The Elliott-Larsen Civil Rights Act (CRA); Retaliation & discrimination based on sex; MCL 37.2701(a) & 37.2202(1)(a); Protected activity; Materially adverse employment action; White v Department of Transp; Wilcoxon v Minnesota Mining & Mfg Co; Causation; Claim that a male co-worker received preferential treatment as to scheduling additional work hours; Constructive discharge; The “same actor” inference; Wrongful discharge in violation of public policy (WDPP); Landin v Healthsource Saginaw, Inc; Whether the WDPP claim was preempted by the Whistleblowers’ Protection Act (WPA); Damages; Failure to adequately mitigate

The court concluded that plaintiff-Piecka failed to establish a genuine issue of material fact on causation as to her CRA retaliation claim, and that her CRA discrimination claims based on constructive discharge and mistreatment by her supervisor were also properly dismissed. But it held that there was “a triable issue of fact that defendants bore a discriminatory bias when allowing” a male co-worker (P) “additional regular and overtime hours while denying her the same.” Finally, while the WPA did not preempt her WDPP claim, Landin was distinguishable and summary disposition for defendants was proper. As to the retaliation claim, the court concluded that, viewing the evidence in a light most favorable to her, Piecka “engaged in a protected activity” and that there was a fact question as to whether she “suffered a materially adverse employment action.” But she was unable to “create a genuine issue of material fact that her protected activity caused the adverse employment actions.” As to her discrimination claim for “the loss of regular and overtime work hours to” P, she offered evidence that P, who shared her job position, was given “overtime hours and additional regular works hours that she was not.” The court rejected defendants’ assertion that P was not similarly situated to Piecka, noting that while he “had slightly different job duties and worked the afternoon shift in the” same department, they understood one another’s “jobs and completed tasks assigned to the other. Piecka explained that” the two of them were the most similarly situated of all her co-workers. “The variation in their duties was only because of their different shifts.” As the court concluded that she created “a prima facie case of sexual discrimination” based on her claim that P “received preferential treatment as to scheduling additional work hours[,]” the burden shifted to defendants to present “a legitimate reason for their actions. Defendants completely failed to do so.” Thus, the presumption of discrimination remained and summary disposition of this claim was improper. Affirmed in part, vacated in part, and remanded.

Motion to withdraw no contest plea; Whether the plea was knowing or voluntary where trial counsel failed to inform defendant of the SORA registration requirement; People v Fonville

Holding that defendant’s no contest plea to four counts of CSC III was not knowing or voluntary because defense counsel failed to inform him of the SORA registration requirement, the court vacated the trial court’s order denying his motion to withdraw his plea, and remanded to permit him to withdraw. Here, just like in Fonville, there was no evidence that “counsel advised him of the registration requirement prior to defendant entering his plea. The only mention of the registration requirement on the record was an off-hand comment by defendant’s counsel during defendant’s second resentencing hearing that defendant was ‘going to be on [SORA] for the rest of his life.’” However, this fleeting reference fell short of the obligation to advise him “of the SORA registration requirement, particularly because it occurred more than two years after defendant entered his initial plea.” While it was possible that counsel informed him “of the registration requirement off the record, this cannot be verified as defendant’s trial counsel is deceased, and defendant has sworn in his affidavit that counsel did not advise him of the SORA requirement prior to defendant entering his no contest pleas.” There was no evidence that “counsel advised defendant of the SORA registration requirement prior to entering his plea. Fonville requires that defendant be permitted to withdraw his plea.”

