The opinion
STATE OF MICHIGAN
COURT OF APPEALS
MICHELLE BURKHARDT, UNPUBLISHED
July 18, 2017
Plaintiff-Appellant,
v No. 330092
Ingham Circuit Court
SUE BAYLISS, DARYL GREEN, JAMES LC No. 14-000687-CL
KRAUS, SUE GRAHAM, DAVID EMMONS,
JOSEPH BROWN, and CITY OF LANSING,
Defendants-Appellees.
Before: KELLY, P.J., and STEPHENS and O’BRIEN, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition to
defendants under MCR 2.116(C)(10). We affirm.
I. BACKGROUND
The instant case is plaintiff Michelle Burkhardt’s second suit against her employer
defendant City of Lansing. Plaintiff’s first suit involved claims of gender discrimination, sexual
harassment, the Whistleblower’s act, and retaliation. On June 9, 2014, while plaintiff’s first suit
was pending on appeal, plaintiff filed this suit. Plaintiff pled one count retaliation under the
Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.1 Plaintiff alleged three adverse
employment actions. According to the complaint, the first adverse employment action began on
September 9, 2013, the next business day after the jury verdict was announced in her first action.
On that day, plaintiff delivered documents supporting her claim for medical reimbursement to
Amy Fraser in defendant City of Lansing’s human resources office. Plaintiff alleged that on
September 9, defendant Sue Graham, also an employee in defendant City of Lansing’s human
resources office, falsely reported to members of the City of Lansing police department that she
1
Plaintiff also alleged a claim of defamation against defendant Sue Graham in the trial court in
her motion in opposition to summary disposition. Plaintiff did not request leave to amend her
complaint to add this claim. Defendants addressed the issue in relation to governmental
immunity on appeal. Plaintiff however indicated that the issue is abandoned on appeal. (“The
dismissal of the defamation claim is not part of this appeal.”) Therefore, we do not discuss it.
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saw plaintiff “in the hallway of the police building ‘crying hysterically’ and ‘distraught’ to the
extent her emotional condition was in question.” Plaintiff alleged that Graham’s false statement
resulted in plaintiff being confronted at a gas station in public by defendants, Sergeant Sue
Bayliss and Lieutenant Elloree Sosebee, for a wellness check, escorted back to a conference
room at the Ninth Precinct, and waiting forty minutes for a union attorney to arrive. After the
union attorney spoke “with some command officers,” plaintiff was able to return to and finish
her patrol shift.
According to the complaint, the second adverse employment action occurred on March
21, 2014, the day after plaintiff’s medical reimbursement claim was processed. Plaintiff alleged
that on March 21, she was ordered by defendants Lieutenant David Emmons and Sergeant
Joseph Brown to attend a meeting where she was forced to sign a document titled “light duty
expectations” upon her returning to work after foot surgery. Plaintiff alleged that other officers
on light duty who had not engaged in protected activity were treated more favorably and given
less restrictions.
The third adverse employment action was alleged to have occurred on April 10, 2014,
when plaintiff received a letter indicating that she would be the subject of an internal affairs
investigation for “unsatisfactory work performance and insubordination with a reference date of
March 24, 2012.” According to plaintiff, March 24 would have been plaintiff’s “first day back
to work from the date of the ‘expectations’ letter and her trip to the hospital.”
On August 6, 2015, defendants filed a motion for summary disposition pursuant to MCR
2.116(C)(7) and (C)(10). Defendants argued that because plaintiff failed to plead an exception to
governmental immunity, plaintiff’s claim against defendant City of Lansing employee defendant
Graham must fail. Defendants also argued that plaintiff’s retaliation claim should be dismissed
under MCR 2.116(C)(10) because plaintiff failed to establish an adverse employment action as
required under the ELCRA. Plaintiff filed a motion in opposition on August 19, 2015. Plaintiff
argued that the ELCRA “applies specifically to all employers and is a waiver of immunity when
a governmental employer violates it.” Plaintiff also argued she established a prima face case of
retaliation by showing that her employer knew, but failed to take action to stop retaliatory
harassment by co-workers.
On August 26, 2015, the trial court issued an Order Regarding Reassignment pursuant to
MCR 8.111 that reassigned plaintiff’s case from Judge Aquilina, who had been chosen by blind
draw, to Judge Canady, III who had presided over plaintiff’s first suit against defendant City of
Lansing. Plaintiff opposed the order of reassignment and filed a motion to vacate the order
wherein she argued that her current suit was not based on the same transaction or occurrence as
her prior suit as required for reassignment under MCR 8.111(D)(2). Defendants argued that
reassignment was proper because plaintiff’s current claim of retaliation was based on
occurrences from plaintiff’s prior litigation, namely the protected activity of filing an ELCRA
complaint in 2010, taking the matter to trial in 2013, and pursuing her reimbursement claim in
2013.
