Timing is Not Necessarily Everything: Defending Retaliatory Termination Claims Under Michigan’s Civil Rights Act

By Thomas W. Werner

It is no surprise that plaintiffs generally bear the burden to prove all of the elements of their claims. What may surprise, however, is how often plaintiffs fail to gather evidence during discovery to meet this burden. In general, during the discovery period, a plaintiff must gather evidence to support all claims made against the defendant. A plaintiff may not rely on mere speculation to establish elements of a claim.

For example, in a recent case in the United States District Court for the Western District of Michigan, the plaintiff, a Federal prisoner, claimed that the prison’s administration punished him with an additional year of incarceration when it received results of drug testing performed by our client, a toxicology lab, which revealed the presence of marijuana in the plaintiff’s system. The plaintiff claimed that this result was inaccurate, and made two claims against the lab: (1) that the lab’s test procedures were faulty; and (2) that the lab failed to report in his test results that it had received his sample cup with a broken security seal.

Adopting arguments from our motion for summary judgment, the Court held that the plaintiff had not gathered sufficient evidence during discovery to support his claims. The Court specifically held that the plaintiff lacked evidence beyond mere speculation required to:

• Overcome our showing that the lab’s testing procedures were satisfactory;
• Show that the seal on his sample cup was broken when the lab received it; and
• Demonstrate that the prison board would not have added to his prison term had the positive test results contained a note regarding a broken seal.

Because the plaintiff lacked evidence, the Court held that he could only speculate that the lab had been in any way negligent, and that, if so, that negligence had caused his claimed damages. As a result of plaintiff’s reliance on mere speculation to prove his claims, the Court dismissed the plaintiff’s complaint in its entirety.

This doctrine of impermissible speculation is useful in a variety of cases, including, notably, defending against retaliatory termination claims under Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), MCL § 37.2101, et seq. To establish an ELCRA retaliation claim, the plaintiff employee bears the burden to establish that: (1) he or she engaged in an activity protected by the ELCRA; (2) the employer knew of the plaintiff’s engagement in that activity; (3) the employer took an adverse employment action against the plaintiff; and (4) the plaintiff’s engagement in the protected activity motivated the employer to take the adverse employment action. See Garg v. Macomb County Community Mental Health Services, 472 Mich. 263, 273 (2005)

In support of the first three elements, a plaintiff can typically present his or her own testimony to avoid summary dismissal of an ELCRA retaliation claim. For example, in another recent case, we represented the employer of a plaintiff who claimed that she was terminated because she had reported sexual harassment, an action protected by the ELCRA. In opposing our motion for summary judgment of her retaliation claim, the plaintiff relied on her own testimony to support the first three elements. Regarding the fourth element, however, the plaintiff argued only that the timing of her termination (she had reported sexual harassment one day, and was terminated the next) supported her claim that the employer terminated her because she had reported harassment. Citing Michigan Supreme Court precedent, we argued that evidence regarding the timing of plaintiff’s termination alone was insufficient to support an ELCRA retaliation claim. See Garg, 472 Mich. at 273 (holding that a plaintiff “must show something more than merely a coincidence in time between protected activity and adverse employment action”). We argued that because plaintiff lacked any additional evidence, she was left with impermissible speculation to prove the employer’s motive. This argument assisted us in obtaining a favorable settlement prior to the trial court having to rule on our dispositive motion.

In defending against a plaintiff’s claims, it is prudent to keep in mind the plaintiff’s burden to oppose a dispositive motion with more than mere speculation as to the elements of the plaintiff’s various claims. In defending against an ELCRA retaliation claim in particular, it is prudent to note that timing is not necessarily everything.