Anthony Moore v. Huntington National Bank

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

ANTHONY MOORE, UNPUBLISHED

May 27, 2021

Plaintiff-Appellant,

v No. 352368

Genesee Circuit Court

HUNTINGTON NATIONAL BANK, LC No. 18-111589-CZ

HUNTINGTON BANCSHARES, INC., and ERIC

DIETZ,

Defendants-Appellees.

Before: CAMERON, P.J., and BORRELLO and REDFORD, JJ.

PER CURIAM.

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

(ELCRA), MCL 37.2101 et seq., plaintiff appeals as of right the trial court’s order granting

summary disposition in favor of defendants1 under MCR 2.116(C)(10). For the reasons set forth

in this opinion, we reverse.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, a black man, worked in the banking industry for about 20 years before being fired

on July 9, 2018. From approximately 1999 to 2016, plaintiff worked for Citizen’s Bank, then First

Merit Bank. During that time frame, the record reveals that plaintiff received raises and positive

comments about his work. In 2016, when Huntington purchased First Merit Bank, plaintiff

reapplied for his position with the new bank and was hired as a Private Banking Service Specialist

II (PBSS). Plaintiff’s role primarily involved supporting Pamela Root-Palinsky, who was a

1

Defendant Huntington Bancshares, Inc., was dismissed without prejudice from the case on the

basis of a stipulation of the parties. In light of that entity’s almost immediate dismissal from the

case, this opinion will not address Huntington Bancshares’s involvement, will use the term

“Huntington” to refer exclusively to Huntington National Bank, and will use the collective term

“defendants” to refer to Huntington National Bank and Eric Dietz.

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relationship manager and private banker for Huntington in the private bank unit. The private bank

provided services to certain qualifying customers. One of plaintiff’s responsibilities as a PBSS

was to ensure that clients’ accounts did not become dormant, which would occur if an account was

inactive for certain period of time. The funds in a dormant account could eventually escheat to the

State of Michigan. Eric Dietz, who was plaintiff’s supervisor and the Regional Director of East

Michigan for Huntington, testified that a list is routinely distributed of accounts that are falling

into dormant status, and a PBSS “is responsible for actioning that list and moving those accounts

from dormant to active.” Huntington had a specific policy and procedure regarding how to handle

dormant accounts; the procedure did not involve an employee depositing his or her own money in

the clients’ accounts.

After being hired by Huntington, plaintiff apparently had some struggles with adapting to

new systems and procedures. He received additional training, and areas needing improvement

were identified. Nonetheless, his 2017 year-end performance review that was completed by Dietz

indicated an overall rating of “fully meets” expectations.

In May 2018, plaintiff was provided with a list of accounts that were in dormant status.

Instead of following the established procedure, plaintiff decided to deposit one penny of his own

money into each of six separate client accounts. Plaintiff testified in his deposition that each of

these clients were contacted by plaintiff or bank officers via phone or e-mail, and that the clients

each approved this course of action to remove their accounts from dormant status. Plaintiff

testified that “the pennies were deposited only after instruction was given to me to do so.”

According to plaintiff, the officers that contacted some of these clients were Janice Sova and Anne

Carey.2 Sova was a client advisor or relationship manager in the private bank for Huntington, and

she served as a point of contact for private bank clients. Carey was a trust advisor in the private

bank for Huntington.

Plaintiff was asked in his deposition why he had proceeded with this course of action rather

than following the established procedures for handling dormant accounts. He testified that he had

spoken to Cathy Doerr, a Huntington branch manager, and that “she said that that was a procedure

that she did. That she would contact people and then she would deposit the penny and it would

restore – it would eliminate the dormant status.” Doerr testified in her deposition that plaintiff did

not ask her a question about dormant accounts or seek her guidance “per se” about how to handle

dormant accounts. She also testified that plaintiff “did not directly state he was going to take an

action regarding dormant accounts.” However, Doerr also testified that she and plaintiff “did have

a conversation about dormant accounts.” Doerr explained:

[Plaintiff] came over one day, came over into the branch, stated he had

several dormant accounts, and frustrated isn’t the right word for it, but maybe

overwhelmed to some extent. And so, I did state to [plaintiff], and I says well, you

do realize it only takes a penny in order to activate these dormant accounts. The

2

Plaintiff’s testimony was somewhat unclear on this point, but he testified that “[a]t least those

two” contacted clients.

