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State of the Law 2000

Michigan and Federal Law Update

    Thomas P. Brady
    Jeffrey A. Steele
    Brady Hathaway

Table of Contents

  1. BURDEN OF PROOF
    1. BURDEN-SHIFTING ANALYSIS
    2. DIRECT EVIDENCE
  2. HARASSMENT
  3. SEX DISCRIMINATION
    1. GENERAL
    2. PREGNANCY
  4. AGE DISCRIMINATION
  5. RACE/NATIONAL ORIGIN DISCRIMINATION
  6. "REVERSE" DISCRIMINATION/AFFIRMATIVE ACTION
  7. RELIGIOUS DISCRIMINATION
  8. DISABILITY DISCRIMINATION
    1. PRIMA FACIE CASE
    2. MEDICAL EXAMS
    3. ESTOPPEL
    4. ACCOMMODATION
  9. FAMILY AND MEDICAL LEAVE ACT
  10. RETALIATION
  11. WHISTLEBLOWERS PROTECTION ACT
  12. PUBLIC POLICY
  13. ARBITRATION
  14. EVIDENCE AND PROOF
  15. DAMAGES
  16. ELEVENTH AMENDMENT
  17. MISCELLANEOUS
    1. SEVERANCE
    2. RELEASE
    3. UNTIMELY AMENDMENT
    4. STATUTE OF LIMITATIONS
    5. CONTRIBUTION
    6. COVERAGE
    7. ATTORNEY FEES
    8. "GOOD FAITH BELIEF" RULE
    9. SAME ACTOR INFERENCE
    10. BUSINESS JUDGMENT JURY INSTRUCTION
    11. CONSTRUCTIVE DISCHARGE
    12. JURISDICTION
    13. FIRST AND FOURTEENTH AMENDMENT

I. BURDEN OF PROOF

    A. Burden-Shifting Analysis

    1. Prima Facie Case

    a. Reeves v. Sanderson Plumbing Products, Inc., ___ US ___ (2000). The plaintiff sued his former employer for age discrimination under the ADEA. At trial, the employer contended that it fired the plaintiff due to his failure to maintain accurate attendance records, while the plaintiff tried to establish that the employer's explanation was a pretext for age discrimination. The trial court instructed the jury that "[i]f the plaintiff fails to prove age was a determinative or motivating factor in the decision to terminate him, then your verdict shall be for the defendant." The jury returned a verdict in favor of the plaintiff, awarding him economic and liquidated damages. The Fifth Circuit reversed, holding that the plaintiff introduced insufficient evidence to prove age discrimination. While the court acknowledged that petitioner "very well may" have offered sufficient evidence for "a reasonable jury [to] have found that [the employer's] explanation for its employment decision was pretexutal," the court held that this was "not dispositive" of the ultimate issue "whether [the plaintiff] presented sufficient evidence that his age motivated [the employer's] employment decision." The court of appeals noted that the age-based comments "were not made in the direct context of [the plaintiff's] termination; that there was no allegation that two of the three decisionmakers made age-based comments; that two of the decisionmakers were over age 50; that all three individuals in the plaintiff's department were accused of inaccurate recordkeeping; and that the employer had several managers over age 50.

    The Supreme Court granted certiorari "to resolve a conflict among the Courts of Appeals as to whether a plaintiff's prima facie case of discrimination (as defined in McDonnell Douglas Corp. v. Green, 411 US 792, 802 (1973)), combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination." In answering this question in the affirmative, the court held that several Courts of Appeal had misconstrued the language in St. Mary's Honor Center v. Hicks, 509 US 502 (1993), as it pertained to the issue whether the rejection of the employer's legitimate nondiscriminatory explanation is sufficient to sustain a verdict for the plaintiff. The Court stated that while St. Mary's did note that the factfinder's rejection of the legitimate nondiscriminatory reason did not compel a finding of discrimination, the decision had also reasoned that it is permissible for a trier of fact to infer discrimination from the falsity of the employer's explanation. The Court then reasoned: "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as 'affirmative evidence of guilt.' Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."

    The Court went on to say, however, that: "This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." The Court held that balancing these two possibilities depends upon the circumstances, such as the strength of the plaintiff's case and the probative value of the proof of falsity.

    Applying this standard the Court held that the Fifth Circuit erred in concluding that the employer was entitled to judgment as a matter of law. The agest comments made by one of the decisionmakers, testimony that the plaintiff was treated differently from other individuals and evidence that the individual who made the agest comments was the principal decisionmaker all combined to establish that the plaintiff had made out a sustainable case of age discrimination.

    b. Wilcoxon v. Minnesota Mining & Manufacturing Co., 235 Mich App 347 (1999). In affirming the trial court's order granting summary disposition for the employer in an age and sex case, the Court of Appeals stated that disparate treatment cases may be established via two alternative theories, "under ordinary principles of proof by use of direct or indirect evidence." The court explained these two theories as follows: "'mixed motive' (i.e., established by ordinary principles of evidence) and 'pretextual' (i.e., established by using McDonnell-Douglas burden-shifting)." Citing to two direct evidence cases, Downey v. Charlevoix Rd. Comm'rs, 227 Mich App 621 (1988) and Harrison v. Olde Financial Corp., 225 Mich App 601 (1998), for the proposition that the burden-shifting analysis does not apply in a "mixed motive" case, the court explained that, to prove a "mixed motive" case, the plaintiff must prove "(1) the plaintiff's membership in a protected class; (2) an adverse employment action; (3) the defendant was predisposed to discriminate against members of plaintiff's protected class; and (4) the defendant actually acted on that predisposition in visiting the adverse employment action on the plaintiff." The court then cited to a direct evidence case for the proposition that "[O]nce the plaintiff has met the initial burden of proving that the illegal conduct ... was more likely than not a 'substantial' or 'motivating' factor in the defendant's decision, the defendant has the opportunity to show by a preponderance of the evidence that it would have reached the same decision without consideration of the protected characteristic." Thus, the Court of Appeals appears to have held that McDonnell-Douglas is inapplicable in a "predisposition" case, and that a plaintiff's showing that the employer acted on a predisposition to discriminate requires the employer to meet the burdens traditionally involved in a direct evidence case.

    The Court then determined that the following series of adverse incidents did not "require a conclusion that defendants acted with discriminatory animus" under the "mixed motive" theory: "she was asked by an interviewer how she would handle racism inside and outside the company; that a secretary walked into her office one time without knocking; that Kenevan once asked one of her counterparts to ask her why she had made a certain managerial decision; that two other of her counterparts told her that Horton had contacted them and told them how Wilcoxon ought to be operating her territory; that for several years, she did not have a key to the office building and thus had to leave when it closed at 5:00 p.m.; that after she got a key to the office building, Kenevan would telephone her near the end of the day, keeping her at the office after everyone else had left, exposing her to danger when she walked to her car alone; that one of the market managers would not return her telephone calls; that Horton refused to deal with her unless he absolutely had to; that she had no secretarial assistance and often had to prepare documents longhand; that Horton would not let her use his office supplies so she had to buy office supplies from Target; that a temporary office worker, engaged for the purpose of alleviating Wilcoxon's secretarial needs, took inaccurate telephone messages and put calls through after being asked to hold them and that after she spoke with the temporary employee about this, Horton, to whom she did not report, took it upon himself to criticize her treatment of the office worker; that Horton referred to office workers as 'girls,' even if they were older than him; and that Kenevan once asked her 'whether or not it was correct that folk wanted a cigarette after sex.'"

    Next, the court evaluated whether the plaintiff had created a material issue of fact under the "pretextual theory." Conducting its analysis entirely at the prima facie stage (the court did not address whether the employer had sustained its burden of establishing a legitimate, non-discriminatory explanation for the discharge), the court held that the plaintiff failed to sustain her burden of establishing the fourth prima facie element, i.e., whether "she [suffered the adverse employment action] under circumstances that give rise to an inference of unlawful discrimination." The court held that the plaintiff had failed to sustain this burden because she could not identify any similarly-situated employee who failed to return to work after being denied disability.

    The court also affirmed the dismissal of the plaintiff's claim that her involuntary transfer constituted sex and race discrimination. Noting that the transfer did not result in a reduction in salary or benefits, and where the transfer did not force her to relocate, the transfer could not constitute an adverse employment action. The court held that adverse employment actions must be "'materially adverse' such as '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." In addressing the final factor, the court noted that "in order for an employment action to be adverse for purposes of a discrimination action: (1) the action must be materially adverse in that it is more than 'mere inconvenience or an alteration of job responsibilities ... and, (2) there must be some objective basis for demonstrating that the change is adverse because 'a plaintiff's subjective impressions as to the desirability of one position over another [are] not controlling'."

    c. Hollins v. Atlantic Co., 80 FEP Cases 835 (CA 6, 1999). A black female supported her race discrimination and retaliation claims with evidence that white employees came to work wearing a hairstyle identical to hers and that they, unlike her, were never reprimanded or required to request approval for their hairstyle change. The Court held that an employee seeking to establish prima facie case of disparate treatment need not make a separate showing that a causal connection exists between membership in the protected class and the employer's allegedly unlawful acts. Adding this step to the traditional burden-shifting formula would be redundant, since it merely restates the requirement that there be evidence that non-minority-group employees were treated differently under same or similar circumstances.

    d. Pivirotto v. Innovative Systems, 80 FEP Cases 1269 (CA 3, 1999). "[I]t is inconsistent with Title VII to require a plaintiff to prove that she was replaced by someone outside her class in order to make out a prima facie case." Claiming that seven of the eight circuits that have addressed this issue have held that a plaintiff need not prove replacement outside the protected class as a prima facie element, the court reasoned that hiring a replacement from the same protected group is not necessarily inconsistent with a showing that the employer treated her less favorably than others because of her race, color, religion, sex, or national origin. "Even if the plaintiff was replaced by someone within her own class, this simply demonstrates that the employer is willing to hire people from this class—which in the present context is presumably true of all but the most misogynistic employers—and does not establish that the employer did not fire the plaintiff on the basis of her protected status." The court reasoned that the case law suggesting that replacement outside the protected class is a prima facie element is dicta, and that such a doctrine is inconsistent with the notion that the prima facie case standards are flexible.

    e. Perry v. Woodward, 81 FEP Cases 838 (CA 10, 1999). Neither the Supreme Court nor the Third Circuit have ever "adopted a test requiring a plaintiff to prove that his replacement does not share his protected attribute." Replacing a protected class-member with an individual within that same protected class does not necessarily negate discrimination. The decisionmaker could have terminated a person and rehired a person of the same race or sex because the employee did not fit within the decisionmaker's stereotype for people of that race or sex, because the decisionmaker wants to thwart the ability of people in a particular class to develop a track record of positive employment, or simply because the decisionmaker wanted to avoid a lawsuit. Accordingly, replacing a terminated employee with a member of his or her protected class does not necessarily negate an inference that the terminated employee was unlawfully discriminated against.

    f. Perry v. Woodward, 80 FEP Cases 1077 (CA 10, 1999). Noting that the Tenth Circuit has always applied a "flexible" or "amorphous" approach when determining whether discrimination, plaintiffs have sustained their prima facie burden, the court rejected a requirement that discrimination plaintiffs establish that they were replaced by someone outside the protected class.

    g. Murphy v. ITT Educational Services, 79 FEP Cases 1240 (CA 7, 1999). Evidence that a non-decisionmaker told the female plaintiff that the employer wanted a man as a sales representative in that area was not probative of sex discrimination where three of the seven outside sales representatives that were hired during the period in question were women.

    2. Legitimate Nondiscriminatory Reason and Pretext.

    a. Hall v. McRea Corp., 238 Mich App 361 (1999). The plaintiff, who had been diagnosed with Lou Gehrig's disease, tried to establish pretext in her disability discrimination claim with evidence that the employer's president was unaware that the plaintiff's job performance had become unsatisfactory and evidence that the company did not keep "performance logs" on other employees. The court held that the fact that the president was unaware of the performance issues does not show pretext because the plaintiff did not show that the president personally supervised the plaintiff. Moreover, in a small company, the fact that no one had ever kept a "performance log" on another employee does not indicate that plaintiff was subject to disparate treatment.

    b. Shorter v. ICG Holdings Inc., 80 FEP Cases 1031 (CA 10, 1999). "Although [racist] comments may serve as circumstantial evidence of discrimination, the plaintiff must still show some nexus between the statement and the defendant's decision to terminate the employee." Accordingly, despite the fact that some of the comments were directed at the plaintiff, the series of racist comments, including a statement the decisionmaker made one or two days after the employment decision which referred to the plaintiff as an "incompetent nigger" cannot sustain the plaintiff's burden of proving pretext.

    c. Iadimarco v. Runyon, 80 FEP Cases 1294 (CA 3, 1999). The employer's assertion that the individual selected in the plaintiff's stead was "the right person for the job" is not necessarily race- or sex-neutral. Such a vague explanation could cover up the supervisor's sincerely held but improper view that only black men could be right for certain jobs. Thus, there is genuine issue as to whether this explanation, offered by a U.S. Postal Service manager to explain the failure to promote a white candidate, was a pretext for discrimination.

    d. Scott v. County of Ramsey, 80 FEP Cases 373 (CA 8, 1999). "[W]hen, as here, the evidence of disparate treatment is offered as one component of circumstantial proof of pretext, the 'evidence does not need to reach the degree of certainty required of plaintiffs who present no proof of discrimination besides [disparate treatment].'" Therefore, where the plaintiff showed that the employer's explanation for the employment decision was inconsistent, and that the employment decision closely followed the claimed protected activity, the plaintiff was not required to establish that he was treated differently than similarly situated employees after evidencing the same performance problems.

    Indurante v. Local 705 Teamsters, 80 FEP Cases 579 (CA 7, 1999). Alleged statements by union officials that all Italians were going to be fired, that "all the Italians were nothing but mobsters and gangsters," and that "the days of the goombahs are over," together with evidence of other biased comments that are just stray remarks cannot, in and of themselves, demonstrate pretext. Although the comments may be some evidence of pretext, the plaintiff must produce more than just stray comments to create a triable issue of fact.

    f. Johnson v. Women's Christian Alliance, 81 FEP Cases 1049 (ED Pa, 1999). In its motion for summary judgment, the employer argued that it discharged the protected age employee due to a "universally applied personnel reorganization" arising from a "desire to reorganize and restore its personnel." The employer did not explain the need or rationale for the reorganization, the details of its implementation, or the effect it had on other employees. The district court ruled that such an explanation is not "clear and reasonably specific" enough to satisfy the employer's burden of proffering a legitimate, non-discriminatory explanation. The court reasoned that the explanation must, at a minimum, provide enough specificity to allow the plaintiff to try and point to the weaknesses in the employer's explanation.

    g. Norville v. Staten Island University Hospital, 81 FEP Cases 324 (CA 2, 1999). A contradiction in the employer's justification for not giving a job to the protected-age plaintiff is sufficient, albeit barely, to establish that the employer's explanation was pretextual. The district court nevertheless acted properly in dismissing the plaintiff's age bias claim because the plaintiff did not show that the reasons were a pretext for age discrimination.

    h. Regel v. K-Mart Corp., 80 FEP Cases 1546 (CA 8, 1999). Protected-age former employees challenged the employer's non-discriminatory explanation by trying to establish that there was no need for a RIF because the busy season was approaching. The plaintiffs also argued that the employer should have given them an opportunity to reduce their hours or modify their work schedules instead of being laid off. The court rejected this argument out of hand, reasoning that the argument is nothing more than an attack on the employer's business decision to implement a RIF.

