20230112_C357792_57_357792.Opn.Pdf

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

MARNA MUHAMMAD, UNPUBLISHED

January 12, 2023

Plaintiff-Appellant,

v No. 357792

Wayne Circuit Court

DETROIT RENEWABLE ENERGY, LLC and LC No. 19-009648-CD

DETROIT THERMAL, LLC,

Defendants-Appellees.

Before: CAVANAGH, P.J., and O’BRIEN and RICK, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order dismissing her claims for unlawful

discrimination on the basis of race, gender, age, and religion under the Elliot Larsen Civil Rights

Act (ELCRA), MCL 37.2101 et seq., hostile work environment claims based on the same protected

characteristics, and retaliation. We affirm.

I. BACKGROUND

Plaintiff—an older, African American, Muslim, female—worked at Detroit Thermal for

13 years until she terminated on February 6, 2019. Detroit Thermal is part of the larger Detroit

Renewable Energy. Plaintiff started as an entry-level operator in 2005, and was promoted to shift

supervisor in 2006. As a shift supervisor, plaintiff reported directly to the plant manager, Ron

Kentala, who was a white male.

According to plaintiff, she suffered from numerous instances of discrimination while

working as a shift supervisor. In 2008, plaintiff filed a formal complaint with defendants in which

she alleged that she was being “harassed regarding an alleged outside job,” while “other male

employees . . . who have outside jobs” were not experiencing any “adverse consequences.” The

letter also alleged that defendants had “begun to harass and terminate black employees at an

inconsistent level to that of white employees,” and that she felt she had “become a victim of this

discrimination and harassment.” Plaintiff said that she also filed a complaint about this with the

Equal Employment Opportunity Commission (EEOC), but was unable to produce that complaint

during this litigation.

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Plaintiff also alleged that Kentala sent inappropriate sexual and harassing text messages

and emails to plaintiff while she was a shift supervisor, but she was unable to produce the texts or

emails. She further recalled “one time [Kentala] called her a bitch.” Plaintiff never reported any

of these inappropriate communications, however.

According to plaintiff, in another instance of discrimination, Kentala left a less experienced

white male shift supervisor in charge of the plant instead of plaintiff while Kentala was on

vacation. Plaintiff said that this happened on more than one occasion.

Plaintiff was eventually promoted to plant manager of Detroit Thermal in 2016, replacing

Kentala. According to plaintiff, Kentala was reassigned to a different plant, and eventually became

a shift supervisor working under plaintiff. In a letter from defendants to Kentala dated March 23,

2016, defendants stated that Kentala intended to “voluntarily resign” but agreed to “a transition

period” to “effectuate an efficient transition of [Kentala’s] responsibilities.” The letter was

accepted by Kentala on March 25, 2016.

Plaintiff’s salary when she started as plant manager was $130,000, but shortly into her

tenure, she found out there was a maintenance supervisor making $140,000. Plaintiff believed that

this was unfair and asked for a pay raise, which was granted “a few months later,” so that she was

earning $140,000 as well.

According to plaintiff, the plant thrived under her management. She testified that she

doubled the “steam production” of her plant “over that three years [she] was managing,” and that

she had never had any “reportable incidences” with regard to safety while she was plant manager,

nor did she have any “emission violations.”

She did, however, experience certain problems as plant manager. For instance, plaintiff

testified at length about problems she had with Don Meeks, an African American male, who

worked as a shift supervisor under plaintiff and was thus plaintiff’s subordinate. She said that

“Meeks was a problem for [her] ever since [she] took the position as plant manager.” Plaintiff

described Meeks as rude, disrespectful, and insubordinate, and plaintiff believed that he was trying

to “sabotage” the plant to make plaintiff look bad. Plaintiff believed that Meeks was insubordinate

towards her because she was a woman, and he resented having “a female in charge over him.”

Plaintiff said that she also had problems with another shift supervisor, Nicole Sligh, who

plaintiff described as being insubordinate as well. Plaintiff believed that Sligh’s insubordination

was done “to support Don Meeks because they were very close friends.” Plaintiff believed that

Meeks and Sligh “were working together to sabotage [the plant’s] operations because they were

unhappy with [plaintiff] being their manager.”

Plaintiff also discussed issues she had with other subordinates while plant manager.

Plaintiff testified that an hourly employee named Anthony Harris—an African American male—

was generally insubordinate and disrespectful towards her. She testified that Harris also filed

several union grievances against her, though she could not “recall the specific statements of his

Grievances” at her deposition. She said at her deposition that other union-represented hourly

employees also filed grievances against her. Plaintiff specifically remembered one grievance

against her was filed after she hired her son-in-law, but she said that grievance was dismissed

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because she got permission to hire him before the process started. Plaintiff also acknowledged

that, at another point, the union raised a complaint that she was showing favoritism to her son-in-

law with regard to his time and attendance, but that too was dismissed.

Plaintiff testified about another employee she had issues with, Mike Hoffman, who was

also a union member. Plaintiff said that Hoffman was “very angry and hostile” towards plaintiff

because she had written him up before and made changes to his department. She testified that

Hoffman’s “work ethic was lacking,” and when she tried to push “the hourly people” to “operate

more efficiently” at the direction of management, she “got a lot of push back because they would

rather sit down than stand up and do the job correctly.” She described the “push back” she was

getting as a result of “a culture change” she was enforcing.

