Linda Cesarini v. Fca US LLC

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

LINDA CESARINI, UNPUBLISHED

June 27, 2019

Plaintiff-Appellant,

v No. 342674

Oakland Circuit Court

FCA US, LLC, formerly known as CHRYSLER LC No. 2016-153846-CD

GROUP, LLC,

Defendant-Appellee.

Before: BECKERING, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

In this action arising from defendant’s termination of plaintiff’s employment, plaintiff,

Linda Cesarini, appeals as of right the trial court’s order granting defendant’s, FCA US, LLC’s,

motion for summary disposition under MCR 2.116(C)(10), and thereby dismissing plaintiff’s

claims for breach of contract and unlawful retaliation in violation of the Elliott-Larsen Civil

Rights Act (ELCRA), MCL 37.2701 et seq. We affirm.

Plaintiff began working for defendant in 1995. Until 2012, she primarily worked in

digital or website marketing for defendant. In October 2012, plaintiff filed a complaint against

defendant with the Equal Employment Opportunity Commission (EEOC), alleging that she was

the subject of sexual harassment and discrimination by her supervisor, Thomas Laymac. After

investigating the matter, the EEOC issued plaintiff a letter explaining that there appeared to be

insufficient grounds to further investigate her complaint. Defendant also conducted its own

internal investigation. On October 19, 2012, plaintiff was moved to a new position with a

different manager and director, but still within the marketing department. At that time, plaintiff

began working with Walid Saba’s group where she was involved in product placement and

special events. She was subsequently moved to another position, but still in Saba’s group,

handling secondary automobile shows.

In February 2015, plaintiff inquired about taking a leave of absence to help care for

family members who were in need of assistance. According to plaintiff, defendant had a leave

policy that both encouraged and permitted employees to take personal leaves of absence. When

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she inquired about a leave of absence, Joseph Trotta, the manager of defendant’s Human

Resources (HR) Department, referred her to HR staff, Carol Cislo and Amy McDonald. Plaintiff

was given a leave-of-absence request form and was told to read it thoroughly because it set forth

the terms and conditions of any leave of absence. After reviewing the forms, plaintiff had

various questions for the HR staff that she presented in a series of exchanges between February

18, 2015, and February 26, 2015. In response to one of plaintiff’s questions, McDonald advised

plaintiff on February 20, 2015, as follows:

As you plan to take a Leave of Absence, please keep in mind that benefits

are impacted, as well as job security. Please read the Leave of Absence form

carefully (provided by Carol) including the information on the 2nd page. In

addition, I am providing a packet of Benefits Upon Separation - Leave of Absence

for you to consider.

On February 22, 2015, plaintiff sent an e-mail to McDonald and Cislo, asking some follow-up

questions, including:

I understand my job is not protected during my leave however, when I

return my grade band and salary will remain the same, correct? Meaning I will be

placed in a position at my grade band/current job classification level. Is that

correct?

McDonald responded as follows:

When you are ready to return from a LOA, reinstatement to former or

equivalent position (same comp level and pay) will be attempted but not

guaranteed. If a comparable position is not available, you would be placed on

lay-off upon your return to work.

On February 26, 2015, plaintiff sent the following message to McDonald and Cislo:

Amy — just want to make sure I understand your note below that my

current classification, comp pay and benefits would remain the same upon my

return however the position and/or department is not guaranteed. Is that correct?

So when I return, if a comparable position cannot be located in the Marketing

area, they will look outside in other departments, is that correct?

Just want to make sure I understand the rules for personal leave.

McDonald responded to that inquiry as follows:

Yes, that is correct. You will maintain same pay and comp level and

benefits with that comp level upon your return. For Leave of Absence situations,

the exact job is not guaranteed. Perhaps jobs outside marketing would be looked

at if they meet your skill set. Layoff is a possibility as well if a comparable job is

not available.

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Plaintiff submitted a request for a six-month leave of absence, beginning June 2, 2015, until

November 30, 2015, which was approved.1 She assured her manager, director, and the HR

representatives that she intended to return to work at the end of her leave of absence.