    B. Direct Evidence

    1. Graham v. Ford, 237 Mich App 670 (1999). The court defined "direct evidence" as evidence that "if believed, 'requires the conclusion that unlawful discrimination was at least a motivating factor'." As an example of what could constitute direct evidence, the court held that "racial slurs by a decisionmaker constitute direct evidence of racial discrimination that is sufficient to allow a plaintiff's case to proceed to the jury." The court went on to note, however, that the "plaintiff must establish direct proof that the discriminatory animus was causally related to the decisionmaker's action." The court then listed a number of alleged racial comments by the plaintiffs' supervisors in support of its conclusion that there was a material factual dispute for trial. These comments included an alleged statement by a supervisor that he was "trying to get more black supervisors"; a supervisor's reference to a group as employees as the "white boy clique" and the "honkey clan"; a supervisor's use of the word "honkey"; a supervisor's statement that the plaintiff was "being too friendly with the white officers"; and a supervisor's reference to the plaintiff as "Uncle Tom." Without specifying whether the alleged comments were temporally or logically related to the contested employment decisions, the court concluded that the record provided sufficient evidence of the supervisor's "discriminatory predisposition and animus toward plaintiff based on race and association."

    2. Hopkins v. Electronic Data Systems, 9 AD Cases 1724 (CA 6, 1999). A supervisor's alleged comment about the plaintiff who had Attention Deficit Disorder as "the mentally ill guy on Prozac that's going to shoot the place up" is not direct evidence of disability discrimination. In reaching this result, the court did not evaluate whether the comment was made by a decisionmaker close to the time of the decision. Instead, the court reasoned that one alleged "slur", a slur that did not refer to the plaintiff's ability to perform his job, was insufficient to establish direct evidence of discrimination.

    3. Wright v. Southland Cor., 80 FEP Cases 1280 (CA 11, 1999). Despite the uncontested fact that the protected-age plaintiff was replaced by an older individual, a three-judge panel of the Eleventh Circuit held that the district court erroneously dismissed the plaintiff's age discrimination claim. Although the basis for the court's opinion is unclear because two of the three judges refused to sign the opinion written by Judge Gerald Tjoflat, it appears that the panel found direct evidence of discrimination where the plaintiff claimed that his manager and a field consultant made comments suggesting that the plaintiff was too old to understand the computer system and that the plaintiff would be replaced by a younger employee.

    The lengthy opinion by Judge Tjoflat reasoned that a discrimination plaintiff can avoid the McDonnell Douglas burden-shifting framework altogether if he or she can sustain the ultimate burden of proving that the adverse employment action was based on a protected characteristic. Reasoning that (1) the McDonnell Douglas is only a non-mandatory tool for discrimination plaintiffs to establish their ultimate burden and (2) a discriminatory motive is not ruled out simply because the plaintiff was unqualified or replaced within the protected class, Judge Tjoflat concluded that plaintiffs "may forgo McDonnell Douglas and simply attempt to prove illegal discrimination 'under the ordinary standards of proof.'" (Citation omitted). Judge Tjoflat then equated the "ordinary standards of proof" language with the "direct evidence" theory, defining "direct evidence" as "evidence from which a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic." In reaching this novel definition of "direct evidence," Judge Tjoflat rejected the more common definition of "direct evidence" (which requires the plaintiff to produce evidence that, if believed, proves discrimination without requiring an inference), by citing to several cases which found "direct evidence" even though one or more inferences were required.

    4. Shorter v. ICG Holdings Inc., 80 FEP Cases 1031 (CA 10, 1999). Direct evidence of discrimination is "evidence which, if believed, proves [the] existence of [a] fact in issue without inference or presumption." Thus, racist statements which reflect a personal opinion cannot constitute direct evidence because, "such statements constitute only indirect or circumstantial evidence of discrimination because the trier of fact would have to infer that the bias reflected in the statements was the reason for the adverse employment decision." Accordingly, the plaintiff's allegations that the decisionmaker asked the plaintiff questions about the size of black mens' sex organs, told the plaintiff during confrontation that "you are just on the defensive because you're black," told the plaintiff's co-worker that the plaintiff talked like other black people, and described the plaintiff one or two days after her termination as an "incompetent nigger" cannot constitute direct evidence of discrimination. The statements reflect a personal opinion and do not relate directly to the employment decision.

    5. Halloway v. Milwaukee County, 80 FEP Cases 367 (CA 7, 1999). Requests that an employee retire do not necessarily refer to the employee's age. Therefore, the employer's comment that the plaintiff should retire does not constitute direct evidence of age discrimination. This is particularly true when the person who allegedly made the comments was not the person who made the decision to transfer the plaintiff to a less desirable job.

II. HARASSMENT

    1. Grow v. W.A. Thomas Co., 236 Mich App 696 (1999). The employer contested the trial court's refusal to read several jury instructions in a hostile environment sexual harassment case. However, the Court of Appeals held that the trial court fairly and accurately informed the jury of the law by instructing the jury to decide whether "Defendants adequately investigated and took prompt remedial action upon notice of the alleged hostile work environment." The court rejected the defendants' argument that the trial court should have gone further and read the portions of the proposed instruction (1) defining "adequate investigation and prompt remedial action" and (2) instructing the jury that it could only find for the plaintiff if the defendant did not satisfy such requirements.

    Based on evidence that it was the plaintiff, not her supervisor, who made crude, sexual comments and engaged in sexual behavior in the workplace, the defendants argued that the trial court should have instructed the jury that evidence of an "employee's participation and/or initiation in the sexual conduct or communication will defeat an employee's allegation of unwelcomeness unless the employee establishes a point at which her participation and/or initiation stopped and at which she made known to her coworkers or supervisors that the sexual conduct or communication would henceforth be considered unwelcome." The court rejected the defendants' argument, holding that the language stated the law incorrectly. The court reasoned that although evidence of the plaintiff's participation is relevant to the issue of unwelcomeness, such evidence "does not necessarily defeat a claim of hostile environment." Instead, the court held that evidence of the employee's participation is simply "a factor to consider when determining whether the conduct or comments at issue were 'unwelcome.'" Although the trial court could have instructed the jury that the plaintiff's participation in the conduct "is relevant to determining whether a hostile environment existed", the trial court did not abuse its discretion in refusing to do so. The court held that the instructions covered this issue simply by instructing the jury that the alleged conduct had to have been "unwelcome."

    2. Chambers v. Trettco, Inc., 232 Mich App 560 (1998), leave granted, 461 Mich 904 (1999). The plaintiff based her sexual harassment claim on a series of events that occurred during the one week her regular supervisor was on vacation. During that one week, the temporary supervisor made a series of lewd comments and sexual advances. There was no dispute that the conduct stopped after the plaintiff's regular supervisor returned, at which time the plaintiff complained to her regular supervisor about the temporary supervisor's conduct.

    First, the defendant argued that the plaintiff's allegations represented "a discrete, singular set of occurrences" which were not pervasive and were not sufficiently outrageous to create a hostile environment. The court rejected this argument, holding that the series of comments and touchings could sustain a hostile environment theory even though they all occurred during a one week period. The court also held that the fact that the conduct was severe or pervasive enough to create an "intimidating, hostile, or offensive" work environment is sufficient to establish that the terms of the plaintiff's employment were affected by the harassment.

    In addressing the vicarious liability issue, the court adopted the United States Supreme Court's holdings in Burlington Industries, Inc. v. Ellerth, 118 S Ct 2257 (1998) and Faragher v. Boca Raton, 118 S Ct 2275 (1998), citing only to the general principle that Michigan courts tend to view federal law as persuasive in interpreting civil rights issues. The court held that, under these two opinions, an employer will be held liable if its negligence is a cause for the harassment. The court then held that an employer is negligent if it knew or should have known of the conduct and failed to stop it. The court also adopted the affirmative defense mechanism set forth in these two opinions, thus requiring the employer to prove that "it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that plaintiff failed to take advantage of any preventative or corrective opportunities proved by defendant or to otherwise avoid harm."

    The only indication that the employer knew of the harassment during the one week it allegedly occurred came from a telephone call where, in speaking with the plaintiff, a regional director of operations "could sense that something was bothering plaintiff." The plaintiff told the regional supervisor that she could not discuss the matter right then, and did not mention that alleged sexual harassment was the source of her perceived dismay. When the week of harassment ended, the plaintiff informed her regular supervisor of the alleged harassment. The plaintiff then wrote down her allegations and spoke with the regional director of operations that had sensed that something was bothering the plaintiff. There was no claim that the harassment continued after she articulated her complaints.

    The court held that the plaintiff had presented an actionable case of hostile environment sexual harassment. The court held that the week-long series of incidents were "clearly" serious and pervasive. The court also upheld the jury's verdict that the employer had not taken prompt remedial action after it knew or should have known about the harassment. In supporting this holding, the court noted that the regional supervisor "could sense that something was bothering plaintiff" and that after the plaintiff expressed her complaint to her regular supervisor, the plaintiff was never informed about the results of what, if any, investigation was conducted concerning her complaints.

    Finally, the court determined that any error in the trial court's instruction that the employer is strictly liable if a supervisor sexually assaults or molests an employee through the exercise of his supervisory powers was harmless.

    In a strong dissent, Judge O'Connell reasoned "[i]t is not reasonable to infer from the regional director's vague understanding that something was amiss meant that he had notice of sexual harassment." Therefore, because the employer had no notice of the alleged harassment while it was occurring, the employer could not be held vicariously liable.

    In the order granting leave to appeal, the Supreme Court stated: "The parties are directed to include among the issues briefed: (1) Whether the principles adopted in Burlington Industries, Inc. v. Ellerth, 524 US 742 (1998), and Faragher v. City of Boca Raton, 524 US 775 (1998), should apply in cases brought under the Michigan Civil Rights Act? (2) If so, is a new trial required on the question whether the defendant established the affirmative defense permitted under those decisions? (3) If the Ellerth and Faragher principles do not apply, (a) is defendant vicariously liable for the acts of supervisor Wolshon, and (b) is defendant liable for failing to take prompt and appropriate remedial action on notice of Wolshon's conduct?"

    3. Moore v. KUKA Welding Systems, 171 F3d 1073 (CA 6, 1999). Although stating that the evidence was not overwhelming, the court found sufficient evidence to support the jury's verdict that the plaintiff had been subjected to hostile environment racial harassment. The evidence revealed that one of plaintiff's co-workers called him a nigger in front of a supervisor, another co-worker used the term "nigger-rigging" to represent poor workmanship, co-workers frequently told racially-derogatory jokes, someone wrote the phrase "kill all niggers" on a bathroom wall, and the plaintiff was asked to drive a white employee somewhere. The court added that the employer had notice of this objectively intolerable conduct because a supervisor had "observed and in some instances contributed to the offensive conduct...."

    4. Hafford v. Seidner, 80 FEP Cases 801 (CA 6, 1999). An African-American Muslim corrections officer sued his former employer, for hostile environment harassment. The plaintiff alleged a series of incidents, including a death threat another officer directed toward plaintiff after the two had engaged in a verbal altercation; a supervisor's instruction that the plaintiff stop fraternizing or according special treatment to Muslim inmates until a riot at another prison involving Muslim inmates was stabilized; a meeting where a supervisor said "that's the problem" when the plaintiff read from the Koran in response to the supervisor's statement that the plaintiff had not successfully passed his probationary period; one verbal confrontation with a co-worker where the co-worker referred to the plaintiff as a "black-ass fucking nigger"; and a series of anonymous calls the plaintiff received over the internal telephone system where the unidentified caller either threatened the plaintiff or made a racial remark. The plaintiff complained about this conduct, but was rarely able to identify the perpetrator. Concerning the events where the perpetrator was not identified, the employer generally instructed all the employees to stop the offensive behavior. When the plaintiff was able to identify a perpetrator, the perpetrator was issued a written reprimand.

    Without discussing the frequency of the incidents, the court held that the plaintiff had stated a triable cause of action for racial harassment because the plaintiff's "fellow correction officers engaged in a pattern of racial harassment consisting of not only racial slurs, but also physical threats." Although the court acknowledged that the plaintiff's reports to supervisors concerning these incidents failed to name the perpetrator and "included nonsensical comments," the notice element had been met because the plaintiff "set forth the necessary information in a manner sufficiently intelligible to warrant attention." Concerning the employer's response to the unidentified telephone calls, the court acknowledged that the employer made "a general announcement regarding improper use of internal telephones and, later, by individually calling officers to request that the conduct stop." Nevertheless, the court reasoned that the employer did not make a satisfactory attempt to prevent future conduct because "little was done to determine" the identity of the callers and that conducting interviews or individual calls at an earlier time "may have discouraged" any future harassment of the plaintiff.

    Furthermore, although the court affirmed the lower court's ruling dismissing the plaintiff's religious harassment claim, the court held that the plaintiff should be permitted to introduce evidence of the alleged religious harassment. The court reasoned that: "Although there is enough evidence of racial harassment for that claim to stand on its own, the district court should allow at trial for consideration of the possibility that the racial animus of [the plaintiff's] co-workers was augmented by their bias against his religion." The court added that: "It would not be right to require a judgment against [the plaintiff] if the sum of all of the harassment he experienced was abusive, but the incidents could be separated into several categories, with no one category containing enough incidents to amount to 'pervasive' harassment."

    5. Fenton v. HiSan, Inc., 79 FEP Cases 1138 (CA 6, 1999). The former employee failed to sustain her sex harassment claim, where the evidence showed that the employer took immediate, good faith steps to end the alleged harassment. Immediately after the female plaintiff reported that a male co-worker made vulgar comments and engaged in other harassing behavior, the employer questioned the perpetrator, conducted an investigation to verify the alleged conduct, checked the co-worker's disciplinary record, and moved the offending co-worker's work station away from the plaintiff's work station. When the co-worker subsequently made angry comments within the plaintiff's earshot, the employer immediately warned him that he would be disciplined unless he stopped making offensive comments.

