Lisa Griffey v. Department of Corrections

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

LISA GRIFFEY and CEDRIC GRIFFEY, UNPUBLISHED

July 21, 2022

Plaintiffs-Appellees,

v No. 354322

Genesee Circuit Court

DEPARTMENT OF CORRECTIONS, LC No. 17-108535-CD

Defendant-Appellant.

Before: CAMERON, P.J., and O’BRIEN and SWARTZLE, JJ.

PER CURIAM.

After a month-long jury trial, a jury found in favor of plaintiffs, Lisa Griffey and Cedric

Griffey, on their employment-discrimination and retaliation claims under the Civil Rights Act

(CRA), MCL 37.2101 et seq., against defendant, the Michigan Department of Corrections. The

jury awarded plaintiffs $11,670,128.33. Defendant appeals that judgment as of right.

On appeal, defendant argues it is entitled to (1) reversal and dismissal of plaintiffs’ claims,

or a JNOV of no cause of action, because plaintiffs failed to prove a prima facie case of disparate

treatment, hostile work environment, and retaliation under the CRA; (2) a new trial because of the

trial court’s erroneous decision to admit improper evidence and the behavior of plaintiffs’ counsel

during trial; or (3) remittitur or a new trial because the amount of damages was not supported by

the evidence during trial or was otherwise improper. Finding no errors warranting appellate relief,

we affirm.

I. FACTUAL BACKGROUND

Lisa and Cedric both worked for defendant. This case was first filed because Lisa, a 55-

year-old black woman, claimed in relevant part that she suffered a racially hostile work

environment and disparate treatment while working for defendant. After the lawsuit was filed—

which Cedric, as Lisa’s husband, joined—plaintiffs claimed that defendant retaliated against

Cedric, a 57-year-old black man, which led to plaintiffs amending their complaint to include a

charge of retaliation against defendant.

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A. LISA’S CLAIMS

Plaintiffs met in January 1989. Plaintiffs were married in 1991. In October 2000, Lisa

began working for defendant as a parole and probation agent. As part of her job, Lisa often wrote

presentence investigation reports (PSIR), which required her to interview probationers and

parolees.

For her first six years, Lisa worked in various offices in Wayne County. Then, in 2006,

Lisa transferred to defendant’s parole and probation branch in Macomb County. Lisa remained in

defendant’s Macomb office until 2014, at which time she moved to Davison, Michigan, with her

family and requested a transfer to the Lapeer County office so she would work closer to where she

now lived. In November 2014, Lisa’s transfer was approved and she began working as an agent

in Lapeer.

The Lapeer office was in the basement of the Lapeer County government building and

courthouse. Defendant’s parole and probation office was the only state-level department in the

building, and it housed fewer than 10 employees. Lisa was the only employee who was black in

the entire building. The parole and probation supervisor in Lapeer, Michael Slater, was the

highest-ranking employee of defendant in the Lapeer County building. Supervisor Slater also

supervised the Sanilac County parole and probation department. Supervisor Slater testified that

Lisa was chosen to work in the Lapeer office by someone above him, which he thought was

unusual. He clarified that Lisa was assigned to his office against his wishes. According to

Supervisor Slater, Lisa agreed to cover some work in Sanilac County as a condition of transferring,

which required her to drive out to the Sanilac County office. Lisa disagreed, testifying that she

was unaware of the requirement to drive to Sanilac County as part of her job duties, which was

about one hour from the Lapeer office. Lisa said that she was the only employee in the Lapeer

office who was required to do so.

On Lisa’s first day, Supervisor Slater took her around the building, along with another new

hire, and introduced them to the staff. The other individual was a white male. During the

introductions, Supervisor Slater told people that he did not know what he was getting with respect

to Lisa, but he knew the white male would be a good agent. Lisa testified that she believed

Supervisor Slater’s comments were racially motivated, but she did not report them at the time.

According to Lisa, over the next two years, she was subjected to numerous racially

inappropriate and offensive communications. At trial, Lisa provided some examples of racial

harassment, but was clear that she was only discussing those she remembered.

Lisa testified that, one day during work, she was going over a map of Lapeer County with

fellow Parole and Probation Agent Meegan Shephard. Agent Shephard directed Lisa’s attention

to Imlay City and said that it was where a majority of the black residents of Lapeer County lived.

Lisa was surprised and offended by the comment, and testified that Agent Shephard “pretty much

admitted that she didn’t even know why she mentioned it.” According to Lisa, in another instance

involving Agent Shephard, Agent Shephard approached Lisa after lunch to tell her that someone

in the building was asking about the new employees. Agent Shephard said she knew the person

was asking about Lisa because the person described her as “the lady with different hairstyles[.]”

Agent Shephard then said, “I don’t know why [the person] didn’t just call you the black one.” Lisa

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testified that Agent Shephard’s comment made her feel singled out and harassed because of her

race. Lisa told Agent Shephard that referring to her as “the black one” was offensive, and asked

Agent Shephard not to do so in the future. Lisa also testified about a third instance involving

Agent Shephard in which another agent, Parole and Probation Agent Tom Arend, was speaking

with Agent Shephard in her office, which was across the hallway from Lisa’s office. Agents Arend

and Shephard were discussing one of Agent Shephard’s parolees and the upcoming visit to the

parolee’s home. Agent Shephard told Agent Arend that the parolee was racist and did not like

black people. Agent Shephard then told Agent Arend that they should send Lisa to do a home

visit. Agent Shephard looked across the hall at Lisa, saw she overheard, and laughed. Lisa testified

that she was offended and felt threatened by Agent Shephard’s statements, though she was never

actually asked to go on the home visit.1

Lisa also testified that, on a separate occasion, she was in the lunch room with Parole and

Probation Agent Nicole Zolinski and the office receptionist, Martine Kraft. Agent Zolinski was

discussing her family and told them that her stepsister, whose last name was “Kuhns,” had adopted

a child who was black. A homophonic comparison was referenced regarding the word “coon,”

which Lisa testified was a racial slur. According to Lisa, Agent Zolinski stated: “[Y]ou know,

[Lisa], you should be able to sympathize with [the adopted child] or empathize with him. He’s a

young black kid and, you know, he’s adopted by a family and their last name is Kuhn[s]. Isn’t—

you know, what do you think about that, [Lisa]?” Lisa said that she was offended and felt harassed

by the implications of the story.2

Lisa also testified about interactions she had with Parole and Probation Agent James Olson,

who was the most senior agent in the Lapeer office. When Supervisor Slater was out of the office,

Agent Olson served as supervisor in his stead. One day, while Agent Olson was filling that role,

Lisa asked him if she could speak with him in her office. Lisa wanted Agent Olson to review a

document for her. Agent Olson stayed in the doorway, refused to enter, and said, “I’m not going

to come into your office because you’re scary.”3 According to Lisa, Agent Olson was a large man

who would have no reason to be afraid of Lisa. She believed that Agent Olson’s comment about

her being “scary” was racially motivated.

On another occasion, according to Lisa, Agent Olson and Lisa were alone together in the

office when he decided to show her a video on his work computer. Lisa described the video as

follows:

1

Agent Shepheard testified at trial and, for the most part, denied the pertinent allegations.

2

Agent Zolinski testified that she told the story because it was common for the coworkers to

discuss their lives outside of work. She said that she did not intend to offend anyone and was

shocked that Lisa would think a discussion about Agent Zolinski’s family was derogatory. Agent

Zolinski denied telling Lisa that she should be able to sympathize with the child.

3

Agent Olson testified that he could not recall any such interaction with Lisa.

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It was Chris Rock talking about what black people should do not to get

arrested. And immediately started in the video [sic], they are showing like police

officers just beating up this black guy and Chris Rock is narrating the video pretty

much giving black people advice on what they shouldn’t do so that they are not

arrested.

Lisa testified that Agent Olson told Lisa that he thought it was funny, and she told him that she did

not think the video was funny and walked out of his office. She noted that Agent Olson did not

show the video to the agents in the office who were white. As a result, she suspected that Agent

Olson’s decision to show her the racially insensitive video was because she was black.4

Lisa also described a second event involving a different racially inappropriate video she

was shown at work. As pretext, Lisa testified that she and Parole and Probation Agent Brigette

Avolio would often say “ain’t nobody got time for that” when discussing how busy they were at

work. After they had used the phrase for a period of time, Agent Avolio asked Lisa if she knew

from where it originated. When Lisa said she did not know, Agent Avolio used her personal cell

phone to show Lisa the video while they ate lunch together in the office lunchroom. Lisa described

the video in the following manner:

So [Agent Avolio] got her personal cell phone and she pulled up the video

of Sweet Brown on YouTube and it was video of a black female with a scarf on her

head, with ashy lips and a gold tooth, and she was speaking incorrect English and

she, you know, while—she was being interviewed by the news about a fire that

happened in her neighborhood and it was the background of a bad neighborhood.

And they were interviewing her and she—you know, during the interview she was

saying ain’t nobody got time for that and, at one point in the video, they even added

music to it and she was saying it over and over.

Lisa said that Supervisor Slater was in the lunchroom when the Sweet Brown video was shown to

her and heard it.5 She testified that she told Agent Avolio that the video was not funny, and that

she would never again use the phrase “ain’t nobody got time for that” now that she was aware of

its origin. According to Lisa, Agent Avolio used the phrase one more time after Lisa expressed

her dislike of the video.6

4

Agent Olsen acknowledged showing the video to Lisa and said that he regretted doing so because,

in hindsight, he understood how it could be offensive. Though he also testified that he did not

remember Lisa saying anything to him about the video being offensive when he showed it to her.

5

Supervisor Slater acknowledged that he was in the room when Agent Avolio played the Sweet

Brown video to Lisa, and he agreed that he heard the conversation between the two women leading

up to the video being played. At the time of trial, Supervisor Slater could not specifically recall

Lisa’s reaction to the video.

6

Agent Avolio acknowledged that she showed the Sweet Brown video to Lisa and said that she

could see how the video was offensive, yet she denied that Lisa said she was offended by the video.

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While Supervisor Slater only overheard the Sweet Brown video being played, Lisa testified

that there were instances of racial harassment directly involving Supervisor Slater. Lisa recalled

on one occasion where she, Supervisor Slater, and Kraft were discussing running. Lisa explained

that she and Cedric enjoyed running in 5K races, to which Supervisor Slater and Kraft said that

Africans were great runners because they had to run for food. They both laughed about the

comment. Lisa testified that she thought it was “unprofessional” and in “poor taste.”7 According

to Lisa, on another occasion, Lisa’s coworkers decided to order pizza together as an office.

Supervisor Slater came around to everyone’s offices to ask what toppings they liked on their

pizzas. When he entered Lisa’s office, he asked if she wanted chitterlings on her pizza. Lisa

testified that she was offended by the question because chitterlings were not pizza toppings, but

were food items stereotypically eaten by black people. Lisa said that she told Supervisor Slater

that she was offended by the comment, but he thought it was funny.8

Despite all of the above events, which occurred before August 2016, Lisa never made an

official complaint of racial harassment to defendant. She did, however, speak with Cedric about

it. Lisa testified that her mental health had begun to suffer from the constant comments to which

she was being subjected. Cedric agreed that Lisa had been struggling to deal with the harassment

at work. He also testified that it had affected their marriage and his mental health. Both plaintiffs,

however, were concerned about reporting any racial harassment because they were aware of

retaliation from defendant when individuals reported any type of discriminatory harassment.

This all changed, however, on August 3, 2016. When Lisa walked into work that day, she

was greeted by Kraft, who said, “morning, mammy.” Lisa testified that she had never heard Kraft

refer to anyone else by that name, and being called “mammy” made Lisa “feel horrible.” She

explained that her understanding of the term was “what black women were called back in slavery

who cared for the slave master’s children.” Cedric agreed that the term “mammy” was extremely

offensive, and provided the following description of the term: “Mammy is a term that came up

through the late 1800’s and it talked about black females who nursed Caucasian children or slave

master’s children. They were usually depicted as a black female with monkey-like features and

big lips and a scarf on their head.” Cynthia Rogers, who was a field training officer for defendant

and responsible for conducting training regarding harassment, testified that the term “mammy”

involves “perceiving a black woman as overweight, unattractive, unintelligent, [and] subservient

to a white person.”

Upon hearing the comment from Kraft, Lisa walked to her office and decided that she had

no option other than to file an official complaint. She sent an e-mail to Supervisor Slater, who was

out of the office that day, explaining what had occurred. Lisa also sent an e-mail to Cedric

describing Kraft’s comment. When Supervisor Slater received the e-mail, he immediately

contacted Kraft to ask her what happened. Kraft told Supervisor Slater that her use of the word

“mammy” had been a slip of the tongue. Kraft told the same story at trial, which involved an

7

Supervisor Slater denied making or hearing any comment about running for food and agreed that

such a comment would be offensive.

8

Supervisor Slater denied asking such a question, and said that the only time chitterlings were

mentioned was when Lisa told him that she did not like chitterlings while Cedric did.

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accidental combination of the words “ma’am” and “happy Wednesday.” According to Kraft, she

always greeted everyone by saying “happy Wednesday,” or whatever day it happened to be. As

to Lisa, though, Kraft explained they both started calling each other “ma’am” for reasons she could

not recall. Thus, Kraft contended that when Lisa walked into the office on August 3, 2016, Kraft

meant to say, “good morning, and happy Wednesday, ma’am,” but garbled her words and said,

“good morning, mammy.” Kraft testified Lisa did not mishear the comment; to Lisa’s ears, Kraft

said the word “mammy.”

Supervisor Slater instructed Kraft to go apologize to Lisa if it truly was an accident. Kraft

did so, but could tell that Lisa was not receptive to the apology. Lisa testified that Kraft said she

only was apologizing because Supervisor Slater had instructed her to do so. At trial, Lisa

acknowledged that Kraft often called her “ma’am,” but testified that she believed Kraft

intentionally called her “mammy,” which tracked Lisa’s history of facing racial harassment in the

office. Lisa did not think Kraft’s explanation made sense.

After Supervisor Slater instructed Kraft to apologize, he called Lisa. Supervisor Slater

expected the issue to have been resolved by Kraft’s apology, but when he spoke with Lisa, she

asked to speak with him in person when he was back in the office. When Supervisor Slater

returned to the office on August 5, 2016, he met personally with Lisa in his office. Lisa was crying

and discussed Kraft’s “mammy” comment with him. Supervisor Slater believed that this comment

was Lisa’s only issue, but she informed him that there had been several instances of race-based

comments at the office. According to Lisa, upon hearing this, Supervisor Slater appeared to

become upset with Lisa, and she felt threatened by his visible anger, especially because he was

one of the people who perpetrated the harassment.9 Even so, Lisa gave an example to him. She

was careful to avoid the instances where Supervisor Slater was himself involved in the racial

harassment, so told him the example of the “Kuhns” family. Supervisor Slater told Lisa that she

could file a complaint with a harassment counselor if she did not feel the situation had been

resolved.

After meeting with Lisa, Supervisor Slater called each member of the staff into his office

to discuss defendant’s discriminatory harassment policies. Supervisor Slater said that Kraft likely

understood the reason for the meeting, but all of the other staff members had no reason to believe

his discussion of the policies was related to Lisa. Lisa, however, disagreed with that assumption,

noting that she was the only employee in the building who was black. Lisa testified that she was

upset with Supervisor Slater’s decision to handle her complaint in that manner because she felt it

alerted all of her coworkers that she had complained. Lisa believed that the tension in the office

worsened after Supervisor Slater’s actions.

By August 8, 2016, which was after the weekend, Lisa still had not contacted a harassment

counselor to report the racial harassment. On that day, Supervisor Slater was instructed by his

superiors that he was required, under defendant’s policies, to report the racial harassment, so he

contacted Harassment Counselor Kelly Miller and asked her to come to the office. On August 9,

2016, Harassment Counselor Miller came to the Lapeer County building and had Lisa fill out

9

Supervisor Slater said that he was concerned, not angered, by Lisa’s complaints.

