Kimberly Ondricko v. MGM Grand Detroit, LLC

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0254p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

KIMBERLY C. ONDRICKO,

-

Plaintiff-Appellant,

-

-

No. 10-2133

v.

,

>

-

Defendant-Appellee. -

MGM GRAND DETROIT, LLC,

N

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:09-cv-11073—Anna Diggs Taylor, District Judge.

Decided and Filed: August 8, 2012

Before: KENNEDY, MARTIN, and STRANCH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Gerald D. Wahl, STERLING ATTORNEYS AT LAW, P.C., Farmington

Hills, Michigan, for Appellant. Louis Theros, Regan K. Dahle, BUTZEL LONG,

Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Plaintiff Kimberly Ondricko seeks reversal

of the district court’s grant of summary judgment in favor of Defendant MGM Grand

Detroit, LLC in her suit for race and gender discrimination under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Michigan’s Elliott-Larsen Civil Righs

Act (“ELCRA”), M.C.L.§ 37.2101 et seq. The district court found that Ondricko

admitted the employment misconduct that resulted in her termination and that she had

not shown disparate treatment of similarly situated comparators. For the following

reasons, we REVERSE the judgment of the district court.

1

No. 10-2133 Ondricko v. MGM Grand Detroit Page 2

I. BACKGROUND

Kimberly Ondricko had been working in the gaming industry since 1994 and

began working as a Casino Dealer-Trainee for MGM Grand Detroit (“MGM”) in

September 2003. MGM promoted Ondricko first to a Dealer 1, then to a part-time Floor

Supervisor, and lastly to a full-time Table Games Floor Supervisor in October 2005. As

a Floor Supervisor, Ondricko was responsible for supervising the Dealers at as many as

six gaming tables in an area referred to as a “Pit.” MGM argues it fired Ondricko

because she participated in a “bad shuffle” at a blackjack table she was supervising.

Some background is necessary to understand this argument. Dealers use two sets of

different-colored playing cards at each blackjack table and before a Dealer puts any

cards into play, they must be shuffled. The Dealer raises a “cut card” into the air to

request that the Supervisor approve the shuffle. Upon approval, the Dealer gathers the

cards on the table that have already been played (the “discards”) and places them in a

shuffle machine.

The machine has two chambers: an empty chamber into which the Dealer places

the discards and a chamber containing shuffled cards to be put into play. The Dealer

presses a button on the shuffle machine, causing the empty chamber to elevate, then

places the discards into the empty chamber and presses the button again, causing the

chamber with the discards to lower and the chamber with the shuffled cards to rise. The

Dealer removes the shuffled cards (which will always be a different color than the

discarded cards) from the shuffle machine and puts those cards into play.

On April 27, 2008, Ondricko was the Floor Supervisor in a blackjack Pit where

only one customer was playing at one table with Dealer Vivian Baran. Ondricko was

standing next to Baran when it came time for Baran to shuffle. Baran gathered the

discarded cards and Ondricko pressed the button on the shuffle machine to raise the

empty chamber. Baran placed the discards into the empty chamber, but instead of

pressing the button to lower that chamber and raise the chamber with the shuffled cards,

Baran then removed the same unshuffled cards from the chamber and put them back into

-2-

No. 10-2133 Ondricko v. MGM Grand Detroit Page 3

play. Ondricko testified that she was not aware Baran failed to press the button to lower

the chamber with the discards and raise the chamber with the shuffled cards.

As Baran was putting the cards into play, Ondricko noticed the chamber door

was still open. She asked Baran whether she was dealing the same cards, to which Baran

said “no,” and then investigated whether the shuffle machine had malfunctioned.

Ondricko’s investigation occurred while Baran dealt hands for about ninety seconds,

after which Ondricko told Baran to stop dealing. Ondricko immediately notified her

superior, the Pit Manager, about the bad shuffle. Ondricko never left the blackjack table

during this shuffle procedure. MGM suspended Ondricko pending investigation into the

incident. On May 9, 2008, MGM terminated Ondricko based on its Rules of Conduct

Policy Number 417, which states: “What in the business judgment of MGM Grand

Detroit jeopardizes the efficiency or integrity of the gaming operation is prohibited.”

