Wrongful termination; The Elliott-Larsen Civil Rights Act (ELCRA); MCL 37.2202(1)(a); Associational discrimination; Distinguishing Bryant v Automobile Data Processing, Inc & Graham v Ford; Rouch World, Inc v Department of Civil Rights; Retaliation; MCL 37.2701(a); “Protected activity”

The court held that plaintiff-former employee (Kuilema) “did not allege a legally sufficient claim for discrimination because of sex under ELCRA” but did sufficiently allege a retaliation claim to survive a summary disposition motion under MCR 2.116(C)(8). Thus, it reversed the trial court’s denial of summary disposition of his associational discrimination claim under MCL 37.2202(1)(a) but affirmed the denial of the motion as to his retaliation claim under MCL 37.2701(a). Kuilema had been a social work professor at defendant-Calvin Univrsity. As to his associational discrimination claim, he alleged “he was terminated in violation of ELCRA based upon his decision to officiate a same-sex marriage.” The court noted there is no language in MCL 37.2202(1)(a) “prohibiting discrimination against an individual because of association with others persons based upon the sex of the other persons.” Despite this lack of express statutory language, Kuilema asserted “that caselaw supports such a claim.” The parties identified two cases – Bryant and Graham – addressing racial discrimination based on “the plaintiff’s association with a member of a different race.” The court found both were distinguishable. In both cases, the plaintiffs’ “claims were based upon members of one race associating with members of a different race. Therefore, in both cases, the race of the plaintiff was a key factor in the discrimination.” But here, Kuilema’s sex was “irrelevant to Calvin University’s decision to terminate his employment. The university’s decision to terminate his employment was based upon his decision to officiate a same-sex wedding. That decision would not have been different if Kuilema were a female instead of a male.” The court also found that the Michigan Supreme Court’s decision in Rouch supported its “analysis of the associational discrimination claims [in] Bryant and Graham.” Based on the allegations in Kuilema’s “complaint, the discriminatory action would have occurred regardless of [his] sex. As a result, he cannot establish causation under § 202 because his sex had no bearing upon the allegedly discriminatory action.” However, as to his retaliation claim, “regardless of whether Kuilema will be able to prove that he engaged in a protected activity by opposing the allegedly racist film and the questioning of an employee regarding his own actions in officiating that employee’s wedding, he alleged that each element of a retaliatory discrimination claim occurred.”