Darby J O'Dell v. State of Michigan ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
DARBY J. O’DELL, UNPUBLISHED
February 1, 2018
Plaintiff-Appellant,
v No. 334146
Wayne Circuit Court
STATE OF MICHIGAN, DEPARTMENT OF LC No. 14-012273-CD
STATE POLICE, F/LT KEVIN SWEENEY, F/LT
JOHN CARD, F/LT MITCH KRUGIELKI, F/LT
TONY CUEVAS, F/LT MATT BOLGER, F/LT
ANN MCCAFFERY, F/LT PHILLIP MENNA,
F/LT MICHAEL SHAW, F/LT GARY
PARSONS,
Defendants-Appellees.
Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ.
PER CURIAM.
Plaintiff Darby J. O’Dell appeals as of right the trial court’s order denying her motion for
partial summary disposition and granting the motion for summary disposition filed by defendants
State of Michigan, Department of State Police (MSP), and the individual defendants1 in this
action alleging gender discrimination and retaliation pursuant to the Civil Rights Act, MCL
37.2201 et seq. We affirm.
On appeal, plaintiff argues that the trial court erred in denying her motion for summary
disposition and in granting defendants’ motion for summary disposition where genuine issues of
material fact existed with regard to whether defendants’ stated reasons for not promoting her
multiple times were pretextual for unlawful discrimination. We disagree.
1
According to plaintiff in her motion for partial summary disposition in the lower court, the
individual defendants were either hiring managers or supervisors that discriminated against her
on the basis of her gender. Throughout this opinion, the state and individual defendants will be
referred to collectively as “defendants.”
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The trial court’s decision regarding a motion for summary disposition is reviewed de
novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. In evaluating a motion for summary disposition brought under this
subsection, a trial court considers affidavits, pleadings, depositions, admissions,
and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most
favorable to the party opposing the motion. Where the proffered evidence fails to
establish a genuine issue regarding any material fact, the moving party is entitled
to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross &
Peters Co, 451 Mich 358; 547 NW2d 314 (1996). [Maiden, 461 Mich at 120.]
MCL 37.2202(1) provides, in pertinent part, as follows:
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an
individual with respect to employment, compensation, or a term, condition, or
privilege of employment, because of religion, race, color, national origin, age,
sex, height, weight, or marital status.
A plaintiff may present either direct or indirect and circumstantial evidence of
discrimination. Major v Village of Newberry, 316 Mich App 527, 540; 892 NW2d 402 (2016).
Direct evidence is that evidence, which if believed by the trier of fact, would lead to the
conclusion that unlawful discrimination was a motivating factor in the challenged adverse
employment action. Id. However, in cases where the record evidence does not yield direct
evidence of discrimination, to withstand summary disposition, the plaintiff must adhere to the
steps set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668(1973), to establish a prima facie case. Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d
515 (2001). By doing so, a plaintiff can “present a rebuttable prima facie case on the basis of
proofs from which a factfinder could infer that the plaintiff was the victim of unlawful
discrimination.” Id., quoting Debrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich
534, 537-539; 620 NW2d 836 (2001). Where the parties do not dispute that plaintiff has not
brought forward direct evidence of gender discrimination, in this case she must rely on “the
McDonnell Douglas framework.” Hazle, 464 Mich at 463.
Under McDonnell Douglas, a plaintiff must first offer a “prima facie case”
of discrimination. Here, plaintiff was required to present evidence that (1) she
belongs to a protected class, (2) she suffered an adverse employment action, (3)
she was qualified for the position, and (4) the job was given to another person
under circumstances giving rise to an inference of unlawful discrimination. Lytle
[v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906 (1998); see
also Texas Dep’t of Community Affairs v Burdine, 450 US 248, 254, n 6; 101 S Ct
1089; 67 L Ed 2d 207 (1981); McDonnell Douglas, supra at 802. [Hazle, 464
Mich at 463 (footnote omitted).]