Plaintiff also testified about a discriminatory comment that Grayson Goerke, a white male,

made towards plaintiff. Goerke worked in a different plant than plaintiff, but while plaintiff was

at Goerke’s plant one time, he “commented about [plaintiff’s] butt in a very sexual manner.”

Plaintiff further testified that Goerke had been written-up for “telling one of his employees to suck

his personal part,” and that the employees who worked under Goerke “complained a lot.” Another

employee testified that Goerke also made “racial statements,” but the employee could not

remember “any specifics.” Despite all of this, Goerke was promoted.

Plaintiff further recalled that while she was plant manager, there was mold in her office.

Plaintiff was uncertain whether she first discovered the mold in 2017 or 2018, but was certain that

it was never remediated while she was there. Plaintiff acknowledged, however, that she was not

forced to remain in that office, and testified that she was relocated to a different work area. Others

testified that the current plant manager was still working from the office that plaintiff moved to,

that the mold in plaintiff’s old office was remediated in 2020, and that the office is now the shift

supervisors’ office.

Plaintiff also testified about a “managers’ meeting” in which bringing in younger people

to work at Detroit Thermal was discussed. Plaintiff said that, at the meeting, they discussed “the

fact that age had become an issue and we wanted younger people.” She said that “[t]hey were

even discussing starting an apprenticeship program” to “bring in younger people.”

In addition, she recounted problems she had getting a credit card as plant manager, and

how no other plant managers had that problem. Plaintiff testified that she repeatedly requested a

credit card, and that she was the only plant manager without one. Plaintiff said that “[t]he only

difference” between her and the other managers who had credit cards “was that [she] was African

American” and “female.”

A. EVENTS LEADING TO PLAINTIFF’S TERMINATION

Carl Lockhart, a white male, became the interim chief operating officer (COO) of Detroit

Renewable Energy in October 2018. Lockhart testified that during his time as COO from October

2018-December 2018, he “noticed there was some issues” at plaintiff’s plant “with plant personnel,

the union relationship, safety aspect and overall process management.”

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On December 4, 2018, plaintiff sent Lockhart an email stating that she was “experiencing

difficulties manning and running” the plant “without adequate help from the staff.” She explained

in her email that she was “always in fire-fighter mode” with her “boots constantly on the ground

to the point where [she was] unable to focus on managing the facility versus literally operating it.”

Plaintiff testified that when she sent the December 4 email, she was “short-handed,” “didn’t have

enough staff,” and “didn’t have enough funds.” She explained that she said she was in “the

firefighting mode” because some of the equipment “was starting to fail” and they “didn’t have the

money to make the repairs.” She said that she “had to operate the plant” rather than manage it

because they were so short-staffed.

Plaintiff also testified that she asked Lockhart for additional help at the plant. She said that

she requested a maintenance supervisor, but never got one. Lockhart acknowledged that plaintiff

had requested a maintenance manager while she was plant manager, and explained that defendants

were looking for one but had not found the right fit before plaintiff was terminated. After plaintiff

was terminated and the new manager took over, Detroit Thermal hired a maintenance manager,

electrician, and an additional operator, which added roughly $400,000 to the labor budget.

Plaintiff also said that she spoke to Lockhart about Meeks and let Lockhart know that

plaintiff “felt Meeks was sabotaging our operations in the plant.”

Lockhart testified that he had discussions with plaintiff and explained to her that she needed

“to lead your people rather than manage your people,” and that the plant was her responsibility so

she needed to “use your people to operate that plant.” He elaborated that the problem was that

plaintiff “took a lot onto herself” and “didn’t use her people.” He said that plaintiff needed to

“give her people the tools” to do their jobs successfully but “she wasn’t understanding about the

tools.” Lockhart later reiterated that he thought plaintiff was capable of “running the plant, but it[]

[was] the leadership of the plant, going to the next level,” that was the issue.

Wendy Trust, a white female who worked as a Human Resource Manager with defendants,

testified that she referred plaintiff to an executive coach, and explained that she did so “to enhance

[plaintiff’s] skills as a manager.” Plaintiff acknowledged that she was not required to meet with

the executive coach, and that she agreed to do so because she thought it could benefit her. Plaintiff

testified that she initially viewed meeting with the executive coach “as a positive.” Plaintiff also

testified that she “asked for reengagement” of the executive coach later, but “the company never

responded,” so that never materialized.

Richard Pucak, a white male who worked as the executive vice president of marketing and

special projects for Detroit Renewable Energy before plaintiff was terminated, testified that

Lockhart asked about the possibility of terminating plaintiff in the “first quarter of 2018.” Pucak

testified that Lockhart wanted to know Pucak’s thoughts “about how [plaintiff] was doing.”

According to Pucak, he told Lockhart that he “had heard that the working environment” at

plaintiff’s plant “was relatively toxic,” and that there were some operational issues. He later said

again that he had heard that “the environment of the plant seemed to be very toxic, and very

authoritative.” He explained that the employees felt afraid to talk about any problems they were

having. He said that he had heard these concerns from employees who had expressed them to him.

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Lockhart testified about an example in which he had personally observed plaintiff’s

management style to be authoritative. Lockhart recounted that at a shift supervisor meeting, he

asked “what is going on in the plant,” and the shift supervisors “looked at [plaintiff] and asked

permission to talk.” Lockhart said that was “interesting to [him]” because he would have thought

that the shift supervisors “would have been more than happy to talk about . . . what [their] workday

was like.”