MGM alleged Ondricko’s conduct violated MGM’s “Procedures for Dealing the Cards

Using an Automatic Shuffle Devise,” which resulted in a violation of Policy 417.

At least six other Supervisors engaged in misconduct related to shuffle

procedures. Only two were terminated. In January 2004, Yancy Yharbrough, a black

male, was disciplined, but not terminated, for his failure to remove the “10” cards from

playing decks during a game which required their omission. In late July 2008, Carl

Barney, a black male, was also disciplined, but not terminated, for two shuffle procedure

violations within two weeks, including playing un-cut decks and playing six decks where

a game required eight. Gary Swick, a white male, was terminated in January 2009 after

approving a shuffle at a blackjack table. Specifically, Swick approved this shuffle, the

Dealer placed the discards in the empty shuffler chamber, and then Swick left the table

to speak with the Pit Manager. When Swick returned, the Dealer removed the

unshuffled cards from the chamber, instead of the newly shuffled cards, and dealt one

hand. Another Floor Supervisor noticed the error and alerted Swick, who was still

standing at the table, but had not been watching the shuffle, and Swick reported this to

his Pit Manager. In contrast, in February 2009, Greg Hood, a white male, was given a

-3-

No. 10-2133 Ondricko v. MGM Grand Detroit Page 4

five-day suspension for supervising tables where “washed” (not yet used, but unshuffled)

cards were put into play.

The remaining two Supervisors engaged in shuffle-procedure misconduct in the

months immediately before Ondricko was terminated and were directly addressed by

MGM in relation to her termination. In December 2007, Nakeisha Boyd, a black female,

was terminated after supervising a mini-baccarat game where the Dealer apparently had

trouble removing cards from the shuffler. Boyd assisted the Dealer by removing

unshuffled discards from the shuffler and giving those cards, instead of the shuffled

cards, to the Dealer to put back into play. In contrast, Warren Black, a black male, was

given a three-day suspension after approving a bad shuffle1 in October 2007 based on

violations of the same policies MGM alleges Ondricko violated. After approving the

shuffle, Black stepped away from the game table2 and the Dealer placed the discards into

the empty shuffler chamber and then immediately removed the same cards. After a

customer cut these cards, but before they were put into play, another Dealer arrived as

relief. The new Dealer noticed the wrong cards were on the table and notified Black,

who advised the Dealer to put the shuffled cards into play.

Around the time MGM decided to terminate Ondricko, but before she was

notified of this decision, Tables Games Assistant Shift Manager Mike Hannon spoke to

Mike O’Connor, Vice President of Operations, about Ondricko. Hannon asked

O’Connor why Black was only given a three-day suspension, but Ondricko was to be

terminated. In response, O’Connor asserted Black did not approve a bad shuffle, but

Ondricko did. O’Connor also brought up Boyd, a black female, during the meeting,

saying “her attorneys had already called and wanted to know what we were going to do

1

MGM disputes Ondricko’s assertion that Black “approved” the shuffle, however MGM admits

that “[f]or the purposes of the motion for summary judgment only, taking the facts in the light most

favorable to Plaintiff, MGM Detroit presented the facts as if Mr. Black did approve the shuffle.” (Appellee

Br. at 16 n.6).

2

There is some dispute as to why Black stepped away from the table. MGM asserts he was

assisting another customer, while Ondricko notes Black simply does not appear in the surveillance video

and there is no indication of why he was not by the table.

-4-

No. 10-2133 Ondricko v. MGM Grand Detroit Page 5

about Kim.” O’Connor then said “do you think I wanted to fire Kim, I didn’t want to

fire Kim, how could I keep the white girl.”

On March 23, 2009, Ondricko filed this action against MGM alleging claims of

gender and race discrimination in violation of Title VII and ELCRA. In 2010, MGM

filed a Motion for Summary Judgment asserting Ondricko could not establish a prima

facie case of race or gender discrimination based on circumstantial evidence or prove

MGM’s legitimate nondiscriminatory motive was pretext. Ondricko opposed this

motion, asserting she presented direct evidence of race discrimination and circumstantial

evidence of both race and gender discrimination under a mixed-motive standard. The

district court held a hearing and granted MGM’s motion from the bench, simply

reasoning “that the plaintiff admitted the conduct that had gotten her fired, the bad

shuffle, and nobody was treated differently whatsoever, or disparately, that she has

called attention to.” No explanatory memorandum or order was entered. On appeal,

Ondricko argues the district court improperly granted summary judgment to MGM

because she presented direct and circumstantial evidence of discrimination and the court

erred in failing to apply a mixed-motive analysis to her claims.

