For years, Michigan law had been misinterpreted to deny justice to worthy victims of employer retaliation for having asserted civil rights claims. That all changed in 2020, when the Michigan Court of Appeals decided the published case of White v. Department of Transportation.1 How it happened, and why it should never have happened, is the subject of this article.
Michigan’s civil rights law, the Elliott-Larsen Civil Rights Act (ELCRA), prohibits discrimination based on race, sex, religion, or national origin “with respect to employment, compensation, or a term, condition, or privilege of employment[.]”2 This itemization of the type of losses that a discrimination plaintiff/victim must have suffered has come to be interpreted to requiring that person to show an “adverse employment action” involving an ultimate employment decision such as termination; a demotion; a decrease in wage or salary; a less distinguished title; a material loss of benefits; significantly diminished material responsibilities; or other indices usually requiring some type of monetary loss.3
The Elliott-Larsen Act also prohibits retaliation by an employer; the anti-retaliation provision does not expressly require a plaintiff to show monetary and/or employment losses, unlike what is required for a victim of substantive discrimination to show or prove.4 Unfortunately, Michigan courts have judicially legislated and/or rewritten the ELCRA provisions to require victims of employer retaliation show the same employment-related economic losses that victims of substantive discrimination must show to survive a motion for summary disposition.
For example, in Peña v. Ingham County Road Commission in 2003, the Court of Appeals dismissed the plaintiff’s retaliation claim, ruling that Pena could not prove an adverse employment action such as termination of employment, loss of promotion, reduction in salary or wages, or some other monetary loss.5 The court decided that Pena could only show that his employer opened up a worker’s compensation fraud claim against him after he filed the lawsuit, that Pena was isolated at work after filing the lawsuit, and Pena was ridiculed by his supervisor for having filed the lawsuit. Ironically, the Peña court relied on the 2002 U.S. Sixth Circuit Court of Appeals opinion in White v. Burlington N & SF R Co.6
Three years after Peña was decided, the case it relied upon, White, was overturned by the U.S. Supreme Court, leading to a much more favorable standard for plaintiff victims of retaliation to prove their cases.7 In White, the plaintiff lost her “clean” job as a forklift driver and was reassigned to work the “dirty” job of track laborer.8 After she complained, White was suspended for 37 days without pay. Though the employer subsequently reversed its decision and paid White for the 37 days she was suspended, she sued.
The Supreme Court ruled that the express language of the anti-retaliation law in Title VII — much like the express language of the anti-retaliation law in ELCRA — does not require a plaintiff to show monetary losses related to employment itself in order to have a tenable claim of retaliation.9 The Court also adopted a new, more plaintiff-friendly standard of proof, saying that context matters in these cases and anything that would deter and/or dissuade a reasonable employee or worker from complaining is enough to be “materially adverse” to the plaintiff and constitutes an adverse action for retaliation prima facie case purposes.10 In spite of the SCOTUS decision in White, Peña was cited and applied for the next 17 years in dismissing the retaliation claims of numerous plaintiffs in Michigan courts.
This all ended in 2020 with the Michigan Court of Appeals decision in White v. Department of Transportation.11 Judge Douglas Shapiro found the U.S. Supreme Court reasoning in White v. Burlington to be compelling. Although he dismissed the plaintiff’s failure to promote the claim, Shapiro ruled that a question of fact for the jury was presented on the retaliation claim when the plaintiff showed that after she filed her lawsuit:
(1) she received a poor evaluation for the first time in her work career with this employer,
(2) she was put on a performance improvement plan (PIP) outlining the requirement to improve her work output or face consequences,
(3) she was transferred from her work location in Detroit to a location in Lansing, and
(4) she received a “notice of formal counseling.”12
Under Peña’s rationale and holding, it is doubtful that any of these acts by White’s employer would have been sufficient to establish a prima facie case of retaliation. However, Shapiro found that what was normally a question for the jury to decide will be presented based on whether a particular act by an employer was “materially adverse:”
Per Burlington, “it is for the jury to decide whether anything more than the most petty and trivial actions against an employee should be considered materially adverse to the employee and thus constitute adverse employment actions.” Crawford v. Carroll, 529 F3d 961, 973 n 13 (CA 11, 2008). See also McArdle v. Dell Products, LP, 293 Fed Appx 331, 337 (CA 5, 2008) (“Whether a reasonable employee would view the challenged action as materially adverse involves questions of fact generally left for a jury to decide.”) We conclude that the imposition of a PIP and plaintiff’s effective transfer were not “trivial” acts nor a “minor annoyance,” Burlington, 548 US at 68, and so the question of whether plaintiff was subject to an adverse employment action should be determined by a jury.13
Shapiro’s rulings in White v. Department of Transportation increased protection for victims of employer retaliation in three ways. First, far more plaintiffs with retaliation claims will survive defendants’ motions for summary disposition. Second, more plaintiff victims of retaliation will have a jury, sitting as the conscience of the community, decide their retaliation claims. Finally, the increased ability to avoid defendants’ motions for summary disposition will allow plaintiffs to settle their cases more often and at a fair value.
The Peña case, with its incorrect and untenable legal standard of Michigan’s retaliation law, was applied by judges for years to dismiss perfectly good claims of discriminatory retaliation. Those days are over. With Shapiro’s excellent analysis in White v. Department of Transportation,14 all judges and practicing attorneys recognize that monetary losses are not necessary for a plaintiff to prove a prima facie case of retaliation. Most importantly, such claims involving disputed questions of fact should now be submitted to a jury for a decision. Thus, victims of retaliation will now get their day in court as the law always intended.