Pucak testified that Lockhart spoke with him about plaintiff again in early 2019. Trust was

also at the meeting. According to Pucak, they told him that they were considering terminating

plaintiff and asked for recommendations for potential replacements. Pucak testified that he did

not “make a recommendation one way or the other.” He only “made statements about what [he]

knew about the situation at the plant.”

Plaintiff recalled a meeting that she had with Lockhart and Pucak shortly before she was

terminated at which her Muslim religion came up. Plaintiff testified that, during their meeting,

“the call to prayer went off on [her] cellphone.” She explained that she “immediately jumped and

turned it off and apologized” for the interruption. According to plaintiff, the following exchange

then occurred:

[Lockhart] was saying he was familiar with the calls to prayer, because he was in

the military and he heard the call to prayer five time a day throughout his service

in the military.

And he relayed a story to me about a time when they were on the road and

one of their Humvees came up missing. They thought somebody sold [sic: stole]

the Humvee; so they all, you know, went looking for him and once they finally

found the Humvee . . . driver, they found him praying. The guy was Muslim and

he had stopped on the side of the road to say prayer.

And Carl Lockhart commented, you know, he doesn’t know how you got to

run a business and you got to stop for prayer five times a day, how do you run a

business like that?

Plaintiff said that this comment made her feel “incredibly small” because she felt like Lockhart

was saying that Muslims “don’t know the proper procedures for, you know, working and efficiency

and effectiveness if you got to stop to pray.”

Lockhart recalled the conversation with plaintiff that took place after the “call to prayer

went off on her phone,” but his version differed slightly from plaintiff’s. According to Lockhart,

he asked plaintiff if she needed to leave, and she said no. He then told her a story about when he

was stationed in Kuwait. He said that the point of the story

was trying to explain to her I understand the Muslim religion because I spent six

months living next to a mosque in Kuwait. I dealt with the Kuwaiti Navy all the

time every Sunday for six months. I understand the Muslim religion.

My story was to emphasize a lot of people don’t understand the Muslim religion.

There was a story that my security team was offloading some vehicles, and the

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vehicles were being offloaded and they were missing one. When they finally found

the missing vehicle, they found the driver, and pulled over to the side of the road

and he was praying.

Lockhart did not recall saying that stopping to pray could affect one’s workday or productivity.

Pucak acknowledged that he was with Lockhart and plaintiff when plaintiff’s call for prayer went

off on her cell phone, and his recollection of Lockhart’s story mirrored Lockhart’s telling.

Shortly before plaintiff was terminated in 2019, she received a $30,000 bonus. Trust

testified that the bonus “was directed at the performance of the plants, not the individuals.” She

explained that the plants needed to hit certain performance metrics and the employee needed to

stay with the company through a certain date to collect the bonus. Lockhart confirmed that the

bonus was not based on “individual performance,” but “company-wide performance.

B. PLAINTIFF’S TERMINATION

Plaintiff was terminated on February 6, 2019. Plaintiff testified that Lockhart and Trust

were present when she was terminated. According to plaintiff, when they told her that she was

being terminated, she asked if it was something she did, and they both said “no, this had nothing

to do with your performance.”

Plaintiff also testified that she had “never had an unsatisfactory employee review or

evaluation from Detroit Thermal, period.” Lockhart confirmed this, and explained that defendants

did not have any type of formal employee-review policy. Plaintiff further testified that she never

received a “job-in-jeopardy letter,” and Lockhart confirmed that plaintiff did not receive any notice

that her job was in jeopardy before she was terminated. Trust testified that she did not know if

plaintiff was given a “job-in-jeopardy letter,” but explained that something like that would not

typically be given to someone in a management position. Plaintiff also testified that she was not

offered any other position in the company before she was terminated, which Lockhart confirmed.

Plaintiff testified that she believed she was terminated because of her age, race, gender, or

religion, even though she was not aware of who was replacing her at the time. When she found

out that she was replaced by Philip Malara, a young, white, Catholic male, plaintiff believed it was

because defendants “wanted a young white male in that position,” and she claimed that her belief

was confirmed “because that’s the direction they went in. They actually did it.”

Lockhart testified that plaintiff was terminated because the company was “going in a

different direction, needed new direction and needed a quick turnaround in that company.” He

explained that the “new direction” was based upon defendants being the sole supplier of steam “to

the City of Detroit because of the closing of” another plant. He continued to explain that, to go in

this new direction, Detroit Thermal “needed additional process management, safety, employee

relations, union employee relations, more focus on that at the” plant.

Trust similarly testified that plaintiff was terminated “because the business was moving in

a different direction.” She explained that “[t]here was a reorganization of the business that was

happening” and they needed to assess who would be able to lead the business after the

“reorganization change.” Trust said that plaintiff was not terminated based on her performance.

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She later elaborated that plaintiff was terminated because “the executive team” was “looking at

some of the inefficiencies in the business that they felt needed a course redirection.” She listed

some of those “inefficiencies” as a poor relationship and engagement with the unions, poor

engagement with “the employee base,” and a “[la]ck of structure or implementation of policies

and procedures.”

When asked who made “the judgment or evaluation” that plaintiff could not provide what

was needed for the new direction defendants were going, Lockhart said that it was the executive

committee—himself, Todd Grzech (Detroit Renewable Energy’s CEO), and Thomas Cinzori

(Detroit Renewable Energy’s CFO). Grzech, however, testified that he did not have a vote or veto

about whether to terminate plaintiff. Cinzori similarly testified that he did not have any input into

plaintiff’s termination.