In late October 2015, plaintiff contacted the HR representatives about returning to work

and identifying an available position for her. On November 6, 2015, she was informed that the

HR department was aware of her intent to return to work and it was investigating what positions

were available. She was advised that nothing was available, so her leave of absence was

extended to March 1, 2016. Plaintiff continued to communicate with the HR staff about a

position and was advised in February 2016 that there still was no position available for her and

that her leave of absence was extended to April 1, 2016. Shortly thereafter, plaintiff was advised

that she would not be returning to work and her employment was terminated as of April 30,

2016.

Plaintiff filed this action alleging claims for breach of contract and unlawful retaliation in

violation of the ELCRA. Defendant moved for summary disposition under MCR 2.116(C)(10)

(no genuine issue of material fact). The trial court granted defendant’s motion with respect to

the breach-of-contract claim because there was no evidence that defendant promised to reinstate

plaintiff to her same or another position after her leave of absence ended. Further, plaintiff was

an at-will employee and any agreement to reinstate her would not have changed her at-will

status, thereby enabling defendant to terminate her employment for any reason. The court also

dismissed plaintiff’s retaliation claim because it was based on plaintiff’s theory that defendant

terminated her in 2016 in retaliation for her 2012 EEOC complaint, but plaintiff could not

establish a causal connection between her 2016 discharge and the complaint she filed

approximately four years earlier. Plaintiff appeals those decisions.

I. STANDARD OF REVIEW

This Court reviews a trial court’s summary disposition decision de novo. Spiek v Dep’t

of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR 2.116(C)(10) tests

the factual support for a claim. The court must consider the pleadings, affidavits, depositions,

admissions, and any other documentary evidence submitted by the parties, and view that

evidence in the light most favorable to the nonmoving party to determine whether a genuine

issue of material fact exists. MCR 2.116(G)(5); Maiden v Rozwood, 461 Mich 109, 118-120;

597 NW2d 817 (1999). Summary disposition should be granted if, except as to the amount of

damages, there is no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). “A

genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to

the opposing party, leaves open an issue upon which reasonable minds might differ.” Bahri v

IDS Prop Cas Ins Co, 308 Mich App 420, 423; 864 NW2d 609 (2014).

1

Plaintiff did not take a leave of absence under the Family and Medical Leave Act, 29 USC

2601 et seq.

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II. BREACH OF CONTRACT

“Generally, and under Michigan law by presumption, employment relationships are

terminable at the will of either party.” Lytle v Malady (On Reh), 458 Mich 153, 163; 579 NW2d

906 (1998). Employment contracts for an indefinite period produce a presumption of

employment at will absent distinguishing features to the contrary. Dolan v Continental

Airlines/Continental Express, 454 Mich 373, 383; 563 NW2d 23 (1997). An employee whose

employment relationship is at will can have her employment terminated at any time for any, or

no, reason. Suchodolski v Mich Consol Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982).

A promise to terminate only for just cause may overcome the presumption of at-will

employment. Dolan, 454 Mich at 383-384. Company policies that instill legitimate expectations

of job security in employees also may overcome the presumption. Id. at 384.

The leave-of-absence form that plaintiff completed when requesting her leave of absence

stated the following conditions applicable to her leave of absence:

A. A Leave of Absence Form is required for absence of more than five (5)

consecutive working days. . . . If you will be on Leave of Absence for thirty (30)

working days or longer, you will be temporarily separated from the roll as of your

last day worked (except if your Leave of Absence is for jury duty). Reinstatement

to your former position or equivalent position cannot always be guaranteed. . . .

* * *

D. If a reduction in force has taken place during your Leave that affects

you, you will be placed on layoff upon your return for work at the expiration of

your Leave.

E. If you return earlier than scheduled, you will be considered for

reinstatement or layoff depending on current operating conditions.

* * *

L. This document sets forth all of the conditions pertaining to your Leave

of Absence. Chrysler LLC alone, in its sole discretion, reserves the right to

amend, modify, terminate or suspend the conditions of your Leave of Absence.

Such amendment, modification, termination or suspension must be in writing,

signed by an authorized representative of Chrysler LLC Human Resources

Department. In the event this document conflicts with or supplements the terms

of Chrysler LLC’s Leave of Absence Procedure, the Procedure will govern.

