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STATE OF MICHIGAN
COURT OF APPEALS


KATHLEEN M. BURKE, Plaintiff-Appellant/Cross-Appellee, v DETROIT PUBLIC SCHOOLS, Defendant-Appellant, and RONALD GENE ALEXANDER, Defendant-Appellee/CrossAppellant.

UNPUBLISHED May 2, 2006

No. 262983 Wayne Circuit Court LC No. 03-329066-CD

Before: Markey, P.J., and Schuette and Borrello, JJ. PER CURIAM. Plaintiff appeals by leave granted an order granting partial summary disposition in favor of defendants. Defendant Ronald Gene Alexander cross appeals, challenging the trial court's denial of his motion for summary disposition of the single remaining claim. We affirm in part, reverse in part, and remand for further proceedings. I. FACTS This action arises out of plaintiff's employment by defendant Detroit Public Schools (DPS) as a kindergarten teacher at Spain Elementary School, where she began teaching in 1994. Defendant Ronald Gene Alexander (Alexander) was appointed as principal of Spain Elementary in 1997. Plaintiff claims that beginning in 1999, and escalating during the 2000-2001 school year, Alexander began to discriminate against her and harass her in an attempt to force her out of Spain Elementary because she is a Caucasian woman. She claims that, among other acts, Alexander regularly "berate[d]" her concerning insignificant issues, "arbitrarily" revoked his previous grant of permission for her to use her class as a control group for her master's thesis, and repeatedly asked plaintiff to transfer to another school "because he had other people who wanted her job." Further, he refered to her as "white c---" and "white b----." Alexander also told another employee that he was motivated by a desire to rid the school of white teachers, specifically including plaintiff. He said that "[if] I had my way it [sic] wouldn't be any [white -1-


teachers] in here" but that he would "keep some" because he "ha[d] to." Moreover, his stated plan to remove the teachers included reassigning them to the seventh or eighth grade where the "kids will eat them alive." In January and February of 2001, plaintiff complained to her union and DPS regarding Alexander's behavior. She claimed that DPS did not adequately address the complaint. She further alleged that, after she complained, Alexander retaliated against in the following ways: revealing to staff a confidential letter from the DPS "Office of Human Rights" concerning plaintiff's complaint, reassigning plaintiff to teach seventh or eighth grade science in the fall of 2001, and by recommending that plaintiff transfer to another school if she was concerned about the reassignment. During the 2000-2001 school year, plaintiff began experiencing anxiety, depression, and physical numbness on the right side of her body. Her doctor placed her on "stress leave" for part of a week in January 2001. Throughout the summer of 2001, she experienced emotional difficulties, "dreading a return to her untenable work environment," and her doctor warned her that she would be placed on disability leave if her health continued to be jeopardized because of job stressors. When plaintiff arrived at work on August 27, 2001, she found that the locks had been cut from the cabinets in her kindergarten classroom and that her supplies had been "thrown" into the hallway. Plaintiff sat with the eighth grade teachers in an unfamiliar meeting, but "broke down" at the end of the day because of the mess in her classroom, Alexander's abuse, "the hopelessness of her teaching situation," and the lack of assistance from DPS. The following day she was placed under the care of her doctors who placed her on medical "stress leave." Plaintiff filed suit on August 29, 2003, against DPS for the acts of Alexander as its agent. She alleged that Alexander engaged in employment discrimination and subjected plaintiff to a hostile working environment because of her race and sex, in violation of the Elliot-Larsen Civil Rights Act ("CRA"), MCL 37.2101 et sep. As a result, plaintiff claims she suffered from emotional and physical problems, loss of reputation, loss of earnings and benefits, and impairment to her earning capacity. She further alleged that both defendants were liable for intentional infliction of emotional distress (IIED) as a result of Alexander's behavior. Finally, Plaintiff claimed tortuous interference with a business relationship against Alexander, alleging that he intentionally interfered with plaintiff's employment contract with DPS. Defendants DPS and Alexander moved for summary disposition on plaintiff's claims. The trial court granted defendants' motion in part. The court dismissed the CRA claims of the hostile work environment and retaliation because plaintiff could not demonstrate she suffered an adverse employment action.1 The court also dismissed the intentional interference claim against Alexander but allowed the plaintiff to proceed with her IIED claim against him. However, the court dismissed the IIED claim as it applied to DPS.

1

Plaintiff was still employed by DPS and had been offered positions at other schools.