C. REPLACING PLAINTIFF

Lockhart testified that the candidates defendants considered to replace plaintiff were Kenya

Berman, Adam Collette, and Phil Malara.

Kenya Berman, an African American male, testified that he was offered him the job of

plant manager. Berman testified that he declined the position of plant manager and did not attempt

to negotiate the salary because he simply did not want “to take on such a role.” According to

Berman, he was told that if he took the position, defendants would make plaintiff maintenance

manager.

Collette, a white male who worked as a shift supervisor under plaintiff, testified that he

was never formally considered for the position of plant manager, but Lockhart had asked him if he

would be interested in the position at some point. Trust confirmed that Collette was considered

for the position, but they determined that “he was too junior for the role.”

Defendants eventually offered the manager position to Malara on February 5, 2019, with a

starting salary of $110,000, which was accepted. Malara testified that he started working for

Detroit Renewable Energy in 2009, in the subsidiary Hamtramck Energy Services (HES), as an

entry level operator, which was a union position. He became “supervisor delegate” in 2016. Then,

in 2017, Malara became the site manager at HES. Malara testified that he worked at HES until

2019.

Malara and Pucak both testified that they were second cousins. According to Pucak, he

advised Trust and Lockhart of his familial relation to Malara after Berman turned down the plant

manager position and Malara’s name came up as a potential candidate. As discussions about

Malara moved forward, Pucak recused himself from the decision to hire Malara. Pucak testified

that he recommended that the offer to Malara be at a salary of $105,000.

D. PROCEDURAL HISTORY

Plaintiff filed her complaint on July 17, 2019, alleging six counts. Plaintiff’s first four

counts alleged various forms of discrimination under the ELCRA. Count I alleged age

discrimination, Count II alleged race discrimination, Count III alleged gender discrimination, and

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Count IV alleged religious discrimination. All four counts also alleged that the discrimination

subjected plaintiff to a hostile work environment. Count V of plaintiff’s complaint alleged a claim

for retaliation under the ELCRA.

On March 10, 2021, following discovery, defendants moved for summary disposition

under MCR 2.116(C)(10) on all of plaintiff’s claims, and plaintiff filed a response on April 16,

2021. The trial court held a hearing on defendants’ motion on April 22, 2021, and took the matter

under advisement.

The court issued its written opinion on June 22, 2021. The court first addressed plaintiff’s

claims of discrimination based on race, age, gender, and religion. The court began by noting that

all of plaintiff’s discrimination claims were based on indirect evidence of unlawful discrimination,

which required applying the McDonnell Douglas1 burden-shifting framework. Doing so, the court

concluded that plaintiff failed to present evidence establishing the fourth factor—that plaintiff was

terminated under circumstances giving rise to an inference of unlawful discrimination. The court

reasoned that the evidence presented by defendants established that plaintiff was terminated

because “she created a toxic or inappropriately authoritative work environment,” and reasoned that

plaintiff did not address this claim. The court opined that plaintiff instead focused on comparing

herself to Malara (a young white male), but emphasized that, in so doing, plaintiff ignored that the

job was first offered to Berman (an older African American male). In further rejecting plaintiff’s

argument, the court noted that Malara was qualified for the position of plant manager, such that

ultimately offering the job to him—particularly when it was first offered to Berman—did not give

rise to an inference of discrimination. The court then turned to plaintiff’s “lengthy list of

discriminatory practices,” and concluded that none of them give rise to an inference of unlawful

discrimination. The court alternatively reasoned that even if plaintiff could establish a prima facie

case of discrimination, defendants had articulated a legitimate, nondiscriminatory reason for her

termination—“Plaintiff’s issues with the union and her management style, which was found to be

toxic and inhospitable to employees”—and plaintiff failed to create a question of fact whether

discrimination was a motivating factor in her termination.

The court then turned to plaintiff’s hostile work environment claims based on her race,

gender, age, and religion. The court walked through plaintiff’s arguments, but concluded that all

of the claims failed for the same reason—plaintiff failed to present evidence that a reasonable

person in plaintiff’s position would perceive the communications or conduct she cited as

substantially interfering with plaintiff’s employment or creating a hostile employment

environment. For plaintiff’s retaliation claim, the trial court dismissed it because “there [was]

absolutely no evidence to support Plaintiff’s claim that she was terminated” because of engaging

in protected activity.

Plaintiff now appeals as of right.

1

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

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II. SUMMARY DISPOSITION

On appeal, plaintiff argues that the trial court erred by dismissing her discrimination claims,

her hostile work environment claims, and her retaliation claim. We disagree.

A. STANDARD OF REVIEW

A trial court’s decision on a motion for summary disposition is reviewed de novo.

Michigan Assn of Home Builders v City of Troy, 504 Mich 204, 211; 934 NW2d 713 (2019).

Defendants moved for summary disposition under MCR 2.116(C)(10). In Maiden v Rozwood, 461

Mich 109, 119-120; 597 NW2d 817 (1999), our Supreme Court explained the process for

reviewing a motion filed under MCR 2.116(C)(10):

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the

complaint. In evaluating a motion for summary disposition brought under this

subsection, a trial court considers affidavits, pleadings, depositions, admissions,

and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most

favorable to the party opposing the motion. Where the proffered evidence fails to

establish a genuine issue regarding any material fact, the moving party is entitled

to judgment as a matter of law. [Maiden, 461 Mich at 120.]

