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Rymal v. Baergen6/8/2004
notice that a retaliation claim was being asserted under the CRA. MCR 2.111(B)(1). The alleged protected activity was the act of lodging a complaint or charge with Fraser about Baergen's discriminatory actions, MCL 37.2701(a). See Jager, supra at 475 (complaint to higher management suffices). The complaint implicitly alleges knowledge by Baergen of the claims and charges made to Fraser by plaintiff, and it specifically alleges adverse employment actions arising from or being caused by the protected activity engaged in by plaintiff.
We hold that plaintiff's CRA retaliation claim against Baergen should not have been dismissed on the basis that Baergen was not her employer. And we further hold that plaintiff sufficiently plead a cause of action under the CRA's antiretaliation provision. We next address whether there were genuine issues of material fact sufficient to survive summary disposition with respect to MTD and the sexual harassment and retaliation claims and as to Baergen solely on the retaliation claim.
C. Sexual Harassment and Retaliation Claims and Summary Disposition - MCR 2.116(C)(10)
The trial court granted summary disposition on all claims predicated on the finding that plaintiff failed to submit sufficient documentary evidence to show a significant causal connection between the protected activity and the alleged retaliatory acts and adverse employment actions and to show a hostile work environment. The trial court focused somewhat on the failure to show a correlation between the harassment/retaliation and plaintiff's employment with MTD, as opposed to her employment with Clark. We find, on de novo review, that the documentary evidence created a genuine issue of material fact.
"To establish causation, the plaintiff must show that his participation in activity protected by the CRA 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 Community College, 245 Mich App 306, 315; 628 NW2d 63 (2001). A causal connection can be established through circumstantial evidence, such as close temporal proximity between the protected activity and adverse actions, as long as the evidence would enable a reasonable factfinder to infer that an action had a discriminatory or retaliatory basis. Town v Michigan Bell Telephone Co, 455 Mich 688, 697; 568 NW2d 64 (1997); Taylor v Modern Engineering, Inc, 252 Mich App 655, 661; 653 NW2d 625 (2002); McLemore v Detroit Receiving Hosp & Univ Medical Ctr, 196 Mich App 391, 396-397; 493 NW2d 441 (1992).
In the context of a (C)(10) motion, we begin by reviewing the documentary evidence presented to the trial court. Deposition testimony shows that plaintiff and Baergen, twenty years plaintiff's senior, engaged in an extramarital sexual affair in the 1980s during their employment with Clark. The affair lasted approximately a year. Although the affair ended, plaintiff and Baergen remained on good terms, and in 1989 they worked together to launch MTD, a company that distributed films to theaters, after Beargen was approached with the idea by Bob
Kleinhans. On October 14, 1999, plaintiff went out to dinner with Baergen at a restaurant after Baergen sent a note to plaintiff asking her out as "old friends." Baergen indicated that they talked about a number of subjects including his concerns about plaintiff's substantial weight loss, the deterioration of her work habits, her divorce, her relationships, and plaintiff's life in general, work and personal. Plaintiff testified in her deposition that, at the dinner, Baergen sought to rekindle the prior relationship. She rejected his request to resume the relationship. Plaintiff te
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