A hearing regarding the motion to vacate the reassignment was held on October 14, 2015.
The motion was heard by Judge Canady II, who was not the chief judge. The court found that
plaintiff’s current case was an assertion that the same conduct recognized by the jury in her prior
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case was continuing. The court held that plaintiff could bring a claim for ongoing conduct, but
that the claim “clearly arises out of the past transaction or occurrence or lawsuit or course of
conduct that existed between the City and [plaintiff].”
On October 21, 2015, the court held a hearing for defendants’ motion for summary
disposition. The parties argued consistently with their briefs. The court found that the citizen
complaint made against plaintiff and the internal affairs investigation that followed were not
matters of retaliation; rather they were issues confined to and resolved by plaintiff’s union’s
collective bargaining agreement. The court also found that plaintiff was not forced to sign the
light duty expectations letter. Instead, she was asked to sign to acknowledge receipt of the letter.
The court determined that plaintiff did not experience any adverse employment action because
she suffered no pecuniary loss and continued to work without being treated any differently after
the wellbeing check, light duty expectations letter and citizen complaint. The court ruled there
was no genuine issue of material fact related to whether the wellbeing check was an act of
retaliation, and that plaintiff failed to establish a prima face case of retaliation where she suffered
no adverse employment action. An order granting defendants summary disposition pursuant to
MCR 2.116(C)(7) and (10) was issued the same day.
II. STANDARD OF REVIEW
We review de novo the trial court’s decision to grant or deny a motion for summary
disposition. Adair v State, 470 Mich 105, 119; 680 NW2d 386 (2004).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
In evaluating a motion for summary disposition brought under this subsection, a
trial court considers affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable
to the party opposing the motion. 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. MCR 2.116(C)(10), (G)(4). [Maiden v Rozwood,
461 Mich 109, 120; 597 NW2d 817 (1999).].
MCR 2.116(C)(7) permits summary disposition where “[t]he claim is barred because of
release, payment, prior judgment, immunity granted by law, statute of limitations, statute of
frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment
or other disposition of the claim before commencement of the action.”
A party may support a motion under MCR 2.116(C)(7) by affidavits, depositions,
admissions, or other documentary evidence. If such material is submitted, it must
be considered. MCR 2.116(G)(5). Moreover, the substance or content of the
supporting proofs must be admissible in evidence. . . . Unlike a motion under
subsection (C)(10), a movant under MCR 2.116(C)(7) is not required to file
supportive material, and the opposing party need not reply with supportive
material. The contents of the complaint are accepted as true unless contradicted
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by documentation submitted by the movant. Patterson v. Kleiman, 447 Mich.
429, 434, n. 6, 526 N.W.2d 879 (1994). [Maiden, 461 Mich at 119].
“The court may not make findings of fact or weigh credibility in deciding a motion for summary
disposition.” Featherly v Teledyne Indus, Inc, 194 Mich App 352, 357; 486 NW2d 361 (1992).
The trial court’s interpretation of the clear and unambiguous contractual language of a
release is a question of law that this Court reviews de novo. SSC Associates Limited Partnership
v General Retirement System, 210 Mich App 449, 452; 534 NW2d 160 (1995).
III. ANALYSIS
Plaintiff’s complaint is entirely based upon claims of retaliation under the ELCRA.
Plaintiff argues that several persons retaliated against her. She claims defendant James Kraus
retaliated when he placed plaintiff on reassignment on September 9, 2013. She was also
subjected to retaliation by defendant Graham who stalled the processing of plaintiff’s medical
reimbursement paperwork and told defendant Kraus that plaintiff was crying which caused the
wellbeing check. She has a claim against defendant Bayliss who failed to relay to defendant
Kraus that plaintiff was fine after the wellbeing check. She alleges retaliation against defendants
Emmons and Brown who issued the light duty expectations letter to plaintiff and against
defendants Kraus and Green who as supervisors did not stop the harassment of plaintiff by
defendants Bayliss, Emmons and Brown. Finally, she has a claim against her employer the City
of Lansing for failing to stop the harassment by its defendant employees.