[Emphasis added.]

Plaintiff’s breach-of-contract claim is premised on the existence of either (1) an express

agreement, either oral or in writing, regarding job security, or (2) a contractual provision, implied

in law, based on policies and procedures that instilled a legitimate expectation of job security.

To prove her claim based on an express agreement, either oral or in writing, plaintiff

must show, by clear and unequivocal terms, mutual assent to permanent employment, rather than

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merely an optimistic hope of a long relationship. In Rowe v Montgomery Ward & Co, Inc, 437

Mich 627, 640-642; 473 NW2d 268 (1991), our Supreme Court explained:

The starting point in analyzing oral statements for contractual implications

is to determine the meaning that reasonable persons might have attached to the

language, given the circumstances presented. In our analysis, we agree with the

federal district court in Carpenter v American Excelsior Co, 650 F Supp 933, 936,

n 6 (ED Mich, 1987):

After all Lynas[2] as well as reality compels recognition of

the fact that neither party to the beginning of an employment

relationship expects it to be unsatisfactory, and both hope it will

have a significant duration. This hope and noncontractual wish is

expressed in terms of language such as “as long as you do the job.”

Consequently, the court stated that any orally grounded contractual obligation for

permanent employment “must be based on more than an expression of an

optimistic hope of a long relationship.” Id. (Emphasis added.)

Along the same lines, Justice Griffin’s remarks in Bullock, supra at 517,[3]

are instructive:

Surely, a modicum of realism and common sense is needed.

An assurance such as that alleged in the instant case simply cannot

be separated from the realities of the working world. It should be

recognized that “lifetime” employment contracts are extraordinary

and, being so, “must be expressed in clear and unequivocal terms

before a court will conclude that an employer intended to enter into

such a weighty obligation.” [GRIFFIN, J., concurring in part and

dissenting in part. Citations omitted.]

To be sure, because of the difficulty in verifying oral promises, the

statements must clearly permit a construction which supports the asserted

meaning. The “overreaching principle of contract interpretation” is that the court

looks to all the relevant circumstances surrounding the transaction, including all

writings, oral statements, and other conduct by which the parties manifested their

intent. Farnsworth, Contracts, § 7.10, p 492.

Plaintiff primarily relies on e-mails exchanged with Cislo and McDonald related to her

leave of absence to support her breach-of-contract claim on the basis of promises that were made

to her before she took a leave of absence. Plaintiff argues that the HR staff made express

assurances to her in these e-mails exchanged on February 26, 2015:

2

Lynas v Maxwell Farms, 279 Mich 684; 273 NW 315 (1937).

3

Bullock v Auto Club of Mich, 432 Mich 472; 444 NW2d 114 (1989).

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[From plaintiff:] Amy — just want to make sure I understand your note

below that my current classification, comp pay and benefits would remain the

same upon my return however the position and/or department is not guaranteed.

Is that correct? So when I return, if a comparable position cannot be located in

the Marketing area, they will look outside in other departments, is that correct?

Just want to make sure I understand the rules for personal leave.

[McDonald’s response:] Yes, that is correct. You will maintain same pay

and comp level and benefits with that comp level upon your return. For Leave of

Absence situations, the exact job is not guaranteed. Perhaps jobs outside

marketing would be looked at if they meet your skill set. Layoff is a possibility as

well if a comparable job is not available.

This e-mail exchange does not contain any clear and unequivocal representation that

plaintiff would be guaranteed a position after her leave of absence. Plaintiff’s own e-mail

demonstrates her understanding that there was no guarantee that she could return to a position in

the marketing department. While she contends that McDonald assured her that defendant would

place her in another position, McDonald’s response that “[p]erhaps jobs outside marketing would

be looked at if they meet your skill set” cannot be understood as a clear and unequivocal

statement that a position outside of marketing was guaranteed. Indeed, McDonald also made

clear that layoff was a possibility if no comparable job was available. Moreover, plaintiff

admitted in her deposition that on February 22, she was told that when she was ready to return

from her leave of absence, her reinstatement to her former position or another comparable

position would be attempted, but it was not guaranteed. At most, plaintiff has presented

evidence of only expressions of optimistic hope that efforts would be made to place her in a

comparable position, but such statements are insufficient to support a claim for breach of

contract based on an express agreement of continued employment. Accordingly, the trial court

did not err by granting summary disposition for defendant on this theory.