Due process; Prearrest delay; People v Cain; Actual & substantial prejudice; Ability to impeach the victim with convictions; MRE 609; Right to a speedy trial; People v Williams; Motion to quash the bindover; People v Anderson; Prosecutorial misconduct; Opening statements; Vouching; Alleged violations of a pretrial ruling on MRE 404(b) evidence; Polygraph testimony; Exclusion of the victim’s prior convictions; Disallowing proposed character witnesses; People v George; Motions for a directed verdict of acquittal/a new trial

Finding that defendant failed to show actual and substantial prejudice due to the nearly 6-year delay in prosecuting him on CSC IV charges after the dismissal of a CSC II charge, the court rejected his due process argument. He did not show that his right to a speedy trial was violated because it “was not implicated during the time after the” 2013 dismissal until he was later “arrested and held to answer the 2018” CSC IV charges. Further, the trial court did not err in denying his motion to quash the bindover, or his motions for a directed verdict or a new trial. The court found no prosecutorial misconduct warranting reversal, that any error in excluding the victim’s prior convictions was harmless, and that the trial court did not abuse its discretion in excluding two additional character witnesses. Thus, it affirmed his CSC IV convictions. As to his due process claim, he failed to present “any evidence to support his speculative claims of prejudice based on missing witnesses or diminished memory[.]” He abandoned his argument as to the effect of the delay on his ability to impeach the victim with his prior convictions, and even considering the merits, he did not show substantial prejudice. Despite the trial court’s denial of his motion in limine as “to all but one of the victim’s prior convictions, defendant was able to present substantial evidence aimed at attacking the victim’s credibility. Additionally, even with the delay,” he was not precluded from offering evidence that supported his “trial defense that the victim fabricated the sexual assault as part of a scheme to obtain money.” As to his challenge to the trial court’s exclusion of those convictions, evidence “of the victim’s conviction for which he was incarcerated at the time of the incident was admitted, and the victim provided unprompted testimony suggesting that he had been convicted for other offenses, including retail fraud.” In addition, the victim’s cousin and his wife “unequivocally stated that the victim told them that the incident never happened and that it was a ploy to get money. On this record, it does not appear more probable than not that a different outcome would have resulted had more of the victim’s prior convictions been admitted into evidence.” As to the proposed character witnesses, defendant presented five witnesses who testified to his “character for truthfulness and honesty . . . .”

Sentencing; Reasonableness & proportionality of a departure sentence; People v Milbourn; People v Dixon-Bey; Use of the CSC I sentencing grid in sentencing defendant on his plea-based CSC II conviction

Holding that the trial court abused its discretion in imposing a 22-year departure sentence in sentencing defendant after his nolo contendere plea to CSC II “based on improper criteria[,]” the court vacated his sentence and remanded for resentencing. He was charged with CSC I but the prosecution dropped those counts in exchange for his CSC II plea. His minimum guidelines range was 58 to 228 months, but the trial court sentenced him to 492 to 756 months. The court concluded that its use of the CSC I grid (offense grid A) to show the proportionality of its departure was unreasonable. “Reference to a sentencing grid that is fundamentally disproportionate to the offense and the offender does not supply a reasonable justification for the substantial extent of” the departure sentence here. As a rationale for using the A grid, the trial court noted that defendant “sexually penetrated the victim twice, thereby committing” CSC I. But its explanation for the extent of its departure overlooked the fact that offenders convicted of CSC II “are subject to a substantial sentencing enhancement when the offense includes penetration” under OV 11, which was scored at 50 points based on defendant’s commission of “two or more sexual penetrations. Given this score, it was incumbent on the trial court to articulate a reason that the guidelines inadequately accounted for his commission of” CSC I. It did not do so by simply sentencing him as a CSC I “offender, as that justification would apply to many convicted of” CSC II and was not based on the specific facts of his case. His commission of CSC I was not unique to defendant “or the crime he committed.” The court held that the appropriate length of his “proportionate minimum sentence is anchored in the sentencing guidelines and the grid for class C offenses. By relying on the grid for class A offenses, the trial court violated Milbourn’s admonition that the guidelines provide the frame of reference for every proportionality analysis[.]” It was also inconsistent with his agreement to plead to CSC II. The court further determined that the trial court relied on speculation rather than facts as to how long it would take for the child complainants “to recover enough to speak to the parole board” and the age at which defendant “would be unable to reoffend.”

