UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CONNIE JOHNSON,

Plaintiff, Case No. 09-11805

v. Hon. Nancy G. Edmunds

CITY OF FLINT,

Defendant.

_______________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT [16]

This employment dispute comes before the Court on Defendant’s motion for summary

judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff Connie Johnson’s

Complaint alleges claims of sex discrimination and retaliation against Defendant City of

Flint under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq.,

and the Michigan Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2201,

et seq. Plaintiff also alleges a violation of the Michigan Whistleblowers’ Protection Act

(WPA), Mich. Comp. Laws § 15.361, et seq. For the reasons set forth below, Defendant’s

motion is GRANTED. 

I. Facts

Plaintiff is employed by Defendant’s Police Department as a patrol officer. Her twentyplus year career with Defendant began on April 17, 1989, and she has held various

positions during that time including patrol officer, community policing, mini-station operator,
 1

 Specifically the grievance complains of instances of alleged harassment including, inter

alia, claims that: (1) officers would remark that the Inspector’s Unit, to which Plaintiff was

assigned, would soon be nonexistent; (2) officers, who had a “close relationship with [an]

Assistant United States Attorney,” did not have to testify at a July 2008 Justice Bureau

hearing, and the “relationship [was used] as visible apparent harassment towards” Plaintiff;

(3) a lieutenant filed an incident report contending that members of the Inspector’s Unit

were violating department policy, when the lieutenant himself violated the same policy just

a week later; (4) two sergeants, Hamilton and Hetherington, blamed Plaintiff for their

reassignment within the department; (5) the union president and other officers “openly

spoke against the Inspector[‘s]” Unit; (6) other officers would laugh and joke about Plaintiff

when she walked by them; (7) an officer would not call off a stolen car chase at Plaintiff’s

request because “‘we don’t call off chases for an Inspector’”; (8) officers would block

Plaintiff from “walking in and out of doors and elevators”; (9) an officer called her a “lesbian

bitch,” “tried to run into [her] in the ... parking lot ... while driving his personal vehicle ... got

out of his car looked at [her] and laughed,” would glare at her in the hallways, and made

other comments; (10) officers “put different memos in the union window box” speaking out

against the Inspector’s Unit; (11) an officer belched in Plaintiff’s face and “looked at [her]

while ... driving ... and laughed while grabbing his crotch and shaking it”; and (12) an officer

“called the alarm company and had [her] ... [access] card turned off,” and also “had his

sister go to the mayor’s office [and to police mini-stations] and make numerous complaints

about [Plaintiff] that were untrue.” (Def.’s Mot., Ex. 1 at 3-8.)

2

inspector, internal affairs officer, and deputy chief. (Compl. ¶¶ 1, 10, 16, 19; Johnson Dep.,

Def.’s Mot., Ex. 10 at 80.)

On November 10, 2008, Plaintiff filed a “formal grievance” with Defendant’s Director

of Human Resources, Deirdre Pitts. The grievance generally complains of “overt[] and

physical[] harass[ment].”1

 (Def.’s Mot., Ex. 1 at 3.) Pitts referred the grievance, “detailing

ongoing harassment from Police Department personnel,” to Defendant’s Chief Legal

Officer, Trachelle Young, to “review and advise if this falls under and violates the City’s

Harassment and Discrimination Policy or Violence in the Workplace Policy.” (Id. at 2.)

Also in November 2008, Plaintiff, along with thirty other applicants, applied for two

vacant positions of Deputy Chief of Police. (Pitts Dep., Def.’s Mot., Ex. 13 at 34.) Plaintiff

met the minimum entrance requirements for that position and was scheduled for testing.
3

(Def.’s Mot., Ex. 2.) The application and testing process, however, was interrupted by a

“class action lawsuit” alleging that Defendant’s Mayor, Donald Williamson, unilaterally

attempted “to change the minimum requirements of the position without collectively

bargaining the changes.” (Def.’s Mot. at 8.) Soon thereafter, Mayor Williamson voluntarily

resigned. In January 2009, before his resignation became effective, Mayor Williamson

provisionally appointed Plaintiff to the position of Deputy Chief. (Pitts Dep., Def.’s Mot., Ex.

13 at 34.) 

Less than one month later, interim Mayor Michael Brown appointed Alvern Lock as

the new Chief of Police—the city’s fourth chief in a one-year period. (Compl. ¶ 43; Def.’s

Mot. at 9.) In an attempt to address budgetary issues and the Police department’s overall

“dire” financial condition, Lock laid off all deputy chiefs, including Plaintiff. (Lock Dep., Def.’s

Mot., Ex. 12 at 10-12, 40; Compl. ¶ 45.) On February 19, 2009, Lock signed a layoff

notification informing Plaintiff that her provisional appointment as deputy chief was ending

and that she was entitled to “bump” back into the position of patrol officer. (Def.’s Mot., Ex.
 2

 Plaintiff contends that she was not assigned a patrol partner. Lock testified that: 

... and at that point I said, “Well, you known, I can’t–you’ll have to go back to

being an officer,” I said, “because you haven’t held any of these other ranks,

so I can’t put you in any of these ranks.” 

And at that point, you know, she said, “Well, you know, can I go back to

being–into internal affairs?” And at that point I informed her that I couldn’t put

her in internal affairs because I was going to have a sergeant do that

because if I had a sergeant there, the sergeant could investigate officers. An

officer can’t investigate another officer. I wanted to explain that to her.

(Lock Dep., Def.’s Mot., Ex. 12 at 22.)

 3

 Lock testified that: 

And that’s, you know, when we got into the conversation about her being

harassed and she being fearful of being out there by herself. And I told her

I wouldn’t put her out there by herself. I wouldn’t want her to be out there by

herself, and that’s when I asked her was there anyone in the department that

she felt comfortable with. 

(Lock Dep., Def.’s Mot., Ex. 12 at 23.)

4

4.) According to Plaintiff, she was not offered her prior position in Internal Affairs.2

 Instead

she was assigned to patrol the North end of the city.3

 (Compl. ¶¶ 46, 51.)

The same day the layoff notification was issued, Plaintiff went on medical leave.

(Compl. ¶ 50.) By April 28, 2009, Plaintiff had not been released to work by her physician

and Defendant notified her that she would begin leave without pay status on May 15, 2009.

(Def.’s Mot., Ex. 5.) Plaintiff returned to work on September 8, 2009.

