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Kosmal v. SBC Ameritech Michigan10/6/2005
UNPUBLISHED
Before: Saad, P.J., and Jansen and Markey, JJ.
Plaintiff appeals from the trial court's order that granted summary disposition in favor of defendant in this retaliatory discharge action. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
I. Facts and Procedural History
Plaintiff began working for defendant as an operator on March 24, 1980. On October 20, 1999 plaintiff suffered a herniated disc in her back while adjusting her workstation. Plaintiff filed a workers' compensation claim related to that injury in December 1999.
Due to the injury, plaintiff was unable to work from February to November 2000. Upon her return, she worked part-time for two weeks and then returned to full-time status, but continued to work part-time hours as a result of taking personal time, vacation time, and e-time. Plaintiff was subject to disciplinary action in May 2001 for attendance issues, but all such discipline was rescinded at the end of May following an investigation.
Also at the end of May 2001, defendant offered plaintiff the option to accept a permanent part-time position of 25 hours per week, plus e-time. Plaintiff did not accept that offer, and instead kept her full-time status. As a result of her full-time status and inability to work full-time hours, disciplinary action was taken against plaintiff for not abiding by defendant's attendance policy.
Plaintiff received verbal and written notices as well as two different suspensions between July and September 2001. In October 2001, plaintiff was suspended pending termination. Following a Union-Management Review Board meeting, defendant terminated plaintiff's employment for unsatisfactory attendance effective November 16, 2001.
Plaintiff filed her complaint in December 2002, wherein she alleged that her termination was retaliation for exercising her rights under Michigan's Workers' Disability Compensation Act ("WDCA") workers' compensation provisions. The trial court granted summary disposition to defendant stating that plaintiff was not precluded from pursuing her workers' compensation claim, and that plaintiff was not entitled to special work above and beyond what her employer provided and what her employer offered, which she rejected.
II. Standard of Review
We review a trial court's decision to grant summary disposition under MCR 2.116(C)(10) de novo. DeFlaviis v Lord & Taylor, Inc., 223 Mich App 432, 435; 566 NW2d 661 (1997). Summary disposition is proper under MCR 2.116(C)(10) when "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10). In our review, we "examine the entire record, in a light most favorable to the nonmoving party, to determine whether a record could be developed that would leave open an issue on which reasonable minds could differ." DeFlaviis, supra, 223 Mich App 435.
III. Analysis
The relevant statutory provision regarding retaliatory discharge, MCL 418.301(11), provides:
A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.
To establish a claim of retaliatory discharge, a plaintiff must prove: "(1) she was engaged in a protected activity, (2) the defendant knew of the protected activity, (3) the defendant acted adversely to the plaintiff, and (4) the pro
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