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

AMY RYGWELSKI,

Plaintiff

- Appellant, UNPUBLISHED December 29, 2020

v No. 349743

Genesee Circuit Court CITY OF FLINT, SAM CLAYTON, and

RAYMOND BARTON, LC No. 18

- 110413

- CZ

Defendants

- Appellees.

Before: B OONSTRA

, P .J., and G ADOLA and T UK E L , JJ.

P ER C URIAM

.

Plaintiff appeals by right the judgment of no cause of action entered against her after a jury

trial. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HIST ORY

Plaintiff worked for the defendant C ity of Flint (Flint) as a firefighter since 2006. She and

defendant Sam Clayton (Clayton) , a 21

- year veteran of the fire department, worked at the same

fire station. The firefighters typically worked 24

- hour shifts. On the morning of November 2, 2017, plaintiff was finishing her shift when Clayton arrived early for his shift

. The two met in the

firehouse kitchen and , according to plaintiff, Clayton approached her f rom behind, put his hand on the front side of her abdomen, pushed his body against hers, and said, “ Good Morning, Amy

. ” Plaintiff also alleged that Clayton smelled like alcohol. Clayton , on the other hand, asserted that

he had merely met the plaintiff in the kitchen and exchanged pleasantries; he denied ever touching her or having consumed alcohol that morning.

On November 3, 2017, plaintiff reported the alleged incident to her supervisors , which led

to an internal investigation. While the investigation was pending, plaintiff and Clayton were reassigned to different fire stations on the order of defendant Chief Raymond Barton (Barton).- 2

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On January 26, 2018, plaintiff filed suit against defendants

, asserting claims under the
Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq ., race 1 and sex

- based discrimination

and retaliation under the Elliott

- Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq , ethnic intimidation in violation of MCL 750.147b (part of the Michigan Penal Code), assault and battery (ag ainst Clayton), and wrongful termination in violation of public policy. She claimed that after she reported the alleged inappropriate touching, Flint and Barton took adverse employment action against her , including transferring her to a different fire sta tion and disciplining her more severely than other firefighters (namely, male coworkers ) after she was found to have violated the

d epartment ’ s media policy. Specifically, plaintiff received a 29

- day suspension after the

d epartment learned that

, while on a fire run, she used her cell phone to take a picture of the rising

sun while a house burned in the foreground , and posted the picture to social media

.

P laintiff later claimed that Clayton had also retaliated against her by intentionally

interfe ring with her union membership, allegedly with the help of d epartment supervisors, by making baseless claims that she had violated union policies

. This claim was based on Clayton having reported to the firefighters ’ union , in March 2018, that plaintiff wa s concurrently working for both the Flint Fire Department and the Bishop Airport Fire Department (which Clayton

believed violated union conflict

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- interest policies ) . During these proceedings, plaintiff resigned from her position as a union vice presiden t.

Defendants moved for summary disposition on various grounds, and the trial court granted

the motion in part and denied it in part. As a result , the only claims that proceeded to trial were (1) assault and battery against Clayton, (2) retaliation under the EL CRA, and (3) retaliation under

the WPA. 2 Further, t he court held that the only alleged adverse employment action for which plaintiff could potentially recover any damages was the alleged attempt to oust plaintiff from the

union

, because the trial court found that plaintiff had signed a release

, as part of the union grievance

process, for any claims related to her 29

- day suspension for violati ng the department’s media policy.

A t trial, at the close of her case

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- chief, plaintiff moved for a directed verdict on the issue of Clayton ’s and Flint’s liability for retaliation under the ELCRA, arguing that Clayton had admitted to retaliating against her because he was angry at her for reporting him for sexual harassment. The trial court denied the motion. During jury deliberations, the jury asked a question regarding whether plaintiff’s complaint constituted “filing a charge under” the ELCRA if the charge was false. At t he trial cou rt ’s request, both parties submitted a proposed supplemental jury instruction. After reviewing the proposed instructions, the trial court concluded that defendants’

1 Plaintiff is Caucasian. Clayton and Barton are both African

- American. Plaintiff alleged, among other things, that defendants made adverse employment decisions based on her race. Specifically, plaintiff alleged that she was told “she could not be in cer tain areas/events getting media coverage because ‘you cannot be the face of the Fire Dept.’ ”

