Employment discrimination; Failure to promote as a result of racial discrimination in violation of the Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2202(1)(a); Disparate treatment; Wilcoxon v. Minnesota Mining & Mfg. Co.; Duranceau v. Alpena Power Co.; Intentional discrimination under the McDonnell Douglas (McDonnell Douglas Corp. v. Green) burden-shifting framework; Hazle v. Ford Motor Co.; Actual decisionmaker; Chattman v. Toho Tenax Am., Inc. (6th Cir.); The use of statistics to prove intentional or disparate discrimination; Dixon v. WW Grainger, Inc.; Featherly v. Teledyne Indus., Inc.; Title VII of the Civil Rights Act; DeFlaviss v. Lord & Taylor, Inc.; McCalla v. Ellis; Peeples v. Detroit (6th Cir.); Retaliation; MCL 37.2701(a); Burlington N. & Santa Fe Ry. Co. v. White; Pena v. Ingham Cnty. Rd. Comm’n; White v. Burlington N. & Santa Fe Ry. Co. (6th Cir.); The reasonable-employee standard; Whether the needs-improvement evaluation, the corresponding performance improvement plan (PIP), & the “workplace transfer could dissuade a reasonable employee from making or supporting a claim of discrimination”

The court held that plaintiff failed “to establish a material question of fact whether defendant’s legitimate, nondiscriminatory reason for the promotion decision was a pretext.” Having never addressed in a published ELCRA case whether to follow Burlington, the court did so here and adopted “the reasonable-employee standard for determining whether an employer has committed a retaliatory adverse employment action under ELCRA. Given that the antiretaliation provision does not contain the limiting language used in the substantive discrimination provision, there is no basis in MCL 37.2701(a) to limit retaliatory acts under ELCRA to those affecting the terms and conditions of employment such as pay, hiring and firing.” It held that the adoption of Burlington “is also consistent with our long history of applying persuasive Title VII precedent to analogous ELCRA issues absent statutory differences.” Also, it held that “the needs-improvement evaluation, the corresponding PIP and the workplace transfer could dissuade a reasonable employee from making or supporting a claim of discrimination under ELCRA.” Thus, whether she suffered an adverse employment action was a question for the jury, and the trial court erred by granting summary disposition. The court affirmed dismissal of plaintiff’s failure-to-promote discrimination claim, but reversed dismissal of her retaliation case and remanded. Plaintiff (an African American) brought a claim of employment discrimination against defendant alleging that she had been denied a promotion as a result of racial discrimination in violation of ELCRA. Defendant took certain actions that she concluded were in retaliation for having sued. Thus, she amended her complaint to include retaliation. Plaintiff argued on appeal that “she established a question of fact whether defendant’s stated reason for the promotion decision was a pretext for discrimination.” Defendant’s nondiscriminatory reason was that C (a Caucasian) was the best candidate for the position. Plaintiff did not establish a material question of fact whether the “legitimate, nondiscriminatory reason for the promotion decision was a pretext. Defendant properly relied on the Civil Service Commission’s determination that [C] was qualified for the sought position. Plaintiff’s subjective opinion that she was more qualified for the position does not by itself create a triable question of fact. The promotion decision was unanimously made by the interview panel and any alleged discrepancy regarding the hiring process is immaterial. Plaintiff’s statistical evidence is not sufficiently probative without additional context and analysis.”