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transaction does have to be directed by the customer and the customer has to be

present to make the deposit. And he said oh, okay.

Plaintiff also testified that he spoke to Sova about her client’s dormant status account and

assisting her client “to make the impact as less traumatic to the client as possible.” According to

plaintiff, Sova was aware that plaintiff was going to deposit a penny into her client’s account to

assist the client, and Sova said, “Do whatever needs to be done to cause this person less heartache.”

Plaintiff testified that Sova gave him “the direction that it was okay for me to do the penny in order

to [remove the account from dormant status].” Sova testified in her deposition that she received

an email from plaintiff indicating that he could reactivate a dormant account by depositing a penny,

but she never responded. She did not recall any verbal conversation with plaintiff about how to

reactivate a dormant account. Sova testified that she did not know that plaintiff deposited a penny

of his own money into any client accounts. Sova further testified that there had been instances at

First Merit where a private bank employee deposited personal funds into a customer account but

that she had never been informed of such occurrences happening at Huntington.

Additionally, plaintiff testified that Carey had clients on the list of dormant status accounts

and that he told her that he would deposit a penny in these accounts to remove the dormant status.

Carey testified in her deposition that she specialized in trusts and that she was not trained in the

“banking side,” which is where plaintiff worked. Carey stated:

My conversation on dormant accounts with him was he would come to me

and say, again, the client has a dormant account out there, and I would, basically I

always expect that he would know what he’s supposed to do. I would say, you

know, take care of it, if there’s anything you need me to do let me know.

Carey testified that she was not aware that plaintiff put his own money into any customer’s

account. She did not know of anyone at Huntington having deposited personal funds into a client

account and she did not know of anyone at First Merit having deposited personal funds into a

dormant account.

Plaintiff testified that the rules were not “completely” followed in the private banking

department. He stated that Root-Palinsky had previously instructed him to make deposits into

client accounts with funds she provided. Plaintiff explained that Root-Palinsky gave him personal

funds from her wallet to deposit into a client’s account if it had been newly opened and not funded

properly so as to prevent the account from closing. Plaintiff claimed that this had happened more

than three times and that it had happened at Huntington. However, plaintiff did not consult Root-

Palinsky beforehand with respect to the specific dormant account transactions at issue in this case.

Plaintiff also testified that Brad Fogleman, another Huntington employee in the private bank,

would process transactions for clients without the necessary signatures and then obtain the clients’

signatures after the fact.

Root-Palinsky testified in her deposition that she did not know that plaintiff was going to

deposit his own funds into the dormant accounts until after he had already made the transactions.

Plaintiff had never previously asked her for advice about how to reactivate a dormant account, and

she had never told plaintiff that she had used her own funds to activate a dormant account. She

further testified that she had never used her own personal funds to activate a dormant customer

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account. Root-Palinsky appeared to admit that she had deposited her own money into clients’

accounts as plaintiff claimed, but she testified that she had only done so while working for First

Merit, that she had never done this for dormant accounts, and that she had never done this while

working for Huntington. She did not know of any other Huntington employees who had deposited

personal funds into a customer’s account.

When plaintiff actually made the one-cent deposits at issue, he went to Doerr’s branch and

Doerr processed the transactions. Doerr testified that plaintiff came into the branch at some point

after their previous discussion about dormant accounts. She described the transaction as follows:

He came over one time with a deposit. We did the deposit. Didn’t really have a

conversation about it. It was maybe a few weeks later or again a period of time,

and [plaintiff] came over with a couple of deposits. And when I say a couple I

couldn’t tell you for sure how many. And he had the deposit tickets filled out and

he had the pennies. And I said oh, you’re making the penny deposit. And he said

yes. And I said well, you know, this does have to be directed by the customer and

the customer does have to be present in order for these transactions to occur. And

at one point [plaintiff] said well, I have pennies in my drawer. And I said well, you

better be careful.

And [plaintiff] also stated he had an e-mail from a client that gave him

authorization. And I said well, that isn’t anything we’d be able to do here. I said

but I know you do different things in private banking than we’re allowed to do in

retail. I just caution you to be careful.