2 During trial, the trial court granted a directed verdict in favor of Clayton on the WPA retaliation

claim against him . The trial court ruled that there was no individual liability for nonsupervisors

under the WPA . Consequently, the jury was only asked to consider the WPA claims insofar as they pertained to Flint and Chief Barton

. Plaintiff does not challenge on appeal the trial court’s

order grant ing a directe d verdict in favor of Clayton on this claim

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proposed instruction accurately stated the law, and it therefore provided th at instruction to the jury. Shortly thereafter, the jury returned a verdict of no cause of action on all counts. Regarding plaintiff ’ s WPA claim, when asked if plaintiff engaged in a protected activity, the jury answered,

“ No. ” Similarly, with regard to her claim under the EL CRA, when asked if plaintiff opposed a

violation of the EL CRA , or filed a charge under the act, the jury answered, “ No. ” Finally, when asked if Clayton willfully and intentionally touched plaintiff against her will, or made threats t o do bodily injury to plaintiff, the jury replied, “ No. ”

This appeal followed.

II. DENIAL OF DIREC TED VERDICT

Pl aintiff argues that the trial court erred by denying her motion for a directed verdict against Clayton and Flint (as his employer) regarding her retaliation claim under the EL CRA. We disagree. We review de novo a trial court ’ s decision on a motion for a directed verdict

. Aroma Wines & Equip, Inc v Columbian Dist Servs, Inc , 497 Mich 337, 345; 871 NW2d 136 (2015). We

also review de novo issu es of statutory interpretation

. Elezovic v Ford Motor Co , 472 Mich 408, 418; 697 NW2d 851 (2005).

Preliminarily, we note that plaintiff moved for a directed verdict at the end of her case

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chief, before defendants even had an opportunity to present their evidence

. MCR 2.516 governs motions for directed verdicts and provides, in relevant part, “ [a] party may move for a directed verdict at the close of evidence offered by an opponent. ” P laintiff ’s motion was therefore premature at the time it was mad e, and plaintiff never renewed her motion at the close of

defendants ’ proofs. This procedural flaw was sufficient reason for the trial court to deny plaintiff’s motion, and it is sufficient reason for us to affirm that decision.

In any event, even if pla intiff had properly moved for a directed verdict at the close of

defendants ’ case, she still would not have been entitled to a directed verdict in her favor. “ When evaluating a motion for directed verdict, the court must consider the evidence in the light most favorable to the nonmoving party, making all reasonable inferences in the nonmoving party ’ s favor. ” Chouman v Home Owners Ins Co , 293 Mich App 434, 441; 810 NW2d 88 (2011) (quotation marks and citation omitted). Conflicts in the evidence must be re solved in the nonmoving party ’ s favor to determine whether a question of fact exist s

. Cacevic v Simplimatic Engineering Co (On Remand) , 248 Mich App 670, 679, 645 NW2d 287 (2001). “ A directed verdict is appropriately granted only when no factual question s exist on which reasonable jurors

could differ. ” Id . at 679

- 680.

MCL 37.2202(1)(a) provides that an “ employer ” shall not, among other things, discriminate against an individual because of sex. An “ employer ” is defined as a person who has

one or more em ployees, and includes an agent of that person. MCL 37.2201(a). Further,

discrimination because of sex includes sexual harassment. MCL 37.2103(i). The retaliation provision of the EL CRA provides:

Two or more persons shall not conspire to, or a person shall not:

(a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a- 4

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complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. [ MCL 37.2701.]

To establish a prima face case of retaliation under the EL CRA, a plaintiff must demonstrate that (1) she engaged in a protected activity, (2) this was known by the defendant, (3) the defendant took an employment action adve rse to the plaintiff, and (4) there was a causal connection between the protected activity and the adverse employment action. El

- Khalil v Oakwood Healthcare, Inc , 504 Mich 152, 161; 934 NW2d 665 (2019).