On March 2, 2009, while Plaintiff was on leave and eleven days after being informed

that her provisional appointment as deputy chief had ended, she filed an EEOC complaint

alleging instances of gender discrimination beginning June 1, 2008. (Def.’s Mot., Ex. 6.) On

March 26, 2009, Plaintiff filed another EEOC complaint alleging retaliation in addition to

gender discrimination and included additional instances of discrimination dating back to

December 2006. (Def.’s Mot., Ex. 7.) 
5

On May 11, 2009, Plaintiff filed a complaint in the United Stated District Court for the

Eastern District of Michigan. [Docket Text # 1.] The Complaint alleges claims of sex

discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), 42

U.S.C. § 2000e, et seq., and the Michigan Elliott-Larsen Civil Rights Act (ELCRA), Mich.

Comp. Laws § 37.2201, et seq. The Complaint also alleges a violation of the Michigan

Whistleblowers’ Protection Act (WPA), Mich. Comp. Laws § 15.361, et seq.

This matter comes before the Court on Defendant’s motion for summary judgment

pursuant to Federal Rule of Civil Procedure 56.

II. Summary Judgment Standard

Summary judgment is appropriate only when there is “no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). The central inquiry is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as

a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Rule 56(c)

mandates summary judgment against a party who fails to establish the existence of an

element essential to the party’s case and on which that party bears the burden of proof at

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial burden of showing the absence of a genuine issue

of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this burden, the

non-movant must come forward with specific facts showing that there is a genuine issue

for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

evaluating a motion for summary judgment, the evidence must be viewed in the light most

favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
 4

 At oral argument on this motion, Plaintiff’s counsel attempted to withdraw her disparate

treatment claim and also conceded that she could not demonstrate the requisite adverse

employment action for her retaliation claim. Notwithstanding, the Court addresses each

claim alleged in the Complaint.

6

The non-moving party may not rest upon its mere allegations, however, but rather “must

set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

The mere existence of a scintilla of evidence in support of the non-moving party’s position

will not suffice. Rather, there must be evidence on which the jury could reasonably find for

the non-moving party. Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002).

III. Analysis

In the Complaint, Plaintiff alleges violations of Title VII and Michigan’s ELCRA in the

form of discrimination (hostile work environment and disparate treatment) and retaliation,

and alleges a violation of the Michigan Whistleblowers’ Protection Act (WPA).4

 Defendant

denies that Plaintiff was discriminated or retaliated against on the basis of sex and also

denies any violations of the WPA. 

This Court first discusses Plaintiff’s sex discrimination claims, followed by her

retaliation and WPA claims.

A. Sexual Discrimination Claims

Plaintiff alleges she was discriminated against because of her sex under two alternate

theories—hostile work environment and disparate treatment—and filed suit under both Title

VII and Michigan’s ELCRA. (Compl. ¶¶ 15, 23.) Claims of discrimination brought pursuant

to the ELCRA are analyzed under the same evidentiary framework as similar claims

brought under Title VII, and Michigan courts follow federal civil rights case law to interpret

them. Jackson v. Quantex Corp., 191 F.3d 647, 658 (6th Cir. 1999); see also Sniecinski v.
 5

 This Court notes that although sexual harassment claims under Title VII and

Michigan’s ELCRA have some important differences, those differences are not dispositive

here. For example, “unlike Michigan’s ELCRA, Title VII applies different standards for

evaluating whether the employer as a whole is vicariously liable for the hostile work

environment,” depending upon whether the employee is harassed by a co-worker or a

supervisor. Clark v. United Parcel Svc., Inc., 400 F.3d 341, 349 (6th Cir. 2005). This is not

dispositive in this matter because Defendant argues that Plaintiff cannot establish an

essential element of her claim under Title VII or ELCRA in that she cannot show that the

alleged conduct was sufficiently severe or pervasive enough to alter the conditions of her

employment so as to create a hostile working environment. 

7

Blue Cross & Blue Shield of Michigan, 666 N.W.2d 186, 192-95 (Mich. 2003); Humenny v.

Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004).5

Both Title VII and ELCRA prohibit employers from discriminating against employees

based on sex. See 42 U.S.C. 2000e-2(a)(1); Mich. Comp. Laws § 37.2102. Discrimination

because of sex includes sexual harassment (hostile work environment) and disparate

treatment (discrimination based on gender). See, e.g., Chambers v. Trettco, Inc., 614

N.W.2d 910, 915 (Mich. 2000); Mich. Comp. Laws § 37.2103(I); Humenny, 390 F.3d at 906.

1. Hostile Work Environment

Hostile work environment claims address workplaces “permeated with discriminatory

intimidation, ridicule, and insult that are sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.” Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations omitted). In

order to establish a prima facie case of a hostile work environment, a plaintiff must show

that: (1) she is a member of a protected class; (2) she was subjected to unwelcome sexual

harassment; (3) the harassment was based on her sex; (4) the harassment created a

hostile work environment; and (5) the employer is vicariously liable. Clark v. United Parcel
 6

 Under the ELCRA “[t]o establish [her] claim of hostile environment sexual harassment,

Plaintiff must prove the following: (1) the employee belonged to a protected group; (2) the

employee was subjected to communication or conduct on the basis of sex; (3) the

employee was subjected to unwelcome sexual conduct or communication; (4) the

unwelcome sexual conduct or communication was intended to or in fact did substantially

interfere with the employee’s employment or created an intimidating, hostile, or offensive

work environment; and (5) respondeat superior.” Chambers, 614 N.W.2d at 915 (quoting

Radtke v. Everett, 501 N.W.2d 155, 162 (Mich. 1993)). 

8

Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005). These requirements also apply to Plaintiff’s

ELCRA claim.6

In support of her hostile work environment claim, Plaintiff’s Complaint alleges that the

following conduct, inter alia, contributed to a hostile work environment: (1) being called a

lesbian; (2) being given the finger; (3) having male officers belch in her face; (4) having

another officer attempt to run her over in a vehicle; (5) being shunned; (6) being subjected

to disparaging remarks; (7) failing to investigate her complaints of harassment; (8) having

her parking space vandalized; (9) being assigned to patrol a dangerous part of the city

without a partner; and (10) having a male officer grab his crotch and mock her. (Compl. ¶¶

21, 28, 33, 44, 51-52.) In her deposition, Plaintiff also alleges: (1) that she was referred to

as a “bitch,” “cunt,” and “white token”; (2) ridiculed in the hallway by other officers laughing,

stopping their conversations as she approached, and blocking entrance and elevator doors;

(3) was the victim of dismissive attitudes from other officers; (4) was almost run over by

another officer in his car; and (5) was the subject of derogatory internet blogs. (Johnson

Dep. at 41-44, 47-48, 53, 74, 98.)