Dietz testified in his deposition that plaintiff’s conduct of depositing his own pennies was

a serious breach of the rules and that an employee depositing his or her own personal funds into a

client’s account was a terminable offense because it constituted manipulation of a client’s account.

Denise Williams, who worked in Huntington’s human resources department, testified in her

deposition that plaintiff’s action of depositing his personal funds into the dormant accounts was a

violation of the code of conduct and that depositing personal funds into a client’s account is

typically a terminable offense. Williams was not aware of any other employee who had deposited

personal funds into a customer’s account and not been terminated from employment. Williams

testified that another employee in Ohio, who was a white woman, had used $1.57 of her own

money to pay off the balance of a customer’s loan and that this employee was terminated. With

respect to plaintiff, Williams’ role was to gather the pertinent facts and information as part of the

process for determining whether plaintiff would be discharged. During this process, Williams

spoke to Root-Palinsky and Dietz; she did not interview plaintiff before the termination decision

was made although there was no Huntington policy prohibiting her from doing so.

Plaintiff’s employment was subsequently terminated. Dietz testified that plaintiff’s

employment was terminated solely because of the above incident involving the dormant accounts.

Williams also testified that plaintiff’s employment was terminated because he violated the code of

conduct by depositing his personal funds into the dormant accounts. Dietz additionally testified

that he had never seen any compliance or other internal investigative report regarding how plaintiff

handled the dormant accounts. He further testified that there was no documentation or report

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produced during the investigation period before plaintiff’s employment was terminated. Plaintiff

was replaced by a white woman.

Plaintiff testified in his deposition that he believed his employment was terminated because

of “racism” and because he was a “black male.” He claimed that he “did a transaction that was

instructed by white females” and that “it’s the black male who is looking for another job, when

white females who assisted in the transaction are still employed by Huntington.” Plaintiff testified

that Root-Palinsky, Sova, Carey, and Doerr were the white women who assisted in the transaction.

Plaintiff sued, alleging that his termination was based on racial and gender discrimination

in violation of the ELCRA. Plaintiff also raised a second count alleging generally that he had

complained about being treated differently than other employees and that defendants retaliated

against him for these complaints in violation of the ELCRA.

Defendants moved for summary disposition under MCR 2.116(C)(10) arguing that there

was no genuine issue of material fact that plaintiff’s employment was terminated based on his

violation of the dormant account policy and code of conduct rather than unlawful racial

discrimination or retaliation. Defendants contended that plaintiff had no direct evidence of

discrimination and that plaintiff could not satisfy the first or third steps of the McDonnell Douglas3

framework.

According to defendants, plaintiff could not establish a prima facie case of discrimination

under McDonnell Douglas because he could not show that he was qualified for the position.

Defendants contended that the record evidence reflected that plaintiff’s work performance was

deficient leading up to his termination that he was therefore unqualified because he was not

meeting Huntington’s employee expectations. Further, defendants maintained that plaintiff’s

violation of the code of conduct provided a legitimate, nondiscriminatory reason to terminate his

employment even if plaintiff had established a prima facie case of discrimination. Moving to the

third step under McDonnell Douglas, defendants argued that plaintiff could not demonstrate that

this reason was a pretext for unlawful discrimination because he had no evidence of any similarly

situated employees being treated differently for depositing personal funds into a client’s account.

With respect to the retaliation claim, defendants argued that plaintiff’s admissions in his

depositions established that there was no evidence that he had engaged in protected activity that

was causally related to his discharge.

Plaintiff responded, primarily arguing that Root-Palinsky, Sova, and Doerr were involved

in the incident to various degrees, were all white women, and were not disciplined. Plaintiff also

appeared to argue that the evidence that no investigatory reports were used as part of the decision-

making process leading up to termination, as well as the severity of the punishment for such a

minor error issue showed pretext, and that Dietz told plaintiff that previous mistakes had not been

punished as harshly. Plaintiff additionally contended that defendants had waived any challenge to

his gender discrimination claim by failing to make any argument directed at this claim in their

summary disposition motion and accompanying brief.

3

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

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The trial court held two hearings on the motion, during which the parties made oral

arguments consistent with their written filings. Plaintiff withdrew the retaliation claim, and the

trial court dismissed that count. The trial court also stated on the record that the gender

discrimination claim was dismissed because “I don’t see anywhere in the record that they’ve got

anything on gender.”