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several harassment-complaint forms documenting the harassment she had endured, limited to the

preceding six months. When Lisa finished filling out all of her forms, she left the meeting room

and went back to work. Later that day, Lisa saw Harassment Counselor Miller speaking jovially

with Supervisor Slater and Agent Shephard, two people Lisa had just made complaints against.

Upon seeing the interaction between those three, Lisa became confident that her complaints would

not be handled appropriately.

According to Lisa, her fears of ostracism and worsening harassment were realized in the

weeks after her complaint. She noticed that Agent Olson would glare at her when she came in the

office. Lisa also noted that her main job in the Lapeer office was to write PSIRs, which sometimes

required home visits, and before her complaints, her fellow agents would sometimes help her with

home visits, but no one offered to help with home visits after her complaints. Additionally, on one

occasion shortly after Lisa filed her complaints, she was left alone in the building while meeting

with a probationer. Lisa testified that this was against the office’s policies because the probationer

might be dangerous. Lisa noted that she had never seen a white agent left alone with a probationer,

and said that she believed it was inappropriate and slightly threatening.

At some point, Lisa requested a transfer out of the Lapeer office to work in Flint, Michigan.

Defendant’s Assistant Deputy Director James Blakely testified that he discussed the events

described above with Lisa and Cedric, and found out about Lisa’s transfer request. The assistant

deputy director found Lisa’s request and circumvented the normal procedures for transferring an

agent to process Lisa’s transfer to Flint as quickly as possible.

Lisa began working in defendant’s Flint parole and probation office on September 26,

2016. Although Lisa requested the transfer, she did not believe that defendant was attempting to

do her a favor by granting it. Cedric agreed, noting that Lisa did not suddenly feel better about the

harassment after defendant chose to move her away from it. Instead, Lisa testified that defendant

only acted when the assistant deputy director became involved and forced defendant to respond.

After she transferred, she was required to finish some of the PSIRs she had begun while

working in Lapeer. Lisa testified that she did not know of any other occasion when an agent was

required to take work with them after a transfer. Supervisor Slater said that this was relatively

common because, otherwise, the Lapeer office would have been short-staffed related to the PSIRs

that Lisa had already started.

According to Lisa, when she spoke to her coworkers in her new office, she found them

immediately acting in a standoffish manner. She testified that she discovered Supervisor Slater

had come to the Flint office and warned her coworkers she had filed discriminatory harassment

complaints. Lisa said that this made her feel uncomfortable.

By October 15, 2016, Lisa had nearly a full caseload of parolees and probationers through

the Flint office. One of her probationers was also on probation in a county other than Genesee,

and therefore, had a separate probation agent in that county. The probationer in question told his

other probation agent that he was feeling violent urges toward Lisa, though he did not mention her

by name, and had considered killing her. The other probation agent contacted Lisa to warn her of

the conversation, and Lisa reported it to her new supervisor, Parole and Probation Supervisor Tika

Tyson. Lisa expected that the probationer would be determined to have violated the conditions of

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his probation, and likely sent to jail. However, Supervisor Tyson decided to simply change the

probationer’s agent to another person in the Flint office and refer him for mental-health treatment.

Lisa testified that this result scared her because it would still require the probationer at issue to go

to the building in which she worked. Cedric was also worried about Lisa’s safety.

Lisa’s concerns were exacerbated because the Flint office did not have a dedicated and

secured parking lot. As a result, Lisa had to park down the street from the Flint office and walk

on public sidewalks to get in the building. Because she feared a possible attack from the

probationer while walking into work, she had Cedric or their son drive her to the office, drop her

off, and pick her up when her shift ended.

In December 2016, Lisa’s stress from the racial harassment and fear of the probationer

were peaking. She decided to speak with her primary care physician, Dr. Sudhir Walavalkar, about

her issues. Dr. Walavalkar testified that he had been treating plaintiffs for about 25 years when

Lisa came to see him in December 2016. Before that appointment, neither plaintiff had ever

complained of problems with mental health, nor had they been prescribed medications for such

issues. During the visit in December 2016, though, Dr. Walavalkar noted Lisa’s emotional state

was different. He said that she was suffering from anxiety and depression, which she reported

being caused by her work environment. Lisa told Dr. Walavalkar that her work environment was

racially hostile. Dr. Walavalkar testified that he had never seen Lisa so upset. As a result, he

diagnosed her with anxiety, depression, and chronic stress. He also recommended that she see a

psychiatrist to obtain additional treatment because “the amount of depression that she had was

significant . . . .” On December 30, 2016, Dr. Walavalkar found Lisa to be totally disabled, unable

to continue working for defendant, and ordered her to stop going to work.

In January 2017, Lisa was in the process of following through with Dr. Walavalkar’s

recommendations to seek mental health treatment. On January 23, 2017, she attended a psychiatric

evaluation with Dr. Gerald Shiener, who was qualified as an expert in “psychiatry, neurology,

forensic psychiatry, addiction psychiatry, geriatric psychiatry, and psychosomatic psychiatry.” Dr.

Shiener identified some of Lisa’s issues as feeling anxious and stressed all of the time, having

nightmares about work, and being depressed. He noted that Lisa’s most significant issue, though,

was the depression. Dr. Shiener diagnosed Lisa with major depression with features of post-

traumatic stress disorder (PTSD). Dr. Shiener explained the diagnosis of major depression in the

following manner:

Major depression is a mood disorder and major depression is an illness of guilt,

self[-]blame, we have a sense of failure, you feel as if you should have been able to

do better and didn’t or couldn’t, and you suffer with feelings of guilt, remorse, self-

doubt, and you have an impairment in sleep, impairments in appetite, impairments

in energy level, impairments in concentration.

On January 31, 2017, Lisa attended an initial intake appointment with a therapist, Wendell

Harris. Harris opined that Lisa had “a combination of anxiety, you know, with the panic attacks,

anxiety attacks, and she’s also depressed.” Harris testified that Lisa’s issues arose from work-

related stress, and he diagnosed her with an adjustment disorder with mixed anxiety and

depression. Lisa’s symptoms included difficulty sleeping, lack of energy, social withdrawal,

apathy, and difficulty being assertive.

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On February 3, 2017, plaintiffs filed the original complaint in this lawsuit. With respect to

Lisa, plaintiffs alleged that defendant violated the CRA by treating her differently than her white

coworkers, subjecting her to a racially hostile work environment, and retaliating against her after

she complained of the racial harassment. As for Cedric, plaintiffs claimed only a loss of

consortium.

After filing the complaint, Lisa continued to seek treatment while on leave from work. On

February 14, 2017, she began seeing a psychiatrist, Dr. Leon Rubenfaer. After conducting an

evaluation, Dr. Rubenfaer diagnosed Lisa with an “adjustment disorder which is a psychiatric

condition that is caused by stress and severe distress in—in a situational environment; meaning

that it’s an emotional disorder brought on by outside sources, not in—not internal sources, and it

usually is composed of a depressed and anxious mood.” Dr. Rubenfaer opined that Lisa’s

adjustment disorder had been caused by the harassing and racially hostile work environment she

had suffered. Dr. Rubenfaer explained that the events at work “made her to feel less of a person,

lowered her self-esteem, caused her to feel as though she was made to feel made a fool of and—

and not treated properly at all.” Dr. Rubenfaer reported that Lisa experienced anxiety, depression,

sadness, lack of sleep, nightmares, flashbacks, poor self-esteem, and racing thoughts. At the time,

Dr. Rubenfaer recommended that Lisa continue to see a therapist and prescribed her Celexa, an

antidepressant. Dr. Rubenfaer also extended Lisa’s leave from work because he did not believe

her return date of March 6, 2017, was appropriate.

Dr. Rubenfaer saw Lisa again on March 14, 2017, and April 11, 2017. Her problems

continued and became chronic, Dr. Rubenfaer testified. These continuing issues led to Lisa

becoming “distrustful, suspicious, and very disturbed . . . .” Lisa’s quality of life had been harmed,

she felt that she could not enjoy things she used to enjoy, and she felt distressed all of the time.

When speaking with Dr. Rubenfaer on April 11, 2017, Lisa told him that she wanted to transfer

back to defendant’s Macomb office when she was required to return to work. Lisa believed that

the situation would be better there because she still knew other agents who worked in Macomb.

In May 2017, when Lisa was about to return to work, her transfer to the Macomb office

was approved by defendant. Despite desiring the transfer to escape what she believed to be a

dangerous situation in Flint, Lisa did not enjoy having to drive over one hour to and from work

each day, considering she still lived in Davison. At about this time, Lisa was taking medications

for anxiety and depression.

That same month, she saw Dr. Rubenfaer for her fourth and final visit. Dr. Rubenfaer

noted that Lisa’s mood had slightly stabilized, which supported her return to work. However, this

did not mean she was cured. Instead, Dr. Rubenfaer testified that Lisa’s prognosis was poor, and

he believed that she would require lifelong medication and psychotherapy to ensure her condition

did not worsen. While he guardedly hoped she might improve, Dr. Rubenfaer was more concerned

about her condition worsening and potentially resulting in suicide. In his opinion, Lisa had not

substantively benefited from treatment, she likely never would, and she was totally and

permanently disabled. In other words, Dr. Rubenfaer opined that Lisa could not and should not

return to work on a permanent basis. Also during May 2017, Lisa saw Harris, her therapist, for

the last time before a long hiatus. Harris agreed with Dr. Rubenfaer that Lisa’s issues had become

chronic. He noted that her anxiety continued throughout treatment and she was unlikely to improve

at all until she no longer had to work, if ever.

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According to Lisa, she had difficulty trying to reinitiate herself with the staff of defendant’s

Macomb parole and probation office because, despite defendant’s promise of confidentiality, Lisa

believed that her coworkers at the Macomb office had been told about her complaints of racial

harassment in Lapeer. For instance, Lisa testified about a problem she had with one of her former

coworkers, Parole and Probation Agent Heidi Zarka, who still worked at the Macomb office. On

one occasion, Agent Zarka appeared to become upset with Lisa when she refused Agent Zarka’s

offer of help with a difficult probationer. According to Lisa, a few weeks later, she and Agent

Zarka were alone in the copy room together when Agent Zarka walked up behind Lisa’s back and

whispered in her ear, “mammy, mammy, mammy,” before walking out. Lisa was upset and

immediately reported the event to her supervisor, who submitted the case to a harassment

counselor for investigation. Lisa believed that Agent Zarka had been told what word to use to

trigger a response form Lisa. Agent Zarka denied saying the words, but Lisa’s supervisor agreed

to move her office so they would not sit so close together.

Eventually, at some point in September or October 2018, Lisa attended a mandatory

training at defendant’s Macomb office. The training was conducted by Field Training Officer

Rogers, who said that the topics and presentations were prepared by defendant at its headquarters.

While the training generally was outlined for her, she was responsible for the specifics of each

session. Field Training Officer Rogers stated that she planned to run one training per week at the

Macomb office, with different employees attending the training each day.

On the day at issue, the topic of the training was harassment in the workplace. Lisa

attended the training on Tuesday, and during the lunch break, was approached by Field Training

Officer Rogers and her co-trainer, Anchelle Anderson, about the upcoming session. Lisa was told

that the next segment of the class would be about racial harassment, and asked if she was

comfortable with it. Lisa said it was fine, as long as there was no focus on her issues or case. Field

Training Officer Rogers agreed that would not happen, though she testified that only Anderson

knew of Lisa’s specific complaints.10 However, when the training session was underway, Field

Training Officer Rogers announced to the class she would be discussing examples of racial

harassment, and asked the class what could be considered racially offensive about the Gone with

the Wind movie, to which someone in the class said the term “mammy” is used for a black

character in the movie. Field Training Officer Rogers agreed that the term was offensive and

provided a description of its meaning. She also displayed an image of a black woman with

exaggerated and monkey-like features as an example of offensive material.

Lisa reacted poorly to the example, walked out of the training, and broke down crying. She

was unable to continue work that day, felt unable to drive home, and had Cedric pick her up. Field

Training Officer Rogers testified that the example was not directed at Lisa because Field Training

Officer Rogers did not know any of the specifics of Lisa’s case. Lisa did not believe the reference

10

Field Training Officer Rogers testified that she was not aware of Lisa’s experiences being called

“mammy” in the Lapeer and Macomb offices, so Lisa was not warned about those specific

upcoming examples. Field Training Officer Rogers insisted that she would have changed the

examples she had planned to use if she had been informed by anyone of Lisa’s particular

circumstances.

-10-

to Gone with the Wind was coincidental, testifying that she had heard the term “mammy” far too

many times for her to believe it was accidental.

Toward the end of 2018, Lisa went out on a second medical leave. Although Lisa thought

she needed more time on leave, she was forced to return to work after defendant sent her to see a

state psychiatrist, who determined she could return to work, so she did.

In April 2019, Dr. Shiener, who had initially performed a psychiatric evaluation of Lisa in

January 2017, reevaluated Lisa to see how her mental health had progressed over the preceding

two years. He opined that the transfer to Macomb had helped her condition, but it had not been

cured. Dr. Shiener noted that the training incident, which had included a discussion of Gone with

the Wind and a reprisal of the use of the word “mammy” was an unfortunate recurrence of a trauma.

This affirmed Lisa’s sense of hopelessness and her feelings that she could do nothing to escape the

harassment at work. He further opined that Lisa’s condition had become chronic and would require

lifelong therapy and medication, though he noted that she had discontinued taking her

antidepressant. He continued to diagnose Lisa with depression with a history of trauma reactions,

and opined that Lisa’s mental health required her to leave her employment with defendant.

At trial, Lisa testified about how defendant’s harassment and retaliation had affected her.

She said that she felt betrayed by defendant after many years of service. She described defendant’s

responses to her harassment as unfair and absurd. Lisa said that she had been changed as a person.

As of trial, she still had difficulty sleeping, suffered from depression, and barely left her home.

Indeed, Lisa claimed that she rarely did anything other than go to work and church. As the process

continued, Lisa’s mental suffering increased. She had not been provided the opportunity or a

reason to heal, noting defendant’s utter failure to take responsibility for her suffering. According

to Lisa, one of the worst consequences for her was her reputation among her coworkers, which

had changed to that of a liar. Lisa testified that she regretted filing the complaint because she never

wanted to be in this situation.

B. CEDRIC’S CLAIMS

Cedric began his career with defendant as a corrections officer (CO) in August 1989,

shortly after he met Lisa. Over the years, Cedric was promoted to sergeant, then lieutenant, then

acting inspector, then captain, and finally, on March 1, 2014, Cedric was named the deputy warden

of Thumb Correctional Facility (TCF), in Lapeer, Michigan. Cedric only ever received positive

reviews from his supervisors and, until the events of this case, never received any disciplinary

action from defendant. According to Cedric, throughout his career, he had faced some racially

harassing language—for instance, Cedric described an occasion where coworkers hung up

photographs of Cedric describing him as a “Bubba”—but he never made any official racial

harassment complaints with defendant because he believed the proper method for solving issues

was to speak to people one-on-one.

Lisa told Cedric about the harassment she was facing after her transfer to Lapeer County,

but like Lisa, Cedric was hesitant to make any reports. Cedric testified that he was upset because

he saw how the harassment was affecting Lisa, but he knew that defendant retaliated against

employees who complained. Thus, he believed it was best to stay silent and hope the harassment

would stop once Lisa’s coworkers got to know her better.

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As detailed above, however, things only got worse for Lisa, even after she made her formal

complaint in August 2016, and the continually-mounting stress led her to see Dr. Walavalkar in

December 2016. Lisa’s situation was weighing heavily on Cedric, so he decided to also be

evaluated by Dr. Walavalkar at that time. Dr. Walavalkar testified that, during the evaluation,

Cedric became “extremely anxious, upset, and also [had] a very high heart rate and gets

tachycardic.” Dr. Walavalkar continued, stating that Cedric “was emotionally extremely upset, he

was also very anxious and distraught because of the situation at work.” Dr. Walavalkar diagnosed

Cedric with anxiety, for which he prescribed Xanax, and a work-related major depressive disorder.

