SNIECINSKI v BLUE CROSS & BLUE SHIELD OF MICHIGAN
Docket No. 119407
Supreme Court of Michigan
Decided July 22, 2003
Rehearing denied post, 1224.
469 MICH 124
Argued November 19, 2002 (Calendar No. 6).
In an opinion by Chief Justice CORRIGAN, joined by Justices TAYLOR, YOUNG, and MARKMAN, the Supreme Court held:
The trial court erred in failing to find no cause of action because the plaintiff fаiled to establish a causal connection between her pregnancy and the defendant‘s failure to hire her.
- The plaintiff‘s employment was not transferred to BCBSM from Blue Care Network after the merger of their marketing activities because her employment with BCN had been administratively terminated before the transfer date by plaintiff‘s collecting long-term disability benefits occasioned by her usage of medical leave on account of problem pregnancies. An offer of employment from BCBSM expired by plaintiff‘s failure to begin performing the BCBSM job functions before collecting long-term disability benefits.
- The plaintiff failed to present evidence that satisfies the direct-evidence test for discriminatory animus. She also failed to present evidence of discriminatory animus under the indirect or circumstantial evidence method set forth in McDonnell Douglas Corp v Green, 411 US 792 (1973), which requires the plaintiff to show a prima facie case of discrimination, requires the defendant to rebut the prima facie showing by articulating a legitimate, nondiscriminatory reason for the adverse employment action, and requires the plaintiff to show that the reason articulated was merely a pretext for discrimination. BCBSM was therefore entitled to a finding by the circuit court of no cause of action as a matter of law.
Justice WEAVER, concurring in part and dissenting in part, stated that, relating to noneconomic damages, the trial court did err in denying the defendant‘s motion for a directed verdict because the plaintiff failed to present any specific and definite evidence of mental anguish, anxiety, or distress as she was required to do. There was, however, a reasonable inference from the evidence that the defendant‘s failure to hire the plaintiff was causally connected to her pregnancy.
Reversed; remanded to the circuit court.
Justice KELLY, dissenting, stated that the jury was entitled to infer its conclusions from evidence submitted. The plaintiff presented abundant proof to create an inference regarding causation consistent with the jury‘s decision. The jury was entitled to believe that the facts preciрitating the loss of the position were an extension of discriminatory animus. The defendant‘s posttermination actions also support the inference of a causal link between the discrimination alleged and the defendant‘s employment actions.
CIVIL RIGHTS — CIVIL RIGHTS ACT — EMPLOYMENT DISCRIMINATION — EVIDENCE.
A plaintiff claiming employment discrimination may prove the claim by direct evidence of discrimination or indirect or circumstantial evidence of discrimination; direct evidence is that which requires the conclusion that unlawful discrimination was at least a motivating factor in the employer‘s actions; in the case of indirect or circumstantial evidence, the plaintiff must present a prima facie case of discrimination; if the defendant rebuts the presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action, the plaintiff must show that the defendant‘s reasons are a mere pretext for discrimination (
Hurlburt, Tsiros, Allweil & Perez, P.C. (by Mandel I. Allweil), for the plaintiff.
Bart M. Feinbaum for the defendant.
Amici Curiae:
Vercruysse Metz & Murray (by Diane M. Soubly) for the Michigan Chamber of Commerce.
Kienbaum Opperwall Hardy & Pelton, PLC (by Thomas G. Kienbaum, Theodore R. Opperwall, and Noel D. Massie), for the Automobile Club of Michigan and DaimlerChrysler Corporation.
CORRIGAN, C.J. In this pregnancy discrimination case, we have been asked to decide whether the trial court erred by denying defendant Blue Cross and Blue Shield of Michigan‘s (BCBSM) motions for directed verdict and judgment notwithstanding the verdict. We hold that because plaintiff failed to adduce evidence of a causal connection between her pregnancy and BCBSM‘s failure to hire her, BCBSM was entitled to a finding of no cause of action as a matter of law. The trial court erred by denying defendant‘s motions for directed verdict and judgment notwithstanding the verdict.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Blue Care Network of East Michigan (BCN), a wholly owned subsidiary of BCBSM, employed plaintiff as a telemarketing representative. Plaintiff, a high school graduate, began work at BCN‘s predecessor, Group Health Services (GHS), in 1983. She held a variety of positions. In 1987, she became a telemarketing representative. In 1989, GHS merged into BCN. BCN honored the seniority that plaintiff had acquired at GHS. Also in 1989, plaintiff became pregnant. She experienced pregnancy complications that required her to take a medical leave for seven months. In
Plaintiff became pregnant again in 1992 while she was supervised by Michael Curdy. Plaintiff testified that after she informed Curdy about her pregnancy, he seemed upset. He referred to plaintiff‘s chair as the “pregnancy chair.” He stated that he would not let anyone sit in that chair again. He asked plaintiff whether she was going to experience problems with her pregnancy as she had in 1989. Curdy further told plaintiff that he would not permit her to use either sick time or unpaid leave because of her pregnancy.