Defendant contends that Plaintiff has failed to create a genuine issue of material fact

with respect to the fourth element of her prima facie case because the alleged incidents,

even if proven true, would not rise to the level of a hostile workplace claim: the allegations
 7 Cf. Williamson v. BASF Corp., No. 05-74861, 2007 WL 172533, at *7 (E.D. Mich. Jan.

19, 2007) (“As to the fourth element, the Michigan Supreme Court has held that ‘whether

a hostile work environment existed shall be determined by whether a reasonable person,

in the totality of circumstances, would have perceived the conduct at issue as substantially

interfering with the plaintiff’s employment or having the purpose or effect of creating an

intimidating, hostile, or offensive employment environment.’ Radtke, 501 N.W.2d at 167.

Quoting, with approval, a decision by the United States Supreme Court, the Michigan

Supreme Court further observed that:

[W]hether an environment is “hostile” or “abusive” can be determined only by

looking at all the circumstances. These may include the frequency of the

9

are not sufficiently severe or pervasive to create a hostile work environment. (Def.’s Mot.

at 15.) 

“In determining whether the alleged harassment is sufficiently severe or pervasive ...

the court must consider the totality of the circumstances.” Williams v. Gen. Motors Corp.,

187 F.3d 553, 562 (6th Cir. 1999). See also id. at 564 (“[A] work environment viewed as a

whole may satisfy the legal definition of an abusive work environment, for purposes of a

hostile work environment claim, even though no single episode crosses the Title VII

threshold.”). “Isolated incidents, however, unless extremely serious, will not amount to

discriminatory changes in the terms or conditions of employment.” Bowman v. Shawnee

State Univ., 220 F.3d 456, 463 (6th Cir. 2000) “Among the factors to be considered are ‘the

frequency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

employee’s work performance.’” Clark, 400 F.3d at 351 (quoting Harris, 510 U.S. at 23).

“[T]he test for a hostile work environment has both objective and subjective components.”

Williams, 187 F.3d at 566. In order to be actionable, an environment must be one “that a

reasonable person would find hostile or abusive,” and the employee must “subjectively

perceive the environment to be abusive.” Harris, 510 U.S. at 21-22.7

 Thus, “[t]he plaintiff
discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.

Quinto v. Cross and Peters Co., 547 N.W.2d 314, 323 (Mich.1996) (quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 22-23 (1993)).”).

10

must show that the working environment was both objectively and subjectively hostile.”

Clark, 400 F.3d at 351.

It is well-established that “[t]he prohibition of harassment on the basis of sex requires

neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively

offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner

Offshore Servs., 523 U.S. 75, 81 (1998). See also Burlington Northern & Santa Fe Ry. v.

White, 548 U.S. 53, 68 (2006) (“Title VII, we have said, does not set forth a general civility

code for the American workplace.”). “[S]imple teasing, offhand comments, and isolated

incidents (unless extremely serious) will not amount to discriminatory changes in the terms

and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998)

(internal quotations and citations omitted). Such a limitation is required “to ensure that

courts and juries do not mistake ordinary socializing in the workplace—such as

male-on-male horseplay or intersexual flirtation—for discriminatory conditions of

employment.” Oncale, 523 U.S. at 81. Thus, courts should “filter out complaints attacking

the ordinary tribulations of the workplace, such as the sporadic use of abusive language,

gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at 788 (internal

quotation marks omitted).

Accepting Plaintiff’s version of the facts as true, this Court concludes that Plaintiff

cannot establish the fourth element of her prima facie case—that she was subjected to a
 8

 Even Plaintiff’s allegation that another officer “grabbed his crotch and shook his penis

and mocked” her, does not rise to the requisite level of severity or pervasiveness. See, e.g.,

Gwen v. Regional Transit Authority, 7 Fed. App’x 496, 501 (6th Cir. 2001) (holding that a

co-worker who twice exposed himself to the plaintiff did not create a hostile work

environment). 

 9

 For example, Plaintiff claims to have been called “bitch,” “cunt,” and “white token,” but

she never actually heard these statements being made nor can she offer any evidence that

they were repeated on more than one occasion.

 10 For example, having a bad word directed toward you, feeling dismissed and isolated

from other officers, having someone belch in your face, and having coworkers block an

elevator door are not the types of behavior that Title VII or the ELCRA was intended to

address.

11

hostile work environment. Applying the required reasonableness test and considering the

totality of circumstances, this Court examines the conduct that, according to Plaintiff, gives

rise to her hostile environment sexual harassment claim: the instances described in the

Complaint and the other events described in Plaintiff’s deposition, each described above.

Considering the frequency, severity, presence or absence of physical threats or humiliating

behavior, whether merely offensive utterances were involved, and whether the

objectionable conduct interfered with Plaintiff’s work, this Court concludes that the alleged

conduct was not severe or pervasive and thus fails to create a hostile working environment.

See Quinto, 547 N.W.2d at 323. 

Although such conduct demonstrates evidence of rudeness and incivility, such

distastefulness does not rise to a level to form the basis of a hostile work environment

claim.8

 First, the complained of acts are not pervasive:9 the “actions lack the continuous

nature of conduct the Sixth Circuit has deemed sufficient to constitute a hostile work

environment.” Mahan v. Peake, No. 07-15223, 2009 WL 174130, at *6 (E.D. Mich. Jan. 23,

2009). Second, Plaintiff’s allegations lack the necessary severity.10 Id. When Plaintiff’s
 11 Plaintiff, in fact, testified in her deposition that she believed other officers were jealous

of her appointment by former Mayor Williamson to the Citizens Service Bureau (CSB) and

acted out against her for that reason. 

Q: ... do you agree that there may be some resentment or animosity toward

you because of your appointment to the CSB?

A: I believe there was jealousy because there was a pay increase, yes.

Q: Do you think that this jealousy that was being felt by your peers or

colleagues resulted in any mistreatment towards you?

A: I believe that it could have contributed, but I believe—what I know is the

male officers were not subjected to what I was subjected to because of that.