Dr. Walavalkar also encouraged Cedric to see a psychiatrist for his mental-health issues. As

related to Cedric’s physical health, Dr. Walavalkar noted that the depression and anxiety could

lead to high blood pressure and an exacerbation of Cedric’s previous issues with cholesterol.

On December 21, 2016, after Lisa had just taken her first medical leave, Prisoner

Demorest,11 who was housed at TCF and had a history of self-injurious behavior, was acting oddly

while Cedric was not at work. Denise Lavender Jones, the prison’s psychologist, assessed Prisoner

Demorest and created a management plan. Although defendant’s policies required a self-injurious

prisoner to be stripped of their clothing and confined in a protective jacket, a sergeant on duty

urged Jones to write a plan allowing Prisoner Demorest to remain clothed. Upon this urging, Jones

relented, wrote the plan as requested, and the sergeant provided it to Lieutenant Richard Miller,

who signed it. Lieutenant Miller reviewed the plan with Lieutenant Brent Whitman, who did not

object to it.

The next day, December 22, 2016, Prisoner Demorest had to be stopped from injuring

himself by other officers. Deputy Warden Scott Schooley, a colleague of Cedric, was made aware

of the issue. Deputy Warden Schooley contacted Cedric, who technically supervised Lieutenants

Miller and Whitman, and asked if Cedric would allow Deputy Warden Schooley to address the

issue. Cedric agreed, and later that day, Cedric, Lieutenant Whitman, Lieutenant Miller, and

Deputy Warden Schooley met in Deputy Warden Schooley’s office. According to Lieutenant

Whitman, Deputy Warden Schooley yelled and cursed at the two lieutenants for failing to follow

policies. After being verbally disciplined by Deputy Warden Schooley, Lieutenant Whitman

believed the issue had been resolved. Cedric encouraged Lieutenants Whitman and Miller to take

the conversation to heart, to reread the policies, and to ensure they were followed.

Deputy Warden Schooley, however, decided to submit the case for an investigation of

possible work-rule and policy violations. In response to Deputy Warden Schooley’s filing, Internal

Affairs (IA) Manager Stephen Marschke assigned the investigation to Kevin Smith, who was the

inspector on staff at TCF, with supervision by IA. Inspector Smith began his investigation shortly

thereafter, sending notices of investigation to Lieutenants Miller and Whitman, as well as the

sergeant involved. Inspector Smith also sent a questionnaire to Cedric, considering he was present

in the room when Deputy Warden Schooley yelled and cursed at Lieutenants Miller and Whitman.

Cedric agreed that the event occurred, but did not believe it was a problem. Inspector Smith,

however, believed that Deputy Warden Schooley’s decision to yell and curse at two subordinates

was a violation of certain work rules. Inspector Smith also was concerned about Deputy Warden

11

Prisoner Demorest’s first name was not provided in the lower court record.

-12-

Schooley’s denial of swearing at his subordinates. Inspector Smith suspected Acting-Warden

George Stephenson had been aware of Deputy Warden Schooley’s improper behavior and had

failed to report it.

Because the investigation had shifted to focus on Deputy Warden Schooley and Acting-

Warden Stephenson, Inspector Smith contacted IA to report his progress. At the time, which was

at the end of January 2017, IA Manager Marschke was out of the office. As a result, Inspector

Smith spoke with Kathy Warner, the administrator of defendant’s Office of Executive Affairs, who

handled some of IA Manager Marschke’s responsibilities when he was not in the office. According

to IA Manager Marschke and Administrator Warner, defendant’s policies required the

investigation to be turned over to IA because it involved Inspector Smith’s superiors.

While this investigation was progressing, Lisa—as explained above—attended a

psychiatric evaluation with Dr. Shiener in January 2017. Because Cedric was feeling stressed and

anxious about Lisa’s treatment at work, he also underwent a psychiatric evaluation by Dr. Shiener.

Dr. Shiener testified that Cedric was having trouble sleeping, experiencing ruminative thoughts,

losing weight, and dealing with a reduction in sex drive, and concluded that he, like Lisa, had

“become psychiatrically ill.” Dr. Shiener noted that Cedric’s issues at the time primarily were

related to Lisa, explaining that he felt helpless while observing Lisa struggle at work, which hurt

him. Dr. Shiener reported that Cedric already was exhibiting manifestations of an inability to

properly love and work. Specifically, Dr. Shiener testified that Cedric “had significant behavioral

representations of anxiety consistent with his complaints, and I diagnosed an adjustment disorder

with mixed emotional features that had become chronic.”

Then, on January 31, 2017, Cedric went with Lisa for the initial intake appointment with

therapist Harris. Harris noted that Cedric primarily was having stress and anxiety related to the

harassment Lisa was facing at work. He felt angry his wife was being treated poorly, especially

because his hands were tied with respect to helping her.

One day later, on February 1, 2017, Administrator Warner informed Inspector Smith that

he was being removed from the investigation into the events involving Prisoner Demorest and

Deputy Warden Schooley’s yelling at Lieutenants Miller and Whitman. In his place,

Administrator Warner assigned the investigation to IA Investigator Nicholas Cusack.

When Deputy Warden Schooley became aware that IA Investigator Cusack had been

assigned to the ongoing investigation at TCF, he contacted IA Investigator Cusack to ask if he

should be recused from the investigation considering they were friends. IA Investigator Cusack

spoke with Administrator Warner about the issue, and she approved his continued work on the

investigation. According to IA Investigator Cusack, he told Administrator Warner that he was not

friends with Deputy Warden Schooley, and that the two had only worked together previously.

Administrator Warner agreed with IA Investigator Cusack’s testimony, noting that people

investigating one another often know each other because of intradepartmental job changes. IA

Investigator Cusack sent a text message to Deputy Warden Schooley informing him that he would

not be recusing himself from the investigation.

With IA Investigator Cusack now running the investigation into the Prisoner Demorest and

Deputy Warden Schooley issues, he reviewed the questionnaires that had been completed by

-13-

Lieutenant Whitman, Cedric, and Lieutenant Miller. IA Investigator Cusack testified that he did

not receive any notes from Inspector Smith about the progress of the investigation to that point,

nor did he call Inspector Smith to ask him about it. IA Investigator Cusack did, however, notice

that the answers to question number eight for Lieutenants Miller and Whitman, which was about

what occurred in Deputy Warden Schooley’s office, were nearly identical, including the same

punctuation errors. IA Investigator Cusack became suspicious Lieutenants Miller and Whitman

shared their answers to the questionnaire, which was a violation of policy. Upon further review

of Cedric’s responses, IA Investigator Cusack believed that Cedric’s answer to question number

eight was substantially similar to those of Lieutenants Miller and Whitman, although not identical.

As a result of his suspicions, IA Investigator Cusack contacted Administrator Warner and

asked for approval to search the e-mail accounts of Lieutenant Miller, Cedric, and Lieutenant

Whitman. Despite some initial hesitance, Administrator Warner approved IA Investigator

Cusack’s request. When he did so, IA Investigator Cusack discovered that Lieutenant Miller had

sent an e-mail with a copy of his answers to Lieutenant Whitman after they received their

questionnaires from Inspector Smith. A few days later, after Cedric received his notice of

investigation from Inspector Smith, Lieutenant Miller sent an e-mail to Cedric with Lieutenant

Miller’s completed questionnaire attached. The body of the message directed Cedric’s attention

to number eight of the attached questionnaire. While IA Investigator Cusack’s review of the

records showed that the e-mail had been opened and deleted by Cedric, there was no data on

whether the attached questionnaire had been opened and reviewed. Even so, IA Investigator

Cusack believed that the body of the message, which directed Cedric’s attention to question eight,

proved Cedric requested the e-mail be sent to him.

With the foregoing evidence in hand, IA Investigator Cusack began shifting the focus of

the investigation. He suspected Lieutenant Miller, Cedric, and Lieutenant Whitman of colluding

in their responses to frame Deputy Warden Schooley, and prepared new questionnaires, this time

including questions about whether answers to previous questionnaires were shared. Lieutenant

Miller, Cedric, and Lieutenant Whitman all denied sharing answers to questionnaires during

Inspector Smith’s investigation. Similarly, Deputy Warden Schooley denied cursing at

Lieutenants Miller and Whitman. IA Investigator Cusack also asked Deputy Warden Schooley’s

secretary if she heard yelling coming from the office, which she denied.

On April 19, 2017, IA Investigator Cusack came to TCF to conduct in-person interviews

with those involved in the investigation. When he arrived at the facility, Deputy Warden Schooley

came outside of the building, greeted IA Investigator Cusack in the parking lot, and the two walked

in together. IA Investigator Cusack could not recall what topics they discussed during the walk

inside, but insisted it was not the investigation. During the in-person interviews, Lieutenant Miller,

Cedric, and Lieutenant Whitman repeated their denials of sharing answers to their questionnaires.

Likewise, Deputy Warden Schooley and his secretary denied that Deputy Warden Schooley yelled

and cursed at Lieutenants Miller and Whitman. When IA Investigator Cusack left TCF for the

day, he was escorted to his vehicle by Deputy Warden Schooley.

On June 1, 2017, Acting-Warden Stephenson was replaced with Warden Willis Chapman.

When Warden Chapman started, he was directed to plaintiffs’ original complaint, which was still

in the desk previously used by Acting-Warden Stephenson. About two months later, on August

26, 2017, events leading to a second investigation of Cedric commenced. On that day, Prisoner

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Harding-Bey, whose first name was not provided on the record, had a visit with his girlfriend,

Saundra Cheeks. Cheeks was a former employee of defendant who, before being fired, had worked

with Cedric at a different prison many years previously. Cedric was not at work when Cheeks

visited Harding-Bey, and her visit was being monitored by CO Thomas Goodfellow. While

supervising the visit, CO Goodfellow saw what he believed was Prisoner Harding-Bey pulling

Cheeks’ blouse to look at her breasts, which was a violation of the rules against sexual contact in

the meeting room. CO Goodfellow showed the video to his shift commander, Lieutenant Patrick

Moore, Jr., who agreed that Prisoner Harding-Bey and Cheeks had violated the rules.

Consequently, Lieutenant Moore ended the visit, CO Goodfellow wrote a misconduct ticket for

Prisoner Harding-Bey, and issued a visitor restriction for Cheeks.

Relevantly, the process for misconduct tickets is relatively confusing and requires some

explanation to fully understand the events in this case. A ticket must be reviewed with a prisoner

within 24 hours of being written, or it will be thrown out. When a CO writes a ticket, they submit

it in a box specifically designated to collect such tickets. At some point later, a shift commander

will look at the tickets to see if they are well-written and supported by video evidence. According

to all of the witnesses who worked at TCF, this step was relatively important because TCF had a

history of a poor conviction rate with respect to misconduct tickets. Therefore, TCF management,

especially Cedric, stressed to shift commanders that they should not review with prisoners poorly

written or uncorroborated tickets. In short, if the TCF staff stopped bad tickets from going forward

by refusing to review them, the conviction rate would increase, which was an important statistic

used by defendant to track prison performance. If a shift commander decided not to review the

ticket with a prisoner, TCF policy required the shift commander to discuss the decision with the

CO who wrote the ticket. If, on the other hand, the shift commander believed the ticket was good,

they would review it with the prisoner. After the ticket is reviewed, only a warden was permitted

to stop the misconduct ticket from going forward. Assuming no intervention from the warden, the

ticket would then go to a hearing officer, who would determine whether the prisoner was guilty of

the alleged misconduct.

As relevant to the present case, CO Goodfellow submitted the misconduct ticket regarding

Prisoner Harding-Bey shortly after the event occurred. At 7:24 a.m. on the next morning—August

27, 2017—Cheeks sent a text message to Cedric on his work phone, informing him of the visitor

restriction and asking for his help. Cedric testified that when he arrived at TCF shortly after 8:00

a.m., he had yet to see the text message from Cheeks. As he was walking toward his office, he

was stopped by Inspector Adam Douglas, who was in the office of Hearing Investigator Rodney

Buhl. Hearing Investigator Buhl’s job was to gather and review evidence related to misconduct

tickets to prepare for the hearing with the hearing officer. On this day, before Cedric arrived,

Hearing Investigator Buhl had been alerted of the visitor restriction for Cheeks and the misconduct

ticket for Prisoner Harding-Bey. Hearing Investigator Buhl and Inspector Douglas decided to

review the surveillance video of the visit to determine whether the misconduct ticket and visitor

restriction were appropriate. After watching the footage, they both opined that the contact between

Prisoner Harding-Bey and Cheeks did not amount to a violation of the policy related to sexual

contact.

When they saw Cedric walking into the office, Inspector Douglas decided to get a third

opinion from the deputy warden. Cedric, who was the highest-ranking official in the room,

watched the video and agreed with Inspector Douglas and Hearing Investigator Buhl. Thus, they

-15-

determined that the visitor restriction would be revoked and the ticket should not be reviewed with

Prisoner Harding-Bey.

Because the ticket had not been removed from the specified box yet, Cedric sent an e-mail

to CO Goodfellow’s supervisor, Captain McDonald, whose first name was not provided on the

record. Cedric informed Captain McDonald that the ticket would not be reviewed and instructed

him to tell CO Goodfellow to come speak with Cedric if he had questions about why. CO

Goodfellow testified that he received the message from Captain McDonald, but did not

immediately go speak with Cedric because CO Goodfellow was “iffy” about the ticket after he

wrote it.

At 9:07 a.m. on August 27, 2017, Cedric responded to Cheeks’ text message with a call

from his office telephone. The conversation was brief, and Cedric testified that he told Cheeks

that the issues would be handled internally. He instructed her to call the appropriate prison staff

to see if she was permitted to visit in the future.

At some point in August or September 2017, Deputy Warden Schooley contacted IA

Investigator Cusack to ask about the progress of the investigation into the burgeoning issues related

to the Prisoner Demorest incident. IA Investigator Cusack testified that he was instructed by a

superior officer that he could respond to Deputy Warden Schooley’s contact and provide an update

considering the unusual delay in the investigation. IA Investigator Cusack testified that he spoke

with Deputy Warden Schooley and told him that the report still was being prepared, but the portion

related to Deputy Warden Schooley was complete.

In the same time period, Deputy Warden Schooley became interested in Cedric’s

involvement in the decision not to review the misconduct ticket for Prisoner Harding-Bey. Deputy

Warden Schooley asked one of the employees he directly supervised to review Prisoner Harding-

Bey’s jailhouse telephone calls, and upon doing so, the employee found a call in which Prisoner

Harding-Bey called Cheeks shortly after the incident in the visiting room. In the call, Prisoner

Harding-Bey said that he believed a particular CO was acting in a biased manner toward him, and

would speak with Warden Chapman, Inspector Douglas, and Deputy Warden Schooley to attempt

to remedy the situation. Prisoner Harding-Bey also asked Cheeks to contact Cedric for help with

the visitor restriction. Believing this to support some form of improper activity by Cedric, Deputy

Warden Schooley provided the telephone call recording to Warden Chapman. In response,

Warden Chapman sent an investigation request to IA Manager Marschke. In the message to IA

Manager Marschke, Warden Chapman only told IA Manager Marschke about Prisoner Harding-

Bey’s references to Inspector Douglas and Cedric, omitting that Prisoner Harding-Bey also

mentioned Deputy Warden Schooley and Warden Chapman.

On September 26, 2017, IA Investigator Cusack submitted his report regarding his

investigation into the Prisoner Demorest incident. IA Investigator Cusack recommended Deputy

Warden Schooley and Acting-Warden Stephenson not be charged with any violations. IA

Investigator Cusack believed that Deputy Warden Schooley’s secretary would have heard Deputy

Warden Schooley yelling at Lieutenants Miller and Whitman if such actually occurred. IA

Investigator Cusack also recommended that Lieutenants Miller and Whitman be charged with a

number of work-rule and policy violations related to their sharing of questionnaire answers, as

shown by their e-mails, and later decisions to lie about sharing answers when questioned by IA

-16-

Investigator Cusack. As for Cedric, IA Investigator Cusack recommended the same charges,

which included not maintaining confidentiality of records, failing to report violations of work

rules, lying during an investigation when he denied sharing answers with Lieutenant Miller, and

conduct unbecoming of an employee of defendant. These charges included “asterisk rules,” which

were punishable by termination of employment.

