If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JAMES HAMPTON,

Plaintiff-Appellant,

UNPUBLISHED

November 26, 2019

v No. 342286

Genesee Circuit Court

MICHIGAN BELL TELEPHONE COMPANY, LC No. 16-107442-CD

Defendant-Appellee.

Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

Plaintiff, James Hampton, appeals as of right a trial court order granting summary 

disposition in favor of his former employer defendant, Michigan Bell Telephone Company,

pursuant to MCR 2.116(C)(10). We affirm.

Plaintiff commenced this action alleging that defendant, his former employer, engaged in 

race-based discrimination and retaliation in violation of the Elliott-Larsen Civil Rights Act 

(ELCRA), MCL 37.2101 et seq. The trial court granted summary disposition in favor of 

defendant after concluding that there was no genuine issue of material fact to support that 

plaintiff’s termination was (1) racially motivated or (2) in retaliation for engaging in protected 

activity.

I. STANDARD OF REVIEW

“We review de novo a trial court’s decision on a motion for summary disposition to 

determine whether the moving party is entitled to judgment as a matter of law.” Cuddington v

United Health Servs, Inc, 298 Mich App 264, 270-271; 826 NW2d 519 (2012). “In reviewing a 

motion brought under MCR 2.116(C)(10), we review the evidence submitted by the parties in a 

light most favorable to the nonmoving party to determine whether there is a genuine issue 

regarding any material fact.” Id. “A genuine issue of material fact exists when the record leaves 

open an issue on which reasonable minds could differ.” Bennett v Detroit Police Chief, 274 

Mich App 307, 317; 732 NW2d 164 (2006).
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II. RACE-BASED DISCRIMINATION

In his amended complaint, plaintiff alleged that defendant discriminated against him on 

the basis of race and in violation of the ELCRA. MCL 37.2202(1)(a) provides, in relevant 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.

“In some discrimination cases, the plaintiff is able to produce direct evidence of racial 

bias. In such cases, the plaintiff can go forward and prove unlawful discrimination in the same 

manner as a plaintiff would prove any other civil case.” Hazle v Ford Motor Co, 464 Mich 456, 

462; 628 NW2d 515 (2001). Direct evidence of racial discrimination is “evidence which, if 

believed, requires the conclusion that unlawful discrimination was at least a motivating factor in 

the employer’s actions.” Id. (quotation marks and citation omitted).

“In many cases, however, no direct evidence of impermissible bias can be located.” Id. 

In these cases, “[i]n order to avoid summary disposition, the plaintiff must then proceed through 

the familiar steps set forth in [McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 

L Ed 2d 668 (1973)].” Id. The McDonnell Douglas framework “allows a plaintiff to 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. (quotation marks and citations omitted). 

Under McDonnell Douglas, a plaintiff must establish a prima facie case of discrimination by 

presenting evidence that (1) he was a member of a protected class; (2) he suffered an adverse 

employment action; (3) he was qualified for the position; and, (4) the adverse action occurred 

“under circumstances giving rise to an inference of unlawful discrimination.” Id. at 463.

If a plaintiff establishes a prima facie case of discrimination, “a presumption of 

discrimination arises.” Id. (quotation marks and citation omitted). However, summary 

disposition is not necessarily precluded; rather, the burden shifts to the defendant to “articulate a 

legitimate, nondiscriminatory reason for its employment decision in an effort to rebut the 

presumption created by the plaintiff’s prima facie case.” Id. at 464. “If the employer makes 

such an articulation, the presumption created by the McDonnell Douglas prima facie case drops 

away.” Id. at 465. Then, in order to survive a motion for summary disposition, “the 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.” Id. (quotation marks 

and citations omitted). Specifically, 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.” Id. at 465-466 (quotation marks and citations omitted).

In this case, in responding to the motion for summary disposition, plaintiff did not allege,

nor can he prove, direct evidence of discrimination. Applying the McDonnell Douglas burden 
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shifting analysis, it is undisputed that plaintiff established the first three elements of a prima facie 

case of race-based discrimination. Specifically, defendant does not dispute that plaintiff was a 

member of a protected class, that plaintiff suffered an adverse employment action when he was 

terminated, and that plaintiff was qualified for his former position. See id. at 463.

With respect to the fourth element, plaintiff contends that the termination occurred under 

circumstances giving rise to an inference of unlawful discrimination because following 

plaintiff’s termination defendant hired a Caucasian manager to replace him. Plaintiff cites Lytle 

v Malady (On Rehearing), 458 Mich 153, 177; 579 NW2d 906 (1998) in support of his position. 

In Lytle, the Michigan Supreme Court explained that in order to establish a prima facie case of 

age discrimination, the plaintiff was required to prove the following elements: “(1) she was a 

member of the protected class; (2) she suffered an adverse employment action; (3) she was 

qualified for the position; and (4) she was replaced by a younger person.” Id. (emphasis added). 

See also Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 608; 886 NW2d 135 (2016) 

(noting that a plaintiff may show race discrimination by proving that the plaintiff was replaced 

by a person of another race or by using the “similarly situated” method). Plaintiff argues that in 

this case he can show that he was replaced with someone who was not a member of his protected 

class.

