Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Retaliation under Title VII of the Civil Rights Act; 42 USC § 2000e–3(a); McDonnell Douglas Corp. v. Green; Laster v. City of Kalamazoo; Whether plaintiff’s complaints of discriminatory hiring practices were the “but-for cause” of her termination; Dixon v. Gonzales; Temporal proximity; Vereecke v. Huron Valley Sch. Dist.; Tuttle v. Metropolitan Gov’t of Nashville; Randolph v. Ohio Dep’t of Youth Servs.; Mickey v. Zeidler Tool & Die Co.; MacDonald v. United Parcel Serv. (Unpub. 6th Cir.); Heightened scrutiny theory; Hamilton v. General Elec. Co.; Adamov v. U.S. Bank Nat’l Ass’n (Unpub. 6th Cir.); Cantrell v. Nissan N. Am., Inc. (Unpub. 6th Cir.); “Intervening cause”; Kuhn v. Washtenaw Cnty.; Wasek v. Arrow Energy Servs.; Whether an alleged complaint about “differential treatment of employees” amounted to protected activity; Niswander v. Cincinnati Ins. Co.; Yazdian v. ConMed Endoscopic Techs., Inc.; Booker v. Brown & Williamson Tobacco Co.; Risch v. Royal Oak Police Dep’t; Kyle-Eiland v. Neff (Unpub. 6th Cir.); Claims under the Michigan Elliott-Larsen Civil Rights Act (ELCRA); Mumm v. Charter Twp. of Superior (Unpub. 6th Cir.); Garg v. Macomb Cnty. Cmty. Mental Health Servs. (MI); Hazle v. Ford Motor Co. (MI); Rodrigues v. Delta Airlines, Inc. (Unpub. 6th Cir.)
[This appeal was from the ED-MI.] The court affirmed summary judgment for defendant-employer (Aspen Technologies) on plaintiff-former employee’s (Kenney) Title VII and ELCRA retaliation claims because Kenney failed to make her prima facie case by not establishing that her complaints about Aspen’s alleged discriminatory hiring practices was the “but for” cause of her termination. She accused Aspen of firing her in retaliation for her complaints about its alleged discriminatory hiring practices. Aspen argued that her harsh management style was responsible for many of its hourly employees quitting. The court found that the issue was causation; whether Kenney’s complaints of discriminatory hiring practices were “the but-for cause” of her termination. She was fired approximately two and a half months after her alleged complaint. But the court noted that, other than the temporal element, she failed to offer any other evidence of causation. She did not rebut the fact that two formal complaints had been “filed against her for harassing employees[,]” and that Aspen was short-staffed during a critical project and was having difficulty attracting employees. She also did not point “to evidence that any of the dozens of employees who quit did so for reasons other than her harsh management style.” Further, she failed to establish that her “job performance was unduly scrutinized.” The court also held that there were two “intervening causes" between the protected activity and an adverse employment action that dispelled any inference of causation—“the complaints filed against Kenney and the documented instances of Aspen employees leaving due to her management style.” It noted that either cause would have overcome her claim. As for her assertion that she spoke to Aspen’s Vice President about differential treatment of employees, the court held that she failed to establish that this was a “protected activity” under federal law where there was no evidence that their conversation “amounted to more than a ‘vague charge of discrimination.’” Finally, she was unable to establish pretext. As for her claims under Michigan law, the court noted that Michigan uses the federal Title VII framework in assessing retaliation claims and that the result would be the same.
Expert testimony; MRE 702; Expert testimony as to sexual abuse victims; Bolstering the complainant’s credibility; People v. Thorpe; People v. Harbison; Children’s Protective Services (CPS)
In an order in lieu of granting leave to appeal, the court vacated Parts III and IV of the Court of Appeals judgment (see e-Journal # 67273 in the 3/9/18 edition) as to the testimony of a CPS worker and a detective, and remanded the case for reconsideration in light of Thorpe and Harbison. It denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented. It also denied the “motions for documents, to challenge transcripts, for discovery, to compel testimony, and to remand . . . .”