As required, IA Investigator Cusack’s report was forwarded to IA Manager Marschke for

review. IA Manager Marschke approved the investigation and recommended charges for the

reasons identified by IA Investigator Cusack, which Administrator Warner also approved.

Sometime after submitting his report, IA Investigator Cusack was once again contacted by Deputy

Warden Schooley for an update. IA Investigator Cusack told Deputy Warden Schooley that there

was insufficient evidence regarding the allegations against him, so he was in the clear. He also

noted, though, that the charges against Cedric would go forward.

For his part, Cedric insisted that he did not collude with Lieutenants Miller and Whitman

during the investigation. Cedric noted that it was not surprising that their answers sounded the

same because they witnessed the same events. Cedric found it telling that IA Investigator Cusack

would rely on statements from Deputy Warden Schooley’s secretary, who undoubtedly had reason

to lie on his behalf, when two lieutenants and a deputy warden said the opposite. Cedric further

denied receiving information from Lieutenant Miller about his answers to the questionnaire

because he did not request the e-mail and he likely deleted it as soon as he received it, did not open

the attachment, and promptly forgot about it.

At this point, the issue regarding Cedric ordering Prisoner Harding-Bey’s misconduct

ticket not to be reviewed was still outstanding, and IA Manager Marschke, with approval from

Administrator Warner, had decided to conduct the investigation himself. IA Manager Marschke

came to TCF to interview all of the witnesses involved in the case. When he asked Cedric if he

had been in contact with Cheeks before deciding not to review the misconduct ticket related to

Prisoner Harding-Bey, Cedric said he had not. Cedric did inform IA Manager Marschke he

received a call from Cheeks after making the decision, though, saying that the call came in at about

10:00 a.m. IA Manager Marschke collected Cedric’s cell phone and office telephone records to

review his claims. In the records, he found that Cheeks’ text message came in at 7:24 a.m., which

was before Cedric arrived at work. Thus, despite not having data regarding when the text message

was opened, IA Manager Marschke determined that Cedric had lied during the investigation.

Further, because Cedric’s office telephone records showed that he had called Cheeks, instead of

the other way around, at 9:07 a.m., instead of 10:00 a.m., IA Manager Marschke determined that

Cedric was lying about those claims as well. IA Manager Marschke also concluded that CO

Goodfellow’s ticket was worthy of review and Cedric’s decision to the contrary violated policy.

Further, according to IA Manager Marschke, Cedric violated an additional policy because he did

not speak with CO Goodfellow before removing the ticket from the review process. IA Manager

Marschke also determined that Cedric should have reported the contact from Cheeks to his

supervisor, Warden Chapman, but failed to do so. Lastly, IA Manager Marschke found Cedric to

have overfamiliarity with Cheeks, a prisoner’s girlfriend, considering his apparent response of

helping Cheeks with her issues after being contacted outside of work hours. For the overfamiliarity

charge, IA Manager Marschke also relied on the jailhouse telephone call between Prisoner

Harding-Bey and Cheeks, during which Cedric’s name was mentioned.

-17-

For his part, Cedric admitted that he may have been incorrect about times and the sequence

of events, but denied that he purposefully lied. Instead, he gave IA Manager Marschke his best

estimate, which happened to be wrong. Cedric also explained that he did not mention the text

message to IA Manager Marschke at first because he thought the questions specifically related to

speaking with Cheeks. Cedric opined that if he had been asked to clarify his answers with the

benefit of reviewing his telephone and cell phone records, he would have acknowledged his

previous, innocent errors. Further, Cedric explained that he received about 30 calls per day from

the family and friends of prisoners, and so he believed it was ridiculous to expect him to remember

the exact timing and sequence of his contacts with Cheeks. Cedric stood by his decision that the

misconduct ticket should not have been reviewed and the visitor restriction revoked, and contended

that he was not required to speak with CO Goodfellow under the circumstances. As for IA

Manager Marschke’s determination that Cedric should have reported the contacts from Cheeks to

Warden Chapman, Cedric thought the determination was ridiculous because, again, Cedric

received about 30 calls per day from prisoners’ family and friends and, thus, Warden Chapman

would be overrun with official reports of contacts if such were required. As to the evidence of the

jailhouse call between Cheeks and Prisoner Harding-Bey, Cedric pondered why IA Manager

Marschke did not take greater interest in Prisoner Harding-Bey’s claim that he would speak with

Deputy Warden Schooley and Warden Chapman to sort out his visitor restriction. Cedric surmised

that this investigation and the resulting determinations were a sham done in retaliation for his

support of Lisa’s harassment claims and lawsuit.

The charges stemming from IA Manager Marschke’s investigation also included violations

for “asterisk” rules, which, again, permitted termination of employment as a punishment. Because

IA Manager Marschke conducted the investigation himself, he submitted his report to

Administrator Warner, who approved the charges. At about the same time, IA Manager Marschke

approved the charges recommended by IA Investigator Cusack. With all of the charges being

approved at around the same time, the hearings regarding the various charges against Cedric were

scheduled to occur on the same day, November 21, 2017.

Just one week before the hearings, though, another investigation-spawning event occurred.

On November 15, 2017, CO Voight, whose first name was not provided on the record, arrived to

work at TCF while Cedric was not in the building. While proceeding through security during a

shakedown, CO Voight removed an unopened 5-Hour Energy drink from his pocket. CO Voight

did not try to hide it; he believed he was permitted to bring it into work. Recently, though, the

TCF manifest had changed to disallow 5-Hour Energy drinks from being brought in. Thus, CO

Voight was found to have brought in contraband. Consequently, Captain Andrew Dyer wrote up

CO Voight for the misconduct.

Later, though, on his way home, Captain Dyer wondered whether he should have prepared

a critical incident report regarding CO Voight’s rule violation. Testimony at trial established that

critical incident reports typically were prepared for incredibly serious events, such as a prisoner

assaulting or killing another prisoner. As the result of another policy change, though, critical

incident reports were now required when there was an attempt to bring in contraband. Before the

policy change, COs were permitted to take items back to their cars when they accidentally kept

contraband items on their person when walking into the prison.

-18-

In any event, Captain Dyer, concerned he had forgotten to write a critical incident report,

called Assistant Deputy Warden (ADW) Ora Carter, who was the shift commander on duty at the

time. Captain Dyer asked ADW Carter to call Cedric at home to ask if a critical incident report

should be written for CO Voight. ADW Carter followed the instructions, despite being in the same

room as the policy manual, which established when such reports were required. According to

ADW Carter, Cedric answered the call and told ADW Carter a critical incident report was not

required. Cedric testified that he told Captain Dyer and ADW Carter to look at the policy, but he

did not believe it sounded like a critical incident. Shortly thereafter, Captain Dyer submitted a

request for an investigation related to Cedric’s failure to require a critical incident report. Cedric

expressed confusion regarding why Captain Dyer chose to submit for an investigation instead of

just writing the critical incident report when he discovered it was required. IA Manager Marschke

assigned that investigation to IA Investigator Vicki Dahlke.

On November 21, 2017, the disciplinary conferences for the already-approved charges

against Cedric were held. The conferences were presided over by Assistant Deputy Director

Robert Napel, who reviewed the packets of information prepared by IA Manager Marschke and

IA Investigator Cusack. At the first conference, which related to the charges arising out of the

Prisoner Demorest issue, Cedric did his best to defend himself, but Assistant Deputy Director

Napel was not convinced. Thus, after considering the evidence, Assistant Deputy Director Napel

found Cedric to be guilty of all of the charges brought against him by IA Investigator Cusack.

The disciplinary conference regarding Cedric’s decision not to review the misconduct

ticket related to Prisoner Harding-Bey was held immediately afterward. Assistant Deputy Director

Napel believed Cedric should have spoken with CO Goodfellow before deciding not to review the

ticket, should have reported his inappropriate contacts with Cheeks to Warden Chapman, and was

deceptive during the investigation. Assistant Deputy Director Napel also noted that Warden

Chapman had stated that he thought the ticket written by CO Goodfellow should have been

reviewed with Prisoner Harding-Bey. Moreover, regardless of who agreed with Cedric’s decision

to stop the ticket from being reviewed, Assistant Deputy Director Napel noted that it must be

attributed to Cedric as the highest-ranking official involved. Consequently, Assistant Deputy

Director Napel again found Cedric guilty of all of the charges against him.

Cedric described the disciplinary conferences as a “kangaroo court,” noting that he

believed Assistant Deputy Director Napel had already decided against Cedric before the

proceedings even began.

Because Cedric had been found to have violated some asterisk rules, Assistant Deputy

Director Napel had to consider whether Cedric should be put on “stop order” pending a decision

on discipline from Jennifer Nanasy, defendant’s discipline coordinator. A “stop order” barred an

individual from coming into the prison and required a photograph of the offender to be placed at

all prison entrances. Cedric described a “stop order” as one of the most embarrassing things that

could happen to an employee. To obtain guidance on whether he should issue a “stop order” for

Cedric, Assistant Deputy Director Napel contacted someone at defendant’s headquarters in

Lansing, though he could not recall whom. He testified that it was either Discipline Coordinator

Nanasy or Administrator Warner. After speaking with the person, Assistant Deputy Director

Napel decided to place Cedric on “stop order.” Therefore, as of that moment, Cedric was no longer

permitted to come to work.

-19-

On December 14, 2017, Cedric decided to follow Lisa’s lead and saw Dr. Rubenfaer for

psychiatric care. Dr. Rubenfaer conducted a psychiatric evaluation of Cedric and diagnosed him

with “severe adjustment disorder with depressed and anxious mood caused by events in the

workplace and events that occurred to his wife in the workplace.” Dr. Rubenfaer noted that Cedric

complained of anxiety, depression, anger, mood swings, panic attacks, feelings of distrust and

paranoia, lack of drive, devastation, and an overall inability to function. Dr. Rubenfaer opined that

Cedric’s issues had been caused by the harassment Lisa suffered at work, his inability to help her

with those problems, and the resultant retaliation against Cedric for supporting Lisa. Dr.

Rubenfaer stated that medication and therapy were the proper treatments for Cedric’s psychiatric

issues. The next day, December 15, 2017, Cedric saw Harris again for therapy, although it would

be his last visit before a lengthy hiatus. Harris generally agreed with Dr. Rubenfaer’s summary of

Cedric’s mental and emotional state at the time.

Shortly thereafter, Cedric looked at all the charges of which he had been found guilty and

the “stop order” issued against him, and decided that the writing was on the wall—his employment

would be terminated. He reached this conclusion despite not yet being aware of the impending

charges regarding the 5-Hour Energy drink incident. Concerned about losing his pension and

having difficulty finding a different job if he was fired, Cedric decided he had no other option than

to retire early, before defendant could issue its discipline. Cedric testified that about 90% of people

lost their jobs after a “stop order” had been issued, but agreed that termination was not required in

response to such. Cedric’s official retirement date was December 31, 2017. Afterward,

Administrator Warner obtained the reports regarding Cedric, which had been in the possession of

Discipline Coordinator Nanasy, and added a note that Cedric would have been disciplined but for

his retirement. Neither Administrator Warner nor Discipline Coordinator Nanasy would say what

discipline would have been issued for Cedric.

While IA Investigator Dahlke’s investigation into the 5-Hour Energy drink incident

continued, Cedric did not participate in it. When the investigation was completed, Cedric was

found to have violated work rules regarding critical incident reports. Captain Dyer, who had

actually been in the building during the events at issue, was cleared of all charges because he said

he was instructed by Cedric not to create a critical incident report. IA Manager Marschke signed

off on the investigation and recommended charges.

On March 8, 2018, after obtaining leave from the trial court, plaintiffs amended their

complaint. Most relevantly, plaintiffs added a claim of retaliation under the CRA on behalf of

Cedric. Plaintiffs alleged that defendant had learned of Cedric’s involvement in Lisa’s lawsuit and

harassment complaints, came up with questionable charges to punish Cedric for his support of

Lisa, and piled one on top of the other to ensure that he would be terminated for his participation

in the embarrassment of defendant. Both plaintiffs sought significant economic and noneconomic

damages in the amended complaint.

On January 7, 2019, Cedric had his last visit with Dr. Rubenfaer, who, at trial, testified that

Cedric’s condition had worsened. Instead of an adjustment disorder, Dr. Rubenfaer opined that

Cedric was now suffering from PTSD. Dr. Rubenfaer testified that there was no cure for PTSD,

and the only treatment course was to stop it from getting worse. Absent medication and therapy,

Cedric would be at the risk of becoming self-injurious and even suicidal. Dr. Rubenfaer believed

that Cedric’s issues were caused by the events at work and had become chronic, which he

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explained meant that “the likelihood of improvement is unlikely, that it’s—that it’s no longer

treatable in a standard way but it’s [going to] need ongoing, long-term psychiatric care, both . . .

psychotherapy by a therapist who does talking therapy on a weekly basis and by a psychiatrist who

would prescribe medications.” Dr. Rubenfaer testified that he did not believe Cedric was

embellishing or malingering.

In April 2019, Dr. Shiener, who had initially performed a psychiatric evaluation of Cedric

in January 2017, reevaluated Cedric to see how his mental health had progressed over the

preceding two years. Dr. Shiener found that Cedric’s condition had worsened and, agreeing with

Dr. Rubenfaer and Harris,12 become chronic. Despite taking medications, Cedric still struggled

with sleep, ruminative thoughts, and a lack of sex drive, while he was feeling more distressed and

disturbed. Dr. Shiener opined that Cedric’s condition had progressed to become PTSD, noting

that Cedric was dealing with hallmark symptoms of PTSD including flashbacks and phobic

avoidance of issues related to work. While Dr. Shiener testified that he was not a lie detector, he

believed Cedric was suffering from PTSD as a result of defendant’s retaliation “within a

reasonable degree of medical certainty.” Dr. Shiener stated that Cedric’s mental ailments likely

would lead to lifelong physical problems, including “muscle aches and pains, temporomandibular

joint [issues], clenching your teeth, headaches because of the tension that you carry in your neck

and shoulders, sore throats because of clenching your teeth,” and an ulcer. Dr. Shiener noted that

PTSD often caused permanent chemical changes to the brain, which led to extreme reactions to

otherwise minimal stimuli. According to Dr. Shiener, there was little chance of improvement for

Cedric, and he would need lifelong medication and therapy to avoid getting worse. Dr. Shiener

opined that, should his condition go untreated, Cedric would be at significant risk of suicide.

Cedric agreed that his life had been changed by the retaliation he faced in response to his

support of Lisa’s claims against defendant. According to Cedric, their lives had become dominated

by the harassment and retaliation, their marriage had worsened as a result, he did not feel like the

same person, and he struggled to sleep. Without medications, he was only able to sleep about two

hours per night. Cedric also reported that plaintiffs’ friends who worked for defendant stopped

speaking with them. He felt devastated after being forced out of his job and feeling like he could

not help Lisa, stating, “I just feel like I let my wife down and there’s been times that I ain’t even

want to live.”

Cedric acknowledged that he had considered retirement in the past, including in an e-mail

when he expressed plans to retire in 2018, which predated the events of this case. However, at

trial, he insisted that those plans were flexible, and he had always believed that he would be a

warden one day. Cedric testified that, absent Lisa’s harassment complaint and their lawsuit, he

still would be employed by defendant, and likely would be a warden. This was the case even

though warden positions were extremely competitive and he had been passed over for previous

openings. Cedric said that since being forced out of his employment, Cedric had taken work as a

security guard for a hospital, and later, as a detective with a private firm. Cedric testified that he

made about the same amount of money when his new jobs were added to income from his pension,

12

Harris testified that his final visit with Cedric was in May 2019, at which time Cedric still was

suffering from the same chronic issues related to PTSD, depression, and anxiety.

