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Rymal v. Baergen6/8/2004
ce to create a factual issue on whether plaintiff's complaint to
Fraser had a causal connection to adverse employment actions, such that the retaliation claim against MTD and Baergen should proceed to trial. See DeFlaviis, supra at 436.
With respect to Baergen, the close temporal proximity between the January-February 2000 complaint to Fraser and the verbal abuse, berating conduct, and necessary adverse or negative employment decisions, whether related to MTD or Clark, along with the cryptic October 1999 letter that could be interpreted as threatening retribution, provided circumstantial evidence of a significant causal connection between the complaint and adverse employment actions, sufficient to show that any reasons for the employment decisions may have been pretextual and sufficient to survive summary disposition.
With respect to MTD, while the adverse employment actions are somewhat more attenuated and the evidence not as strong as the correlation between the Fraser complaint and the adverse employment actions affecting the Clark employment, there was sufficient evidence to survive summary disposition, where, considering the totality of the circumstances already explored at length in this opinion, a connection could be made between the complaint and the reduction in plaintiff's MTD duties and salary.
We reject defendants' argument that plaintiff did not engage in protected activity because she did not specify the sexual nature of Baergen's misconduct when speaking to Fraser. MCL 37.2701(a) prohibits retaliation where a party lodges a charge or a complaint about a violation of the CRA. While we acknowledge that plaintiff's deposition testimony did not specify sexual misconduct, MCL 37.2103 and MCL 37.2202 prohibit sexual harassment and discriminatory practices, and plaintiff testified that she expressly communicated to Fraser, an attorney, that she was being harassed and discriminated against by Baergen. In McLemore, supra at 396, this Court, addressing a similar issue, stated:
In Booker v Brown & Williamson Tobacco Co, Inc, 879 F2d 1304, 13121314 (CA 6, 1989), the federal court of appeals decided that the Civil Rights Act did not protect from retaliation an employee who had merely expressed concern to his employer about possible discrimination. We strongly disagree with this interpretation of the act. Regardless of the vagueness of the charge or the lack of formal invocation of the protection of the act, if an employer's decision to terminate or otherwise adversely effect an employee is a result of that employee raising the spectre of a discrimination complaint, retaliation prohibited by the act occurs. We will not interpret the act to allow employers to peremptorily retaliate against employees with impunity.
Here, regardless of plaintiff's failure to formally invoke protection under the CRA while speaking with Fraser, her claims of demeaning conduct and communication, harassment, and discrimination by a male boss, especially when made to an attorney, minimally created a factual issue whether plaintiff raised the specter of a discrimination complaint and was thus engaged in protected activity.
DOCKET NO. 243795
A. Standard of Review
The determination of the existence of a conflict of interest is a fact question that is reviewed under the clearly erroneous standard of MCR 2.613(C). Buchanan v City Council of Flint, 231 Mich App 536, 547; 586 NW2d 573 (1998); People v Doyle, 159 Mich App 632, 641; 406 NW2d 893 (1987), mod on other grounds ( On Rehearing ), 161 Mich App 743; 411 NW2d 730 (1987). A trial court's findings of fact are clearly erroneous only where we are left with a definite and
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