Alternatively, plaintiff argues that the statements by the HR staff instilled in her a

legitimate expectation of job security to support a contract implied in law based on defendant’s

policies and procedures. In Lytle, 458 Mich at 164-165, the requirements for proving this theory

were explained as follows:

We have recognized a two-step inquiry to evaluate legitimate-expectations

claims. The first step is to decide “what, if anything, the employer has promised,”

and the second requires a determination of whether that promise is “reasonably

capable of instilling a legitimate expectation of just-cause employment . . . .”

Rood [v Gen Dynamics Corp, 444 Mich 107, 138-139; 507 NW2d 591 (1993)].

Not all policy statements will constitute a “promise,” which we have

recognized as a

“manifestation of intention to act or refrain from acting in a

specified way, so made as to justify a promisee in understanding

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that a commitment has been made.” [Id. at 138-139, quoting the

Second Restatement of Contracts, § 2(1).]

A lack of specificity of policy terms or provisions, or a policy to act in a particular

manner as long as the employer so chooses, is grounds to defeat any claim that a

recognizable promise in fact has been made. Rood[, 444 Mich] at 139. In this

case, plaintiff's proof lacks both the specificity and commitment that raises an

employer's policy to the level of a promise.

In this case, it was made clear to plaintiff, both through the e-mail exchanges and the

leave-of-absence form, that defendant was not making any guarantees regarding future job

placement or security when plaintiff was ready to return to work. Nothing in the

communications to plaintiff could have created a legitimate expectation that plaintiff was assured

a position in the future. While defendant’s policies and the statements from the HR staff

indicated that they would look into placing plaintiff in another position, depending on her

qualifications, there were no assurances that she would be offered her former position or another

position. Plaintiff places emphasis on the HR staff’s statement that they “will” look for a

position for her in another department if there were no openings in marketing. However,

defendant’s agreement to look into or consider placing plaintiff elsewhere could not have created

a legitimate expectation that another position would actually be found or guaranteed.

Plaintiff attempts to draw a distinction between termination and layoff, claiming that she

was assured that she “would” be placed on layoff if no positions were available and, instead of

being laid off, her employment was formally terminated. Plaintiff is drawing a distinction

without a difference in the case at bar. Cislo and McDonald testified that there was no difference

between a layoff and permanent separation. Laid off employees in plaintiff’s group were not

called back to work. Trotta testified that defendant had no layoff policy for plaintiff’s group

after 2009 and, therefore, statements referring to layoff were inaccurate for that reason.

Nonetheless, any assurances about being placed on layoff if there was no job available could not

have created any expectation of continued employment because plaintiff has not identified any

evidence of a formal layoff policy that involved recalling employees, and plaintiff does not

otherwise explain how she was led to believe that placing her on layoff status afforded her any

specific rights to being reinstated.

This case is factually similar to Kvintus v RL Polk & Co, 3 F Supp 2d 788, 791-792 (ED

Mich, 1998), aff’d 194 F3d 1313 (CA 6, 1999). 4 In that case, the plaintiff took a medical leave

of absence and, after he returned to work, his position was eliminated and he was terminated.

Kvintus, 3 F Supp 2d at 791-792. The plaintiff brought a claim for breach of contract predicated

on statements made to him that he would not be discharged while on leave. The court explained:

4

Although not binding on this Court, a lower federal court decision may be considered as

persuasive authority. In re Estate of Vansach, 324 Mich App 371, 388, n 8; 922 NW2d 136

(2018).

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Plaintiff predicates his claim of just cause employment upon certain

conversations that plaintiff states that he had with Mike Lesinski and Paul Inson

before agreeing to the medical leave which was to commence in July of 1996. In

his one sentence argument in support of his claim, plaintiff while acknowledging

his at-will employment status, states that “the terms of the contractual relationship

changed when a Director of Human Resources, Paul Inson, and the Project

Manager, Lesinski, repeatedly told him his job was secure.” (Pl.’s Resp. at 33).