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but doing the new work was terrible for him. Cedric’s medical providers opined that Cedric having

to work several jobs to earn similar pay was detrimental to his ability to access treatment for his

PTSD and depression. Harris opined that Cedric being forced out of his dream job and then

required to work jobs he did not love caused “depression, anxiety, low self-worth, angry, irritable,

social withdrawal, and I’m sure it’s affecting him in other areas.”

C. VERDICT

A month after trial began, and after multiple days of deliberations, the jury reached a

verdict. For Lisa’s disparate treatment claim under the CRA, the jury determined that she suffered

an adverse employment action on the basis of race for which defendant was legally responsible.

The jury also determined that Lisa was subjected to unwelcome communication or conduct on the

basis of race, such conduct or contact interfered with her employment and created a hostile work

environment, defendant was legally responsible for the consequences, and Lisa suffered damages

as a result.13 The jury awarded Lisa $25,000 for past economic damages, $857,189 for future

economic damages, $2.75 million for past emotional distress, and $1.5 million for future emotional

distress. In total, the jury found Lisa suffered $5,132,189 in economic and noneconomic damages.

With respect to Cedric, the jury determined that he was subject to an adverse employment

action, which was causally connected to Cedric’s protected activities under the CRA. The jury did

not award Cedric any past economic damages, but did award him $1.9 million in future economic

damages, $1.85 million for past emotional distress, and $2.5 million for future emotional distress.

The total award for Cedric, then, was $6.25 million in economic and noneconomic damages. The

combined award for both plaintiffs was $11,382,189. On September 23, 2019, the trial court

entered a judgment on the jury’s verdict, along with interest, which brought the total award to

$11,670,128.33.

Defendant now appeals.

II. JNOV ON LISA’S CLAIMS

After trial, defendant moved for JNOV on both of Lisa’s claims. For her disparate

treatment claim, defendant argued that Lisa failed to submit evidence that she established an

adverse employment action. For both Lisa’s disparate treatment and hostile work environment

claims, defendant alleged that Lisa failed to submit evidence establishing that defendant was liable

under a theory of respondeat superior. The trial court disagreed with defendant on both arguments

and denied defendant’s motion for JNOV. On appeal, defendant raises the same arguments it did

before the trial court. We need not reach the first argument because we conclude that Lisa

submitted sufficient evidence to establish respondeat superior, and thus, at the very least, she was

entitled to recovery on her hostile work environment claim, and the damages awarded by the jury

did not differentiate between Lisa’s differing claims.

13

The jury also decided defendant had not retaliated against Lisa.

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A. STANDARD OF REVIEW

“This Court reviews de novo a trial court’s decisions regarding motions for JNOV.” Hecht

v Nat’l Heritage Academies, Inc, 499 Mich 586, 604; 886 NW2d 135 (2016). When considering

a motion for JNOV, “[t]he appellate court is to review the evidence and all legitimate inferences

in the light most favorable to the nonmoving party.” Id. (quotation marks and citation omitted).

“Only if the evidence so viewed fails to establish a claim as a matter of law, should the motion be

granted.” Id. (quotation marks and citation omitted).

B. RELEVANT LAW

This Court, in Major v Village of Newberry, 316 Mich App 527, 550; 892 NW2d 402

(2016), summarized the five elements required to be proven to make a prima facie case of hostile

work environment:

(1) the employee belonged to a protected group; (2) the employee was subjected to

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

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

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

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

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

Defendant only contends that plaintiffs failed to prove the final element of Lisa’s hostile work

environment claim—respondeat superior.

As explained by our Supreme Court, “in cases involving a hostile work environment claim,

a plaintiff must show some fault on the part of the employer” in order for that employer to be

liable. Chambers v Trettco, Inc, 463 Mich 297, 312; 614 NW2d 910 (2000). When, as here, a

hostile work environment is alleged to have “been created because unwelcome . . . communication

or conduct substantially interferes with an individual’s employment, the violation can only be

attributed to the employer if the employer failed to take prompt and adequate remedial action after

having been reasonably put on notice of the harassment.” Id. at 313. In other words, an employer

“must have notice of alleged harassment before being held liable for not implementing action.”

Radtke v Everett, 442 Mich 368, 396; 501 NW2d 155 (1993). Such notice can be actual or

constructive. Sheridan v Forest Hills Pub Sch, 247 Mich App 611, 621; 637 NW2d 536 (2001).

An employer will be deemed to have constructive notice “if, by an objective standard, the totality

of the circumstances were such that a reasonable employer would have been aware of a substantial

probability that . . . harassment was occurring.” Chambers, 463 Mich at 319. “However, if an

employer is accused of [the] harassment, then the respondeat superior inquiry is unnecessary

because holding an employer liable for personal actions is not unfair.” Radtke, 442 Mich at 397.

C. ANALYSIS

Defendant has consistently argued that Lisa is unable to establish the respondeat superior

element of her hostile work environment claim because defendant first received notice that Lisa

was being harassed when she filed her complaint on August 3, 2016, and defendant immediately

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took remedial actions. Defendant made this argument before trial in a motion for summary

disposition, made the argument again when it moved for a directed verdict following plaintiffs’

case-in-chief, raised the argument in its motion for JNOV following trial, and continues to raise

the argument on appeal.

In response, plaintiffs consistently argued below that a respondeat superior inquiry was

unnecessary because, functionally, Lisa’s employer was accused of harassment since Supervisor

Slater was involved in at least three of the reported instances of harassment. Plaintiffs argued

alternatively that, assuming the respondeat superior inquiry was necessary, defendant had

constructive notice of the harassment because the harassment was so pervasive that a reasonable

employer would have been aware that it was occurring, especially considering that Supervisor

Slater was involved in or witnessed several of the instances of harassment. In general, we agree

with both arguments.

In Sheridan, 247 Mich App at 621-622, this Court explained that an “employee can

demonstrate that the employer knew of the harassment by showing that she complained to higher

management of the harassment,” and defined “higher management” as “someone in the employer’s

chain of command who possesses the ability to exercise significant influence in the decision-

making process of hiring, firing, and disciplining the offensive employee.” Viewing the evidence

in the light most favorable to plaintiffs, as we must, we conclude that Supervisor Slater meets this

definition of higher management.

It was undisputed that Supervisor Slater was the highest-ranking official of defendant

working in the building in which defendant’s Lapeer parole and probation office was located. In

addition to supervising defendant’s Lapeer office, Supervisor Slater also supervised the Sanilac

County parole and probation office. Although Supervisor Slater testified that he did not personally

choose Lisa for the position, it was implied that his lack of say in hiring Lisa was unusual. Even

so, Lisa testified that she had a telephone interview with Supervisor Slater before being transferred

to the Lapeer office from Macomb County.

When Lisa started in Lapeer, Supervisor Slater instructed Lisa that her primary job would

be to prepare PSIRs for the Lapeer office. Supervisor Slater testified that he was trying a new

system where only one agent worked on PSIRs, which he believed would allow for a steady income

of PSIRs instead of all of them being submitted in heaps. Lisa additionally was told by Supervisor

Slater that she was required to write some PSIRs for the Sanilac office, which happened to be

understaffed at that time. Therefore, at the sole direction of Supervisor Slater, Lisa was required

to have the exclusive job of writing PSIRs and to drive to the Sanilac office, which was about one

hour away.

When Lisa made her official report of racial harassment to Supervisor Slater on August 3,

2016, after she was called “mammy” by Kraft, Supervisor Slater immediately called Kraft to have

her explain what happened. When Kraft said that it had been a slip of her tongue, Supervisor

Slater believed her and directed her to apologize to Lisa. According to Lisa, Kraft’s apology and

explanation were not believable. Even so, when Supervisor Slater called Lisa, he believed he had

remedied her issues of racial harassment. Lisa, who was worried about speaking with Supervisor

Slater because of his involvement in some of her racial harassment concerns, told him Kraft’s

apparently insincere apology had not been a cure-all. They agreed to speak in person when

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Supervisor Slater would be back in Lapeer. At the ensuing in-person meeting, Lisa detailed

additional instances of harassment that she had endured while at the Lapeer office. After meeting

with Lisa, Supervisor Slater called each member of the staff into his office to discuss defendant’s

discriminatory harassment policies.

Eventually, Lisa decided to transfer to the Flint office of defendant’s parole and probation

department to escape the racially hostile work environment in Lapeer. When she transferred, she

was instructed by Supervisor Slater that she was required to complete PSIRs for the Lapeer office

that she had already started. Thus, even when working in a different county, some of Lisa’s work

duties were being determined by Supervisor Slater.

The foregoing supports that Supervisor Slater fit the definition of higher management, and

thus, qualified as Lisa’s employer for purposes of respondeat superior analysis. First, Supervisor

Slater’s own testimony showed that he had at least some sway in regard to who was hired in the

Lapeer office of defendant’s parole and probation department. It was remarked that Lisa being

hired to work in the office, without his express approval, was unusual. This, then, allowed for an

inference that, generally, Supervisor Slater was involved in the decision regarding whom to hire.

Second, Supervisor Slater was undisputedly involved in Lisa’s job assignments. He

ordered her to complete PSIRs as her sole duties while working in the Lapeer office, he demanded

she drive to the Sanilac office when it was short-staffed, and he instructed her to complete PSIRs

for the Lapeer office even after she had transferred to Flint. There was no testimony about any

other individual deciding Lisa’s work duties when she worked in the Lapeer office.

Third, Supervisor Slater was involved in the discipline of employees at the Lapeer office.

When he was informed of Kraft’s use of the term “mammy,” he determined her sole discipline

would be to make an apology to Lisa. When he was told by Lisa that this was insufficient, he

called each member of the staff into his office to discuss defendant’s discriminatory harassment

policies with them.

As for Supervisor Slater’s involvement in the decision-making process related to what

employees were paid and whether they were fired, there simply was little evidence on those topics

one way or the other. It is hard to imagine, though, that defendant’s highest-ranking official in its

Lapeer parole and probation office, who actually was able to observe the employees he supervised,

was not (1) significantly involved in whether employees were fired and (2) had significant

influence in the process for determining who was considered for raises or other pay considerations.

We therefore conclude that, when viewing the record in the light most favorable to plaintiff,

Supervisor Slater was “higher management” for purposes of the respondeat superior analysis for a

claim of hostile work environment under the CRA.

“Because these ‘higher management’ employees are vested by the employer with actual

authority to effectuate change in the workplace, principles of agency law support the conclusion

that the knowledge they possess regarding conditions in the workplace would properly be imputed

to the employer.” Sheridan, 247 Mich App at 623. It follows that, if these “higher management”

employees are involved in the harassment, then the respondeat superior inquiry is unnecessary

because the employer would necessarily be imputed with actual knowledge of the harassment. See

Radtke, 442 Mich at 397.

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Viewing the evidence in the light most favorable to plaintiff, Supervisor Slater was present

for, or involved in, multiple instances of racial harassment of Lisa prior to her August 3, 2016

complaint. Briefly, Supervisor Slater was present when Agent Avolio played the Sweet Brown

video in the lunchroom. Supervisor Slater also was part of the conversation when either he or

Kraft said that Africans were good runners because they had to run for food. Supervisor Slater

himself was the individual who asked Lisa if she wanted chitterlings on her pizza, and told Lisa’s

coworkers that he did not know what he was getting with Lisa, which Lisa believed was racially

motivated because he said that he was confident her white male counterpart, who Supervisor Slater

was also introducing at the time, would be a good agent. Because Supervisor Slater was either

aware of or involved in these instances of racial harassment, and because of his status as “higher

management,” defendant either (1) had actual knowledge of the racial harassment before Lisa filed

her August 3, 2016 complaint because Supervisor Slater had actual knowledge of the racial

harassment, see Sheridan, 247 Mich App at 623, or (2) the respondeat superior inquiry is

unnecessary in the first instance “because holding an employer liable for personal actions is not

unfair,” Radtke, 442 Mich at 397.

Alternatively, viewing the evidence in the light most favorable to plaintiffs, a jury could

reasonably conclude that defendant had constructive notice of the harassment before Lisa filed her

August 3, 2016 complaint. On top of the incidents described above, which dated back to Lisa’s

first day at the Lapeer Office, Lisa outlined numerous other instances of racial harassment,

including being singled out by Agent Shephard for being black and Agent Shephard referring to

Lisa as “the black one”; Agent Zolinski asking Lisa what she thought of Agent Zolinski’s relatives

adopting a black child when their last name was “Kuhns”; and Agent Olson describing Lisa as

“scary” and showing Lisa a racially offensive video. Further, it was generally agreed upon by

witnesses that defendant’s Lapeer parole and probation office was small, allowing conversations

to be overheard from other parts of the office. From the foregoing, an objective view of the totality

of the circumstances, viewed in a light most favorable to plaintiffs, supported that Supervisor

Slater, as higher management, “would have been aware of a substantial probability that . . .

harassment was occurring.” Chambers, 463 Mich at 319. Thus, the jury’s decision that defendant

had notice—specifically constructive notice—was not subject to JNOV.

Next, defendant argues that its response, when it received notice, was prompt and adequate,

which relieved it of liability related to Lisa’s complaint of a hostile work environment.

Defendant’s argument, however, relies on notice being provided in August 2016, instead of well

before that, as just determined. We therefore need not address this argument at length. As just

explained, Lisa testified that the harassment leading to a hostile work environment began nearly

as soon as she started in Lapeer, which was in November 2014. Viewing the evidence in the light

most favorable to plaintiff, defendant’s notice occurred well before August 2016, and all of the

remedial actions that defendant points to on appeal happened after Lisa filed her formal complaint

on August 3, 2016. Because the response of defendant was not prompt, defendant was not entitled

to protection under the CRA for Lisa’s claim of a hostile work environment. See Radtke, 442

Mich at 396 (holding an employer may avoid liability where its response to notice of harassment

is both prompt and appropriate).

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III. JNOV ON CEDRIC’S CLAIM

Like with Lisa’s claims, after the jury found in favor of plaintiffs on Cedric’s retaliation

claim, defendant moved for JNOV on that claim. In relevant part, defendant argued that it was

entitled to JNOV on Cedric’s retaliation claim because Cedric failed to prove a causal connection

between his protected activity and the adverse employment action taken against him. We disagree.

A. STANDARD OF REVIEW

“This Court reviews de novo a trial court’s decisions regarding motions for JNOV.” Hecht,

499 Mich at 604. When considering a motion for JNOV, “[t]he appellate court is to review the

evidence and all legitimate inferences in the light most favorable to the nonmoving party.” Id.

(quotation marks and citation omitted). “Only if the evidence so viewed fails to establish a claim

as a matter of law, should the motion be granted.” Id. (quotation marks and citation omitted).

B. ANALYSIS

Michigan’s CRA “prohibits employers from discriminating on the basis of race.” White v

Dep’t of Transp, 334 Mich App 98, 107; 964 NW2d 88 (2020). That statute, in pertinent part,

states:

(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. [MCL 37.2202(1)(a).]

As relevant to Cedric’s claim, the CRA also prohibits a person or entity 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).

“[T]o establish a prima facie case of unlawful retaliation under the [CRA], 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.” [El-Khalil v Oakwood Healthcare,

Inc, 504 Mich 152, 161; 934 NW2d 665 (2019), quoting Rymal v Baergen, 261

Mich App 274, 300; 686 NW2d 241 (2004).]

On appeal, defendant only challenges the fourth element of Cedric’s retaliation claim—causation.

“To establish causation, the plaintiff must show that his participation in activity protected

by the CRA was a ‘significant factor’ in the employer’s adverse employment action, not just that

there was a causal link between the two.” Rymal, 262 Mich App at 303. Our Supreme Court has

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explained that, “in order to show causation in a retaliatory discrimination case, ‘[p]laintiff must

show something more than merely a coincidence in time between protected activity and adverse

employment action.’ ” Garg v Macomb Co Comm Mental Health Servs, 472 Mich 263, 286; 696

NW2d 646 (2005), quoting West v Gen Motors Corp, 469 Mich 177 ,186; 665 NW2d 468 (2003).