A genuine issue of material fact exists when, after viewing the evidence in a light most favorable

to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt,

LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

B. UNLAWFUL DISCRIMINATION CLAIMS

Plaintiff first challenges the trial court’s dismissal of her claims of unlawful discrimination

under the ELCRA. MCL 37.2202(1)(a) provides, in relevant part:

(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.

“In some discrimination cases, the plaintiff is able to produce direct evidence of racial

bias.” Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). When no direct

evidence of unlawful discrimination is available, however, a plaintiff must proceed through the

McDonnell Douglas framework. Id. 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.” DeBrow v Century 21 Great Lakes, Inc,

463 Mich 534, 537-538; 620 NW2d 836 (2001). To establish a prima facie case of discrimination

under the McDonnell Douglas framework, a plaintiff must present evidence that

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

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

under circumstances giving rise to an inference of unlawful discrimination. [Hazle,

464 Mich at 463.]

“[O]nce a plaintiff establishes a prima facie case of discrimination, the defendant has the

opportunity to articulate a legitimate, nondiscriminatory reason for its employment decision in an

effort to rebut the presumption created by the plaintiff's prima facie case.” Id. at 464. “If the

employer makes such an articulation, the presumption created by the McDonnell Douglas prima

facie case drops away,” id. at 465, and the burden moves back to the plaintiff to produce evidence

“sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating

factor for the adverse action taken by the employer toward the plaintiff,” Lytle v Malady, 458 Mich

153, 176; 579 NW2d 906 (1998). “The inquiry at this final stage of the McDonnell Douglas

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

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

difference in the contested employment decision.” Hazle, 464 Mich at 466.

As the trial court noted, it is seemingly undisputed that plaintiff satisfied the first three

elements of her prima facie case—she belongs to multiple protected classes, she suffered an

adverse employment action, and she was qualified for her position as plant manager. The trial

court dismissed plaintiff’s claim, however, because it concluded that plaintiff failed to establish

the fourth prong of her prima facie case. It further reasoned that even if plaintiff could establish

her prima facie case, her claims should nevertheless be dismissed because plaintiff failed to create

a question of fact whether discriminatory animus was a motivating factor for her termination.

Assuming without deciding that plaintiff established a prima facie case of discrimination

under the McDonnell Douglas framework, we agree with the trial court that plaintiff’s claim still

fails. As observed by the trial court, defendants terminated plaintiff because they wanted to go in

a new direction due to plaintiff’s poor relationship with the union and issues with her management

style, which made it difficult for employees to speak up about potential problems.

Plaintiff does not dispute that defendants made a sufficient showing that they had

legitimate, nondiscriminatory reasons for terminating plaintiff, but argues that defendants’ stated

reasons were a pretext for discrimination. To create a jury triable issue about whether defendants’

stated reasons were a pretext for discrimination, plaintiff was required “to show the existence of

evidence sufficient to permit a reasonable trier of fact to conclude that discrimination was a

motivating factor for the adverse action taken by the employer toward the plaintiff.” Id. at 473.

She failed to do so.

Plaintiff focuses heavily on the fact that there were no issues with the performance of her

duties as plant manager, and, in fact, the plant’s production increased under her management. Yet

defendants admitted that there were no issues with plaintiff’s performance. Indeed, each person

involved in plaintiff’s termination said as much, and plaintiff testified that, when she was

terminated, she was told that it was not an issue with her performance.

Plaintiff otherwise makes a series of arguments for how the evidence in this case “rebuts

each of Defendants’ alleged rationales for terminating” plaintiff, none of which are persuasive.

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She first asserts that the complaints about her managerial leadership were actually the result of not

being properly staffed, and that she had told this to Lockhart, who refused to hire the necessary

staff until after plaintiff was terminated. Yet Lockhart clearly testified that defendants were

searching for persons to fill the positions requested by plaintiff while she was still employed, so

plaintiff’s assertion that she was “denied” these positions while plant manager is not supported by

the record. Moreover, to the extent that plaintiff asserts that Lockhart waited until she was

terminated to hire the positions she requested be filled while she was manager, that assertion is

speculation, and speculation or conjecture is insufficient to establish that discrimination was a

motivating factor for the adverse employment action. Sniecinski v Blue Cross & Blue Shield of

Michigan, 469 Mich 124, 140; 666 NW2d 186 (2003). Regardless, plaintiff’s entire argument

related to her managerial style does not actually “rebut” defendants’ rationale for terminating

plaintiff, as she asserts. While a lack of staff would presumably make plaintiff’s job as plant

manager more difficult, it does not call into question that plaintiff had an authoritative management

style and a poor relationship with the union.

Plaintiff next complains that she had problems with Meeks, that she informed Lockhart

and Trust about these problems, and that “Lockhart waited to terminate Meeks until the same week

he terminated [plaintiff] from her position.” At her deposition, plaintiff acknowledged that as plant

manager, Meeks reported to her, she had authority to write him up, and she was involved in Meeks’

eventual termination. A letter that effectuated Meeks’ termination on January 30, 2019, was

attached as an exhibit to plaintiff’s response to defendants’ motion for summary disposition. The

letter was signed by plaintiff. Trust and Lockhart both testified that Meeks was terminated by

plaintiff, and that it was plaintiff’s decision to terminate him. Accordingly, a glaring problem with

plaintiff’s argument here is that plaintiff misrepresents the record to the extent she asserts that

Lockhart terminated Meeks. The testimony was unanimous that plaintiff terminated Meeks, and

plaintiff herself produced the letter in which she informed Meeks that she was terminating him.