The Elliott-Larsen Civil Rights Act (CRA); Retaliation & discrimination based on sex; MCL 37.2701(a) & 37.2202(1)(a); Protected activity; Materially adverse employment action; White v Department of Transp; Wilcoxon v Minnesota Mining & Mfg Co; Causation; Claim that a male co-worker received preferential treatment as to scheduling additional work hours; Constructive discharge; The “same actor” inference; Wrongful discharge in violation of public policy (WDPP); Landin v Healthsource Saginaw, Inc; Whether the WDPP claim was preempted by the Whistleblowers’ Protection Act (WPA); Damages; Failure to adequately mitigate

The court concluded that plaintiff-Piecka failed to establish a genuine issue of material fact on causation as to her CRA retaliation claim, and that her CRA discrimination claims based on constructive discharge and mistreatment by her supervisor were also properly dismissed. But it held that there was “a triable issue of fact that defendants bore a discriminatory bias when allowing” a male co-worker (P) “additional regular and overtime hours while denying her the same.” Finally, while the WPA did not preempt her WDPP claim, Landin was distinguishable and summary disposition for defendants was proper. As to the retaliation claim, the court concluded that, viewing the evidence in a light most favorable to her, Piecka “engaged in a protected activity” and that there was a fact question as to whether she “suffered a materially adverse employment action.” But she was unable to “create a genuine issue of material fact that her protected activity caused the adverse employment actions.” As to her discrimination claim for “the loss of regular and overtime work hours to” P, she offered evidence that P, who shared her job position, was given “overtime hours and additional regular works hours that she was not.” The court rejected defendants’ assertion that P was not similarly situated to Piecka, noting that while he “had slightly different job duties and worked the afternoon shift in the” same department, they understood one another’s “jobs and completed tasks assigned to the other. Piecka explained that” the two of them were the most similarly situated of all her co-workers. “The variation in their duties was only because of their different shifts.” As the court concluded that she created “a prima facie case of sexual discrimination” based on her claim that P “received preferential treatment as to scheduling additional work hours[,]” the burden shifted to defendants to present “a legitimate reason for their actions. Defendants completely failed to do so.” Thus, the presumption of discrimination remained and summary disposition of this claim was improper. Affirmed in part, vacated in part, and remanded.

Child custody; Great weight of the evidence; MCL 722.28; Best-interest factors c, d, f, h, j & l; MCL 722.23; Established custodial environment; Pierron v Pierron

The court held that the trial court did not err by adopting the referee’s recommendations granting defendant-father primary physical custody of the parties’ child, while also changing the child’s school. Plaintiff-mother sought primary physical custody of the child and sought to transfer the child to the school district where she moved, which was about 60 miles from the child’s current district. The trial court denied her requests, and instead ordered that the child transfer to a school district closer to defendant, and reside primarily with defendant. On appeal, the court rejected plaintiff’s argument that the trial court’s custody order constituted an abuse of discretion. “Review of the record does not lead this [c]ourt to conclude that the trial court committed error in any of its findings or rulings.” In addition, based on the record, the court could “discern no basis to conclude that the trial court abused its discretion by ordering the” child to attend school near defendant and reside primarily with him. Affirmed.

Best interests of the child; Whether suspension of visitation for a failure to comply with drug screens infringed on respondent’s right to parent & maintain her bond; Whether substance use impacted respondent’s ability to act appropriately during visitation; Reasonable reunification efforts; Whether she should have been given more time to show she could comply with the parent & agency treatment plan (PATP)