Following the second hearing, the trial court issued a written opinion and order granting

summary disposition in favor of defendants on plaintiff’s racial discrimination claim. The trial

court concluded that plaintiff could not prove a prima facie case of discrimination because the

evidence gave “rise to a finding that [plaintiff] was not performing at a satisfactory level of

Huntington National’s expectations, and as such he was not qualified for the position.” The trial

court ruled that defendant was entitled to summary disposition on this basis. Despite reaching that

conclusion, the trial court also determined that plaintiff had not presented evidence to rebut

defendants’ legitimate business reason for firing plaintiff. Thus, for that reason as well, the trial

court granted defendants’ motion for summary disposition. This appeal followed.

II. PLAINTIFF’S DISCRIMINATION CLAIMS

Plaintiff argues the trial court improperly granted summary disposition in favor of

defendants regarding plaintiff’s discrimination claim.

A. STANDARD OF REVIEW

This Court “reviews de novo decisions on motions for summary disposition brought under

MCR 2.116(C)(10).” Pace v Edel-Harrelson, 499 Mich 1, 5; 878 NW2d 784 (2016). A motion

for summary disposition under MCR 2.116(C)(10) “tests the factual sufficiency of the complaint.”

Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012).

“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.” Maiden

v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper where

there is no “genuine issue regarding any material fact.” Id. “A genuine issue of material fact exists

when reasonable minds could differ on an issue after viewing the record in the light most favorable

to the nonmoving party.” Auto-Owners Ins Co v Campbell-Durocher Group Painting & Gen

Contracting, LLC, 322 Mich App 218, 224; 911 NW2d 493 (2017) (quotation marks and citation

omitted). “The trial court is not permitted to assess credibility, weigh the evidence, or resolve

factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for

summary disposition under MCR 2.116(C)(10).” Hastings Mut Ins Co v Grange Ins Co of Mich,

319 Mich App 579, 583-584; 903 NW2d 400 (2017) (quotation marks and citation omitted).

B. LAW AND ANALYSIS

In Michigan, the “ELCRA prohibits employers from discriminating on the basis of race.”

White v Dep’t of Transportation, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No.

349407); slip op at 3; see also MCL 37.2202(1)(a). The ELCRA also prohibits discrimination on

the basis of sex. MCL 37.2202(1)(a). The relevant statutory provision, MCL 37.2202(1)(a),

provides as follows:

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

(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate

against an individual with respect to employment, compensation, or a term,

condition, or privilege of employment, because of religion, race, color, national

origin, age, sex, height, weight, or marital status. [Emphasis added.]

As an initial matter, it is evident that plaintiff has presented his case as a claim that he was

discriminated against on the basis of both his race and gender. He is a black man and compares

his treatment with that of other employees who are white women. Both race and sex protected

classes under the ELCRA, and they need not be separated into distinct claims. See Wilcoxon v

Minnesota Min & Mfg Co, 235 Mich App 347, 367, 368-369; 597 NW2d 250 (1999) (treating the

plaintiff’s racial and gender discrimination claims together as a claim of discrimination on both

grounds).

In this case, by comparing his treatment to that of white women employees, plaintiff’s

combined racial and gender discrimination claims relied on the same evidence. Thus, the trial

court clearly erred by dismissing plaintiff’s gender discrimination claims on the ground that there

was no evidence of this claim, while nonetheless considering the record evidence for purposes of

the racial discrimination claim. Pace, 499 Mich at 5. Instead, the proper inquiry is whether the

record evidence created a genuine issue of material fact regarding plaintiff’s asserted racial and

gender discrimination claim. We thus address the evidence while considering both of these claims

together. Wilcoxon, 235 Mich App at 367, 368-369.

“The ultimate question in an employment discrimination case is whether the plaintiff was

the victim of intentional discrimination.” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586,

606; 886 NW2d 135 (2016). “In some discrimination cases, the plaintiff is able to produce direct

evidence of racial [or gender] bias. In such cases, the plaintiff can go forward and prove unlawful

discrimination in the same manner as a plaintiff would prove any other civil case.” Hazle v Ford

Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). Plaintiff does not appear on appeal to rely

on direct evidence to support his argument that the trial court erred by granting summary

disposition in defendants’ favor.4 Thus, in cases such as this one, where “there is no direct

evidence of impermissible bias, plaintiff’s claim of intentional discrimination must proceed under

the McDonnell Douglas burden-shifting framework.” White, ___ Mich App at ___; slip op at 3

(quotation marks and citations omitted).