Employment contracts for an indefinite duration are presumptively terminable at

the will of either party for any reason or for no reason at all. Lynas v Maxwell

Farms, 279 Mich. 684, 687, 273 N.W. 315 (1937). However, the presumption is

not “a substantive limitation on the enforceability of employment contracts but

merely a rule of construction.” Toussaint v. Blue Cross & Blue Shield of

Michigan, 408 Mich. 579, 597, 292 N.W.2d 880 (1980).

In order to overcome the presumption of employment at will, a party must

present sufficient proof of either a contractual provision for a definite term of

employment or a provision forbidding discharge absent just cause, or it may be

overcome by proofs which permit a promise implied in fact of employment

security. Rowe v. Montgomery Ward & Co., 437 Mich. 627, 636–637, 473

N.W.2d 268 (1991). In deciding whether there was mutual assent to a just-cause

provision, the Court employs an objective test “looking to the expressed words of

the parties and their visible acts.” Id. at 640, 473 N.W.2d 268 quoting Goldman

v. Century Ins. Co., 354 Mich. 528, 535, 93 N.W.2d 240 (1958). This Court has

previously stated that any orally grounded contractual obligation for permanent

employment “must be based on more than an expression of optimistic hope of a

long relationship.” Carpenter v. American Excelsior Co., 650 F.Supp. 933, 936,

n. 6 (E.D.Mich.1987). Therefore, in order to defeat a motion for summary

judgment, plaintiff must show that more than a mere subjective expectancy

existed that he would be terminated only for just cause. Reid v. Sears, Roebuck &

Co., 790 F.2d 453 (6th Cir.1986).

In the instant case, plaintiff contends that before his July of 1996 medical

leave commenced defendant’s employees Inson and Lesinski repeatedly told him

“that I would have a job when I came back to work.” (Kvintus Dep. at 27–28). In

his deposition, plaintiff stated that he did not believe he was an employee at will

because “Paul had said, and Mike has said . . . they told me to take time off; you

don’t have to worry about it.” (Kvintus Dep. at 22). Aside from the

aforementioned statements, plaintiff does not offer any other evidence

demonstrative of any actions undertaken by defendants which would lead plaintiff

to the conclusion that his employment was not terminable at will. The plaintiff

has presented no evidence on which the Court could conclude that an objective

meeting of the minds between plaintiff and defendant occurred on the issue of

just-cause employment.

Further, plaintiff completely ignores the significance of the provision for

employment at-will endorsed by the plaintiff on his acceptance of defendant's

employment offer for the position of SSD. Viewing the evidence in the light most

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favorable to plaintiff, even if defendant’s employees did communicate to plaintiff

that he would be reinstated to his position upon his return from medical leave,

defendant’s promise cannot be construed as anything more than a promise to

return plaintiff to an at-will position. In Smith v. F.W. Morse & Co., Inc., the First

Circuit held that “A contract to reinstate an at-will employee to an at-will position

(from which she could immediately be removed without cause) is no contract at

all.” 76 F.3d 413, 426 (1st Cir.1996). The employment offer signed by plaintiff

unequivocally provides for employment-at-will and was signed by the plaintiff

upon his acceptance of the SSD position. Accordingly, the Court finds that

plaintiff's claim for breach of just-cause contract for employment is without merit.

[Kvintus, 3 F Supp 2d at 797-798.]

In Kvintus, 3 F Supp 2d at 798, the court relied on Smith v FW Morse & Co, Inc, 76 F3d

413, 426-427 (CA 1, 1996), in which that court analyzed statements regarding job security to an

employee on maternity leave in the context of at-will employment, stating:

We start by attempting to decipher the true nature of the appellant’s claim.

