964 N.W.2d 88
Mich. Ct. App.2020Background
- Ellen White sued the Michigan Department of Transportation alleging race- and age-based discrimination and retaliation; the trial court rejected her discrimination claim.
- The appellate majority found that a “needs-improvement” performance evaluation, a performance-improvement plan (PIP), a Notice of Formal Counseling, and a reduced travel requirement were adverse employment actions supporting a retaliation claim.
- Judge Michael J. Riordan concurred in part and dissented in part, agreeing that the discrimination claim failed but disagreeing that those personnel actions were materially adverse.
- Riordan stressed plaintiff retained her position and salary, remained eligible for promotion, was not disciplined under Civil Service Rules, and provided no evidence she was denied raises or promotions.
- He characterized the PIP (classes, cross-training, weekly meetings) and the counseling notice as lacking tangible job consequences and argued reduced travel was not objectively adverse because plaintiff still commuted to Detroit when required.
- Riordan relied on Michigan precedent and a body of federal post-Burlington decisions holding that negative evaluations/PIPs and counseling are not adverse absent tangible harms (loss of pay, benefits, title, duties, or clear hindrance to advancement).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negative performance evaluations and a PIP constitute an adverse employment action for retaliation | White: PIP and needs-improvement rating were adverse because they could harm career and deter complaints | DOT: Evaluations/PIP are not materially adverse absent evidence of tangible harm (pay, promotion, duties) | Riordan: Not adverse without objective, tangible consequences; plaintiff offered none |
| Whether a Notice of Formal Counseling is materially adverse | White: Formal counseling is a negative employment action supporting retaliation claim | DOT: Counseling did not affect salary, benefits, status, or career prospects | Riordan: Not materially adverse; record lacks evidence of impact |
| Whether reduced travel / change in work location is an adverse action | White: Reduced travel and reassignment to Lansing was adverse/retaliatory | DOT: Reduced travel was not objectively adverse; plaintiff still instructed to travel to Detroit when needed | Riordan: Not adverse; no evidence reduced travel would dissuade a reasonable employee from complaining |
| Whether plaintiff showed prevented promotions or other tangible harms | White: Alleged she was prevented from obtaining potential promotions | DOT: Plaintiff kept same position/salary and remained eligible for promotion; no evidence of denial due to race/age | Riordan: Plaintiff failed to present objective evidence of lost opportunities or tangible injury |
Key Cases Cited
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (establishes the "materially adverse" standard for retaliation)
- Wilcoxon v. Minnesota Min. & Mfg. Co., 235 Mich. App. 347 (objective-basis requirement for adverse action; plaintiff's subjective view not controlling)
- Pena v. Ingham County Road Comm'n, 255 Mich. App. 299 (applying Wilcoxon to retaliation; adverse actions usually involve ultimate employment decisions)
- Meagher v. Wayne State Univ., 222 Mich. App. 700 (Michigan court noting federal civil-rights decisions are persuasive but not binding)
- Baloch v. Kempthorne, 550 F.3d 1191 (performance reviews typically adverse only when tied to financial harms)
- AuBuchon v. Geithner, 743 F.3d 638 (post-Burlington: materially adverse acts must produce injury; mere threats or evaluations insufficient)
- Fields v. Board of Education of City of Chicago, 928 F.3d 622 (performance-improvement plans are not enough without tangible adverse consequences)
- Weber v. Battista, 494 F.3d 179 (unfavorable evaluations may be adverse when they cause loss of financial awards)