(Johnson Dep., Def.’s Mot., Ex. 10 at 60.)

 12 Lock also testified that, in his opinion, Plaintiff was “a good officer.” (Lock Dep., Def.’s

Mot., Ex. 12 at 37.)

12

allegations are compared to other cases where the plaintiff showed the existence of a

hostile workplace, it becomes clear that she has not made a prima facie showing of hostile

work environment. See id. Finally, Plaintiff has presented no evidence, beyond her

conclusory allegations,11 that any of the alleged objectionable conduct interfered with her

work performance.12

Plaintiff has failed to present sufficient evidence such that a reasonable juror could

find an actionable hostile work environment. Accordingly, Plaintiff cannot establish a prima

facie case for sexual harassment under the theory of hostile work environment. 

2. Disparate Treatment Claim 

To establish a prima facie case of a gender discrimination under either Title VII or the

ELCRA, Plaintiff must show that she was: (1) a member of a protected class; (2) subject

to an adverse employment action; (3) qualified for the job; and (4) treated differently than

similarly situated male employees for the same or similar conduct. Humenny, 390 F.3d at
 13 Under the ELCRA “a plaintiff may establish a prima facie case of employment

discrimination by showing (1) that the plaintiff was a member of a protected class, (2) that

an adverse employment action was taken against the plaintiff, (3) that the plaintiff was

qualified for the position, and (4) that the plaintiff was replaced by one who was not a

member of the protected class.” Feick v. County of Monroe, 582 N.W.2d 207, 209-10 (Mich.

Ct. App. 1998). 

 14 “Direct evidence is evidence that proves the existence of a fact without requiring any

inferences.” Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544, 548 (6th Cir.

2004). Although the alleged discriminatory comments may be rude, inappropriate and

mean, they do not show gender discrimination without making an inference of some kind.

13

906; Hazle v. Ford Motor Co., 628 N.W.2d 515, 521 (Mich. 2001). These requirements also

apply to Plaintiff’s ELCRA claim.13

A plaintiff may establish a prima facie case by offering either direct14 evidence that the

defendant intentionally discriminated against her because of her gender or by presenting

circumstantial evidence, following the McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), burden-shifting analysis. See Graham v. Ford, 604 N.W.2d 713, 717 (Mich. Ct. App.

1999). In this case, Plaintiff has presented no direct evidence of discrimination nor has

Plaintiff argued that any direct evidence support her claims. Because Plaintiff is attempting

to establish her discrimination claims with circumstantial evidence, the burden-shifting

analysis set forth in McDonnell Douglas is applied.

The McDonnell Douglas burden-shifting framework consists of three stages. The

plaintiff must first demonstrate a prima facie case of discrimination. See Clack v. RockTenn Co., 304 Fed. App’x 399, 402 (6th Cir. 2008). If the plaintiff makes this showing, the

burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the

challenged employment action. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 (6th

Cir. 2000). After the employer articulates a legitimate, non-discriminatory reason, the
14

plaintiff must come forward with admissible evidence showing that the employer’s proffered

explanation is simply a pretext for unlawful discrimination. See id. Moreover, the business

judgment of the employer may not be questioned because the issue is not whether the

decision was wrong or mistaken, but whether the decision was discriminatory. See Hartsel

v. Keys, 87 F.3d 795, 801 (6th Cir. 1996).

Defendant argues that Plaintiff’s disparate treatment claim fails for two reasons. First,

Defendant contends that Plaintiff has failed to make a prima facie case of discrimination

by failing to establish that she was replaced by a male or that she was treated differently

than comparable males under the circumstances. Alternatively, Defendant argues that

Plaintiff cannot show that Defendant’s proffered non-retaliatory reason for her discharge

was a pretext for disparate treatment. This Court agrees, and discusses each in turn. 

a. Plaintiff Cannot Establish a Prima Facie Case of Discrimination

Plaintiff’s claim of gender discrimination consists of, inter alia, the following allegations

contained in the complaint:

42. The idea of a female in the position of Deputy Chief, however, was

opposed by the police officers and was rescinded by the new mayor (Michael

K. Brown) and police chief (Alvern Locke) [sic]. 

(Compl. ¶ 42.) Plaintiff’s response to Defendant’s motion adds:

However, the actions of members of the department got markedly worse as

she moved up through the ranks. She had the opportunity to observe how

she was treated by fellow officers compared to the way male officers were

treated. She had the opportunity to observe the way other female officers

were treated compared to the way male officers were treated. While she

admits that she does not know what was in the minds of each of the officers,

she does know that there was a difference in her treatment and that the

treatment differed based on gender. (Ex. 1, 59)

(Pl.’s Resp. at 6.)
 15 In response to the question: “And why do you think that that’s because you’re a

woman?”, Plaintiff testified: “I couldn’t tell you if that’s exactly–but I am a woman and that’s

what they were doing to me.” (Johnson Dep., Def.’s Mot., Ex. 10 at 53.)

 16 Nowhere in her testimony does she point to evidence, beyond her vague and

conclusory allegations, that the other officers were treated differently because they were

male, nor does she put forth evidence that she was similarly situated to male officers. On

both grounds, the allegations do not rise to the level of gender discrimination prohibited

under Title VII or the ELCRA.

15

The harassment experienced by plaintiff was based on her sex. ... Plaintiff

cites incidents involving a number of officers and incidents. In her internal

complaint to defendant, plaintiff details instances of intimidation on the part

of Officer Roberts who would block her entrance to the elevator. Roberts did

not block the elevator for male officers. Similarly, plaintiff stated that Officer

Tolbert constantly harassed and intimidated her. Examples include calling

plaintiff a “lesbian bitch,” yelling her name as he walked by, and attempting

to run her over with his personal vehicle. ... The term “lesbian” refers to a

female only, and is clearly derogatory, and Tolbert did not display the same

level of hostility toward men. Officer Petrich’s conduct can also be construed

as harassment based on plaintiff’s sex, including belching in her face and

shaking his crotch at her. These officers did not treat similarly situated males

in the same manner.

(Id. at 17-18.)

Defendant argues, and this Court agrees, that Plaintiff has failed to create a genuine

issue of material fact with respect to the fourth element of her prima facie case

because—assuming arguendo that the loss of Plaintiff’s provisional appointment as deputy

chief is an “adverse employment action”—Plaintiff cannot establish that she was replaced

by a male or that she was treated differently than comparable males under the

circumstances.15 (Def.’s Mot. at 21.) 

