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STATE OF MICHIGAN 

COURT OF APPEALS 

DENISE ANFIELD, 

 Plaintiff-Appellant, 

UNPUBLISHED 

January 22, 2015 

v No. 317984 

Wayne Circuit Court 

SECRETARY OF STATE, LC No. 12-005783-CD 

 Defendant-Appellee. 

Before: MURRAY, P.J., and SAAD and K. F. KELLY, JJ. 

PER CURIAM. 

 In this employment discrimination case, plaintiff appeals as of right the trial court’s order 

granting defendant Secretary of State’s motion for summary disposition and dismissing her 

wrongful termination claim filed under the Elliot-Larsen Civil Rights Act (ELCRA), MCL 

37.2101 et seq. Plaintiff was terminated for her role in an acquaintance’s fraudulently obtaining 

a commercial driver’s license with a hazardous materials endorsement. Plaintiff claims she made 

a mistake and that defendant did not fire others similarly situated, but instead fired her because 

she is black and a woman. Because plaintiff failed to present the evidence necessary to establish 

a prima facie case of disparate treatment, we affirm. 

I. BACKGROUND 

 As the following makes clear, the facts of this case are straightforward. Plaintiff is a 

former employee of the Department of State. Her nearly 24-year career with the Department 

started in 1986 and ended with her termination on October 22, 2010. At the time she was fired, 

plaintiff served as a “DOS Aide-E” at the Secretary of State branch office on East Eight Mile 

Road in Detroit. A DOS Aide-E is a clerk whose job duties encompass assisting customers with 

transactions including, among others, the issuance of driver’s licenses and the processing of 

related documents. Relevant to this case is plaintiff’s role in processing documents related to the 

issuance of a Commercial Driver’s License (CDL) for an acquaintance. Before relating those 

details, however, a brief explanation of that multi-step process bears mention. 

 The process to obtain a CDL commences when the applicant takes a knowledge test, 

administered by a clerk like plaintiff. Upon completion of the test (and the fulfillment of certain 

other requirements), the applicant obtains a temporary instruction permit and reports to a thirdparty vendor (also called a third-party tester or “TPT”) for a driving test. Successful completion 

of the driving test results in the applicant’s receiving a Driving Skills Test Certificate, known as 
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a DSTC-TPT-010 (“DSTC”). The applicant then presents the DSTC to a clerk for validation and 

processing. At this time, the clerk also performs any federal checks necessary to obtain certain 

endorsements, such as a hazardous materials endorsement. If everything is proper, the clerk 

takes the applicant’s picture and issues the final CDL by mail. It was plaintiff’s participation in 

this process with an acquaintance named Stephen Belser that ostensibly led to her firing. 

 The conduct in question stretches back to November 26, 2008. On that day, Belser 

returned to plaintiff’s branch office to obtain his CDL. He had apparently completed his driving 

test earlier, having already passed the knowledge test twice, and on this occasion presented 

plaintiff with his DSTC. Plaintiff processed the DSTC and gave Belser a “paper license” which 

he could presumably use until receiving the final CDL in the mail. The license contained a 

hazardous materials endorsement. 

 The next workday, plaintiff’s supervisor informed her that Belser’s DSTC was a copy, 

and clerks are only to accept originals. So plaintiff contacted Belser, who delivered another 

DSTC to plaintiff the following morning in the branch office parking lot before work started. 

This DSTC was altered, however—a fact plaintiff knew because Besler indicated “he had made 

some changes” when plaintiff asked why he didn’t provide this version in the first place. 

Plaintiff accepted the DSTC anyway, which she gave to her supervisor with the 

acknowledgment, “It looks like it’s been altered.” 

 An internal investigation ensued. The first certificate was found counterfeit, the second 

altered. The investigation ultimately determined that plaintiff had “knowingly ignored” a 

questionable DSTC as a favor to Belser. The investigation concluded that as a consequence, 

Belser fraudulently obtained a CDL rendering him eligible to transport hazardous materials, 

which posed a significant risk to public safety. Plaintiff’s conduct in this matter allegedly 

violated several provisions of the Department of State Employees Handbook and Civil Service 

Rules, and she was terminated on October 22, 2010.1

 Plaintiff filed a grievance, maintaining that 

she had simply made a mistake, but an arbitrator subsequently upheld plaintiff’s termination. 

II. PROCEEDINGS 

 Acting in propria persona, plaintiff filed a two-count complaint on April 30, 2012. Only 

Count II is germane to this appeal.2

 That count specifically alleges disparate treatment based on 

race and gender discrimination in violation of the ELCRA. During discovery, plaintiff identified 

four Department employees whom she claimed either were not fired or were permitted to return 

to work despite conduct similar to her own. Three were men—two white and one black, while 

 

1

 Plaintiff’s violations included: wanton or willful neglect in the performance of her duties, 

violation of the duty to report known fraudulent activity, providing favors to the general public, 

conduct unbecoming an employee, and violation of the prohibition against processing 

transactions for friends or relatives. 

2

 Count I impugned the arbitrator’s impartiality and was dismissed following defendant’s first 

motion for summary disposition. 
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the fourth was a white woman. Their alleged misconduct variously included taking bribes, 

accepting forged documents, and waiting on family members. 

 At the close of discovery, defendant moved for summary disposition. Defendant argued 

that plaintiff based her allegations on inadmissible hearsay and had otherwise failed to establish a 

prima facie case of disparate treatment where the other employees’ situations involved different 

supervisors, job titles, work locations, and conduct. Defendant added that public safety 

legitimately motivated its decision to fire plaintiff. 

 Plaintiff responded—through counsel this time—that other employees retaining their jobs 

despite accepting bribes, accepting forged documents, and waiting on family members was 

sufficiently similar to her own conduct to expose the real reason for her firing: her race and her 

gender. Plaintiff cited as proof the fact that the same ultimate decision-maker, i.e., the Human 

Resources Office, was involved in all these employment decisions, and that defendant waited 

until two years after the incident to fire her, which decision defendant based on an inadequate 

investigation and Belser’s inconsistent statements. 

 Following a hearing, the trial court rejected plaintiff’s arguments. The court noted that 

three of the employees at issue held positions different than plaintiff’s and the fourth had 

engaged in substantially different and less egregious conduct that did not endanger public safety. 

Accordingly, the court concluded plaintiff could not establish a prima facie case of disparate 

treatment. Defendant’s motion was granted and plaintiff’s claim was dismissed. Plaintiff then 

moved for reconsideration, this time identifying the misconduct of a fifth co-worker, but the 

court denied that motion as well. Plaintiff now presents this appeal. 

III. ANALYSIS 

 Plaintiff maintains she established a prima facie case of disparate treatment because other 

Department employees retained their jobs despite engaging in substantially similar conduct at 

least as serious as her own. 

A. STANDARD OF REVIEW 

 The trial court granted summary disposition under MCR 2.116(C)(10). We review a trial 

court’s ruling on a motion for summary disposition under that subrule de novo. McCoig 

Materials, LLC v Galui Const, Inc, 295 Mich App 684, 693; 818 NW2d 410 (2012). “A motion 

for summary disposition pursuant to MCR 2.116(C)(10) should be granted when there is no 

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” 

Curry v Meijer, Inc, 286 Mich App 586, 590; 780 NW2d 603 (2009) (citation omitted). “A 

genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to 

the opposing party, leaves open an issue upon which reasonable minds might differ.” West v 

Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In reviewing this issue, we 

consider all of the pleadings, affidavits, depositions, admissions and other documentary 

evidence. Corely v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). “Where the 

burden of proof rests with the nonmoving party, that party must respond with documentary 

evidence to demonstrate the existence of a genuine issue of material fact for trial.” Curry, 286 

Mich App at 591 (citation omitted). Such evidence must be admissible in form; opinions, 
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conclusory denials, unsworn averments, and inadmissible hearsay won’t cut it. SSC Assoc Ltd 

Partnership v Gen Retirement Sys of the City of Detroit, 192 Mich App 360, 364; 480 NW2d 275 

(1991). If a nonmoving party’s response is deficient in this way, judgment for the moving party 

results. Curry, 286 Mich App at 591 (citation omitted). 

 To the extent plaintiff raises arguments contained in her motion for reconsideration, our 

review is for an abuse of discretion. Charbeneau v Wayne Co Gen Hosp, 158 Mich App 730, 

733; 405 NW2d 151 (1987). 

B. THE ELCRA 

 The ELCRA forbids, among other things, an employer from discharging an individual 

because of her race or age. MCL 37.2202(1)(a). Two broad categories of claims exist under this 

section: “disparate treatment” and “disparate impact” claims. Wilcoxon v Minnesota Mining & 

Mfg Co, 235 Mich App 347, 358; 597 NW2d 250 (1999). Plaintiff alleges only the former. 

 A claim of disparate treatment is a claim for intentional discrimination. Meagher v 

Wayne State Univ, 222 Mich App 700, 709; 565 NW2d 401 (1997). It may be proven by direct 

or circumstantial evidence. Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 132; 

666 NW2d 186 (2003). Because plaintiff presents only circumstantial evidence, we employ the 

familiar McDonnell Douglas burden-shifting test. Id. at 133-134, citing McDonnell Douglas 

Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). The test has three parts: (1) 

the plaintiff must first make out a prima facie case of discrimination; (2) if the plaintiff is 

successful, the burden shifts to the defendant to put forth a legitimate, nondiscriminatory reason 

for its actions; (3) if the defendant presents such a reason, the burden shifts back to the plaintiff 

to expose the proffered reason as a mere pretext. Sniecinski, 469 Mich at 134. 

 To establish a prima facie case of disparate treatment employment discrimination, the 

employee must show, among other things, that “others, similarly situated and outside the 

protected class [of which the employee is a member], were unaffected by the employer’s adverse 

conduct.” Town v Michigan Bell Tel Co, 455 Mich 688, 695; 568 NW2d 64 (1997) (opinion by 

BRICKLEY, J.).3

 Another employee is similarly situated if “all of the relevant aspects of the 

[other employee’s] employment situation were nearly identical to those of the plaintiff’s 

situation.” Smith v Goodwill Indus of West Mich, Inc, 243 Mich App 438, 449; 622 NW2d 337 

(2000) (quotation marks and citations omitted). A showing that “all relevant aspects” were 

nearly identical does not mean there must be “an exact correlation” between the employment 

situations. Ercegovich v Goodyear Tire & Rubber Co, 154 F3d 344, 352 (CA 6, 1998) (citation 

 

3

 Although a prima facie case of employment discrimination contains four elements, defendant 

contests only the one listed above. See Town, 455 Mich at 695 (a prima facie case of 

employment discrimination requires evidence that the employee was “(1) a member of a 

protected class, (2) subject to an adverse employment action, (3) qualified for the position, and 

that (4) others, similarly situated and outside the protected class, were unaffected by the 

employer’s adverse conduct.”). 
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omitted).4

 Rather, “the plaintiff and the employee with whom the plaintiff seeks to compare 

himself must be similar in all of the relevant aspects.” Id. (emphasis in original, citation 

omitted); accord Town, 455 Mich at 699-700, and Smith, 243 Mich App at 449. While courts 

must make a case-by-case determination on this score, relevant considerations in the disciplinary 

context may include whether the employees dealt with the same supervisor, were subject to the 

same standards, or were engaged in the same conduct without circumstances that distinguish 

their conduct or mitigate their employer’s treatment of them for it. Id., quoting Mitchell v Toledo 

Hosp, 964 F2d 577, 583 (CA 6, 1992). 

 Before addressing plaintiff’s specific claims, we reject plaintiff’s preliminary argument 

that the trial court improperly required her to demonstrate that she was similarly situated to other 

employees “in all respects” and failed to apply the allegedly broader “in all relevant aspects” 

analysis of Ercegovich to a disciplinary case like this one. The trial court’s opinion flatly 

contradicts this accusation. Indeed, the court not only articulated the correct standard, but also 

reviewed the relevant conduct and job functions at issue. Smith, 243 Mich App at 449-450. 

Moreover, the Ercegovich decision, which is not binding, Chambers v Trettco, Inc, 463 Mich 

297, 313; 614 NW2d 910 (2000), sets forth a standard no different than what we articulated in 

Smith. Plaintiff’s argument is without merit. 

C. PLAINTIFF’S PRIMA FACIE CASE 

 In her response below, plaintiff identified four coworkers as similarly situated employees 

who were not fired or were permitted to return despite their misconduct: (1) Eric Semenjunk, (2) 

Joe Toth, (3) Marvin Berry, and (4) Jenna Jean. Plaintiff claims both race and gender 

discrimination with respect to Semenjunk and Toth, gender discrimination with respect to Berry, 

and race discrimination with respect to Jean. None of the evidence plaintiff cites was properly 

submitted with her response to defendant’s summary disposition motion, however, since it all 

suffers from the same fatal flaw: inadmissibility. 

 Indeed, by plaintiff’s own admission, the only way she knows of her co-workers’ 

misconduct is through generic “state gossip.” Even worse, she offers nothing about the 

circumstances of these nondescript disclosures, let alone the specific sources of it. At least one 

federal court has aptly described such “stray gossip” as “rank hearsay,” Clark v APAC Mid-S, 

Inc, 912 F Supp 2d 1273, 1291 (ND Ala, 2012), and we are hard pressed to conclude otherwise 

here. See In re Utrera, 281 Mich App 1, 18; 761 NW2d 253 (2008) (statements made out of 

court and offered for their truth are generally inadmissible hearsay absent an exception). Absent 

more, then, this evidence is inadmissible and incapable of sustaining plaintiff’s burden. SSC 

Assoc Ltd Partnership, 192 Mich App at 364. 

 

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 Michigan courts may look to federal court interpretations of the counterpart federal statute 

when interpreting provisions of the ELCRA. Chambers v Trettco, Inc, 463 Mich 297, 313; 614 

NW2d 910 (2000). 
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 While we may affirm on this ground alone,5

 it bears mention that the alleged substance of 

this gossip wouldn’t help plaintiff anyway. As for the men, plaintiff accuses Semenjunk of 

accepting bribes while administering road tests, and accuses Toth and Berry of accepting forged 

documents from “foreigners.” However, even if true, plaintiff admits that, except for several 

isolated exceptions, each worked at a different location than her and held a different position 

than her (they were managers). And while plaintiff alleges that these co-workers were subject to 

the same investigation, she cites no evidence to support these contentions. Her ipse dixit is not 

enough. Mudge v Macomb Co, 458 Mich 87, 104; 580 NW2d 845 (1998). 

 In contrast, defendant points to the Department Handbook, which specifically provides 

that supervisory employees are subject to different standards. Even the Handbook’s list of 

terminable offenses reveals that the proscribed conduct ostensibly applying to all employees 

“may result in immediate discharge.” (Emphasis added.) The record reveals the results of the 

Department’s thorough investigation of plaintiff that led to her termination. But it contains no 

such information concerning the circumstances of the other male employees’ misconduct. Thus, 

the evidence is insufficient to make out a prima facie case, let alone undercut defendant’s 

proffered reason for filing plaintiff.6

 Plaintiff’s reliance on Jean’s situation fares no better. While during her deposition 

plaintiff accused Jean of waiting on family members, she accuses Jean of a whole host of 

wrongdoings on appeal (including, for example, falsifying documents and rendering special 

favors to the public). While those wrongdoings were set forth in an exhibit presented below, 

plaintiff did not argue them before the trial court. Her argument on this score is therefore not 

properly before us. Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 

(1992). 

 Regardless, Jean was fired for her misconduct, and only subsequently reinstated after an 

arbitration hearing. Her continued employment therefore was not defendant’s decision, and it 

cannot constitute disparate treatment. Nevertheless, processing transactions for family members, 

even fraudulently, is hardly akin to enabling the potential transport of hazardous materials. 

Where plaintiff otherwise introduced no evidence that Jean was treated differently than her, this 

argument is a nonstarter. 

 

5

 See Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 82; 592 NW2d 112 

(1999) (“This Court may affirm a decision of a trial court for reasons different than those relied 

on by the trial court.”). 

6

 Plaintiff’s only argument that defendant’s proffered reason, i.e., public safety, was not based in 

fact or actually motivated its decision is the nearly two-year delay between the incident and her 

termination. But this alone does not cast doubt on defendant’s reason, and is certainly not 

tethered to any discriminatory animus. To the contrary, it appears a thorough investigation 

occasioned this delay, which was appropriate considering the drastic disciplinary measure 

employed. 
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 Finally, plaintiff identifies the misconduct of a fifth co-worker by the name of Nancy 

Luna-Rodriguez whom she claims was similarly situated to her. Luna-Rodriguez was apparently 

disciplined for botching too many cashier transactions. But this is not what plaintiff argued in 

her response below. Instead, plaintiff claimed that discovery related to this employee was 

incomplete. It was not until her motion for reconsideration that plaintiff raised the arguments she 

now presents on appeal. An attempt like this to take a second bite at the apple is improper, 

however, and the trial court was right to preclude it. See Charbeneau, 158 Mich App at 733 

(“We find no abuse of discretion in denying a motion resting on a legal theory and facts which 

could have been pled or argued prior to the trial court’s original order.”). 

 But even setting that aside, mishandling cash is not the same as participating in fraud that 

puts public safety at risk. And, again, plaintiff failed to present evidence of other circumstances 

surrounding Luna-Rodriguez’s disciplinary investigation and process, let alone of her race—a 

key component in any racial discrimination claim. Plaintiff and Luna-Rodriguez are not 

similarly situated on this record. 

 Affirmed. 

/s/ Christopher M. Murray 

/s/ Henry William Saad 

/s/ Kirsten Frank Kelly