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In the trial court, defendants conceded that plaintiff had alleged a prima facie case of
gender discrimination with respect to all of the sergeant vacancies at issue where she did not
receive a promotion, except for the Bay City and Caro positions, where plaintiff had not
produced the appropriate documentation in support of her application. The trial court analyzed
plaintiff’s claims on the basis of that concession with respect to all of the sergeant vacancies at
issue, and did not independently determine whether plaintiff had made out a prima facie claim of
gender discrimination. In doing so, the trial court cited the Michigan Supreme Court’s decision
in Town v Mich Bell Telephone Co, 455 Mich 688, 699; 568 NW2d 64 (1997), where the
Michigan Supreme Court in that case “elect[ed] to presume that [the] plaintiff has established a
prima facie case [of age discrimination].” Specifically, the Town Court stated, in pertinent part,
as follows:
The purpose of the prima facie case is to force the defendant to provide a
nondiscriminatory explanation for the adverse employment action. That purpose
having been served, we move to the plaintiff’s evidence that the defendants’
proffered nondiscriminatory reason is a pretext for discrimination. [Id.]
Notably and for reasons unclear, on appeal defendants have not made the same
concession with respect to plaintiff establishing a prima facie case of gender discrimination.
However, a thorough review of defendants’ brief on appeal confirms that defendants’ arguments
concerning plaintiff’s gender discrimination claim focus on whether she has produced evidence
creating a genuine issue of material fact with regard to whether defendants’ proffered reasons for
not selecting her for a promotion were simply pretext for otherwise unlawful discrimination.
Likewise, plaintiff’s arguments in her brief on appeal focus on the third step of the McDonnell
Douglas analysis, that being whether she produced record evidence creating genuine issues of
material fact with regard to whether defendants’ stated reasons for not promoting her were
pretext for unlawful discrimination. Accordingly, under the circumstances of this case, we will
focus on the latter two steps of the McDonnell Douglas burden-shifting analysis on the
reasonable presumption that plaintiff has made out a prima facie case of gender discrimination.
Once a plaintiff has made out a prima facie case, a presumption of discrimination will
arise. Hazle, 464 Mich at 463. The prima facie case results in an inference of discrimination,
“because [a Court] will presume [the challenged employment actions], if otherwise unexplained,
are more likely than not based on the consideration of impermissible factors.” Id., quoting
Furnco Constr Corp v Waters, 438 US 567, 577; 98 S Ct 2943; 57 L Ed 2d 957 (1978). Then, in
an attempt to rebut the presumption of discrimination established by the creation of the prima
facie case, “the defendant has the opportunity to articulate a legitimate, nondiscriminatory reason
for its employment decision[.]” Hazle, 464 Mich at 464.
The articulation requirement means that the defendant has the burden of
producing evidence that its employment actions were taken for a legitimate,
nondiscriminatory reason. . . . If the employer makes such an articulation, the
presumption created by the McDonnell Douglas prima facie case drops away. [Id.
at 464-465 (footnotes omitted).]
For each sergeant vacancy at issue, defendants produced a selection memorandum or
other non-discriminatory reasons stating specifically why the successful candidate was selected
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over plaintiff. We have carefully reviewed each in turn. Each selection memorandum, as the
trial court recognized, sets forth in detail why the successful candidate was selected. As a
general matter, the selection memoranda detail the successful candidates’ educational
credentials, work experience, seniority, training, and performance during their interviews, as well
as other non-discriminatory factors that led to their selection as the successful candidate. As the
Michigan Supreme Court recognized in Hazle, 464 Mich at 465, at the third stage of the burden-
shifting analysis, the plaintiff must undertake the following to withstand a motion for summary
disposition:
[T]he plaintiff must demonstrate that the evidence in the case, when construed in
the plaintiff’s favor, is “sufficient to permit a reasonable trier of fact to conclude
that discrimination was a motivating factor for the adverse action taken by the
employer toward the plaintiff.” Lytle, supra at 176. As we first held in [Town,
455 Mich at 698], and then reaffirmed in Lytle, supra at 175-176, a plaintiff “must
not merely raise a triable issue that the employer’s proffered reason was
pretextual, but that it was a pretext for [unlawful] discrimination.”