P laintiff’s theory of the case was that Clayton ret aliated against her for reporting him for sexual harassment. In essence, plaintiff argues that Clayton and his counsel conceded all elements of plaintiff’s prima facie case of retaliation, stating that Clayton admitted that he “ retaliated against [plainti ff] because he was angry with her for reporting him after he intentionally touched her against her will. ” This, however, does not accurate ly describe the evidence. P laintiff ’ s characterization of Clayton’s testimony suggests that Clayton admitted that he inappropriately touched plaintiff, and that he filed a complaint with the union because she had made a credible complaint of harassment ; however, the record shows that Clayton consistently denied that he touched plaintiff and that he stated that he filed the complaint because he felt that she had lied to their supervisor regarding their encounter , possibly seeking revenge for an earlier incident in which Clayton and plaintiff had argued over an injury that had occurred during a flag football game

between t he police department and fire department

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In his opening statement, defendants ’ trial counsel made the following remarks :

The second defense in this case, retaliation. You ’ ve got to break it down and you ’ ve got to remember which hat I ’ m wearing. Am I representing Barton or Clayton?

So Clayton ’ s position is going to be you ’ re doggone right I retaliated. I was furious about what she did. She ruined my reputation. She lied about me and that is not protected activity, and I tried to get her kicked out of the union for that. He is going to tell you that

.

Later, when addressing Clayton ’ s complaint to the union, defendants ’ counsel added:

The point is that you are going to hear from officer

– from Mr. Clayton who is going to say my motive in filing this c omplaint was I was angry at what I had been put through. And we are going to talk about that in a second. But I believed in good faith that she had violated the rules and she ought to be held accountable for it and her response to the complaint was she w as (inaudible).

Now it is true that Officer Clayton (sic) didn ’ t stop. He pushed it because he wanted her kicked out of the union. You are going to hear that.

* * *

So what is the evidence of lack of retaliation by Mr. Clayton? The evidence

is t hat he was motivated by retaliation to kick Ms. Rygwelski out of the union, but- 5

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that he was doing so because she made up a story about him. Not because she reported him for sexual harassment

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Consistent with representations made in counsel ’ s opening state ment, Clayton testified that he filed the union complaint against plaintiff because he was angry that she had made a false claim of harassment against him. He indicated that he wanted to “ piss her off,” but also that he thought

that plaintiff should be re moved from the union for violating union rules by working for a nother

fire department.

Considering the record in full , Clayton admitted , at most, that he was angry and that he filed an internal union complaint against plaintiff because she had fabricated a sexual harassment

claim. P laintiff asserts that these admissions were tantamount to Clayton acknowledging that he retaliated against plaintiff because she filed a claim under the EL CRA, i.e., because she engaged in a protected activity. We disagree.

The first hurdle for plaintiff to overcome in establishing a prima facie case of retaliation

was to demonstrate that she had engaged in a protected activity. A “ protected activity ” is defined to include opposition to a violation of

, initiating a charge un der

, filing a complaint under

, or participating in a proceeding, investigation or hearing under the EL CRA. MCL 37.2701(a).

“ Plaintiff cannot prevail on a claim of retaliation in violation of the CRA without establishing that [she] engaged in activity pro tected under the act. ” Barrett v Kirtland Community College

, 245 Mich App 306, 318; 628 NW2d 63 (2001 ). Further, plaintiff must have, at a minimum, a good

faith belief that she was reporting an unlawful employment practice. Booker v Brown &

Williamson T

obacco Co, Inc , 879 F2d 1304, 1313 (CA 6 1989) (interpreting the retaliation provisions of the EL CRA ). 3

In this case, p laintiff testified that she was inappropriately touched by Clayton and that she reported this alleged sexual harassment to her superiors and human resources. Clayton, however,

denied that he ever touched plaintiff, let alone in the manner she described at trial. “ When considering a motion for a directed verdict, it is ‘ the factfinder ’ s responsibility to determine the credibility and weig ht of trial testimony. ’ ” King v Reed

, 278 Mich App 504, 522: 751 NW2d525 (2008). That is, a jury is free to disbelieve and to discredit the testimony offered in support of a plaintiff ’ s case. Taylor v Mobley , 279 Mich App 309, 314; 760 NW2d 234 (2008). If the jury

were to believe that plaintiff fabricated her claim of sexual harassment , then plaintiff was not engaged in a protected activity. Reporting a fabricated account of harassment would not be an activity protected by the act, because a plaintiff could not possibly be acting upon a good

- faith or reasonable belief of unlawful activity. And because a question of fact existed with respect to whether the sexual harassment actually occurred, reasonable jurors could have differed with respect to whether plaintiff engaged in protected activity. Accordingly, the trial court did not err

when it de nied plaintiff ’ s motion for a directed verdict.

