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### STATE OF MICHIGAN

COURT OF APPEALS

MICHELLE CHOJNOWSKI , SHARON STONE, KATHY WITTMAN, an d KENNETH WROBEL 1

, Plaintiffs-Appellants, UNPUBLISHED March 26, 2015

v No. 317655 Livingston Circuit Court HURON CLINTON METROPOLITAN AUTHORITY, GEORGE PHIFER, and LT. JOHN ORSKEY, LC No. 12-026839-CZ

Defendants-Appellees.

Before: R ONAYNE K RAUSE , P.J., and K. F. K ELLY and S TEPHENS , JJ.

P ER C URIAM

. Plaintiffs, Michelle Chojnowski, Sharon Stone and Kathy Wittman, appeal as of right orders granting summary disposit ion in favor of defendants, Hur on Clinton Metropolitan Authority (HCMA), George Phifer and Lt. John Orskey. Finding n o errors warranting reversal, we affirm.

I. BASIC FACTS

Plaintiffs sued defendants, alle ging violations of Michigan’s Elliott Larsen Civil Rights Act (CRA), MCL 37.2101 et seq ., and intentional infliction of emotional distress. Wittman w as permitted to file an amended complaint to add a count of assaul t and battery. The complaint alleged that plaintiffs, who were all employees of HCMA, were t argeted for harassment and discrimination after their colleague, Kelle Tyitie, filed an Eq ual Employment Opportunity Commission (EEOC) compl aint against defendants Orskey and Phife r in May 2010. Orskey was a lieutenant and Phifer was the chief of HCMA. Tyitie, who was a college student and seasonal employee, believed that after being trained as a parks officer, she would have the opportunity to work the midnight shift. However, Orskey told her that she cou ld not work that shift anymore

1 The parties stipulated to dismiss Wrobel from the case. Chojnowski v Huron Clinton Metropolitan Authority , unpublished order of the Court of Appeals, entered October 28 , 2014 (Docket No. 317655).-2- because she was a female and Phifer did not want “the girls” to work midnights. Tyitie was later allowed to work the midnight shift.

A. CHOJNOWSKI’S CLAIMS

Chojnowski began her career at HCMA in April 2003 as a park ranger; the designation was later changed to police offi cer. Chojnowski testified tha t Phifer “hates women, because that’s all he did was go on a rampage against women, there were not any male officers in any of this.”

Chojnowski’s claims were related to discipline she received fo r so-called “grooming infractions” after she failed to properly fix her tie to her co llar. Phifer pulled her aside and verbally told her that she had to comply with the rules and reg ulations “and he told me remember, we got you here.” Chojnowski was insulted by the ide a that she was promoted for anything other than her own hard work. Chojnowski was then ver bally counseled by Sergeant Cassity, who told her that Phifer told him to verbally counsel her about the infraction. A few days later, Chojnowski was counseled by Lieutenant Batzer, who was also told by Phifer to counsel Chojnowski on the infraction and to follow up with a me mo that the counseling had occurred. Chojnowski admitted that she and Batzer also discuss ed other issues that had nothing to do with uniform infractions. Three months later, Chojnowski was “called out” to meet with Phifer and made to wait in the lobby for 45 minutes to an hour before speaking with him; she was being paid for her time. She had no idea what the meeting was about: “I had a million things running through my head, anxiety and stress was taking i ts toll[.]” During the meeting, Chojnowski and Phifer talked about a number of issues, but he i mmediately noted his disappointment with Chojnowski’s dr ess code infraction. He did not yell, but Chojnowski believed she “was being called out there in fear for losing my job.” Chojnowski believed that the tie clip counseling was inappropriate and harassing and subject ed her to humiliation and embarrassment. There were numerous other officers that failed to wear their ties properly, yet she was “singled out.” Union rep resentative Cass ity advised Ch ojnowski that the counseling was not a “grievable issue” to present to the union. To her knowle dge, she was never formally disciplined and nothing was ever placed in her file. She filed an EEOC complaint, but they refused to pursue it.

Chojnowski also complained that Phifer called her on her perso nal cell phone and counseled her that she was abusing her sick days. He indicated that he had a young child and never once had to call in sick. She was on probation at the ti me.
Chojnowski had been taking Wellbutrin for anxiety and depressi on off and on for at least twelve years. She blamed a rash on “stress from Phifer.”

B. WITTMAN’S CLAIMS

Wittman testified that after Tyitie’s EEOC “[a]ll females that worked on the police department were disciplined, fired, or resigned.” Wittman comp lained that she was also singled out by Phifer:

It bothered me that th e Chief of Police wa s singling me out. O ne of the first times that I had met him, if not the first time, he came up to me and said with a big-3- smile, Officer Wittman, I’ve been watching you, you know, you’r e pretty charismatic, and these officers follow you and listen to you.

Phifer would call her constantly and come to her asking her to do things that “a simple line officer” was generally not asked to do. It bothered Wittman bo th as a police officer and as a

woman.
Phifer called Wittman “Floppy” for how she wore the flaps of h er hat down. Wittman found that term degrading. Sergeant Wrobel told her that Phife r called her “Officer Floppy” at a meeting in front of the command structure. Wittman believed th at Phifer and Orskey “were in cahoots and on a rampage to do something about my hat because they couldn’t never [sic] do anything with me is what I figured. They wanted to take me out or start reprimanding me or disciplining me.” She testified:

I mean, I find it absolutely ridiculous that Chief Phifer is go ing to discuss my floppy hat, being that just four months – in September 20, 2010 I had surgery for a tonsillectomy. We’re talking the dead of winter. He is now trying to make me believe that I alone, just special orders for me, that I have t o walk in to the squad room on an afternoon shift in the middle of February or Januaryor any winter long and put my flaps up because it’s [sic] doesn’t look good. To who? The office is closed. No one comes back into the police squad roomstandardly [sic]. I’m there by myself working the shift. If I’m not, I’m with my officer. Everyone else can wear their hat the way they want to. It doesn’t matte r where, whether it’s in the station, out of the station, in their car, out of the ca r. I’m trying to protect my health and my ears and work the shift. He’s giving me speci al orders here. This is all about intimidation, and violence, and harassment of the reason why he is there. Let’s not make mistak es about this. This is absolut ely absurd that my Chief of Police is coming from Pontiac all the way down – or wh erever he’s coming from, making it sound lik e, oh, that’s the – stop, yeah, that I just happened to come and visit you, when all the personnel are gone. He’s i n his own personal car. He’s in plain clothes, and we’re having a conversation ab out my hat, and my car [he had asked her to wash her patrol car], that is unbeliev able.

What it is, is that he’s coming down and he’s letting me know I used to own you, you used to lie for me, now you’re coming out and you’ re not lying anymore, and now you’re going to get it. This meeting was abou t violence, and we have tried through all of the se lawsuits and all these plain tiffs to tell everyone from the top on down, including human resources, and everyone i s trying to keep a ceiling on this. This is more than this.