Prosecution references to defendant’s prearrest silence; MRE 401 & 403; People v. Cetlinski; People v. Musser
In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 69098 in the 12/6/18 edition), the court remanded the case to that court to consider whether the prosecutor’s references to “defendant’s prearrest silence were relevant and admissible under MRE 401 and MRE 403,” and if they were not, whether it was “more probable than not that the error was outcome determinative[.]” The court instructed the Court of Appeals to forward its decision on remand to the Supreme Court Clerk within 56 days, and it retained jurisdiction.
Felonious assault; People v. Osby; People v. Bosca; People v. Jackson; Battery; People v. Meissner; Dangerous weapon; Intent to injure or place in reasonable apprehension of an immediate battery; People v. Harrison; People v. Kanaan; People v. Reeves; Due process; Right to remain silent; Miranda v. Arizona; People v. Solmonson; People v. Clary; People v. Shafier; People v. Dennis; People v. Allen
Holding that there was sufficient evidence to support defendant’s felonious assault conviction, and that the prosecution’s questions and statements as to defendant’s silence did not result in plain error, the court affirmed. He argued that the prosecution’s questions and comments as to his invocation of his right to remain silent after his arrest resulted in plain error affecting his substantial rights. The court disagreed, concluding that this case was factually similar in many ways to Allen. It also held that the evidence was sufficient to establish beyond a reasonable doubt that he committed an assault. “There was ample record evidence that” he pointed a loaded firearm at victim-P. P testified that defendant pointed a firearm at him. An officer (H) testified that defendant admitted to pointing a firearm at P, and another officer (W) “testified that he recovered a loaded firearm that was in a holster attached to the steering column in” his vehicle. P identified that gun “as the firearm that defendant pointed at him on M-53. [P] also testified that he was afraid of being shot by” him. Thus, a rational trier of fact could determine that he “committed an assault by performing an unlawful act that placed another in reasonable apprehension of receiving an immediate battery.” Also, the evidence was sufficient to establish beyond a reasonable doubt that he committed the assault with a dangerous weapon. P “testified that defendant pointed a firearm at him, [H] testified that defendant admitted to pointing a firearm at [P], and [W] testified that he recovered a loaded firearm that was in a holster attached to the steering column in defendant’s vehicle.” Thus, a rational trier of fact could determine that he “possessed a dangerous weapon when he committed the assault.” Finally, the evidence was sufficient that he “possessed the intent to injure or place [P] in reasonable apprehension of an immediate battery.” P testified that he “pointed a firearm at him shortly after they exchanged gestures expressing their displeasure with each other’s driving. Moreover, defendant testified that he held his firearm up to the window in an attempt to get [P] to ‘back off.’ Thus, a rational trier of fact could infer from defendant’s statements and actions that, by pointing his loaded firearm at [P], he intended to place [him] in reasonable apprehension of an immediate battery.”