In January 1993, Curdy placed a memo regarding plaintiff‘s attendance in her personnel file. When plaintiff learned about the memo, she complained to Patricia Stone, the Regional Human Resources Manager at BCN. Stone informed Curdy that he had not followed the appropriate procedure for discipline. She advised Curdy to follow the correct procedure to determine whether a problem existed regarding plaintiff‘s attendance before a disciplinary memo could be placed in plaintiff‘s file. Stone then removed the memo from plaintiff‘s file.
Plaintiff again experienced pregnancy complications that required her to take one week off from work in February 1993. During that time, she suffered a miscarriage. Plaintiff testified that upon her return to work Curdy spoke to her about future pregnancies and stated, “We‘ll have to deal with that problem when it comes.”
During 1993, the marketing departments of BCN and BCBSM were merged. Because the merger was going to eliminate the telemarketing positions at BCN, BCN telemarketers seeking to continue their employment
In August 1993, plaintiff interviewed for an account representative position with Donald Whitford, BCBSM Regional Sales Director; Donald Roseberry, BCBSM Sales Team Manager; and Curdy.1 Plaintiff testified that Curdy asked about her time off from work related to her previous pregnancy complications. He also asked whether рlaintiff thought her pregnancies would be a future problem. After a second interview with Whitford and Roseberry only, plaintiff was offered an account representative position at BCBSM. Immediately thereafter, plaintiff told Whitford and Roseberry that she was pregnant. Plaintiff testified that they “seemed surprised” and were “taken aback,” but congratulated her.
Plaintiff and other BCN employees expecting to transfer to BCBSM continued to work for BCN until the merger. Plaintiff testified that when Curdy heard about her pregnancy, he remarked, “I‘ll have to make sure I don‘t hire anybody in child bearing years in the future.” In September 1993, soon after receiving the job offer, plaintiff began experiencing pregnancy-relаted complications. She was again required to take time off from work. She remained on medical leave from September 1993 until May 1994, six weeks after giving birth to her son.
Shortly after plaintiff was offered the account representative position, Whitford and Curdy contacted Stone to discuss placing a disciplinary note in plaintiff‘s file regarding her attendance problems during
On November 22, 1993, while plaintiff was on medical leave, thе planned merger of the sales departments of BCN and BCBSM occurred, and all BCN employees who had been offered jobs with BCBSM terminated their employment with BCN and began working for BCBSM. Plaintiff did not report for work at BCBSM because she was on medical leave at that time. Instead, BCBSM held open an account representative position for her. On March 1, 1994, plaintiff‘s short-term disability benefits expired, and she began to collect long-term disability (LTD) benefits. Under BCN‘S LTD policy, an employee on medical leave converts from short-term to LTD status on the first day of the employee‘s sixth month off work. The LTD policy provides that the employee is separated from the company and issued a final pay check, including accrued vacation and personal time.
On October 11, 1993, while plaintiff was on short-term disability, she requested an extension of her medical leave. Plaintiff was concerned that the account representative position at BCBSM would no longer be available when she was ready to return to work. Stone informed plaintiff that the position would be held open until plaintiff went on LTD, if plaintiff‘s medical leave extended that long. Stone‘s notations in her Franklin planner corroborated this account of her conversation with plaintiff. The notes read as follows:
Marcia concerned over job security-
Advised her that not issue until LTD
If LTD -> Blue Cross job not possible.
We will attempt to find position similar qualifications/pay.
Because plaintiff did not return to wоrk before March 1, 1994, she began collecting LTD benefits. BCN issued plaintiff a vacation and incentive payout and separated her from the company.
In late May 1994, plaintiff informed BCBSM that she was ready to return to work. Because of the 1993 merger, her telemarketing position at BCN had been eliminated. The BCBSM account representative position previously offered to her was not filled because of a company-wide hiring freeze resulting from a loss of Medicare business.
