Not Very Discriminating?: Court of Appeals Of Michigan Erroneously Affirms Summary Judgment Order In Employment Discrimination/Retaliation Appeal

The recent opinion of the Court of Appeals of Michigan in Syrowatka v. County of Washtenaw, 2009 WL 529213 (Mich.App. 2009), affirmed a trial court order granting the defendant’s motion for summary judgment dismissing the plaintiff’s claims for employment discrimination and retaliation under the Michigan Civil Rights Act.  It is my contention that the opinion was horribly misguided.

Unfortunately, the  Syrowatka opinion is short on facts, but I think that we can glean from it that the plaintiff, Lesia Syrowatka, worked as a business analyst and then as a records supervisor for the Washtenaw County Sheriff’s Office  before her employment was terminated in 2003 as part of a budget reduction plan.  Syrowatka claimed, however, that her firing was based upon her gender and complaints that she raised about unequal pay for women. As support for these claims, she alleged that  Undersheriff Herbert Mahony made “various statements” expressing gender discrimination.  For instance, Syrowatka

testified that she met with Mahony in the fall of 2001 to ask him about parity for the women who worked in the records office and to inquire about why she was brought in at a lower pay step than the commanders. [Syrowatka] testified that Mahony responded by telling her that women will always be paid less than men. [Syrowatka] admitted, however, that other women in the records office were making more than some of the women and that there were also men who were making more money. [Syrowatka] conceded that she wanted everyone to earn the same pay and that the problem with pay disparity did not exclusively involve pay differences between men and women, but also differences between what women in the same department earned. Nonetheless, [Syrowatka] believed that there was a pay disparity that was partially gender-based. She also testified that she submitted something in writing to defendant related to the pay disparity.                

Syrowatka also “testified that Mahony referred to her as an ’emotional female,'” although the opinion does not indicate in what context(s) he made that statement.    

In affirming the portion of the trial court’s order granting summary judgment to the defendant on Syrowatka’s employment discrimination claim, the Court of Appeals of Michigan found that Syrowatka sought to prove that claim both by  direct evidence of discriminatory intent and by indirect or circumstantial evidence.  In addressing Syrowatka’s “direct evidence” claim, the court noted that Michigan courts take into account four factors in determining whether a plaintiff has presented sufficient direct evidence of discrimination to preclude the entry of summary judgment:

(1) whether the remarks were made by a decisionmaker or an agent uninvolved in making the challenged employment decision, (2) whether the disputed remarks were isolated or involved a pattern of biased comments, (3) whether the disputed remarks were made close in time or remote from the adverse employment action, and (4) whether the disputed comments were ambiguous or clearly indicative of discriminatory bias.

The court then applied (some of) these factors to Syrowatka’s evidence and concluded:

We agree with [Syrowatka] that the trial court erred in determining that Mahony’s statements were not relevant because he was not involved in the decision to terminate [Syrowatka]’s employment. Although the final decision was subject to Sheriff Daniel Minzy’s approval, the evidence showed that Mahony had a role in identifying the positions to be eliminated, including [Syrowatka]’s position. Nonetheless, we conclude that the nature and timing of Mahony’s statements were inadequate to demonstrate a genuine issue of material fact regarding whether unlawful discrimination was a motivating factor in the decision to eliminate [Syrowatka]’s position. Although the statements can be characterized as sexist, they did not provide direct proof that the employment decision was gender-based. For example, there was no evidence that Mahony suggested that [Syrowatka] should be fired for being emotional. Additionally, there was insufficient evidence of a close temporal proximity to the employment decision such that the comments established a discriminatory animus that was causally related to the decision to discharge [Syrowatka]. Therefore, [Syrowatka] lacked sufficient direct evidence of gender discrimination to support her claim.

Okay, so factor one weighed in favor of Syrowatka because Mahony was involved in the decision to terminate her.  Factor three weighed against Syrowatka because Mahony’s remarks (which were apparently made at least  seven to ten months before her firing) were not close in time to her firing. The court’s treatment of these two factors makes sense.

But the court lost me with factor four.  According to the court, “[a]lthough the statements can be characterized as sexist, they did not provide direct proof that the employment decision was gender-based.”  This conclusion was clearly erroneous.  In addressing the fourth factor, the court was supposed to consider “whether the disputed comments were ambiguous or clearly indicative of  discriminatory bias.”  By finding that Mahony’s “statements can be characterized as sexist,” the court answered this question in the affirmative, and I believe that it did so correctly.  

To wit, in Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D. Fla. 1991), the court received the testimony of  Dr. Susan Fiske, an expert witness on sexual stereotyping, who indicated that stereotyping can lead to “selective interpretation,” such as when  an employer “respond[s] to a complaint by a female employee by stereotyping her as ‘an overly emotional  woman,’ and thereafter ignore[s] her complaints as exaggerated or insignificant.” And I think that its fairly obvious that the statement that “women will always be paid less than men” is “clearly indicative of  discriminatory bias.”

So, how did the court conclude that Syrowatka somehow did not satisfy the fourth factor because Mahoney’s comments “did not provide direct proof that the employment decision was  gender-based”?  The fourth factor does not list such a requirement.  Why not? Well, such a finding — that the plaintiff has direct proof that the employment decision was gender based — would lead to the plaintiff winning at trial.  But the four factor test merely looks at whether the plaintiff can survive a motion for summary judgment (with all favorable inferences being given to her as the non-moving party), not whether she would win at trial.  Thus, under a proper reading of the fourth fourth factor, Syrowatka clearly satisfied it.  

And while the court did not mention it, Syrowatka ostensibly satisfied the second factor as well.  As I indicated above,  the  Syrowatka  opinion is short on facts, but I noted two “disputed remarks” above, and the opinion does mention that Syrowatka alleged “various statements” by Mahony, meaning that it certainly appears that there was “a pattern of biased comments.”  Consequently, I would argue that these four factors, on the whole, clearly weighed against summary judgment, and the Court of Appeals of Michigan should have reversed the trial court’s order.

As noted above,  Syrowatka also sought to prove her employment discrimination claim by  circumstantial evidence, but I don’t think that the court’s opinion contains enough facts for me to challenge its affimance of the trial court’s order on this issue (you can see the court’s analysis in its opinion).

There is enough in the opinion, however, for me to say that the court’s affirmance of the trial court’s dismissal of Syrowatka’s retaliation claim was disastrous.  After the language of the first block quote in this post, the court concluded:

The evidence reveals that there was conflicting testimony concerning the nature of [Syrowatka]’s conversation with Mahony and whether it involved a complaint about pay disparity in the department generally, or whether [Syrowatka] was claiming that unequal pay amongst women compared to their male counterparts amounted to unlawful discrimination. However, even assuming that there was a genuine issue of material fact with respect to that issue, we agree that summary disposition was proper because there was no causal connection between [Syrowatka]’s pay disparity complaint and her eventual discharge many months later.  

What?  Did the court want Syrowatka to get on a table with a “Gender Discrimination” sign, Norma Rae-style?  It seems clear to me that Syrowatka went to Mahony and initially alleged gender discrimination in the form of unequal pay.  And it seems equally clear to me that this is how Mahony took her allegation based upon his response  “that women will always be paid less than men.” Sure, part of Syrowatka’s response might have been that there was also some unequal pay among women (although she also repeated an allegation about unequal pay across genders), but this doesn’t change or remove the initial thrust of her allegations.  I am dumbfounded over how the Court of Appeals of Michigan could have found otherwise.

-Colin Miller