The court held that the trial court did not err in terminating respondent-mother’s parental rights, finding that termination was in the best interests of the child, Z. The trial court’s decision was based on respondent’s unwillingness to comply with the PATP and her failure to establish and maintain a relationship with Z. The trial court held that the lack of a bond with Z, Z’s need for permanency and stability, her visitation history, Z’s “current placement versus placement with respondent, respondent’s domestic violence history, respondent’s noncompliance with the PATP,” Z’s well-being in the care of respondent’s sister and Z’s aunt (M), and the possibility of adoption weighed in favor of termination. Although it acknowledged that Z’s placement with M “weighed against termination as a relative placement, the trial court determined that a preponderance of the evidence weighed in favor of termination.” Respondent primarily argued that its “suspension of visitation for a failure to comply with the drug screens infringed on her right to parent and maintain her bond with” Z. The court held that while “the trial court did not order psychological evaluations or counseling when respondent’s visitation was suspended, there was an appropriate basis to suspend parenting time, and any statutory violation was harmless and did not impact the subsequent order of termination.” By the 11/19 hearing, she “had failed to complete or comply with any portion of the PATP since its implementation, beyond visitation with” Z. The temporary suspension simply required her “to provide two consecutive negative drug screens. Because the suspension was issued after the trial court obtained jurisdiction over” Z, the conditional suspension did not infringe on her rights. She “essentially held the keys to her visitation” with Z and could arguably “have restored her visitation within days of the suspension. However, respondent continued to not comply with the drug screens.” In addition, there was a lack of evidence showing “the suspension interfered with the parent-child bond.” A review of the record indicated that “before the suspension, respondent did not consistently attend visitation.” Additionally, two caseworkers testified that she “had virtually no bond with [Z], stating he referred to respondent as ‘his friend from the library’ and did not display any reaction or ask about respondent after visitation was suspended in” 11/19. They also testified Z was doing very well in M’s care without contact with respondent. Affirmed.

Alleged due process violations; Inquiring as to potential relative placement; MCR 3.965(B)(14); Witnesses; MCR 3.965(C)(1); A parent's interest in the companionship, care, custody, & management of his or her children; In re Brock; Grounds for removal under MCR 3.965(C)(2) & MCL 712A.13a(9); Jurisdiction

Holding that respondent-mother’s due process rights were not violated, and that there were grounds for removal, the court affirmed the order removing the child from her custody after a preliminary hearing. The case arose after the child’s s infant brother died under suspicious circumstances. On appeal, the court rejected her argument that her due process rights were violated when the hearing referee failed to ask about relatives who could provide care for the child, and did not give her an opportunity to cross-examine or subpoena witnesses, or present proofs to counter the admitted evidence. It noted that although the record did not show that the referee inquired about relatives, respondent “cannot show that the failure affected her substantial rights.” In addition, she was given “an opportunity at the hearing to disclose such information. She did not do so. And, even on appeal, although she complains that the referee did not ask her to identify [the child's] relatives who might be available to provide care, she has not actually identified any relatives that she would have identified if such an inquiry had been directly made." Further, even if respondent “had been asked to identify other potentially available relatives,” and even if she had identified someone, given "the referee’s decision to not bounce” the child from relative to relative, there was “nothing to suggest that the referee would have made a different placement decision if the inquiry required by MCR 3.965(B)(14) had been made.” There was also “nothing on the record to support a finding that [she] attempted to subpoena witnesses, but was precluded from from doing so.” And she could not “show outcome determinative error given the pre- and post-hearing opportunities to confer with her lawyer and given her acquiescence to the procedure used during the hearing after technological difficulties prevented her from private conversation with her lawyer.” The court also rejected respondent’s claim that the DHHS failed to prove a statutory ground for removal. The trial court did not err by finding that custody of the child with respondent "presented a substantial risk of harm to his life, physical health, or mental well-being.” In addition, she “did not provide proper care and custody for” the child by placing him with a relative, and because she “was incarcerated at the time of the hearing, the trial court did not err by finding evidence that ‘[n]o provision of service except removal will protect the child.'" Finally, the trial court "made findings, consistent with the circumstances, showing that reasonable efforts to prevent removal had been made.”