TOV.WrongfulTermination&Discrimination

Court affirms summary disposition of race discrimination and whistleblower claims

In Wiltse v. Delta Community College, the plaintiff Director of Public Safety argued that he was a victim of race discrimination and fired in retaliation for blowing the whistle on a professor-student sexual relationship.  The Court held that since he discussed the incident with employer representatives after he concluded that "no criminal wrong-doing had occurred," his actions were not protected under the WPA.   Wiltse also alleged that the college president fired him because she stereotyped him as a "white skin-head, probably KKK, macho white male who shoots to kill."  The Court pointed out that there was no direct evidence of any such racial stereotyping and that Wiltse had not documented either disparate treatment or membership in a protected class that was discriminated against.  Summary disposition was upheld.

Former State Senator is granted summary disposition of discrimination claim brought by secretary

Calvert v. Gleason involved a claim by a former State Senator's secretary that she had been promised a job if Gleason won election to county clerk.  She was not hired and filed suit against Gleason and the County claiming race and gender discrimination.  Her case against the County was immediately dismissed and she did not file any appeal of that decision.  Eventually, the judge also summarily dismissed her claims against Gleason.  She appealed that decision.

On appeal, the dismissal was affirmed.  The Court held that Calvert's Elliott-Larson Civil Rights Act claims "lacked merit."  It explained that since Gleason hired a white female and the plaintiff was a white female, she could not argue that gender or race played a role in the employer's decision-making.

Sixth Circuit recognizes potential race discrimination claim; fact questions for jury

In the recently decided Wheat v. Fifth Third Bank decision, the Sixth Circuit concluded that the trial judge erred by granting summary disposition to the bank on Wheat's race discrimination claim.  Wheat was fired out of "fear of future violence" after a physical altercation between Wheat and another man.  Both men argued that the other was the aggressor. 

The bank claimed that it had determined that Wheat was the aggressor, and that therefore, its termination of his employment--without terminating the other man--was not racially motivated.  Wheat claimed that the excuse was pretextual, and that the bank was guilty of race discrimination in accepting the other man's claim that Wheat was the aggressor.

The appellate court agreed with Wheat that reasonable jurors could conclude that Wheat was not the aggressor and that his termination--where the other man was not terminated--evidenced race discrimination.  The case was sent back to the trial court for a decision by the jury with regard to whether the event was handled properly.

Court dismisses case alleging discrimination against Hispanic heritage.

In Cavazos v. Co-Gab Enters. Inc., the plaintiff sued, arguing that he was discriminated against in violation of the Michigan Civil Rights Act.  The Court held that he presented no "direct" evidence of discrimination and insufficient circumstantial evidence to survive summary disposition.  The decision of the trial court tossing his case was affirmed by Judges O'Connell, Sawyer and Markey.

Race and gender discrimination claim is summarily dismissed

In Anfield v. Secretary of State, the Court of Appeals upheld the summary disposition of a fired employee's claim that she was terminated in a situation where younger, white employees were not terminated.  The Secretary of State argued that "Anfield was terminated for her role in an acquaintance's fraudulently obtaining a commercial driver's license..."  She pointed to four co-workers who were not terminated for similar "misconduct" and argued that she was a victim of disparate treatment arising out of an employment "mistake."

The Court held that Anfield's anecdotal evidence of other, similar-yet-undisciplined errors was inadmissible hearsay in the form of office gossip and properly not considered in response to the employer's motion for summary disposition.  Therefore, her case was properly dismissed.

Court upholds judgment arising out of white male's discrimination claim against National Heritage Academies

After he was terminated as a teacher, the plaintiff brought a discrimination claim against his for-profit charter school employer in Hecht v. National Heritage Academies.  He alleged that his firing was discriminatory because blacks had made racially-oriented comments similar to those for which he was fired, without incurring similar discipline. Because the school administrators acknowledged that all persons using the "n-" word should have been disciplined, without regard to the speaker's race, and since the Plaintiff was the only person disciplined for this type of racial "banter" [his characterization], the Court allowed the judgment to stand. 

 The Court also ruled that the trial judge did not err in allowing into evidence the fact that the plaintiff was unable to secure a teaching job after his firing, in part because the defendant informed prospective employers that he was terminated for "unprofessional conduct."  It concluded that the judgment for $485,000 dollars in lost future income was within the range of reasonable outcomes.

