Anthony Branch v. Genesee County Road Commission

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

ANTHONY BRANCH, UNPUBLISHED

November 10, 2022

Plaintiff-Appellant,

v Nos. 358989; 359634

Genesee Circuit Court

GENESEE COUNTY ROAD COMMISSION and LC No. 19-113700-CD

MICHIGAN SOCIETY OF ASSOCIATION

EXECUTIVES,

Defendants-Appellees.

Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.

PER CURIAM.

These consolidated matters involve plaintiff Anthony Branch’s claims against defendants,

Genesee County Road Commission (GCRC) and Michigan Society of Association Executives

(MSAE), alleging race discrimination in employment under the Elliot-Larsen Civil Rights Act

(CRA), MCL 37.2101 et seq. In Docket No. 358989, Branch appeals as of right the trial court’s

order granting summary disposition in favor of GCRC and MSAE under MCR 2.116(C)(10) (no

genuine issue of material fact). In Docket No. 359634, Branch appeals as of right the trial court’s

order awarding MSAE attorney fees and taxable costs as case-evaluation sanctions. We affirm in

both dockets.

I. BACKGROUND

This matter stems from allegations by Branch, who is African-American, that he

experienced race discrimination when he applied for a manager-director position with the GCRC.

The GCRC ultimately appointed Fred Peivandi, an Iranian-American male, as manager director.

Branch began working for the GCRC in 1988 and was promoted to the director of

maintenance in 2004. In this role, Branch reported to John Daly, GCRC’s manager director. In

early 2018, Daly resigned as manager director and recommended that Branch replace him. Branch

and Peivandi, then GCRC’s director of engineering, were appointed as co-interim manager

directors and given raises while the Genesee County Board of Road Commissioners (the Board)

began the search process to permanently fill the role. At all relevant times, the Board consisted of

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(1) Cloyce Dickerson, who is African-American; (2) Shirley Kautman-Jones, who is Caucasian;

(3) John Mandelaris, who is Caucasian; (4) David Arceo, who is Mexican-American; and

(5) Robert Johnson, who is Caucasian.

The Board hired MSAE to assist GCRC in its search for a new manager director. In April

2018, Cheryl Ronk, MSAE’s president at the time, met with the Board to discuss the manager-

director position. When Ronk asked the Board members if they wanted certain candidates to

automatically receive an interview with the Board, she was told that the Board “wanted all

candidates to go through the same process.” After discussion of the job description for the

manager-director posting, a proposed description was prepared and stated, in relevant part:

EDUCATION AND EXPERIENCE

Possession of a Bachelor’s Degree in a field related to job functions is required.

Preference is given towards Civil Engineering and similar disciplines. A Master’s

Degree will be considered an asset. [Emphasis added.]

Branch reviewed the proposed job description and realized he was disqualified from applying for

the manager-director position because he did not have a bachelor’s degree. Branch spoke to GCRC

Human Resources Director, Donna Poplar, who raised the issue at the next board meeting. The

Board ultimately agreed to modify the job description and remove the bachelor’s degree

requirement to accommodate Branch. The final job posting was altered to reflect:

EDUCATION OR EXPERIENCE

Possession of a Bachelor’s Degree in a field related to job functions is desired.

Preference is given towards Civil Engineering and similar disciplines. A Master’s

Degree will be considered an asset. [Emphasis added.]

Ronk received 95 applications, including from Branch and Peivandi. Ronk decided to

interview 15 of the candidates,1 including Branch and Peivandi, by phone. In June 2018, Ronk

interviewed Branch and decided he would not advance to the next round of interviews. One week

later, Ronk informed the Board she had “interviewed a number of wonderful candidates” and had

narrowed it down to seven candidates for interviews with the Board. The finalists were: (1) Mark

Riley, (2) Mary Gillis, (3) Thomas Diener, (4) Peivandi, (5) Curt Carlson, (6) Haithem Aboujrad,

and (7) Neil McGinn. All finalists had bachelor’s degrees and some combination of a master’s

degree, engineering experience, and/or a management background. While Dickerson testified it

“took [him] by surprise” that Branch had not been selected to interview, Dickerson did not attempt

to halt the interview process or motion for Branch to receive an interview. The remaining board

members did not expressly question Branch’s absence from the list of interviewees.

1

Although meeting minutes from a June 2018 board meeting state that Ronk interviewed 25

candidates by phone, an e-mail written by Ronk to the Board stated that she identified 15

candidates to interview by phone.