***

It is of no consequence [sic: co incidence] that Chief Phifer ca me on the day that I was on that shift by myself and at a time when no one else woul d be there except for the little toller that’s up in front. She has to stay in the toll booth. It was me and him back in that office alone, and he did not wave to me. How did he arrive at the station the same time I did. I was only in that station for a few minutes. I-4- came there to drop off money. I had just left the nature cente r. I’ll never forget this whole entire thing li ke it was a nightmare.

***

So, as I find out later, he must have been following me around beforehand watching me.

Wittman explained that Phifer would order her to write favorab le letters on his behalf. She also testified that Phifer also subjected her to an unwante d hug, which she considered “sexual violence” and later filed a criminal complaint against Phifer.

Wittman’s allegations against O rskey revolved around the fact that he sent her a You Tube video titled “How Not to Get Arrested” by comedian Chris R ock and the fact that he “threw away my winter hat and badge.” Wittman testified that h er partner at the time, Karl Hatcher, found Wittman’s hat “in the trash right at the very de sk, the closest point where Orskey was sitting at, and his paycheck envelope was on top of my hat . . . so my sergeant had set me up for discipline with Phifer and probably was on the phone notify ing him at this time without knowing that we had actually found that hat.”

Wittman testified that she was “bleeding out psychologically.” She was on family medical leave “[b]ecause of the stress, bringing up all of this , going through the case, trying to keep myself safe and from any discipline retaliation, any stalk ing, being hypervigilant on duty. It’s just becoming too overwhelm ing to work under Chief Phifer without thinking I’ ll be next.”

C. STONE’S CLAIMS

Stone had been with HCMA on-and-off since 1991. She has been a part-time employee since 2000. She never applied fo r a full-time position, but di d apply for a lieutenant’s position in March 2011. She was never interviewed for the lieutenant’s pos ition and did not follow up as to why she was not interviewed. St one believed that she was more qualified than Nicole Ford, who ultimately got the position. Stone had no disciplinary history, including in 2011.

Stone’s schedule began to change on a continuous basis beginni ng in May 2010. At one point her supervisor, Officer Sprinkle, ordered her back from v acation and told her she would be fired if she did not come into work. She was scheduled to work on days that she had indicated were unavailable or told to work a different shift than what wa s originally posted. Stone believed that these schedule changes were the result of Tyitie’ s EEOC complaint “[b]ecause everything seemed to be fine up until 2010 with schedules and e verything else, but once – after 2010 and this charge was filed, a ll hell broke loose on all the females of the department. That’s my causal connection.” Stone had never met Tyitie. Stone knewthat Wittman had also filed an EEOC complaint. No one ever contacted Stone about the investig ations and she did nothing to provide information in either case.

Stone’s brother died in December 2011. He was cremated and th ere was no burial service, but there was a funeral home visitation, which Stone a ttended. Her mother wanted to hold another service on a Saturday in June 2012 and Stone’s oth er brother planned yet another memorial the weekend after. Stone was upset because she only a ttended a portion of the first-5- memorial due to work. She was required to work a fireworks eve nt, but the event had not been posted. Stone was aware of the policy that required part-time employees to be available for special “mandatory” work. On those occasions, no one was allow ed to have the day off. Stone also acknowledged that no part-t ime employee could schedule mor e than one weekend a month off. Yet, Stone had “no idea to this day” why she was not allo wed to attend her brother’s memorial.

On June 23, 2010 Stone was summoned to the administration offi ces to meet with Phifer; neither Stone nor Sprinkle (her supervisor) had any idea why. When she arrived, Lieutenant Brown greeted her and told her t o wait in the lobby, where she waited for approximately an hour. Phifer never came out of his office. Brown handed Stone a memo . Cassity, Stone’s union representative, happened to be there for a meeting that day. T he memo was apparently the result of a June 12, 2010 uniform infrac tion where Stone’s hair was pa st her collar and she was out of her car without a hat. She said that both allegations were “li es.” After talking with Phifer, Cassity told Stone that the infraction was not considered disci pline and would not go in her record. She later spoke with Phifer at a Fourth of July firewo rks event and he assured her it would not be in her file. Stone did not file a grievance, but “to receive this memo I was embarrassed and humiliated and to this day I’m still talked abo ut in the department.”

Stone also claimed that Phifer sexually assaulted her in sprin g 2010 when he subjected her to an unwanted hug. Stone never reported the incident to a nyone.

D. KLUCK’S INVESTIGATION

HCMA asked labor attorney Michael Kluck to investigate allegat ions raised by Sergeant Gary Cassity wherein Cassity claimed that Phifer “somehow treat ed [Chojnowski, Stone and Wittman] differently because they are all females.” Kluck inte rviewed each of the women, as well as Phifer and Cassity. On May 12, 2011, Kluck submitted a memorandum following his investigation. He concluded:

Chief George Phifer has consistently insisted on proper groomi ng standards for male and female HCMA Law Enforcement personnel. This Investigation has revealed no di scriminatory practices by the C hief in that regard.

With respect to the timing and content of discussion Chief Phi fer had with Officer Chojnowski, there is no evidence such were motivated by any discriminatory intent. The delay in the Chief meeting with her was the consequence of schedule conflicts. The forty (40) minute wait at the Administrative Offices was not o rchestrated by the Chief. Rece ptionists at the Administrative Offices were unsuc cessful in reaching the Chief by phone or page to notify him Officer Chojnowski had arrived. Once the Chief l earned she was in the lobby waiting, he summoned her to his office. The Chief’s intent was to discuss with the Officer his expectations of her. Although the dress code issue of December 20, 2010 was included in the conversation, the Chief a lso discussed conference scheduling and equipment issues. The meeting was no t disciplinary in
nature.-6- The allegations by Sgt. Cassity that Chief Phifer engaged in i mproper conduct toward Officer Stone on June 23, 2010, are completely unfounded. He did not meet with Officer Stone on that date. The conduct attr ibuted to Chief Phifer, i.e., the delay in meeting with her at the Administrati ve Offices, was the conduct of Lt. Jeff Brown who on that date provided her with a counseling memorandum on grooming standards.

Officer Kathy Wittman was not discriminated against on the bas is of her gender when Chief Phifer met with her at Lake Erie on February 19, 2011. Chief Phifer did not know she was the on-duty officer when he made anunannounced visit to the Lake Erie office. The Chief was returning from anOhio shopping trip with his wife and took the opportunity to visit Lake Erie as it was on his route home. No statement he made or physical action had any sexual o vertones. The Chief discussed operational c oncerns with Officer Wittman.

None of the three (3) officers, Chojnowski, Stone or Wittman e ver advised Gary Cassity they felt they were discriminated against by Chief Phifer on the basis of their gender.

II. PROCEDURAL HISTORY

A. MOTION TO SEVER

Defendants filed a motion to sever the Chojnowski case for pur poses of trial, arguing that her claims were completely separate and unrelated to the other plaintiffs’ claims. The Harvey Kruse law firm represented defendants in the suit in connectionwith plaintiffs Chojnowski and Wittman, while Miller, Canfield, Paddock & Stone represented de fendants in connection with claims made by Wrobel and Stone. Miller Canfield filed a concurrence on the motion to sever. Chojnowski opposed the motion to sever, arguing that all of the plaintiffs’ claims were inescapably related. She argued that Phifer sought to punish a ll female employees after Michelle Tyitie filed her EEOC complaint. Each of the instances of cond uct, therefore, were relevant for plaintiffs’ retali ation claims.