Court majority allows employer hospital to use peer review "as sword and shield," admitting only its own summary but not report

Judge Clay of the Sixth Circuit Court of Appeals, filed a strident Dissent, after two judges on his panel upheld the summary disposition of a discrimination/wrongful termination suit involving a security guard.  The merits of the case were never evaluated because the trial judge granted summary disposition.  Judge Clay filed a fairly long dissent, detailing the violations of civil procedure rules inherent in the trial judge's decision and its affirmance.

Judge Clay's primary objection related to the court allowing Saint Joseph Mercy Hospital Oakland to admit into evidence it's redacted summary of a Peer-Review Report which it would not turn over, claiming privilege.  Judge Clay pointed out that no Court in America allows a litigant to use a privilege both as "sword and shield," admitting into evidence only the selected parts the litigant chooses. He also pointed out that since no Michigan Court has applied the health care "peer review" privilege to employess who aren't doctors or nurses, the lower court erred in assuming that it should apply.

Judge Clay objected to allowing the Hospital to make "tactical use" of the partial content of the Report without making it available in discovery, particularly given that even the selected parts that the Hospital offered into evidence were not clearly supportive of the Hospital's claims.

Michigan court holds worker did not adequately allege hostile work environment

In Perry v. Department of Human Services, the plaintiff brought a legal action claiming that she was denied promotion and received a negative evaluation as a result of racial discrimination.  She pointed out that the events occurred at approximately the same time that a stuffed gorilla was placed on a cubicle wall that separated her work area from common areas in the office.

The Court summarily rejected her claim, holding that she did not adequately raise a claim of hostile work environment, that there was "no evidence that the placement of the gorilla was racially motivated," and that the "totality of the circumstances did not constitute proof of severe or pervasive discriminatory conduct."

Court upholds judgment in favor of employer in ethnic discrimination claim; awards some costs to Defendant

In 1998, in Ramanathan v. Wayne State University, the Plaintiff initially sued the University for discrimination, however, that claim was dismissed by the Michigan Supreme Court.  The Plaintiff's retaliation claim was allowed to go to the jury, however, after numerous additional appeals, but after a two-week trial the jury concluded that Ramanathan had not proved retaliation.  He appealed the outcome, arguing that the trial judge did not allow the jury to consider relevant evidence. 

In particular, the Plaintiff objected to the Court not allowing him to describe the discriminatory conduct that lead him to complain originally:  he maintained that the jury could not well decide the retaliation claim in the absence of an explanation of the nature of his complaints of discrimination.  The Court of Appeals upheld the exclusion of this evidence, deeming it likely to confuse or prejudice the jury. 

The Court also upheld the trial judge's exclusion of another professor's description of Plaintiff as "collegial" in rebuttal of University claims that he was "not collegial."  The higher court deemed this testimony relevant but "cumulative" [because another witness offered the same conclusion] and concluded that its relevance was "substantially outweighed" by prejudice to the Defendant.  The professor raised numerous additional issues of error in admitting evidence, all of which were excused or rationalized by the reviewing court.  The jury verdict was affirmed.

Court upholds discrimination verdict for employee but remands for new decision on attorneys fees and costs

Michael Hester sued the Department of Corrections, arguing that his supervisor at the Ryan Correctional Facility engaged in a pattern of discrimination that made his working conditions so hostile as to be untenable.  Hester presented evidence that he was repeatedly forced to do work that his white co-workers refused to perform; that the supervisor was condescending and demeaning; that the supervisor repeatedly made racial references; that he would force Hester to work while the white workers took leisurely meal breaks; and that he was repeatedly forced to work the hardest and most menial tasks.  About the best that the supervisor and Department of Corrections could offer was the claim that "while there was a mean-spirited atmosphere directed at [Hester], it was not based on race."

It would not be a shock to learn, then, that jurors ruled in favor of Hester and awarded him compensatory damages.  The trial judge then granted him payment of his attorneys' fees and certain taxable costs.  The DOC appealed, arguing that the verdict was inappropriate and that fees and costs were awarded inappropriately.  The Court of Appeals rejected the DOC"s suggestion that the testimony of Hester and his four co-workers was inadequate because it was "subjective."  The judges pointed out that the DOC was simply attacking the credibility of the witnesses, and that their credibility was an issue for jurors to assess.

The higher court did, however, reverse the award of fees and costs.  It noted that the judge had not made adequate findings with regard to why he approved the hourly rates for the attorneys, given that the rates approved were at the 95th percentile according to recent Bar Surveys.  The Court also reversed the taxation of certain costs, including some medical consultation expenses, certain trial exhibit enlargement expenses, and copying fees.  Although these costs were rightfully incurred, they are not among the costs which the prevailing litigant can tax to the losing party.