A plaintiff can demonstrate that the stated reasons for not being promoted are pretext by
“(1) showing the reasons had no basis in fact, (2) if they have a basis in fact, by showing that
they were not the actual factors motivating the decision, or (3) if they were factors, by showing
that they were jointly insufficient to justify the decision.” Feick v Co of Monroe, 229 Mich App
335, 343; 582 NW2d 207 (1998). The pivotal inquiry at this stage is “whether consideration of a
protected characteristic was a motivating factor, namely, whether it made a difference in the
contested employment decision.” Hazle, 464 Mich at 466 (citation and footnote omitted).
Plaintiff raises several arguments in support of her assertion that defendants’ stated
reasons for not promoting her were merely pretext for otherwise unlawful discrimination. Each
will be discussed in turn. First, in support of her argument that the selection process for
sergeants is inherently subjective, plaintiff asserts that the Job Fit form that is used during the
hiring process “is almost entirely subjective and prone to scoring mishaps and and/or
manipulations.” Plaintiff also argues that the interview process “lends itself to manipulation and,
in this case, unlawful discrimination.” Plaintiff also points to the deposition testimony of
Detective/First Lieutenant David Kelly, First Lieutenant Ann McCaffery and First Lieutenant
Phillip Menna, which we have carefully reviewed. Plaintiff also directs our attention to the
United States Court of Appeals for the Sixth Circuit’s decision in Brewer v New Era, Inc, 564
Fed Appx 834 (CA 6, 2014). In that case, the Brewer Court stated, in the context of a racial
discrimination claim, that “decisions made on the basis of subjective criteria, such as whether an
employee is a team player or whether she would fit into a new corporate culture, can ‘provide a
real mechanism for discrimination,’ and thus should be ‘carefully scrutinized.’” Id. at 843, citing
Rowe v Cleveland Pneumatic Co, Numerical Control, Inc, 690 F2d 88, 93 (CA 6, 1982).
A review of both Detective/First Lieutenant Kelly and First Lieutenant McCaffery’s
deposition testimony demonstrates that they both acknowledged there is room for human
subjectivity in the interview process for the sergeant position. First Lieutenant McCaffery’s
deposition testimony also reflects that she made a human error in scoring plaintiff’s Job Fit form
for the vacant sergeant position at the Metro Post. Additionally, First Lieutenant Menna testified
that while he completed a performance evaluation form for plaintiff, plaintiff had not actually
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reported to him during the relevant time period. First Lieutenant Menna also conceded that he
cut and pasted information from plaintiff’s prior performance evaluations when completing her
performance evaluation. First Lieutenant Menna acknowledged that his performance evaluation
of plaintiff did not include her time spent working on the Governor’s security detail. The record
also confirms that on more than one occasion, notably with the Flint and Monroe (2013) sergeant
vacancies, defendants interviewed more than five candidates for a position, and that as a result,
male candidates who received a lower initial score than plaintiff were ultimately selected over
her for a promotion. However, the key question at the final stage of the McDonnell Douglas
analysis is “whether consideration of a protected characteristic was a motivating factor, namely
whether it made a difference in the contested employment decision.” Hazle, 464 Mich at 466.
The record, viewed in the light most favorable to plaintiff, reflects that as candidates were
selected for the sergeant vacancies at issue, human errors were made, perhaps time-saving
methods were used, and the interview process was not entirely consistent with every position at
issue. Additionally, as the trial court noted with respect to the Flint sergeant vacancy, plaintiff’s
male counterparts were impacted by defendants’ decision to interview more than five candidates.
Likewise, with respect to the Monroe (2013) Post, three of plaintiff’s male counterparts had
higher initial scores than the selected candidate, who would not have received an interview if less
than five candidates were interviewed. However, the record evidence simply does not yield a
genuine issue of material fact with respect to whether plaintiff’s gender motivated defendants’
decisions to not promote her on multiple occasions.
As additional evidence of pretext, plaintiff points to the fact that, in her estimation, she
was “significantly more experienced than several of the male applicants who were selected for
the [sergeant] positions.” Plaintiff points to the fact that she has a post-graduate degree, and was
working on her doctorate at the time she applied for the multiple sergeant positions. Specifically
citing the vacant sergeant position at the Flint Post, plaintiff notes that the successful candidates
did not have the same educational credentials as plaintiff. According to plaintiff, she was also
more qualified for the sergeant position because she had taken “significant specialized training
for the position, and had attended supervisory and leadership development courses[.]” In
plaintiff’s view, she was also more qualified than the successful candidates at the Flint Post
where she had been an actual sergeant at the Detroit Post, supervising 38 other employees.