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McGinn withdrew his application, and the Board interviewed the six remaining candidates.

The Board then narrowed its selection to three candidates for a final interview: (1) Riley, an

African-American male; (2) Gillis, a Caucasian female; and (3) Peivandi. Following interviews

with these three candidates, the Board unanimously decided to offer Peivandi the position. Riley

was the Board’s second choice. After Peivandi requested a $5,000 increase in the yearly salary,

Ronk reminded the Board that Riley was still a potential candidate for the position. Dickerson

questioned why Branch did not interview before the Board. According to meeting notes, Ronk

responded that it was her decision. Ronk stated she “did not hear any enthusiasm or energy, [or]

passion to be managing director” from Branch during the phone interview. A majority of the board

agreed to offer Peivandi the increased yearly salary. Dickerson opposed increasing the salary, but

did not oppose Peivandi being appointed manager director. Peivandi accepted the manager-

director position. The Board “reappointed” Branch to his previous position as director of

maintenance and gave him another raise above what he earned as co-interim manager director.

In September 2018, Branch filed a complaint against GCRC with the Equal Employment

Opportunity Commission (EEOC), alleging that he was denied a promotion because of his race in

violation of Title VII of the federal Civil Rights Act, 42 USC 2000e et seq. The EEOC investigated

and ultimately closed Branch’s complaint because the EEOC was “unable to conclude that the

information obtained establishes violations of the statutes.” Branch then filed this lawsuit against

GCRC and MSAE, alleging that he was not permitted to interview for the manager-director

position because of his race in violation of the CRA. Branch alleged that GCRC “delegated”

authority to MSAE, which screened and selected applicants for the manager-director position.

GCRC and MSAE filed answers to the complaint and generally denied liability. Discovery

commenced.

GCRC and MSAE later moved for summary disposition under MCR 2.116(C)(10), arguing

Branch could not establish a prima facie case of discrimination. MSAE specifically argued that

Ronk’s decision not to select Branch to be one of the seven applicants interviewed by the Board

did not constitute an adverse employment action because MSAE did not prevent the Board from

interviewing or hiring him. Branch opposed the motions, arguing genuine issues of material fact

on his prima facie case of discrimination existed for trial. The trial court heard oral argument on

the motions, and the parties argued consistently with their briefs.

Before the trial court issued a decision, the parties participated in case evaluation. The case

evaluation panel proposed an award of $20,000 in favor of Branch with respect to his claim against

GCRC, and $20,000 in favor of Branch with respect to his claim against MSAE. Branch rejected

the proposed awards. GCRC rejected the proposed award, and MSAE accepted the proposed

award.

In a September 2021 opinion and order, the trial court granted summary disposition in favor

of defendants. As to MSAE, the trial court concluded that Ronk’s exclusion of Branch from the

list of recommended interviewees was not an adverse employment action because “Ronk did not

have the authority to make an ultimate employment decision regarding [Branch].” The trial court

noted that the terms of the agreement between GCRC and MSAE expressly provided that GCRC

was solely responsible for making the final hiring decision. Thus, the trial court held that Branch

failed to establish a prima facie case of race discrimination against MSAE and that dismissal of

Branch’s claim against MSAE was proper. The trial court also found it was proper to dismiss

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Branch’s claim against GCRC because he failed to create a genuine issue of material fact to support

an inference of unlawful discrimination. The trial court found “[t]he final group of candidates

was . . . diverse, including individuals with educational credentials [Branch] simply did not

possess.” The court noted that although the Board agreed to remove “the educational component

as a requirement,” “a degreed individual in the Manager-Director position remained a desirable

trait to some of the Board members.” The trial court also emphasized that “a finalist, and

ultimately the second choice for the Board, was an African American male.” Therefore, the trial

court found that Branch failed to establish a prima facie case of race discrimination against GCRC.

The appeal in Docket No. 358989 followed.

In October 2021, MSAE moved for case evaluation sanctions and taxable costs. Branch

opposed the motion, arguing that the interest-of-justice exception applied because the case

presented “unusual circumstances” and the law was unsettled. The trial court disagreed with

Branch and granted MSAE’s motion in the amount of $7,673.88. The appeal in Docket No.

359634 followed. This Court consolidated the appeals.2

II. SUMMARY DISPOSITION

Branch argues the trial court erred by granting summary disposition in favor of MSAE and

GCRC.

A. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition. Glasker-

Davis v Auvenshine, 333 Mich App 222, 229; 964 NW2d 809 (2020). “De novo review means

that we review the legal issue independently” and without deference to the trial court. Wright v

Genesee Co, 504 Mich 410, 417; 934 NW2d 805 (2019).

A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim.

Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine

issue regarding any material fact and the moving party is entitled to judgment as a

matter of law. In reviewing a motion under MCR 2.116(C)(10), this Court

considers the pleadings, admissions, affidavits, and other relevant documentary

evidence of record in the light most favorable to the nonmoving party to determine

whether any genuine issue of material fact exists to warrant a trial. A genuine issue

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

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

[Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266 (2013) (quotations

marks and citations omitted).]

The moving party bears the initial burden of production, which may be satisfied “in one of two

ways.” Quinto v Cross & Peters Co, 451 Mich 358, 361; 547 NW2d 314 (1996). “First, the moving

party may submit affirmative evidence that negates an essential element of the nonmoving party’s

2

Branch v Genesee Co Rd Comm, unpublished order of the Court of Appeals, entered December

28, 2021 (Docket Nos. 358989 and 359634).

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claim. Second, the moving party may demonstrate to the court that the nonmoving party’s

evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Id. at

362 (quotation marks and citation omitted). Once the moving party satisfies its burden in one of

those two ways, “[t]he burden then shifts to the opposing party to establish that a genuine issue of

disputed fact exists.” Id. In considering a motion for summary disposition, “[t]he trial court is not

permitted to assess credibility, weigh the evidence, or resolve factual disputes.” Pioneer State Mut

Ins Co v Dells, 301 Mich App 368, 377; 836 NW2d 257 (2013).

B. ANALYSIS

Branch first argues that the trial court erred by granting summary disposition in favor of

MSAE on Branch’s claim of race discrimination under the CRA.

The CRA provides that an “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 . . . race . . . .” MCL 37.2202(1)(a). In

this case, the undisputed evidence establishes that MSAE was not Branch’s employer. Instead,

MSAE was hired to assist the Board with finding the appropriate candidate for the vacant manager-

director position. Nevertheless, the language of MCL 37.2202 “forbids any employer from

engaging in acts of discrimination that are prohibited by the CRA” and “appears to clearly envision

claims by nonemployees . . . .” McClements v Ford Motor Co, 473 Mich 373, 386; 702 NW2d

166 (2005). While nonemployee claims may be viable, “the language of the statute is also clear

in requiring some form of nexus or connection between the employer and the status of the

nonemployee.” Id.

In other words, an employer is liable under the CRA when it utilizes a prohibited

characteristic in order to adversely affect or control an individual’s employment or

potential employment. Thus, the key to liability under the CRA is not simply the

status of an individual as an “employee”; rather, liability is contingent upon the

employer’s affecting or controlling that individual’s work status. Accordingly, an

employer can be held liable under the CRA for discriminatory acts against a

nonemployee if the nonemployee can demonstrate that the employer affected or

controlled a term, condition, or privilege of the nonemployee’s employment. [Id.

at 386-387.]

Thus, because Branch was a nonemployee of MSAE, the relevant threshold question for Branch’s

CRA suit against MSAE is whether MSAE “affected or controlled a term, condition, or privilege

of [Branch’s] employment.” See id. at 387.

While it is clear the Board could decide who to interview and hire, Ronk provided the

Board with a list of initial candidates to interview. Branch was not included on the list. Ronk

denied the Board directed her toward any particular candidates or instructed her to grant “courtesy

interviews.” Rather, Ronk compiled the list herself after conducting preliminary interviews and

later noted it was her decision not to recommend Branch to the Board. Importantly, Mandelaris

testified: “We relied on [MSAE] to refer to us those applicants that [MSAE] decided were the most

qualified. Anthony Branch’s name never came up during that period of time.” The Board was

unaware that Ronk did not select Branch for an interview with the Board until the interview process

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had commenced, which supports the conclusion that Ronk “affected or controlled a term,

condition, or privilege of [Branch’s] employment.” See McClements, 473 Mich at 387.