Plaintiff thereafter collected unemployment benefits for six months while making periodic efforts to find another job. In December 1994, BCN offered, and plaintiff accepted, a position as a markеting representative that was unrelated to her previous job. After resuming work, plaintiff learned that BCBSM had recently hired an account representative who was a college graduate. Both before and after the merger, the BCBSM account representative position required a college degree. The degree requirement had been waived only for those BCN employees transferring to BCBSM during the merger. Plaintiff had no college degree.
In March 1996, while still employed at BCN, plaintiff sued BCBSM, alleging sex (pregnancy) discrimination in violation of Michigan‘s Civil Rights Act (CRA),
Plaintiff‘s lawsuit proceeded to trial. The jury rendered a verdict for plaintiff, awarding her $125,000 for past economic loss, $136,000 for future economic loss, and $90,000 in noneconomic damages. Defendant moved for judgment notwithstanding the verdict (JNOV), a new trial, and remittitur of plaintiff‘s economic damages. The trial court denied the motions. The Court of Appeals affirmed the verdict.2 We granted BCBSM‘s application for leave to appeal.3
II. STANDARD OF REVIEW
Defendant contends that the trial court erred by denying its motions fоr directed verdict or JNOV.4 We review de novo the trial court‘s denial of both motions. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998); Smith v Jones, 246 Mich App 270, 273-274; 632 NW2d 509 (2001). We “review the evidence and all legitimate inferences in the light most favorable to the nonmoving party.” Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000); Forge, supra at 204, quoting Orzel v Scott Drug Co, 449 Mich 550, 557; 537 NW2d 208 (1995). A motion for directed verdict or JNOV should be granted only if the evidence viewed in this light fails to establish a claim as a matter of law. Wilkinson, supra at 391; Forge, supra at 204.
Section 202 of the CRA,
(1) An employer shall not do any of the following:
(A) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. [Emphasis added.]
The CRA defines “sex,” within the meaning of the above section, as ” ‘[s]ex’ includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth . . . .”
In cases involving direct evidence of discrimination, a plaintiff may prove unlawful discrimination in the same manner as a plaintiff would prove any other civil case. Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). We have previously cited with approval the United States Court of Appeals for the
In a direct evidence case involving mixed motives, i.e., where the adverse employment decision could have been based on both legitimate and legally impermissible reasons, a plaintiff must prove that the defendant‘s discriminatory animus was more likely than not a “substantial” or “motivating” factor in the decision. Price Waterhouse v Hopkins, 490 US 228, 244; 109 S Ct 1775; 104 L Ed 2d 268 (1989);6 Harrison, supra at 612-613. In addition, a plaintiff must establish her qualification or other eligibility for the position sought and present direct proof that the discriminatory animus was causally related to the adverse decision. Harrison, supra at 612-613. Stated another way, a defendant may avoid a finding of liability by proving that it would have made the same decision even if the impermissible consideration had not played a role in the decision. Price Waterhouse, supra at 244-245.
In cases involving indirect or circumstantial evidence, a plaintiff must proceed by using the burden-shifting approach set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d
Under either the direct evidence test or the McDonnell Douglas test, a plaintiff must establish a causal link between the discriminatory animus and the
In support of her claim, plaintiff relied in part upon the following alleged statements regarding her pregnancies:
- Curdy referred to plaintiff‘s chair as the “pregnancy chair” and stated that he was not going to allow anyone else to sit in the chair;
- Curdy informed plaintiff that she would not be permitted to use sick time or unpaid leave in connection with her second pregnancy;
- When discussing possible complications with future pregnancies, Curdy stated, “We‘ll have to deal with that problem when it comes“;
- Curdy asked plaintiff whether she was going to have complications with her second pregnancy “like she had in 1989“;
- Curdy askеd plaintiff about her pregnancy complications at the interview for the BCBSM account representative position; and
- Curdy stated that he would never hire anyone in child-bearing years again.
BCBSM argued that the above statements were merely “stray remarks” and not direct evidence of discrimina-
BCBSM preserved its causation argument by raising it in both the motion for directed verdict and the motion for JNOV. The trial court did not specifically address BCBSM‘s causation argument in ruling on the motion for directed verdict. The court merely stated that reasonable minds could differ regarding the interpretation of the facts of this case. Further, the trial court failed altogether to address BCBSM‘S causation argument when deciding the JNOV motion.