3 Our Supreme Court has observed that “[w]e are many times guided in our interpretation of the Michigan Civil Rights Act by federal court interpretations of its counterpart federal statute,” even though Michigan courts “are not compelled to follow those federal interpretations.” Chambers v

Trettco , Inc , 463 Mich 297, 313; 614 NW2d 910 (2000)

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Moreover, even if there was no genuine issue of material fact regarding whether plaintiff had engaged in protected activity, u ltimately, plaintiff was not penalized by the union, or her employer, as a result of Clayton’s complaint

. The union trial board concluded that plaintiff had not violated union bylaws and dismissed Clayton’s charge. There was testimony that the union president requested that plaintiff voluntarily resign from her leadership role in the union, and that plaintiff did so; in fact, Kowalesky testified that there was really no reason for plaintiff to have resigned her position with the union. In light of the fact that plaintiff resigned her union position voluntarily and Clayton’s complaint was dismissed

, reasonable minds c o uld differ regarding whether Clayton ’s complaint, even if it was an employment action, resulted in any adversity to plaintiff.

Contrary to plaintiff ’ s position, Clayton and his counsel did not concede all elements of pla intiff ’ s prima facie case of retaliation under the EL CRA. Indeed, it was apparent that several questions of fact existed upon which reasonable jurors could differ. Consequently, the trial court properly denied plaintiff ’ s motion for a directed verdict.

I II. JURY INSTRUCTIO N

Plaintiff also argues that the trial court erred by giving defendant s ’ proposed supplemental jury instruction regarding plaintiff ’ s retaliation claim under the EL CRA. We disagree. We review

de novo claims of instructional error. Case v Consumers Power Co , 463 Mich 1, 6; 615 NW2d 17 (2000). However, whether a supplemental instruction is applicable and accurate is within the trial

court ’ s discretion, Silberstein v Pro

- Golf of Am erica , Inc , 278 Mich App 446, 451; 750 NW2d 615 (2008) , and it will be reviewed on appeal for an abuse of that discretion, Chastain v Gen Motors

, 254 Mich App 576, 590; 657 NW2d 804 (2002).

Jury instructions should include all elements of the plaintiff’s claims and should not omit material issues, defenses, or theories if the evidence supports them

. Case v Consumers Power Co

, 463 Mich 1, 6; 615 NW2d 17 (2000). Instructions must not be extracted piecemeal to establish

error. Id

. Even if somewhat imperfect, instructions do not create error requiring reversa l if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. Murdock v Higgins , 454 Mich 46, 60, 559 NW2d 639 (1997). This Court will only

reverse for instructional error when the failure to do so would be inconsistent with substantial justice. MCR 2.613(A); Johnson v Corbet , 423 Mich 304, 377 NW2d 713 (1985).

Initially, the trial court instructed the jury, relative to plaintiff ’ s retaliation claim, as follows :

The law provides that a person shall not retaliate or discriminate again a person because the person has opposed a violation of the Michigan Civil Rights Act, otherwise known as the Act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an in vestigation, proceeding, or hearing under the Act.

The plaintiff has the burden of proving the following elements: (a) that she opposed a violation of the Civil Rights Act, made a charge, filed a complaint, or testified, assisted, or participated in an i nvestigation, proceeding, or hearing under the Act; (b) that was known by the defendants, (c) that defendants took an- 7

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employment action adverse to the plaintiff; and (d) there was a causal connection between the protected activity and the adverse employmen t action. To establish a causal connection, plaintiff must demonstrate that her participation in the protected activity was a significant factor in the defendant ’ s adverse employment action. [See M Civ JI 105.01 and M Civ JI 105.04A.]

After the court ins tructed the jury

, the jury deliberated for approximately 30 minutes before being excused for the day

. Shortly after deliberations resumed the following morning, the jury sent the

trial court a note , which the court read into the record :

On Elliott Larson [sic] Civil Rights Act retaliation, did plaintiff oppose a violation of the Civil Rights Act or file a charge under the act? If we find that the plaintiff filed a complaint but that the charge was false, is this considered filing a charge under the act? In other words is there a requirement for the plaintiff ’ s claim to be made in good faith under Elliott Larson [sic] similar to the good faith belief requirement under the Whistleblower Protection Act ?

As stated, each party drafted a nd submitted a proposed supplemental jury instruction. T he trial court described plaintiff ’ s requested instruction as follows :

The plaintiff requests the response to be after the first part of the question they want to say that when it says did the plaintiff oppose a violation of the civil rights act or file a charge under the act, the plaintiff wants to respond either one is engaging in protected activity and she did oppose sexual touching.