Plaintiff also points as an example to the sergeant vacancy at the Lakeview Post, where she
alleges that the successful candidate had only “been assigned to one work site and did not have
[plaintiff’s] diverse interest and experience[ ]” working as a sergeant. As further evidence of
pretext, plaintiff reviews each sergeant position for which she did not receive a promotion, citing
reasons why the successful applicant was less qualified than her.
We have carefully reviewed plaintiff’s claims with regard to each sergeant vacancy at
issue. However, even if we were to accept as accurate every one of plaintiff’s assertions that the
successful candidate was less qualified than her for each promotion, the United States Court of
Appeals for the Sixth Circuit has recognized that while this superior “qualifications” evidence
can be considered probative of pretext, it has cautioned that “[w]hether qualifications evidence
will be sufficient to raise a question of fact as to pretext will depend on whether a plaintiff
presents other evidence of discrimination.” Bender v Hecht’s Dep’t Stores, 455 F3d 612, 626-
627 (CA 6, 2006). Specifically, the Bender Court stated that “employers are generally ‘free to
choose among qualified candidates,’ and that ‘[t]he law does not require employers to make
perfect decisions, nor forbid them from making decisions that others may disagree with[.]’”
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(citations omitted.) Likewise, in Hazle, the Michigan Supreme Court cautioned lower courts that
they must not “second guess whether the employment decision was ‘wise, shrewd, prudent, or
competent.’” Hazle, 464 Mich at 464, quoting Town, 455 Mich at 704.
In the case in which a plaintiff does provide other probative evidence of
discrimination, that evidence, taken together with evidence that the plaintiff was
as qualified as or better qualified than the successful applicant, might well result
in the plaintiff’s claim surviving summary judgment. . . . On the other hand, in
the case in which there is little or no other probative evidence of discrimination,
to survive summary judgment the rejected applicant’s qualifications must be so
significantly better than the successful applicant’s qualifications that no
reasonable employer would have chosen the latter applicant over the former. In
negative terms, evidence that a rejected applicant was as qualified or marginally
more qualified than the successful candidate is insufficient, in and of itself, to
raise a genuine issue of fact that the employer’s proffered legitimate, non-
discriminatory rationale was pretextual. [Bender, 455 F3d at 626-627 (emphasis
supplied; citations omitted).]
The Bender Court went on to state that “when qualifications evidence is all (or nearly all)
that a plaintiff proffers to show pretext, the evidence must be of sufficient significance itself to
call into question the honesty of the employer’s explanation.” Id. at 627. (citation omitted;
emphasis added.) More recently, in Rachells v Cingular Wireless Employee Servs, LLC, 732 F3d
652, 668 (CA 6, 2013), the United States Court of Appeals for the Sixth Circuit recognized, in
pertinent part, as follows:
The relative qualifications of candidates can establish triable issues of fact as to
pretext where “the evidence shows that either (1) the plaintiff was a plainly
superior candidate, such that no reasonable employer would have chosen the latter
applicant over the former, or (2) plaintiff was as qualified as if not better qualified
than the successful applicant, and the record contains ‘other probative evidence of
discrimination.’ ” [Bartlett v Gates, 421 Fed Appx 485, 490 (CA 6, 2010)] (citing
Bender, 455 F3d at 627–628; [Risch v Royal Oak Police Dep’t, 581 F3d 383, 392)
(CA 6, 2009)].2
In the instant case, aside from plaintiff’s allegations that the other candidates were less
qualified than her, and that the interview process was inherently subjective, the record does not
contain any independent evidence of discrimination on the basis of plaintiff’s gender.
Additionally, we acknowledge that the record evidence, viewed in the light most favorable to
plaintiff, suggests that with respect to some of the positions in dispute, plaintiff may have had (1)
2
In Rachells, the Court noted that the record demonstrated a “discriminatory atmosphere” at the
defendant employer where there was evidence that a non-minority individual was promoted over
“more qualified minority candidates[,]” minority candidates were given “undeservedly poor
evaluations[,]” and preferential treatment was afforded to non-minority employees in the
promotion process and with discipline actions. Rachells, 732 F3d at 669.