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II. STANDARD OF REVIEW We review the trial court's disposition of defendants' motion for summary disposition de novo. Graves v American Acceptance Mortg Corp (On Rehearing), 469 Mich 608, 613; 677 NW2d 829 (2004). Plaintiff's CRA claims were dismissed pursuant to MCR 2.116(C)(10). A summary disposition motion pursuant to subrule (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. Bergen v Baker, 264 Mich App 376, 381; 691 NW2d 770 (2004). The moving party has the initial burden to support its claim for summary disposition by submitting affidavits, depositions, admissions, or other documentary evidence which negates an essential element of the nonmoving party's claim or which demonstrates that the nonmoving party's evidence is insufficient to establish an essential element of his claim. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The burden then shifts to the nonmoving party to demonstrate that there is a genuinely disputed issue of material fact; when the burden of proof at trial would rest on the nonmoving party, he may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. Quinto, supra at 362; Bergen, supra at 381. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the nonmoving party, leaves open an issue upon which reasonable minds could differ. MCR 2.116(G)(5); West v GMC, 469 Mich 177, 183; 665 NW2d 468 (2003); Bergen, supra at 381. III. ELLIOTT-LARSEN CIVIL RIGHTS ACT A. Disparate Treatment The CRA prohibits employers from discriminating "against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status." MCL 37.2202(1)(a); Wilcoxon v Minnesota Min and Mfg Co, 235 Mich App 347, 358; 597 NW2d 250 (1999). Plaintiff's claim of discriminatory treatment is commonly referred to as a "disparate treatment" claim. Wilcoxon, supra at 360. She correctly notes that different standards of proof are applied to determine whether a plaintiff has presented a prima facie disparate treatment claim based on the type of evidence of discrimination she provides. Here, plaintiff provides the testimony of Lula Denson, a former Head Secretary at Spain, regarding comments Alexander made to Denson about his plans to rid the school of several white teachers including plaintiff. We agree that Denson's testimony constitutes "ordinary evidence that, if believed, would require the conclusion that discrimination was at least a factor in the adverse employment action." Id. Accordingly, plaintiff has provided direct evidence of a discriminatory motive, rather than merely alleging "circumstances giving rise to an inference of discrimination." Id. at 359. Therefore, her prima facie case is not evaluated using the burden-shifting analysis enunciated in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), which explicitly requires a plaintiff to prove that the defendant's proffered legitimate motivations are merely pretextual. DeBrow v Century 21 Great Lakes, Inc, 463 Mich 534, 539; 620 NW2d 836 (2001); Wilcoxon, supra at 359-360. Nor is she required to prove that she was treated differently from similarly situated employees, as is argued by DPS; rather, proof of such treatment is generally used to create an inference of discrimination in pretextual cases. Wilcoxon, supra at 361. -3-


Instead, plaintiff's claim is a "mixed motive" or "intentional discrimination" disparate treatment claim. Wilcoxon, supra at 360. The elements of a mixed motive claim are: (1) the plaintiff's membership in a protected class, (2) an adverse employment action, (3) the defendant was predisposed to discriminating against members of the plaintiff's protected class, and (4) the defendant actually acted on that predisposition in visiting the adverse employment action on the plaintiff. [Id. at 360-361.] Then, once the plaintiff has met the initial burden of proving that the illegal conduct . . . was more likely than not a "substantial" or "motivating" factor in the defendant's decision, the defendant has the opportunity to show by a preponderance of the evidence that it would have reached the same decision without consideration of the protected characteristic. [Harrison v Olde Financial Corp, 225 Mich App 601, 611; 572 Mich 679 (1997).] Most significantly, when a plaintiff has provided direct evidence of discrimination, it is generally the job of the factfinder to weigh the parties' evidence concerning the defendant's motivation, the meaning of apparently discriminatory remarks, or the credibility of evidence. DeBrow, supra at 539-540; Harrison, supra at 613. Plaintiff presented direct evidence that Alexander was motivated by a desire to rid the school of white teachers, specifically including plaintiff. He told Denson that "[if] I had my way it [sic] wouldn't be any [white teachers] in here" but that he would "keep some" because he "ha[d] to." Moreover, his stated plan to remove the teachers included reassigning them to the seventh or eighth grade where the "kids will eat them alive." A former preschool teacher, whom Alexander identified as one of the white teachers he intended to remove, confirmed that such a reassignment caused her to leave the school. Accordingly, plaintiff established direct evidence both that Alexander was predisposed to discriminate and that his predisposition was a motivating factor in his treatment of plaintiff. Because this evidence must be viewed in a light most favorable to plaintiff, the fact that defendants have also offered legitimate reasons for the employment actions taken by Alexander is not dispositive. Rather, in the face of plaintiff's direct evidence of his discriminatory intent, it is the jury's role to determine whether Alexander was actually motivated by permissible factors. A secondary question remains regarding whether plaintiff has sufficiently supported her claim that she was discriminated against based on both her sex and her race. Either characteristic is sufficient to show that plaintiff was a member of a protected class. Plaintiff argues that Alexander's sex-based motivations are similarly implicated by his use of gendered phrases such as "white c---" and "white b----." However, Alexander's comments regarding his preferences and intentions to remove teachers explicitly target white teachers, regardless of their sex. Accordingly, we conclude that the gendered comments do not present the kind of direct evidence of discriminatory motive that is revealed by his race-based comments. Rather, the gendered comments, particularly when combined with Alexander's specific targeting of three women and no men, may be evidence of circumstances which create an inference that he was also motivated by sex-based animus. However, we acknowledge that this sort of circumstantial evidence would -4-


require a separate analysis of plaintiff's prima facie claim using the burden-shifting approach for cases alleging pretext. Wilcoxon, supra at 359. Plaintiff has not addressed whether she could prevail under this higher burden, rather, she merely claims that she has presented sufficient direct evidence to avoid the burden-shifting analysis. Accordingly, plaintiff has not presented for appeal the secondary question whether her sex-based claims may independently survive summary disposition under the burden-shifting approach required where the evidence of discrimination is circumstantial. The parties primarily dispute whether plaintiff has suffered an adverse employment action. [I]n order for an employment action to be adverse for purposes of a discrimination action, (1) the action must be materially adverse in that it is more than "mere inconvenience or an alteration of job responsibilities," and (2) there must be some objective basis for demonstrating that the change is adverse because "a plaintiff's `subjective impressions as to the desirability of one position over another' [are] not controlling." [Id. at 364 (brackets in original; internal citations omitted); see also Pe

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