Despite Plaintiff’s conclusory allegations16 of gender discrimination, Plaintiff provides

virtually no evidentiary support for her claims. Under Rule 56, the party opposing a motion

for summary judgment “may not rely merely on allegations ... in its own pleading; rather,
 17 In response to the question: “You said there was an overabundance of ranks. What

do you mean by that?”, Lock testified: “... I had several deputy chiefs, I–in fact, I had two

deputy chiefs, I had captains and I had lieutenants and I had other officers in other

positions that were not needed.” (Lock Dep., Def.’s Mot., Ex. 12 at 12.) And, in response

to the question: “And so what did you do about those positions?”, Lock testified: “I started

eliminating those positions.” (Id.)

16

its response must ... set out specific facts showing a genuine issue for trial.” Fed. R. Civ.

P. 56(e). “By its very terms, this standard provides that the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported motion

for summary judgment; the requirement is that there be no genuine issue of material fact.”

Anderson, 477 U.S. at 247-48. If the disputed evidence “is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id. at 249-50 (citations

omitted). Plaintiff has not met this standard, and Defendant is entitled to summary judgment

in its favor.

b. Defendant Articulated a Legitimate, Non-Discriminatory Reason

Even if Plaintiff had established a prima facie case of gender discrimination,

Defendant argues that it would nonetheless be entitled to summary judgment. This is so,

Defendant argues, because it has presented evidence supporting a legitimate, nondiscriminatory reason for the adverse employment action—the end of Plaintiff’s provisional

deputy chief position—and because Plaintiff has not presented evidence showing that such

a reason for the challenged employment action was a pretext for discrimination. 

This Court finds that Defendant has presented evidence supporting the legitimate,

non-discriminatory reason for the employment action Plaintiff challenges. Specifically,

Defendant has presented evidence that the position was eliminated due to budgetary

reasons.17 Moreover, all deputy chief positions were eliminated including Plaintiff’s position
17

as well as another male deputy chief, Tim Johnson. Both deputy chiefs, Tim Johnson and

Plaintiff Connie Johnson, were issued memos on the same day. (See Lock Dep., Def.’s

Mot., Ex. 12 at 40.) Chief Lock, in his deposition, also testified that gender had no bearing

on his decision to eliminate the deputy chief positions. (See Lock Dep., Def.’s Mot., Ex. 12

at 48.) 

c. Plaintiff Cannot Establish that Reason Proffered is Pretext

Because Defendant satisfied its burden—showing that it had a legitimate, nondiscriminatory reason for Plaintiff’s termination—the burden of production now returns to

Plaintiff. Univ. of Cincinnati, 215 F.3d at 573. To meet her burden, Plaintiff is required “to

show the existence of evidence sufficient to permit a reasonable trier of fact to conclude

that discrimination was a motivating factor for the adverse action taken by the employer

toward the plaintiff.” Hazle, 628 N.W.2d at 526 (internal quotation and citation omitted). 

Plaintiff may establish pretext and “refute the legitimate, nondiscriminatory reason

articulated by an employer to justify an adverse employment action by showing that the

proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s

challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Johnson v.

Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (internal quotation and citation omitted).

Plaintiff “may also demonstrate pretext by offering evidence which challenges the

reasonableness of the employer’s decision to the extent that such an inquiry sheds light on

whether the employer’s proffered reason for the employment action was its actual

motivation.” White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6th Cir. 2008) (internal

quotation and citation omitted). “Regardless of which option is used, the plaintiff retains the

ultimate burden of producing sufficient evidence from which the jury could reasonably reject
 18 The EEOC complaints were filed subsequent to Plaintiff being informed that her

provisional appointment as deputy chief had ended and subsequent to her election for

medical leave.

18

[the defendant’s] explanation and infer that the defendant[] intentionally discriminated

against [her].” Kroger Co., 319 F.3d at 866 (internal quotation and citation omitted). Plaintiff

has failed to meet that burden here.

There is no genuine issue of material fact regarding pretext. Plaintiff has not presented

evidence showing Defendant’s reason for eliminating the deputy chief positions has no

basis in fact. Likewise, Plaintiff presents no evidence showing that Defendant’s conclusion,

that the department was experiencing financial difficulties and that cuts (including the

elimination of the deputy chief positions) were necessary, did not actually motivate

Defendant’s decision to terminate Plaintiff’s provisional appointment as deputy chief. Even

if Plaintiff had established a prima facie case of discrimination, she has not come forward

with evidence that would allow a reasonable juror to find that the legitimate

non-discriminatory reason Defendant asserted for its challenged actions was a pretext for

discrimination. Accordingly, her claim of gender discrimination fails.

B. Retaliation Claim

Plaintiff also claims that Defendant violated Title VII and Michigan’s ELCRA by

retaliating against her for filing a “formal grievance” or the EEOC complaints.18 Title VII and

the ELCRA also protect employees from retaliation for filing harassment (or other civil

rights) claims. For example, the ELCRA states that an employer may not “[r]etaliate or

discriminate against a person because the person has opposed a violation of this act, or

because the person has made a charge, filed a complaint, testified, assisted, or
19

participated in an investigation, proceeding, or hearing under this act.” Mich. Comp. Laws

§ 37.2701(a). 

To establish a prima facie case of retaliation, Plaintiff must show that (1) she was

engaged in a protected activity; (2) Defendant knew that Plaintiff did so; (3) Defendant

thereafter took an adverse employment action against her; and (4) there was a causal

connection between the protected activity and the adverse employment action. See Morris,

201 F.3d at 792. The same burden-shifting analysis that applies to discrimination claims

also applies to retaliation claims. Williamson, 2007 WL 172533, at *8. If Plaintiff establishes

a prima facie case of retaliation, Defendant must articulate a legitimate, non-discriminatory

reason for the adverse employment action. Morris v. Oldham County Fiscal Court, 201 F.3d

784, 793 (6th Cir. 2000). Because the Plaintiff bears the burden of persuasion throughout,

she must then show that Defendant’s proffered reason for the adverse employment

decision was a pretext for retaliation.

Defendant argues that Plaintiff’s retaliation claim fails for two reasons. First, Defendant

contends that Plaintiff has failed to establish a prima facie case of retaliation by failing to

show a causal connection between her protected activity and the alleged adverse

employment action. Alternatively, Defendant argues that Plaintiff cannot show that

Defendant’s proffered non-retaliatory reason for the adverse employment action was a

pretext for retaliation. This Court agrees, and discusses each in turn. 

