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Larson v. Michigan Dep't of Corrections9/15/2005
UNPUBLISHED
Before: Murray, P.J., and Owens and Schuette, JJ.
Plaintiff appeals as of right from an order granting defendant's motion for summary disposition of plaintiff's claims for unlawful retaliation and age discrimination under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. The trial court granted summary disposition under MCR 2.116(C)(10), concluding that there was no genuine issue of material fact that plaintiff had not been engaged in protected activity under the CRA, or that plaintiff was discriminated against because of his age. We affirm.
A motion under MCR 2.116(C)(10) tests the factual support for a claim. Lewis v LeGrow, 258 Mich App 175, 192; 670 NW2d 675 (2003). The court must consider the available pleadings, affidavits, depositions, and other documentary evidence submitted by the parties in a light most favorable to the nonmoving party to determine if there is a genuine issue of material fact, or whether the moving party is entitled to judgment as a matter of law. Michigan Ed Employees Mut Ins Co v Turow, 242 Mich App 112, 114; 617 NW2d 725 (2000); Unisys Corp v Comm'r of Ins, 236 Mich App 686, 689; 601 NW2d 155 (1999).
The CRA prohibits an employer from retaliating against an employee for pursing rights protected under the CRA. Barrett v Kirtland Community College, 245 Mich App 306, 312; 628 NW2d 63 (2001). A prima facie case of retaliation can be established if a plaintiff proves (1) that he was engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. Peña v Ingham Co Rd Comm'n, 255 Mich App 299, 310-311; 660 NW2d 351 (2003). A person is engaged in "protected activity" if the person has opposed a violation of the CRA or made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under that act. Barrett, supra at 318. While an employee need not specifically cite to the CRA, he must do more than generally assert unfair treatment. Id. at 318-319. The employee must clearly convey to the objective employer that the employee is raising the specter of a claim of unlawful discrimination pursuant to the CRA. Id. at 319.
In this case, although plaintiff maintains that he was retaliated against because he filed a grievance on behalf of another employee, the submitted evidence showed that the grievance did not relate to conduct protected by the CRA. Indeed, the employee on whose behalf the grievance was filed testified that she did not complain to plaintiff that she was sexually harassed or discriminated against, and did not view the grievance as relating to any complaints of sexual harassment or discrimination of any type. The trial court properly observed that while there may be other statutes prohibiting retaliation for engaging in union activity, the evidence failed to establish a genuine issue of material fact that plaintiff was engaged in activity protected by the CRA when he filed the grievance. We agree that an objective employer could not conclude that plaintiff was raising the specter of a claim pursuant to the CRA when he filed the grievance and, therefore, affirm the trial court's dismissal of plaintiff's claim for unlawful retaliation under the CRA.
The trial court also properly dismissed plaintiff's age discrimination claim. Intentional discrimination can be proven by either direct or circumstantial evidence. DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 539-540; 620 NW2d 836 (2001); Bachman v Swan Harbour Associates, 252 Mich App 40
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