Her lawyers tell us that the disjointed statements made to her (e.g., “don’t worry,

we will manage while you are on maternity leave, your job is secure,” “you will

assume more responsibilities on your return,” you are “wanted back”) created a

contract to reinstate her following the completion of her maternity leave. Yet, the

appellant concedes that Bond’s and Guimond’s statements did not alter the

durational component of the at-will employment relationship. A contract to

reinstate an at-will employee to an at-will position (from which she could

immediately be removed without cause) is no contract at all. See Light v. Centel

Cellular Co., 883 S.W.2d 642, 645 n. 5 (Tex.1994) [abrogated on other grounds

by Marsh USA, Inc v Cook, 354 SW3d 764 (Tex 2011)] (holding that, as long as

the at-will character of the employment relationship remains unchanged, any

“promise made by either employer or employee that depends on an additional

period of employment is illusory because it is conditioned upon something that is

exclusively within the control of the promisor”); E. Allan Farnsworth, Contracts

§§ 2.13, 2.14 (2d ed. 1990) (explaining that promises to maintain an at-will

relationship are illusory); cf. Butler, 629 A.2d at 94 (terming an analytically

equivalent argument “a thin reed”).

Nor is this the only shortcoming in the supposed contract for

reinstatement. The evidence also fails to establish either the nature of the position

Smith was to assume or her proposed rate of pay. These gaps seemingly foreclose

a reasonably certain computation of damages.

In this case, plaintiff could not have reasonably believed that she was assured that she

would have a position to return to when she elected to take a leave of absence because she was

repeatedly informed that there were no guarantees and her future employment depended upon

other conditions. Plaintiff’s at-will status never changed, even when she sought reinstatement.

In sum, statements made by defendant’s employees when plaintiff was contemplating taking a

leave of absence did not assure her that she would be reinstated to a position in defendant’s

marketing department or some other department. Instead, because plaintiff remained an at-will

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employee while on leave, she had no basis for asserting that defendant breached its contract with

her by not reinstating her after her leave of absence ended.

For these reasons, the trial court did not err by granting defendant’s motion for summary

disposition with respect to plaintiff’s claim for breach of contract.

III. RETALIATION

The ELCRA prohibits a person from “[r]etaliat[ing] or discriminat[ing] 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). To establish a claim for 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. [Garg v Macomb Co Comm Mental Health

Servs, 472 Mich 263, 273; 696 NW2d 646 (quotation marks and citation omitted),

amended 473 Mich 1205 (2005).]

For purposes of this issue, it is not disputed that plaintiff engaged in protected activity when she

filed a complaint of harassment against Laymac in 2012, that defendant was aware of the

complaint, and that plaintiff’s termination in 2016 qualifies as an adverse employment action.

The only element at issue is whether plaintiff can prove a causal connection between her 2012

complaint and the 2016 adverse employment action.

To demonstrate a causal connection between an adverse employment action and

protected activity, a plaintiff must establish that participation in the protected activity was a

“significant factor” in the defendant’s adverse employment action. Merely showing a causal link

between the two is insufficient. Rymal v Baergen, 262 Mich App 274, 303; 686 NW2d 241

(2004). Temporal proximity between events, standing alone, is generally not enough; the

plaintiff must show that defendant “took adverse employment action because of plaintiff’s

protected activity.” West v Gen Motors Corp, 469 Mich 177, 185; 665 NW2d 468 (2003)

(emphasis in original). Temporal proximity can support a causal connection between protected

activity and an adverse employment action when the adverse employment action against an

employee occurs very close in time upon learning of the employee’s protected activity. See

Mickey v Zeidler Tool & Die Co, 516 F3d 516, 525 (CA 6, 2008). Where there has been a lapse

of time between events, a plaintiff cannot rely on temporal proximity alone, but must produce

other evidence of retaliatory conduct in order to prevail. Id.

In Aho v Dep’t of Corrections, 263 Mich App 281, 291-292; 688 NW2d 104 (2004), this

Court explained:

Although the timing between the protected activity and the adverse action

may in some cases constitute circumstantial evidence pointing to a causal nexus,

Wrenn v Gould, 808 F2d 493, 501 (CA 6, 1987), in this case, the time between the

events was remote—approximately five years—thus seriously undermining any

claim by plaintiff of a causal connection. Periods much shorter than five years

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have been found to be insufficient to demonstrate a causal nexus. See, e.g.,

Wixson v Dowagiac Nursing Home, 866 F Supp 1047, 1057 (WD Mich, 1994)