II. ANALYSIS

A. Standard of Review

This court reviews a district court’s grant of summary judgment de novo. Geiger

v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is appropriate

if there is no genuine issue as to any material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a) (2010). As the party seeking summary

judgment, MGM bears the burden to show there are no genuine issues of material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Credibility determinations,

the weighing of the evidence, and the drawing of legitimate inference from the facts are

jury functions, not those of a judge[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). All facts, including inferences, are viewed in the light most favorable to the

-5-

No. 10-2133 Ondricko v. MGM Grand Detroit Page 6

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). The central issue is whether the evidence presents a sufficient disagreement to

require submission of Ondricko’s claims to a jury or whether the evidence is so one-

sided that MGM must prevail as a matter of law. Anderson, 477 U.S. at 251-52.

B. Title VII Claims

Title VII’s anti-discrimination provision makes it “an unlawful employment

practice for an employer . . . to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Intentional discrimination claims under Title VII can be proven by direct or

circumstantial evidence. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). “Direct

evidence is that evidence which, if believed, requires the conclusion that unlawful

discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v.

Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999).

Circumstantial evidence, on the other hand, is proof that does not on its face establish

discriminatory animus, but does allow a factfinder to draw a reasonable inference that

discrimination occurred. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997).

1. Mixed-Motive Analysis

We must first determine whether Ondricko’s race and gender discrimination

claims should be analyzed under a mixed-motive or single-motive analysis. It is not

entirely clear from the motion hearing transcript whether the district court conducted a

mixed-motive analysis or analyzed Ondricko’s claims using the McDonnell Douglas

burden-shifting framework. A mixed-motive analysis applies to cases “where an adverse

employment decision was the product of a mixture of legitimate and illegitimate

motives.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 571 (6th Cir. 2003)

(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 247 (1989)). Under § 2000e-2(m)

of Title VII, Ondricko can proceed on a mixed-motive claim by demonstrating that her

-6-

No. 10-2133 Ondricko v. MGM Grand Detroit Page 7

protected status was a motivating factor in her termination, even though other factors

also motivated her discharge. See Wright v. Murray Guard, Inc., 455 F.3d 702, 711-13

(6th Cir. 2006). Ondricko can pursue a mixed-motive claim under Title VII based on

direct evidence or solely on circumstantial evidence. See Desert Palace, Inc. v. Costa,

539 U.S. 90, 100-01 (2003). At the summary judgment stage, the ultimate question is

whether Ondricko presented evidence, direct or circumstantial, from which a reasonable

jury could logically infer that her race or gender were motivating factors in MGM’s

decision to terminate her employment. See Wright, 455 F.3d at 713.

A plaintiff triggers mixed-motive analysis by giving notice of bringing such

claims. Spees v. James Marine, Inc., 617 F.3d 380, 390 (6th Cir. 2010); see also Bartlett

v. Gates, 421 F. App’x 485, 488 n.1 (6th Cir. 2010) (mixed-motive standard “only

applies when plaintiffs provide notice of mixed motive claims”). This treatment can be

triggered expressly by invoking the mixed-motive analysis or impliedly through use of

the motivating factor test in the complaint and responsive pleadings. See Spees, 617

F.3d at 390 (plaintiff gave adequate notice of mixed-motive claim by alleging pregnancy

was a motivating factor and specifying she was bringing mixed-motive claims in a

footnote in her motion for summary judgment); cf. Hashem-Younes v. Danou Enters.

Inc., 311 F. App’x 777, 779 (6th Cir. 2009) (affirming district court’s application of the

McDonnell Douglas/Burdine framework where the plaintiff failed to raise a

mixed-motive claim in her complaint or in her response to the defendants’ summary

judgment motion, and the record was “utterly silent as to mixed motives”).

