Michelle Burkhardt v. City of Lansing ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
MICHELLE BURKHARDT, UNPUBLISHED
June 9, 2015
Plaintiff-Appellant/Cross-Appellee,
v No. 319853
Ingham Circuit Court
CITY OF LANSING and LANSING POLICE LC No. 10-000466-CL
DEPARTMENT,
Defendant-Appellees/Cross-
Appellants.
Before: RIORDAN, P.J., and DONOFRIO and BECKERING, JJ.
PER CURIAM.
Plaintiff appeals by right from a judgment issued following a jury verdict of no cause of
action with respect to plaintiff’s retaliation claim pursuant to the Michigan Civil Rights Act
(MCRA), MCL 37.2101 et seq., and the finding that, while she suffered sexual harassment under
the act, she was not entitled to damages arising from this claim. Defendants have filed a cross-
appeal, providing an alternate ground for affirming the jury’s determination that plaintiff is not
entitled to relief with respect to her sexual harassment claim. We affirm.
I. FACTS
Plaintiff, a Lansing police officer, has been employed by defendant Lansing Police
Department since 1997, with the exception of a short period of time between 2012 and 2013. In
2005, she and another officer, Paula Paschal, responded to a domestic relations complaint where
the two alleged they were refused backup assistance from other officers. Plaintiff maintained
that in 2007 and 2008 she was the target of a number of “pranks” from her fellow officers and,
after she testified in 2008 at Paschal’s workers’ compensation hearing, she was informed by an
attorney employed by defendant City of Lansing that the refusal to provide backup was based on
animosity toward her. Plaintiff had a conversation with a Lansing police lieutenant about the
stress caused by these events, and he referred her to an internal employee assistance program (the
CARES program), which she participated in. She had also been prescribed Xanax by her
primary physician.
On September 19, 2008, members of the department received an e-mail from then
Lansing Police Chief Mark Alley that Paschal’s “civil claims” had been settled. Shortly
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thereafter, plaintiff sent a department-wide e-mail response that stated, “Nice slap in my face
don’t you think?” Plaintiff testified that the department’s legal advisor, Michael Mathis, told her
he needed to talk to her. Later, during a conversation in Mathis’s office, he performed a number
of actions, such as lubricating a rubber glove he had placed on his hand, so as to give her the
impression that he planned to perform a rectal exam, and plaintiff became highly uncomfortable
and left his office. Eventually, disciplinary actions were taken against Mathis.
After reportedly suffering stress from the Mathis incident, and using her personal and
sick time for a six-week leave of absence, plaintiff filed a workers’ compensation claim and
received her leave time back, as well as payment of doctor and other copays stemming from the
incident. At the city’s behest, Dr. Gustav Minjun Lo performed an independent medical
examination of plaintiff and authored a report in December 2008, in which he expressed the
opinion that plaintiff was fit for duty. In early July 2009, plaintiff self-reported a change in her
medications in accordance with department policy. Plaintiff was placed on administrative leave
on July 9, 2009, and was required to undergo a fitness for duty evaluation from Sparrow
Environmental Health Services. She was referred to Robert J. Fabiano, Ph.D., who performed a
psychological evaluation on July 22, 2009, and determined that plaintiff was unfit for duty.
Plaintiff was placed on light duty assignment by then Lansing Police Captain Teresa Szymanski.
In January 2010, plaintiff informed a coworker by e-mail about problems she was having
with her marriage; the e-mail also suggested that plaintiff’s husband had abused the couple’s
children by disciplining them too roughly. The coworker told human resources, and Human
Resources Health and Wellness Administrator Amy Fraser met with plaintiff on January 19,
2010, to tell her that Child Protective Services (CPS) was being notified. Once again, plaintiff
was placed on administrative leave with pay. In March 2010, plaintiff submitted a second
workers’ compensation claim and requested an administrative hearing, and in April 2010, she
filed the instant suit raising claims of sexual harassment, gender discrimination, and retaliation
for participating in a sexual harassment hearing, and a claim under the Whistleblowers’
Protection Act, MCL 15.361 et seq.