In Hazle, 464 Mich at 463, our Supreme Court stated:

Under McDonnell Douglas, a plaintiff must first offer a “prima facie case”

of discrimination. Here, plaintiff was required to present evidence that (1) she

4

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, 464 Mich at 462

(quotation marks and citations omitted). The focus of plaintiff’s appellate arguments is clearly

directed at the trial court’s application of the McDonnell Douglas framework. Our analysis will

therefore be focused accordingly.

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belongs to a protected class, (2) she suffered an adverse employment action, (3) she

was qualified for the position, and (4) the job was given to another person under

circumstances giving rise to an inference of unlawful discrimination.

A rebuttable presumption of discrimination arises if a plaintiff sufficiently establishes a

prima facie case. Id. at 463-464. The defendant may rebut this presumption by articulating “a

legitimate, nondiscriminatory reason for its employment decision.” Id. at 464. If the employer

articulates a legitimate, nondiscriminatory reason and supports it with evidence, the presumption

created by the McDonnell Douglas prima facie case drops away.” Id. at 464-465. The burden

then “shifts back to the plaintiff to show that the defendant’s reasons were not the true reasons, but

a mere pretext for discrimination.” White, ___ Mich App at ___; slip op at 4 (quotation marks and

citation omitted).

Our Supreme Court explained in Hazle, 464 Mich at 465-466:

At that point, in order to survive a motion for summary disposition, the

plaintiff must demonstrate that the evidence in the case, when construed in the

plaintiff’s favor, is “sufficient to permit a reasonable trier of fact to conclude that

discrimination was a motivating factor for the adverse action taken by the employer

toward the plaintiff.” . . . [A] plaintiff “must not merely raise a triable issue that

the employer’s proffered reason was pretextual, but that it was a pretext for

[unlawful] discrimination.”

The inquiry at this final stage of the McDonnell Douglas framework is

exactly the same as the ultimate factual inquiry made by the jury: whether

consideration of a protected characteristic was a motivating factor, namely, whether

it made a difference in the contested employment decision. The only difference is

that, for purposes of a motion for summary disposition or directed verdict, a

plaintiff need only create a question of material fact upon which reasonable minds

could differ regarding whether discrimination was a motivating factor in the

employer’s decision. [Citations omitted; second alteration in original.]

1. PRIMA FACIE CASE

In this case, there is no dispute that plaintiff is a black man, that he was terminated from

his employment, and that he was replaced by a white woman. The parties only dispute whether

plaintiff was qualified for the position such that he could satisfy the third requirement of

establishing a prima facie case of discrimination. See Hazle, 464 Mich at 463. Defendants argue

that plaintiff was not qualified, and they point to the record evidence illustrating plaintiff’s various

work-performance issues during the time preceding his one-cent deposits. However, both

defendants and the trial court ignore the evidence that plaintiff received an overall rating of “fully

meets” expectations in his most recent performance review. Defendants, and the trial court, instead

focused only on the evidence that various supervisors and coworkers had complaints about the

quality and dependability of plaintiff’s work.

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

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

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(Opinion by BRICKLEY, J.). “Being qualified for a job, for purposes of establishing a prima facie

case of discrimination, requires only minimal qualification.” Wilcoxon v Minnesota Mining & Mfg

Co, 235 Mich App 347, 369; 597 NW2d 250 (1999).

Here, there was evidence that plaintiff fully met his employer’s expectations despite there

also being evidence that his work performance was deficient in certain areas. The trial court

appears to have made a finding of fact based on its view of the relative strength of the evidence.

This of course, again, was error as a trial court does not resolve conflicts in the evidence or weigh

the evidence on a summary disposition motion under MCR 2.116(C)(10). Hastings Mut Ins, 319

Mich App at 583-584. Applying the proper evidentiary standard to the record facts by viewing

the evidence in the light most favorable to plaintiff as the nonmoving party, Maiden, 461 Mich at

120, plaintiff presented evidence that he was at least minimally qualified for the position.