(seven months was too remote to support an inference of retaliation); and Reeves

v Digital Equip Corp, 710 F Supp 675, 677 (ND Ohio, 1989) (three months was

too remote to support an inference of retaliation). Courts have consistently held

that a lengthy period between the protected activity and the adverse employment

action precludes a nexus between the two events. See Filipovic v K & R Express

Systems, Inc, 176 F3d 390, 399 (CA 7, 1999), quoting Johnson v Univ of

Wisconsin—Eau Claire, 70 F3d 469, 480 (CA 7, 1995) (“A substantial lapse of

time between the protected activity and the adverse employment action ‘is

counter-evidence of any causal connection.’ ”); Vickowski v Hukowicz, 201 F

Supp 2d 195, 210 (D Mass, 2002) (“[T]he fact that four and one-half years passed

between the settlement of the 1990 lawsuit and the adverse action (five and one-

half years if calculated from the date the lawsuit was filed) severely undercuts, if

not eviscerates, any causal connection.”); and Ways v City of Lincoln, 909 F Supp

1316, 1325 (D Neb, 1995) (holding that five years between the prior lawsuit and

allegedly retaliatory acts was too long to provide a causal nexus).

Plaintiff filed her EEOC complaint against Laymac in October 2012. Her employment

was not terminated until April 2016. This lapse of time is too tenuous to support a causal

connection between plaintiff’s 2016 termination and the filing of her complaint against Laymac

in 2012.

Plaintiff argues that other circumstantial evidence supports a causal connection between

her 2016 termination and her 2012 EEOC complaint. Causation may be proven by

circumstantial evidence, but it must produce reasonable inferences of causation, not mere

speculation. Shaw v City of Ecorse, 283 Mich App 1, 14-15; 770 NW2d 31 (2009).

Although plaintiff theorizes that Laymac influenced the decisions not to reinstate her in

2015 or 2016, she failed to present any evidence that Laymac offered any input or was involved

with the decision by the HR staff to not offer her another position and to instead terminate her

employment. Plaintiff admitted that she had no direct contact with Laymac after she filed her

EEOC complaint in 2012. She also admitted that she had no information that Laymac spoke to

other employees about her (apart from one e-mail he sent to a new supervisor) after plaintiff

stopped working for Laymac. She believed that comments made to other employees about her

and how she was treated must have been influenced by Laymac, but she did not cite any facts to

support this belief. In sum, there is no evidence that Laymac had any input or played any role in

the HR staff’s decision to recommend that plaintiff’s employment be terminated. Plaintiff’s

mere belief that the 2016 decision to terminate her employment was influenced by input or

comments from Laymac, unsupported by any evidence to that effect, is insufficient to establish a

genuine issue of material fact regarding a causal connection between her 2012 complaint and

2016 termination.

To support her claim of a causal link between her 2012 complaint and 2016 termination,

plaintiff also relies on the fact that Trotta was involved in the 2012 investigation and he was part

of the HR staff who recommended that her employment be terminated in 2016. In his

deposition, Trotta explained that the EEOC found insufficient evidence of sexual harassment in

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the 2012 matter. He was also involved with a group that conducted an internal investigation of

plaintiff’s 2012 complaint, but he did not perform any of the investigative work himself.

According to Trotta, a written warning was issued to Laymac, but the investigative group had

decided to issue only a verbal warning. It was determined that an exchange of e-mails between

plaintiff and Laymac that related to plaintiff’s claim involved inappropriate conduct by both

parties. After discussing the matter with the group and the legal department, Trotta rescinded the

written warning.

Trotta denied that he held any personal animosity against plaintiff related to her 2012

EEOC complaint. In fact, he was the person who submitted that complaint. Moreover, it was

Trotta who helped find plaintiff a new position under a different supervisor after she filed her

complaint against Laymac. At that time, other departments did not want plaintiff in their groups,

but Trotta was able to get her placed in another position as a result of personal favors. Although

Trotta was still the HR manager at the time plaintiff was terminated, other HR staff were

involved in processing plaintiff’s leave-of-absence request and the efforts to find plaintiff

another position after her leave of absence ended. Cislo and McDonald, who were part of the

HR staff, confirmed that they were not able to find a position for plaintiff in the marketing

department because no one wanted to work with her.