Divorce; Spousal support; Loutts v. Loutts; Gates v. Gates; Modification; Thornton v. Thornton; MCL 552.28; Ackerman v. Ackerman; Amount; Thames v. Thames
Concluding that the evidence overall supported the trial court’s statements and findings, and that they were not unfair or inequitable, the court affirmed its modification of spousal support for plaintiff-ex-wife in the amount of $2,000 a month. The parties had been married for 23 years when they divorced in 2013. Their consent divorce judgment provided that defendant-ex-husband would pay plaintiff $3,200 a month in modifiable spousal support. He was then employed full-time earning over $100,000 a year. He obtained a modification in 2016 to $ 2,500 a month. He sought another modification in 2017, and the trial court entered the order at issue on appeal. The trial court “specifically and explicitly considered each” of the Thames factors on the record. It noted that “plaintiff’s testimony and submitted documents indicated that the majority of her income comes from spousal support and that she receives a lesser amount of social security benefits than defendant. It noted that defendant resides with a partner and shares living expenses with her (having done so for five years), as well as being provided with a car. Plaintiff, on the other hand, lives alone and is heavily dependent upon the spousal support for her 2017 income of $32,741.” While defendant asserted that it “was not even-handed in its treatment of” their income and savings, he did not offer any “indication that there were additional pension benefits that plaintiff could be collecting but was not. The trial court also clearly acknowledged defendant’s failing health (and plaintiff’s good health) and his reduced income in fashioning an appropriate” award. If, as he contended, it should have considered the $100 per month that she “could, but was not yet receiving into its equity consideration, the amount would add up to only $1,200 more per year to plaintiff’s income.” Adding this to her admittedly unreported income of $2,400 a “year for caregiving services would equal an additional $3,600 in yearly income to plaintiff’s $32,741 reported income.” This minimal amount would be unlikely to “drastically affect plaintiff’s ability to meet her needs for the foreseeable future. The trial court focused significantly on factor (12), general principles of equity, in reaching its decision.” It determined that lowering the award further than $2,000 a month “would inequitably impoverish her and create a significant hardship on her ability to meet her financial needs.” The court found no error.
Removal; Notice of the removal hearing; 8 USC §§ 1229(a)(1) & (2); Pereira v. Sessions; Hernandez-Perez v. Whitaker; Garcia-Romo v. Barr; Cruz-Gomez v. Lynch; Camaj v. INS (Unpub. 6th Cir.); In re Grijalva (BIA); § 1229(a)(1)(F); Motion to reopen; § 1229a(b)(5)(C)(ii); Santos-Santos v. Barr; Timchenko v. Holder (Unpub. 6th Cir.; Matter of M-R-A- (BIA); Joshi v. Ashcroft (7th Cir.); Thompson v. Lynch; Ly v. Holder (Unpub. 6th Cir.); Yanez-Pena v. Barr (5th Cir.); Review of an in absentia removal order; §§ 1229a(b)(5)(A)-(D); Shabo v. Sessions; Mata v. Lynch; Kucana v. Holder; Camaj v. Holder; § 1252(b)(4)(B); Board of Immigration Appeals (BIA); Immigration judge (IJ)
The court upheld the BIA’s denial of petitioner-Valadez’s motion to reopen his 2003 removal proceeding based on his delay in filing and where he failed to show that he lacked the required notice of hearing. He entered the country illegally when he was 15 to join his father. After a brush with the law, he was ordered removed. He did not attend the hearing. Over the years, he continued to reenter the country illegally and be removed. In 2018, he was charged with illegal reentry. He then moved to reopen his original removal proceeding, claiming that he never received notice of the hearing. The IJ rejected this claim, and the BIA affirmed. The court first noted the BIA’s “presumption that an immigrant has received the required notice if it is properly mailed[,]” and that none of the four hearing notices had been returned as undeliverable. Additionally, Valadez had signed the initial notice to appear. Significantly, the IJ and the BIA cited his lack of diligence in trying “to rescind the removal order after learning of it by no later than” 8/08. The court reviewed the § 1229(a)(1) and (2) notice paragraphs cross-referenced in § 1229a(b)(5)(C)(ii). It also considered that it is the immigrants’ burden “to ‘demonstrate[]’ the lack of notice, so the burden of proof switches to them after a judge issues” an in absentia removal order. In considering a petition for review of such a removal order, the court’s review is confined to “‘(i) the validity of the notice provided to the alien, (ii) the reasons for the alien’s not attending the proceeding, and (iii) whether or not the alien is removable.’” It held that the BIA “could reasonably conclude that Valadez did, in fact, receive notice in conformity with all requirements in § 1229(a)(1) and (2).” The initial notice contained all but the hearing date, and the next notice sent out two weeks later contained the missing date. Case law has held that “two written communications in combination can meet § 1229(a)(1)’s requirements.” Later notices included the consequences for failing to appear. He signed the first notice, and the other notices were sent to an address he specified. Although there were affidavits attesting that neither he nor his aunt and uncle received the notices, “a reasonable adjudicator could conclude that Valadez failed to overcome the presumption that he received the mailed notices.” The court denied his petition for review.