    Williams v. General Motors Corp., 80 FEP Cases 753 (CA 6, 1999). The plaintiff, who had worked as a laborer on the midnight shift, supported her sexual harassment claim with allegations that her co-workers used foul language, called her a "slut" once, played non-sexual pranks on her and made three or four sexual remarks. The district court dismissed the case, ruling that of the 18 alleged incidents, only three or four were sexual in nature and that the others did not establish sex-based discrimination. The district court opinion grouped the 18 alleged incidents into four categories, evaluated whether the incidents in each category could support a sexual harassment claim and dismissed the case on the basis that the three or four sex-based incidents were not severe or pervasive enough to sustain a sexual harassment claim.

    Over a strongly-worded dissent, which accused the majority of radically and dramatically changing sexual harassment law without authority and at variance with Supreme Court precedent, a panel of the Sixth Circuit reversed. The panel held that the district court erroneously "disaggregated" the several acts of alleged harassment, thereby overlooking the Supreme Court's "totality of the circumstances" approach. According to the majority, this individualized evaluation of whether each claimed incident could support a sexual harassment claim robbed the allegations of their cumulative effect. Moreover, although the court recognized that there is a different standard of liability for co-worker harassment and supervisor harassment, the court held that a district court cannot "conduct a separate analysis based on the identity of the harasser until considering employer liability" and must include co-worker harassment that the employer may not have known about in the determination whether the harassment was pervasive. The examination whether the employer is liable for the harassment must follow the threshold evaluation whether the conduct, as a whole, created a hostile environment. Thus, the panel held that "the totality-of-circumstances test must be construed to mean that even where individual instances of sexual harassment do not on their own create a hostile environment, the accumulated effect of such incidents may result in a Title VII violation. This totality -of-circumstances examination should be viewed as the most basic tenet of the hostile-work-environment cause of action."

    A woman does not relinquish her right to be free from sexual harassment simply because she "chooses to work in the male-dominated trades." The standard for determining whether sexual harassment occurred cannot vary due to the nature of the work environment. The fact that blue-collar environments traditionally involve course language and harsh treatment is irrelevant to the issue whether the Plaintiff was sexually harassed. The panel rejected the view that the conduct must be overtly sexual in order to sustain a sexual harassment claim. Instead, the Court held that, regardless whether the conduct is sexual in nature: "Any unequal treatment of an employee that would not occur but for the employee's gender may, if sufficiently severe or pervasive..., constitute a hostile environment in violation of Title VII."

    7. Jackson v. Quanex, 191 F3d 647 (CA 6, 1999). The plaintiff attempted to support her racial harassment claim with allegations involving incidents that she did not experience directly. For the most part, the plaintiff's allegations involved experiences of co-workers within her racial group and things co-workers told her about. The district court excluded evidence concerning the incidents that the plaintiff did not experience, as well as the manner in which management reacted to such incidents. The district court then granted the employer's motion for a directed verdict, ruling that the plaintiff had not proven that she sustained psychological impairment, did not complain to management about the events she experienced, and that the conduct the plaintiff experienced did not make it more difficult for plaintiff to perform her job duties.

    The Sixth Circuit reversed on several grounds. First, relying principally on its earlier opinion in Williams, the court held that the trial court had erroneously deprived the plaintiff of the opportunity to establish that the "totality of the circumstances" cumulated to make her workplace hostile. The court then held that evidence concerning the treatment of other members in the plaintiff's racial group would help define the "environment" the plaintiff faced. Thus, the court held that "[c]omments that single out members of a protected class are relevant not only as to whether a particular work environment was objectively hostile to members of the protected class, but as to whether an employee belonging to the protected class subjectively felt 'harassed' and that 'racial epithets' need not be hurled at the plaintiff in order to contribute to a work environment that was hostile to her." Because the analysis may include incidents that the plaintiff did not experience, the plaintiff need not establish that she, personally, reported the incidents of harassment. Instead, management's reaction to incidents that other employees reported is relevant to the issue whether management made a reasonable attempt to stop harassment toward the racial group, in general.

    8. Burnett v. Tyco Corp., ___ F3d ___ (CA 6, 2000). The plaintiff based her sexual harassment suit on the following three incidents, all of which allegedly occurred during a six month period: a supervisor placed a pack of cigarettes containing a lighter inside her tank top and brassiere strap; the same supervisor gave her a cough drop while stating, "Since you have lost your cherry, here's one to replace the one you lost"; and the same supervisor commented on the plaintiff's sweatshirt which read "Deck the malls" by saying: "Dick the malls, dick the malls, I almost got aroused." The court affirmed the district court's ruling granting summary disposition for the employer, stating: "Burnett's three allegations occurring at the beginning and end of a six-month period are clearly not as pervasive as the fifteen incidents which occurred in Williams over a year-long period, or the various remarks made over the course of seven years in Abeita. Indeed, though it was clearly offensive, [the supervisor's] behavior cannot be said to be even as pervasive as the several remarks made regularly over a four-month period in Black which were insufficient to support the jury's verdict therein. Thus, the occurrence of the three allegations over the six month period does not give rise to a genuine issue of material fact as to whether the conduct was sufficiently pervasive to create a hostile work environment."

    Relying primarily on Williams, Judge Martin dissented. He reasoned that: "Although the number of incidents alleged by Burnett—she presents three incidents of inappropriate conduct—is less than those alleged in Black, Abeita, or Williams, this should not be determinative. When viewed under the totality of the circumstances approach, the severe nature of these incidents distinguishes the present case. At a minimum, these facts create a genuine issue material fact as to whether the work environment was objectively hostile."

    9. Morris v. Oldham County Fiscal Court, 201 F3d 784 (CA 6, 2000). The plaintiff claimed that she had been sexually harassed by a supervisor who told "dirty jokes" in her presence; made one alleged sexual advance toward plaintiff; once referred to the plaintiff as "hot lips"; and made "isolated comments about the plaintiff's state of dress." The court upheld summary disposition on the basis that the conduct was not severe or pervasive. The court reasoned that only the sexual advance was "truly offensive" and that the remainder of the conduct was "not severe enough to create an objectively hostile environment." This was particularly true where the jokes were not aimed at the plaintiff and that the supervisor's "behavior seems to have consisted of the kind of simple teasing, offhand comments, and isolated incidents that Faragher made clear did not amount to discriminatory changes in the terms and conditions of a plaintiff's employment."

    10. Watts v. Kroger Co., 81 FEP Cases 6 (CA 5, 1999). Although the female plaintiff did not go through her employer's sexual harassment procedure, she filed a grievance with her union. Accordingly, she did not unreasonably fail to "take advantage of any corrective opportunities provided by her employer or to avoid harm otherwise."

    11. Trujillo v. University of Colorado Health Sciences Center, 81 FEP Cases 741 (CA 10, 1999). A Hispanic former employee sued his employer for sexual harassment because his African-American supervisor criticized his work, corrected and monitored the plaintiff and did things with which the plaintiff disagreed. In upholding summary disposition, the Tenth Circuit stated: "The hostile work environment that Plaintiff portrays is simply a work environment that exhibits the monitoring and job stress typical of life in the real world. Normal job stress does not constitute a hostile or abusive work environment. As the Seventh Circuit explained, federal law 'does not guarantee a utopian workplace, or even a pleasant one... [P]ersonality conflicts between employees are not the business of the federal courts.' We cannot vilify every supervisor that implements a policy with which an employee disagrees or that monitors her employees' conduct."

    12. Martin v. Howard University, 81 FEP Cases 965 (DC DC, 1999). The plaintiff, a visiting law professor, sued her employer for sexual harassment because an unemployed homeless person who regularly used the law school library gave her two hand-delivered letters with a sexual theme, telephoned her and visited her office three times. According to the plaintiff, the university gave the perpetrator—a man with a criminal record and a history of violence—free access to the university facilities and, thus, facilitated the harassment. The court held that a jury should decide the case because the plaintiff had alleged more than a mere "epithet" and because the sufficiency of the university's response to the situation with the homeless perpetrator was a factual question for the jury.

    13. Dhyne v. Meiners Thriftway, 80 FEP Cases 1101 (CA 8, 1999). Even though the employer remedied the alleged harassment by transferring the alleged harasser to another shift, the employer could be liable for the co-worker's harassment. Despite its recognition that employers need time to gauge the credibility of the complainant and the seriousness of the situation, the panel held that a jury could find a two-month delay between the complaint and the transfer unreasonable.

    14. Scusa v. Nestle USA, 80 FEP Cases 239 (CA 8, 1999). The female employee premised her sexual harassment claim on incidents where her co-workers yelled at her, told off-color jokes and used foul language. The court held that the plaintiff did not demonstrate the existence of factual issue as to whether a co-workers' behavior was unwelcome, where she engaged in behavior similar to what she cited as examples of hostile environment sexual harassment.

    15. Holman v. State of Indiana, 79 FEP Cases 911 (ND Ind, 1998). Both a male and a female plaintiff claimed that they were subjected to unwanted requests for sexual favors from their supervisor. Under these circumstances, the plaintiffs cannot establish that the supervisor's conduct was "based on sex." Neither employee was subjected to disadvantageous terms or conditions of employment to which members of other sex were not exposed.

    16. Hurley v. Atlantic City Police Dep't, 79 FEP Cases 808 (CA 3, 1999). A sexual harassment claimant's evidence that other women in the workplace had been subjected to hostile environment is relevant to show that her working conditions were altered as result of witnessing hostility toward other women at workplace. Moreover, evidence of acts of harassment toward other women is probative of the issue whether the harassment the plaintiff experienced was sexually discriminatory and of whether the employer knew or should have known about the alleged harassment.

III. SEX DISCRIMINATION

    A. GENERAL

    1. Reed v. County of Casey, 80 FEP Cases 736 (CA 6, 1999). County jailer's decision to move the female deputy jailer to the midnight shift so that the jail could comply with state regulations requiring the presence of a female jailer when female prisoners are lodged in jail was justified under Title VII's bona-fide-occupational-qualification defense. Since the jail's essential function of lodging prisoners was and would continue to be undermined without presence of the plaintiff or another woman on the third shift, the county had no reasonable alternative but to move the plaintiff to the unwanted shift.

    2. Belfi v. Prendergast, 80 FEP Cases 1244 (CA 2, 1999). While the employer's inconsistent and pretextual explanations for why the female railroad office engineer was paid less than her male counterparts can establish pretext, such evidence does not constitute proof, as required by Title VII, that it intended to discriminate against her because she is female. Thus, the evidence of unequal pay was sufficient to sustain a claim under the Equal Pay Act, but was insufficient to sustain her claim under Title VII.

    B. PREGNANCY

    1. Cline v. Catholic Diocese of Toledo,199 F3d 853 (CA 6, 1999). A Catholic school decided not to renew the plaintiff's contract as a religious education teacher and basketball coach after the non-married plaintiff became pregnant. Citing to policies requiring that the teacher uphold the teachings of the Catholic faith by word and by example, the school cited the teacher's pre-marital pregnancy as the basis for discharge. The district court granted summary judgment for the school, holding that the teacher's pre-marital pregnancy made her unqualified for the position.

    The Sixth Circuit reversed. Noting that the plaintiff's burden at the prima facie is "easily met," the court reasoned that the district court had confused the prima facie and "rebuttal" stages by concluding that the plaintiff's pre-marital pregnancy made her unqualified. According to the court, the issue whether pre-marital sex is what motivated the discharge should have been evaluated at the "rebuttal" stage, so as to provide the plaintiff an opportunity to prove that the explanation is either false or discriminatory.

    The court next held that engaging in pre-marital sex is a legitimate, non-discriminatory explanation for discharging a Catholic school teacher who contractually obligated herself to promote Catholic principles. Had the real reason been the teacher's pregnancy, however, that would not be a legitimate, non-discriminatory reason. The court then held that the plaintiff had raised a material factual dispute that her pregnancy, not her pre-marital sex, was the real reason for the discharge. To support this conclusion, the court focused on allegations that men were never asked whether they engaged in pre-marital sex; the teacher received positive performance evaluations; a priest's statement that "things might have worked out differently" had the plaintiff notified him of her pregnancy sooner; evidence that officials' discussion concerning the plaintiff related to her pregnancy, not her pre-marital sex; and the fact that it was only the plaintiff's pregnancy that made the school aware of the pre-marital sex.

    2. Spivey v. Beverly Enterprises, 81 FEP Cases 780 (CA 11, 1999). In a pregnancy discrimination case, a plaintiff cannot establish that similarly situated non-pregnant people were treated differently by comparing her treatment with other employees who were injured on the job. The correct comparison is between pregnant employees and other employees with non-occupational disabilities.

    3. Sumner v. Wayne County, ___ F Supp 2d ___ (2000 WL 426572 (E.D. Mich.)). In a pregnancy discrimination case, the plaintiff tried to establish disparate treatment by comparing herself to a male who was permitted to return to work after an on-the-job injury. In rejecting the defendants' argument that this was an improper basis for comparison, Judge Cohn ruled that "[c]ontrary to defendants' arguments, the distinction that [the male comparable's] temporary disability was as a result of an injury sustained on the job, while [the plaintiff's] was as a result of her pregnancy (presumably sustained while she was off-duty), is not material. The proper focus under the comparison prong is whether the employees are similar in their ability or inability to work, regardless of the source of the injury or illness."

IV. AGE DISCRIMINATION

    A. Godfredson v. Hess & Clark, 173 F3d 365 (CA6, 1999). The Sixth Circuit reaffirmed that an employee is replaced only when another employee is hired or reassigned to perform his or her duties. "[A] person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work."

    B. Breck v. State of Michigan, ___ F3d ___ (CA 6, 2000). A class of state judges brought a federal equal protection challenge to state laws making them ineligible for reelection after the age of 70. Where age is not a suspect class under the Fourteenth Amendment, the state does not need to prove that its law is narrowly tailored to satisfy a compelling state interest. The classification need only be rationally related to the stated goal or purpose. Applying rational basis scrutiny, the court rejected the judges' constitutional challenge. The court reasoned that eliminating judicial candidates over 69 years old is rationally related to the goal of promoting judicial efficiency and reducing partisan judicial appointments.

    C. Auerbach v. Board of Education, 80 FEP Cases 1143 (CA 2, 1999). An early retirement plan conditioning receipt of early retirement incentive benefits on teachers' retirement in an optimum year (i.e., when the teacher completes 20 years of service and attains the age of 55), does not violate the ADEA. No teacher is required to accept the plan, and those who choose to reject the plan continue to receive all the benefits they are due.

    D. Whitehead v. Oklahoma Gas & Electric Co., 80 FEP Cases 790 (CA 10, 1999). The Older Workers Benefit Protection Act (OWBPA) is separate and distinct from the ADEA. Accordingly, proof that the employees signed waivers that did not comply with the OWBPA does not prove that their employer intentionally discriminated against them on the basis of their age.

    E. Reeves v. Sanderson Plumbing Products, 81 FEP Cases 609 (CA 5, 1999). In a jury trial, the plaintiff tried to establish pretext in his ADEA claim with evidence that one of the three decisionmakers commented that the plaintiff was so old that he "must have come over on the Mayflower" and that he was "too damn old to do the job." The court reversed the trial court's denial of the employer's motion for JNOV, holding that the evidence could not establish pretext where there was no evidence that the two other decisionmakers were motivated by an age-related animus. Moreover, two of the decisionmakers were over 50 and at least 20 management positions were held by people over the age of 50.

