Opinion
No. 339767
06-19-2018
DEANNA PRIEUR, Plaintiff-Appellant, v. CITY OF BAY CITY, Defendant-Appellee.
UNPUBLISHED Bay Circuit Court
LC No. 15-003776-CD Before: CAMERON, P.J., and METER and BORRELLO, JJ. PER CURIAM.
In this case involving a claim of alleged gender discrimination, plaintiff appeals as of right an order granting summary disposition to defendant. We affirm.
Plaintiff began working for defendant in September 2001. At the time of her termination on July 17, 2014, she was the administrative assistant to the director of the Department of Public Works. The director at that time was David Harran. Plaintiff initiated a grievance through her union, claiming that defendant discharged her without just cause. In an opinion dated July 9, 2015, the arbitrator upheld plaintiff's firing and dismissed the grievance. The arbitrator stated defendant's position as follows: "The Employer's position is that Grievant engaged in insubordination and that discharge was the appropriate penalty under its rules." The arbitrator then cited the definition of "insubordination" in defendant's regulations:
Insubordination of an employee shall be considered a serious offense, extremely detrimental to the best interest of the City. It shall consist of the willful refusal of an employee to obey the lawful order of any superior or any deliberate physical attack or assault upon a superior, or any disobedient, rebellious, insulting, vicious, or incorrigible conduct calculated or designed to undermine or defeat the control of supervisory personnel. Violation of this Section shall be considered a fifth grade offense.The arbitrator discussed the text messages that plaintiff sent on July 10 and 11, 2014, to Terry Kilburn, the manager of the Water and Sewer Department. In the messages, plaintiff stated, in part:
Please discuss . . . with Dave [Harran] to remove me from the distribution list for Engineering email. NOT MY F*CKEN JOB. . . .The arbitrator also noted that Harran had been advised by the Deputy City Manager on July 7, 2014, of five different instances during which plaintiff had been "refusing to do work, refusing to respond in a timely manner, refusing to cooperate with other staff, and refusing to follow well accepted procedures in the City's administrative offices."
He can kiss my f*cken white *ass
Departments need to know I DO NOT do engineering work. Someone needs to handle all this sh*t for Dave. I'm not volunteering for f*cken sh*t for him.
The first occurrence of a fifth grade offense warrants dismissal under defendant's policies.
The actual text messages were not redacted with asterisks.
The document mentioning these instances is in the lower-court record; the instances involved plaintiff's (1) failure to deliver a package to an employee; the package was reported missing and was found on plaintiff's desk; (2) laughing and acting incredulous when told she needed to follow a chain of command to obtain a City Hall key for a temporary employee; (3) failure to respond in a timely or adequate fashion regarding requests for special-events coordination; this resulted in "issues on set up days for the events and for billing"'; (4) defiant refusal to inform a particular department about her vacation so that access to a particular area could be coordinated; and (5) implementation of an unnecessary system involving having certain employees report to her.
The arbitrator concluded that plaintiff had not refused any direct order. However, he went on to state, "An Administrative Assistant position such as that occupied by Grievant for a number of years[] doesn't need a job description to understand what she is expected to do [sic]." He again made a specific reference to the five instances during which plaintiff had performed inadequately. The arbitrator found that plaintiff's "complaints and more than vivid description of her dislike for certain duties is simply evidence that she knew what was expected but didn't want to do those things." The arbitrator stated, "At the very least in this case, Grievant did not perform duties that were expected and she knew after 14 years were expected." The arbitrator concluded that plaintiff's conduct was "rebellious and insulting," stating:
as the right hand person to a key Department Director in the City, Grievant does not have the luxury of picking and choosing what she wants to do, telling other employees including supervisors what she is or is not going to do, and using work time and cell phones to denigrate the work being assigned by her boss and violating her confidentiality pledge and causing enough consternation that the
Deputy City Manager had to become involved when he too learned of Grievant's failure to perform her job responsibilities.The arbitrator concluded that defendant's management acted reasonably in concluding that plaintiff had violated the rules regarding insubordination and that a discharge was warranted. The arbitrator also stated, in a footnote, that he "didn't get any whiff of any disparate treatment due to Grievant's gender."
On December 18, 2015, plaintiff filed a one-count complaint, alleging that defendant discharged her because of her gender in violation of MCL 37.2202(1)(a). On February 23, 2017, defendant moved for summary disposition under MCR 2.116(C)(7), (8), and (10), arguing, among other things, that defendant fired plaintiff for a legitimate, nondiscriminatory reason and that a reopening of the arbitrator's decision regarding a legitimate firing was barred by collateral estoppel.