However, close temporal proximity between the protected activity and adverse actions can still be

evidence of a causal connection so long as that and other circumstantial evidence, taken as a whole,

“would enable a reasonable fact-finder to infer that an action had a discriminatory or retaliatory

basis.” Rymal, 262 Mich App at 303.

Defendant contends that plaintiffs have relied solely on evidence of temporal proximity—

evidence establishing that the investigations into Cedric started right after Lisa complained, and

ramped up after plaintiffs filed their lawsuit—to establish causation, which is not permitted under

Garg, 472 Mich at 286. Defendant is correct in that plaintiffs presented ample evidence

establishing the temporal proximity between the protected activity and the adverse actions. Before

Lisa’s complaint and the ensuing lawsuit, Cedric was a valued employee who had been promoted

numerous times over his 27-year career, had received numerous awards and letters of

commendation from various supervisors, and had never been the subject of disciplinary action by

defendant. Lisa made her official complaint of racial harassment on August 3, 2016, and plaintiffs

filed their original complaint on February 3, 2017. In the months following these events, Cedric

was the subject of three investigations, charged with more than 10 work-rule violations, found

guilty in disciplinary conferences regarding two of the investigations, placed on “stop order,” and

decided to retire before defendant could issue its discipline, which Cedric was certain would have

been termination of his employment. In light of that evidence, certainly, there was significant

proof of temporal proximity between Cedric’s engagement in the protected activity of participating

in Lisa’s racial harassment complaints under the CRA and the adverse employment action of a

constructive discharge.

Plaintiffs, however, did not rely solely on evidence of temporal proximity to establish the

causation element of Cedric’s retaliation claim. The record, viewed in a light most favorable to

plaintiffs, shows a plethora of questionable circumstances supporting plaintiffs’ contention that

defendant’s true purpose in investigating and disciplining Cedric was retaliation.

Initially, though, we note that our Supreme Court in Garg, 472 Mich at 286, in deciding

that temporal proximity, on its own, was not enough to establish a causal connection, relied on

West, 469 Mich at 186, which was a case alleging a retaliatory discharge in violation of the

Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., not the CRA. The Court in Garg,

472 Mich at 277 n 5, reasoned that its reliance on a case involving the WPA was permissible

because “whistleblower statute[s] [are] analogous to antiretaliation provisions of other

employment discrimination statutes . . . .” (Quotation marks and citation omitted, alterations in

original.) We find this meaningful because the Court in West, 469 Mich at 186-187, referred to an

opinion of this Court, Henry v Detroit, 234 Mich App 405, 414; 594 NW2d 107 (1999), as an

example of circumstances that, in addition to temporal proximity, could create a jury question

regarding causal connection. The Court in West explained that the plaintiff in Henry had been

successful because, in addition to temporal proximity, the plaintiff “presented evidence that his

superior expressed clear displeasure with the protected activity engaged in by the plaintiff,” the

“plaintiff’s record was impeccable or unblemished [before the protected activity] . . . [and] the

discipline imposed was seemingly undeserved . . . .” West, 469 Mich at 186-187, citing Henry,

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234 Mich App at 414. As will be discussed, the record supports that Cedric’s situation is far more

analogous to Henry than it is to West.

First, and potentially most damaging for defendant, was Lisa’s testimony about her

conversation with Assistant Deputy Director Blakely after she made her official complaints of

harassment. Testimony established that Cedric had spoken with Assistant Deputy Director Blakely

about Lisa’s complaint and Cedric’s support for Lisa. Then, according to Lisa, during a telephone

call with Assistant Deputy Director Blakely, the assistant deputy director told Lisa that he would

be processing her transfer to Flint as soon as possible because Assistant Deputy Director Blakely

had spoken with someone at defendant’s headquarters and he believed that defendant was “circling

the wagons.”14 When asked what she thought Assistant Deputy Director Blakely meant by his use

of the phrase, Lisa testified, “I believe that he meant they, as in [defendant’s representatives in]

Lansing, they are circling the wagons, this is going to get worse for you guys.” Lisa said that her

understanding was cemented when Cedric began facing a number of charges and investigations.

The evidence of Assistant Deputy Director Blakely stating that defendant was circling the

wagons in response to Lisa’s complaints of racial harassment was circumstantial evidence of

defendant being upset about the situation. In other words, it permitted an inference that defendant

was not interested in helping plaintiffs, but instead was displeased by the harassment complaints.

As discussed in West, 469 Mich at 186-187, an expression of displeasure from a superior officer

regarding engagement in a protected activity is an additional factor supporting the existence of

causal connection. Therefore, in addition to temporal proximity, there was circumstantial evidence

supporting that defendant was upset with Lisa’s complaints of racial harassment and Cedric’s

support of them, which weighed in favor of denying JNOV.

Second, plaintiffs presented evidence, as briefly summarized above, of Cedric’s work

history with defendant. Quite simply, Cedric’s 27-year career with defendant was littered with

promotions, letters of commendation, and awards. Before plaintiffs began pursuing complaints of

racial harassment and filed their lawsuit, Cedric had never been subjected to disciplinary action by

defendant. Almost all of the witnesses at trial, including those who disagreed with some of

Cedric’s decisions, testified that Cedric was a model employee and a great supervisor. They knew

him to follow the rules and to be honest. Stated differently, the evidence at trial showed Cedric’s

“record was impeccable or unblemished before” he began engaging in protected activity under the

CRA. West, 469 Mich at 187 (quotation marks and citation omitted). Consequently, this was

additional circumstantial evidence supporting that the reason for Cedric’s investigations and

imminent disciplines were not actually motivated by his alleged work-rule violations, but instead,

were retaliatory.

Third, plaintiffs introduced testimony supporting that the investigations and potential

disciplinary actions involving Cedric were more severe than required. The first investigation

involved Cedric purportedly sharing answers and information with Lieutenants Miller and

Whitman regarding their meeting with Deputy Warden Schooley. For that investigation, defendant

14

Assistant Deputy Director Blakely denied saying this and testified that he never used the term

“circling the wagons” in his life.

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insisted that Cedric’s charges, which included violations of asterisk rules allowing for discipline

in the form of termination of employment, were warranted because sharing information and

questionnaire answers was expressly forbidden. There can be little dispute of defendant’s clear

policy against sharing information and questionnaire answers related to ongoing investigations,

but there was a significant factual dispute about defendant’s responses to allegations that such

sharing occurred.

As just noted, Cedric was charged with work-rule violations permitting him to be fired as

discipline. Meanwhile, plaintiffs presented evidence that Kraft and Agent Avolio shared

information about the investigation related to Lisa’s complaints of racial harassment—indeed,

Kraft admitted she asked Agent Avolio how she should answer the questions on the investigatory

questionnaire, and later showed Agent Avolio her actual answers—but neither Kraft nor Agent

Avolio were investigated or charged with any work-rule violations for their sharing of answers to

questionnaires. Further, after Cedric made a harassment complaint, an investigator for defendant

discovered that IA Investigator Cusack had provided confidential information about his

investigation to Deputy Warden Schooley, yet, after this charge was investigated, IA Investigator

Cusack was only cited with a single work-rule violation and disciplined with a written reprimand.

Plainly, such is not comparable to Cedric’s multitude of work-rule violations, a stop order, and

possible termination if he had not preemptively retired. While defendant attempted to explain

away the differences in punishment between these situations and Cedric’s, plaintiffs presented

ample evidence showing how defendant approached Cedric’s investigation differently than the

others, which led to the different resulting punishments. Moreover, the jury was free to

disbelieve—or find immaterial—defendant’s reasons for why Cedric’s violation of the same rule

warranted a significantly harsher punishment than the others. Consequently, a reasonable juror

could infer that the extent of the discipline imposed on Cedric as a result of this first investigation

was comparatively undeserved, which supports a causal connection under West, 469 Mich at 186-

187.

The second investigation, which related to Cedric’s communications with Cheeks and

decision to remove CO Goodfellow’s ticket from the review process, could also support an

inference that Cedric’s punishment was undeserved, and thus that there was a causal connection

between Cedric’s protected activity and the adverse action. The investigation arose out of a visit

between Cheeks and Prisoner Harding-Bey, during which CO Goodfellow suspected inappropriate

sexual contact, and thus wrote a misconduct ticket for Prisoner Harding-Bey and a visitor

restriction for Cheeks. During a jailhouse telephone conversation later in the day, Prisoner

Harding-Bey said he would speak with Inspector Douglas, Warden Chapman, and Deputy Warden

Schooley about the misconduct ticket, and asked Cheeks to contact Cedric. The next morning,

Cheeks contacted Cedric about the situation, but Cedric did not see the message until later, after

he and multiple persons had reviewed a video of the incident and all agreed to throw out the

misconduct ticket. Afterwards, Cedric contacted Cheeks and let her know. After an eventual

investigation performed by IA Manager Marschke, Cedric was charged with numerous work-rule

violations, including lying in an investigation, failing to review the misconduct ticket with CO

Goodfellow, failing to report his contacts from Cheeks to Warden Chapman, and overfamiliarity

with a prisoner’s visitor. As with the first investigation, these charges included violations of

asterisk rules, which meant Cedric could be terminated as discipline.

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At trial, plaintiffs submitted ample evidence from which a reasonable juror could infer that

all of these charges were unnecessarily trumped up as either questionable application of the rules

(multiple witnesses testified that they did not believe that Cedric’s conduct actually amounted to

a violation of some of the rules cited by IA Manager Marschke) or not actually warranted because

they were innocent errors (Cedric denied lying during the investigation, explaining that his answers

to some of the questions were wrong because, by the time he was asked the questions, so much

time had passed since the events at issue that he could only give his best guess). Thus, with this

investigation too, a reasonable juror could conclude that the discipline imposed was seemingly

undeserved, which supports an inference of a causal connection to a retaliatory motive. See West,

469 Mich at 187.

Based on the foregoing, Cedric’s circumstances clearly track much closer to the plaintiff

in Henry, 234 Mich App at 414, than they do the plaintiff in West, 469 Mich at 186-187.

Consequently, on the basis of this evidence alone, the trial court properly denied defendant’s

motion for JNOV of Cedric’s claim of retaliation.15

To summarize, defendant’s contention that Cedric’s claim of retaliation improperly relied

on temporal proximity alone to prove a causal connection is inaccurate. The causal connection,

instead, was established by a mountain of circumstantial evidence, in addition to the temporal

proximity of the protected activity and the adverse action. Rymal, 262 Mich App at 303.

Consequently, defendant’s argument lacks merit, the claim was properly submitted to the jury, and

the trial court did not err by denying JNOV. Hecht, 499 Mich at 604.

IV. RACIST IMAGERY

During trial, plaintiffs used a demonstrative displaying representations of the word

“mammy” for the jury. The demonstrative included several pictures, including racist caricatures,

photos of “Aunt Jemima,” a picture of the character “Mammy” from Gone with the Wind, and a

breastfeeding slave. Defendant objected to the demonstrative before and during trial, arguing that

it was irrelevant and unfairly prejudicial. The trial court overruled defendant’s objections. After

the jury rendered its verdict in favor of plaintiffs, defendant requested a new trial, again arguing

that the racist imagery was improperly admitted because it was irrelevant and unfairly prejudicial.

The trial court denied defendant’s request. On appeal, defendant argues that the trial court’s

decisions to admit the evidence and to deny its request for a new trial were abuses of discretion.

Given that the abuse-of-discretion standard is highly deferential, we disagree.16

15

We note that there was even more evidence about the questionable nature of the investigations

surrounding Cedric from which a juror could arguably infer retaliatory motive. As will be

discussed later in this opinion, plaintiffs presented other-acts evidence that defendant had a

historical scheme or plan of retaliation in response to complaints of harassment.

16

We note that defendant does not single out any one image and argue that it was irrelevant or

unfairly prejudicial, but argues only that the entire demonstrative was so. We therefore limit our

review to the demonstrative as a whole, not whether every single image depicted in the

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A. STANDARD OF REVIEW

Typically, “[t]his Court [] reviews for an abuse of discretion the trial court’s decision to

grant or deny motions for a new trial . . . .” Rental Props Owners Ass’n of Kent Co v Kent Co

Treasurer, 308 Mich App 498, 531; 866 NW2d 817 (2014). Similarly, “[t]his Court reviews for

an abuse of discretion a trial court’s decisions regarding the admission of evidence . . . .” Spectrum

Health Hosps v Farm Bureau Mut Ins Co of Mich, 333 Mich App 457, 477; 960 NW2d 186 (2020).

“A trial court does not abuse its discretion when its decision falls within the range of principled

outcomes.” Rock v Crocker, 499 Mich 247, 260; 884 NW2d 227 (2016).

B. ANALYSIS

Generally, “[a]ll relevant evidence is admissible,” and “[e]vidence which is not relevant is

not admissible.” MRE 402. A demonstrative exhibit, like all evidence, must be relevant to be

admissible at trial. Lopez v Gen Motors Corp, 224 Mich App 618, 629 n 16; 569 NW2d 861

(1997). “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” MRE 401. “The relevance contemplated in MRE 401 and

MRE 402 is logical relevance.” Rock, 499 Mich at 256.

Even when evidence is relevant under MRE 401, it can be excluded under MRE 403 “if its

probative value is substantially outweighed by the danger of unfair prejudice[.]” “Relevant

evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing

probative value, which permits exclusion of relevant matter under” MRE 403. People v Mills, 450

Mich 61, 75; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995) (quotation marks and citation

omitted). Consequently,

photographs that are merely calculated to arouse the sympathies or prejudices of

the jury should not be admitted. However, if a photograph is otherwise admissible

for a proper purpose, it is not rendered inadmissible merely because it brings vividly

to the jurors the details of a gruesome or shocking accident or crime. [People v

Head, 323 Mich App 526, 541; 917 NW2d 752 (2018) (quotation marks and

citation omitted).]

Defendant contends that the images portraying the term “mammy” were irrelevant because

defendant did not dispute that the term was racially offensive. Although not clearly expressed by

defendant, this argument is related to the materiality of the term “mammy” in this case. As

relevantly and succinctly summarized by this Court:

Relevance divides into two components: materiality and probative value. Material

evidence relates to a fact of consequence to the action. A material fact need not be

demonstrative was relevant and not unfairly prejudicial. We further note that, while the

demonstrative was apparently displayed for the entirety of trial, defendant conceded at oral

argument that it never objected to the length of time that it was displayed.

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an element of a crime or cause of action or defense but it must, at least, be in issue

in the sense that it is within the range of litigated matters in controversy. Materiality

looks to the relation between the propositions that the evidence is offered to prove

and the issues in the case. If the evidence is offered to help prove a proposition that

is not a matter in issue, the evidence is immaterial. [Hardrick v Auto Club Ins

Ass’n, 294 Mich App 651, 667; 819 NW2d 28 (2011) (quotation marks, citations,

and alterations omitted), lv den 493 Mich 867 (2012).]

Briefly, defendant essentially argues that the “mammy” imagery was not material to the case

because, by not challenging the racially offensive nature of the term, it was no longer “in issue in

the sense that it [was not] within the range of litigated matters in controversy.” Id. (quotation

marks and citation omitted). The record, for many reasons, reveals otherwise.

During trial, Lisa’s case focused heavily on the term “mammy.” She was first called the

term by Kraft while working at defendant’s Lapeer office, which led her to file her formal

complaint. Lisa then had a conversation with Agent Avolio about a Hispanic parolee who

supposedly used the word “mammy” to describe the parolee’s girlfriend, then was allegedly called

the term by Agent Zarka when she transferred back to Macomb, and was exposed to the term a

final time during a training on harassment conducted by Field Training Officer Rogers. Lisa

claimed that all of the instances of racial harassment, but especially use of the term “mammy,” had

caused her to suffer significant issues related to her mental health. Dr. Walavalkar, Dr. Shiener,

Dr. Rubenfaer, and Harris, who was Lisa’s treating therapist, all agreed that Lisa had become

psychiatrically ill as a result of the racial harassment. They believed that Lisa’s depression and

anxiety was chronic, would never be cured, and needed to be treated in order to stop the conditions

from worsening. Lisa’s request for noneconomic damages was premised on her emotional

suffering caused as a result of the racial harassment, which largely revolved around the use of the

term “mammy.”