1. Prima Facie Case

Plaintiff’s claim of retaliation consists of, inter alia, the following allegations contained

in the complaint:
20

18. Plaintiff Johnson, along with her fellow inspectors, became targeted by

the Flint Police Officers Associations' action to oust them from the Union.

While all Inspectors felt the hostility of the Department, as the Unit’s only

female inspector, Officer Johnson received the brunt of the officers' reprisals.

...

25. Plaintiff Johnson made complaints to her supervisors concerning this

discriminatory treatment yet no investigation or appropriate remedial action

was taken by Defendant. 

26. Plaintiff Johnson was retaliated against by Defendant for making such

complaints by increased hostility from her co-workers. ...

39. Following her complaints of discrimination and harassment, Plaintiff

Johnson became the victim of additional hostility and retaliation. ...

47. In response, Plaintiff Johnson asked Chief Locke [sic] if he was aware of

her discrimination complaint. He acknowledged that he was. ...

54. Chief Lock’s actions are a clear indication of the Defendant's retaliatory

intent. ...

56. Subsequent to the filing of the Charge of Discrimination, Defendant has

continued to retaliate against Plaintiff Johnson.

57. Plaintiff Johnson’s gun, badge, and keys were taken away in a manner

contrary to past practice.

64. Flint’s attorney, Frederick Champnella agreed with Plaintiff Johnson that

she was being retaliated against. He and Diedre Pitts attempted to secure

Plaintiff Johnson an early retirement package so that she could escape the

Department’s retaliatory and hostile environment. ...

73. Plaintiff Johnson was subjected to a hostile work environment, demotion,

and different terms and conditions of her employment by Defendant in

retaliation for her opposition to civil rights violations.

(Compl. ¶¶ 18, 25-26, 39, 47, 54, 56, 64, 73, 85.) Plaintiff’s response to Defendant’s motion

adds:

Again, the Plaintiff has outlined severe and continuous acts that were

enhanced with each promotion she received, and each complaint she made.

(Pl.’s Resp. at 21.)
21

Defendant argues that Plaintiff cannot establish the fourth element of her retaliation

claim: that there was a causal connection between the protected activity and the adverse

employment action. “To establish causation, the plaintiff must show that [her] participation

in activity protected by the [ELCRA] was a ‘significant factor’ in the employer’s adverse

employment action, not just that there was a causal link between the two.” Barrett v.

Kirtland Comm. College, 628 N.W.2d 63, 70 (Mich. Ct. App. 2001) (citing Jacklyn v.

Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921, 929 (6th Cir. 1999); Polk

v. Yellow Freight Sys., Inc., 801 F.2d 190, 199 (6th Cir. 1986)). “In order to show a causal

connection, a plaintiff must produce sufficient evidence from which an inference can be

drawn that the adverse action would not have been taken had the plaintiff not filed a

discrimination action.” Allen v. Michigan Dep’t of Corrections, 165 F.3d 405, 413 (6th Cir.

1999).

Plaintiff has not offered sufficient evidence to show a causal connection between her

protected activity and the elimination of the deputy chief positions besides the temporal

proximity of her “formal grievance” and the notice that her provisional appointment as

deputy chief had ended.

Where an adverse employment action occurs very close in time after an

employer learns of a protected activity, such temporal proximity between the

events is significant enough to constitute evidence of a causal connection for

the purposes of satisfying a prima facie case of retaliation. But where some

time elapses between when the employer learns of a protected activity and

the subsequent adverse employment action, the employee must couple

temporal proximity with other evidence of retaliatory conduct to establish

causality.

Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525 (6th Cir. 2008). On November 10,

2008, Plaintiff first notified Defendant of the alleged discrimination by filing a “formal
 19 In fact, in response to the question: “So, right now what I’m really concerned about

is what you–tangible concrete employment actions that you feel have been taken against

you by the City because you’re a woman,” Plaintiff testified: “As far as losing positions, I

can’t say that there is because I was a woman.” (Johnson Dep., Def.’s Mot., Ex. 10 at 57.)

 20 Plaintiff also claims that she was the victim of additional instances of hostility in

retaliation for the complaints she made. Plaintiff, however, has not offered any evidence

of a causal relationship between any complaint she made and subsequent alleged

22

grievance.” On February 19, 2009, approximately fourteen weeks later, Lock signed a layoff

notification for Plaintiff indicating that her provisional appointment as deputy chief was

ending and that she was entitled to “bump” back into the position of patrol officer. Because

sufficient time elapsed between the time when Defendant learned of an alleged protected

activity and Plaintiff’s notification, temporal proximity alone is insufficient to establish

causation. See, e.g., Woods v. Washtenaw Hills Manor Inc., No. 07-15420, 2009 WL

728537, at *15 (E.D. Mich. Mar. 19, 2009). Further, Lock testified that he was not aware

of Plaintiff’s grievance at the time he made the decision to eliminate the deputy chief

positions and, in making that decision, the fact that Plaintiff was a woman was simply not

a factor in his decision—he made the decision to eliminate the deputy chief positions due

to the department’s “dire” financial position. (Lock Dep., Defs.’ Mot., Ex. 12, at 48.)

Plaintiff has provided no other corroborating evidence to demonstrate causation.19 The

only evidence of causation produced by Plaintiff—the temporal proximity of her internal

complaint and her termination—fails to establish causation. Thus, Plaintiff has not

presented sufficient evidence from which a reasonable juror could conclude that a causal

connection exists between the protected activity and the adverse employment action.

Accordingly, Plaintiff has failed to establish this her prima facie case of retaliation against

Defendant.20
instances of hostility (i.e., blocking elevator door, belching).

Retaliatory harassment can satisfy the adverse employment action required to

establish a valid retaliation claim under Title VII and the ELCRA. See, e.g., Morris, 201 F.3d

at 791; and Meyer v. City of Center Line, 619 N.W.2d 182, 189 (Mich. 2000). Severe or

pervasive harassment is required in order to state a valid claim on these grounds. Morris,

201 F.3d at 792; Meyer, 619 N.W.2d at 189. “A bruised ego, mere inconvenience or an

alteration of job responsibilities is not enough to constitute an adverse employment action.”