At a hearing on the motion, plaintiff’s counsel argued that th ere was no potential for confusion. The trial court disagreed and granted the motion to sever, noting that there was the danger of “dragging meritless” cases along with cases that had merit. The trial court added that “[i]t may take a little bit more time but it’ll be clear to the jury and also help you gentlemen with framing the issues and se ttling the cases.”

The trial court entered an order requiring the clerk of the co urt to assign new case numbers to Wrobel, Stone, and Wittman.

B. MOTIONS FOR SUMMARY DISPOSITION

Miller Canfield filed a motion for summary disposition on Wrob el’s claims and Stone’s claims. Defendants argued that Stone did not suffer an adverse employment action and was not treated differently from other male employees. Stone was only counseled, not disciplined, regarding grooming standards. Additionally, although Stone com plained that she was not-7- promoted in retaliation for her participation in Kluck’s interv iew, the internal investigation came after she was passed up for the promotion.

Harvey Kruse filed a motion for summary disposition as to Choj nowski’s claim. Defendants argued that Phifer’s actions toward Chojnowski were not sexual. There was simply no evidence that Phifer counseled Chojnowski about her uniform infraction because she was a woman. Moreover, the evidence de monstrated that Phifer twice p romoted Chojnowski and the “single actor doctrine” prevented an inference of discriminatory animus. Most importantly, Chojnowski failed to demonstrate that she suffered an adverse e mployment action.

Harvey Kruse also filed a motion for summary disposition as to Wittman’s claims. Defendants argued that Wittman claimed that she was sexually ha rassed because of one innocuous hug, but she never complained to human resources abou t the incident and only later brought it up to bolster her claim. There were no sexual overt ures. Wittman also claims that she was retaliated against, but the re were only isolated, innocent incidents, such as the Chris Rock video, her lost hat, and the fact that she was referred to as “ Officer Floppy.” Her claims were undermined by the numerous statements of support she made for P hifer. These alleged instances of harassment pre-dated Tyitie’s EEOC complaint and, therefore, could not have been the result of retaliation.

The trial court granted defendants summary disposition as to Wrobel’s claims and later granted summary disposition in defendants’ favor on the remaini ng plaintiffs’ claims. Plaintiffs now appeal as of right.

III. ANALYSIS

A. MOTION TO SEVER

Plaintiffs argue that the trial court abused its discretion wh en it granted defendants’ motion to sever where the common thread for all plaintiffs was the alleged retaliation after Tyitie filed her EEOC claim against Phifer in May 2010. We disagree.

“Although we review for abuse of discretion a circuit court’s grant of a motion to sever, the decision to sever trials should be ordered only upon the mo st persuasive showing that the convenience of all parties and the court requires it.” LeGendre v Monroe Co , 234 Mich App 708, 719; 600 NW2d 78, 84 (1999). “An abuse of discretion occu rs when the decision results in an outcome falling outside the r ange of principled outcomes.” Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007).

The issue appears to be moot. “As a general rule, an appellat e court will not decide moot issues. A case is moot when it presents only abstract question s of law that do not rest upon existing facts or rights. An i ssue is deemed moot when an even t occurs that renders it impossible for a reviewing court to grant relief.” B P 7 v Bureau of State Lottery , 231 Mich App 356, 359; 586 NW2d 117, 119 (1998) (internal citations omitted). This is sue is moot for two reasons: 1) the trial court subsequently vacated its order to sever; and 2) the trial court ultimately granted defendants summary disposition. For the reasons that will be d iscussed later, summary disposition was proper and there are no triable issues remainin g.-8- Even if the matter was not moot, the trial court did not abuse its discretion in granting the motion to sever.

“For convenience or to avoid prejudice, or when separate trial s will be conducive to expedition and economy, the court may order a separate trial ofone or more claims, crossclaims, counterclaims, third-par ty claims, or issues.” MCR 2.5 05.

As previously stated, the HarveyKruse law firm represented de fendants in the suit in connection with plaintiffs Chojnowski and Wittman, while Miller , Canfield, Paddock & Stone represented defendants in connection with claims made by Wrobel and Stone. Harvey Kruse filed a motion to sever Chojnowski’s case and Miller Canfield f iled a concurrence. Chojnowski opposed the motion to sever, arguing that all of the plaintiffs ’ claims were inescapably related. She argued that Phifer sought to punish all female employees af ter Tyitie filed her EEOC complaint. Each of the instances of conduct, she argued, were relevant for plaintiffs’ retaliation claims.

A hearing on the motion was held on June 27, 2013. Plaintiff’ s counsel argued that there was no potential for confusion. The trial court disagreed. In granting the motion to sever, the trial court noted:

As can be noted from my original comments to the lawyers about who was representing who and what, this case is gonna be fought with so me – some confusion to a jury I can see that already. I think from what – from what I’m able to glean, these cases are all unrelated in my view. And it wou ld seem to be confusing, as well as uneconomi cal and prejudicial to hear de m ono one case. What I’m most concern [sic] with is if one case has merit it mi ght have the affect of dragging along meritless cases . And furthermore, with all the plethora of evidence that may be unrelated e vidence it might prove difficul t for a jury to sit through in one – in one sitting. That being the case – and I’l l tell you from the beginning I was puzzled why these all got filed together without any motion to put ‘em together. So – but I let ‘em go until somebody brought a motion to straighten it out. And now that a motion to sever has been bro ught forth on the Chojnowski matter, the Court does grant the motion to sever the Chojnowski claims pursuant to MCR 2.207 and MCR 2.505(B).

Plaintiff’s counsel noted that th e only motion before the court was to sever the Chojnowski case, but, after reviewing the court f ile, the trial court concluded that the concurrence requested severance of allplaintiffs and the matter was properly preaciped and noticed.

Again, plaintiff’s counsel argued:

The genesis of all four lawsuits is what happened in May and Ju ne of 2010 that we alleged under Section 701 of the Elliot Larson Civil Rights Act being MCL 37.2701. That immediately upon Kelly Tyte [sic] filing a – or giving notice that she was filing an EEO[C] complain t and notified her supervisor, Corporal Dolan, who in fact notified the chain of – the superiors above him on the chain of command, that Mr. Pfieffer [sic] began retaliating against all of the named-9- plaintiffs – plaintiffs in the matter outlined in the complaint . We believe that for the purpose of economy that the Co urt should not have to try th e same facts four times. And that the issues before the Court have a common thre ad that being Section 701 retaliation. It was after that point in time, whic h is May 29 th and 31 st of 2010, that Pfieffer [sic] went on his rampage and eventually either fired, made working conditions so intolerable, or retaliated against each o ne of the plaintiffs.

The trial court reiterated:

I am separating because I believe that it’s in the best interes t of justice for the – for the remarks that I made on the Michelle Chojnowski file abo ut not confusing witnesses, not having evidence come in that doesn’t belong in c ertain cases, and not having a [non]meritorious case drag along with the case tha t has merit. It may take a little bit more time but it’ll be clear to the jury and also help you gentlemen with framing the issues and settling the cases.