Plaintiff complained that defendants’ conduct was in violation of MCL 37.2701(a), (c),
and (f). These subsections of the ELCRA provide:
Two or more persons shall not conspire to, or a person shall not:
(a) Retaliate 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.
***
(c) Attempt directly or indirectly to commit an act prohibited by this act.
***
(f) Coerce, intimidate, threaten, or interfere with a person in the exercise or
enjoyment of, or on account of his or her having aided or encouraged any other
person in the exercise or enjoyment of, any right granted or protected by this act.
“To establish a prima facie case of retaliation under the Civil Rights Act, a plaintiff must show
(1) that the plaintiff 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
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causal connection between the protected activity and the adverse employment action.” Meyer v
City of Ctr Line, 242 Mich App 560, 568–569; 619 NW2d 182 (2000).
Pursuant to MCL 37.2701(a), a person engages in a protected activity when he or she
“opposed a violation” of the ELCRA or “made a charge, filed a complaint, testified, assisted, or
participated in an investigation, proceeding, or hearing under” the ELCRA. Plaintiff states that
the protected activity she engaged in was the trial from her first action. In other words,
plaintiff’s protected activity was that she “testified, assisted, or participated in an investigation,
proceeding, or hearing under” the ELCRA.2 .
There is no question as to whether plaintiff participated in a protected activity when she
litigated her claims in the prior trial. We therefore look to the next prong of a retaliation claim:
proof that the named defendants were aware of the protected activity. There is a question of fact
as to whether the named defendants were aware of the ELCRA complaint. Some defendants
admitted that they were aware of plaintiff’s prior suit and the jury verdict rendered. Other
defendants were unsure. Given the testimony of defendants, the size of the police department,
the supervisory status of some of the defendants and public reporting of the case, the plaintiff
meets her burden as to establishing a question of fact on knowledge. Defendant Graham testified
that she was made aware of the result of the trial by having read about it in the newspaper.
However, she was not asked and, did not testify, that she knew of the result on September 9,
2013, when the wellbeing check occurred. Defendant Bayliss could not remember whether she
was aware of the jury verdict on September 9, but was aware of litigation between plaintiff and
defendant City of Lansing. Defendant Green did not provide any testimony as to his knowledge
of the verdict or trial on the day of the wellbeing check. Defendant Kraus testified to being
aware of the jury verdict, but could not remember if he knew of it on September 9.
Next, we analyze the plaintiff’s proofs on whether she suffered adverse employment
actions because of her prior lawsuit. “There is no exhaustive list of what constitutes adverse
employment actions and what might constitute an adverse employment action in one
2
Instead of viewing the trial from the first action as the protected activity plaintiff engaged in
under the ELCRA, the court chose to revisit certain allegations involved in the first action—most
likely because plaintiff reiterated those allegations in the complaint for this action— and hold
that most of plaintiff’s retaliation claim was covered by res judicata and collateral estoppel. Res
judicata “bars a second, subsequent action when (1) the prior action was decided on the merits,
(2) both actions involve the same parties or their privies, and (3) the matter in the second case
was, or could have been, resolved in the first.” Washington v Sinai Hosp of Greater Detroit, 478
Mich 412, 418; 733 NW2d 755 (2007) (quotation and citation omitted). Collateral estoppel bars
relitigation of an issue when “(1) a question of fact essential to the judgment was actually
litigated and determined by a valid and final judgment, (2) the same parties had a full and fair
opportunity to litigate the issue, and (3) there was mutuality of estoppel.” Estes v Titus, 481
Mich 573, 585; 751 NW2d 493 (2008). Because plaintiff is not relitigating the acts she claimed
were retaliation in her first action, and the court’s summary disposition holding here focused on
acts that occurred after the trial, a discussion of res judicata and collateral estoppel is not
germane to the issue of whether plaintiff established a prima facie case of retaliation.
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employment context might not be actionable in another employment context.” Chen v Wayne
State Univ, 284 Mich App 172, 201; 771 NW2d 820 (2009) (internal citations omitted). “
‘[T]ermination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices that might be unique to a particular situation’ ” have all been recognized as
adverse employment actions. Wilcoxon v Minnesota Min & Mfg Co, 235 Mich App 347, 363;
597 NW2d 250 (1999) quoting Kocsis v Multi–Care Mgt, Inc, 97 F3d 876, 886 (CA 6, 1996)
quoting Crady v Liberty Nat’l Bank & Trust Co, 993 F2d 132, 136 (CA 7, 1993).