Branch testified at his deposition that Ronk informed him after his phone interview that he

“would not be advancing to the next round” because “the board and the employees wanted to go

in another direction.” Assuming without deciding that this alleged statement by Ronk is

substantively admissible evidence that may be considered when reviewing a (C)(10) motion, see

MCR 2.116(G)(6), at most it creates a genuine issue of material fact. Ronk did not recall making

such a statement to Branch, and other admissible evidence established that Ronk decided alone

that Branch should not advance to the second round of interviews. While Dickerson was surprised

to find out at the first round of Board interviews that Branch was not selected, Dickerson thought

they were “too far in the process” to offer an interview to Branch. Thus, although the Board still

could have chosen to interview Branch for the manager-director position, admissible evidence

supports that the Board played no role in Ronk’s decision that Branch would not advance to an

interview with the Board. When viewing this evidence in a light most favorable to Branch, a

question of fact exists as to whether MSAE, through Ronk, affected or controlled Branch’s ability

to be hired as manager director. See McClements, 473 Mich at 387. Accordingly, Branch was not

precluded from suing MSAE for race discrimination under the CRA. The question then turns to

whether MSAE and GCRC were otherwise entitled to summary disposition on Branch’s claims.

As stated earlier, the CRA provides that an “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 . . . race . . . .” MCL

37.2202(1)(a). Branch alleges that MSAE and GCRC violated the CRA by failing to consider him

for the manager-director position because of his race.

“Proof of discriminatory treatment in violation of the CRA may be established by direct

evidence or by indirect or circumstantial evidence.” Sniecinski v Blue Cross & Blue Shield of

Mich, 469 Mich 124, 132; 666 NW2d 186 (2003). Branch did not allege that he had direct evidence

of race discrimination. Without direct evidence of discrimination, a plaintiff must instead proceed

under the burden-shifting framework of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct

1817; 36 L Ed 2d 668 (1973). Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001).

“The McDonnell Douglas approach allows a plaintiff to present a rebuttable prima facie case on

the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful

discrimination.” Id. (quotation marks and citation omitted). To make this prima facie showing,

“a plaintiff must present evidence that (1) [he] belongs to a protected class, (2) [he] suffered an

adverse employment action, (3) [he] was qualified for the position, and (4) [his] failure to obtain

the position occurred under circumstances giving rise to an inference of unlawful discrimination.”

Sniecinski, 469 Mich at 134. If a plaintiff sufficiently establishes a prima facie case of

discrimination, a rebuttable presumption of discrimination exists. Hazle, 464 Mich at 464. The

burden then shifts to the defendant to “articulate a legitimate, nondiscriminatory reason for its

employment decision.” Id. If a defendant produces the necessary evidence, the burden shifts back

to the plaintiff to show that the reason offered by the defendant was pretextual for unlawful

discrimination. Id. at 465-466.

The trial court granted summary disposition in MSAE’s favor on the second element of the

prima facie case, concluding that no genuine issue of material fact existed as to whether MSAE

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took an adverse employment action because “Ronk did not have the authority to make an ultimate

employment decision” involving Branch. Branch argues that this was in error because Ronk

admitted that it was her decision alone to deny Branch an interview with the Board.

“There is no exhaustive list of what constitutes adverse employment actions.” Chen v

Wayne State Univ, 284 Mich App 172, 201; 771 NW2d 820 (2009). An adverse employment

action must be “materially adverse to the employee,” akin to “termination of employment, a

demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or other indices that might be unique

to a particular situation.” Id. at 201-202 (quotation marks and citations omitted). Denial of a

promotion may also constitute an adverse employment action. See Hazle, 464 Mich at 467. In

MSAE’s view, however, Ronk’s decision to deny Branch an interview was not an adverse

employment action because GCRC retained the ultimate authority to interview and hire Branch.

Viewing the evidence in the light most favorable to Branch, Ronk’s choice not to select Branch

for an interview essentially guaranteed that Branch would not receive the manager-director

promotion, as the Board deferred to Ronk’s initial screening decisions. Under the circumstances

of this case, including the fact that Ronk testified that it was her decision to deny Branch an

interview, there is a genuine issue of material fact as to whether MSAE, through Ronk, took an

adverse employment action against Branch. Thus, the trial court erred by granting summary

disposition in MSAE’s favor on this basis. Nonetheless, for the reasons discussed below, summary

disposition in favor of MSAE was proper. See Gleason v Dep’t of Transp, 256 Mich App 1, 3;

662 NW2d 822 (2003) (“A trial court’s ruling may be upheld on appeal where the right result

issued, albeit for the wrong reason.”).