The case at bar is similar to the LeGendre case. In LeGendre , two plaintiffs brought sex discrimination claims against the defendants – the county and i ts prosecuting attorney, Edward Swinkey. The county concurred with Swinkey’s motion to sever t he cases. The trial court severed the cases for purposes of discovery and trial. LeGendre, 234 Mich App at 713. In rejecting the plaintiffs’ claim that the trial c ourt erred in s evering the matter , this Court noted:

We conclude that different proof s would, to a great extent, be required to establish each case. Plaintiff and Feick had different backgrounds, expe rience levels, and longevity with the prosecutor’s office, and each applied for di fferent positions after not being reappointed by Sw inkey. Further, Feick allegedage discrimination, while plaintiff di d not. Moreover, holding sep arate trials would not foreclose the possibility of presenting evidence at plainti ff’s trial of defendant’s alleged discriminatory treatment of Feick, if appro priate. We conclude that under these circumstances the potential for jury confusion and prejudice against defendants was great and that the circuit court thus did not abuse its discretion when it granted defendants’ motion to sever. [ LeGendre, 234 Mich App at 720-21.]

Similarly here, the various plaintiffs all had a different set of proofs and would have the opportunity to present evidence of their colleagues’ claims. I n addition, the potential for confusion was great. Even the trial court became confused and granted summary disposition on claims that were never raised by Chojnowski and Stone, as will be discussed below. There is simply no reason to disturb the trial court’s decision to sever , which was not an abuse of discretion.

B. SUMMARY DISPOSITION

1. STANDARD OF REVIEW

“A motion under MCR 2.116(C)(10) tests the factual sufficiencyof the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and o ther evidence submitted by the-10- 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 regar ding any material fact, the moving party is entitled to judgment as a matter of law.” Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817, 823 (1999).

2. SEX DISCRIMINATION/SEXUAL HAR ASSMENT/RETALI ATION CLAIMS

All three plaintiffs allege that they were the victims of gend er discrimination and retaliation.

MCL 37.2202 prohibits sex discrimination and provides that an employer shall not “[f]ail or refuse to hire or recruit, di scharge, or otherwise discrimin ate against an indivi dual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weigh t, or marital status.” Accordingly, “it is unlawful for employers to discriminate against an individual with respect to a condition of employment because of sex.” Haynie v State , 468 Mich 302, 307; 664 N W2d 129, 132 (2003).

In addition to prohibiting gender-based discrimination, the CR A also prohibits retaliation against employees who seek to enforce the CRA. MCL 37.2701 spe cifically provides:

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

(a) Retaliate or discriminate aga inst a person because the pers on has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participa ted in an investigation, proce eding, or hearing under this act.

“To establish a prima facie case of unlawful retaliation under the Civil Rights Act, a plaintiff must show (1) that he e ngaged in a protected activity ; (2) that this was known by the defendant; (3) that the defendant took an employment action adv erse to the plaintiff; and (4) that there was a causal connection between the protected activity an d the adverse employment action.” DeFlaviis v Lord & Taylor, Inc , 223 Mich App 432, 436; 566 NW2d 661, 663 (1997).

But first, “in order to establish a claim under both MCL 37.22 02 and MCL 37. 2701, the plaintiff must establish that he or she suffered an adverse emp loyment action.” Chen v Wayne State Univ , 284 Mich App 172, 201; 771 NW2d 820, 839 (2009).

[I]n order to be actionable, an employment action must be mater ially adverse to the employee—that is, it must be more than a mere inconvenience or minor alteration of job responsibilities. In addition, there must be an objective basis for demonstrating that the employment action is adverse because a p laintiff’s subjective impressions are not controlling. Materially adverse employment actions are akin to termination of employment, a demotion evide nced by a decrease in wage or salary, a less distinguished title, a mater ial loss of benefits, significantly diminished material responsibilities, or other in dices that might be unique to a particular situation. [ Id. at 201-202 (internal quotation marks and citations omitted.]-11- Therefore, a plaintiff must come forward with more than just he r subjective belief that she has suffered an adverse employment action; instead, an adverse empl oyment action must be shown with “objectively verifiable acts or omissions.” Id. at 207. “Where the hara ssment is sufficiently severe,” harassment may alter the conditions of employment, res ulting in an adverse employment action. Meyer v City of Ctr Line , 242 Mich App 560, 571; 619 NW2d 182, 189 (2000).

i. CHOJNOWSKI’S CLAIMS

In dismissing Chojnowski’s cl aims, the trial court noted:

In this case the plaintiff ha s asserted two counts; Count I is sex discrimination, which arguably in cludes gender discrimination a nd sexual harassment; and Count II intenti onal infliction or [sic] emotio nal distress. However, regardless of the fact that only two counts were pled in relation to plaintiff Chojnowski’s, the pla intiff attempts to argue that th e incorporation by reference paragraph also incorporates Wrobel and Whitman’s [sic ] causes of action, which in turn allow a pl aintiff to a plea of retaliatio n.
Did you dismiss that retaliati on or are you still claiming tha t?

MR. AKHTAR: Section 701.

THE COURT: Retaliation claim?

MR. AKHTAR: Yes.

THE COURT: All right. You ’re still claiming that?

MR. AKHTAR: Yes.

***

THE COURT: . . . Regardless of the fact that there were onl y two counts were pled in relation to plaintiff Chojnowski’s, the plaintiff attempts to argue that the incorporation by reference pa ragraph also incorporates Wrob el and Whitman’s [sic] cause of action, which in turn allows the plain tiff to plead retaliation. . . . [T]his type of argument runs counter to Mi chigan’s notice pleading requirements and court rules. Specifically the primar y function of pleading in Michigan is to give n otice of the nature of the cla im or defense sufficient to permit the opposite party to take a responsive po sition. . . . Furthermore, a complaint must contain specific allegations nece ssary to reasonably inform the adverse part y of the nature of the claims the adverse party is called on to defend. . . . And each statement of a claim f or relief founded on . . . a single transaction or occurrence, or on separate trans actions, or occurrences must be stated in separately numbered count[s]. . . .Keeping th ose principles in mind, it is inappropriate to clai m that a count that specifical ly names another plaintiff and deals with another plaintiff by name can somehow be melted into a cause of action for plaintiff Chojnowski simply due to the fact that Chojnowski-12- used the standard incorporation by reference paragraph. Moreov er, even to the extent that plaintiff could be s aid to have pled a retaliation claim, there is no genuine issue of material fact as to either complete absence of the undertaking of a protected activity or adverse employment action. And consequ ently regardless of the pleading deficiencies the Court dismisses any alleged cl aim pursuant to MCR 2.116(I)(1).

Next, as to plaintiff [Chojnowski’s] claim for gender discrimi nation. It is clear that the plaintiff has failed to provide any direct evide nce. And as a result, the plaintiff is required to rel y on indirect evidence in a Mac Donald [sic] Douglas presumption shifting approach. However, reviewing the document ary evidence in this case it is clear that plaintiff cannot establish a materia lly adverse employment action or that the action was ta ken under circumstances giving rise to an inference of unlawful discrimination. Specifically the uniform code rela ted counseling present in this case does not . . . equate to a disciplinary a ction but rather a matter of inconvenience as mentioned – or reference at least in the pa pers. In determining the existence of an adverse employment action court s must keep in mind the fact that work places ar e rarely idyllic retreats. An d the mere fact that [an] employee is displeased by an employer’s act or omission do es not elevate that act or omission to the level of a materially adverse emplo yment action. . . .

Next, in addition to arguing repeated uniform counseling const itutes gender discrimination claim. The plaintiff also argues that it serves as a basis for her alleged sexual harassment discrimination. . . . In this case, however, there’s absolutely no alleged sexual contact or communication. Instead . . . the plaintiff was observed admittedly out of uniform and she was counseled onfour different occasions. Although this might have been annoying, it does notequate to sexual harassment and a hostile work environment.

On appeal, Chojnowski first complains that the trial court err ed in finding that she failed to state a claim for retaliation. However, the issue warrants little discussion, as the trial court specifically went on to conclude that even if she had alleged a claim of retaliation such a claim could not survive su mmary disposition.

Chojnowski failed to set forth evidence of sex discrimination because she failed to suffer an adverse employment action. C hojnowski writes that “[a]t fir st reading, it would appear that a minor discipline for a uniform violation even though it may hav e taken place on (5) different occasions, would not qualify as an adverse employment action . . .” She nevertheless argues that, when viewed under the totality of the circumstances, defe ndants’ conduct was so unreasonable that she suffered severe anxiety. However, it bears repeating that an adverse employment action must be “materially adverse to the employee—that is, it must be more than a mere inconvenience” and “there must be an objective basis for d emonstrating that the employment action is adverse because a plaintiff’s subjective i mpressions are not controlling.” Chen , 284 Mich App at 201-202. Chojnowski admits that she was neve r formally disciplined. She did not get demoted, lose pay, or suffer any other “materia l loss of benefits.”-13- Chojnowski’s retaliation claim also fails. Again, as just dis cussed, Chojnowski suffered no adverse employment action. Moreover, Chojnowski did not und ertake a protected activity. She did not file an EEOC complaint nor did she file a grievance with her union. Defendants could not have retaliated agains t her for action that she neverpursued. Nevertheless, Chojnowski argues that she was within the “zone of interest” as discussed by the United States Supreme Court in Thompson v North American Stainless, LP, 562 US 170; 131 S Ct 863; 178 L Ed 2d 694 (2011), and that she and her colleagues (both male an d female) were effectively punished for Tyitie’s EEOC complaint.

In Thompson , the plaintiff and his fiancée worked at the defendant company . The fiancée filed an EEOC complaint against the defendant and the defendant fired the plaintiff shortly thereafter. The plaintiff filed a retaliation claim. Id. at 867. At issue in that case was whether the plaintiff, who neither filed an EEOC complaint nor assisted his fiancée in doing so, had the ability to bring a retaliation cl aim. The Court concluded that the plaintiff could bring a claim under § 2000e-3(a) of Title VII of the Civil Rights Act of 1964 , 42 USC 2000e et seq ., because the provision applied to a broad range of conduct and was not l imited to discriminatory acts affecting employment. It concluded:

[Plaintiff] falls within the zone of interests protected by Tit le VII. [Plaintiff] was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the fac ts as alleged, [plaintiff] is not an accidental v ictim of the retaliation—coll ateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuri ng him was the employer’s intended means of harming [the fiancée]. Hurting hi m was the unlawful act by which the employer punished her. In those circ umstances, we think [plaintiff] well within the zone of interests sought to b e protected by Title VII. He is a person aggr ieved with standing to sue. [ Id. at 870.]

Thompson is readily distinguishable from the case at bar. Under Thompson , Chojnowski would have to show that defendant s acted against her in order t o punish Tyitie. She offers no argument that she was so “closely related to or associated with the person exercising his or her statutory rights, that it would discourage or prevent [Tyitie] from pursuing those rights.” See Id. at 871 (Ginsburg, J. concurring) quoting EEOC Compliance Manual . In fact, while “a close family member will almost always” qualify as a relationship in which a worker would be dissuaded from engaging in a protected activity, “inflicting a milder reprisal on a mere acquaintance will almost never do so.” Id. at 868. The only individual who undertook a protected activity was Tyitie. T here is no evidence that defen dants “disciplined” Chojnowski in retaliation of Tyitie’s EEOC complaint in order to punish Tyitie . The Supreme Court discussed “zone of interest” in the contex t of standing, which was not at issue in this case. Id. at 870. Moreover, the Thompson Court analyzed the much broader federal statute. Michigan’s CR A prohibits retaliation “because the person has opposed a violati on of this act , or because the person has made a charge, filed a complaint, testified, assiste d, or participated in an investigation, proceeding, or hearing under this act .”

There is nothing to support Chojnowski’s claim that the trial court was predisposed against her, which she claims is evident from the fact that the trial court dismissed her nonexistent sexual harassment claim. As is evidenced by the recor d, the trial court undertook a-14- thoughtful and careful approach to this case, which included fo ur plaintiffs and numerous claims. Some of those claims were in common and some were separate. As previously discussed, this type of confusion was what the trial court hoped to combat by o rdering that the cases be severed. The trial court was clearly trying to cover all possible contin gencies. Chojnowski cannot complain that the trial court was overly thorough.

ii. STONE’S CLAIMS

Similar to Chojnowski’s claims, the trial court granted defend ants summary disposition on Stone’s claims, noting:

At the outset the Court will note that although Stone has only stated two counts in her complaint in the current motion, Stone has seemingly argued claims of sexual harassment, hostile work environment; number two, gender discri mination; three, failure to promote; and four, re taliation. However regardless of the make-up of the complaint, the Court finds that none of the currently argue d claims possess the necessary factual support to survi ve a motion for summary dispo sition under C(10).

***

In this case the alleged sexual conduct is a single hug. In li ght of the fact that this [is] only a single instance the question becomes whether the in cident was severe enough to rise to the level of a hostile work environment. . . .[and, although there are times when one time could be enough] the plaintiff simply h as not presented evidence of pervasive conduct t o support a hostile work environ ment claim.

Second, as to any alleged gender or sex discrimination claim . . . it is clear that the plaintiff cannot show that she suffered an adverse emp loyment action. In determining the existence of an adverse employment action court s must keep in mind the fact that workplaces are rarely idyllic retreats. And the mere fact that an employee is displeased by an employer’s act or omission does no t elevate that act or omission to the level of a materially adverse employment act ion. . . . Specifically while there is no exhaustive list of what constitutes an adverse employment action, the fact that the plaintiff might have perce ived the employment action to be adverse is not sufficient. The plainti ff must demonstrate that the employment action was objectively adverse. . . . Here the Court cannot find that the single verbal counseling on the grooming code and the alleged schedule changes to be objectively or materially adverse as the plaintiff has been subject to no disciplinary action and has not presented evidenc e that other parttime officers were not subjected t o the same schedule changes.