It is unclear who replaced plaintiff following his termination, and there was conflicting 

evidence whether defendant in fact hired a Caucasian male to replace plaintiff. However, 

viewing the evidence in a light most favorable to plaintiff, there was sufficient evidence 

regarding whether plaintiff’s termination occurred under circumstances that gave rise to the 

inference of unlawful discrimination. See id.

Because plaintiff successfully set forth all four elements of a prima facie case of racebased discrimination, the burden shifted to defendant to “articulate a legitimate, 

nondiscriminatory reason for its employment decision in an effort to rebut the presumption 

created by the plaintiff’s prima facie case.” Hazle, 464 Mich at 464. In this case, defendant 

satisfied this burden. John Clark, plaintiff’s second-level manager, testified that he decided to 

terminate plaintiff because plaintiff recorded a meeting with plaintiff’s first-level supervisor

Sheri Balliet and Tim Schnorenberg, a union representative; shared the recording with another 

employee named Tera Dunning; and, lied to Dunning by accusing Schnorenberg of stating that 

he did not know whether to call Dunning a “he, she, or it.” Clark also considered that plaintiff 

falsified company records by untruthfully representing that he had verified that a technician had 

a valid driver’s license and that he verified that another technician’s first aid kit was not expired. 

In addition, Clark testified that he considered “the bigger picture” of plaintiff’s relationships with 

his peers and plaintiff’s disruption of workplace relationships. Clark’s testimony was a sufficient 

articulation of legitimate nondiscriminatory rationale to support his decision to terminate 

plaintiff.

Considering that defendant satisfied its burden to articulate a legitimate, 

nondiscriminatory reason for the termination, in order to avoid summary disposition plaintiff was 

required to show that there was a question of fact regarding whether defendant’s rationale was a 

pretext for unlawful discrimination. See id. at 465-466. Pretext may be established by
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(1) by showing that the reason(s) had no basis in fact, (2) if the reason(s) had a 

basis in fact, by showing that they were not actual factors motivating the decision, 

or (3) if the reason(s) were motivating factors, by showing that they were jointly 

insufficient to justify the decision. [Meagher v Wayne State Univ, 222 Mich App 

700, 711-712; 565 NW2d 401 (1997).]

“However, the soundness of an employer’s business judgment may not be questioned as a means 

of showing pretext.” Id.

In this case, plaintiff failed to cite evidence to create an issue of fact regarding whether 

defendant’s proffered rationale for the termination was pretextual. Plaintiff argues that the 

racially disparaging remarks that defendant’s employees made over the years created a question 

of fact regarding pretext in that the remarks show defendant’s motivation. Plaintiff specifically 

cites a comment referring to Kwanzaa that one of his peers, Chris LaMarbe, allegedly made at a 

holiday party when plaintiff went to sign a holiday card for Balliet. However, this comment was 

remote in time to the termination, and LaMarbe had no input into plaintiff’s termination. 

Similarly, plaintiff’s argument that he was accused of “hitting on” elderly women was not 

evidence of pretext. There was no evidence this statement was racially motivated or that the 

person who made the statement had any input into plaintiff’s termination. There is no evidence 

that any of plaintiff’s superiors or anyone involved in the decision to terminate plaintiff made 

racially insensitive comments. In short, the stray remarks cited by plaintiff did not create a 

question of fact regarding pretext.

Plaintiff also argues that defendant treated him differently from other managers. Plaintiff 

argues that there was evidence that other first-level managers swore at employees, falsified 

certain forms, hid an accident, and had an improper sexual relationship with a subordinate. 

Plaintiff argues that none of these infractions led to termination. This argument lacks merit.

To prove disparate treatment, the United States Court of Appeals for the Sixth Circuit1

has explained the follwoing:

It is fundamental that to make a comparison of a discrimination plaintiff’s 

treatment [sic] to that of non-minority employees, the plaintiff must show that the 

“comparables” are similarly-situated in all respects. Thus, to be deemed 

“similarly-situated”, the individuals with whom the plaintiff seeks to compare 

his/her treatment must have dealt with the same supervisor, have been subject to 

the same standards and have engaged in the same conduct without such 

differentiating or mitigating circumstances that would distinguish their conduct 

or the employer’s treatment of them for it. [Mitchell v Toledo Hosp, 964 F2d 577, 

583 (CA 6, 1992) (citations omitted) (emphasis added).]

 1 “Although lower federal court decisions may be persuasive, they are not binding on state 

courts.” Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004). 
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In this case, there is no evidence to support that another first-level supervisor engaged in 

the same or similar conduct as plaintiff. As noted above, Clark testified that he decided to 

terminate plaintiff because plaintiff recorded a meeting with his supervisor and a union 

representative, provided the recording to an employee, and misrepresented what the union 

representative said. Clark also explained that plaintiff verified a subordinate’s driver’s license 

when the license was invalid and that plaintiff incorrectly verified that a first aid kit was not 

expired. In addition, Clark testified that he made his decision in the context of plaintiff’s 

disruptive relationships with his peers and with the union. Plaintiff fails to cite evidence to show 

that another first-level supervisor engaged in similar conduct and had similar disruptive 

relationships with peers and with the union. As such, there is no evidence of disparate treatment,

and plaintiff has failed to establish a genuine issue of material fact regarding pretext.