    F. Kendrick v. Kmart Corp., 2000 WL 24582 (ED Mich. 2000). The plaintiff sued for age discrimination even though he signed a severance agreement that contained a release of any and all existing claims. The plaintiff signed the agreement immediately after his boss explained the financial terms of the severance, flipped to the back of the document and suggested that the plaintiff sign it. The plaintiff signed the document without reading it, but left with the document to have it notarized. The plaintiff then mailed the document back to the employer.

    The employer moved for summary disposition on the basis of the release. The plaintiff responded by arguing that the notice requirement provision of the Older Workers Benefits Protection Act was not met because his boss told the plaintiff to sign the document immediately after he presented it to the plaintiff. Judge Feikens rejected the plaintiff's argument, reasoning that the plaintiff's argument that his boss "told him he had to sign the waiver immediately fails to raise an issue of material fact since he was not told he needed to return it that day." Judge Feikens also rejected the plaintiff's apparently unsupported contention that, regardless of when the employee signs and returns the document, the employer must wait the full 52-day period before accepting the release. Unless an employee is told that he has to return the document before the consideration period expires, the employer may accept the release as soon as the employee returns it.

    G. Reeves v. Sanderson Plumbing Products, Inc., 197 F3d 688 (CA 5, 1999). The age-protected plaintiff and another supervisor were terminated after an investigation showed they kept inaccurate time records. The inaccuracies resulted in workers being paid for time they did not work and frustrated the employer's ability to enforce its absenteeism and tardiness policies. In an effort to prove that the employer's explanation was false, the plaintiff argued that the employer's explanation for the termination was inconsistent, claiming that he was originally given one example where an employee was paid for time the employee did not work, whereas the employer argued at trial that the plaintiff's mistakes resulted in overpayment for numerous employees. In an effort to prove that discrimination was the real reason for the discharge, the plaintiff alleged that several months before the termination, one of the three decisionmakers said that the plaintiff was so old that he "must have come over on the Mayflower," and that he was "too damn old to do the job."

    The trial court denied the employer's directed verdict motion and the jury found in the plaintiff's favor. The Fifth Circuit reversed, holding that the employer was entitled to judgment as a matter of law under FRCP 50(a)(1) because the "facts and inferences point so strongly and overwhelmingly in favor of one party that a reasonable could not have concluded" in the plaintiff's favor. Although the court recognized that a "red flag" of pretext goes up if the employer is caught lying about the basis for the termination, the court held that the "inconsistency cited by [the plaintiff] can hardly be considered mendacious" and did not establish that the employer was lying. To the contrary, the court reasoned, the fact that the employer "may have explained this charge at the time of dismissal with only one instance of inaccurate record keeping, but buttressed its defense by adducing evidence of other similar infractions at trial smacks more of competent trial preparation than telling a lie." Nevertheless, the court held that proving that the employer lied is not dispositive, and that the plaintiff must sill establish the "essential final step" of proving that his discharge was motivated by his age.

    In addressing the plaintiff's evidence of discrimination, the court held that "despite the potentially damning nature of [the decisionmaker's] comments, it is clear that these comments were not made in the direct context of [the plaintiff's] termination." Moreover, there was no evidence that the other two decisionmakers, both of whom were over 50, made any age-related comments. Finally, at the time the plaintiff was discharged, 20 of the company's management positions were filled by people over the age of 50. Under these circumstances, the court held that there was insufficient evidence to support the jury's verdict and directed the trial court to enter judgment in the employer's favor.

    On November 8, 1999, the Supreme Court granted certiorari. The issues, as apparently phrased by the plaintiff, are as follows: "(1) Under the Age Discrimination in Employment Act, is direct evidence of discriminatory intent required to avoid judgment as matter of law for the employer? (2) In determining whether to grant judgment as matter of law under Federal Rule of Civil Procedure 50, should a judge weigh all the evidence or consider only evidence favoring the nonmoving party? (3) Is the standard for granting judgment as matter of law under Federal Rule of Civil Procedure 50 the same as the standard for granting judgment as matter of law under Rule 50?"

V. RACE/NATIONAL ORIGIN DISCRIMINATION

    A. Graham v. Ford, 237 Mich App 670 (1999). Relying on federal precedent, the "broad language" of and the policy behind the Civil Rights Act, the Court of Appeals held that the Michigan Civil Rights Act forbids discrimination on the basis of an employee's association with co-employees of a different race.

    B. Tetro v. Elliott Popham Pontiac, 173 F3d 988 (CA 6, 1999). A white employee can support a race discrimination claim with evidence that he was discharged because he has biracial child. The language in Title VII prohibiting discrimination "because of such individual's race" is not limited to discrimination "directly" related to the plaintiff's race can sustain a cause of action under Title VII. Thus, discrimination that is based "indirectly" on the plaintiff's race can sustain a Title VII claim. The court reasoned that this construction is consistent with the purpose of Title VII, case law from other circuits and EEOC regulations.

    C. Williams v. Ford Motor Co., 80 FEP Cases 1175 (CA 6, 1999). Affidavits from several individuals who scored "low" on the employer's pre-employment test but were ultimately successful in working in unskilled jobs at other companies are not sufficient to create a statistically significant correlation between the skills assessed by test and specific skills important to job performance.

VI. "REVERSE" DISCRIMINATION/AFFIRMATIVE ACTION

    A. Sharp v. Lansing, 237 Mich App 670 (1999). A Caucasian male plaintiff sued the City of Lansing under the Michigan Civil Rights Act and the equal protection clause of the United States Constitution, claiming that the City discriminated against him by rejecting his applications for employment on the basis of his race, sex and national origin. The trial court granted summary disposition for the City on the basis that the City's employment action was based on an affirmative action plan that had been approved by the Michigan Civil Rights Commission. The Court of Appeals affirmed. The court noted that Title VII shields employers against "'any action or proceeding based on any alleged unlawful employment practice' if the employer proves that it acted in good faith and in reliance on an EEOC opinion." Although it recognized that Michigan Civil Rights Act contained no such provision, the court held that it was bound by Cole v. General Motors Corp., 236 Mich App 515 (1999), which the court construed as standing for the proposition that an employer is insulated from liability under the Michigan Civil Rights Act whenever it would be insulated from liability under Title VII. Thus, the court concluded, since the reliance on an EEOC opinion would shield an employer from liability under Title VII, an employer's reliance on the Michigan Civil Rights Commission's ratification of its affirmative action plan must, under Cole, shield an employer from liability under the Michigan Civil Rights Act. The court went on to say that it disagreed with Cole and, were it not bound by Cole, it "would not create an immunity clause where the Legislature chose not to do so." The panel stated that "if we were working on a clean slate, we would agree with plaintiff that even an approved voluntary affirmative action plan must be subject to constitutional review."

    B. Zanni v. Medaphis Physician Services Corp., ___ Mich App ___ (Docket No. 206245, dec'd April 11, 2000). A special panel was created to resolve the conflict between Zoppi v. Chrysler Corp., 206 Mich App 172 (1994), and Zanni v. Medaphis Physician Services Corp., 237 Mich App 801 (1999). The former case held that a plaintiff could not bring an age discrimination case under the Michigan Civil Rights Act on the theory that the plaintiff was fired for being too young. The latter case followed Zoppi, but only because it had to under MCR 7.215(H)(1).

    The special panel concluded that "the plain language of the [Michigan Civil Rights Act] provides no basis to limit the protections of § 202 to older workers. On the contrary, the statute refers to 'chronological age', MCL 27.2103(1)(a); MSA 3.548(103(1)(a), without limiting its reach to any particular age group." Where, unlike the federal statute it was modeled after, the Michigan statute contains no language limiting the protected class to individuals over 40, the Court refused read such a limitation into statute. The Court also held that its holding was consistent with the purpose of the Civil Rights Act, reasoning: "While it is perhaps less common for younger employees to be judged on the basis of inaccurate stereotypes about their abilities, the potential nevertheless exists. Just as an older worker may be inaccurately perceived as less energetic and resistant to new ideas, a younger worker may be unfairly viewed as immature and unreliable, without regard for her individual merits." The Court stated in a footnote, however, that "employers are still free to discriminate among workers on the basis of factors, such as experience and education, that are often correlated with age."

    C. Iadimarco v. Runyon, 80 FEP Cases 1294 (CA 3, 1999). A white employee need not show background circumstances indicating that the employer has an animus against a historically privileged group in order to establish a prima facie case of race discrimination. It is sufficient for the employee to proffer evidence that the employer is treating some employees less favorably than others on the basis of their Caucasian race. In addition to rejecting the logic behind requiring non-minorities to sustain a heightened prima facie burden, the court stated "the concept of 'background circumstances' is irremediably vague and ill-defined."

VII. RELIGIOUS DISCRIMINATION

    Cline v. The Auto Body Shop, Inc., ___ Mich App ___ (2000). The plaintiff, an agnostic, alleged that his supervisor based certain terms and conditions of employment upon the plaintiff's attendance at his supervisor's church. The trial court granted summary disposition on the plaintiff's religious discrimination claim on the ground that the Civil Rights Act does not provide protection for atheists or agnostics who do not have a bona fide religious belief. The Court of Appeals disagreed. The Court held that: "the plain text of the statute provides no basis to limit the protections of § 202 to those individuals who allege a bona fide religious belief. On the contrary, the statute refers to 'religion' without limiting its reach to the religious beliefs of the employee. If an employer disfavors an employee because the employee is not in religious conformity with the employer, the employer has plainly disfavored that employee 'because of religion.'"

VIII. DISABILITY DISCRIMINATION

    A. PRIMA FACIE CASE

    1. Albertsons Inc. v. Kirkingburg, 119 SCt 2162 (1999). The Ninth Circuit erred in holding that a truck driver with monocular vision was disabled under the ADA. The Ninth Circuit's reasoning—that an individual with monocular vision sees significantly differently from the way most people see—erroneously transformed the "significant restriction" language in EEOC's definition of "substantially limits" into "difference." Thus, the Ninth Circuit undercut the fundamental statutory requirement that only impairments causing substantial limitations in an individual's ability to perform major life activities constitute disabilities. Moreover, an employer may require its truck drivers to meet the distant visual acuity standard of the Federal Motor Carrier Safety Regulations even though the standard may be waived experimentally in individual cases. The ADA should not be read to require employers to defend a decision not to participate in such an experiment.

    2. Sutton v. United Air Lines Inc., 9 AD Cases 673 (US, 1999). The EEOC's interpretative guidelines, which direct that persons be evaluated in their hypothetical uncorrected state without regard to mitigating measures such as assistive or prosthetic devices, is an impermissible interpretation of the ADA. "Looking at the Act as a whole, it is apparent that if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures—both positive and negative—must be taken into account when judging whether that person is 'substantially limited' in a major life activity and thus 'disabled' under the Act." "A 'disability' exists only where an impairment 'substantially limits' a major life activity, not where it 'might,' 'could,' or 'would' be substantially limiting if mitigating measures were not taken." Thus, although a person still has an impairment when the impairment is corrected by mitigating measures, the corrected impairment does not "substantially limi[t]" a major life activity. Furthermore, viewing an impairment in its uncorrected or unmitigated state runs directly counter to the statutory definition of 'disability', which requires that the analysis focus on the individual. Accordingly, nearsighted applicants for employment as commercial airline pilots with uncorrected visual acuity of 20/200 or worse are not disabled under the ADA. When this condition is corrected, the affected individuals can function identically to individuals without similar impairment.

    3. Murphy v. UPS, Inc., 119 SCt 2133 (1999). The determination whether the plaintiff's impairment "substantially limits" one or more major life activities is made with reference to the mitigating measures he employs. Thus, where the plaintiff's high blood pressure does not substantially limit a major life activity when the condition is medicated, he cannot sustain a cause of action under the ADA.

    The employer argued that it did not regard the plaintiff, a former UPS driver, as having a condition that substantially limited a major life activity but, rather, regarded him as being unqualified to work because his high blood pressure made him unable to meet applicable Department of Transportation regulations. A person is "regarded as" being disabled within the meaning of the ADA if the employer mistakenly believes that the person's actual, nonlimiting impairment substantially limits one or more major life activities. Evidence that the employer regarded the plaintiff as being unable to meet DOT regulations is not sufficient to meet this standard. At most, the evidence shows that the employer regards the plaintiff as being unable to perform one job—driving a specific type of vehicle. Thus, where the plaintiff could perform an array of other jobs, and has in fact performed the job of a mechanic for UPS, the plaintiff failed to show that he was regarded as being unable to perform a class of jobs.

    4. Chiles v. Machine Shop, Inc., 238 Mich App 462 (1999). After returning from disability leave, the plaintiff's employer informed the plaintiff that he would not be returned to his regular wage until he received a doctor's clearance permitting him to work without limitation. The plaintiff did receive a doctor's clearance to work without restriction, but was laid off the day after he was returned to his full wage. Plaintiff sued, claiming inter alia that his employer discriminated against him on the basis of a perceived disability. The Court of Appeals reversed the trial court's refusal to grant a directed verdict on this claim, holding that even if the employer believed the plaintiff was impaired, there was no evidence that the employer believed that the back problem severely restricted the plaintiff in the performance of the major life activity of working.

    Citing to Murphy v. UPS, Inc., 119 SCt 2133 (1999), the court held that a plaintiff could not raise a material issue of fact simply by showing that the employer thought the plaintiff was impaired. Instead, the plaintiff must show that the employer regarded the plaintiff as having an impairment that substantially limited a major life activity. To sustain this burden, the plaintiff must go beyond showing that the employer thought the plaintiff was unable to perform a particular job; but must show that the employer believed that the plaintiff had an impairment that significantly restricted the plaintiff's ability to perform "at least a wide range of jobs." Furthermore, the court held that "an impairment cannot be 'substantial' if it is of a merely temporary nature." The court then reasoned that "it is difficult to see how defendant could perceive that plaintiff suffered from an impairment that substantially limited a major life activity" where the plaintiff's injury was only temporary. Moreover, the court reasoned that even if there was evidence of a perceived impairment, summary disposition was proper because "plaintiff did not present evidence that his impairment, real or perceived, was viewed as a substantial limitation on his ability to perform a wide range of jobs."

    The court concluded by stating: "Too often the courts have simply accepted impairments as disabilities without strictly determining whether a plaintiff was disabled according to the language of the statutes; as a result, too many individuals have been designated 'disabled' who were outside the contemplation of the legislative bodies which drafted these statutes. In order to preserve the protections of the PWDCRA for those truly intended to benefit, courts must be sure to make findings that a plaintiff is truly included within the PWDCRA's definition of 'disabled.' The PWDCRA was not intended to limit employers' liberty to make general employment decisions whenever an employee turns out to have less than perfect health for some reason—it was only intended to limit discrimination on the basis of a genuine disability that does not affect the employee's ability to work."