Defendant presented evidence that plaintiff‘s job offer for an account representative position at BCBSM expired administratively because of the neutral operation of the LTD policy. Plaintiff produced no evidence that Curdy or Whitford manipulated the operation of that neutral policy to prevent BCBSM from hiring her because of her pregnancy. Human resources manager Stone‘s direct testimony and corroborative evidence
When plaintiff was ready to return to work in May 1994, her previous job at BCN no longer existed because thе marketing departments had been unified and transferred to BCBSM. Under BCN‘s general practices, the company would attempt to place a former employee returning from long-term disability in her previous position or a comparable position, but BCN no longer had such a position because of the unification. In addition, it is undisputed that, at the time plaintiff was able to return to work, both BCN and BCBSM were in the midst of the hiring freeze precipitated by the loss of Medicare business.
Plaintiff argues that BCBSM should have hired her as an account representative in May 1994 because of her previous job offer. In addition, the dissent contends that BCBSM‘s failure to “rehire” plaintiff as an account representative is contrary to its custom of allowing an employee to resume a previous position upon return from disability status. In support of her argument, plaintiff produced evidence that eighty-nine other individuals returning from LTD status were returned to their previous jobs. That evidence is inapposite, however, because plaintiff did not seek to return to her previous job. Rather, she sought to begin new employment at BCBSM. The eighty-nine individuals to whom plaintiff refers had returned to the same company, either BCN or BCBSM, from which they were sepa-
Plaintiff further argues that BCBSM kept her on BCN‘S payroll, thus forcing her to collect LTD benefits as a BCN employee rather than as a BCBSM employee. In addition, she contends that BCBSM did not inform her that she would have had to come to work on November 22, 1993, the date of the unification, to fill out paperwork necessary to transfer her to BCBSM. Plaintiff incorrectly assumes that merely filling out paperwork was sufficient to effect her transfer to BCBSM. Further, although plaintiff presented conflicting evidence on this point at trial, she now maintains that she was able to go to work on that day to fill out the paperwork notwithstanding her medical leave.
Plaintiff‘s arguments fail because she was required to begin working for BCBSM as an account representative in order to accept the job offer and become a BCBSM employee. Whitford testified that an individual becomes a BCBSM employee by reporting to work and performing the functions of the job, not by merely completing paperwork. According to Whitford, until a prospective employee reports to work and performs her job functions, a job offer is simply that — “strictly a job offer . . . .”9
BCBSM held open the account representative рosition for plaintiff until she began collecting LTD benefits. When plaintiff contacted Stone because of concern about BCBSM filling the account representative position while she was on medical leave, Stone informed her that the job would not be “possible” if plaintiff went on long-term disability. Therefore, when plaintiff began accepting LTD benefits and was sepa-
Plaintiff did not show that she was treated differently from others under the LTD policy because of her pregnancy. She also did not show that Curdy, Whitford, or anyone at BCBSM or BCN manipulated the operation of the LTD policy to prevent her hire because she was pregnant. Rather, plaintiff relied on conjecture and speculation to support her claim that BCBSM failed to hire her because of an unlawful pregnancy animus. Mere speculation or conjecture is insufficient to establish reasonable inferences of causation. Skinner v Square D Co, 445 Mich 153, 164; 516 NW2d 475 (1994).
Plaintiff failed to establish a causal nexus between her pregnancy and the adverse employment action. Because the evidence, viewed in the light most favorable to plaintiff, fails to establish her claim as a matter of law, the trial court should have granted BCBSM‘s motion for a directed verdict or a JNOV. Wilkinson, supra at 391; Forge, supra at 204.
IV. CONCLUSION
We conclude that because plaintiff fаiled to establish a causal connection between her pregnancy and BCBSM‘s failure to hire her, BCBSM was entitled to a finding of no cause of action as a matter of law. Given this holding, we need not address BCBSM‘s remaining issues. We reverse the judgment in favor of plaintiff and remand this case to the trial court for entry of judgment in favor of BCBSM.
TAYLOR, YOUNG, and MARKMAN, JJ., concurred with CORRIGAN, C.J.