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marginally more seniority than some of the other successful candidates, (2) a higher level of
education, as well as (3) more training experience and background. However, the record simply
does not support a conclusion that plaintiff’s qualifications for each of the disputed positions
were so “significantly better” than the qualifications of the selected candidates that no reasonable
employer would have selected the successful candidates over plaintiff. Bender, 455 F3d at 627.
Put another way, the record does not contain evidence that plaintiff was a “plainly superior”
candidate to the extent that it was simply unreasonable for other candidates to be selected over
her. Rachells, 732 F3d at 668.
Also, as defendants point out, plaintiff concedes that defendants in fact offered her the
opportunity to return to a sergeant position following the 2007 reduction in force which led to
her taking a Trooper position. Plaintiff would not have had to interview again, but plaintiff, of
her own volition, declined to take this opportunity, ostensibly staying in a Trooper position so
that she could complete more training. In our view, plaintiff is hard-pressed to argue that
defendants’ stated reasons for not promoting her to sergeant in the multiple positions in dispute
were mere pretext for discrimination, when she was offered another opportunity to regain a
sergeant position but decided to turn it down of her own accord.
In support of her argument that her gender was a key factor defendants considered when
declining to promote her, plaintiff points to this Court’s decision in Campbell v Dep’t of Human
Servs, 286 Mich App 230, 240, 242; 780 NW2d 586 (2009). In Campbell, when considering
whether the trial court erred in denying the defendants’ motion for directed verdict following a
jury trial on the basis that the plaintiff had not established a prima facie case of gender
discrimination, this Court stated, in pertinent part, as follows:
Viewing the evidence in the light most favorable to plaintiff, a rational trier of
fact could reasonably infer, from the multiple times that plaintiff was not chosen
for a position for which she was qualified and that was filled by a male, and in
some cases by a male less qualified than plaintiff, that gender was a motivating
factor in defendants’ decision not to promote plaintiff to the Arbor position.
Further, we find unpersuasive defendants’ argument that another female employee
was selected and promoted as a center director elsewhere. The fact that some
women held high-level positions does not mean that a reasonable inference of
discrimination could not be made in this particular case. [Id. at 240.]
While the Campbell Court concluded that the “multiple times” that less qualified males were
chosen over the plaintiff supported a conclusion that her gender was a motivating factor in the
defendants’ hiring decisions, it did so in the context of evaluating the trial court’s ruling on a
motion for directed verdict, specifically with regard to whether the plaintiff had made out a
prima facie case of gender discrimination. Id. at 239-240. To make out a prima facie case of
gender discrimination, the plaintiff was required to present evidence that “the job was given to
another person under circumstances giving rise to an inference of unlawful discrimination.” Id.
at 240, quoting Hazle, 464 Mich at 463. In the present case, the third step in the McDonnell
Douglas burden-shifting analysis is at issue, concerning evidence of pretext, and we have
highlighted above the relevant law from the United States Court of Appeals for the Sixth Circuit
concerning how a plaintiff can make a showing of pretext on the basis of superior qualifications.
Accordingly, Campbell is factually and legally distinguishable from this case.
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Additionally, rejecting the defendants’ arguments that the trial court ought to have
granted a motion for judgment notwithstanding the verdict (JNOV) where the plaintiff had not
proven that the defendant’s legitimate, nondiscriminatory reasons for hiring a male candidate
over plaintiff were pretext for unlawful discrimination, the Campbell Court held, in pertinent
part, as follows:
The evidence presented in this case was sufficient to allow the jury to believe that
defendants’ proffered reasons for promoting Johnson instead of plaintiff—
objective scoring criteria and a written recommendation—were pretextual.
Defendant claimed Johnson had the highest interviewing score, but failed to
introduce the actual scores as corroborating evidence, despite their availability.
This was of particular importance because interview performance apparently was
the key factor in the promotion decision. Further, plaintiff’s written qualifications
were more than sufficient and she had been trained in the type of interviewing
employed. In light of these facts, along with the evidence on the record that
supported an inference of discrimination based on defendants’ pattern of
promoting men who were less qualified than plaintiff, plaintiff created a triable
issue regarding whether defendants’ stated reason for promoting Johnson was a
mere pretext for gender discrimination. [Id. at 242 (citation omitted).]