    5. Hamlin v. Charter Township of Flint, 8 AD Cases 1688 (CA 6, 1999). Once a disabled person contends that a particular job requirement is unessential, the burden shifts to the employer to prove that the challenged job requirement is essential.

    6. Lown v. JJ Eaton Place, 235 Mich App 721, lv denied ___ Mich ___ (1999). The plaintiff was hired after informing her employer that she had "physical problems" that caused her to suffer pain and cramps. Later that year, the plaintiff was diagnosed with endometriosis and underwent surgery. When the plaintiff returned to work, she presented a doctor's note prohibiting her from doing "heavy lifting" or bending for at least a month. Several months later, the plaintiff refused an assignment to work in the dish room, claiming that she could not perform the job because she had "been up all night hurting." The plaintiff was sent home and eventually fired for refusing to work in the dish room. The trial court dismissed her claim under the PWDCRA on the basis that she was not "disabled" as the term is defined in the statute. The Court of Appeals agreed.

    Initially, the court rejected the employer's contentions that "lifting" is not a major life activity under the statute, and that general lifting restrictions, without more, are insufficient to constitute a disability. However, the court held that the plaintiff had failed to satisfy her burden of producing "some evidence from which a factfinder could conclude that her disability caused substantial limitations when compared to the average person." In reaching this result, the court reaffirmed that temporary conditions are generally not disabilities within the meaning of the statute. The court then refused to address the plaintiff's claim that an alleged two-year impairment can constitute a disability because the plaintiff had presented no evidence from which a factfinder could infer that the alleged two-year 15-pound lifting restriction impaired her ability to work or perform normal activities of daily living.

    7. Doren v. Battle Creek Health System, 9 AD Cases 1115 (CA 6, 1999). A pediatric nurse with tendinitis in multiple joints, pain in both knees and both feet, and a back problem sued her employer under the ADA after the employer denied her request to work only an 8-hour shift. The nurse's rehabilitation consultant reported that "[N]ot only is she restricted from her usual occupation because she was unable to perform in a variety of areas within that profession, but she is also restricted from classes of jobs, or broad ranges of jobs that deal with adults and require her to be on her feet, and to respond in an appropriate manner."

    The issue presented in the trial court, and hence on appeal, was whether the nurse was disabled under the ADA. The Sixth Circuit court held that the nurse was not substantially limited from performing a major life function where she failed to show the number of pediatric nursing jobs from which she is excluded or the availability of pediatric nursing positions for which she is qualified. Furthermore, the court was not persuaded by the rehabilitation consultant's report because it was "merely conclusory, restating the requirements of the law" and did not offer "specific facts showing that there is a genuine issue of fact for trial." Finally, the court held that testimony that the nurse was restricted to an 8-hour workday cannot make an individual disabled.

    8. Workman v. Frito-Lay, Inc., 8 AD Cases 1761 (CA 6, 1999). The "jury could have decided that controlling one's bowels is a major life activity." Therefore, where the plaintiff testified that her mechanism for controlling her spastic colon condition—a morning enema—became too painful after other surgeries, and where "retraining" her bowels to work without a daily enema forced her to use the restroom whenever she had the urge, the jury could conclude that the plaintiff was significantly restricted in the performance of a major life activity.

    9. Deas v. River West, LP, 8 AD Cases 989 (CA 5, 1998). Even though established major life activities like seeing, hearing and speaking are limited if a person temporally loses awareness,"awareness," by itself, is not a major life activity. Not every temporary loss of "awareness" constitutes a substantial limitation of the major life activities of seeing, hearing, and speaking. Therefore, an employee who sometimes lost awareness during mild epileptic seizures had not sustained her burden of establishing that she was disabled.

    10. Fjellestad v. Pizza Hut, 9 AD Cases 1153 (CA 8, 1999). The United States Supreme Court's holding that one must be precluded from more than one type of job to be considered substantially limited in working does not mean that one must be totally disabled from working any job in order to recover under the ADA. The ADA does not require a showing that absolutely no employment opportunities exist for the employee, as such an interpretation would render the ADA meaningless and virtually unable to provide a remedy. The ADA was designed to prevent discrimination against disabled persons who can perform the essential functions of their job, not benefit those who are totally disabled and unable to perform any job.

    11. Taylor v. Phoenixville School District, 9 AD Cases 1187 (CA 3, 1999). Thinking is a major life activity under the ADA. Accordingly, the plaintiff created a material issue of fact as to whether she was disabled under the ADA by showing that, despite medical treatment, her chronic bipolar disorder harms her ability to think. This is particularly true where the side-effects of the psychotropic drugs the plaintiff took to treat her disease affected her ability to think clearly.

    12. Pack v. K-mart Corp., 8 AD Cases 1880 (CA 10, 1999). A former employee alleged that she was terminated because of her depression, which disrupted her sleeping patterns. The court held that sleeping is major life activity, since sleeping is a basic activity that the average person in the general population can perform with little or no difficulty. Concentration, however, is not itself a major life activity, even though it may be a significant component of major life activity.

    13. Lessard v. Osram Sylvania Inc., 9 AD Cases 417 (CA 1, 1999). Although the court did not reach the issue directly, it stated that it doubted that Congress intended the scope of protection against perceived disabilities to extend beyond the scope of protection for actual disabilities. Thus, if an impairment is not actually a disability under the ADA, it cannot be a disability for purposes of a perceived disability claim.

    14. Sutton v. Lader, 9 AD Cases 1182 (CA 11, 1999). A former disaster relief construction analyst who had surgery following a heart attack was not regarded as disabled, where he was perceived to have only a temporary incapacity to perform essential job functions. A temporary inability to work while recuperating from surgery is not a permanent or long-term impairment, and therefore cannot constitute a disability under the Rehabilitation Act of 1973. Furthermore, an employer's perception that an employee could not perform particular task safely does not establish that employer regarded him as disabled.

    15. Hilburn v. Murata Electronics, 9 AD Cases 908 (CA 11, 1999). The ADA does not prevent an employer from disciplining or terminating a non-disabled employee who violates a neutral attendance policy, even if the absenteeism is the result of the employee's need to care for a disabled husband and son.

    16. Hammon v. DHL Airways, Inc., 8 AD Cases 1707 (CA 6, 1999). Where the former pilot never suggested that his emotional problems stemmed from an anxiety disorder, the former pilot failed to establish that his employer knew or should have known about his alleged disorder. This is true even though he told supervisors about his loss of confidence.

    17. Gorbitz v. Corvilla Inc., 9 AD Cases 1772 (CA 7, 1999). An employee who was injured in an automobile accident cannot demonstrate a factual issue as to whether her employer regarded her as disabled under the ADA merely by showing that her employer was aware that she had numerous medical appointments after the accident. Medical appointments do not necessarily signal the existence of a disability, and the employee's speculation about what the employer may have believed does not create factual issue.

    18. McAlindin v. County of San Diego, 1217 (CA 9, 1999). Sleeping, engaging in sexual relations, and interacting with others are major life activities within meaning of the ADA. Each activity is basic and significant in an average person's life.

    19. Richards v. American Axle & Manufacturing, 84 F Supp 2d 862 (ED Mich, 2000). A former employee with a cleft left hand filed an ADA suit after being terminated for three consecutive unexcused absences. Judge Rosen ruled that the law provides that a physical impairment cannot, by itself, establish that the plaintiff is "disabled" under the ADA. Thus, the mere fact that the plaintiff has an obvious "physical impairment" was insufficient to raise a material factual dispute. Judge Rosen then ruled that, where the plaintiff had worked a variety of jobs in the last 13 years, the plaintiff could not establish that she was substantially impaired in the life activity of working, "the only life activity put at issue in Plaintiff's Complaint." Although the plaintiff did introduce evidence that she "suffer[s] some limitation" in performing her day-to-day activities, such evidence failed to meet the Supreme Court's standard that the impairment be a "considerable" limitation that limits a major life activity "to a large degree." Regardless, Judge Rosen ruled that the plaintiff failed to seek accommodation for her alleged disability; failed to establish a nexus between her disability and her discharge; and failed to show that the employer's legitimate nondiscriminatory explanation was pretextual.

    B. MEDICAL EXAMS.

    1. Sullivan v. River Valley School District, 9 AD Cases 1711 (CA 6, 1999). A tenured teacher began engaging in disruptive and abusive verbal outbursts at school board meetings, shoved papers in the faces of individual board members, disclosed confidential grades to a newspaper, made derogatory remarks about his superiors, threatened school board members, wrote letters with inappropriate language and failed to attend a meeting with the school superintendent to discuss these incidents. Based on advice from an outside mental health professional, the school board believed the teacher might be dangerous, unstable and unable to perform his job functions. Accordingly, the school board ordered the teacher to undergo mental and physical fitness-for-duty examinations. After the teacher was suspended for refusing to attend the examinations, the teacher sued under the MPWDA and the ADA, claiming that he was illegally suspended due to a perceived disability.

    The Sixth Circuit affirmed the district court's decision to grant summary judgment for the employer. The court began its analysis by noting that an employer's perception that health problems are adversely affecting an employee's job performance is not tantamount to a perception that the employee is disabled. Moreover, because "[a]wareness of behavior that one might associate with an impairment does not show treatment of an employee as disabled and requiring an employee to see a psychologist before returning to work does not run afoul of the ADA," a request that an individual undergo a mental or physical exam to determine their ability to perform the job does not automatically establish that the employer perceived the employee to be disabled. The court warned, however, that employers' ability to order mental examinations is not unbounded. The employer must ensure that the examinations are restricted to determining whether the employee can continue to fulfill the essential functions of the job and cannot be ordered on the basis of weak facts. The employer in this case did have a reasonable good faith belief that the teacher was experiencing problems that could affect his ability to perform the job, so summary disposition on his MPWDA and ADA claims was proper.

    2. McGregor v. National Railroad Passenger Corp., 9 AD Cases 1207 (CA 9, 1999). "100 percent healed" or "fully healed" policies violate the ADA. Such policies permit employers to use a meaningless, non-job-specific evaluation whether the employee is 100 percent healed to overshadow the real issue, which is whether the individual is qualified to perform the essential functions of his or her job.

    C. ESTOPPEL

    1. Cleveland v. Policy Management Systems Corp., 9 AD Cases 491 (US, 1999). Pursuit and receipt of Social Security disability benefits does not automatically estop the recipient from recovering under the ADA. Nor do such representations create a strong presumption against an ADA claim. Even though individuals seeking Social Security disability benefits must represent that they are too disabled to work, the individuals may still claim that they could have worked with a reasonable accommodation. Such a claim is not inconsistent with a total disability representation to the Social Security Administration, because the Social Security Act defines total disability without contemplating the concept of reasonable accommodation. However, avoiding summary judgment of an ADA claim requires the plaintiff to explain why his or her representations to the Social Security Administration are consistent with his or her claim under the ADA that he or she could "perform the essential functions" of the job, at least with reasonable accommodation.

    2. Hall v. McRea Corp., 238 Mich App 361 (1999). Noting that the Social Security Act defines "total disability" without contemplating whether the employee could perform the job with a reasonable accommodation, the court held that representations to the Social Security Administration that one is totally disabled does not automatically preclude a claim of disability discrimination under the Michigan Act. However, "[w]hile plaintiff's representation to the Social Security Administration [claiming a total disability] does not automatically preclude his handicap discrimination claim, he should not be permitted to proceed without explaining how he could, in good faith, represent a total disability when he was able to perform the job with reasonable accommodation." Accordingly, the Court of Appeals rejected the trial court's ruling granting summary disposition on the basis of estoppel, but affirmed on the basis that the plaintiff had failed to establish that her disability played a role in the adverse employment action.

    D. ACCOMMODATION.

    1. Walsh v. United Parcel Service, 201 F3d 718 (CA 6, 2000). Where an employer has provided substantial leave already and there appears to be no reasonable prospect that the individual will work in the foreseeable future, the ADA does not require an employer to provide additional leave time to accommodate a "disability" arising from a non work-related accident.

    2. Taylor v. Pepsi-Cola Co., 9 AD Cases 1731 (CA 10, 1999). An indefinite medical leave is not a reasonable accommodation. Thus, the plaintiff's rights under the ADA were not violated when his employer terminated his employment after the plaintiff missed work for over a year due to a back injury and where the plaintiff could not provide specific information about when he might be able to return to work.

    3. Barnett v. U.S. Air Inc., 9 AD Cases 1608 (CA 9, 1999). An employer cannot be independently liable under the ADA for failing to engage in the "interactive process." EEOC regulations state only that the interactive process "may be necessary." The ADA does not create independent liability against an employer for failing to engage in ritualized discussions with employees.

IX. FAMILY AND MEDICAL LEAVE ACT

    1. Douglas v. EG Baldwin & Associates, Inc., 150 F3d 604 (CA 6, 1998). Even though her employer did not employ enough employees to fall withing the FMLA, the district court held that the employer had, through its conduct and representations, modified its at-will employment relationship and effectively adopted the terms of the FMLA. The Sixth Circuit reversed, holding that the federal court lacked jurisdiction over the case where the employer employed too few employees to come within the ambit of the FMLA.

    2. Brohm v. JH Properties, Inc., 149 F3d 517 (CA 6, 1998). The plaintiff, an anesthesiologist, claimed that his employer violated the FMLA by discharging him for sleeping during surgical procedures. The plaintiff claimed that his employer violated the FMLA by refusing to provide him medical leave and to allow him to return after treatment for sleep apnea. The Sixth Circuit upheld the district court's ruling that, by failing to request leave during his employment, he had failed to state a violation of the Act. Although the plaintiff subsequently received medical attention for his condition, he had already been terminated at that time. Therefore, he was not an "eligible employee" at the time he received medical attention. The Court added that the Act does not impose an affirmative duty to grant leave without a request.

X. RETALIATION

    A. Mitan v. Neiman Marcus, ___ Mich App ___ (2000). The Court of Appeals affirmed the trial court's decision to dismiss the plaintiff's retaliation case pursuant to MCR 2.116(C)(10). Although the Court held that a vague charge of discrimination could invoke the anti-retaliation provisions of the Handicappers Civil Rights Act, the Court held that the plaintiff's written complaint to her supervisor did not constitute protected activity because it did not raise the specter of a civil rights complaint. Although the plaintiff had alleged that her supervisor had engaged in "job discrimination", she did not state or imply that this alleged discrimination was related to her disability

    B. Chiles v. Machine Shop, Inc., 238 Mich App 462 (1999). The plaintiff sustained a work-related back injury and eventually took a disability leave. The plaintiff received full worker's compensation benefits until he returned to work. Eventually, the plaintiff returned to his position, but was put on a "work-hardening program" where he was paid a reduced wage that was supplemented by worker's compensation benefits. The plaintiff was told that he would resume earning his regular wage when his doctor lifted his work restrictions. Four days after the plaintiff produced a physician's clearance to work without restriction, and one day after the plaintiff resumed earning his regular wage, the plaintiff was permanently laid off. According to the employer's president, plaintiff was laid off because he was not as productive as the individual who had replaced the plaintiff during his disability leave. The plaintiff was rehired when that replacement worker died.