Plaintiff also argues that the trial court improperly relied on the “same group inference”

when it granted the motion for summary disposition. Plaintiff is correct that the “same-group 

inference” is an impermissible reason to find that there was no discrimination. See, e.g., Oncale 

v Sundowner Offshore Servs, Inc, 523 US 75, 78; 118 S Ct 998; 140 L Ed 2d 201 (1998) 

(“Because of the many facets of human motivation, it would be unwise to presume as a matter of 

law that human beings of one definable group will not discriminate against other members of 

their group.”) (quotation marks and citation omitted). However, in this case, the trial court’s 

reference to Clark’s race was limited and was not the central analysis of the trial court’s 

reasoning. Instead, the trial court articulated why the evidence was insufficient to create an issue 

of material fact regarding pretext. Moreover, as previously discussed, based on the record 

evidence the trial court did not err in holding that there was no genuine issue of material fact 

regarding plaintiff’s claim. Accordingly, the trial court did not err in granting summary 

disposition. See Gleason v Mich Dep’t of Trans, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A 

trial court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong 

reason.”).

In sum, the trial court did not err in granting summary disposition in favor of defendant 

with respect to plaintiff’s claim of race-based discrimination under the ELCRA.

II. RETALIATION

Plaintiff argues the trial court erred in granting summary disposition with respect to his 

claim of unlawful retaliation.

Under the ELCRA, it is unlawful to “[r]etaliate or discriminate against a person because 

the person has opposed a violation of [the] act.” MCL 37.2701(a). 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. [DeFlaviis v Lord & Taylor, Inc, 223 Mich 

App 432, 436; 566 NW2d 661 (1997).]
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In this case, plaintiff established the first three elements of a retaliation claim. Plaintiff 

engaged in protected activity when he filed Equal Employment Opportunity Commission 

complaints and commenced this lawsuit alleging race-based discrimination. In addition, 

defendant does not dispute that plaintiff served notice of this lawsuit before Clark terminated 

plaintiff. Therefore, defendant had notice of the protected activity. With respect to the third 

element, it is undisputed that defendant took an adverse employment action against plaintiff 

when defendant terminated plaintiff’s employment.

With respect to the fourth element, “[a] plaintiff may establish a causal connection 

through either direct evidence or indirect and circumstantial evidence. Direct evidence is that 

which, if believed, requires the conclusion that the plaintiff’s protected activity was at least a 

motivating factor in the employer’s actions.” Shaw v Ecorse, 283 Mich App 1, 14-15; 770 

NW2d 31 (2009).

In this case, there was no direct evidence to establish a causal connection between the 

termination and the protected activity. Plaintiff’s cites a specific e-mail as direct evidence of 

retaliation. However, the e-mail did not list plaintiff’s protected activity as a reason for the 

termination. The e-mail did not refer to plaintiff filing an EEOC complaint or filing a complaint 

to commence this lawsuit. Similarly, plaintiff’s argument that Balliet stated to him that she did 

not want to hear “things” from third parties was not direct evidence of discrimination. Balliet 

had no involvement in plaintiff’s termination and there is no evidence that Clark was aware of 

Balliet’s alleged statement. In short, there was no other direct evidence of retaliation.

“To establish causation using circumstantial evidence, the circumstantial proof must 

facilitate reasonable inferences of causation, not mere speculation.” Id. (quotation marks and 

citations omitted). Circumstantial evidence is “sufficient to create a triable issue of fact if the 

jury could reasonably infer from the evidence that the employer’s actions were motivated by 

retaliation.” Id.

In this case, there was insufficient evidence to allow a rational jury to infer that 

defendant’s actions were motivated by retaliation. Although plaintiff was terminated less than 

two months after he filed the instant lawsuit, “such a temporal relationship, standing alone, does 

not demonstrate a causal connection between the protected activity and any adverse employment 

action.” West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003). Rather, 

“[s]omething more than a temporal connection between protected conduct and an adverse 

employment action is required to show causation where discrimination-based retaliation is 

claimed.” Id. Plaintiff fails to cite other evidence that would create a genuine issue of material 

fact regarding causation. Clark considered plaintiff’s conduct in relation to the context of his 

overall tenure of employment. Clark explained that plaintiff had a history of undermining 

relationships with coworkers and union representatives. Although plaintiff contends that 

defendant treated other similarly situated managers differently, as previously discussed plaintiff 
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failed to cite evidence establishing that there were similarly situated managers who were treated 

differently. In sum, there was no genuine issue of material fact regarding causation. Therefore, 

the trial court did not err in granting summary disposition with respect to plaintiff’s retaliation 

claim.

Affirmed.

/s/ Stephen L. Borrello 

/s/ Kirsten Frank Kelly 

/s/ Deborah A. Servitto