Uninsured motorist (UM) coverage; Whether a moped was a “motor vehicle” under the UM coverage section of the policy; Applicability of the narrow definition of a motor vehicle; Stanton v. City of Battle Creek; Distinguishing Farm Bureau Gen. Ins. Co. of MI v. Stark; Insurance contract interpretation; Rory v. Continental Ins. Co.; Use of a dictionary to define terms not defined in the policy; Vushaj v. Farm Bureau Gen. Ins. Co. of MI; Principle that exclusionary clauses are strictly construed in the insured’s favor; Hayley v. Allstate Ins. Co.; Construing provisions against the drafter; Raska v. Farm Bureau Gen. Ins. Co. of MI
Concluding that the parties intended a narrow definition of “motor vehicle” to apply, the court held that a moped was not a motor vehicle under the UM coverage section of the policy at issue. Thus, the exclusion on which defendant-insurer (State Farm) relied did not apply. Plaintiff-insured sought UM benefits under her policy after her son was severely injured when the moped he was riding was struck by a vehicle driven by one of the other defendants. The trial court ruled that a moped was a motor vehicle and thus, plaintiff was excluded from UM coverage under the policy. She argued on appeal that it erred in doing so, and the court agreed. The policy did not define the term motor vehicle in the UM coverage section, so the court looked to dictionary definitions, which vary. One dictionary defined the term “as ‘an automotive vehicle not operated on rails.’ This broad definition would likely encompass a moped.” But another dictionary defined it “as ‘an automobile, truck, bus, or similar motor-driven conveyance.’ This narrower definition of ‘motor vehicle’ would seemingly not encompass a moped.” The court had to determine whether the parties intended a broad or a narrow definition of the term. Several tenants of Michigan’s contract-interpretation jurisprudence persuaded it that they “intended to use a narrow definition. First, the contract provision at issue is an exclusionary clause, and it is well established that ‘[e]xclusionary clauses in insurance policies are strictly construed in favor of the insured.’” In addition, to the extent that the provision “could be fairly read as applying either a broad or narrow definition of ‘motor vehicle,’ the provision ‘should be construed against its drafter and in favor of coverage.’” The court noted that, under “the narrow definition, a ‘motor vehicle’ is ‘an automobile, truck, bus, or similar motor-driven conveyance.’ An automobile, truck, and bus all have large engines intended for highway use. A moped, on the other hand, has a small engine making it unsuitable for highway use, though it is sometimes driven on streets.” Thus, the court concluded that a moped was not a “motor vehicle” under the UM coverage section of the policy, “and the trial court erred by interpreting the contract otherwise.” The court noted that its reasoning mirrored that of the Supreme Court in Stanton. While the trial court relied on Stark, that case was distinguishable and did not apply. Reversed.
