racial discrimination. The evidence

suggests that the City had a bias in favor of hiring a young African American woman, that Harkins

made racially insensitive comments on Atkinson’s hair, and that Harkins was vocal about her

sexual attraction to African American men. Further, there was evidence that Atkinson had disputes

with another employee of a different race as it related to the inclusion of African American musical

artists. Atkinson perceived the other woman as being prejudiced against her because of her race,

but that perception was based on Atkinson’s subjective feelings. Likewise, her assertion that her

race resulted in her receiving less pay and having her parking space revoked is based upon her own

speculation and belief. Moreover, the fact that a coworker’s husband made racially inappropriate

comments at a Christmas party does not give rise to an inference that defendants unlawfully

discriminated against Atkinson. Nor does the fact that defendants reprimanded Atkinson for

responding to the inappropriate commentary with her own inappropriate commentary.

Accordingly, on this record, Atkinson has failed to establish a prima facie case of racial

discrimination.

Assuming arguendo that Atkinson had met her burden, summary disposition was still

warranted on her claim of racial discrimination. Under the McDonnell Douglas burden shifting

analysis, if the plaintiff establishes a prima facie case of discrimination, then “the burden shifts to

the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment

action taken.” Major, 316 Mich App at 541. “If the defendant gives a legitimate,

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nondiscriminatory reason for the employment decision, the presumption of discrimination is

rebutted, and the burden shifts back to the plaintiff to show that the defendant’s reasons were not

the true reasons, but a mere pretext for discrimination.” White, 334 Mich App at 108.

Here, defendants gave several legitimate nondiscriminatory reasons for their employment

decision. Atkinson’s performance was not satisfactory. Evidence that Atkinson was frequently

late to work, missed meetings, and failed to invite necessary individuals to City events was

unrefuted. As noted above, Atkinson admitted to being consistently late and missing meetings.

She explained her tardiness by explaining that she had taken on the responsibility of caring for her

brother’s children in addition to her own. She notes that defendants were aware of that fact.

Awareness of the reasons for an employee being late, however, does not mean that the employer

condones the tardiness nor does it preclude an employer from determining that tardiness is a reason

for termination. Additionally, the record reflects that Atkinson’s termination occurred after it was

determined that she had disclosed confidential information when she e-mailed a copy of a

prospective employee’s resume to her personal e-mail. Atkinson admits that disclosing

confidential information is a terminable offense, but she maintains that the resume was, in fact,

not confidential because it could be located online. As scheduler for the Mayor, Atkinson was not

tasked with determining what information was and was not confidential. And there was testimony

that the resume was considered to be confidential by the Mayor’s office. On appeal, Atkinson

makes light of the fact that she e-mailed the information to herself, not to a third party. Yet,

testimony from Tate and the Mayor indicates that she was not authorized to do so. On this record,

defendants have met their burden of showing a nondiscriminatory, legitimate reason to terminate

Atkinson’s employment.

As a result, even if Atkinson had established a prima facie case of racial discrimination,

the burden would have shifted back to her to prove that “discrimination was a motivating factor

for the adverse action taken by the employer toward the plaintiff.” Hazle, 464 Mich at 109

(quotation marks and citation omitted). That is, the plaintiff must show that the employer’s stated,

legitimate, nondiscriminatory reason was a “pretext for unlawful discrimination.” Id. (quotation

marks, citation, and alteration omitted). Atkinson cannot do so here. Although she argues that

race was a motivating factor, she can point to nothing other than her subjective belief that race

played a part in the decision to terminate her. The fact that Harkins made insenstive comments

regarding her hair, made crude, sexual comments regarding African American men and Tate, and

generally expressed frustration with African American women “maybe rightfully so” having a

“chip” on their shoulders does not establish that race was a motivating factor in terminating

Atkinson’s employment. Summary disposition of the racial discrimination claim was warranted.

2. HARASSMENT CLAIM

Next, Atkinson contends that she presented a prima facie case of a hostile work

environment based upon racial harassment. A plaintiff must prove the following elements to

establish a prima facie case of a hostile work environment based on race discrimination:

(1) [T]he employee belonged to a protected group; (2) the employee was

subjected to communication or conduct on the basis of the protected status; (3) the

employee was subjected to unwelcome conduct or communication on the basis of

the protected status; (4) the unwelcome conduct or communication was intended

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to, or in fact did, interfere substantially with the employee’s employment or created

an intimidating, hostile, or offensive work environment; and (5) respondeat

superior. [Major, 316 Mich App at 550 (citation omitted).]