We are, however given clear guidance as to the nature and extent of conduct that may rise
to the level of an adverse employment action. “[A]n adverse employment action (1) must be
materially adverse in that it is more than ‘mere inconvenience or an alteration of job
responsibilities,’ and (2) must have an objective basis for demonstrating that the change is
adverse, rather than the mere subjective impressions of the plaintiff.” Meyer, 242 Mich App at
569, quoting Wilcoxon, 235 Mich App at 364. Meyer held “that a supervisor’s decision not to
take action to stop harassment by co-workers in retaliation for an employee’s opposition to a
violation of the Civil Rights Act can constitute an adverse employment action. Where the
harassment is sufficiently severe, a supervisor’s failure to take action to respond can constitute a
materially adverse change in the conditions of employment.” 242 Mich App at 571.
The first instance of alleged retaliation concerns the well-being check the day after the
conclusion of the first trial. Plaintiff claims that Graham, Bayliss, Green and Kraus participated
in processing the wellbeing check. Viewing the evidence in a light most favorable to the
plaintiff, the wellbeing check subjected her to being interviewed by multiple persons based upon
either incomplete or false assertions regarding her emotional state. Based upon those assertions
she was removed from patrol duty for two hours. However, there is no evidence that plaintiff
suffered a “[t]ermination of employment, a demotion evidenced by a decrease in wage or salary,
a less distinguished title, a material loss of benefits, [or] significantly diminished material
responsibilities,” as a result of the wellbeing check. Wilcoxon, 235 Mich App at 363; (quotations
omitted). Being removed from patrol duty for two hours as part of the wellbeing check may
have been an inconvenience, but inconvenience in and of itself does not rise to the required level
of being “materially adverse.” Meyer, 242 Mich App at 569, quoting Wilcoxon, 235 Mich App
at 364.
The second instance of alleged retaliation concerns the processing of plaintiff’s medical
reimbursement claim. Plaintiff makes two arguments here. First, she claims that the processing
of the reimbursement was a protected activity for which she was subject to retaliation. Secondly,
that the reimbursement was, itself, delayed in retaliation for other protected activity. Neither
claim is viable.
In her argument concerning the filing of the medical reimbursement claim as a protected
activity, plaintiff alleges she suffered two adverse employment actions. She relates receiving the
light duty expectations letter to the day after her medical reimbursement claim was processed.
Plaintiff also connects the citizen complaint that sparked the internal affairs investigation to the
light duty expectations letter because the complaint was made the next business day after she
received the letter. Fatal to this theory is the fact that plaintiff’s pursuance of her medical
reimbursement claim was not a protected activity. The claim was awarded to plaintiff by an
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arbiter after she filed a grievance with her union under the terms of its collective bargaining
agreement. The award was pursuant to the agreement and not under the ELCRA. For these
reasons, the light duty expectations letter and the related citizen complaint cannot be considered
retaliation under the ELCRA. Therefore, summary disposition was proper as to defendants
Emmons and Joseph as well as to defendant Kraus in his capacity as their supervisor for
plaintiff’s claim that the light duty expectations letter and citizen complaint were in retaliation
for pursuing her medical reimbursement claim.
Plaintiff’s claim that defendant Graham retaliated against her for filing the prior lawsuit
by stalling the processing of her medical reimbursement claim paperwork is precluded by a
release plaintiff signed with defendant City of Lansing on October 1, 2014. The interpretation of
a release is a question of law. Cole v Ladbroke Racing Mich, Inc, 241 Mich App 1, 13-14; 614
NW2d 169 (2000). “The scope of a release is governed by its terms as indicating the intentions
of the parties at the time it is accepted.” Auto-Owners Ins Co v Higby, 57 Mich App 604, 606;
226 NW2d 580 (1975). “If the text in the release is unambiguous, we must ascertain the parties'
intentions from the plain, ordinary meaning of the language of the release.” Gortney v Norfolk &
W Ry Co, 216 Mich App 535, 540; 549 NW2d 612 (1996). “The fact that the parties dispute the
meaning of a release does not, in itself, establish an ambiguity.” Cole, 241 Mich App at 14. “If
the terms of the release are unambiguous, contradictory inferences become subjective, and
irrelevant.” Gortney, 216 Mich App at 541; (citation and quotation marks omitted).