Tax credit for research & development (R&D); 26 USC § 41; Whether the government was judicially estopped from challenging plaintiff-taxpayer’s use of the .92% fixed-base percentage; Browning v. Levy; Teledyne Indus., Inc. v. NLRB; New Hampshire v. Maine; Pegram v. Herdrich; Edwards v. Aetna Life Ins. Co.; United States v. Owens; City of Kingsport v. Steel & Roof Structure, Inc.; Reynolds v. Commissioner; Whether the government waived its right to appellate review by failing to submit an offer of proof; Applicability of FRE 103(a)(2); Burden of proof; Crooks v. Commissioner; Chrysler Corp. v. Commissioner; Shinseki v. Saunders; Consideration of non-evidentiary legal issues in a motion in limine instead of a summary judgment motion; Louzon v. Ford Motor Co.; Moot costs issue; 28 USC § 1920
In this tax-refund suit, the court reversed the district court, holding that judicial estoppel is not applicable to Tax Court settlements. Plaintiff-Audio Technica claimed it was entitled to an R&D tax credit, which is based on the taxpayer’s “fixed-base percentage.” A lower fixed-base percentage results in a higher R&D tax credit. Instead of litigating its claims for 2006-10 in Tax Court, it paid the IRS and sued for a refund in the district court. The government wanted to challenge plaintiff’s calculation of the fixed-base percentage (.92%) before the jury. But the district court granted plaintiff’s motion in limine, ruling that the government was judicially estopped from doing so because it previously agreed to the same fixed-base percentage in tax settlements with plaintiff for other tax years. The jury found for plaintiff and it was awarded a $40,432 refund. The district court also granted its request for costs in part. The main issue before the court was whether the district court erred by finding that the government was judicially estopped from challenging plaintiff’s use of the .92% fixed-base percentage. The court first noted that plaintiff’s motion should not have been addressed as a motion in limine but should have been considered in a motion for summary judgment. It then vacated the district court’s judgment and reversed its judicial estoppel order, holding that judicial estoppel does not apply to Tax Court settlements where “a court order memorializing a settlement agreement generally does not constitute judicial acceptance of the facts underpinning that agreement . . . .” Further, none of the orders approved by the Tax Court actually included the .92% rate. The court rejected plaintiff’s argument that the government waived its right to appellate review by failing to submit an offer of proof because “the district court’s order was not simply an exclusion of evidence, but rather a ruling for Audio Technica on the fixed-base percentage issue as a matter of law. . . . An order that goes beyond evidentiary questions and instead resolves an issue as a matter of law is not ‘a ruling to . . . exclude evidence . . . .’” Thus, FRE 103 did not apply. The court also held that plaintiff’s harmless error argument lacked merit where the government was deprived of its ability to cross-examine plaintiff’s witnesses about the fixed-base percentage and to argue that plaintiff failed to meet its burden of proof. Because the district court’s judgment was vacated, any argument as to costs became moot. The court remanded for a determination of plaintiff’s fixed-base percentage.
Termination under §§ 19b(3)(b)(i), (b)(ii), & (j); In re VanDalen; In re BZ; In re HRC; Claim that the trial court did not comply with MCR 3.971(B); In re Ferranti; MCR 3.971(B)(1), (3), & (4); Due process; In re Pederson; MCR 3.920(G); MCR 3.920(B)(3)(d)
Holding that §§ (b)(i), (b)(ii), and (j) existed, and rejecting respondent-mother’s due process claim, the court affirmed termination of both respondents-parents’ parental rights to their child, M. Respondent-father argued that the trial court erred by terminating his parental rights pursuant to § (j) because there was no indication that his past crimes or alcohol use would likely cause harm to M. “Given his history of physically harming children in his care and custody and the likelihood that [he] would face environmental stressors upon his release,” the court could not conclude that the trial court committed reversible error in determining that § (j) supported termination. Also, the trial court did not err by terminating the mother’s parental rights pursuant to §§ (b)(i), (b)(ii), and (j). She did not contest that she broke M’s arm, causing him physical injury, but argued that the trial court erred by holding “that there was a reasonable likelihood that he would suffer further harm in her care.” However, the mother was drinking when the injury occurred. Her neighbor testified that the mother “drank daily and that it seemed to interfere with her ability to parent. Four out of nine parenting time visits were cancelled because” the mother was intoxicated. Her intoxication resulted in the removal of M’s sibling, and the mother “had to restart her substance abuse classes because of her failure to appear at them.” Under the circumstances, the trial court did not err by concluding that M “likely would be injured again if returned to his mother while her substance abuse problem continued to be out of control and that termination of” the mother’s parental rights were in M’s best interests. As to her claim regarding MCR 3.971(B), the court could not conclude that her plea to jurisdiction “was unknowing or involuntary.”