In her response to defendant's motion, plaintiff argued, among other things, that she had presented a prima facie case of gender discrimination because, according to her, Kilburn had also sent insubordinate text messages but was not terminated as a result. Plaintiff also argued that collateral estoppel did not bar her lawsuit because the arbitrator had only been asked to determine whether plaintiff had been insubordinate and had not been asked to determine whether plaintiff's termination "was [a] pretext for gender discrimination." Plaintiff stated that she was "not disputing that Plaintiff's conduct was insubordinate, only that Plaintiff was wrongfully terminat[ed] when Mr. Kilburn should also have been terminated for engaging in the same conduct." At the hearing regarding the motion for summary disposition, plaintiff's counsel again stated that "we're not disputing" that plaintiff was insubordinate. Counsel explicitly said, "She was, by . . . definition, insubordinate." Counsel stated that the issue was whether this insubordination was a pretext for firing plaintiff, because "Mr. Kilburn was similarly insubordinate and there was no action taken against him."
The trial court found that plaintiff was "not collaterally estopped to bring her claim here," but that she was "collaterally estopped from contesting the issue of whether or not there was just cause for her . . . termination." The court stated, "She's stuck with the finding of this previously litigated issue, and the arbitrator finds there was good cause for her termination for the reason of insubordination[, but] that doesn't end the matter." The court found that it would potentially be possible for plaintiff to make out a claim for gender discrimination but that she had not done so, because Kilburn's alleged offenses were not comparable to plaintiff's and therefore, he was not similarly-situated. The court stated, "Maybe he hid it well, maybe it wasn't true, but the City was not dealing with any complaints about Kilburn's work behavior at all." The court granted defendant's motion.
We review de novo a trial court's ruling regarding a motion for summary disposition. Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010).
Under [MCR 2.116(C)(10)], a party may move for dismissal of a claim on the ground that there is no genuine issue with respect to any material fact and the moving party is entitled to judgment as a matter of law. The moving party must specifically identify the undisputed factual issues and support its position with
documentary evidence. When reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a court must examine the documentary evidence presented and, drawing all reasonable inferences in favor of the nonmoving party, determine whether a genuine issue of material fact exists. [Dextrom, 287 Mich App at 415-416 (citations omitted).]
MCR 2.116(C)(7) applies if collateral estoppel is being argued as the basis for summary disposition.
Although defendant also cited MCR 2.116(C)(8) in moving for summary disposition, the substance of the trial court's ruling, in which it referred to information outside the pleadings, makes clear that it did not rely on that subsection in granting the motion.
When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts them. If any affidavits, depositions, admissions, or other documentary evidence are submitted, the court must consider them to determine whether there is a genuine issue of material fact. If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court. However, if a question of fact exists to the extent that factual development could provide a basis for recovery, dismissal is inappropriate. [Dextrom, 287 Mich App at 428-429 (citations omitted).]
In cases such as the present one, when the plaintiff presents no direct evidence of gender discrimination, the plaintiff must proceed using the burden-shifting approach set forth in McDonnel Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). See Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 133-134; 666 NW2d 186 (2003). "To establish a rebuttable prima facie case of discrimination, a plaintiff must present evidence that (1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) her failure to obtain the position occurred under circumstances giving rise to an inference of unlawful discrimination." Id. at 134. "Once a plaintiff has presented a prima facie case of discrimination, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action." Id. "If a defendant produces such evidence, the presumption is rebutted, and the burden shifts back to the plaintiff to show that the defendant's reasons were not the true reasons, but a mere pretext for discrimination." Id.
We note, initially, that the trial court specifically found that collateral estoppel barred plaintiff from re-litigating the issue of whether she was fired for just cause, i.e., for insubordination. Plaintiff does not argue against this portion of the trial court's ruling on appeal and has thus abandoned any challenge to it. See Yee v Shiawassee Co Bd of Comm'rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Plaintiff spends some time in her appellate brief arguing about whether she established an initial prima facie case of gender discrimination, but even if she did, defendant clearly, as essentially found by the arbitrator, articulated "a legitimate, nondiscriminatory reason for the adverse employment action." Sniecinski, 469 Mich at 134. Accordingly, the pertinent question becomes whether "defendant's reasons were not the true reasons, but a mere pretext for discrimination." Id. In Town v Michigan Bell Telephone Co, 455 Mich 688, 699; 568 NW2d 64 (1997), the Court stated:
As noted in Cole v Westside Auto Employees Federal Credit Union, 229 Mich App 639, 647; 583 NW2d 226 (1998), "factual findings made by an arbitrator after a proper arbitration proceeding are conclusive in a later-filed civil suit between the same parties . . . ."
Defendant suggests that plaintiff's entire appeal is barred by collateral estoppel because the arbitrator stated that he had not gotten "any whiff of any disparate treatment due to Grievant's gender." However, collateral estoppel requires a "full and fair opportunity to litigate" the issue in question, Monat v State Farm Ins Co, 469 Mich 679, 685; 677 NW2d 843 (2004), and the arbitration here concerned just cause for termination and did not center around issues of gender discrimination or pretext. The arbitrator seems to have made the "disparate treatment" statement as an afterthought.