Plaintiff was again referred to Fabiano in March 2010, who once again found her unfit for
duty. Plaintiff’s leave was converted from paid administrative leave to personal medical leave
effective May 3, 2010. Fraser testified that a letter was sent to plaintiff in August 2010
informing her that she could get a doctor’s statement saying she was cleared to come back to
work. However, an October 22, 2010 letter from plaintiff’s psychiatrist stated that returning to
work would be deleterious to her.
Plaintiff underwent another psychiatric evaluation by Dr. Lo, who authored a May 31,
2011 report in which he stated that plaintiff was fit to work. While this report was furnished to
defendants, Fraser testified that it “was done for the sole purpose of the workers’ compensation
claim.” Plaintiff was terminated from employment on March 12, 2012, but she was reinstated in
June 2013 following a grievance procedure.
Following the submission of proofs, defendants moved for summary disposition. The
trial court dismissed plaintiff’s gender discrimination claim, Whistleblowers’ claim, and claim
against then Lansing Police Chief Michael Yankowski. The jury found liability on the sexual
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harassment claim, but awarded $0 in damages. The jury found no cause of action on the
retaliation claim. The trial court later denied plaintiff’s motion for a new trial.
II. REFUSAL TO EXCUSE JUROR
Plaintiff first argues that she was denied her right to due process when the trial court
refused to excuse a juror who, during the course of trial, revealed that he had a bias against
Hispanics. Plaintiff has Hispanic heritage. She does not challenge the partiality of any of the
remaining jurors, who are presumed to have been impartial. See People v Miller, 482 Mich. 540,
550; 759 NW2d 850 (2008).
Regardless of the merit of plaintiff’s initial challenge for cause, she cannot show that she
is now entitled to a new trial. “[A] grant of a new trial is governed by MCR 2.611(A)(1). The
rule clearly requires that a party seeking a new trial establish that substantial rights were
materially affected.” Bynum v ESAB Group, Inc, 467 Mich. 280, 286; 651 NW2d 383, 387
(2002). Here, because the challenged juror was excused before deliberations began and was not
shown to have tainted the deliberations of any of the remaining jurors, plaintiff cannot show that
her rights were materially affected. Therefore, plaintiff has not shown that she is entitled to
relief.
III. JUDICIAL BIAS
Plaintiff next claims that her rights to due process were violated due to judicial bias.
Because plaintiff never raised the issue of judicial bias at the trial court, the issue is not
preserved. We review unpreserved issues for plain error affecting plaintiff’s substantial rights.
People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999).
A trial judge may be disqualified where, in relevant part, the “judge is biased or
prejudiced for or against a party or attorney,” or where the “judge, based on objective and
reasonable perceptions, has either” a serious “risk of actual bias impacting the due process rights
of a party” or has “failed to adhere to the appearance of impropriety standard set forth in Canon 2
of the Michigan Code of Judicial Conduct.” MCR 2.003(C)(1). To establish bias or prejudice, a
party “must overcome a heavy presumption of judicial impartiality.” Cain v Dep’t of
Corrections, 451 Mich. 470, 497; 548 NW2d 210 (1996). “[D]isqualification for bias is only
constitutionally required in the most extreme cases.” Id. at 498.
In support of this contention, plaintiff points to a number of alleged errors, which we will
address in turn.
A. TESTIMONY CONCERNING PLAINTIFF’S CONCURRENT WORKERS’
COMPENSATION CLAIM
Plaintiff first maintains that the introduction of evidence concerning her concurrent
workers’ compensation claim was erroneous because generally it is not acceptable to introduce
evidence concerning insurance coverage.
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As noted by defendants, plaintiff’s counsel first raised the issue in opening statements by
discussing plaintiff’s workers’ compensation claims and Dr. Lo’s reports. Plaintiff’s counsel
also specifically used the workers’ compensation claim as evidence that plaintiff suffered
damages from Mathis’s actions, and also to argue that defendant’s retaliated against her for filing
the claim. It is fundamental that “[a] party is not allowed to assign as error on appeal something
which his or her own counsel deemed proper [in the trial court] since to do so would permit the
party to harbor error as an appellate parachute.” Dresselhouse v Chrysler Corp, 177 Mich. App.
470, 477; 442 NW2d 705 (1989); see also Lewis v Legrow, 258 Mich. App. 175, 210; 670 NW2d
675 (2003) (“It is settled that error requiring reversal may only be predicated on the trial court’s
actions and not upon alleged error to which the aggrieved party contributed by plan or
negligence”). Plaintiff cannot claim judicial bias based on an evidentiary decision that was
assented to by her attorney.
Taking a position contradictory to the above, plaintiff also appears to maintain that she
has demonstrated that she was denied a fair trial due to judicial bias because her counsel was not
able fully to question her about her reasons for raising her workers’ compensation claims and
that this may have prevented the jury from awarding damages for sexual harassment.
A trial court may restrict the presentation of relevant evidence if, among other reasons, it
could lead to juror confusion. MRE 403. Reviewing the challenged actions by the trial court, it
is evident that the court was attempting to avoid confusing the jurors with what was, on the part
of all parties, conflicting stances concerning plaintiff’s ability to perform her duties. While the
trial court prevented plaintiff from explaining her reasoning in filing both claims, we read the
court’s subsequent explanation as an intention to disallow an exploration of a marginally relevant
area which either could have unanticipated repercussions in the workers’ compensation claim or
could possibly lead to an allegation that plaintiff was presenting perjured testimony in the instant
case. We see no abuse of discretion in the court’s handling of the issue, or any evidence of
untoward bias against plaintiff.1
B. EX PARTE COMMUNICATIONS
Plaintiff also maintains that the trial court’s improper ex parte communications with
defense counsel during the case evaluation sanction portion of the proceedings should leave this
Court “with the overall impression and attitude of the trial court tainted the jury’s view of the
proceedings.” The conversation of which she complains basically consisted of a request from
the trial court’s judicial assistant for an itemized statement. Plaintiff acknowledges that this
conversation, such as it was, did not occur during the presence of jurors. It thus could not have
had any effect on the outcome of the trial.
C. OBJECTIONS DURING CLOSING ARGUMENTS
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Having found no error, we need not consider plaintiff’s speculative assertion that the trial
court’s decision to limit her testimony likely resulted in the failure to award damages.
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Plaintiff claims error concerning the trial court’s decision to sustain defendants’ objection
to her counsel’s argument at closing that she had been disparately treated due to her gender.
However, plaintiff’s gender discrimination claim had already been dismissed, and plaintiff has
not shown that the trial court’s decision to limit closing arguments to the evidence presented and
the theories available for recovery constituted either error or bias.
Plaintiff also maintains that the trial court improperly sustained a defense objection and
gave a corrective instruction concerning “a recitation of information possessed by Mr. Mathis.”
When plaintiff’s counsel began to discuss how Mathis allegedly claimed that he had information
on plaintiff starting back in spring of 2008, defense counsel objected on the ground that Mathis
did not testify. The trial court sustained the objection, telling the jury, “there was no testimony
about statements or what statements may have been that were made by Mr. Mathis. I think the
testimony was that some statements were made to then Captain Yankowski but not the substance
of those statements.” Plaintiff maintains that counsel’s argument was fully supported by
testimony from both plaintiff and Yankowski, but provides no citation to where this occurred.
Plaintiff has thus not shown that the trial court erred in sustaining the objection or that the ruling
evidenced bias on the part of the trial court.
D. QUESTIONING OF AMY FRASER
Plaintiff argues that that the trial court improperly interrupted her counsel’s questioning
of Fraser because the sought-after testimony was relevant as to a dispute between Fraser and then
Chief Szymanski regarding whether and when the chief was informed about Dr. Lo’s 2011
report. However, as defendants note, the actual sustained objection concerned the receipt of Dr.
Fabiano’s report and whether it, not the report from Dr. Lo, was placed in plaintiff’s personnel
file or her medical one.
E. SUMMARY
After concluding that none of the raised issues had any merit, plaintiff’s argument
necessarily fails that these adverse rulings evidenced judicial bias. We note that even if the trial
court did err in any of these instances, this would not alter our resolution of this issue.
Judicial rulings, as well as a judge’s opinions formed during the trial
process, are not themselves valid grounds for alleging bias “unless there is a deep-
seated favoritism or antagonism such that the exercise of fair judgment is
impossible.” Comments that are critical of or hostile to counsel and the parties
are generally not sufficient to pierce the veil of impartiality. [People v Jackson,
292 Mich. App. 583, 598; 808 NW2d 541 (2011) (citations omitted); see also
Wayne Co Prosecutor v Parole Bd, 210 Mich. App. 148, 155; 532 NW2d 899
(1995), quoting Mahlen Land Corp v Kurtz, 355 Mich. 340, 350; 94 NW2d 888
(1959) (stating that “‘[r]epeated rulings against a litigant, no matter how
erroneous, and how vigorously and consistently expressed, are not
disqualifying’”).]
After our review of the record, we conclude that there were no circumstances that
demonstrated the presence of a deep-seated favoritism or antagonism that would make fair
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judgment impossible. Accordingly, we conclude that there is no merit to plaintiff’s contention of
judicial bias.
IV. DAMAGES FOR HARASSMENT CLAIM
Plaintiff next argues that she is entitled to a new trial or to additur based on the jury’s
decision to award her no damages after finding that she had proven her claim of sexual
harassment. This Court reviews for an abuse of discretion a trial court’s decision not to grant a
new trial, Kelly v Builders Square, Inc, 465 Mich. 29, 34; 632 NW2d 912 (2001), and to deny a
motion for additur, Arnold v Darczy by Darczy, 208 Mich. App. 638, 639; 528 NW2d 199 (1995).
A motion for new trial is supportable when, for example, an irregularity in the
proceedings denied a party a fair trial, the verdict was “clearly or grossly inadequate or
excessive,” or the verdict was against the great weight of the evidence. See MCR
2.611(A)(1)(a), (d), (e).
When a party challenges a jury’s verdict as against the great weight of the
evidence, this Court must give substantial deference to the judgment of the trier of
fact. If there is any competent evidence to support the jury’s verdict, we must
defer our judgment regarding the credibility of the witnesses. The Michigan
Supreme Court has repeatedly held that the jury’s verdict must be upheld, “even if
it is arguably inconsistent, ‘[i]f there is an interpretation of the evidence that
provides a logical explanation for the findings of the jury.’” “‘[E]very attempt
must be made to harmonize a jury’s verdicts. Only where verdicts are so logically
and legally inconsistent that they cannot be reconciled will they be set aside.’”
[Allard v State Farm Ins Co, 271 Mich. App. 394, 406-407; 722 NW2d 268 (2006)
(citations omitted; alterations by Allard Court).]
Likewise,” [t]he proper consideration in granting or denying additur is whether the jury award is
supported by the evidence.” Arnold, 208 Mich. App. at 640.
“It is the sole province of the jury to determine the weight of the evidence and credibility
of the witnesses. [This Court] may not interfere with that judgment.” Allard, 271 Mich. App. at
408. Consistent with this responsibility, a jury is free to accept or reject a plaintiff’s testimony
regarding damages. Joerger v Gordon Food Serv, Inc, 224 Mich. App. 167, 172; 568 NW2d 365
(1997). However, a verdict is inadequate if the jury ignored uncontroverted damages. Burtka v
Allied Integrated Diagnostic Servs, Inc, 175 Mich. App. 777, 780; 438 NW2d 342 (1989).
To make out her prima facie case for a hostile work environment sexual harassment claim
under the MCRA, plaintiff was required to establish five elements:
(1) the employee belonged to a protected group;
(2) the employee was subjected to communication or conduct on the basis
of sex;
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(3) the employee was subjected to unwelcome sexual conduct or
communication;
(4) the unwelcome sexual conduct or communication was intended to or in
fact did substantially interfere with the employee’s employment or created an
intimidating, hostile, or offensive work environment; and
(5) respondeat superior. [Radtke v Everett, 442 Mich. 368, 382; 501
NW2d 155 (1993), citing MCL 37.2103(h), MCL 37.2202(1)(a).]
Because the only theory of recovery found viable by the jury was her sexual harassment
allegations, plaintiff was required to provide a nexus between the tortious action and the
damages she claims to have suffered in order to recover monetary damages. See, e.g., Haliw v
Sterling Hts, 464 Mich. 297, 310; 627 NW2d 581 (2001); Kewin v Mass Mut Life Ins Co, 409
Mich. 401, 419; 295 NW2d 50, 55 (1980).
To support her claim that additur or a new trial is warranted, plaintiff maintains, “Even if
wage loss was not caused by the harassment, plaintiff clearly testified to damage in terms of
stress, weight gain, loss of intimacy, other physical problems related to stress, forced medical
and psychological examinations, and financial complications including, but not limited to, loss of
her home to foreclosure and bankruptcy.” Plaintiff also states that she had an overall wage loss
over the course of the events of approximately $225,000. However, while plaintiff may have
suffered damages from defendants’ actions overall, the jury did not find that her retaliation claim
had merit. Plaintiff does not provide anything other than a general assertion that these damages
are related to Mathis’s sexual harassment rather than the other actions plaintiff complains of. A
party may not merely announce a position and leave it to the court to discover and rationalize the
basis for the claim. Groves v Dep’t of Corrections, 295 Mich. App. 1, 11; 811 NW2d 563 (2011).
Moreover, the record does not contain uncontroverted facts supporting noneconomic
damages arising from the sexual harassment, such that it would lead to a finding that the jury
ignored uncontroverted damages. See Joerger, 224 Mich. App. at 172. Further, “[t]here is no
legal requirement that a jury award damages simply because liability was found.” Id.
VI. RETALIATION CLAIM
While plaintiff’s arguments are not entirely clear, she appears to maintain that the trial
court should have granted her motion for a new trial on her retaliation claim because the verdict
was against the great weight of the evidence.
This Court has interpreted the retaliation provision of the [MCRA], MCL
37.2701(a), to require that a plaintiff prove a prima face case by showing:
(1) that the plaintiff 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.
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To establish causation, the plaintiff must show that his participation in activity
protected by the [MCRA] was a “significant factor” in the employer’s adverse
employment action, not just that there was a causal link between the two. [Barrett
v Kirtland Cmty Coll, 245 Mich. App. 306, 315; 628 NW2d 63 (2001) (quotation
marks and citations omitted).]
Plaintiff points to a number of instances of alleged retaliation. In response, defendants argue, in
part, that some of the actions taken by plaintiff were not “protected” and that having her undergo
psychological or medical evaluations or placing her on leave are not materially adverse. These
arguments are, for the most part, unpersuasive.
Regardless of whether plaintiff could meet her burden of establishing a prima facie claim,
she has not shown that the jury verdict was against the great weight of the evidence. Although
actions by various police supervisory personnel can be seen as harassment in retaliation for
testifying for Paschal, they can also reasonably have been viewed as the implementation of
department protocol in response to plaintiff’s mental health issues that pre-existed her decision to
testify. As discussed above, evidence was presented that plaintiff had a mental health condition
at least as early as 2007 that required her to take medication. Evidence was also presented that
she met with a Lansing police lieutenant about stress concerning the statement that the other
officers’ “no-backup” decision in 2005 was related to animosity toward her rather than Paschal,
and that this in turn led to her enrollment in the CARES program and additional counseling. And
while plaintiff criticizes the actions taken after she informed a coworker of her husband’s actions
in January 2010, absent some conspiracy not proven at trial, she cannot show that her coworker’s
decision to report this suspected abuse had anything to do with plaintiff’s protected activities.
Likewise, although the referral to Dr. Lo and the subsequent referrals to Dr. Fabiano
could have been viewed as part of a plan to retaliate against plaintiff, the evidence presented also
suggests a more pedestrian rationale, i.e., in the case of Dr. Lo, the goal was to rebut plaintiff’s
claim that she was entitled to workers’ compensation benefits, and in the case of Dr. Fabiano’s
first evaluation in 2009, the referral came in response to plaintiff’s self-reported medical
condition and her change of medication. Evidence was also presented that, even in late 2010,
plaintiff’s own psychiatrist stated that returning to work would be deleterious to her and that
Fabiano should re-evaluate whether she could return to duty.
In short, given the conflicting evidence, a reasonable jury could have found that plaintiff
failed to establish that the actions by defendants’ employees were retaliation for her protected
activity. Accordingly, plaintiff has not shown that the jury’s decision was against the great
weight of the evidence. Given our resolution of this issue, we need not reach defendants’
alternate rationale for affirmance presented on cross-appeal.
Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219.
/s/ Michael J. Riordan
/s/ Pat M. Donofrio
/s/ Jane M. Beckering
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