Agenique Smiley, BridgeTower Media Newswires
Proximate cause requires a direct relationship between the adverse employment action and the alleged discrimination. Liability for discrimination can be imputed on the decision-maker if the decision to impose the adverse employment action was based on reliance on discriminatorily motivated input from a subordinate.
Fact and procedural background
Leon Burns has worked as a Saginaw police officer since 1999. In December 2008, Burns and a neighbor, Mr. Ewald, quarreled while Burns was off-duty and operating a snowplow. Ewald claimed that Burns pushed snow onto his property and then struck him with the plow. Burns denied any assault and insisted that Ewald had used racial epithets. Ewald filed a formal complaint.
The Saginaw Police Department ordered Sergeant Anjanette Tuer to conduct an internal affairs investigation of the incident. On March 3, 2009, a jury found that Saginaw had discriminated against a different Saginaw police officer and awarded the officer a substantial sum. Burns asserts that shortly thereafter, Sergeant Tuer called him and requested that he “make a comment that she was not a racist.” When Burns refused, Tuer “went into this tirade about how she couldn’t f***ing stand f***ing black people and that my black a** would live to remember this day.”
In February 2010, Chief Cliff recommended Burns’ termination from the force. City Manager Early approved this recommendation. That decision was ultimately reversed by the Civil Service Commission on the grounds that it was imposed too late.
When Burns returned to work he was assigned to a different position and his application for a promotion was denied.
In August 2011, Burns filed a federal court action raising federal and state-law discrimination and retaliation claims. Saginaw moved for summary judgment. In the district court’s estimation, Burns’ remaining evidence failed to establish the fourth element of a prima facie case under McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), that similarly situated employees were treated more favorably than he had been.
Burns filed his complaint in this case in 2011.The circuit court rejected his attempt to establish his discrimination case with direct evidence, finding that neither of the racially derogatory statements on which Burns relied was “made by the decision-maker, City Manager Darnell Early,” and neither had accompanied an adverse employment action.
“Most importantly,” the circuit court found, “both of these statements upon which Burns relies are inadmissible hearsay.” The circuit court denied Burns’ motion for reconsideration and he now appeals.
Analysis
“The ultimate question in an employment discrimination action is whether the plaintiff was the victim of intentional discrimination.” Hecht v Nat’l Heritage Academies, Inc, __ Mich __; __ NW2d __ (Docket No. 150616, decided July 26, 2016), slip op at 17. Generally, a plaintiff may support a discrimination claim with direct and circumstantial evidence.
Discrimination as the ‘proximate cause’
Burns posits that two strands of direct evidence preclude summary disposition in Saginaw’s favor: (1) Tuer’s comment that she “couldn’t f***ing stand f***ing black people” and that Burns “would live to remember this day,” and (2) Chief Cliff’s statement to another officer, outside Burns’ presence, that “any (n-word) that stood up to him would live to regret it until the day Chief Cliff fired him.” The latter statement is inadmissible hearsay, so we will not consider it.
Even assuming that Tuer’s statement constitutes direct evidence of discrimination, Burns cannot establish that racial discrimination proximately caused the adverse employment actions he identifies. Tuer did not make the decision to fire Burns or to deny him a promotion, and Burns has presented no evidence from which a factfinder could reasonably conclude that Tuer’s racial animus motivated Cliff’s decisions in those regards.
A decision-maker’s reliance on racially motivated input from a subordinate employee may render the employer liable for the subordinate’s racism. Under this model, a plaintiff seeks “to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.” Staub v Proctor Hosp, 562 US 411, 415; 131 S Ct 1186; 179 L Ed 2d 144 (2011). Based on tort and agency law principles, Id. at 417-419, Staub accepted the existence of such liability.
The Court held, “When a decision to fire is made with no unlawful animus on the part of the firing agent, but partly on the basis of a report prompted by discrimination, discrimination might perhaps be called a ‘factor’ or a ‘causal factor’ in the decision.” Id. at 418- 419.
The “partly” aspect of the Supreme Court’s holding turns on evidence of proximate cause. Proximate cause requires a direct relationship between the injury asserted (here, the adverse employment actions) and the conduct alleged (Tuer’s statement). The Supreme Court explained: Animus and responsibility for the adverse action can both be attributed to the earlier agent (here, Staub’s supervisors) if the adverse action is the intended consequence of that agent’s discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable . . . . And it is axiomatic under tort law that the exercise of judgment by the decision-maker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.
Conclusion
We have assumed that Tuer’s racial epithet combined with her threat that “you will remember this day” suffices to directly establish her animus. But Burns has offered no proof that Tuer contributed in a direct manner to Cliff’s decisions regarding Burns’ employment.
Given this evidentiary vacuum, we cannot conclude that Burns has established a legitimate factual dispute regarding whether Tuer’s racial animus was a motivating factor in Cliff’s employment actions. Absent this link, Burns’ race discrimination case fails.
We affirm.
Burns v. City of Saginaw; MiLW No. 08-93179, 6 pages; Michigan Court of Appeals unpublished per curiam; Stephens, J., Servitto, J., Gleicher, J.; On appeal from the Saginaw Circuit Court; Julie Gafkay for appellant; John Clark for appellee.