Ondricko gave adequate notice of mixed-motive claims in her response to

MGM’s motion for summary judgment. Specifically, Ondricko corrected MGM’s

discussion of pretext in its motion brief by citing this court’s explanation of the summary

judgment analysis of mixed-motive claims in White v. Baxter Healthcare Corp., 533 F.3d

381 (6th Cir. 2008). Therefore, Ondricko is entitled to a mixed-motive analysis of her

Title VII claims.

-7-

No. 10-2133 Ondricko v. MGM Grand Detroit Page 8

2. Direct Evidence of Race Discrimination

Ondricko asserts she presented direct evidence of race discrimination based on

O’Connor’s statement to Hannon: “[D]o you think I wanted to fire Kim, I didn’t want

to fire Kim, how can I keep the white girl.” “In discrimination cases, direct evidence is

that evidence which, if believed, requires the conclusion that unlawful discrimination

was at least a motivating factor in the employer’s actions.” Jacklyn v. Schering-Plough

Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). “In direct evidence

cases, once a plaintiff shows that the prohibited classification played a motivating part

in the employment decision, the burden of both production and persuasion shifts to the

employer to prove that it would have terminated the employee even if it had not been

motivated by impermissible discrimination.” Nguyen v. City of Cleveland, 229 F.3d 559,

563 (6th Cir. 2000).

MGM argues O’Connor’s statement is similar to the employer’s statement in

Dabrowski v. Dow Chemical Co. that was found not to be direct evidence of race or

gender discrimination. No. 06-11037-BC, 2007 WL 201047, at *3 (E.D. Mich.

Jan. 24, 2007). Dabrowski, a white male, was fired because he lied about his GPA on

his application. Id. at *1. His manager explained that the company would enforce its

gender- and race-neutral requirement for applicants and could not grant him preferential

treatment. Id. at *3. The district court decision in Dabrowski is unpublished, not

binding on this court, and factually inapposite. Dabrowski involved a request by an

unqualified job applicant for waiver of a clear, neutrally-enforced application

requirement. That situation is clearly distinguishable from the situation alleged here:

a discharge based on an ambiguous guideline, accompanied by evidence of inconsistent

application, and explained on the basis of race. We turn now to de novo review of the

grant of summary judgment under applicable precedent.

Looking at O’Connor’s statement in the light most favorable to Ondricko and

drawing all reasonable inferences in her favor, a reasonable jury could conclude that

Ondricko’s race was a motivating factor in MGM’s decision to terminate her

-8-

No. 10-2133 Ondricko v. MGM Grand Detroit Page 9

employment. See Wright, 455 F.3d at 713. Immediately after discussing inquiries by

Boyd’s attorneys, O’Connor admitted he did not want to fire Ondricko, but “how [could

he] keep the white girl.” This statement was made by an MGM decisionmaker shortly

before notifying Ondricko of her termination, immediately after discussing inquiries by

a fired black female employee’s attorney, and in the same meeting where MGM’s

decision not to fire a black male for similar conduct is discussed. Under these

circumstances, and in light of the fact that Boyd had a much worse disciplinary record

than Ondricko, it is certainly reasonable to conclude from O’Connor’s statement that

MGM was motivated by a desire to be racially balanced in its terminations for

misconduct related to shuffling. See Taylor v. Bd. of Ed. of Memphis City Schs.,

240 F. App’x 717, 720 (6th Cir. 2007) (statement that another applicant was hired to

“maintain racial balance” plainly indicated unlawful discrimination may have been a

motivating factor in the hiring decision).

Because Ondricko proffered direct evidence of discrimination, the burdens of

production and persuasion shift to MGM to demonstrate that it would have fired

Ondricko irrespective of its discriminatory intent. Nguyen, 229 F.3d at 563. Although

MGM does not argue its case under a mixed-motive analysis, it asserts that it

consistently “terminated employees who have actively participated in bad shuffles.”

Ondricko argues this alleged distinction between “active participation” and other forms

of shuffle supervision is arbitrary and pretext for MGM’s true discriminatory motivation.