The release provided in pertinent part:
In consideration for the payment of THREE THOUSAND, ONE
HUNDRED AND SEVEN DOLLARS AND NINETY-SEVEN CENTS
($3,107.97) by the City of Lansing, receipt of which is hereby acknowledged, I,
Michelle Burkhardt, for myself, my heirs, executors, administrators,
representatives and assigns hereby release and discharge the City of Lansing, its
officers, officials, employees, agents, insurers and any other person, firm or
corporation charged or chargeable with any responsibility or liability, from all
claims, demands, actions or causes of action regarding all covered medical
expenses incurred between April 1, 2012 and April 26, 2013.
This Release constitutes the complete understanding between the Parties. . . .
***
. . . this payment and settlement is pursuant to the arbitrator’s opinion and is also
made to terminate further controversy respecting medical claims . . .
***
. . .this payment is the sole consideration for the City’s release and is in full and
complete settlement of all covered medical expenses incurred between April 1,
2012 and April 26, 2013. . . .
Plaintiff argues that the release was limited to the actual medical expenses incurred between
April 1, 2012 and April 26, 2013, and does not apply to plaintiff’s claim of retaliation against
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defendant Graham. In other words, the release was meant to prevent any further recovery of
medical expenses for that time period. The issue of the release is nonconsequential when
plaintiff presents no evidence actually showing or inferring that defendant Graham stalled her
medical reimbursement claim as discussed below. Regardless, plaintiff’s understanding of the
release’s scope is erroneous. The release plainly reads that the settlement amount applies to the
medical expenses incurred in the one-year period referenced, but also that defendant City of
Lansing and its employees are discharged “with any responsibility or liability, from all claims,
demands, actions or causes of action regarding all covered medical expenses.” (Emphasis
added). “[T]here is no broader classification than the word ‘all.’ ” Skotak v Vic Tanny Intern,
Inc, 203 Mich App 616, 619; 513 NW2d 428 (1994). The unambiguous language of the release
illustrates that claims, actions, or causes or action, other than those seeking medical expense
reimbursement, were anticipated and included.
Plaintiff also argues that the court engaged in impermissible fact-finding when it ruled on
the summary disposition motion. We reject plaintiff’s argument that the trial court engaged in
impermissible fact-finding regarding the effect of the release because the interpretation of a
release is a question of law that the court can decide. Cole, 241 Mich App at 13-14. We agree
that the court made a fact-finding regarding whether plaintiff suffered an adverse employment
action however, that finding was both supported by the record as previously noted, and was
therefore, a permissive finding. The issue of whether plaintiff suffered an adverse employment
action was properly before the court on defendant’s motion for MCR 2.116(C)(10) summary
disposition. “[A] court may not weigh the evidence before it or make findings of fact; if the
evidence before it is conflicting . . . .” DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436;
566 NW2d 661 (1997). We reject the argument that the court made any fact-finding on the
plaintiff’s fitness for duty. The court’s statement that plaintiff was found unfit for duty was not a
factual finding but rather a reference to the medical testimony and determination from plaintiff’s
first action. The court’s statement that plaintiff was again seen crying in the hallway was not a
finding that plaintiff was seen crying in the hallway twice, as plaintiff argues. In that instance,
the court used the word “again” while discussing whether defendants thought plaintiff was
having a reoccurrence of the problems that caused her unfitness in the first action.
While the court did not err in granting defendants summary disposition on plaintiff’s
claim of retaliation, it did err in reassigning plaintiff’s case to Judge Canady, III based on MCR
8.111(D). Reassignment pursuant to MCR 8.111(D)(2) is proper “if an action arises out of the
same transaction or occurrence as a civil action previously dismissed or transferred[.]” To the
extent that plaintiff’s claims of retaliation are based on either events arising after the resolution
of the first action or arbitration claims pursuant to a collective bargaining agreement, the events
were not subject to the previous suit. Although we find the assignment was erroneous, we
decline to reverse because plaintiff fails to show she was prejudiced by the reassignment.
“[P]laintiff is required to show prejudice as a result of the improper assignment,” Natl
Waterworks, Inc v Intl Fid & Sur, Ltd, 275 Mich App 256, 261; 739 NW2d 121 (2007), to
warrant reversal, People v McCline, 442 Mich 127, 128; 499 NW2d 341 (1993). Prejudice is
established by showing that “the reassignment of the case in the lower court was motivated by
impermissible considerations or that the lower court judge was biased or partial.” Kloian v
Schwartz, 272 Mich App 232, 243; 725 NW2d 671 (2006). Plaintiff has neither pled nor proven
that she was prejudiced by the substitution of Judge Canady, III.
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Affirmed.
/s/ Michael J. Kelly
/s/ Cynthia Diane Stephens
/s/ Colleen A. O'Brien
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