The parties do not dispute that Branch is a member of a protected class and that he was

qualified for the manager-director position. The remaining dispute rests on the fourth element—

whether Ronk’s decision not to allow Branch to interview with the Board and the Board’s decision

to hire Peivandi for the manager-director position give rise to an inference of unlawful

discrimination to sustain Branch’s claims against GCRC and MSAE. “An employer’s differing

treatment of employees who were similar to the plaintiff in all relevant respects, except for their

race, can give rise to an inference of unlawful discrimination.” Hecht v Nat’l Heritage Academies,

Inc, 499 Mich 586, 608; 886 NW2d 135 (2016). “In order for this type of ‘similarly situated’

evidence alone to give rise to such an inference, however, our cases have held that the ‘comparable’

employees must be ‘nearly identical’ to the plaintiff in all relevant respects.” Id., quoting Town v

Mich Bell Tel Co, 455 Mich 688, 699-700; 568 NW2d 64 (1997) (opinion by BRICKLEY, J.).

Although “a plaintiff is not required to provide evidence that he is at least as qualified as the

successful candidate in order to establish a prima facie case under McDonnell Douglas,” a plaintiff

also cannot make out a prima facie case

merely by showing that he was qualified for the position and that a nonminority

candidate was chosen instead. While a plaintiff is not required to show

circumstances giving rise to an inference of discrimination in any one specific

manner, the plaintiff’s burden of production remains to present evidence that the

employer’s actions, if otherwise unexplained, are more likely than not based on the

consideration of impermissible factors. In short, a plaintiff must offer evidence

showing something more than an isolated decision to reject a minority applicant.

As a matter of law, an inference of unlawful discrimination does not arise merely

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because an employer has chosen between two qualified candidates. Under such a

scenario, an equally—if not more—reasonable inference would be that the

employer simply selected the candidate that it believed to be most qualified for the

position. [Hazle, 464 Mich at 470-471 (quotation marks, citations, and footnote

omitted).]

In this case, Branch failed to present evidence from which a jury, if unaware of defendants’

reasons, could infer unlawful discrimination with respect to the application and interview selection

process. The Board at first agreed the manager director must possess a bachelor’s degree “in a

field related to [the manager director’s] job functions.” Nonetheless, after a May 2018 meeting,

the Board changed the job description by removing the educational requirement so Branch would

not be excluded from consideration for the manager-director position. And after seeking advice

from Poplar about places to market the job opening, Ronk added two posting locations designed

to attract minority candidates.

Ronk received 95 applications, including one from Branch. Using the criteria established

by the Board, Ronk decided to interview 15 of the candidates by phone. During a 20-minute phone

interview with Branch, Ronk asked Branch multiple questions. In his deposition, Branch denied

Ronk did or said “anything during th[e] phone conversation that [he] had with her that led [Branch]

to believe that she was biased against African Americans.” Branch also acknowledged that Ronk,

who worked for an independent company not directly affiliated with GCRC, was a “stranger” to

him.

Further, the seven candidates chosen by Ronk for the Board to interview all had higher

levels of education than Branch, as well as management experience and/or an engineering

background. And of the three finalists, Peivandi had a bachelor’s degree and master’s degree in

civil engineering, Riley had a bachelor’s degree and master’s degree in business administration,

and Gillis had a bachelor’s degree in construction engineering and was pursuing a master’s degree

in public administration. Although the Board removed a bachelor’s degree as a requirement for

the manager-director position, the posting noted that a bachelor’s degree remained a desired

qualification, and expressed a preference for individuals with a civil engineering background and

master’s degree. Ronk could consider these educational and experience-based qualifications when

screening applicants, and the Board was just as empowered to so when choosing between

interviewees. After the final round of interviews, the Board discussed the candidates at length and

unanimously decided to offer Peivandi the position, with Riley as the Board’s second choice.

Thus, even when taking the evidence in a light most favorable to Branch, the record

establishes GCRC changed the job description to ensure Branch could be considered for the

manager-director position. Branch does not argue the seven candidates MSAE forwarded to

GCRC were not qualified—nor could he—but only that he was more qualified because of his level

of experience with GCRC. When it came to experience, however, Branch did not so exceed the

selected candidates as to give rise to the inference that MSAE excluded him from the hiring pool

based on impermissible factors. While Branch had more years of experience with GCRC than any

other candidate, the record reflects that Ronk chose individuals who had higher levels of education

than Branch and candidates who had management experience. In situations such as this one, where

there were multiple qualified candidates, it is equally, if not more reasonable to infer that Ronk

selected the candidates she believed to be best qualified for the position of manager director than

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that she excluded Branch from the candidate pool based on unlawful discrimination. See Hazle,

464 Mich at 471.

Further undermining any inference of unlawful discrimination is that the fact that Riley,

the Board’s second choice for the position, is a member of the same protected class as Branch.