Third, as to any failure to pro mote claim is indisputable that , one, the plaintiff was not qualified base d on Dr. McGinn’s scoring follo wing the completion of a supplemental questionnaire. And two, the posit ion was given to another individual within the s ame class as the plaintiff. .

. .-15- Lastly in relation to the hiring process. The plaintiff claim s that she was retaliated against due to the fact that she was a female or bec ause she participated in a sexual harassment investigation initiated by the defendant to investigate the plaintiff’s alleged claims. First, however, the investigation cannot serve as a basis for the retaliation claim not only because the plaintiff conced es that it doesn’t provide the basis, but also because the investigation occurred after the plaintiff was given a rejection letter f or the lieutenant position. Seco nd, despite the plaintiff’s claims simply bein’ a female doesn’t provide a basi s for retaliation claim. In particular, the plai ntiff has to undertake a protect ed activity. Here Stone never undertook a protected activity prior to applying fo r the lieutenant position and consequently Stone not receiving the job cannot be in retaliation for anything.

Stone’s claims are also unavai ling. In Issue II of her brief, Stone claims that the trial court “committed reversible error when it granted defendants’ M otion for Summary Disposition on plaintiffs’ [sic] claim [of] sexual harassment/ hostile work environment”, but she later chastises the trial court for dismissing Stone’s sexual harassm ent claim “when plaintiff never pleaded such a cause of action of sexual harassment.” AlthoughStone admits that she never brought a sexual harassment claim, she basically argues “quid p ro quo” harassment, alleging that she was passed over for promotion because she rejected Phifer’s sexual advances in the spring of 2010. 2 But, confusingly, Stone clings t o retaliation as the basis fo r her failure to promote claim – “Plaintiff’s principle cause of action under this failure to pr omote claim is based upon Section 701 of the Act, MCL 37.2701 [retaliation], and not under Sectio n 102 and 103 of the Act (MCL 37.2102, 2103) [gender discrimination and sexual harassment, re spectively].” Therefore, as near as we can gather, Stone complains of gender discrimination and retaliation as demonstrated by: 1) the uniform infraction; 2) the changes to her schedule; and 3) her failure to be promoted. She claims that the retaliation was the result of her fending off P hifer’s sexual advances, Tyitie’s EEOC complaint, and Stone’s participation in Kluck’s investigat ion. She does not make a sexual harassment claim.

Stone cannot show that she suffered an adverse employment acti on for purposes of gender discrimination or retaliation. In receiving counseling for her alleged uniform infraction, Stone did not suffer an adverse employment action. Like Chojno wski, Stone concedes that minor counseling over the alleged uniform infraction would not qualify as an adverse employment action were it not for the “totality of the circumst ances.” Additionally, although Stone complained bitterly regardi ng the changes in her schedule , she continuously used the word “we,” meaning all part-time employees were subject to the same uncertainty week after week. Moreover, even if the changes pertained to Stone alone, it bear s repeating that an adverse employment action must be “materially adverse to the employee—that is, it must be more than a

2 MCL 37.2103(i)( ii ) specifically prohibits sexual harassment where “[s]ubmission to or rejection of the conduct or communication by an individual is u sed as a factor in decisions affecting the individual’s emplo yment, public accommodations or public services, education, or housing.”-16- mere inconvenience” and “there must be an objective basis for d emonstrating that the employment action is adverse because a plaintiff’s subjective i mpressions are not controlling.” Chen , 284 Mich App at 201-202. Stone admits that she was never formally disciplined. She did not get demoted, lose pay, or suffer any other “material loss o f benefits.”

Stone’s retaliation claim fails for the same reason as Chojnow ski’s. Stone suffered no adverse employment action. Moreo ver, Stone did not undertake aprotected activ ity. She did not file an EEOC complaint nor did she file a grievance with her un ion. Defendants could not have retaliated against her for action that she never pursued. Her reliance on Thompson is misplaced.

As for the failure to promote, Stone was required to show 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 give n to another person under cir cumstances giving rise to an inference of unlawful discrimination.” Hazle v Ford Motor Co , 464 Mich 456, 463; 628 NW2d 515, 521 (2001). Stone’s failure to promote claim is problemat ic for a number of reasons.

Stone applied for the lieutenant’s position in January 2011. At the time, the posting was limited to only internal candida tes. No one who applied for th e position internally – both male and female – received an interview and the position was reposte d in March 2011; this time it was open to both internal and external candidates. Stone never applied for the second posting because she believed that she did not meet the newly-establishe d minimum qualifications. Stone cannot bring a failure to promote claim when she never applied for the promotion. Nor can Stone demonstrate that she was qualified for the position. Whe n she originally applied, Stone scored only 16 out of a possible 60 points on one portion of th e examination. Moreover, the individual who was ultimately hi red was a female, negating any inference of discrimination.

Even assuming that Stone was qualified for the position and ap plied for it, she failed to set forth a causal connection between the alleged failure to pr omote with any of her three retaliation theories. As previously discussed, Stone cannot re ly on a “zone of interest” as it pertains to Tyitie’s EEOC complaint. Nor can Stone claim that her participation in Kluck’s investigation was used against her when the decision about exte nding the lieutenant position to both internal and external candi dates pre-dated her April 2011 interview with Kluck. Finally, Stone cannot claim that the “hug” incident wherein she allegedl y rebuffed Phifer’s sexual advances was used against her. The hug took place almost a year prior to her application for lieutenant.

iii. WITTMAN’S CLAIMS

In granting defendants summary disposition on Wittman’s claims , the trial court noted:

[A]s to Whitman’s [sic] claim of sexual harassment. Regardles s of whether the conduct complained of could be considered to be sex ual in nature, a review of the testimony and docum entary evidence indicates that the conduct was . . . not severe or persuasive [sic] enough to create an objec tively hostile or abusive work environment. That is the evidence presented does not present an environment that a reasonable person would find hostile or abus ive. And accordingly the claimed conduct cannot be sexual harassment dis crimination. I-17- point out that I believe this was a one – one hug that was neve r repeated and short duration. And circumstances surrounding it may have not been t he type that would be of a sexual nature whats oever from what I can gather.

Second, as to Whitman’s [sic] retaliation claim. Many of the alleged incidents appear to have occurred prior to her taking part in any sort of protected activity. And further, even disregarding this fact the plainti ff has failed to create a genuine issue of material fact as to an adverse employment acti on. Specifically Whitman [sic] has produced no evidence of discipline or demotio n. And although a party may be able to show an adverse employment action based on facts established that a job was objec tively [un]bearable or even und esirable . . . there is no objective evidence that Whitman’s [sic] job was unbearabl e. Instead the evidence reveals that her feelings are subjective, which simplycannot provide the basis for [a] retaliation claim.