And then in the subpart of that it says if we find that the plaintiff filed a complaint but that charge was false, is this considered filing a charge under the act, and plaintiff wants me to say yes.

Then with regard to

-- and the other words is there a requirement for the plan

– plaintiff ’ s claim to be made in good faith under th e Elliott Larson similar to the good faith belief requirement under the Whistleblowers Protection Act? The plaintiff wants the Court to respond, ELCRA retaliation occurs even if the plaintiff ’ s claim was not made in good faith. The employer and the defen dant could not retaliate against plaintiff once she posed a violation or made her report or charge. Plaintiff ’ s report or complaint or charge does not have to be substantiated. They actually underline that. And they provide the source. That ’ s how the p laintiff wants the Court to respond.

T he trial court also read into the record defendants ’ proposed instruction , which provided :

Unlike the Whistleblower Protection Act, the Elliott Larson Civil Rights Act does not have an explicit provision which require s good faith, however it states for there to be protected activity there must be opposition “ to the act ” or claim or complaint “ under the act. ” It is plaintiff ’ s position that her complaint was protected activity without regard to whether it was made in g ood faith. It is defendants ’ position that if her complaint was untrue it was not made “ under the act. ” It is for you to determine whether the complaint was “ under the act

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After considering the parties ’ positions, the trial court concluded that defenda nts ’ proposed supplemental instruction accurately stated the law and was consistent with the court ’ s ruling on

the directed verdict motion , i.e., that it was for the jury to decide whether plaintiff had made a

claim under the ELCRA

. The court gave that su pplemental instruction and, after a pproximately

20 minutes of further deliberations , the jury indicated that it had reached a verdict.

P laintiff argues that by its supplemental instruction, the trial court allowed or required the jury to decide a question of law regarding MCL 37.2701. We disagree. The trial court originally instructed the jury in accordance with M Civ JI 105.04A. This i nstruction directed the jury to determine whether plaintiff “ opposed a violation of the Civil Rights Act, m ade a charge, filed a complaint, or testified, assisted, or participated in an investigation, proceeding, or hearing under

the Act. ” The parties do not dispute that this model jury instruction accurately stated the law and plaintiff ’ s burden of proof on her retaliation claim under the EL CRA. See MCL 37.2701; El

Khalil , 504 Mich at 161; Barrett , 245 Mich App at 318.

The subsequent supplemental instruc tion that the court gave the jury simply reiterated that it was up to the jury to decide whether the “ complaint was made under the act. ” The supplemental instruction did not add an element to plaintiff ’ s burden of proof. 4 The additional comments regardin g the parties ’ positions simply lent context to the instruction. Because the instruction included both parties ’ position s , there is no basis for plaintiff ’ s assertion that the jury was asked to make a finding of law based on the opinion of defense counsel ; rather, the instruction merely reminded the jury of its duty to determine if plaintiff was engaged in protected activity when she made her complaint. Moreover, as discussed in Part II of this opinion, if the jury found that plaintiff had fabricated her sexual harassment claim, plaintiff would have lacked a good

- faith belief that she was reporting an unlawful employment practice, see Booker , 879 F2d at 1313; if anything, the supplemental instruction was more favorable to plaintiff than it could have been. On balance, the supplemental instruction adequately and fairly presented the parties ’ theories and the applicable law

. Murdock , 454 Mich at 60.

Affirmed.

/s/ Mark T. Boonstra

/s/ Michael F. Gadola

/s/ Jonathan Tukel

4 In a convoluted argument, plaintiff seems to suggest that the trial court’s supplemental instruction required the jury to determine plaintiff’s motive in pursuing her complaint. Because plaintiff has not fully articulated her position, it is unclear how plaintiff has reached this conclusion. In support of her argument, plaintiff simply states that Whitman v City of Burto n, 493 Mich 303; 831 NW2d 223 (2013), is controlling and stands for the proposition that “motive doesn’t matter, period!” We

note that Whitman involved the interpretation of the WPA, not the CRA. Further, t he C ourt in

Whitman never addressed the issue of retaliation for a fabricated charge of sexual harassment in the workplace. The Whitman decision is inapposite and plaintiff’s reliance on it is misplaced.