Smith v. City of Salem, 378 F.3d 566, 575-76 (6th Cir. 2004) (citing White v. Burlington

Northern & Santa Fe R.R., 364 F.3d 789, 797 (6th Cir. 2004)).

Plaintiff’s claim for retaliatory harassment fails as she has not provided sufficient

evidence that she suffered severe or pervasive levels of harassment. As discussed above,

the rude and distasteful comments and behavior alleged does not rise to the requisite level.

23

2. Defendant Articulated a Legitimate, Non-Discriminatory Reason

Even if Plaintiff had established a prima facie case of retaliation, Defendant argues

that it would nonetheless be entitled to summary judgment. This is so, Defendant argues,

because it has presented evidence supporting a legitimate, non-discriminatory reason for

the adverse employment action and because Plaintiff has not presented evidence showing

that such a reason for the challenged employment action was a pretext for discrimination.

As discussed above, this Court finds that Defendant has presented evidence supporting

the legitimate, non-discriminatory reason for the employment action Plaintiff challenges.

3. Plaintiff Cannot Establish that Reason Proffered is Pretext

Because Defendant satisfied its burden—showing that it had a legitimate, nondiscriminatory reason for Plaintiff’s termination—the burden of production now returns to

Plaintiff. Univ. of Cincinnati, 215 F.3d at 573. Again, and as discussed above, there is no

genuine issue of material fact regarding pretext. Even if Plaintiff had established a prima

facie case of retaliation, she has not come forward with evidence that would allow a

reasonable juror to find that the legitimate non-discriminatory reason Defendant asserted
24

for its challenged actions was a pretext for discrimination. Accordingly, her claim of

retaliation fails.

C. WPA Violation

Plaintiff claims that Defendant violated the Michigan Whistleblowers’ Protection Act

(WPA), Mich. Comp. Laws § 15.361, et seq. The WPA provides, in relevant part:

An employer shall not discharge, threaten, or otherwise discriminate against

an employee regarding the employee's compensation, terms, conditions,

location, or privileges of employment because the employee, or a person

acting on behalf of the employee, reports or is about to report, verbally or in

writing, a violation or a suspected violation of a law or regulation or rule

promulgated pursuant to law of this state, a political subdivision of this state,

or the United States to a public body, unless the employee knows that the

report is false, or because an employee is requested by a public body to

participate in an investigation, hearing, or inquiry held by that public body, or

a court action.

Mich. Comp. Laws § 15.362.

 To state a prima facie case of discrimination or retaliation under the WPA, Plaintiff

must show that: “(1) [she] was engaged in protected activity as defined by the act, (2) [she]

was discharged or discriminated against, and (3) a causal connection exists between the

protected activity and the discharge or adverse employment action.” West v. General

Motors Corp., 665 N.W.2d 468, 471-72 (Mich. 2003). Similar to Title VII and the ELCRA,

a burden shifting analysis applies to claims brought pursuant to the WPA.

It is a burden of proof analysis. Under it, plaintiff has the burden of proving

that he was engaged in protected conduct and that his participation in that

conduct was a motivating factor in the decision to terminate him. The burden

then shifts to the employer to come forward with evidence demonstrating that

plaintiff’s termination was for a legitimate reason. If the employer states a

legitimate reason, the employee may still prevail if he demonstrates that the

reason was mere pretext for his dismissal.

Eckstein v. Kuhn, 408 N.W.2d 131, 134 (Mich. Ct. App. 1987).
25

Defendant argues that Plaintiff’s WPA claim fails for two reasons. First, Defendant

contends that Plaintiff has failed to establish a prima facie case under the WPA by failing

to show the requisite level of causation. Alternatively, Defendant argues that Plaintiff cannot

show that Defendant’s proffered non-retaliatory reason for the adverse employment action

was a pretext. This Court agrees, and discusses each in turn. 

1. Prima Facie Case

Plaintiff claims that she was retaliated against because she was called to testify before

the grand jury on August 27, 2008 when the U.S. attorney was seeking an indictment of

former police chief David Dicks. Plaintiff’s claim under the WPA consists of, inter alia, the

following allegations contained in the complaint:

59. In addition to the aforementioned incidents of gender discrimination and

retaliation, Plaintiff Johnson was retaliated in connection with Grand Jury

testimony she provided on August 27, 2008.

60. Plaintiff testified truthfully with regard to certain Internal Affairs

investigation files.

61. On information and belief, Lieutenant Scott Sutter and others hoped that

her testimony that certain files were missing would accelerate the termination

of the then current Chief David Dicks, hasten the removal of the then Mayor

Donald Williamson, and subject Plaintiff Johnson to possible criminal

charges. 

62. Those goals were thwarted by Plaintiff Johnson’s truthful testimony.

63. As a result, Sutter and other prevailed upon Chief Locke [sic] to take

adverse

employment actions against Plaintiff Johnson.

90. Defendant violated the Whistleblowers’ Protection Act, M.C.L.A. 15.361

et seq. when it discriminated against Plaintiff Johnson as described regarding

the terms, benefits, conditions, and privileges of her employment because

she testified and otherwise participated in an investigation, hearing, or inquiry

held by that public body, or a court action.
26

(Compl. ¶¶ 59-63, 90.) Plaintiff’s response to Defendant’s motion adds:

On August 27, 2008, Ms. Johnson was required to give testimony before a

Grand Jury with regard to certain missing documents from Internal Affairs.

Upon going in to testify she was inside about one hour and forty minutes.

Attorney Champnella accompanied her to the hearing. After the hearing and

up to the time of her leaving on medical leave the shunning and the open

animosity by officers in the Department got worse. There was an increase in

blogs that were critical of her. ...

Here there is not only a temporal relationship between Ms. Johnson’s

testimony and an increase in hostility, there is evidence of the increase in

hostility as well.

(Pl.’s Resp. at 14-15, 22.) Plaintiff also testified in her deposition that:

Q: Do you think that your removal from the deputy chief position was in any

way in retaliation for your testimony before the Grand Jury?

A: I don’t know.

Q: Do you have any facts to support the claim that it was in retaliation for

your–

A: I don’t have facts, so to speak.

Q: So, getting back to the complaint, and we’re talking about what happened

to you in retaliation for your testimony in front of the Grand Jury, you said that

you had heard that you had been called a liar.

A: Uh-huh.

Q: What else happened to you in retaliation for your Grand Jury testimony?