Consequently, plaintiff satisfied the requirement of establishing a prima facie case. Hazle, 464

Mich at 463; Town, 455 Mich at 699 (Opinion by BRICKLEY, J.); Wilcoxon, 235 Mich App at 369.

In reaching this conclusion, we note that “[t]he purpose of the prima facie case is to force the

defendant to provide a nondiscriminatory explanation for the adverse employment action.” Town,

455 Mich at 699 (Opinion by BRICKLEY, J.).

The trial court thus erred by ruling as a matter of law that plaintiff had failed to establish a

prima facie case under McDonnell Douglas framework. Because plaintiff demonstrated a prima

facie case, the burden shifted to defendant to provide evidence of a legitimate, nondiscriminatory

reason for plaintiff’s termination. Hazle, 464 Mich at 464-465.

2. LEGITIMATE NONDISCRIMINATORY REASON

In articulating a legitimate, nondiscriminatory reason for plaintiff’s discharge, defendants

rely on the testimony of Dietz and Williams indicating that plaintiff’s employment was terminated

based solely on his deposits of his personal funds into the dormant accounts that constituted a

violation of the code of conduct. Both Dietz and Williams testified that plaintiff’s conduct was a

serious and terminable offense. Clearly, this reason relates only to plaintiff’s actions and has

nothing to do with his race or sex. Thus, defendants articulated a legitimate, nondiscriminatory

reason that was supported by the evidence. Id. at 464-465. Resolution of this appeal thus turns on

whether plaintiff produced evidence to create a genuine issue of material fact that defendants’

asserted reason was a pretext for unlawful discrimination. White, ___ Mich App at ___; slip op at

4 (quotation marks and citation omitted).

3. PRETEXT

Plaintiff essentially argues that defendants’ articulated reason for discharging him was a

pretext for unlawful discrimination because the rules and policies at issue were selectively

enforced. Plaintiff argues that there is record evidence that he was punished more severely than

others for the same conduct and, particularly, that there was record evidence showing that other

white female employees who had deposited personal funds into client accounts or who were

involved in his transaction that is at issue in this case were not disciplined at all even though he

was terminated from his employment.

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As our Supreme Court has noted, “[t]here are multiple ways to prove that a plaintiff was

the victim of unlawful discrimination.” Hecht, 499 Mich at 607. “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. Major v Village of Newberry, 316 Mich App 527, 542; 892

NW2d 402 (2016) (quotation marks and citation omitted). Additionally,

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. An employer’s differing treatment of employees who were similar

to the plaintiff in all relevant respects, except for their race [or gender], can give

rise to an inference of unlawful discrimination. In order for this type of “similarly

situated” evidence alone to give rise to such an inference, however, our cases have

held that the “comparable” employees must be “nearly identical” to the plaintiff in

all relevant respects. [Hecht, 499 Mich at 608 (citations omitted; emphasis added).]

In this case, defendants contend that the only sufficiently comparable employee to plaintiff

is a Ohio woman who was also discharged for the similar action of using $1.57 of her own personal

funds to pay the remaining balance on a customer’s loan. We concur with defendants that the Ohio

discharge is evidence that plaintiff was not treated differently than a similarly situated employee

who was not the same race or gender as plaintiff, and such evidence would tend to undermine

plaintiff’s argument that he was subjected to unlawful discrimination. Id.

However, plaintiff also argues that there are other similarly situated employees to be

considered as comparators. Plaintiff testified that there was a culture in the private banking

department that tolerated deviations from the rules while emphasizing or prioritizing the focus on

pleasing the customers. According to plaintiff, there were instances where Root-Palinsky had

given him a dollar from her wallet to deposit in client accounts that had not been properly funded

so as to prevent those accounts from closing. Plaintiff testified that this occurred on at least three

occasions while he and Root-Palinsky were employed at Huntington. Plaintiff stated further that

Root-Palinsky “had given [him] instructions before to do transactions into client accounts and had

given [him] funds to do deposits into accounts.” Root-Palinsky seemed to admit in her deposition

that she had done this while at First Merit, but claimed she had never done so with dormant

accounts or at Huntington.