    The Court of Appeals found sufficient evidence to sustain the jury's conclusion that the plaintiff was terminated in retaliation for his decision to file for worker's compensation benefits. The court held that the jury could find pretext where the plaintiff had (1) received positive evaluations, (2) had no disciplinary write-ups in 22 years of employment, and (3) was recalled to work after the supposedly superior performing replacement died. The court further held that a jury could have concluded that retaliatory motive contributed to the defendant's actions because the plaintiff was (1) told that his work restrictions were the only obstacle to his being returned to full wages, (2) terminated the day after he returned to full wages (3) produced "evidence that cutbacks were not necessary..." (4) produced "evidence that upper management inquired into the cost of plaintiff's workers compensation benefits" and (5) produced evidence that the defendant played a role in having the plaintiff's work restrictions lifted.

    C. Moore v. Kuka Welding Systems, 171 F3d 1073 (CA 6, 1999). Frequent disciplinary write-ups for "trivial matters and unwarranted criticism of plaintiff's work", combined with the fact that his co-workers began avoiding him shortly after he filed an EEOC claim was sufficient evidence to sustain the jury's verdict that the employer retaliated against the plaintiff.

    D. Morris v. Oldham County Fiscal Court, 201 F3d 784 (CA 6, 2000). The Sixth Circuit recognized a cause of action for retaliatory harassment. Accordingly, "severe or pervasive supervisor harassment that is engaged in because an individual 'has opposed any practice made an unlawful employment practice by' Title VII also can constitute 'discrimination under 42 USC § 2000e-3(a)."

    E. Anderson v. Coors Brewing Co., 9 AD Cases 835 (CA 10, 1999). The plaintiff attempted to support her retaliation claim with evidence that she received harassing phone calls after she filed an EEOC charge. The phone calls, which consisted of background music and occasional laughter, did not mention the EEOC charge and were not threatening. Nor was there any evidence that the calls were placed by employees with decision-making authority or that management condoned them. The Tenth Circuit affirmed summary disposition on the basis that the allegedly harassing phone calls could not constitute an adverse employment action for purposes of retaliation claim.

    F. Richardson v. New York State Department of Correctional Service, 80 FEP Cases 110 (CA 7, 1999). Unchecked retaliatory co-worker harassment, if sufficiently severe, may constitute an adverse employment action sufficient to support a retaliation claim. Thus, the African-American former employee stated a retaliation claim by alleging that her employer took no action to discipline the co-workers who put manure in her parking space, hair in her food, scratched her car and shot a rubber band at her.

    G. Burger v. Central Apartment Management, 79 FEP Cases 489 (CA 5, 1999). The denial of the employee's request for a lateral transfer was not an adverse employment action sufficient to form the basis of a retaliation claim.

    H. Ribando v. United Airlines, 81 FEP Cases 897 (CA 7, 1999). "[N]ot everything that makes an employee unhappy is an actionable adverse action...." Accordingly, placing a "letter of concern" in an employee's personnel file after she filed an EEOC complaint cannot sustain a retaliation claim, as a matter of law.

    I. Primes v. Reno, 80 FEP Cases 1345 (CA 6, 1999). A supervisor's conduct of giving an African-American Assistant U.S. Attorney a mid-range performance evaluation of "fully successful" for his second year is not the type of adverse employment action contemplated by Title VII. In supporting this conclusion, the court stated: "If every low evaluation or other action by an employer that makes an employee unhappy or resentful were considered an adverse action, Title VII would be triggered by supervisor criticism or even facial expressions indicating displeasure. Paranoia in the workplace would replace the prima facie case at the basis for a Title VII cause of action."

    J. EEOC v. Perfection Steel Treating, Inc., 10 AD Cases 629 (ED Mich, 2000). The plaintiff had reached the third step of the four-step progressive discipline procedure for attendance problems when he testified on behalf of a co-employee in an ADA suit. After testifying, the plaintiff incurred another unexcused absence which, according to the policy, required his discharge. Nevertheless, the EEOC claimed that the plaintiff's termination violated the ADA's anti-retaliation provision. Judge Duggan rejected the EEOC's claim and granted the employer's summary judgment motion. In ruling that the EEOC could not establish a prima facie case, Judge Duggan reasoned that there was no causal connection between the adverse employment action and the discharge where three of the four disciplines preceded the plaintiff's testimony. Judge Duggan also noted that, particularly where the plaintiff had twice benefitted from the employer's "mistakes," the employer's imperfect administration of its attendance policy did not give rise to an inference of discrimination. Judge Duggan further ruled that, even assuming that the plaintiff could prove a prima facie case, there was no evidence of a "but for" connection between the protected activity and the termination.

XI. WHISTLEBLOWERS PROTECTION ACT

    Henry v. Detroit, 234 Mich App 405, leave denied, ___ Mich ___ (1999). The plaintiff, a former Commander with the Detroit Police Department, claimed that he was terminated for giving deposition testimony in a lawsuit a police officer had filed against the department. The testimony involved the Plaintiff's claim that departmental rules were violated during the investigation into the role officers played in the death of Malice Green. Defendants argued that the plaintiff failed to allege a prima facie whistleblowers case because the plaintiff had not engaged in protected activity. Specifically, the defendants claimed that the internal departmental procedures the plaintiff had testified about could not fall within the statutory definition of "law, regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States." The court disagreed, holding that regulations included in a police manual promulgated pursuant to the Detroit City charter are regulations of a state subdivision.

    Defendants also claimed that plaintiff was not engaged in protected activity because deposition testimony in a civil suit is not a report to a public body. The court agreed, but held that the conclusion did not require reversal. Separating whistleblower cases into two types -- individuals who report illegal activity to a public body (type 1) and individuals who "participate in a previously initiated investigation or hearing at the behest of a public body" (type 2)—the court held that the plaintiff's testimony was type 2 activity. Because the deposition was compelled pursuant to court rules in a "court action," the court found that the plaintiff's actions were pursuant to a hearing of a public body. Alternatively, since the plaintiff was testifying in a lawsuit brought by a police officer attempting to remedy departmental improprieties, the testimony could qualify as participation in a hearing concerning a public body.

XII. PUBLIC POLICY

    A. Edelberg v. Leco Corp., 236 Mich App 177 (1999). After experiencing performance problems, the plaintiff was asked to sign a "last chance agreement" which included language waiving any claims, suits, or causes of action against the employer. The plaintiff was discharged for refusing to sign the agreement. Asserting that the agreement would have forced him to waive rights under the Workers' Disability Compensation Statute and the Michigan Employment Security Act, the plaintiff claimed that the discharge violated the exception to the at-will doctrine that forbids discharge for the exercise of well-established statutory rights. The court disagreed. Because Michigan law expressly invalidates an employee's waiver of rights under the cited statutes, the plaintiff had not exercised a right by refusing to sign the agreement.

    B. Perry v. Woodward, 80 FEP Cases 1077 (CA 10, 1999). 42 U.S.C. §1981, as amended by Civil Rights Act of 1991, prohibits the termination of a contract for a racially discriminatory reason. There are sufficient contractual rights in an at-will relationship to sustain a claim for wrongful termination under § 1981. Thus, even though the employment relationship was "at-will," the Hispanic deputy county clerk could sue under § 1981 after she was discharged, allegedly for defying her employer's directive not to hire any more Hispanics.

XIII. ARBITRATION

    A. Arslanian v. Oakwood United Hospitals, Inc., ___ Mich App ___ (Docket No. 189349, dec'd April 21, 2000). The plaintiff was discharged for assaulting a co-worker. The plaintiff grieved the discharge and, pursuant to the controlling collective bargaining agreement, took his case to mandatory arbitration. After an arbitrator rejected the grievance and upheld the termination, the plaintiff sued his employer in circuit court, alleging several torts, retaliation and sex discrimination. The circuit court granted the defendants' motion for summary disposition, reasoning that the plaintiff was bound by the arbitrator's decision. In an unpublished opinion, the Court of Appeals affirmed the circuit court's dismissal of the tort claims but, relying on Rushton v. Meijer, Inc., 225 Mich App 156 (1997), reversed the trial court's decision to dismiss the statutory claims.

    Reconsidering the case in light of Rembert v. Ryan Family Steakhouse, Inc., 235 Mich App 118 (1999), the Court of Appeals affirmed its original decision. According to the Court of Appeals, the Rembert special panel expressly chose not to resolve the issue whether an employer could use an arbitration provision in a collective bargaining agreement to compel arbitration of a statutory cause of action. Following what it represented to be the "vast majority of courts", the Supreme Court's opinion in Alexander v. Gardner-Denver, 415 US 36 (1974), and Justice Cavanagh's concurrence in Heurtebise v. Reliable Business Computers, Inc., 452 Mich 405 (1996), the Court of Appeals held that "because the union asserts control in the labor arbitration process and because the interests of the individual in enforcing his or her statutory rights may be subordinated to the perceived greater interest of the bargaining unit, mandatory labor arbitration of civil rights claims is inappropriate."

    The Court of Appeals' discussion of this issue may have been unnecessary, however, where the Court also held that, contrary to Rembert and Wright v. Universal Maritime Service Corp., 525 US 70 (1998), the arbitration clause in the collective bargaining agreement did not clearly state that civil rights claims must be arbitrated.

    B. EEOC v. Frank's Nursery & Crafts, Inc., 177 F3d 448 (CA 6, 1999). The Plaintiff signed an employment application wherein she agreed to submit discrimination claims to binding arbitration. After being passed up for a promotion, the plaintiff filed an EEOC charge alleging that the defendant refused to promote her because of her race. The defendant responded to the EEOC's lawsuit for money damages and injunctive relief with a motion to compel arbitration, which the district court granted.

    The Sixth Circuit began its analysis by phrasing the issue as "whether a single employee may, by entering into a private arbitration agreement with her employer, divest the EEOC of that [extensive] congressional grant of authority [to remedy unlawful employment discrimination under Title VII]." The court proceeded to provide a lengthy articulation of powers of the EEOC, focusing on the fact that the EEOC's authority to prosecute discrimination is not necessarily reliant on the wishes of the individual(s) who brought the issue to the EEOC's attention. Because the EEOC's interests are broader and not necessarily identical to the charging party, the Court concluded that the individual charging party cannot limit the rights of the EEOC by entering into an arbitration agreement. The court reasoned: "To empower a private individual to take away this congressional mandate, by entering into arbitration agreements or other contractual arrangements, would grant that individual the ability to govern whether and when the EEOC may protect the public interest and further our national initiative against employment discrimination, and to thereby undo the work of Congress in its 1972 amendments. Accordingly, we conclude the district court erred in dismissing the EEOC's claim for monetary relief on behalf of [the charging party] by relying on principles of preclusion and waiver, and on the FAA."

    Accordingly, the court held that the FAA's presumption favoring arbitration did not apply because the EEOC had never agreed to arbitrate. Moreover, focusing exclusively on how the EEOC is distinct from a private complainant, but without explaining how those interests are different when the EEOC seeks monetary damages on the charging party's behalf, the court held that the charging party's signature on the arbitration agreement does not preclude the EEOC from pursuing in court a monetary remedy on the charging party's behalf.

    Judge Nelson dissented against the conclusion that the EEOC could seek monetary relief on behalf of the charging party after the charging party agreed to arbitrate. Judge Nelson argued that EEOC v. Kidder, Peabody & Co., 156 F3d 298 (2d Cir. 1998), the only prior circuit court case to address the issue directly, correctly held that although the EEOC could seek equitable relief, the EEOC could not seek monetary damages in court on behalf of an individual who agreed to arbitrate the dispute. Judge Nelson agreed with the reasoning in Kidder, Peabody that, although the rights of the EEOC and the charging party can be distinct, "in seeking individual monetary relief in court, as opposed to class-wide injunctive relief, the EEOC does not represent the public in the same degree." Instead, the EEOC is pursuing its "representative responsibilities when it seeks private benefits for an individual...." Thus, and pursuant to the principles of the FAA and the Supreme Court's opinion in Gilmer, Judge Neslon would have held that the private arbitration agreement would bar the EEOC against seeking monetary relief on behalf of the charging party in court.

    C. Green v. Ameritech Corp., 81 FEP Cases 993 (CA 6, 2000). The parties' arbitration agreement required the arbitrator to submit an opinion that "explains the arbitrator's decision with respect to each theory advanced by each Plaintiff...." The arbitrator's opinion, however, consisted of short, conclusory statements stating little more than that the plaintiffs had not proven their respective cases. The district court vacated the arbitrator's opinion on the basis that the arbitrator breached the arbitration agreement by failing to explain his decision. The Sixth Circuit reversed, holding that the word "explain" is vague and does not necessarily require an elaborate articulation of the arbitrator's factual and legal bases. Had the parties wanted an elaborate opinion, they should have said so in the agreement by, for example, requiring the arbitrator to "fully" to set forth his factual and legal conclusions.

    D. EEOC v. World Savings & Loan Association, Inc., 78 FEP Cases 1483 (D Md. 1999). The court adopted Judge Nelson's position concerning the EEOC's right to obtain monetary relief on behalf of the charging party. Although the court recognized that the EEOC could not be foreclosed from prosecuting an enforcement action in court, the fact that the charging party signed an arbitration agreement does preclude the EEOC from seeking monetary damages on the charging party's behalf.

    E. Weaver v. Florida Light & Power Co., 9 AD Cases 363 (CA 11, 1999). The district court erred in enjoining arbitration of an ADA claim on the basis that the district court had already decided those claims. Injunctive relief was improper because the defendant has an adequate remedy at law—namely, it can raise its defenses of res judicata and waiver before the arbitrators.

    F. Carson v. Giant Food, 79 FEP Cases 976 (CA 4, 1999). General language in a collective bargaining agreement cannot be used to compel union employees to arbitrate their Title VII and ADEA claims. Therefore, the employer could not compel arbitration based on a collective bargaining agreement which forbids discrimination and requires arbitration of disputes "regarding the terms" of the collective bargaining agreement.

XIV. EVIDENCE AND PROOF

    A. LeGendre v. County of Monroe, 234 Mich App 708 (1999). In a sex discrimination and retaliation case, the plaintiffs alleged that they sustained "injuries, all of which are continuing in nature," including embarrassment, mortification, humiliation, and outrage. These emotional damages did not constitute a separate claim, but were listed among plaintiffs' claimed damages for the alleged sex discrimination and retaliation. The trial court dismissed these allegations when the plaintiff refused to respond to the defendants' requests for documentation from the plaintiffs' physicians and mental health professionals. Arguing that they should be able to prove mental distress without submitting to "invasive inquiries into [their] most sensitive private affairs" the plaintiffs argued that the trial court erred in dismissing their emotional damages claims because of their refusal to produce the requested medical evidence.