Defendant also presented independent evidence of the reasons why plaintiff was not

reinstated to another position after her leave of absence ended. Plaintiff worked in a position on

Walid Saba’s staff just before she took her leave of absence. Saba explained that he was aware

that plaintiff had a history of not getting along with others, but he offered her a position with his

staff because her technical skills were acceptable and he knew she could do a good job. After he

hired her, however, suppliers and other employees complained that they did not like working

with her. Her communication and people skills were poor. She was involved in conflicts with

other employees and managers, and her combative attitude was a constant theme during

employee review meetings. Saba tried coaching plaintiff about being sensitive to others and to

looking at the bigger picture.

Just before plaintiff started her leave of absence, she was told in an annual performance

review that she would not be promoted to a management position. That recommendation was

due to her difficulty working with others. Just before plaintiff took her leave of absence, Saba

contacted the HR staff to discuss moving plaintiff to a new position under a new supervisor in

the licensing department. When plaintiff was offered the licensing position, she instead opted to

take the leave of absence. When plaintiff was ready to return to work, Saba informed the HR

staff that he was willing to rehire plaintiff only for a position where she could use her technical

skills. He would not take her back for a position that required people or communication skills,

and he did not have any open positions for plaintiff based on those qualifications.

While plaintiff was on her leave of absence, Trotta and his staff spent six or seven

months looking for another position for plaintiff after her leave of absence ended. However,

managers in other departments did not want plaintiff in their group because she was “too much

drama” and was difficult to manage. One of defendant’s main suppliers said he would not bid on

any more programs that plaintiff managed based on his prior experiences with her. Plaintiff’s

leave of absence was extended at least two times, even though it did not have to be extended

beyond 30 days, to attempt to find plaintiff a suitable position.

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In sum, defendant submitted overwhelming evidence showing legitimate business reasons

for its decision to not reinstate plaintiff and to terminate her employment following her leave of

absence in 2016, which had no causal nexus to plaintiff’s 2012 complaint.

Plaintiff argues that defendant’s proffered reasons were a pretext for the adverse

employment action. We disagree. For purposes of its motion, defendant did not dispute that

plaintiff could establish a prima facie case of retaliation. Once a prima facie case is established,

“the burden shifts to the defendant to articulate a legitimate business reason” for the adverse

employment action. Roulston v Tendercare (Mich), Inc, 239 Mich App 270, 281; 608 NW2d

525 (2000). “If the defendant produces evidence establishing the existence of a legitimate

reason” for the adverse employment action, the plaintiff has an opportunity to prove that the

proffered legitimate reason “was not the true reason, but was only a pretext” for the adverse

action. Id. As explained in Feick v Monroe Co, 229 Mich App 335, 343; 582 NW2d 207

(1998):

A plaintiff can establish that a defendant’s articulated legitimate,

nondiscriminatory reasons are pretexts (1) by showing the reasons had no basis in

fact, (2) if they have a basis in fact, by showing that they were not the actual

factors motivating the decision, or (3) if they were factors, by showing that they

were jointly insufficient to justify the decision.

Defendant’s evidence showed that it declined to reinstate plaintiff because it had no

openings in the marketing department for a position that could utilize only her technical skills,

and managers were not willing to place plaintiff in a position that would require her to use

communication and people skills because of her history of problems in this area. This was a

legitimate, nondiscriminatory reason for not reinstating plaintiff and terminating her

employment.

The submitted evidence showed that plaintiff had become a “problem” employee even

before she filed the complaint against Laymac. Thereafter, she was assigned to a new

supervisor, but she continued to have problems with coworkers, managers, and suppliers.

Defendant’s reason for terminating plaintiff’s employment had a basis in fact because her

problematic behavior continued to occur over the years and there were multiple individuals who

had attested to problems working with plaintiff under different circumstances. Plaintiff did not

present any evidence to show that this reason for her dismissal was not grounded in fact.

Further, the fact that no one was willing to work with plaintiff because of her poor interpersonal

and communication skills was sufficient to justify the decision to terminate plaintiff’s

employment.

Affirmed.

/s/ Jane M. Beckering

/s/ Mark J. Cavanagh

/s/ Amy Ronayne Krause

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