Viewing the record in the light most favorable to Ondricko, a jury could

reasonably disbelieve MGM’s proffered explanation. See White, 533 F.3d at 393 (citing

Loeb v. Texytron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979) (“The more idiosyncratic

or questionable the employer’s reason, the easier it will be to expose as a pretext, if

indeed it is one.”)). First, O’Connor explains to Hannon that Black was not terminated

because he did not approve the bad shuffle, while Ondricko did. However, Black’s

disciplinary record includes a statement by MGM that Black was being disciplined for

approving a bad shuffle, and MGM concedes this approval by Black for the purposes of

-9-

No. 10-2133 Ondricko v. MGM Grand Detroit Page 10

summary judgment. Second, MGM relies on the fact Black walked away from the table

and was not present for the improper procedure (removing the same unshuffled cards

from the machine) as proof he did not “actively participate” in the bad shuffle.

However, Ondricko notes that it seems contradictory for MGM to reward Black for

violating a policy which requires him to observe the entire shuffle procedure. Third,

Ondricko points out that her prior disciplinary record was clean while Black, who was

not fired, had several prior disciplinary infractions. Because of these disputed material

facts pertaining to the actual motivation involved in MGM’s decision, the district court

erred in granting summary judgment on Ondricko’s Title VII race discrimination claim.

3. Circumstantial Evidence of Gender Discrimination

Ondricko relies on circumstantial evidence to establish her Title VII gender

discrimination claim. The same analysis applies for mixed-motive claims under Title

VII based on direct or circumstantial evidence, see Desert Palace, 539 U.S. at 100-01,

and the ultimate question remains whether Ondricko presented evidence from which a

reasonable jury could logically infer that her gender was a motivating factor in MGM’s

decision to terminate her employment, see Wright, 455 F.3d at 713.

Ondricko relies on the disparate treatment of her male coworkers as evidence of

MGM’s discriminatory motive. “Proof of discriminatory motive is critical, although it

can in some situations be inferred from the mere fact of differences in treatment.”

Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1995) (quoting Int’l Bhd. of Teamsters v.

United States, 431 U.S. 324, 355 n.15 (1977)). Ondricko shows that seven Supervisors

were disciplined for involvement in improper shuffling procedures: five were men, four

of whom were suspended for five or fewer days. In contrast, both women were

terminated for their involvement in “bad shuffles.” The one remaining man, Swick, was

fired about eight months after MGM fired Ondricko and shortly before she filed the

- 10 -

No. 10-2133 Ondricko v. MGM Grand Detroit Page 11

instant action.3 MGM asserts Boyd and Swick are the only two proper comparators

because they “actively” participated in bad shuffles, while the other men either did not

participate in the same type of shuffle procedure misconduct or, in the case of Black, did

not “actively” participate in that misconduct.

Like Ondricko, the plaintiff in Wright v. Murray Guard pointed to different

punishment of an alleged comparator to establish an inference of unlawful discrimination

under a mixed-motive analysis. 455 F.3d 702, 713 (6th Cir. 2006). Wright’s comparator

was alleged to have engaged in sexual harassment, including coercing one or more

subordinates into having sexual relations with him. Id. at 710. Wright was alleged to

have allowed an unauthorized person into the company facility and to have spread

rumors. Id. We found that “the alleged acts of misconduct so diverged that they merited

different treatment.” Id. at 713.

This case is not comparable to Wright. The different treatment of Ondricko, as

compared to that of the four retained male Supervisors, provides an inference of

discrimination at the summary judgment stage. As discussed above, there is a disputed

issue of fact regarding whether Black’s conduct was sufficiently different from

Ondricko’s conduct to warrant different treatment. The other three men—Yharbrough,

Barney, and Hood—who were not terminated were involved in misconduct that differed

only slightly from the exact facts involved in Ondricko’s offense.4 MGM admits their

misconduct was related to shuffling procedures, but asserts that not all shuffle-related

offenses deserve the same level of discipline. MGM does not point to any established

policy, either written or verbally communicated to its employees, that distinguishes

between different shuffle-related misconduct and provides the corresponding levels of

3

The date Ondricko filed her charge of discrimination with the EEOC, and therefore the date

MGM became aware of Ondricko’s discrimination claims, is not in the record. She only asserts she filed

it timely with the EEOC and that she filed the instant action within ninety days after receiving her Right

to Sue Letter.