Unlike Stone and Chojnowski, Wittman specifically alleges that she was sexually harassed. She testified:

I go out [of the room]. Phifer goes out at the same time. We’ re in the hallway. I am going out the back door. There is no lights [sic] in the ha llway. It’s starting to get dark. The only light that is coming is from the superinten dent’s room. In the window there’s a long – I mean, inthe door there’s a long wind ow and it’s gleaming the light down the hallway. There’s the exit light ha llway to go out, but right there just before I exit th e door Phifer says – he speaks . So, quite naturally in my rush to go out I stop, the chief is speaking. I turn aro und and I look at him, and he has his arms outstretched, what, no hug. It wasn’t like what, no hug, or come here partner, like he says on the CD [during Kluck’s inves tigation], like we’re buddies, like we’re friends. He is demanding.

***

I looked back at him. He’s doing that. I have to make the de cision whether I’m going out the door. I had just heard for a half an hour how you’re not listening to me. So, I either have to go out the door and either get written up, fired, whatever, for not followi ng his official order demanding that I walk back to him or that he hugged me or whatever he’s going to do. I am to tally the last degradation of a woman. My hu sband doesn’t even tell me you ge t over here and do me. That was disgusting. He was breaking me. He – I can’t reach you any other way, I told you, and told you, and now you will come over to me.

BY MR. BURMEISTER [defense counsel]:

Q . Those are the words he used? I thought you just said he sai d, what, no hug?

A . Yes, but it’s not like that. It’s like –

Q . But you inferred all these things?-18- A . No, this is him yelling, telling me your ass better get over here and hug

me.

Q . He raised his voice and he said that? He said you better ge t your ass over here and hug me?

A . No.

Q . Okay.

A . He put his arms outstretched, walked towards me. I walked t owards him because I decided I am either going to be fired or I don’t know what. I can’t just walk out the back door.

Q . Okay.

A . He is telling me get over here.

Q . Okay.

A . So, he puts his arms around me and I am like going in slow m otion like I am a ghost to this, because I’m like, Jesus, God, I can’t bel ieve this is a condition. If my mother could see me, if my husband could see me, I have to hug the chief. I have to do these thi ngs for him, where is this go ing to go.

***

A . And the chief tells me I love you. I’m like I’m his girlfri end and I don’t even know it. Is this w here we’re going with this.

Q . Did he say anything else other [than] those two things, what , no hug and I love it [sic]?

A . I pushed me away. He told me – he said, now go wash your ca r. It was dismissive, like get the heck out of here.

Q . Okay.

A . It was all sexual violence.

Sex discrimination includes sexual harassment. MCL 37.2103(i) specifically provides:

(i) Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances , requests for se xual favors, an d other verbal or physical conduct or communication of a sexual nature under the following conditions:-19- ( i ) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public ac commodations or public services, education, or housing.

( ii ) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s emp loyment, public accommodations or public services, education, or housing.

( iii ) The conduct or communication ha s the purpose or effect of sub stantially interfering with an individual’ s employment, public accommodati ons or public services, education, or housing, or creating an intimidating, h ostile, or offensive employment, public accommodations, public services, educational , or housing environment. [MCL 37.2103(i).]

The first two subsections are commonly referred to as “quid pro quo” sexual harassment, while the third refers to a hostile work environment. Hamed v Wayne Co , 490 Mich 1, 9-10; 803 NW2d 237 (2011).

To establish a prima facie case of hostile work environment ba sed on sexual harassment, plaintiff must show the following:

(1) the employee belonged to a protected group;

(2) the employee was subject ed to communication or conduct on the basis of sex;

(3) the employee was subjected t o unwelcome sexual conduct or c ommunication;

(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere wit h the employee’s employment or c reated an intimidating, hostile, or offensive work environment; and

(5) respondeat superior. [ Haynie, 468 Mich at 307-308, quoting Radtke v Everett, 442 Mich 368, 382-383, 501 NW2d 155 (1993).]

Our Supreme Court has stressed that when bringing a sexual hara ssment claim, a plaintiff must show that the acts undertak en were sexual in nature:

“Sexual nature” is not defined in the statute. Where a term is not defined in the statute, we will review its ordinary dictionary meaning for gui dance. “Sexual” is defined, in part, as “of or pertaining to sex” or “occurring be tween or involving the sexes: sexual relations. ” “Nature” is defined as a “native or inherent characteristic.” Utilizing thes e two commonly understood defin itions, we conclude that actionable sexual harassment requires conduct or communication that inherently pertains to sex. [ Corley v Detroit Bd of Ed , 470 Mich 274, 279; 681 NW2d 342, 345 (2004) (internal footnotes omitted).]

Thus, “[v]erbal or physical conduc t or communication that is no t sexual in nature is not sexual harassment.” Id. at 280. And “conduct or communication that is gender-based, bu t is not sexual-20- in nature, does not constitute sexual harassment as that term i s clearly defined in the CRA.” Haynie , 468 Mich at 304, 312. Our Supreme Court was careful to note that it was not holding that all hostile-work-environmen t actions are limited to claims of a sexual nature. Id. at 318.

Moreover, an objective reasonableness standard, not a gender-b ased conscious standard, is utilized in determining whether a hostile work environment e xists in order to prevent “hypersensitive plainti ffs from recovering.” Radtke. at 388. The Supreme Court has explained:

[W]e are persuaded that an objective reasonableness standard is mandated by the plain meaning of the statute. When interpreting the Michigan C ivil Rights Act, this Court must “give effect to the plain meaning of the langua ge used.” The language at issue reveals that the inquiries in a hostile work environment action inherently involve an examination of the reasonableness of the alleged perpetrator’s conduct: “hostile,” “ intimidating,” and “offensiv e” are terms primarily determined by objective factors.

Furthermore, a reasonableness inquiry is necessary to fulfill the purpose of the act. As noted, the purpose of the act is to combat serious demeaning and degrading conduct based on sex in the workplace, and to allow w omen the opportunity to fairly compete in the marketplace. The reasonab leness inquiry (i.e., objectively examining the totality of the circumstances) in a hostile work environment action, is simply a method of objectively determini ng whether a hostile work environment existed. The alternative would be to accept all plaintiffs’ subjective evaluations of conduct, thereby imposing upon employers liability for behavior that, for idiosyncratic reasons, is offe nsive to an employee. We believe that such a result is contrary both to the plain mea ning of the statute, as well as the statute’s overall purpose. To hold the contrary would delimit the act and ensure a deluge of unwarranted litigation in contradict ion of the act’s purpose. Instead, the Michigan Civil Rights Act mandates that an objective standard be utilized, thereby fo rmulating external standards of conduct to which all persons may conform. [ Id. at 386-387 (internal citations and footnotes omitted).]

It is clear that the trial c ourt correctly und erstood that an objective standard, not Wittman’s subjective feelings, controlled the issue. Using an objective standard, there is simply no support for Wittman’s claim that the hug was sexual in natur e. Moreover, even considering the “totality of the circumstan ces” (i.e. the other plaintiffs’ claims), “a reasonable jury could not have found from a preponderance of the evidence that [Phifer’s conduct was] of a type, severity, or duration to have created an objectively hostile work environ ment.” Quinto v Cross & Peters Co , 451 Mich 358, 370; 547 NW2d 314, 320 (1996).

In her appellate brief, Wittma n provides little to no analysis regarding her retaliation claim. But, as with Chojnowski and Stone, Wittman’s claims mus t fail because she fails to clear the initial hurdle of showing that she suffered an adverse empl oyment action. Moreover, there is no evidence that Wittman undertook a protected activity.

3. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS-21- Both Chojnowski and Wittman claimed intentional infliction of emotional distress.

To establish a claim of intentional infliction of emotional dis tress, a plaintiff must prove the following elements: (1) extreme and outrageous conduc t, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. The conduct complained of must be so outrageous in character, and so extrem e in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. It is for the tr ial court to initially determine whether the defendant’s conduct may reasonably be reg arded as so extreme and outrageous as to permit recovery. But where reason able individuals may differ, it is for the jury to determine if the conduct was so extreme and outrageous as to permit recovery. [ Hayley v Allstate Ins Co , 262 Mich App 571, 577; 686 NW2d 273, 276-77 (2004) (internal quotation marks and footnotes omitted).]

In the context of considering whether a separate tort for intentional infliction of emotional distress can be brought on the ba sis of an insurer’s handling o f a claim, our Supreme Court has noted:

Those courts which have recogni zed intentional infliction of em otional distress as a separate theory of recovery have generally embraced the Resta tement definition of the tort:

“§ 46. Outrageous Conduct Causing Severe Emotional Distress

(1) One who by extreme and outr ageous conduct intentionally or recklessly causes severe emotional distress to another is subje ct to liability for such emotional distress, and if bodily harm to the other re sults from it, for such bodily harm.” Restatement Torts, 2d, § 46, p. 71.

Four elements are identified in this definition: (1) “extreme and outrageous” conduct; (2) intent or recklessnes s; (3) causation; and (4) “se vere emotional distress.”

***

An oft-quoted Restatement comment summarizes the prevailing vie w of what constitutes “extreme and outrageous” conduct:

“The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tor tious or even criminal, or that he has intended to inflict emotional dis tress, or even that his conduct has been characterized by ‘malice’, or a degre e of aggravation which would entitle the plaintiff to punitive damag es for another tort. Liability has been found only where the conduct h as been so outrageous in character, and so extreme in degree, as to go bey ond all possible bounds of decency, and to be regarded as atrocious, an d utterly-22- intolerable in a civilized comm unity. Generally, the case is on e in which the recitation of the facts to an average member of the communi ty would arouse his resentment against the actor, and lead him to exclai m, ‘Outrageous!’

[ Roberts v Auto-Owners Ins Co , 422 Mich 594, 602-603; 374 NW2d 905, 908 (1985).]

In granting defendants summary disposition on Chojnowski’s int entional infliction of emotional distress claim, the trial court noted:

Lastly, plaintiff asserts that being counseled four times for a uniform infraction is equivalent to intentional infliction or [sic] emo tional distress. . . . Liability for the intentional infliction of emotional distress has been found only where the conduct complained of has been so outrageous in chara cter and so extreme in degree as to go be yond all possible bounds of decenc y and to be regard – regarded as atrocious and utte rly intolerable in a civilized community. Considering this threshold it is clear to this Court that being verbally counseled for a uniform infraction more times than maybe reasonable, nece ssary, does not and cannot equate to conduct beyond all possible bounds of dece ncy. Simply put in any job there will always be inconveniences and annoying occ urrences. With that being said such offense[s] do not create a tort for the in tentional infliction or [sic] emotional distress.

Similarly, in granting defendants summary disposition on Wittman’s intentional infliction of emotional distress claim, the trial court noted:

Next as to the intentional infliction and [sic] emotional dist ress . . .[a] hug in combination with getting yelled at simply cannot meet the th reshold showing of extreme and outrageous conduct. Liability for such a claim is found only where the conduct complained of has been so outrageous in character and so extreme a degree as to go – go beyond all bounds of decency and to be reg arded as atrocious and utterly intolerable in a civilized society. . . . Here th e conduct complained of could not be reasonably regard ed as so extreme and outrageous a s to permit recovery. As the majority of it is based on the plaintiff’s su bjective fears and basis of which do not objectivel y manifest themselves.

The trial court was clearly aware of the law when it rendered its decision and properly determined that neither Chojnowski nor Wittman raised a genuine issue of material fact as to their intentional infliction of emotional distress claims. Alt hough Chojnowski claims to have suffered terrible emotional distress, the facts giving rise to her anxiety were simply being counseled on her uniform infraction and carefully using her sic k days. Wittman complains that she was hugged and referred to as “Officer Floppy.” None of th ese claims would cause a reasonable individual to declare “outrageous!” The conduct com plained of was not so outrageous in character, and so extreme in degree, as to go bey ond all possible bounds of decency. It was for the trial court to make an initial determi nation as to whether the conduct could reasonably be regarded as so extreme and outrageous as to permit recovery.-23- 4. ASSAULT AND BATTERY

Wittman claimed assault and battery. In granting summary disp osition on this claim, the trial court noted:

And then lastly as to the plaintiff—as to the claim plaintiff has that the February 19 th “hug” constituted assault and battery. Both torts are intenti onal in nature with the intent element of battery being satisfied with the defendant either subjectively or intended [sic] to cause bodily contact with the plaintiff or knew with substantial certainty that such bodily contact would resul t from his or her conduct. Likewise, the intent and/or willfulness to create an apprehension of eminent [sic] contact coupled w ith the apparent present abilityto accomplish that conduct in an – is an essential element of the assault. Here, however, the Court finds that there’s no genuine issue of material fact as to the issue of intent as there was no direct or circumstantial evidence on which a reasonable juror could find that the Chief intended on February 19 th – intended that the February 19 th hug to be an offensive touching or that he intended to put plaintiff i n apprehension of eminent [sic] offensive conduct. [H III, p 67.]

In Mitchell v Daly , 133 Mich App 414, 426-27; 350 NW2d 772 (1984), our Court look ed to the tort of assault and battery:

The Restatement of Torts provides:

“§ 21. Assault

“(1) An actor is subject to liab ility to another for assault if

“(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third pe rson, or an imminent apprehens ion of such a contact, and

“(b) the other is thereby put i n such imminent apprehension.

“§ 32. Character of Intent Necessary

“(1) To make the actor liable for an assault, the actor must have intended to inflict a harmful or offensive contact upon the other or to have put the other in apprehension of such contact.”

It is our inclination to adopt the above definition from the Re statement and to hold that the intent necessary to make out a tortious assault is eit her an intent to commit a battery or an intent to create in the victim a reasona ble fear or apprehension of an immediate battery. This is presently the ru le in criminal assault. [ Mitchell, 133 Mich App at 426-27; see also Tinkler v Richter , 295 Mich 396, 400; 295 NW 201 (1940).]-24- Again, the standard is not what the subjective beliefs of a particular plaintiff were; an objective standard controls. Wittman complains that she was made to hug Phifer out of fear for losing her job. While offensive to her this conduct did not equal “sexual violence.” Even taking the evidence in a light most favorable to Wittman, there is simply no evidence that Phifer intended to commit a battery or create in Wittman a reasonable fear or appr ehension of an immediate battery.

Affirmed. Defendants may tax costs. MCR 7.219.

/s/ Kirsten Frank Kelly /s/ Cynthia Diane Stephens