Unlike the facts of Campbell, there is no suggestion on this record that defendants have failed to
come forth with evidence supporting their stated reasons for not promoting plaintiff for multiple
sergeant positions. Instead, aside from the Caro and Bay City sergeant vacancies, defendants
have tendered a selection memorandum for each position that plaintiff was unsuccessful in
obtaining to support their stated reasons for not promoting her.3 Similarly, for the reasons stated
above, in the context of considering plaintiff’s alleged superior qualifications evidence, the
present record also does not contain facts which lead us to conclude that a “pattern of promoting
men who were less qualified than plaintiff[ ]” exists in this case. Id. Again, Campbell is
distinguishable from the present case, and does not support plaintiff’s contention that genuine
issues of material fact exist with regard to whether defendants’ proffered reasons for not
promoting her are pretext for unlawful discrimination.
Plaintiff points to the decision of the United States Court of Appeals for the Sixth Circuit
in White v Baxter Healthcare Corp, 533 F3d 381 (CA 6, 2008), a failure to promote case, where
the Court recognized that genuine issues of material fact existed with regard to whether the
defendants’ stated reason for not promoting the plaintiff had a basis in fact, where the plaintiff
possessed “better qualifications” than the candidate ultimately selected. Id. at 395. For example,
the Court noted that the plaintiff, applying for a Midwest Regional Manager position, had “some
qualifications for managerial work” and educational credentials, such as an MBA, that the
successful candidate did not. Id. at 394. The Court also observed that the plaintiff had several
3
For the Caro and Bay City Posts, defendants stated that plaintiff was not interviewed because
she did not tender the proper supporting documentation, and noted that her male counterparts
received similar treatment.
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years of experience as a sales representative in the defendants’ company and with an outside
company, and had been “consistently rated as a high performer[,]” with the opportunity to
become well-familiar with the products sold by the defendant. Id. In sum, the White Court
stated that “this evidence of [the plaintiff’s] arguably superior qualifications for the . . . regional
manager position, in and of itself, could lead a jury to doubt the justifications given for [the
defendant employer’s] hiring decision.” Id. For reasons unclear, the White Court did not cite
earlier Sixth Circuit precedent governing the analysis of superior qualifications evidence in the
final stage of the McDonnell-Douglas burden-shifting analysis. Notably, the record in White was
also replete with independent evidence of racially discriminatory animus toward the plaintiff and
other African-American employees at the company. Id. at 385. Thus, White would likely fall
into the category of cases discussed in Bender that could likely survive summary judgment,
where there was other probative evidence of discrimination toward the plaintiff in addition to the
plaintiff’s superior qualifications. Bender, 455 F3d at 626-627. However, the record in this case
simply does not contain such independent evidence of discrimination. Cf. Risch, 581 F3d 383
(summary judgment was improperly granted where the record contained evidence that the
plaintiff had superior qualifications to her male counterparts that were promoted over her, and
the record contained ample evidence of discrimination, such as where officers made multiple
sexually discriminatory remarks to female officers on a repeated basis).
Plaintiff also argues that summary disposition was inappropriate with regard to her
retaliation claim where she established a prima facie claim of retaliation. We disagree.
In Major, this Court recently articulated the elements of a prima facie claim of retaliation
pursuant to the CRA:
To establish a prima facie case of retaliation, a plaintiff must show: (1) that he
engaged in a protected activity; (2) that this was known by the defendant; (3) that
the defendant took an employment action adverse to the plaintiff; and (4) that
there was a causal connection between the protected activity and the adverse
employment action. [Major, 316 Mich App at 552-553, quoting Garg v Macomb
Co Comm Mental Health Servs, 472 Mich 263, 273; 696 NW2d 646 (2005)
(quotation marks and citation omitted).]