Moreover, it was undisputed that plaintiff always had the authority, as plant manager, to terminate

Meeks. While plaintiff only did so a week before she was terminated, that does not create a triable

issue for a jury whether unlawful discrimination was a motivating factor in defendants’ decision

to terminate plaintiff.

Plaintiff also asserts that her problems with the union “were based at least in part on a

change of corporate attendance policy implemented by Human Resources to which the union

objected,” and on “false charges of favoritism” with respect to an employee to whom plaintiff was

related. Yet neither argument “rebuts” that plaintiff had a poor relationship with the union. Rather,

each argument attempts to explain the reasons for the poor relationship, but that in no way brings

into question defendants’ business justification for terminating plaintiff due in part to her poor

relationship with the union. As such, the arguments do not tend to raise a question about whether

unlawful discrimination could have been a motivating factor in defendants’ decision to terminate

plaintiff.2

2

To the extent that plaintiff seemingly tries to blame defendants for plaintiff’s poor relationship

with the union by asserting that it was due “in part” to a “change of corporate attendance policy

implemented by Human Resources,” she does not argue that defendants instituted the change to

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Plaintiff further argues that neither Lockhart nor Pucak—who informed Lockhart about

problems he had heard about plaintiff’s management of the plant—had substantial involvement

with either plaintiff or Detroit Thermal before plaintiff’s termination. Yet this does not make

defendants’ reasons for terminating plaintiff pretextual, nor does it tend to establish that unlawful

discrimination was a motivating factor in defendants’ decision to terminate plaintiff. Indeed,

neither Lockhart nor Pucak testified that they had substantial involvement with plaintiff or with

Detroit Thermal prior to plaintiff’s termination, and Pucak testified that the concerns he relayed to

Lockhart were things he had heard from employees who worked under plaintiff at Detroit Thermal.

Plaintiff complains that the concerns Pucak communicated to Lockhart about plaintiff’s

management being toxic and authoritative were rebutted by the fact that Collette, who worked as

a shift supervisor under plaintiff, “completely denied this in his deposition.” This, however, is a

gross misrepresentation of Collette’s testimony. Collette spoke highly of plaintiff’s work ethic in

managing the plant, and he said that he believed that she “was a fair plant manager to” Collette

“personally,” but he never denied telling anything to Pucak, nor did he speak to whether plaintiff

created a toxic and authoritative environment within the plant. Nothing in Collette’s testimony

tended to establish that Pucak lied to Lockhart (as plaintiff suggests), such that a reasonable trier

of fact could infer that discrimination was a motivating factor in defendants’ decision to terminate

plaintiff.

Plaintiff more generally argues that defendants’ business justification for plaintiff’s

termination was pretextual because (1) Lockhart’s testimony that Grzech and Cinzori were

involved with plaintiff’s termination was called into question, (2) the persons who terminated

plaintiff “were not even involved with the operations of the facility until very shortly before

[plaintiff’s] termination,” and (3) plaintiff was not given any notice about or an opportunity to

respond to the reasons she was being terminated. Contrary to plaintiff’s assertion, none of this

evidence calls into question whether defendants’ decision to terminate plaintiff “was lawful, that

is, one that is not motivated by a discriminatory animus.” Hazle, 464 Mich at 465 n 7 (quotation

marks and citations omitted). At best, this evidence may call into question whether the decision

was “wise, shrewd, prudent, or competent,” but that does not raise a question of fact regarding

whether defendants’ reasons were pretextual. Town v Michigan Bell Tel Co, 455 Mich 688, 704;

568 NW2d 64 (1997) (Opinion by BRICKLEY, J.) (quotation marks and citation omitted).

Next, plaintiff argues that the fact she received a bonus shortly before being terminated

supports her argument that defendants’ stated reasons for terminating plaintiff were pretextual.

First, testimony was unanimous that plaintiff’s bonus was not tied to her individual performance,

but rather to the performance of the plant and whether the person was still employed when the

bonuses were awarded. Second, regardless of whether the bonus was tied to plaintiff’s individual

performance, it is uncontested that plaintiff was not terminated for any reason related to her

performance. Thus, the caselaw on which plaintiff relies to argue otherwise is inapposite. The

create a reason to terminate plaintiff, or that it was anything other than a neutral application of

policy. Sniecinski, 469 Mich at 136-137 (explaining that a “neutral operation of” policy that results

in an adverse employment action is not evidence that the action was motivated by discriminatory

animus).

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employee in that caselaw was terminated due to allegedly deficient performance, so the fact that

the employer awarded the employee a bonus called into question whether the employer was

actually dissatisfied with the employee’s performance. See Cicero v Borg-Warner Auto, Inc, 280

F3d 579, 593-594 (CA 6, 2002).

Plaintiff further argues that defendants’ stated reasons for terminating plaintiff were

pretextual because she was more qualified than Malara, the manager that replaced her. The cases

to which plaintiff cites for this argument are all failure-to-promote cases, however. In such cases,

it logically follows that if a plaintiff is more qualified for a position than the candidate ultimately

chosen for the position, then the reasons that the plaintiff was passed over may have been unlawful

discrimination. The same is not true in this case. Plaintiff was terminated due to her poor

relationship with the union and her management style. That she may have been more qualified

than the person who replaced her would not call into question whether the stated reasons for her

termination were pretextual so long as her replacement did not suffer from the same problems.