4

Yharbrough failed to remove the “10” cards from the decks, as required for a particular game,

Barney allowed un-cut cards to be played and approved a game to be played with six decks when eight was

required, and Hood allowed unshuffled, “washed” cards to be placed back into play.

- 11 -

No. 10-2133 Ondricko v. MGM Grand Detroit Page 12

discipline. In fact, Vice President of Human Resources Deborah Moffatt testified that

MGM references the same Policy 417 on almost all of MGM’s termination notices.

Therefore, as with Black, when viewed in the light most favorable to Ondricko, there is

a disputed issue of material fact regarding whether the misconduct of these men diverges

sufficiently to justify different treatment.

MGM also points out that it fired a male Supervisor, Gary Swick, for very similar

misconduct. However, given the four similarly situated male employees who were not

terminated based on similar conduct, MGM cannot defeat the inference of a

discriminatory motive with one comparator who was treated similarly. Based on these

disputed issues of material fact, Ondricko has presented evidence from which a

reasonable jury could logically infer that gender was a motivating factor in MGM’s

decision to terminate her employment. See Wright, 455 F.3d at 713. Thus, the district

court erred in granting MGM summary judgment on Ondricko’s Title VII gender

discrimination claim.

C. ELCRA race and gender discrimination claims

Section 202 of ELCRA provides that “[a]n employer shall not . . . [f]ail 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.” Mich.

Comp. Laws § 37.2202(1)(a). Primarily, “[c]ases brought pursuant to the ELCRA are

analyzed under the same evidentiary framework used in Title VII cases.” In re

Rodriguez, 487 F.3d 1001, 1007 (6th Cir. 2007) (citing Humenny v. Genex Corp.,

390 F.3d 901, 906 (6th Cir. 2004)); see Sniecinski v. Blue Cross & Blue Shield of Mich.,

666 N.W.2d 186, 193 (Mich. 2003).

1. Direct Evidence of Race Discrimination

Ondricko presented direct evidence in support of her race discrimination claim

based on O’Connor’s statement to Hannon. ELCRA mixed-motive discrimination

- 12 -

No. 10-2133 Ondricko v. MGM Grand Detroit Page 13

claims based on direct evidence are subject to the same analysis as Title VII

discrimination claims. Sniecinski, 666 N.W.2d at 193. Therefore, for the reasons

discussed above, the district court erred in granting summary judgment to MGM on

Ondricko’s ELCRA race discrimination claim.

2. Gender Discrimination

Ondricko’s ELCRA gender discrimination claim, however, requires a different

analysis than that under Title VII because Ondricko relies entirely on circumstantial

evidence. Although in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the United

States Supreme Court determined that a plaintiff in a Title VII action may make out a

prima facie claim of discrimination in a mixed-motive case using either direct evidence

or circumstantial evidence, Michigan courts continue to require that mixed-motive cases

under ELCRA be established by direct evidence. Millner v. DTE Energy Co., 285 F.

Supp. 2d 950, 967 n.18 (E.D. Mich. 2003) (citing Sniecinski, 666 N.W.2d 186); see also

Watson v. Lowe’s Home Ctrs., Inc., No. 04-70491, 2009 WL 728547, at *6 n.17

(E.D. Mich. Mar. 19, 2009); Contri v. Am. Axle & Mfg., Inc., 326 F. App’x 900, 911

(6th Cir. 2009) (noting that to survive summary judgment in ELCRA claims based on

circumstantial evidence, “a plaintiff also must satisfy the additional burdens set out in

McDonnell Douglas.”) Therefore, in order to survive summary judgment on her ELCRA

gender discrimination claim, Ondricko cannot rely on a mixed-motive theory and must

satisfy the McDonnell Douglas burden-shifting framework based on a single-motive

theory.

To establish an ELCRA discrimination claim using the McDonnell Douglas

framework, a plaintiff is required to present evidence that (1) she was a member of a

protected class, (2) she was subject to an adverse employment action, (3) she was

qualified for the position, and (4) others, similarly situated and outside the protected

class, were treated differently. Town v. Mich. Bell Tel. Co., 568 N.W.2d 64, 68 (Mich.