Defendant’s contention that the racist imagery was irrelevant because they did not contest

that the term “mammy” was racist—even if true—does not render the evidence irrelevant because

plaintiff did not submit the demonstrative to show that the term was racist, but to show how Lisa

perceived the term, which goes to the noneconomic damages suffered by Lisa as a result of

repeatedly hearing and being called “mammy.” As summarized above, plaintiffs introduced

significant evidence about Lisa’s emotional suffering after being subjected to racial harassment,

which often focused on the term “mammy.” Because of the psychological harm, Lisa requested a

significant amount of noneconomic damages in the form of mental anguish, which she was

permitted to do. “Victims of discrimination may recover for the humiliation, embarrassment,

disappointment and other forms of mental anguish . . . .” Campbell v Dep’t of Human Servs, 286

Mich App 230, 246; 780 NW2d 586 (2009) (quotation marks and citation omitted). While

defendant may not have challenged the offensive nature of the term “mammy,” it vigorously

argued about the psychological damages Lisa suffered because of hearing and being called the

term. During cross-examination of Lisa’s medical providers and experts, defendant repeatedly

drew attention to the fact that their opinions about Lisa’s emotional suffering relied heavily on

Lisa’s subjective complaints of suffering. Even though the two psychiatrists, Drs. Rubenfaer and

Shiener, insisted they were not merely conduits of information from Lisa, defendant sought to have

the jury infer the two doctors had only diagnosed Lisa with significant mental-health issues

because she exaggerated her symptoms. Plaintiffs sought to rebut this defense in at least two ways:

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(1) through the testimonies of Drs. Rubenfaer and Shiener, who noted that Lisa’s objective

expression of the symptoms of mental illness was present during their evaluations or treatment and

(2) displaying to the jury what the term “mammy” meant to Lisa through the use of the

demonstrative. Through this second route, jurors were able to see the images that Lisa said were

conjured in her mind upon hearing the term “mammy,” allowing the jury to understand how the

term affected Lisa. This method seems particularly appropriate because jurors may not understand

why the word “mammy” was so offensive to Lisa and caused her so much psychological suffering.

Defendant’s concession that the word “mammy” is offensive did not assist jurors in understanding

the effect that it had on Lisa; the demonstrative, on the other hand, assisted jurors in understanding

this.

In sum, the imagery related to the term “mammy” was relevant to the issue of the extent of

Lisa’s noneconomic damages. Lisa’s psychiatric suffering, as clearly exhibited by the record, was

placed at issue by defendant’s chosen strategies. Consequently, the evidence was relevant to a

material fact at issue during the trial.

Defendant alternatively argues that the images, even if minimally relevant, should have

been excluded under MRE 403 because the images likely inflamed the passions of the jury, which

was unfairly prejudicial.

We agree with defendant that plaintiffs’ demonstrative was highly offensive and risked

inflaming the passion of the jury. The demonstrative shows the offensiveness of the term

“mammy” using vivid imagery. But, as previously explained, “if a photograph is otherwise

admissible for a proper purpose, it is not rendered inadmissible merely because it brings vividly to

the jurors” imagery that is offensive. Head, 323 Mich App at 541. And, as also previously

explained, the offensive imagery here was admissible for a proper purpose—to explain why the

term “mammy” was so offensive to Lisa and caused her so much suffering. That is, the

demonstrative was relevant to establishing the extent of Lisa’s noneconomic damages. All

relevant evidence is prejudicial to some extent, and the question is whether the danger of unfair

prejudice substantially outweighed the probative value of the evidence. While this evidence risked

inflaming the jurors’ prejudice and, thus, there was a danger of unfair prejudice by showing it to

jurors, the evidence was also probative to explain why Lisa was so affected by use of the term

“mammy.” The trial court concluded that the danger of unfair prejudice posed by the

demonstrative was not substantially outweighed by its probative value. We believe that this

decision was within the range of reasonable and principled outcomes. In other words, given that

the deferential abuse-of-discretion standard, we conclude the that trial court did not abuse its

discretion by allowing plaintiffs to display the demonstrative.17

17

Defendant also argues that the trial court abused its discretion because the relevance of the

demonstrative was significantly reduced by several witnesses’ descriptions of what the term

“mammy” meant to them. While defendant is correct that several witnesses gave descriptions of

the physical appearance of the term “mammy,” our Supreme Court has been clear that

“[p]hotographs are not excludable simply because a witness can orally testify about the

information contained in the photographs.” Mills, 450 Mich at 76. Moreover, the demonstrative

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V. OTHER-ACTS EVIDENCE

At trial, plaintiffs sought to admit evidence about defendant’s history of harshly responding

to complaints and lawsuits related to harassment purportedly to show defendant’s scheme, plan,

or system of retaliating against individuals who complain about harassment. Defendant objected,

arguing that it was improper propensity evidence being admitted in violation of MRE 404(b). The

trial court disagreed and denied the motion. After the jury rendered its verdict, defendant argued,

this time in more detail, that it was entitled to a new trial because the other-acts evidence was

improperly admitted. The trial court again disagreed and denied defendant’s motion. On appeal,

defendant argues that the trial court abused its discretion by admitting this improper propensity

evidence, and that it is entitled to a new trial because “[t]he jury in this case was inundated with

improper propensity evidence . . . .” We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

Before trial, defendant moved to limit certain aspects of the other-acts evidence that

plaintiffs sought to admit, and plaintiffs stipulated to those limitations. At that time, however,

defendant did not object to the evidence as improper propensity evidence barred by MRE 404(b).

After trial began but before the first other-acts witness was called to the stand, defendant objected,

on the record, to the other-acts witnesses under MRE 404(b). Plaintiffs then responded on the

record, and the trial court issued an oral ruling. Because of the way defendant chose to approach

this issue, there is no lower court briefing, and the trial court’s ruling on the issue is limited to only

a couple pages of transcript, despite this being a significant and lengthy issue. Nevertheless, the

issue was raised before the trial court and is therefore preserved. See Glasker-Davis v Auvenshine,

333 Mich App 222, 228; 964 NW2d 809 (2020).

After trial, defendant argued that it was entitled to a new trial because the other-acts

evidence was improperly admitted. Therefore, this issue, too, is preserved. See id.

“This Court [] reviews for an abuse of discretion the trial court’s decision to grant or deny

motions for a new trial . . . .” Rental Props Owners, 308 Mich App at 531. Similarly, “[t]his Court

reviews for an abuse of discretion a trial court’s decisions regarding the admission of

evidence . . . .” Spectrum Health Hosps, 333 Mich App at 477. “A trial court does not abuse its

discretion when its decision falls within the range of principled outcomes.” Rock, 499 Mich at

260. This Court reviews “de novo preliminary or underlying questions of law,” and “[w]hen a

trial court makes a determination that is legally incorrect, the court necessarily commits an abuse

of discretion.” Spectrum Health Hosps, 333 Mich App at 478.

was clearly better suited to convey the images that the term conjured up for Lisa than any testimony

about the same could do. We therefore do not believe that the trial court abused its discretion by

allowing plaintiffs to show the demonstrative to the jury.

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B. ANALYSIS

Our Supreme Court, in Rock, 499 Mich at 256-258, provided a relevant and thorough

explanation of the interplay of court rules when, as here, a party seeks to admit evidence of prior

bad acts:

To be admissible, evidence must be relevant. MRE 402. Relevant evidence is

“evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” MRE 401. The relevance contemplated in MRE

401 and MRE 402 is logical relevance. People v VanderVliet, 444 Mich 52, 60;

508 NW2d 114 (1993). Even if logically relevant under MRE 401 and MRE 402,

evidence may still be excluded under MRE 404 because MRE 404 “is a rule of legal

relevance, defined as a rule limiting the use of evidence that is logically relevant.”

Id. at 61-62. Legal relevance, as a limiting rule, concerns the purpose for which

evidence is used. In particular, MRE 404(b)(1) states:

Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation,

scheme, plan, or system in doing an act, knowledge, identity, or

absence of mistake or accident when the same is material, whether

such other crimes, wrongs, or acts are contemporaneous with, or

prior or subsequent to the conduct at issue in the case.

Therefore, evidence that is logically relevant under MRE 401 and MRE 402 may

be excluded under MRE 404(b)(1) for lacking legal relevance if it does not have a

proper purpose.

Other-acts evidence is only admissible under MRE 404(b)(1) when a party

shows that it is (1) offered for a proper purpose, i.e., to prove something other than

the defendant’s propensity to act in a certain way, (2) logically relevant, and (3) not

unfairly prejudicial under MRE 403. People v Knox, 469 Mich 502, 509; 674

NW2d 366 (2004). “ ‘[I]f the proponent’s only theory of relevance is that the other

act shows defendant’s inclination to wrongdoing in general to prove that the

defendant committed the conduct in question, the evidence is not admissible.’ ”

[People v Jackson, 498 Mich 246, 258; 869 NW2d 253 (2015)], quoting

VanderVliet, 444 Mich at 63. In People v Mardlin, this Court further explained:

Evidence is inadmissible under [MRE 404(b)] only if it is relevant

solely to the defendant’s character or criminal propensity. Stated

another way, the rule is not exclusionary, but is inclusionary,

because it provides a nonexhaustive list of reasons to properly admit

evidence that may nonetheless also give rise to an inference about

the defendant’s character. Any undue prejudice that arises because

the evidence also unavoidably reflects the defendant’s character is

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then considered under the MRE 403 balancing test, which permits

the court to exclude relevant evidence if its “probative value is

substantially outweighed by the danger of unfair prejudice . . . .”

MRE 403. Finally, upon request, the trial court may provide a

limiting instruction to the jury under MRE 105 to specify that the

jury may consider the evidence only for proper, noncharacter

purposes. [People v Mardlin, 487 Mich 609, 615-616, 790 NW2d

607 (2010) (citations omitted).]

Accordingly, while MRE 404(b) is an inclusionary rule, it is still subject to the

balancing test under MRE 403. [Footnotes omitted.]

Under the caselaw just summarized, then, the first issue to consider is whether the evidence

was offered for a proper, nonpropensity purpose. Rock, 499 Mich at 257. “The proponent of the

evidence has the burden of establishing a proper, noncharacter purpose for its admission under

MRE 404(b).” Merchand v Carpenter, 501 Mich 1071, 1072 (2018). In the present case, plaintiffs

argued that the evidence of defendant’s previous instances of discrimination were admissible to

prove defendant’s “scheme, plan, or system in doing an act,” which is specifically identified as a

proper purpose in MRE 404(b)(1). It is not enough, however, to merely claim a proper purpose

under MRE 404(b)(1); instead, the proponent of the evidence “must also explain how the evidence

is relevant to that purpose without relying on a propensity inference.” People v Denson, 500 Mich

385, 402; 902 NW2d 306 (2017).

Defendant challenges the testimony of four individuals as inadmissible other-acts

evidence—the testimony of James Hedrick, Michael Hester, Teliferio Witcher, and certain

statements by IA Manager Marschke. We address each in turn.

1. HEDRICK

Hedrick testified that defendant had a system of conducting sham investigations after a

person either reports harassment or assists in the reporting the harassment. As an example, Hedrick

said that his supervisor tried to frame him for misplacing a dangerous tool and stealing a camera

after Hedrick reported the supervisor for racial harassment. Relevantly, Hedrick’s testimony

referenced questionable investigations arising out of those two accusations from Hedrick’s

supervisor. With respect to the missing tool, Hedrick noted that the supervisor had prepared a

doctored photograph to implicate Hedrick, and it was Hedrick, not the investigator assigned to the

case, who identified the doctored photograph and exonerated himself. During the second

investigation with respect to the camera, Hedrick noted that the allegedly stolen camera was not

listed on the supervisor’s manifest, which once again led to Hedrick being cleared of charges. The

implication from Hedrick’s testimony was that absent his ability to contradict the allegations

against him, he likely would have been disciplined for the false allegations, which could have led

to termination. Hedrick insisted that these were examples of “gotcha” investigations, which had

predetermined results before they even began because the motive was retaliation.

Hedrick also testified about a coworker who complained about their supervisor using the

N-word, which led to the coworker being told to do work he was not medically fit to do. When

the coworker refused to do the work, which the supervisor was aware would occur, the supervisor

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reported the coworker. The coworker was then given a “stop order,” which stopped him from

coming to work and getting paid for at least part of the time. Defendant then conducted a year-

long investigation into the coworker, which resulted in the coworker losing his house because of

he could not pay the bills. Hedrick explained that the use of a “stop order” and an unusually

lengthy investigation was a manner by which defendant could retaliate without issuing any official

discipline. Hedrick also explained that defendant would stack charges by using multiple, often

duplicative, work rules to make one potentially minor event—such as refusing to perform work

that one is not medically fit to perform—look far worse.

As related to MRE 404(b)(1), plaintiffs asserted that Hedrick’s testimony was relevant to

defendant’s scheme or system when it came to retaliating against individuals who participated in

harassment complaints. The scheme or system, according to Hedrick, involved sham

investigations potentially setup by bad evidence from supervisors, faulty investigations that

ignored possibly determinative evidence, putting people on “stop order,” and having overly

lengthy investigation periods. Accordingly, plaintiffs adequately explained how Hedrick’s

testimony was related to a proper, nonpropensity purpose under MRE 404(b), i.e., it was legally

relevant.

This testimony about the scheme or plan used by defendant was relevant to facts at issue

in the litigation. The defense to Cedric’s claim of retaliation was, primarily, that he had committed

violations of work rules, was investigated for those in a normal manner, and faced warranted

discipline before he decided to preemptively retire. Hedrick’s evidence, however, allowed the jury

to consider whether Cedric’s investigations were part of defendant’s scheme or system of

retaliation. Notably, one of Cedric’s issues— the accusations against Cedric regarding his decision

to remove CO Goodfellow’s ticket from the review process—arose after some questionable

evidence was provided to IA from Cedric’s supervisor and coworker. That investigation began

only after Deputy Warden Schooley obtained a jailhouse telephone call between Prisoner Harding-

Bey and Cheeks in which they said they would speak with then-Warden Chapman, Deputy Warden

Schooley, and Cedric, and then-Warden Chapman forwarded information about the call to IA.

Yet, when then-Warden Chapman did so, he only mentioned that Prisoner Harding-Bey and

Cheeks referred to Cedric, omitting that they also referred to himself and Deputy Warden

Schooley. When the case was then investigated by IA Manager Marschke, he did not seem

concerned with Warden Chapman’s questionable description of the jailhouse telephone call. In

sum, then, Warden Chapman’s provision of questionable evidence to IA correlated with Hedrick’s

testimony regarding his supervisor’s use of questionable evidence to spur investigations into

Hedrick.

The other connections between Hedrick’s description of defendant’s retaliatory scheme

and Cedric’s case are more direct. Hedrick testified that retaliatory investigations often resulted

in a “stop order,” which happened to Cedric. Further, Hedrick noted that retaliatory investigations

were sometimes lengthy, and the claims related to Cedric purportedly colluding with Lieutenants

Miller and Whitman on answers to questionnaires were investigated for about 11 months before

Cedric finally had an opportunity to defend himself at a disciplinary conference. Finally, Cedric

was charged with at least 10 work-rule violations at the same time, despite committing violations

possibly explainable by a misunderstanding or confusion. This fit with Hedrick’s explanation that

retaliatory investigations stacked charges to make possibly minor occurrences seem worse.

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As is apparent from the preceding discussion, Hedrick’s testimony was not only legally

relevant but logically relevant—the evidence provided grounds for the jury to understand the

possible scheme or system that defendant had crafted to ensure that those who complained of

harassment suffered retaliation.