See Lytle v Malady, 458 Mich 153, 184; 579 NW2d 906 (1998) (finding no evidence that gender

was a factor in the plaintiff’s discharge in part because some of her duties were redistributed to

members of the same protected class). Although Branch argues that Riley was only interviewed

by the Board to avoid claims of race discrimination, this assertion is speculative, unsupported by

evidence, and insufficient to create a genuine issue of material fact. See McNeill-Marks v

Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 16; 891 NW2d 528 (2016). While Poplar later

alleged Riley had been disingenuous about his level of management experience, the undisputed

evidence establishes the Board was unaware of this issue until after Peivandi was selected to be

manager director. The Board ranked Riley as their second choice for manager director, and

Peivandi inquired into hiring Riley for a high-level management position, at which point Poplar

discovered issues with Riley’s resume. Because Riley’s resume supports he was qualified for the

manager-director position and because the Board considered him to be a qualified and impressive

candidate, Branch’s allegations that Riley was interviewed solely to conceal the Board’s

discriminatory intent do not create a genuine issue of material fact. See Hazle, 464 Mich at 474-

475 (holding “any subsequently discovered shortcomings” in a candidate’s application materials

“calling into question her qualification” could not “possibly serve as a basis for an inference of

unlawful discrimination”).

In urging this Court to recognize a genuine issue of material fact, Branch also relies on

deposition testimony about general discrimination among the GCRC. For instance, Poplar testified

that a discriminatory “mindset” led Ronk and the Board to eliminate Branch from consideration.

Poplar and Dickerson testified that Johnson told them that Arceo was a racist, and Branch testified

that Daly told him that Arceo does not like African-Americans. Dickerson believed Branch was

more qualified than Peivandi and opined that Branch’s race played a role in Branch not receiving

the manager-director position. These assertions, again, rely on speculation, and are unsupported

by admissible evidence. Considering that the Board changed the job description to accommodate

Branch, that the final candidates for the manager-director position all had higher educational

qualifications than Branch, and that the runner-up selection was another African-American male,

the conclusory opinions of discrimination are insufficient to create a genuine issue of material fact.

Branch has not set forth a prima facie case from which a reasonable fact-finder could infer that he

was denied an interview and promotion because of his race. Viewed in the light most favorable to

Branch, the evidence evinces only an “isolated decision to reject a minority applicant.” See Hazle,

464 Mich at 471. Accordingly, summary disposition in favor of MSAE and GCRC was proper.

III. CASE-EVALUATION SANCTIONS

In Docket No. 359634, Branch argues that the trial court erred by awarding case-evaluation

sanctions to MSAE.

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A. STANDARDS OF REVIEW

“A trial court’s decision whether to grant case-evaluation sanctions under MCR 2.403(O)

presents a question of law, which this Court reviews de novo.” Smith v Khouri, 481 Mich 519,

526; 751 NW2d 472 (2008). We review a trial court’s decision to invoke the interest-of-justice

exception for an abuse of discretion. Sabbagh v Hamilton Psychological Servs, PLC, 329 Mich

App 324, 364; 941 NW2d 685 (2019). An abuse of discretion occurs when the trial court’s

decision falls outside the range of reasonable and principled outcomes. Id. at 355-356.

B. ANALYSIS

Parties to case evaluation must “file a written acceptance or rejection of the panel’s

evaluation with the [alternative dispute resolution] clerk within 28 days after service of the panel’s

evaluation.” MCR 2.403(L)(1). “If all the parties accept the panel’s evaluation, judgment will be

entered in accordance with the evaluation, unless the amount of the award is paid within 28 days

after notification of the acceptances, in which case the court shall dismiss the action with

prejudice.” MCR 2.403(M)(1). “If all or part of the evaluation of the case evaluation panel is

rejected, the action proceeds to trial in the normal fashion.” MCR 2.403(N)(1).