1997). If the plaintiff successfully proves a prima facie case, the burden of production

shifts to the employer to articulate some legitimate, nondiscriminatory reason for the

- 13 -

No. 10-2133 Ondricko v. MGM Grand Detroit Page 14

employment decision. Hazle v. Ford Motor Co., 628 N.W.2d 515, 521-22 (Mich. 2001).

Once the employer carries this burden, the burden of production shifts back to the

plaintiff to show that the legitimate reasons offered by the employer were not its true

reasons, but rather were pretext for unlawful discrimination. Id. at 522.

a. Prima Facie Case

It is undisputed that Ondricko satisfies the first three elements of a prima facie

case of gender discrimination. MGM disputes that similarly-situated comparators were

treated differently than Ondricko based on its claim that Boyd and Swick, both

terminated, were the only two proper comparators. “The plaintiff need not demonstrate

an exact correlation with the employee receiving more favorable treatment in order for

the two to be considered ‘similarly-situated.’” Ercegovich v. Goodyear Tire & Rubber

Co., 154 F.3d 344, 352 (6th Cir. 1998); cf. Meagher v. Wayne State Univ., 565 N.W.2d

401, 410 (Mich. 1997) (“While federal precedent interpreting the federal Civil Rights

Act is not binding in Michigan, it is often used as guidance by Michigan courts.”).

Rather, the plaintiff and the employee with whom the plaintiff seeks to compare herself

must be similar in “all relevant aspects.” Ercegovich, 154 F.3d at 352. Further, a

plaintiff’s burden at the prima facie stage is “not onerous” and “poses ‘a burden easily

met.’” Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000) (quoting

Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Wrenn v. Gould,

808 F.2d 493, 500 (6th Cir. 1987)).

There are five potential male comparators: Black, Swick, Yharbrough, Barney,

and Hood. All five were Floor Supervisors, like Ondricko, overseeing Dealers that

engaged in misconduct. MGM concedes that the misconduct in each case related to

shuffling procedures. Each of these cases relied only on the failure to properly supervise

the shuffle and not on other concurrent misconduct. Based on these facts, all five men

are similarly situated in all relevant aspects to Ondricko. Because four of these men

were given short suspensions without pay, rather than terminated, Ondricko has shown

- 14 -

No. 10-2133 Ondricko v. MGM Grand Detroit Page 15

that similarly situated employees outside the protected class were treated differently.5

The district court erred in finding that “nobody was treated differently whatsoever, or

disparately, that she has called attention to.”

b. Nondiscriminatory Justification and Pretext

Because Ondricko has shown a prima facie case of discrimination, the burden of

production shifts to MGM to articulate some legitimate, nondiscriminatory reason for

the employment decision. Hazle, 628 N.W.2d at 521-22. MGM asserts it terminated

Ondricko because she admittedly participated in a bad shuffle which violates its

procedures and policies. Ondricko asserts this is pretext for discrimination.

A plaintiff can establish that a defendant’s reasons for termination are pretext

“(1) by showing the reasons had no basis in fact, (2) if they have a basis in fact, by

showing that they were not the actual factors motivating the decision, or (3) if they were

factors, by showing that they were jointly insufficient to justify the decision.” Dubey v.

Stroh Brewery Co, 462 N.W.2d 758, 760 (Mich. Ct. App. 1990). “[T]he evidence and

inferences that properly can be drawn from the evidence presented during the plaintiff’s

prima facie case may be considered in determining whether the defendant’s explanation

is pretextual.” Town, 568 N.W.2d at 69. For the same reasons discussed under her Title

VII gender discrimination claim, Ondricko has presented evidence creating a genuine

issue of material fact that, although her misconduct was a factor in her discipline, it was

not sufficient to justify the decision to terminate her employment. Therefore, the district

court erred in granting summary judgment on Ondricko’s ELCRA gender discrimination

claim.

5

As mentioned above, although Swick was terminated for similar conduct, MGM cannot defeat

Ondricko’s “not onerous” prima facie burden by showing one similarly-situated comparator was treated

similarly when she points to four such comparators who were not.

- 15 -

No. 10-2133 Ondricko v. MGM Grand Detroit Page 16

III. CONCLUSION

For the foregoing reasons, the district court erred in granting summary judgment

in favor of MGM on Ondricko’s discrimination claims and we REVERSE the grant of

summary judgment and REMAND the case for trial.

- 16 -