Plaintiff’s claim of retaliation stems from her involvement with a community service
project in Bruce Township, Michigan. During her deposition, plaintiff testified that she became
involved in the community service project in Bruce Township because she was living with her
father at the time, and Bruce Township was her “[h]ometown area.” She was assigned to the
Bruce Township MSP detachment, and because space was becoming an issue, plans were put in
place to build a structure where items belonging to the MSP staff could be stored. Plaintiff stated
that the Fire Chief of Bruce Township was complaining to MSP staff about the storage of MSP
patrol items in the fire department. Also, there was no space for plaintiff in Bruce Township to
use as a female locker room, and there was no “female place” for plaintiff to keep her personal
items.
According to plaintiff, the MSP detachment in Bruce Township consisted of a room at
the Bruce Township Fire Department with four lockers and a gun safe. Plaintiff complained to
her supervisor, Sergeant James Kemp, about the lack of facilities for women, and was told that it
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would be acceptable for her to dress at home and to drive her personal car to the detachment,
where she could then pick up her patrol car for work. Plaintiff also requested one of the four
lockers available to MSP troopers at the detachment, and that request was declined. According
to plaintiff, her complaints to Sergeant Kemp about the lack of female facilities for her at the
Bruce Township detachment were “[o]ral.” When plaintiff requested a patrol car to drive to her
home, she was told, presumably by Sergeant Kemp, “[w]e will try.” Plaintiff was frustrated that
her less senior male counterparts had access to a patrol car to take home, and she attributed the
lack of a patrol car assigned to her to the complaints she raised regarding the lack of appropriate
facilities for her in Bruce Township. Plaintiff was eventually given a patrol car to take home in
the last month of her time at the Bruce Township detachment.
Subsequently, plaintiff became involved in the community project to build a storage
structure at the Bruce Township MSP Post, and local high school students were also a part of the
project to develop what plaintiff termed an “auxiliary garage.” As the project developed, and
more members of the community became involved, plaintiff had a discussion with Lieutenant
Michael Shaw over the telephone about the project, and he told plaintiff that her involvement
was acceptable, as long as she was not purporting to represent the MSP or acting in her capacity
as a trooper. In plaintiff’s words, she received permission from Lieutenant Shaw to “to do
whatever I wanted to do on my own time[.]” Plaintiff recalled that at one point the media
became involved in the auxiliary garage project, presumably by reporting on it, and she testified
about a short conversation with First Lieutenant Menna where he told plaintiff he had read an
article in the newspaper about the project, and reminded her, “[r]emember, we don’t talk to the
media.” Plaintiff further testified that she responded, “yeah, I don’t talk to the media. That was
the extent of the conversation.” Plaintiff was subsequently handed a copy of the written
reprimand at issue in this case in October of 2013.
Plaintiff further testified regarding the incident in Bruce Township that led to her being
reprimanded. For example, plaintiff testified that she was not wearing a MSP t-shirt on a day
that she gave a presentation concerning the auxiliary garage, but clarified that it was a t-shirt that
had a “buffalo soldier of a police officer with a cowboy hat waving a sword riding a buffalo with
wheels on it.” Moreover, she conceded that her t-shirt had a lightning bolt on it, “surrounded by
a badge[,]” and the MSP emblem also has a lightning bolt on it. The subject of the meeting
where plaintiff gave a presentation was the building of the auxiliary garage, community support
for the structure, and fund raising. During the meeting, plaintiff did not state that the auxiliary
garage would be primarily used to store MSP equipment. Plaintiff also stated that she was “very
clear” and “articulated that I was not working as a member of the state police[,]” the meeting was
not sponsored by the MSP, and the auxiliary garage was not “a state police building; . . . this was
not a state police structure used for any state police purpose.” Specifically, plaintiff stated, in
pertinent part, as follows:
I was very clear, and any person who was in attendance at that meeting
walked away knowing that was Citizen Darby O’Dell working on behalf of Darby
O’Dell who lives and works in the community and this has nothing to do with the
Michigan State Police.
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Plaintiff also included in the lower court file a copy of the written warning that she
received arising from the incident in Bruce Township. On October 21, 2013, plaintiff received
the following warning:
You have engaged in the following misconduct:
Insubordination or disrespect toward superior authority after being ordered
to not involve yourself or the Department any further into the erecting of an
external building at the site of the MSP detachment in Bruce Twp.