Regardless, plaintiff does not argue that Malara was unqualified for the position, only that

she was “more qualified” than Malara, or that Malara was “less qualified” than her. If the

comparison is “between two qualified employees,” then “[t]he plaintiff’s proofs, at most, merely

raise questions about [the employer’s] business judgment.” Town, 455 Mich at 704. This in turn

does “not create an issue of fact regarding whether the defendant’s nondiscriminatory explanation

for [the adverse employment action] was a pretext, much less a pretext for discrimination.” Id.

In one section of her brief, plaintiff raises the fact that she was not offered another position

when she was removed as plant manager at Detroit Thermal, and she asserts that this was different

from when “white male employees” were “terminated from their jobs.” Plaintiff does not cite to

any caselaw to support her argument or otherwise articulate how her assertion fits into her broader

arguments on appeal, thereby abandoning the issue on appeal. See Mitcham v City of Detroit, 355

Mich 182, 203; 94 NW2d 388 (1959) (“It is not enough for an appellant in his brief simply to

announce a position or assert an error and then leave it up to this Court to discover and rationalize

the basis for his claims, or unravel and elaborate for him his arguments, and then search for

authority either to sustain or reject his position.”). Regardless, the argument does not warrant relief

because the premise of plaintiff’s argument is not supported by the record. Plaintiff asserts that

“white male employees were assigned to other positions when terminated from their jobs,” but the

only white male she references is Kentala. Defendants presented unrebutted evidence that Kentala

was not terminated, but that he wanted to voluntarily resign, and defendants offered him the

opportunity to take a position with less responsibility to prevent his resignation. Thus, the record

does not support the premise of this argument.3

At one point in her brief, plaintiff also argues that Lockhart’s comment related to the

Muslim religion amounted to direct evidence of discrimination, and asserts that “[t]he trial court

committed reversible error by never analyzing this case as a direct evidence case in light of what

[plaintiff] presented.” This assertion wholly ignores that plaintiff never once raised this argument

before the trial court—not in her complaint, not in her lengthy response to defendants’ motion for

3

To the extent that plaintiff may have believed during her deposition that Kentala was terminated,

her speculation cannot create a question of fact. See Sniecinski, 469 Mich at 140.

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summary disposition, and not during the lengthy oral argument on defendants’ motion for

summary disposition. By failing to raise this argument before the trial court, plaintiff has waived

the issue on appeal. See Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008).

C. HOSTILE WORK ENVIRONMENT CLAIM

Plaintiff next argues that the trial court erred by granting summary disposition on her

hostile work environment claims. We disagree.

To establish a prima facie case of a hostile work environment, an employee must prove

that (1) the employee belonged to a protected group, (2) the employee was subjected to

communication or conduct on the basis of her protected characteristic, (3) the communication or

conduct was unwelcome, (4) the unwelcome conduct or communication was intended to or in fact

did substantially interfere with the employee’s employment or created an intimidating, hostile, or

offensive work environment, and (5) respondeat superior. Radtke v Everett, 442 Mich 368, 382-

383; 501 NW2d 155 (1993). For the fourth element, whether a hostile work environment existed

is “determined by whether a reasonable person, in the totality of circumstances, would have

perceived the conduct at issue as substantially interfering with the plaintiff’s employment or

having the purpose or effect of creating an intimidating, hostile, or offensive employment

environment.” Id. at 394.

Plaintiff first argues that she was subjected to a hostile work environment on the basis of

her gender because she was called a bitch, Goerke made a sexual comment about her, and Meeks’

behavior towards plaintiff went unaddressed. In rejecting this argument, the trial court reasoned

that the two comments related to plaintiff’s gender were made during the 13 years of her

employment with defendants, and no reasonable person would have perceived the communications

as substantially interfering with plaintiff’s employment or having the effect of creating a hostile

employment environment. As for Meeks’ behavior, the trial court correctly observed that

plaintiff’s argument that Meeks’ insubordinate behavior was due to plaintiff being a female was

only supported by plaintiff’s testimony, in which she admitted that she merely assumed that to be

the case.

On appeal, plaintiff does not explain how the trial court’s analysis of her claim was wrong,

but merely reiterates the unwelcome communications and conduct underlying her claim. As the

trial court noted, however, plaintiff only cited two unwelcome comments that took place during

the course of her 13 years with defendants, and plaintiff testified that she merely assumed that

Meeks’ insubordination was due to plaintiff’s gender. As speculation cannot create a question of

fact, Sniecinski, 469 Mich at 140, we agree with the trial court that, given the totality of the

circumstances, a reasonable person in plaintiff’s position would not perceive the unwelcome

gender-related communications and conduct cited by plaintiff as substantially interfering with

plaintiff’s employment or having the effect of creating a hostile work environment.