    The Court of Appeals affirmed, but only because it was forced to under Hyde v. Univ of Michigan Regents, 226 Mich App 511 (1997). Citing to a number of cases which rejected a defendant's attempt to compel a medical examination, the panel noted that the majority of federal courts hold that vague, conclusory allegations alleging "garden-variety" mental distress damages do not place such issues "in controversy." The court appeared to use this conclusion for the proposition that the requested material was not discoverable. Thus, were it not for Hyde, the panel would have reversed the trial court's order precluding testimony regarding ordinary psychological or emotional distress. The court offered no analysis as to why the plaintiffs should be able to introduce evidence concerning mental distress damages that are not "in controversy."

    B. Franzel v. Kerr Mfg. Co., 234 Mich App 600 (1999). The defendant in a breach of contract case argued that the trial court abused its discretion in admitting, over defendant's objection, a letter defendant's counsel wrote to defendant's vice-president for human resources. The letter concerned the plaintiff's reinstatement, and included language implying that the employer did not really want the plaintiff to return. The plaintiff argued that the defendant waived the attorney client privilege by disclosing the letter to plaintiff when it produced the letter along with the plaintiff's personnel file. The court disagreed, finding no evidence that the letter was intentionally produced to plaintiff.

    First, the court found the plaintiff's claim that the letter was produced in the personnel file incredible because the entire file was Bates-stamped before it was produced and the plaintiff could not produce a Bates-stamped copy of the attorney's letter. Second, the court found the plaintiff's version of how she obtained the letter incredible because the defendant "apparently had no reason to place or keep a letter from its own attorney in plaintiff's general personnel file." Thus, the court held that there had been no "true waiver" of the attorney-client privilege. Due to the clearly prejudicial nature of the letter the court ordered a new trial.

    Defendants also argued that the trial court had reversibly abused its discretion in denying defendant's motion in limine to exclude testimony from a psychologist with whom Defendant had retained and consulted before trial. The Court of Appeals held that the trial court had abused its discretion in permitting the psychologist to testify that (a) plaintiff was a credible witness (b) the defendant's employment policies were petty and trivial, (c) defendant should settle the lawsuit because the plaintiff was a strong witness, and (d) defendant set plaintiff up to fail. The court reasoned that the psychologist should not have been permitted to comment on the defendant's employment policies because he had no expertise in the subject matter. The court further held that the expert should not have been able to comment on the plaintiff's credibility because (1) the opinion was originally formed in response to defense counsel's inquiry during trial preparation and (2) "the jury is the sole arbiter of witness credibility." As for topic (d), the court held that the testimony should have been excluded because it was premised on the improperly admitted attorney letter.

    Moore v. Kuka Welding Systems, 171 F3d 1073 (CA 6, 1999). The trial court properly permitted the brother-in-law of a non-supervisory employee to testify as to what the non-supervisory employee told him that a supervisor had said. Given evidence that a supervisor told a non-supervisory employee to pass a statement along, the non-supervisory employee was made an agent of the company with regard to passing along the statement, and was acting within the scope of his agency when he did so. Therefore, both the supervisor and the non-supervisory employee fell within the agency exception to the hearsay rule, and the testimony was not double hearsay.

    D. Jacklyn v. Schering-Plough Healthcare Products Sales Corp., 79 FEP Cases 1882 (CA 6, 1999). A former manager's alleged statement that the new regional manager said that he did not want any "skirts" working for him is hearsay. Although the former manager had, at one time, been the plaintiff's direct supervisor, the plaintiff could not show that the former manager made the statement within the scope of his agency. The former manager was not her supervisor at the time the alleged statement was made, was not involved in any of the critical performance appraisals, and the statement did not concern matters within the scope of his agency. "There is a critical difference between making a statement while one is an employee and having the actual or implied authority to make such a statement on behalf of your employer. The test is whether the statement concerns a matter within the scope of the agency or employment."

    E. Cullen v. Olin Corp., 81 FEP Cases 190 (CA 7, 1999). Evidence that the younger employee who assumed the duties of the protected-age plaintiff following a RIF is not relevant to the issue whether the plaintiff was terminated because of his age. Events developing after the challenged employment decision cannot be material to evaluating the decision. The employer "could not have been motivated by knowledge it did not have..." at the time it decided to terminate the plaintiff.

XV. DAMAGES.

    A. Rafferty v. Markovitz, 461 Mich 265 (1999). The award of attorney fees under the mediation rule was improper, where such fees were duplicative of the fees the plaintiff recovered under the Civil Rights Act. Relying in part on McAuley v. General Motors Corp., 457 Mich 513 (1998), the court observed that the fee-recovery provisions in both the court rule and the Civil Rights Act were designed to compensate prevailing plaintiffs for the costs of the litigation. Where a plaintiff has already been reimbursed for reasonable attorneys fees through the statutory provision in the Civil Rights Act, "there are no 'actual costs' remaining to be reimbursed." Thus, the Court reasoned, "[b]ecause the purpose of compensatory damages is to make an injured party whole for losses actually suffered, the amount of recovery for such damages is thus limited by the amount of the loss."

    B. Franzel v. Kerr Mfg. Co., 234 Mich App 600 (1999). The plaintiff sued for, inter alia, defendants' failure to honor the terms of the agreement that inspired the plaintiff to return to work following her original discharge. A jury found that the agreement was not a just-cause contract, and that the plaintiff was an at-will employee. However, the jury found that the defendant breached the return-to-work contract and awarded the plaintiff a total of $225,000 in damages. The Court of Appeals agreed with the defendant's argument that the trial judge should have reduced the damage award to a nominal amount. Because the return-to-work contract was an at-will contract, the plaintiff was not guaranteed continued employment. Thus, where neither mental distress damages nor exemplary damages are available in a breach of contract action, the jury's speculative damages award should have been reduced to a nominal amount.

    C. Grow v. W.A. Thomas Co., 236 Mich App 696 (1999). The plaintiff filed a hostile environment sexual harassment claim against her former employer, claiming that her former supervisor made sexually explicit comments and touched and kissed her in an unwelcome manner. The trial court dismissed the plaintiff's constructive discharge claim, leaving only her claim of emotional distress damages for trial. Following a verdict for the plaintiff, the defendants contested the trial court's refusal to instruct the jury, pursuant to the after-acquired evidence rule, that plaintiff's compensatory damages should be limited as of the date defendants discovered plaintiff had falsified her employment application.

    The court disagreed, holding that the after-acquired evidence rule, as modified in McKennon v. Nashville Banner Publishing Co., 513 US 352 (1995), cannot be applied to terminate claims for emotional damages. The court reasoned that the after-acquired evidence rule strikes a reasonable balance which limits economic damages spawning from the loss of a job that after-acquired evidence reveals that the plaintiff would not have been entitled to in the first place. However, the court reasoned that the situation is "much different" in cases involving emotional distress damages. Because emotional distress damages constitute an injury to "one's person," are not as easily quantified as economic damages and can be of a continuing nature, "it would be inequitable to treat them the same as claims for back pay, reinstatement, or front pay." Accordingly, the court held that the district court properly refused to instruct the jury that the plaintiff's emotional distress damages could be cut-off at the point-in-time that the defendants learned the plaintiff lied on her employment application.

    In addition, the court reversed the trial court's decision to award the plaintiff both attorneys fees and mediation sanctions. Relying on the Supreme Court's holding in McAuley v. General Motors Corp., 457 Mich 513 (1998), the court held that where the plaintiff has already been reimbursed for attorneys fees through the Civil Rights Act, there are no "actual costs" remaining to be reimbursed under the mediation sanctions rule.

    D. Morris v. Clawson Tank Co., 459 Mich 256 (1998). The Supreme Court reversed the Court of Appeals' holding that the trial court had clearly erred in determining that the plaintiff failed to mitigate his damages as a matter of law.

    In a bench trial, the trial court determined that the plaintiff, an entry level laborer, was terminated in violation of the Handicappers' Civil Rights Act. The plaintiff started looking for work "almost immediately" after he was fired, landed a temporary job and then began working a seasonal job with a landscaping company. In the two-and-a-half years that followed, the plaintiff made approximately fifty "job inquiries" concerning various types of employment and landed a couple short-term jobs. When the landscaping company the plaintiff worked for began operations in the spring, the plaintiff recommenced his employment with the company, where he worked more than forty hours a week. Eventually, the plaintiff took a full-time position as a janitor, but was discharged.

    After the plaintiff filed the lawsuit, the defendant mailed the plaintiff letters, "purportedly recalling him to work." The plaintiff did not respond. At trial, the parties disputed whether the letters actually offered the plaintiff a job.

    On appeal, Judge Taylor, writing for a unanimous majority (of a panel which included Judge Corrigan), held that the trial court had clearly erred in concluding, as a matter of fact, that the plaintiff had made a reasonable attempt to mitigate his damages by seeking "like" employment. The Court of Appeals reasoned that most of the plaintiff's fifty applications were not for like employment, and that the plaintiff had "virtually stopped looking for other employment after taking a position with his seasonal employer." The Court of Appeals further held that the plaintiff's rejection of the defendant's job offer was patently unreasonable, which provided yet another reason to cut the plaintiff's economic damages.

    The Supreme Court reversed. First, the Court held that while the principle of mitigation requires the plaintiff to make reasonable efforts to mitigate his economic damages, it neither requires plaintiffs to make all efforts to mitigate nor constrains plaintiffs to seeking "like" employment. The Court went on to state that the issue whether the plaintiff's efforts were reasonable is an issue of fact. Finally, the Court held that the Court of Appeals incorrectly determined that the trial court's factual conclusion on this issue was clearly erroneous.

    On the reinstatement issue, the Supreme Court held that the Court of Appeals had erred in holding that the reinstatement offer was reasonable even though there was a contested factual issue whether the letters the defendant sent the plaintiff constituted an unconditional offer of reinstatement. Therefore, the Court remanded the issue to the trial court for a specific determination whether the plaintiff unreasonably rejected an unconditional offer of reinstatement.

    E. Kolstad v. American Dental Association, 119 SCt 2118 (1999). An employer's conduct need not be "eggregious" to satisfy the punitive damages requirement of § 1981(a). Although evidence of egregious behavior may provide a valuable means by which an employee can show 'malice' or 'reckless indifference', which is what the statute requires in order to sustain a claim for punitive damages, § 1981 does not require an independent showing of egregious or outrageous discrimination. Because the statute focuses on the actor's state of mind, there will be circumstances where intentional discrimination does not support a punitive damages award, however egregious, such as where the employer is unaware of the relevant federal prohibition; discriminates with the belief that its actions were lawful; where the underlying theory of discrimination is novel or poorly recognized; or where the employer reasonably believes that its discrimination satisfies a bona fide occupational qualification defense.

    The focus on the actor's state of mind also means that, in the punitive damage context, an employer is not vicariously liable for discriminatory employment decisions of managerial agents where those decisions are contrary to the employer's good faith efforts to comply with Title VII. Thus, when the employer made a good-faith effort to comply with Title VII, the employer will not be vicariously liable to pay punitive damages for discriminatory actions committed by its managerial agents.

    F. West v. Gibson, 79 FEP Cases 1537 (US, 1999). The EEOC's authority to enforce Section 717 of Civil Rights Act of 1964 "through appropriate remedies" includes the authority to require federal agencies to pay compensatory damages when they discriminate in employment in violation of Title VII. Although subsection 717(b) does not explicitly mention compensatory damages, the language of the statute is non-exclusive, and the scope of what is "appropriate" may expand over time as the law changes. Furthermore, denying the EEOC the right to award compensatory damages is inconsistent with the remedial purpose of Title VII.

    G. Hiler v. Brown, 177 F3d 542 (CA 6, 1999). Supervisors who do not meet statutory definition of "employer" are immune from personal liability under the anti-retaliation provision of the Rehabilitation Act of 1973. Even though the Act forbids a "person" from retaliating, the relevant inquiry concerns the remedies that are available to an aggrieved federal employee. Such remedies are determined in accordance with enforcement provisions of Title VII that have been interpreted to permit civil actions only against employers and not against supervisors sued in their individual capacities. The fact that the Civil Rights Act of 1991 allows compensatory and punitive damages does not evidence Congress' intent to subject individuals to personal liability, inasmuch as there is no provision for damages to be paid by individuals.

    H. Hamlin v. Charter Township of Flint, 8 AD Cases 1688 (CA 6, 1999). Where the victorious plaintiff's pension benefits were paid by a third-party, not the employer who discriminated again him, the district court erroneously reduced the plaintiff's damages by the amount of the plaintiff's pension benefits. Limiting damages on the basis of income the plaintiff will receive from a third party violates the "collateral source rule", which holds that a tortfeasor may not reduce the damages by the amount the plaintiff is owed by a third party. Thus, where the pension plan is available to cover non work-related disabilities, arises pursuant to statute, and payments are contingent upon length of service, the pension plan is a collateral source that may not be used to reduce the plaintiff's damage award.

    I. Moore v. Kuka Welding Systems, 171 F3d 1073 (CA 6, 1999). Black former employee's testimony that he was "angry" and "upset" about racial jokes and slurs, testimony that he "just couldn't take it any more," as well as evidence that he complained to his supervisors and started to look for new job, sufficiently demonstrates requisite injury to support award of $50,000 in compensatory noneconomic damages.

    J. Blackmon v. Pinkerton Security, 80 FEP Cases 137 (CA 8, 1999). The employer's investigation of the plaintiff's sexual harassment consisted almost exclusively of looking for unfavorable information about the plaintiff and using it against her. This demonstrates sufficient malice or reckless indifference to sustain an award of punitive damages.

    K. Sumner v. Wayne County, ___ F Supp 2d ___ (2000 WL 426572 (E.D. Mich.)). The defendants argued that the plaintiff failed to mitigate her damages by refusing the employer's unconditional re-employment offer, which the employer made in response to EEOC conciliation efforts. Judge Cohn rejected this argument on the basis that the job offer was inadmissible. Judge Cohn supported this ruling by citing to 42 USC § 2000e-5, which provides that the content of informal EEOC negotiations cannot be admitted into evidence absent the parties' written consent. Judge Cohn also ruled that the re-employment offer was not "unconditional" because it was premised on the implied condition that the plaintiff drop her discrimination charge.