Williams testified that when she spoke to Root-Palinsky before plaintiff was terminated

about plaintiff’s handling of the dormant accounts, Root-Palinsky mentioned this procedure that

had been used at First Merit. Dietz, who supervised Root-Palinsky, testified that he had never

investigated or requested an investigation whether Root-Palinsky had ever conducted improper

transactions of depositing her own personal funds into dormant accounts. Williams testified that

she never investigated Root-Palinsky.

Defendants argue that Root-Palinsky is not similarly situated to plaintiff because she did

not deposit her own funds into client accounts, she was not directly involved in the specific

transactions made by plaintiff that are at issue in this case, and Huntington was unaware of her

alleged conduct. First, defendants ignore the conflicting evidence that Root-Palinsky actually did

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deposit personal funds into client accounts while employed by Huntington and that Williams

learned during the investigation that plaintiff believed his actions were the same as actions Root-

Palinsky had taken in the past with respect to the deposits. It is improper for a court to resolve

these factual conflicts on summary disposition. Hastings Mut In, 319 Mich App at 583-584.

Moreover, it is evident from the testimony of Diezt and Williams, as well as from Huntington’s

reliance on the treatment of the Ohio employee to justify plaintiff’s termination, that it is the act

of depositing an employee’s personal funds into any client account that is considered a serious

offense, not just such a deposit in a dormant account.

Second, the “plaintiff need not demonstrate an exact correlation with the employee

receiving more favorable treatment in order for the two to be considered ‘similarly-situated;’

rather . . . the plaintiff and the employee with whom the plaintiff seeks to compare himself or

herself must be similar in ‘all of the relevant aspects.’ ” Ercegovich v Goodyear Tire & Rubber

Co, 154 F3d 344, 352 (CA 6, 1998) (citation omitted); accord Hecht, 499 Mich at 608 (“[O]ur

cases have held that the “comparable” employees must be “nearly identical” to the plaintiff in all

relevant respects.”) (citation omitted). “We are not bound by federal precedent interpreting

analogous questions under Title VII of the 1964 Civil Rights Act, but that caselaw is generally

considered persuasive.” White, ___ Mich App at ___; slip op at 6. Courts “should make an

independent determination as to the relevancy of a particular aspect of the plaintiff’s employment

status and that of the non-protected employee.” Ercegovich, 154 F3d at 352.

Here, both plaintiff and Root-Palinsky worked in the private banking department and were

supervised by Dietz. There was evidence that Root-Palinsky, like plaintiff, had deposited personal

funds into client accounts. The record evidence reflects that Huntington considered an employee’s

deposit of personal funds into a client account of any kind to be a terminable offense: Dietz testified

that this was the case because it constituted manipulation of a client’s account, and Huntington

relied on the termination of an employee in Ohio for using personal funds to pay off a customer’s

loan to justify plaintiff’s discharge in this case. Accordingly, even if Root-Palinsky did not deposit

personal funds into a dormant account, her alleged actions are still sufficiently similar to plaintiff’s

conduct. We therefore conclude that plaintiff and Root-Palinsky were nearly identical in all

relevant respects for purposes of comparison in this context under the facts of this case. Hecht,

499 Mich at 608; Ercegovich, 154 F3d at 352.

Additionally, plaintiff testified that Sova, Carey, and Doerr were involved to various

degrees in the specific dormant account transactions at issue. Plaintiff claimed that Sova and Carey

had contacted some of the clients involved to obtain their authorization to make the one-cent

deposits. Both Sova and Carey were employed in the private bank department. Plaintiff claimed

that Sova directed him to complete the transactions at issue to remove the dormant status for her

client’s account, although Sova denied ever giving such an instruction and disavowed having any

prior knowledge that plaintiff planned to deposit his own funds into a client’s account. Plaintiff

further testified that he told Carey of his plan for removing the dormant status of these accounts.

Carey testified, however, that she was not made aware that plaintiff put his own money into any

customer’s account and that she trusted plaintiff to know how to proceed on the “banking side”

since she only worked with trusts. At the summary disposition stage, we must view this evidence

in the light most favorable to plaintiff and may not resolve the conflicting evidence. Maiden, 461

Mich at 120; Hastings Mut Ins, 319 Mich App at 583-584.

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Plaintiff also testified that Doerr had told him that this procedure was one she used. Doerr

disputed this, but we do not resolve or weigh conflicting evidence on summary disposition.