On October 2, 2013, an article in the Romeo Observer [newspaper] noted
a ‘letter’ you sent to the reporter. In the article you are referred to as [Trooper]
O’Dell multiple times and that you wished to thank those companies that had
participated in the process thus far[,] and if there were further questions to contact
you via email.
The written warning provided that plaintiff had violated “O.O.1, Article 4, Section 4.23a” of the
governing [MSP] regulations on October 2, 2013, and noted as “[p]revious [a]ction [t]aken . . . :”
[Trooper] O’Dell was ordered not to participate in any activity or
conversations with regards to the building of an external garage at the location of
the MSP Detachment by Bruce Twp. officials. [Trooper] O’Dell had previously
involved herself in the discussion and process of getting this building built
representing the interests of the Michigan State Police as a trooper. She also
spoke at a Bruce Township meeting and with a reporter representing herself as a
Michigan State Police Trooper during which she gave her personal email to solicit
interest from outside companies who wished to donate to the cost of the structure.
According to plaintiff, “[t]he written reprimand came on the heels of [plaintiff’s]
complaints related to the gender discrimination in [the MSP]” and amounted to “blatant
retaliation[.]”
Even accepting that plaintiff has made out the first three elements of a prima facie claim
of retaliation, we agree with the trial court’s assessment that plaintiff did not produce evidence to
create a genuine issue of material fact with regard to whether her October 2013 written
reprimand was causally connected to the complaints of discrimination that she raised while
working at the MSP detachment in Bruce Township.
In Aho v Dep’t of Corrections, 263 Mich App 281, 289; 688 NW2d 104 (2004), this
Court set forth the applicable legal principles for establishing the element of causation in a
retaliation claim:
To establish a causal connection, a plaintiff must demonstrate that his
participation in the protected activity was a “significant factor” in the employer’s
adverse employment action, not merely that there was a causal link between the
two events. [Barrett v Kirtland Comm College, 245 Mich App 306, 325; 628
NW2d 63 (2001)]. Thus, mere discriminatory or adverse action will not suffice as
evidence of retaliation unless the plaintiff demonstrates a clear nexus between
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such action and the protected activity. [Mitan v Neiman Marcus, 240 Mich App
679, 681–682; 613 NW2d 415 (2000)].
The record evidence, viewed in the light most favorable to plaintiff, confirms that
plaintiff raised complaints about the lack of facilities for women to change, and her lack of a
patrol car to take home, while working at the Bruce Township MSP detachment from 2012 until
2013. Subsequently, plaintiff received a written reprimand in October 2013 arising from her
activities with a community project involving the building of an auxiliary garage at the Bruce
Township Fire Department to store equipment for the MSP. However, the record evidence does
not lead to a reasonable conclusion that there is a “clear nexus” between plaintiff’s alleged
protected activities and the subsequent written reprimand. Aho, 263 Mich App at 289. Aside
from plaintiff’s subjective interpretations regarding how and why the relevant events unfolded as
they did, the record does not yield any indication that the complaints plaintiff raised regarding
(1) the lack of female facilities at the Bruce Township detachment and (2) her not having her
own patrol car to take home while her less senior male counterparts did, factored significantly in
the decision to reprimand her for her involvement with the auxiliary garage project. Id.4
Moreover, by plaintiff’s own admission in her deposition, she was cautioned by First Lieutenant
Menna to not speak to the media during the auxiliary garage project, and her ultimate written
reprimand disciplined her for her involvement with the media while representing herself as a
MSP trooper. On appeal, plaintiff does not argue that she did not speak with the media during
the auxiliary garage project, and she does not dispute her involvement with the auxiliary garage
project. Accordingly, where the record evidence does not yield genuine issues of material fact
with respect to whether plaintiff’s complaints while working at the Bruce Township detachment
were a significant factor in defendants’ decision to reprimand her for her involvement in the
auxiliary garage project, the trial court properly granted defendants’ motion for summary
disposition regarding plaintiff’s claim of unlawful retaliation.
Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
4
While not dispositive of this issue, it is noteworthy that plaintiff’s initial complaints were raised
to her supervisor, Sergeant Kemp, while working at the Bruce Township detachment, and she
was later reprimanded by First Lieutenant Menna.
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