WEAVER, J. (concurring in part and dissenting in part). I concur with the majority to the extent that it reverses the trial court‘s decision to deny defendant‘s motion for directed verdict regarding plaintiff‘s noneconomic damages. As stated by Judge SAWYER, who concurred in part and dissented in part on the Court of Appeals panel below, “plaintiff failed to present any ‘specific and definite evidence of mental anguish, anxiety or distress’ as she was required to do.”1
However, I disagree with the majority conclusion that plaintiff failed to establish a causal nexus between her pregnancy and the adverse employment action.2 Although plaintiff was told that if she went on long-term disability, the account representative job was “not possible,” she was also reassured by defendant‘s management employees that she need not worry about her job opportunity. Indeed, she was given the impression that her future transfer to BCBSM was essentially an administrative matter. The record reveals that she was told that BCBSM “did not want to absorb the medical disability at that time . . . they wanted [her] to take the disability bеnefits through Blue Care Network and then once [she] was — six weeks after [she] had her child and returned to work [she] would be transferred to Blue Cross and Blue Shield . . . .” In my view, this evidence provides a rea-
Regarding defendant‘s remaining issues on appeal, I would affirm the result and reasoning of the Court of Appeals majority.
KELLY, J. (dissenting). In resolving this appeal for defendant, the majority interprets the facts in the light most favorable to defendant. It ignores the fact that the jury is entitled to infer causation from the proofs presented. Viewed properly, in the light most favorable to plaintiff, thе facts support the jury‘s verdict. Therefore, I respectfully dissent.
I
This Court reviews motions for a directed verdict or judgment notwithstanding the verdict by drawing all legitimate factual inferences in the light most favorable to the nonmoving party. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). This rule reflects the longstanding understanding of our appellate courts that a jury‘s verdict should not be lightly disturbed. However, the majority does just that, viewing the evidence that reached the jury through a distorted lens.
A plaintiff must convince a jury that he has satisfied each element of his cause. He may do that either with direct evidence or with evidence that permits the jury to infer the required conclusion. Here, the majority properly catalogues the discriminatory aсtions undertaken by Mr. Curdy, ante at 135, but ignores the jury‘s ability to infer that the same discriminatory animus caused plaintiff‘s job loss later. Rather, the majority simply concludes that the existence of defendant‘s long-term disability (LTD) policy
However, plaintiff presented abundant proof to create an inference regarding causation consistent with the jury‘s finding. The jury was entitled to believe that the facts precipitating the loss of her account representative position were an extension of the discriminatory animus to which defendant subjected plaintiff. Specifically, defendant‘s words and actions made it unclear whether it required plaintiff to report for work at defendant before the onset of LTD benefits.
Several important facts support the jury‘s conclusion. First, defendant‘s management employees repeatedly assured plaintiff that her position would be available when she returned from medical leave. However, no one informed her that, to preserve her job, she would need to report to defendant before she began collecting LTD benefits. Instead of transferring her to defendant‘s medical leave roster on the date of the merger, one of defendant‘s executives, Joel Gibson, decided to keep plaintiff on the Blue Care Network (BCN) roll.
In September 1993, plaintiff asked Pat Stone, the human resources manager at BCN, how the leave of absence would “fall within the merger . . . .” Plaintiff testified that Stone talked to Gibson and then explained to plaintiff that because defendant “did not want to absorb the medical disability at that time . . . they wanted [her] to take the disability benefits through Blue Care Network and then once [she] was — six weeks after [she] had her child and returned to work [she] would be transferred to Blue Cross and Blue Shield . . . .” Plaintiff testified that had defendant transferred plaintiff to defendant‘s disability roster, she would have been entitled to resume the
Additionаlly, despite having received repeated phone calls from plaintiff to check on the status of her BCBSM job, Curdy, Whitford, and Roseberry neglected to return plaintiff‘s calls. Plaintiff managed to reach Roseberry by telephone on one occasion, but he told her not to worry and that he would keep her informed of the merger. He never did. Consequently, plaintiff‘s termination proceeded administratively and without notice to her. These intentional omissions supported plaintiff‘s position that the discriminatory animus earlier exhibited led to her dismissal.
Moreover, defendant‘s posttermination actions support the inference of a causal link between the discrimination allеged and defendant‘s employment actions. Specifically, defendant refused to rehire plaintiff to the account representative position upon her return, despite its custom of allowing an employee to resume his old position, if it remained available. When the account representative position became available after plaintiff‘s return, defendant refused to waive its new college degree requirement and consider plaintiff for the position. These post-termination facts support a jury inference that defendant‘s discriminatory animus caused it to exclude plaintiff from the account representative position after her disаbility leave.
II
The factual scenario presented in this case is scarcely so one-sided that a court could rule, as does the majority, that defendant prevails as a matter of law. Considering that plaintiff presented sufficient