Atkinson belongs to a protected group. Further, she has alleged that there were a number of

statements made to her on the basis of her protected status, all of which were unwelcome. In

particular, she directs this Court to Harkins’s testimony, including Harkins’s comments indicating

that she was generally sexual attracted to African American men and was particularly attracted to

Tate, her comments on Atkinson’s hair on two occasions, and the general comment relating to

African American women having a “chip on their shoulder.” She also testified that on one

occasion Tate, an African American, told her that African-American individuals have to “work

twice as hard” to be just as good. Additionally, following the Christmas party, the Human

Resources director told Atkinson that, as a Hispanic woman in a predominantly White

environment, she understood how Atkinson felt, but that Atkinson “would do better to learn that

the . . . rules to the game are different for every player.” This testimony is sufficient to create a

question of fact with regard to whether she was subject to communication or conduct on the basis

of her race. And her testimony that the communications were unwelcome creates a question of

fact on the third element of a harassment claim. See id.

She cannot, however, establish the fourth element. The determination of whether a hostile

work environment exists depends on “whether a reasonable person, in the totality of 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. (quotation marks and citation omitted). Factors in evaluating

whether an environment is hostile include the frequency and severity of discriminatory conduct;

whether the conduct is physically threatening or humiliating, or merely an offensive utterance; and

whether the conduct unreasonably interferes with the employee’s work performance. See Quinto,

451 Mich at 370 n 9. Viewing the evidence in the light most favorable to Atkinson, it is clear that

the comments were relatively infrequent. Although some of the comments could be construed as

offensive or crude, a reasonable juror could not find that they had the effect of creating an

intimidating work environment. Atkinson, therefore, cannot establish her racial harassment claim.

3. RETALIATION

Finally, Atkinson argues that the trial court erred by granting summary disposition of her

retaliation claim. Under ELCRA, an employer cannot “[r]etaliate or discriminate 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 37.2701(a). A plaintiff must prove the following elements to establish a

prima facie case of retaliation: “(1) that [she] 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.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 161; 934 NW2d 665

(2019) (quotations marks and citation omitted). In order to prevail, “the employee must do more

than generally assert unfair treatment. The employee’s charge must clearly convey to an objective

employer that the employee is raising the specter of a claim of unlawful discrimination” under

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ELCRA Barrett v Kirtland Community College, 245 Mich App 306, 319; 628 NW2d 63 (2001)

(citations omitted).

Here, although Atkinson argues that she reported experiencing race discrimination and

harassment to defendants before her termination, she was required to “do more than generally

assert unfair treatment.” Id. She conceded that she did not make a formal report of discrimination,

harassment, or retaliation with Human Resources. Though a formal report may not have been

necessary to raise “the specter of a claim of unlawful discrimination,” Atkinson further explained

that although she “reported certain treatment to [her] direct supervisors,” she “was cautious to state

discrimination or harassment.” Even during her conversation with Human Resources after the

Christmas party, Atkinson testified that while the topic was focused on race, she only delicately

alluded that she felt mistreated on the basis of her race. Accordingly, the evidence demonstrates

that Atkinson intentionally avoided raising issues of race when reporting conduct to her

supervisors and Human Resources, which does not constitute protected activity.

Atkinson also testified that she reported concerns about mistreatment based on her race to

a City Council member the day before she was terminated. Even assuming that this conversation

constituted a protected activity, Atkinson does not otherwise present evidence to satisfy the second

element, that defendants would have known about her conversation. See El-Khalil, 504 Mich at

161. The city council member was not a decisionmaker with respect to Atkinson’s termination.

And although Atkinson assumed the Mayor may have known about her conversation, that

assumption relied solely on conjecture and speculation, which is insufficient to survive summary

disposition.

Because Atkinson cannot establish that she engaged in any protected activity that defendant

was aware of, she necessarily cannot establish a causal connection between her termination and

any protected activity. See id. Accordingly, Atkinson failed to establish a prima facie case of

retaliation, and the trial court did not err by granting summary disposition of this claim.

Affirmed. Defendants may tax costs as the prevailing party. MCR 7.219(A).

/s/ Colleen A. O’Brien

/s/ Michael J. Kelly

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