A: Just the same kind of things; the people making comments, you know the

actions of laughing and, you know, turning their heads and—

Q: These are the things, the same things that you attribute to being a

woman?

A: But it was more so. It got even worse, yeah, it did, it got worse. Because

the word around the station was I had lied.

(Johnson Dep., Def.’s Mot., Ex. 10 at 76.) 

Defendant argues that Plaintiff cannot establish the third element of her WPA claim:

that a causal connection exists between the protected activity and the discharge or adverse

employment action. To prevail, Plaintiff must show that her employer took adverse
27

employment action because of Plaintiff’s protected activity, but she has merely shown that

Defendant eliminated the deputy chief positions after the protected activity occurred.

Plaintiff has failed to demonstrate that the adverse employment action was in some manner

influenced by the protected activity. Plaintiff has not offered sufficient evidence to show a

causal connection between her protected activity and the elimination of the deputy chief

position besides the temporal proximity of her complaints and the notice that her provisional

appointment as deputy chief had ended. Although the adverse employment action about

which Plaintiff complains occurred after she filed a “formal grievance”

such a temporal relationship, standing alone, does not demonstrate a causal

connection between the protected activity and any adverse employment

action. Something more than a temporal connection between protected

conduct and an adverse employment action is required to show causation

where discrimination-based retaliation is claimed.

West v. General Motors Corp., 665 N.W.2d 468, 472-73 (Mich. 2003). As discussed above,

sufficient time elapsed between the time when Defendant learned of an alleged protected

activity and Plaintiff’s notification, and temporal proximity alone is insufficient to establish

causation. See, e.g., id. at 472-74.

Plaintiff has provided no other corroborating evidence to demonstrate causation. In

fact, Plaintiff testified that the only retaliation she experienced as a result of her Grand Jury

testimony was her removal from the deputy chief position. 

Q: You’re claiming that you were subjected to harassing behavior–

A: Yes.

Q: –because of your– 

A: Yes.

Q: –Grand Jury testimony?

A: Yes.
28

Q: ... But you don’t have any evidence or facts to support the claim that the

City took any tangible employment action of any kind against you that

affected pay, benefits as a result of your Grand Jury testimony?

A: The only thing I can say is the deputy chief’s position, I was demoted.

Q: But you testified– 

A: And that was afterwards.

Q: But you testified a moment ago that you didn’t have nay facts to connect

those two things together.

A: No. I can just testify that it happened after.

Q: Proximity in time from the testimony. You make the connection between

the proximity in time.

A: Yes.

Q: Anything else?

A: No.

(Johnson Dep., Def.’s Mot., Ex. 10 at 77.) The only evidence of causation produced by

Plaintiff—the temporal proximity of her internal complaint and her termination—fails to

establish causation. And, as discussed above, Lock testified that he was not aware of

Plaintiff’s grievance at the time he made the decision to eliminate the deputy chief positions

and that he made the decision due to the department’s financial position. Further, there is

no evidence that Lock was even aware that Plaintiff testified before the Grand Jury.

Roberson v. Occupational Health Centers of America, Inc., 559 N.W.2d 86, 88 (Mich. Ct.

App. 1996) (holding that a plaintiff must show that the defendant had “objective notice of

a report or threat to report by the whistleblower” to establish causation) (internal quotation

and citation omitted).

Other plaintiffs failed to show a causal connection because the evidence

indicated the employer either terminated plaintiff before finding out about the

protected activity or because the employer knew of the activity but

considered it inconsequential. West, 665 N.W.2d at 473 (finding summary

judgment appropriate because the supervisors did not care about plaintiff's

activity and were not part of the decision to terminate plaintiff); Roberson v.
 21

A case in which a close temporal relationship supported the plaintiff’s claim

is Henry v. Detroit, 234 Mich.App. 405, 594 N.W.2d 107 (1999). But unlike

plaintiff, the plaintiff in Henry also presented evidence that his superior

expressed clear displeasure with the protected activity engaged in by the

plaintiff. In contrast to Henry, plaintiff has not shown any reaction or conduct

on the part of his supervisors that reasonably suggests that they were upset

by the fact that plaintiff reported an assault to the police. Moreover, contrary

to the view of the Court of Appeals, the evidence does not show that

plaintiff’s record was “impeccable” or “unblemished” before the Reeves

incident or that the discipline imposed was seemingly undeserved as it was

in Henry. The fact that a plaintiff engages in a “protected activity” under the

Whistleblowers’ Protection Act does not immunize him from an otherwise

legitimate, or unrelated, adverse job action.

West, 665 N.W.2d at 473.

29

Occupational Health Ctrs. of Am., Inc., 220 Mich.App. 322, 559 N.W.2d 86,

88 (1996) (finding summary judgment appropriate because the supervisor

terminated plaintiff before finding out about the activity). 

Thompson v. Aramark School Support Services, Inc., 490 F.3d 506, 510 (6th Cir. 2007).21

Plaintiff has not presented sufficient evidence from which a reasonable juror could conclude

that a causal connection exists between the protected activity and the adverse employment

action. Accordingly, Plaintiff has failed to establish this her prima facie case of retaliation

against Defendant.

2. Defendant Articulated a Legitimate, Non-Discriminatory Reason

Even if Plaintiff had established a prima facie case of retaliation under the WPA,

Defendant argues that it would nonetheless be entitled to summary judgment. This is so,

Defendant argues, because it has presented evidence supporting a legitimate, nondiscriminatory reason for the adverse employment action and because Plaintiff has not

presented evidence showing that such a reason for the challenged employment action was
30

a pretext for discrimination. Again, and as discussed above, this Court finds that Defendant

has presented evidence supporting the legitimate, non-discriminatory reason given for the

employment action Plaintiff challenges.

3. Plaintiff Cannot Establish that Reason Proffered is Pretext

Because Defendant satisfied its burden—showing that it had a legitimate, nondiscriminatory reason for Plaintiff’s termination—the burden of production now returns to

Plaintiff. Again, and as discussed above, there is no genuine issue of material fact

regarding pretext. Even if Plaintiff had established a prima facie case of retaliation under

the WPA, she has not come forward with evidence that would allow a reasonable juror to

find that the legitimate non-discriminatory reason Defendant asserted for its challenged

actions was a pretext for discrimination. Accordingly, her WPA claim also fails.

IV. Conclusion

For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: May 13, 2010

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on May 13, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager