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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Plaintiff-Appellant, UNPUBLISHED January 22, 2015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: M URRAY , P.J., and S AAD and K. F. K ELLY , JJ.

P ER C URIAM

.
In this employment discrimination case, plaintiff appeals as o f right the trial court’s order granting defendant Secretary of S tate’s motion for summary disp osition and dismissing her wrongful termination claim file d under the Elliot-Larsen Civil Rights Act (ELCRA), MCL
37.2101 et seq . Plaintiff was terminated for her role in an acquaintance’s f raudulently obtaining
a commercial driver’s license with a hazardous materials endors ement. Plaintiff claims she made
a mistake and that defendant did not fire others similarly situ ated, 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 dispar ate treatment, we affirm.

I. BACKGROUND

As the following makes clear, the facts of this case are strai ghtforward. 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, 2 010. At the time she was fired, plaintiff served as a “DOS Aide-E” at the Secretary of State br anch office on East Eight Mile Road in Detroit. A DOS Aide-E is a clerk whose job duties enco mpass assisting customers with transactions including, among othe rs, the issuance of driver’s licenses and the processing of related documents. Relevant to this case is plaintiff’s role i n processing documents related to the issuance of a Commercial Driver’s License (CDL) for an acquaint ance. Before relating those details, however, a brief explanation of that multi-step proces s bears mention.

The process to obtain a CDL commences when the applicant takes a knowledge test, administered by a clerk like pl aintiff. Upon completion of the test (and the fulfillment of certain other requirements), the applicant obtains a temporary instruct ion 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 Driv ing Skills Test Certificate, known as-2- a DSTC-TPT-010 (“DSTC”). The app licant 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 ev erything is proper, the clerk takes the applicant’s picture a nd issues the final CDL by mail. It was plaintiff’s participation in this process with an acquaintan ce named Stephen Belser that ost ensibly 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 ha d 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 ma il. The license contained a
hazardous materials endorsement.

The next workday, plaintiff’s supervisor informed her that Bel ser’s DSTC was a copy, and clerks are only to accept originals. So plaintiff contacte d Belser, who delivered another DSTC to plaintiff the following morning in the branch office pa rking lot before work started. This DSTC was altered, however—a fact plaintiff knew because Be sler indicated “he had made some changes” when plaintiff asked why he didn’t provide this v ersion in the first place. Plaintiff accepted the DSTC anyway, which she gave to her super visor with the acknowledgment, “It looks lik e it’s been altered.”

An internal investigation ensued. The first certificate was f ound counterfeit, the second altered. The investigation ultimately determined that plaintif f had “knowingly ignored” a questionable DSTC as a favor to Belser. The investigation conc luded that as a consequence, Belser fraudulently obtained a CDL rendering him eligible to tr ansport hazardous materials, which posed a significant risk to public safety. Plaintiff’s c onduct in this matter allegedly violated several provisions of th e Department of State Employee s Handbook and Civil Service Rules, and she was termin ated on October 22, 2010. 1 Plaintiff filed a grieva nce, maintaining that she had simply made a mistake, but an arbitrator subsequently u pheld plaintiff’s termination.

II. PROCEEDINGS

Acting in propria persona, plai ntiff filed a two-count complai nt 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. Duri ng discovery, plaintiff identified four Department employees whom she claimed either were not fire d 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 repor t known fraudulent activity, prov iding favors to the general public, conduct unbecoming an employee, and violation of the prohibitio n against processing
transactions for fri ends or relatives.

2 Count I impugned the arbitrator’s impartiality and was dismiss ed following defendant’s first motion for summary disposition.-3- the fourth was a white woman. Their alleged misconduct various ly included taking bribes, accepting forged documents, and waiting on family members.

At the close of discovery, defendant moved for summary disposi tion. Defendant argued that plaintiff based her allega tions on inadmissible hearsay an d had otherwise failed to establish a prima facie case of disparate treatment where the other employe es’ situations involved different supervisors, job titles, work l ocations, and conduct. Defendan t added that public safety legitimately motivated its d ecision to fire plaintiff.

Plaintiff responded—through counsel this time—that other emplo yees retaining their jobs despite accepting bribes, accepting forged documents, and waiti ng on family members was sufficiently similar to her own c onduct to expose the real reas on for her firing: her race and her gender. Plaintiff cited as proof the fact that the same ultima te decision-maker, i.e., the Human Resources Office, was involved in all these employment decision s, and that defendant waited until two years after the incident to fire her, which decision defendant based on an inadequate investigation and Belser’s in consistent statements.

Following a hearing, the trial court rejected plaintiff’s argu ments. The court noted that three of the employees at issue held positions different than p laintiff’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 wa s granted and plaintiff’s clai m was dismissed. Plaintiff then moved for reconsideration, this time identifying the misconduct of a fifth co-worker, but the
court denied that motion as we ll. Plaintiff now presents this appeal.

III. ANALYSIS

Plaintiff maintains she established a prima facie case of disp arate treatment because other Department employees retained th eir 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 s ubrule de novo. McCoig Materials, LLC v Galui Const, Inc , 295 Mich App 684, 693; 818 NW2d 410 (2012). “A motion for summary disposition pursuan t to MCR 2.116(C)(10) should be granted when there is no genuine issue of material fact a nd 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 e xists when the record, giving t he 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 is sue, we consider all of the pleadings, affidavits, depositions, admissi ons 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 mat erial fact for trial.” Curry , 286 Mich App at 591 (citation omitted). Such evidence must be admi ssible in form; opinions,-4- conclusory denials, unsworn averm ents, 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 w ay, judgment for the moving party
results. Curry , 286 Mich App at 591 (citation omitted).

To the extent plaintiff raises arguments contained in her moti on 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 discha rging an individual because of her race or age. MCL 37.2202(1)(a). Two broad cate gories of claims exist under this section: “disparate treatment” a nd “disparate impact” claims. Wilcoxon v Minnesota Mining & Mfg Co , 235 Mich App 347, 358; 597 NW2d 250 (1999). Plaintiff allege s only the former.

A claim of disparate treatment is a claim for intentional disc rimination. 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 circumsta ntial 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 ha s three parts: (1) the plaintiff must first make out a prima facie case of discrim ination; (2) if the plaintiff is successful, the burden shifts to the defendant to put forth a l egitimate, nondiscriminatory reason for its actions; (3) if the def endant presents such a reason, t he burden shifts back to the plaintiff to expose the proffered r eason as a mere pretext. Sniecinski , 469 Mich at 134.

To establish a prima facie case of disparate treatment employm ent 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 unaff ected by the employer’s adverse
conduct.” Town v Michigan Bell Tel Co , 455 Mich 688, 695; 568 NW2d 64 (1997) (opinion by
B RICKLEY , J.). 3 Another employee is similarly situated if “all of the relevan t aspects of the [other employee’s] employment situation were nearly identical t o 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 correlat ion” 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 conta ins 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 w as “(1) a member of a protected class, (2) subject to an adverse employment action, ( 3) qualified for the position, and that (4) others, similarly situ ated and outside the protected c lass, were unaffected by the employer’s adverse conduct.”).-5- omitted). 4 Rather, “the plaintiff and the employee with whom the plainti ff 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 determin ation on this score, relevant considerations in the disciplinary context may include whether the employees dealt with the same s upervisor, were subject to the same standards, or were engaged in the same conduct without cir cumstances that distinguish their conduct or mitigate their employer’s treatment of them fo r it. Id ., quoting Mitchell v Toledo Hosp , 964 F2d 577, 583 (CA 6, 1992).

Before addressing plaintiff’s sp ecific claims, we reject plain tiff’s preliminary argument that the trial court improperly required her to demonstrate tha t she was similarly situated to other employees “in all respects” and failed to apply the allegedly b roader “in all relevant aspects” analysis of Ercegovich to a disciplinary case like this one. The trial court’s opini on flatly contradicts this accusation. Indeed, the court not only articu lated 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 differe nt 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 mi sconduct: (1) Eric Semenjunk, (2) Joe Toth, (3) Marvin Berry, and (4) Jenna Jean. Plaintiff clai ms both race and gender discrimination with respect to Semenjunk and Toth, gender discr imination with respect to Berry, and race discrimination with respect to Jean. None of the evid ence 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 s pecific 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 pres sed 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 he arsay absent an exception). Absent more, then, this evidence is inadmissible and incapable of sust aining plaintiff’s burden. SSC Assoc Ltd Partnership , 192 Mich App at 364.

4 Michigan courts may look to federal court interpretations of t he counterpart federal statute when interpreting provisions of the ELCRA. Chambers v Trettco, Inc , 463 Mich 297, 313; 614 NW2d 910 (2000).-6- 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, pl aintiff accuses Semenjunk of accepting bribes while administering road tests, and accuses To th 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 h er and held a different position than her (they were managers). And while plaintiff alleges tha t 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, whic h specifically provides that supervisory employees are s ubject to different standards. Even the Handbook’s list of terminable offenses reveals that the proscribed conduct ostensi bly 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 he r 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, le t alone undercut defendant’s proffered reason for filing plaintiff. 6

Plaintiff’s reliance on Jean’s situation fares no better. Whi le during her deposition plaintiff accused Jean of waiting on family members, she accuse s Jean of a whole host of wrongdoings on appeal (including, f or example, falsifying docum ents and rendering special favors to the public). While those wrongdoings were set forth in an exhibit presented below, plaintiff did not argue them befo re the trial court. Her argum ent 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 afte r an arbitration hearing. Her continued employment therefore was no t defendant’s decision, and it cannot constitute disparate treat ment. Nevertheless, processin g transactions for family members, even fraudulently, is hardly akin to enabling the potential tra nsport of hazardous materials. Where plaintiff otherwise intr oduced 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 adecision 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 doe s not cast doubt on defendant’s reason, and is certainly not tethered to any discriminatory animus. To the contrary, it app ears a thorough investigation occasioned this delay, which was appropriate considering the dr astic disciplinary measure employed.-7- Finally, plaintiff identifies the misconduct of a fifth co-wor ker by the name of Nancy Luna-Rodriguez whom she claims was similarly situated to her. Luna-Rodriguez was apparently disciplined for botching too ma ny cashier transactions. But th is 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 th at 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 prio r to the trial court’s origi nal 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 pr esent evidence of other circumstances surrounding Luna-Rodriguez’s discip linary investigation and pro cess, let alone of her race—a key component in any racial discrimination claim. Plaintiff an d Luna-Rodriguez are not similarly situated on this record.

Affirmed.

/s/ Christopher M. Murray /s/ Henry William Saad /s/ Kirsten Frank Kelly