Hastings Mut Ins, 319 Mich App at 583-584. Doerr was the employee who actually processed

plaintiff’s deposits. She told him that the customer’s needed to be present, thus demonstrating her

awareness of proper protocol, and nonetheless processed the deposits despite that the customers

were not present.

While defendants are correct that plaintiff was the person who actually deposited his own

personal funds into clients’ accounts, we conclude that it is highly relevant under the particular

circumstances of this case that Doerr, Carey, and Sova were allegedly so closely connected to the

completion of the transaction and that there is evidence supporting that they helped facilitate the

transaction in various ways, including processing the deposits (Doerr) and obtaining authorization

from the clients for the transactions (Carey and Sova). Doerr, Carey, and Sova were thus similarly

situated to plaintiff for purposes of comparison in this context under the facts of this case. Hecht,

499 Mich at 608; Ercegovich, 154 F3d at 352.

Turning to a comparison of plaintiff’s treatment with that of other similarly situated

employees, Williams testified that she was aware before plaintiff was discharged that he claimed

to have been coached by other Huntington employees regarding the action he took. Yet, she did

not speak to him as part of her fact-gathering investigation to obtain more information about these

claims. Further, the testimony of Doerr, Carey, and Sova, indicates that none of them were

questioned by Huntington’s human resources or compliance departments. Although Williams

discussed plaintiff’s conduct specifically with Root-Palinsky, Root-Palinsky’s similar prior actions

were never questioned. Plaintiff testified that on the day his employment was terminated, Dietz

told him “that this has happened before but never punished to this degree.” Dietz testified that he

never made such a statement. Dietz testified that the clients affected by plaintiff’s transactions

were never contacted or notified about the transactions.

Viewing the evidence in a light most favorable to plaintiff as the nonmoving party, a

reasonable jury could conclude Huntington failed to contact other employees closely connected

with the underlying factual circumstances of the actions for which plaintiff was discharged, and

failed to question or investigate allegations of similar conduct by another employee, and as such,

demonstrated a lack of diligence and completeness in the investigation leading to plaintiff’s

termination. Yet, defendants maintain strongly, that the conduct at issue is considered by

Huntington to be a serious offense. Given that other employees were white women and defendant

was a black man, taking the evidence in the light most favorable to the nonmoving party, a

reasonable jury could conclude that a more thorough investigation was warranted for such a serious

allegation and that such an incomplete investigation demonstrated that defendants’ articulated

reason for plaintiff’s discharge was a pretext for unlawful discrimination. A reasonable jury could

further conclude that such discrimination was a motivating factor in termination plaintiff’s

employment. Major, 316 Mich App at 542; Hecht, 499 Mich at 607-608.

We acknowledge that there was also evidence that a white female employee in Ohio was

discharged for an action similar to plaintiff’s actions in the instant case. However, when there are

multiple similarly situated employees who were treated differently than the plaintiff and did not

share the plaintiff’s protected classification, an employer “cannot defeat the inference of a

discriminatory motive with one comparator who was treated similarly.” Ondricko v MGM Grand

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Detroit, LLC, 689 F3d 642, 652 (CA 6, 2012). The genuine issues of material fact discussed above

constitutes evidence from which a jury could reasonable infer that unlawful racial and gender

discrimination were motivating factors in Huntington’s decision to terminate plaintiff’s

employment. See id. (“Based on these disputed issues of material fact, Ondricko has presented

evidence from which a reasonable jury could logically infer that gender was a motivating factor in

MGM’s decision to terminate her employment.”).

Because plaintiff demonstrated that the evidence in this case “when construed in the

plaintiff’s favor, is sufficient to permit a reasonable trier of fact to conclude that discrimination

was a motivating factor for the adverse action taken by the employer toward the plaintiff,” Hazle,

464 Mich at 465 (quotation marks and citation omitted), the trial court erred by granting summary

disposition in favor of defendants. We therefore reverse.

Reversed and remanded for further proceedings consistent with this opinion. We do not

retain jurisdiction. Plaintiff having prevailed is entitled to costs. MCR 7.219(A).

/s/ Thomas C. Cameron

/s/ Stephen L. Borrello

/s/ James Robert Redford

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