For plaintiff’s hostile work environment claim related to race, she claims that she “was

repeatedly treated hostilely and differently by Pucak before and after she became Plant Manager

as compared to whites,” and that Goerke was promoted even though he had been reported for

“racial comments.” In rejecting this claim, the trial court reasoned that plaintiff failed to provide

any evidence that Pucak treated plaintiff differently on the basis of race or that the treatment

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otherwise interfered with her employment or created a hostile work environment. As for Goerke’s

comments, the trial court reasoned that “ ‘racial comments’ to other employees also does not rise

to the level of creating a hostile work environment,” particularly given that plaintiff did not work

in the same plant as Goerke. Like with the previous claim, plaintiff does not address the trial

court’s reasoning for dismissing this claim or otherwise explain why the trial court was incorrect

to do so. We agree with the trial court’s reasoning that plaintiff failed to offer evidence supporting

her argument related to Pucak, and that her argument with respect to Goerke does not rise to the

level of creating a hostile work environment.

For plaintiff’s hostile work environment claim related to age, she cites to a single meeting

in which plaintiff was encouraged to go out into the community to recruit young people to work

at the plant. In dismissing this claim, the trial court reasoned that the single meeting does not

support “[p]laintiff’s claim that her employment was substantially interfered with or that it created

an intimidating, hostile, or offensive environment.” Again, plaintiff does not explain why the trial

court’s reasoning was incorrect. As explained by our Supreme Court, a single incident will not

create an offensive, hostile, or intimidating work environment “unless extreme,” and gave as

examples of such conduct “rape and violent sexual assault.” Radtke, 442 Mich at 395. The

meeting cited by plaintiff clearly is not the type of “extreme” communication or conduct that would

create an intimidating, hostile, or offensive work environment, and thus the trial court’s decision

to dismiss this claim is affirmed.

Lastly, for her hostile work environment claim related to religion, plaintiff cites to

Lockhart’s comments about the Muslim religion that he made during a meeting with plaintiff and

Pucak. In dismissing this claim, the trial court reasoned that this single incident in which Lockhart

commented about plaintiff’s religion did not rise to the level of creating a hostile work

environment. Once again, plaintiff does not explain why the trial court’s reasoning was error. We

agree with the trial court that the single incident in which Lockhart commented about plaintiff’s

religion cannot support plaintiff’s hostile work environment claim, as it is not remotely comparable

to the type of extreme conduct that would support a hostile work environment claim based on a

single incident.4

4

On appeal, without context, plaintiff complains that she “underwent Executive Coaching . . . to

help her deal with the sexist and racist sabotaging of her management of the plant.” As defendants

note on appeal, however, defendants offered the executive coaching to plaintiff, and plaintiff

voluntarily accepted. Moreover, plaintiff testified that she found the executive coaching useful

and requested additional sessions. Without more development from plaintiff, it is unclear the point

that she is attempting to make with her citation to the executive coach.

Plaintiff also asserts that her “office was filled with mold affecting her ability to function

in her managerial position.” As defendants point out on appeal, however, plaintiff does not explain

how this can establish a hostile work environment claim—no one intentionally grew the mold in

plaintiff’s office; plaintiff had the authority, as plant manager, to have the office cleaned; and

plaintiff’s office was moved and that new office is still used as the plant manager’s office. Again,

without more development from plaintiff, it is unclear the point she is attempting to make with

reference to the mold in her office.

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D. RETALIATION CLAIM

Plaintiff next challenges the trial court’s dismissal of her retaliation claim. To establish a

prima facie case of retaliation, a plaintiff must show:

(1) that he engaged in a protected activity; (2) that this was known by the defendant;

(3) that the defendant took an employment action adverse to the plaintiff; and (4)

that there was a causal connection between the protected activity and the adverse

employment action. [Garg v Macomb Cnty Cmty Mental Health Services, 472

Mich 263, 273; 696 NW2d 646 (2005).]

“To establish causation using circumstantial evidence, the circumstantial proof must facilitate

reasonable inferences of causation, not mere speculation.” Shaw v Ecorse, 283 Mich App 1, 14-

15; 770 NW2d 31 (2009) (quotation marks and citation omitted.) To prevail, a plaintiff must

“show that his employer took adverse employment action because of [the] plaintiff’s protected

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

In the trial court, plaintiff argued that she was retaliated against based on her alleged 2008

EEOC complaint and her complaints about Meeks. On appeal, she no longer argues that she was

retaliated against for the alleged 2008 EEOC complaint, thereby abandoning that argument.

In dismissing plaintiff’s claim that she was retaliated against for complaining about Meeks,

the trial court reasoned that “there is absolutely no evidence to support Plaintiff’s claim that she

was terminated because of any complaints she made about Meeks’ behavior . . . .” On appeal,

after reciting relevant caselaw, plaintiff only asserts:

The totality of the circumstances on causation in the light most favorable to

[plaintiff] creates a genuine issue of material fact, especially here, where the

weighing of evidence and credibility issues are not involved. A jury should rule on

[plaintiff’s] retaliation count.

This, however, is insufficient to present the argument for appeal. Plaintiff does not cite a single

fact from which it can reasonably be inferred that she was terminated because she complained

about Meeks. By failing to properly develop the issue, plaintiff has abandoned it on appeal. See

Walters, 481 Mich at 388 (explaining that “courts are not the research assistants of the litigants;

the parties have a duty to fully present their legal arguments to the court for its resolution of their

dispute”).

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Regardless, there are no facts in the record to support plaintiff’s assertion that she was

terminated because she complained about Meeks. Accordingly, we conclude that the trial court

properly dismissed plaintiff’s retaliation claim.

Affirmed.

/s/ Mark J. Cavanagh

/s/ Colleen A. O’Brien

/s/ Michelle M. Rick

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