Lastly, addressing MRE 403, evidence about defendant’s alleged scheme or system of

retaliating against employees who complained about harassment was highly probative. There was

no direct evidence that defendant retaliated against Cedric, so circumstantial evidence that

defendant had a scheme or system for retaliating against employees who complained about

harassment and that defendant’s treatment of Cedric largely followed that scheme or system was

highly probative. See People v Oliphant, 399 Mich 472, 495; 250 NW2d 443 (1976). While there

was a danger of unfair prejudice—the jury could infer that, because defendant had a system or

scheme of retaliating against employees who complained about harassment, they retaliated against

Cedric here—that danger was largely minimized by the trial court’s limiting instruction under

MRE 105. Jurors are presumed to follow their instructions. See People v Graves, 458 Mich 476,

486; 581 NW2d 229 (1998). In light of the fact that the danger of unfair prejudice was largely

minimized, as well as the high probative value of the other-acts evidence, the trial court did not

abuse its discretion when it found that Hedrick’s testimony was not barred by MRE 403.

2. HESTER

Hester, who retired from defendant in 2014, testified about the same coworker as Hedrick,

who had been called the N-word and complained, and was then asked to do work he was not

medically fit to do, and when he refused, was reported, investigated, put on stop order, and went

unpaid for a year, which led to him losing his house. Hester reiterated the retaliatory nature of the

investigation into that coworker. Hester also claimed that he personally suffered retaliation

because he assisted with some employees’ harassment claims. According to Hester, he was

accused of punching a coworker in on a time clock in retaliation for his complaints of harassment.

When the investigation began, Hester encouraged the investigator to watch the video footage of

the area covering the time clock. But instead of reviewing the exculpatory evidence, defendant

decided to dismiss the claims against Hester. On another occasion, Hester was asked to perform

the work of an electrician, which he was not qualified to do. When he complained to

representatives of defendant at its headquarters in Lansing, they did not remedy the issue. Finally,

Hester testified that he was placed on a “stop order” for two years while defendant investigated an

accusation against Hester, the substance of which he was not informed about. Eventually, out of

the blue, he was told to come back to work. He later discovered that an investigator for defendant

told female prisoners that they could make money if they accused Hester of sexual assault, and the

police eventually became involved, after which the prisoners recanted, the charges against Hester

were dropped, and he was commanded to return to work. Hester also noted that defendant would

stack charges against someone who had complained of harassment to ensure that even minor

mistakes looked far worse.

As with Hedrick’s testimony, plaintiffs asserted that Hester’s testimony was relevant to

show defendant’s scheme or system for retaliating against individuals who participated in

harassment complaints, which was a permissible purpose for the evidence under MRE 404(b).

Plaintiffs explained that Hester’s experiences with retaliatory investigations from defendant

showed how the system worked. The examples provided by Hester demonstrated defendant’s

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attempts to ignore pertinent and potentially exculpatory evidence when conducting retaliatory

investigations, as well as using overly long investigations. Further, Hester’s testimony

demonstrated that when someone was exonerated from a retaliatory investigation, it was not due

to defendant’s investigation, but because the inadequacy of the charges was discovered by

someone other than defendant. Thus, plaintiffs adequately explained the legal relevance of this

testimony.

The logical relevance of this testimony is obvious—Hester’s testimony suggested that

defendant uses inflammatory allegations, sham investigations, bad or questionable evidence, stop

orders, a lengthy time period of investigation, and stacked charges to ensure someone who

complains of harassment will face exorbitant discipline. Cedric faced circumstances matching

closely to this described scheme or system. Accordingly, plaintiffs adequately explained how

Hester’s testimony was both logically and legally relevant under MRE 404(b).

Lastly, Hester’s other-acts testimony was not barred by MRE 403 for the same reasons that

Hedrick’s was not barred by that rule. To briefly reiterate, evidence about defendant’s alleged

scheme or system of retaliating against employees who complained about harassment was highly

probative, and the danger of unfair prejudice that this evidence posed was largely minimized by

the trial court’s limiting instruction under MRE 105, which jurors are presumed to follow. See

Graves, 458 Mich at 486. Accordingly, the trial court did not abuse its discretion by ruling that

the danger of unfair prejudice posed by admitting this evidence did not substantially outweigh the

evidence’s probative value, and thus the evidence was not barred by MRE 403.

3. WITCHER

Defendant next challenges the testimony of Witcher, who retired from defendant in the

mid-2010s. Witcher agreed with Hedrick and Hester, generally, that once someone complained of

harassment, they became a target for defendant, saying, “[O]nce you become a target with

[defendant], what they tend to do is focus on you, cook up charges, single you out, treat you

different, put charges on you.” Witcher said that he had seen IA manipulate investigations to

ensure that a desired result is reached when the investigation was retaliatory in nature. Witcher

also explained that defendant would stack charges against someone who complained, turning one

alleged error into many work-rule violations. Witcher added that defendant would “bootstrap”

investigations, scheduling them so they all were finalized at the same time, which allowed

defendant to combine disciplinary conferences to make the subject of the investigation look worse

than the relatively minor issues. Lastly, Witcher testified that he was told about a recent incident

of retaliation that occurred after Witcher’s retirement. According to Witcher, the employee said

that she had been approached by her supervisors to frame a volunteer that the supervisors wanted

to remove from the position. When the employee refused and complained about the improper

behavior, defendant sent IA Manager Marschke to personally investigate. He quickly found the

employee’s claims to lack sufficient supporting evidence to allow for charges, closed the

investigation, and then opened a new one into the employee who complained. The employee was

eventually charged, convicted at a conference, and her employment was terminated.

The relevance of Witcher’s more general claims were logically and legally relevant to a

proper purpose for the same reasons discussed for the other two witnesses—the testimony showed

defendant’s scheme or system for retaliating against individuals who participated in harassment

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complaints, and plaintiffs adequately explained how Witcher’s testimony related to that proper

purpose. See MRE 404(b)(1); Denson, 500 Mich 385, 402. Moreover, his more specific claim

had even more probative value than the more general allegations. The incident was more recent

and involved an alleged retaliatory investigation by IA Manager Marschke, which Cedric alleged

happened to him. Further, the investigation started out with one subject, but shifted quickly to

focus on the individual that defendant sought to retaliate against, which, again, is what Cedric

alleged happened to him when IA Investigator Cusack shifted the investigation of Deputy Warden

Schooley to focus on Cedric as retaliation for plaintiffs’ then-recently filed complaint. This

additional level of specificity shined light on another facet of defendant’s system, which was to

send its highest-ranking investigator to perform an investigation and to use an ongoing

investigation as a springboard to shift focus to the person who complained. Thus, the trial court

did not abuse its discretion in determining the evidence was relevant for a proper purpose under

MRE 404(b)(1). See Rock, 499 Mich at 257.

Lastly, for the same reasons that Hedrick’s and Hester’s testimony was not barred by MRE

403, Witcher’s other-acts testimony was not barred by that rule.18

4. IA MANAGER MARSCHKE

The last witness challenged by defendant on appeal is IA Manager Marschke, who testified

that he was only aware of a single “gotcha” investigation in his time with defendant. IA Manager

Marschke insisted that he had discovered the investigation was improper, refused to participate,

and reported it. This occurred under a prior administration, which then retaliated against IA

Manager Marschke for a time. When the administration changed, IA Manager Marschke was

appointed to manager of IA. IA Manager Marschke insisted that the new administration, with him

heading IA, no longer conducted “gotcha” or retaliatory investigations.

Despite IA Manager Marschke’s insistence that he was speaking about only a single

investigation under a different administration, his testimony showed defendant, at least at the time,

conducted sham or “gotcha” investigations to essentially frame certain employees. His testimony

also established that defendant had retaliated against IA Manager Marschke when he complained

about improper procedures. Thus, IA Manager Marschke’s testimony was logically and legally

relevant to defendant’s “scheme, plan, or system in” shifting the focus of investigations, as well

as using “gotcha” investigations, as means of retaliation. MRE 404(b)(1). This was probative of

a material fact at issue because Cedric claimed retaliation, was investigated by IA Manager

Marschke, and had an investigation into Deputy Warden Schooley shift focus to Cedric. Rock,

499 Mich at 257.

18

In its brief on appeal, defendant briefly argues that a portion of Witcher’s testimony was

inadmissible hearsay. We decline to consider the merits of this argument because defendant did

not list it in its statement of questions presented in its brief on appeal, and instead, only challenged

Witcher’s testimony on the basis of MRE 404(b). See Seifeddine v Jaber, 327 Mich App 514,

521; 934 NW2d 64 (2019) (explaining that a party waives an issue on appeal “by failing to include

it in [its] statement of questions presented”).

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Lastly, for the same reasons that Hedrick’s, Hester’s, and Witcher’s testimony was not

barred by MRE 403, IA Manager Marschke’s other-acts testimony was not barred by that rule.

5. DEFENDANT’S ARGUMENTS

Defendant first argues that the testimony of the other-acts witnesses was not legally

relevant because it was not admitted for a proper purpose. For the reasons explained above, we

disagree.

Defendant next argues that, even if legally relevant, the disputed testimony was not

logically relevant because it “involved entirely different facilities, other supervisors, and distinct

time periods.” While defendant is correct about the differences with the other-acts evidence, it

was clear that all of the witnesses were talking about a broad, overarching scheme within defendant

as an organization. Although the investigations discussed by the other-acts witnesses did not

involve the same place or all of the same people within defendant’s organization as this case,19 the

testimony of those witnesses established that it was powers broadly wielded by defendant that

allowed for the scheme or system of retaliation to work. In other words, the differences highlighted

by defendant did not affect the logical relevance of the other-acts evidence in this case. Rather, as

plaintiffs and the trial court pointed out, the differences go to the weight that the jury could choose

to give the evidence. For instance, if, as defendant contended, it was a different administration

that used defendant’s centralized power to enable the retaliatory investigations that the other-acts

witnesses testified about, and that administration had changed before the investigations in this case

began, then defendant could present that information to the jury, who could then decide if a change

in administration actually fixed the retaliatory system that defendant enabled.20

Finally, defendant argues that the evidence should have been barred by MRE 403.

Defendant argues that the danger of unfair prejudice was particularly pronounced here because

“there was no direct evidence that the investigations involving [Cedric] were retaliatory.” Yet

defendant does not cite any caselaw to support that a lack of other evidence to support a material

issue increases the risk of unfair prejudice. It certainly makes the evidence more prejudicial, but

that is because a “dearth of evidence” on a particular material issue makes evidence related to that

issue “particularly important” to the case. Oliphant, 399 Mich at 495. That is, any probative

evidence is prejudicial to some extent, Mills, 450 Mich at 75, and the lack of other evidence on the

issue increases the probative value of the other-acts evidence, yet this by itself does not correlate

to an increase in the danger of unfair prejudice.

19

We note, however, that at least some of the people involved in this case—such as Administrator

Warner—were seemingly involved in past administrations that handled the cases discussed by the

other-acts witnesses.

20

Indeed, this was one of defendant’s strategies during trial. But, unfortunately for defendant, this

strategy was undercut at least in part by the testimony of its own witness, Administrator Warner,

who insisted that, despite the change in administration, the processes of investigations used by

defendant had not changed.

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Defendant also argues that the other-acts evidence was improperly admitted because it was

used to “bolster [a] theory of a department-wide conspiracy to punish everyone who ever

complained about anything; a conspiracy so vast and powerful that it covered myriad locations

and survived a change in administrations.” Even if this was the theory that plaintiffs were using

the other-acts evidence to support, defendant’s argument reads like a reason why a factfinder

should disbelieve plaintiffs’ evidence, not a reason to conclude that the evidence should have been

barred by MRE 403.

Defendant lastly argues that allowing the other-acts evidence was “inequitable,” and

therefore it should have been barred by MRE 403, because to dispute the allegations “would have

required several trials within the trial to present the facts of each and every investigation so as to

explain its progression and justify its outcome.” While this could be a proper basis for a court

excluding evidence under MRE 403 (i.e., the trial court could exclude evidence due to

“considerations of undue delay” or “confusion of the issues,” see MRE 403), the trial court

impliedly declined to do so in this case.21 This was not outside the range of reasonable and

principled outcomes. This was a 16-day jury trial, and it is not clear that rebutting the other-acts

evidence would have added significantly to this already lengthy trial. Moreover, as previously

explained, the evidence was highly probative of a material issue in this case. The fact that it would

be difficult for defendant to rebut highly probative evidence on a material issue is not a particularly

persuasive reason to bar the evidence under MRE 403, and, in our opinion, it is certainly not a

reason to conclude that the trial court abused its discretion by refusing to do so.22

For these reasons, we disagree with defendant that the trial court abused its discretion when

it refused to exclude plaintiffs’ other-acts evidence.

VI. MISCONDUCT BY PLAINTIFFS’ COUNSEL

Defendant next argues that it is entitled to a new trial because of the persistent improper

comments and arguments made by plaintiffs’ counsel. While we agree that plaintiffs’ counsel

21

As noted previously, defendant did not brief its objection to the other-acts evidence, but only

made an oral motion after trial started. During that motion, defendant’s counsel stated only a

single time that it was “going to have to relitigate all of those issues,” and then never mentioned

this point again. Instead, defendant insisted that the other-acts evidence was not relevant because

of the change in administration. It is unclear that defendant’s single sentence was sufficient to

preserve the argument for appeal, but assuming it was, the trial court did not explicitly rule on the

issue.

22

We also note that at least some of the retaliatory investigations discussed by the other-acts

witnesses apparently resulted in cases that defendant either lost or settled, and plaintiffs stipulated

to not present those results to the jury. It is therefore not entirely clear why defendant would want

to walk through “the facts of each and every investigation so as to explain its progression and

justify its outcome”—avoiding discussion about at least some of the outcomes of the investigations

seemed to work to defendant’s advantage.

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made numerous improper comments and, at times, acted unprofessionally, we do not believe that

a new trial is warranted.

A. STANDARD OF REVIEW

“This Court [] reviews for an abuse of discretion the trial court’s decision to grant or deny

motions for a new trial . . . .” Rental Props Owners, 308 Mich App at 531. Similarly, when

considering a claim of attorney misconduct, this Court “review[s] for an abuse of discretion a trial

court’s general conduct of a trial.” Zaremba Equip, Inc v Harco Nat’l Ins Co, 302 Mich App 7,

21; 837 NW2d 686 (2013), lv den 495 Mich 947 (2014). “A trial court does not abuse its discretion

when its decision falls within the range of principled outcomes.” Rock, 499 Mich at 260.

B. ANALYSIS

“A trial court may grant a new trial when the misconduct of the prevailing party materially

affected the substantial rights of the nonprevailing party.” Estate of Carlsen v Southwestern Mich

Emergency Servs, PC, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket No. 351159), slip

op at 9. As explained by our Supreme Court:

When reviewing an appeal asserting improper conduct of an attorney, the

appellate court should first determine whether or not the claimed error was in fact

error and, if so, whether it was harmless. If the claimed error was not harmless, the

court must then ask if the error was properly preserved by objection and request for

instruction or motion for mistrial. If the error is so preserved, then there is a right

to appellate review; if not, the court must still make one further inquiry. It must

decide whether a new trial should nevertheless be ordered because what occurred

may have caused the result or played too large a part and may have denied a party

a fair trial. If the court cannot say that the result was not affected, then a new trial

may be granted. Tainted verdicts need not be allowed to stand simply because a

lawyer or judge or both failed to protect the interests of the prejudiced party by

timely action. [Reetz v Kinsman Marine Transit Co, 416 Mich 97, 102-103; 330

NW2d 638 (1982).]

“An attorney’s comments do not normally constitute grounds for reversal unless they reflect a

deliberate attempt to deprive the opposing party of a fair and impartial proceeding.” Zaremba

Equip, 302 Mich App at 21. “Reversal is required only where the prejudicial statements of an

attorney reflect a studied purpose to inflame or prejudice a jury or deflect the jury’s attention from

the issues involved.” Hunt v Freeman, 217 Mich App 92, 95; 550 NW2d 817 (1996). “While a

lawyer is expected to advocate his client’s cause vigo

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