Rather than evaluate plaintiff's case at the prima facie stage, . . . in this case we elect to presume that plaintiff has established a prima facie case. The purpose of the prima facie case is to force the defendant to provide a nondiscriminatory explanation for the adverse employment action. That purpose having been served, we move to the plaintiff's evidence that the defendant's proffered nondiscriminatory reason is a pretext for discrimination.The analysis of pretext can involve evidence similar to, or even the same as, that used to establish an initial prima facie case. Id. at 695-697.
Plaintiff contends that the reasons provided for her termination were pretextual "in that while the arbitrator concluded that [plaintiff] did engage in insubordinate behavior as defined by the collective bargaining agreement, she was singled out for termination while another male employee who engaged in the same conduct was not terminated, disciplined, or even investigated."
As noted, the factual findings by the arbitrator regarding the "just-cause" reasons for plaintiff's termination are binding under the doctrine of collateral estoppel. Cole v Westside Auto Employees Federal Credit Union, 229 Mich App 639, 647; 583 NW2d 226 (1998). The arbitrator found at least five instances of inadequate performance and found that plaintiff's "vivid description" of her dislike of certain duties evidenced her desire to refrain from complying with her job duties. Plaintiff contends that defendant treated her differently from Kilburn even though Kilburn and she were both supervised by Harran and both "engaged in the same behavior[.]" But there is no equivalent evidence of Kilburn failing to perform his job duties. Plaintiff contends that Kilburn admitted to not completing assignments, citing the text-message exchange between Kilburn and her. In that exchange, Kilburn stated at one point that he had "decided not to go the extra mile . . . [j]ust enough to get by," but this does not evidence a failure to perform on the part of Kilburn. Kilburn also stated, "By the way I forgot to send something for Robertas [sic] commission report. Hope Dave does not catch that[.]" However, this reference to an unspecified and unintentional (i.e., "forgotten") item is not equivalent to plaintiff's multiple instances of refusing to perform her job and her statement in the text messages that "[s]omeone needs to handle all this sh*t for Dave." Plaintiff also points out that Kilburn referred to Harran as not having "the b*lls" to help his people." But again, this one brief statement is not equivalent to the various facts supporting plaintiff's termination. Talicska testified that Kilburn's text was inappropriate but "certainly didn't rise to the level of insubordination," and he specifically noted that Kilburn "was performing his job."
Plaintiff contends that defendant discharged her only for her text messages, but Greg Talicska, who made the discharge decision, stated that he fired plaintiff "for the insubordination and text messages[.]" (Emphasis added.) In addition, while the discharge notice emphasized the text messages, it also referred to "actions/inactions and text messages[.]" (Emphasis added.) Moreover, plaintiff admitted at her deposition that the text messages were "part" of the reason for her termination but that Talicska also told her that she "wasn't doing [her] job duties." The arbitrator found the additional instances of inadequate performance to be part and parcel of the discharge decision, and again, we are bound by the arbitrator's findings regarding the "just-cause" reasons for plaintiff's termination.
Plaintiff disingenuously asserts in her appellate brief that Kilburn referred to Harran as a "wimp *ass," but plaintiff admitted at her deposition that it was she who wrote that phrase; in the exhibits showing the text messages it is clear, from the spacing of the messages, that this phrase is part of the message sent by plaintiff, not by Kilburn.
Plaintiff alleges that Kilburn sent the text messages using an employer telephone and while driving, but even if this is true, it does not demonstrate that Kilburn engaged in behavior equivalent to the behavior that led to plaintiff's firing.
The crux of plaintiff's argument—that Kilburn and she engaged in the "same behavior" but that defendant only fired her and not Kilburn—is simply not borne out by the evidence. As such, she has not established any basis for appellate relief.
Plaintiff argues that this disparate treatment of her and Kilburn evidences a "pattern" of gender discrimination because, in addition, she was "passed over for raises while other male employees were given raises." Because the "disparate treatment" argument is unavailing, we find no such "pattern" as contended by plaintiff. Moreover, the evidence reveals that plaintiff's request for a raise was "in the queue" to be reviewed shortly before her firing, and Harran was supportive of the request. Finally, we note that plaintiff mentions, in a footnote, that a male employee had not been disciplined even though he had not responded to emails to which he should have responded. Plaintiff merely recites this information and does not attempt to tie it into her argument on appeal. At any rate, a review of the pertinent deposition testimony reveals that Harran "told [the employee] to get them [the emails] done," and plaintiff was not privy to the content of any meetings between Harran and the employee in question. There is no evidence that this male employee and plaintiff committed conduct so similar such that plaintiff's firing evidences gender discrimination. --------
Affirmed.
/s/ Thomas C. Cameron
/s/ Patrick M. Meter
/s/ Stephen L. Borrello