XVI. ELEVENTH AMENDMENT

    Kimel v. Florida Board of Regents, 81 FEP Cases 970 (US Sup Ct, 2000). The Supreme Court held that Congress unconstitutionally abrogated the states' Eleventh Amendment sovereign immunity by permitting individual state employees to sue states in federal court for alleged ADEA violations. Congress lacks authority under Article I of the Constitution to abrogate the states' sovereign immunity. Accordingly, the issue became whether Congress could use its power to enforce the Fourteenth Amendment as a means to compel states to defend themselves in federal court for alleged ADEA violations. In holding that Congress cannot, the Court reasoned that the ADEA creates a greater degree of scrutiny for age-based classifications than the "rational basis" scrutiny the Fourteenth Amendment requires. Congress therefore extended beyond its ability to simply enforce the Fourteenth Amendment when it required states to answer to alleged ADEA violations in federal court. Thus, although Congress had authority to enact the ADEA and require states to comply it, Congress lacked the constitutional authority to use the law as a means to overcome states' Eleventh Amendment immunity.

XVII. MISCELLANEOUS

    A. SEVERANCE

    LeGendre v. County of Monroe, 234 Mich App 708 (1999). The plaintiff and another woman were not rehired as prosecutors when defendant, Edward F. Swinkey, was elected Prosecuting Attorney of Monroe. In a single complaint, both women claimed sex discrimination and retaliation. The Court of Appeals affirmed the trial court's ruling granting defendants' motion for severance. Noting that the two women based their claims on different facts, had different levels of experience, and had applied for different positions, "the potential for jury confusion and prejudice against defendants was great and the circuit court thus did not abuse its discretion when it granted defendants' motion to sever." The court noted, however, that "holding separate trials would not foreclose the possibility of presenting evidence at plaintiff's trial of defendants's alleged discriminatory treatment of [the other plaintiff], if appropriate."

    B. RELEASE

    Collucci v. Eklund, ___ Mich App ___ (2000). The plaintiff's employment with Textron Automotive Company was terminated during downsizing. In exchange for severance benefits amounting to nearly a years' salary, the plaintiff signed a release which provided, in part: "In consideration for the special severance pay and enhanced benefits mentioned above, you agree not to file against Textron ... or any of their ... employees, and you release the same from any and all claims and lawsuits arising from your employment or termination." After receiving and cashing all his severance checks, the plaintiff sued one of his former co-workers claiming that she defamed him and caused his termination by accusing him of sexual harassment. The Court of Appeals affirmed the trial court's decision to dismiss the suit, holding that the terms of the release, which expressly extended to Textron employees, barred the plaintiff's lawsuit. Thus, even "though defendants were not parties to the execution of the release and did not provide any of the consideration given to plaintiff for the release, the release operates to discharge defendants from liability in this matter." The Court further rejected the plaintiff's fraud claim on the basis that the plaintiff had not tendered back the consideration he received in exchange for the release.

    C. UNTIMELY AMENDMENT

    Cremonte v. Michigan State Police, 232 Mich App 240 (1998), leave denied 602 NW2d 576. The plaintiff, a white male state trooper, alleged that his employer failed to promote him based on his age, or in retaliation for his written opposition to the defendant's affirmative action program that discriminated against white males. Plaintiff also claimed that the defendant's affirmative action policy violated public policy and the Equal Protection under the Michigan Constitution. On the fifth day of trial, the plaintiff moved to amend his complaint to add claims of sex and race discrimination. The trial court permitted the amendment, ruling in part that defense counsel had "opened the door" to the claims in his opening argument. The jury rejected the defendant's claim that the plaintiff was not promoted because of his lack of leadership potential, and found the defendant liable on all but the age discrimination claim.

    The Court of Appeals reversed in part and remanded in part for a new trial. The court held that the trial court had abused its discretion in permitting the untimely amendment, reasoning in part that the amendment prejudiced the defendant by adding new factual questions and changing the importance of evidence that had already been admitted. Even though the amendments concerned only the race and sex discrimination claims, the trial court ordered a new trial on the retaliation and age discrimination claims, as well. The court reasoned that it would be inequitable to permit the retaliation verdict to stand where the addition of the new claims diverted defense counsel away from contesting whether plaintiff could prove the elements of the retaliation claim, one of which was lacking.

    D. STATUTE OF LIMITATIONS

    Adams v. City of Detroit, 232 Mich App 701 (1998). A class of plaintiffs voluntarily left their employment with the defendant pursuant an early retirement plan. Prior to their departure, the defendant explained that the employees would not be eligible for the continuation of health care benefits that, earlier, the City Counsel had extended to all retirees. In 1989, which was after the class retired pursuant to the early retirement plan, the Court of Appeals held that employees that retired pursuant to the early retirement plan were fully entitled to continued health care benefits. In 1994, the plaintiffs sued the defendant for unprovided health insurance benefits. The trial court granted the defendant's motion to dismiss on the basis that the six year statute of limitations barred their claims.

    The Court of Appeals reversed. The court relied on Harris v. Allen Park, 193 Mich App 103 (1992), where the court held that the pension benefits, like installment contracts, come due periodically and that the plaintiff can pursue every periodic payment that comes due within the limitations period. The court found no reasonable distinction between pension benefits and payments to an insurance carrier. Therefore, the court held that each plaintiff may proceed against the defendant for all benefits that were withheld within six years of the commencement of the lawsuit.

    E. CONTRIBUTION

    Donajkowski v. Alpena Power Co., 460 Mich 243 (1999). Three female employees sued their employer for sex discrimination. Their claim was based on the fact that the collective bargaining agreement between the employer and their union established a maximum wage for members of their all-female bargaining union, but did not create a maximum wage for other bargaining groups. Arguing that the union should be jointly liable because the agreement was the result of negotiation between the employer and the union, the employer filed a third-party complaint seeking contribution from the union in the event the employer was found liable. The trial court permitted the third-party complaint and the Court of Appeals affirmed.

    The Supreme Court began its analysis by observing that sex discrimination claims sound in tort, and that the Michigan Legislature has enacted a statute providing for contribution among joint tortfeasors. The Court proceeded to note that, by not codifying the common-law rule prohibiting intentional tortfeasors from seeking contribution, the Legislature "unambiguously provided that contribution may be had between tortfeasors without regard to the intentional character of their acts ....." The Court noted that the case-law is consistent with this observation and that the union was unable to point to public policy or language in the Civil Rights Act requiring an exception to this rule. Accordingly, over a lengthy dissent by Justices Kelly and Cavanagh, the Court held that an employer sued for sex discrimination based on the terms of a collective bargaining agreement may seek contribution from a union that was party to that labor agreement.

    F. COVERAGE

    Chiles v. Machine Shop, Inc., 238 Mich App 462 (1999). The defendant in a disability and retaliation case argued that it was not a proper defendant because it was not technically the plaintiff's employer when the allegedly retaliatory and discriminatory acts occurred. Applying the economic realities test, the court held that the plaintiff was the defendant's employee for purposes of the Worker's Disability Compensation Act. At the time the plaintiff was laid off, he was working for the defendant as a loaned employee and performing tasks that were integral to its business. The defendant directed the plaintiff's work activities, and "clearly had the right to hire, fire and discipline plaintiff" because it actually exercised such rights.

    The court further held that the plaintiff need not satisfy the economic realities test to sue the defendant under the Persons With Disabilities Civil Rights Act. The court held that liability under this act does not depend on the existence of an employer-employee relationship, "but rather, upon the ability to affect adversely the terms and conditions of an individual's employment or potential employment...." The court reasoned that the act addresses the conduct of an "employer" that takes adverse action against an "individual", and that these terms and the way they are defined are inconsistent with a requirement that there be an employer-employee relationship. The court reasoned that this analysis is completely consistent with the fact that the "act clearly encompasses actions taken by an employer before an employment relationship even exists, e.g., discriminatorily refusing to hire an applicant on account of a disability."

    G. ATTORNEY FEES

    1. Mr X v. Peterson, ___ Mich App ___ (Docket No. 213392, dec'd March 17, 2000). After both parties accepted the mediation evaluation in a civil rights suit, the plaintiffs sought attorney fees under the Civil Rights Attorney's Fees Awards Act, 42 USC 1988. The Court agreed with the plaintiffs' argument that the plaintiffs were the "prevailing party" under the Fees Act. However, the Court rejected the plaintiffs' claim that the Fees Act preempted the effect of the mediation rule, which provides that an accepted mediation award "dispose[s] of all claims in the action and include[s] all fees, costs, and interest to the date it is entered." Because the mediators can include fees in the mediation award, the court rule is not inconsistent with, and is therefore not preempted by the federal Fees Act.

    2. Grow v. W.A. Thomas Co., 236 Mich App 696 (1999). The court reaffirmed that the Civil Rights Act permits the plaintiff to recover for the costs of defending an appeal. Therefore, after rejecting the employer's arguments on appeal, the Court of Appeals remanded so the trial court could award plaintiff the reasonable costs and fees of defending the appeal.

    3. Bercovitch v. Baldwin School, 9 AD Cases 1210 (CA 1, 1999). Prevailing defendants may recover attorneys' fees under the ADA only if they establish that the plaintiff's action was totally unfounded, frivolous, unreasonable from the outset, or if the plaintiff continued to litigate after it clearly became so. Despite the court's recognition that the ADA does not distinguish between prevailing plaintiffs and prevailing defendants, the court held that the ADA's language on attorneys' fees is identical in relevant part to that of 42 U.S.C. §1988, which has been interpreted as setting a heightened standard for prevailing defendants.

    4. Salvatori v. Westinghouse Electric, 80 FEP Cases 1778 (CA 11, 1999). A plaintiff who obtained a favorable jury verdict on the merits of his ADEA claim but was awarded no damages should not have been awarded attorneys fees. Where the plaintiff does not obtain a judgment he can enforce against the former employer, he is not entitled to attorneys fees.

    H. "GOOD FAITH BELIEF" RULE

    Flores v. Preferred Technical Group, 80 FEP Cases 84 (CA 7, 1999). To sustain its burden of establishing a legitimate, non-discriminatory reason for discharge, "the employer only needs to supply an honest reason, not necessarily a reasonable one. 'In other words, arguing about the accuracy of the employer's assessment is a distraction' ... because the question is not whether the employer's reasons for a decision are 'right but whether the employer's description of its reasons are honest.'" Accordingly, the employee's claims that the employer incorrectly labeled her as the instigator of a workplace rebellion cannot create a material factual dispute concerning pretext.

    I. SAME ACTOR INFERENCE

    Johnson v. Zema Systems Corp., 79 FEP Cases 584 (CA 7, 1999). The same actor inference, which permits an inference that the adverse employment action was not based on a discriminatory motive where the same person both hires and discharges the employee, is unlikely to be dispositive in very many cases. A manager might hire an individual of a certain race or sex expecting that the person will not to rise to a position in which daily contact with that manager would be necessary; a manager might hire a woman expecting that the woman may conform to certain stereotypes and then discharge the woman if she fails to conform to that stereotype; or the decisionmaker might be unaware of his own stereotyped views of individuals of a certain race at the time of hiring and, on subsequently discovering that he does not wish to work with individuals of that race, discharge the newly hired employee.

    J. BUSINESS JUDGMENT JURY INSTRUCTION.

    Scamardo v. Scott County, 80 FEP Cases 1140 (CA 8, 1999). The district court reversibly erred in refusing to instruct the jury in a Title VII retaliation action that: "You may not return a verdict for plaintiff just because you might disagree with defendant's decision or believe it to be harsh or unreasonable." Such an instruction is essential to the employer's defense in an employment discrimination case.

    K. CONSTRUCTIVE DISCHARGE

    1. Tork v. St. Luke's Hospital, 80 FEP Cases 129 (CA 8, 1999). A "feeling of being unfairly criticized ... [is] not so intolerable as to compel a reasonable person to resign." Thus, despite the plaintiff's claim that the criticism was unjust, one negative oral evaluation and two negative written evaluations does not constitute a constructive discharge. Although a lack of recourse for unjust criticism may "contribute" to a constructive discharge, the plaintiff was not justified in believing she had no recourse where she failed to seek review of the adverse evaluations through the human resources department.

    2. Kerns v. Capital Graphics, 80 FEP Cases 14 (CA 8, 1999). Female personnel administrator was not constructively discharged when she allegedly quit because her employer forced her to work with an allegedly sexist supervisor that accused her of incompetence after she did what he asked her to do, subjected her to close scrutiny, and took away her discretionary authority. Where the plaintiff maintained the same title, benefits and salary, an unarticulated "loss of discretionary authority" is insufficient to compel a reasonable person to quit.

    L. JURISDICTION

    Duggins v. Steak 'n Shake, Inc., 81 FEP Cases 668 (CA 6, 1999). A former employee's failure to checkmark the retaliation box on her EEOC charge does not preclude her from litigating a retaliation claim. The employee had filed internal affidavit with the EEOC that clearly raised allegations of retaliation, thereby giving the employer reasonable notice of the claim. Moreover, retaliation naturally grows out of the underlying substantive discrimination charge, making a retaliation claim foreseeable to the employer.

    M. FIRST AND FOURTEENTH AMENDMENT

    Mercure v. Van Buren Township, 81 F Supp 2d 814 (ED Mich, 2000). A former police officer alleged that his public employer violated his First Amendment right to association and his Fourteenth Amendment "privacy" rights when it terminated him for having an affair with his Sargent's estranged wife. The employer apparently acknowledged that the officer's affair was the basis for the discharge, arguing that the officer's affair violated two department rules. The first rule forbade "unprofessional conduct" that "discredits the officers" and "impairs the department." The second rule required officers to "maintain a level of moral conduct in their personal and business affairs" and prohibited participation in "any incident involving moral turpitude which impairs [an officer's] ability to perform as [a] law enforcement officer[] or causes the department to be brought into disrepute."

    In a lengthy opinion, Judge Rosen dismissed the constitutional claims as a matter of law and remanded the state claims to state court. In rejecting the First Amendment association claim, Judge Rosen observed that the Supreme Court has limited the association right to "a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion." Judge Rosen ruled that a personal relationship with a woman cannot qualify as this type of core First Amendment activity. Instead, the "expressive" nature of such a relationship is similar to the "expressive" interest involved in City of Dallas v. Stanglin, 490 US 19 (1989), where the Supreme Court held that an ordinance prohibiting teenagers from entering certain dance halls did not implicate "the sort of expressive association the First Amendment had been held to protect."

    Judge Rosen then ruled that the right to "intimate association" is not boundless, and does not include a constitutional right to enter into an adulterous relationship with a superior officer's wife. Following an examination of case law concerning the so-called "privacy" right, Judge Rosen observed that prohibitions against adultery are "historically rooted" and that the officer's sexual behavior is not comparable to "those matters of personal choice that lie at the core of traditional notions of individual liberty." Then, after referencing several Supreme Court quotations such as "[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or not cognizable roots in the language or design of the constitution," Judge Rosen ruled that: "Just as the Bowers v. Hardwick, 478 US 186 (1986),] Court was unwilling to confer constitutional protection upon one form of voluntary and consensual sexual conduct that a significant number of states still deem illegal, this Court also is hesitant to recognize a constitutionally protected interest in a different form of sexual conduct that remains prohibited in many states, including Michigan."

     

 

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