MCR 2.403(O)(1), which was in effect at the time of case evaluation,3 explained when

costs may be assessed for failure to accept a case-evaluation award:

If a party has rejected an evaluation and the action proceeds to verdict, that

party must pay the opposing party’s actual costs unless the verdict is more favorable

to the rejecting party than the case evaluation. However, if the opposing party has

also rejected the evaluation, a party is entitled to costs only if the verdict is more

favorable to that party than the case evaluation.

The term “verdict” includes “a judgment entered as a result of a ruling on a motion after rejection

of the case evaluation.” MCR 2.403(O)(2)(c). “[A]ctual costs” include “those costs taxable in any

civil action,” and “a reasonable attorney fee . . . for services necessitated by the rejection of the

case evaluation.” MCR 2.403(O)(6).

In May 2021, the parties participated in case evaluation. The case-evaluation panel

recommended a proposed award of $20,000 in favor of Branch with respect to his claim against

MSAE. Branch rejected the proposed award, and MSAE accepted the proposed award. In

September 2021, the trial court granted MSAE’s motion for summary disposition and dismissed

the case. Dismissal of Branch’s claim constituted a verdict under MCR 2.403(O)(2)(c) and was

clearly less favorable to Branch than receiving $20,000. Thus, MSAE was entitled to case-

evaluation sanctions, including reasonable attorney fees and taxable costs. See MCR 2.403(O)(1).

The trial court granted MSAE’s motion for case-evaluation sanctions and taxable costs.

3

MCR 2.403 was amended in 2022 to omit all of MCR 2.403(O). The trial court granted MSAE’s

motion for case evaluation sanctions in November 2021, while MCR 2.403(O) remained in effect.

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Branch, however, argues that the trial court abused its discretion by declining to apply the

interest-of-justice exception, which would have allowed Branch to avoid otherwise mandatory

case-evaluation sanctions. “If the ‘verdict’ is the result of a motion as provided by subrule

(O)(2)(c), the court may, in the interest of justice, refuse to award actual costs.” MCR

2.403(O)(11). “The interest-of-justice exception found in MCR 2.403(O)(11) has been interpreted

in the context of the analogous offer-of-judgment rule, MCR 2.405(D), because both serve

identical purposes of deterring protracted litigation and encouraging settlement.” Sabbagh, 329

Mich App at 365 (quotation marks, citation, and alteration omitted). In accordance with that

application, the interest of justice does not preclude an award of actual costs absent “unusual

circumstances.” See Derderian v Genesys Health Care Sys, 263 Mich App 364, 390; 689 NW2d

145 (2004) (quotation marks and citation omitted). That is, “a grant of fees . . . should be the rule

rather than the exception.” Id. (quotation marks and citation omitted).

Factors such as the reasonableness of the offeree’s refusal of the offer, the

party’s ability to pay, and the fact that the claim was not frivolous are too common

to constitute the unusual circumstances encompassed by the interest of justice

exception. However, the exception may be applicable when an offer is made in the

spirit of gamesmanship . . ., rather than a sincere effort at negotiation, or when

litigation of the case affects the public interest, such as a case resolving an issue of

first impression. [Id. (quotation marks and citations omitted).]

While the trial court erred by failing to recognize there was a question of fact as to whether MSAE

took an adverse employment action against Branch, the trial court’s error does not transform this

case into one involving “unusual circumstances,” nor does this case present an issue of first

impression. Nearly every case presents, in some way, a unique set of facts to apply to the

governing law. But here, the relevant law is well settled: McClements makes clear that the CRA

can apply to nonemployees, and the cases applying the McDonnell-Douglas test to CRA

discrimination claims are commonplace. The circumstances of this case are not “so unusual as to

compel” a conclusion that the trial court’s refusal to invoke the interest-of-justice exception was

an unreasonable outcome. See Haliw v Sterling Hts (On Remand), 266 Mich App 444, 450; 702

NW2d 637 (2005). Thus, the trial court did not abuse its discretion by declining to apply the

interest-of-justice exception and by awarding case-evaluation sanctions to MSAE.

IV. CONCLUSION

In Docket No. 358989, we affirm the trial court’s order granting summary disposition in

favor of MSAE and GCRC. In Docket No. 359634, we affirm the trial court’s order awarding

case-evaluation sanctions to MSAE.

/s/ Kristina Robinson Garrett

/s/ Colleen A. O’Brien

/s/ James Robert Redford

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