Opinion
353618
09-16-2021
RICHARD CADOURA, Plaintiff-Appellant, v. FLAT ROCK FIRE DEPARTMENT and CITY OF FLAT ROCK, Defendants-Appellees.
UNPUBLISHED
Wayne Circuit Court LC No. 18-007013-CD
Before: Riordan, P.J., and Markey and Swartzle, JJ.PER CURIAM
Plaintiff Richard Cadoura appeals by right the trial court's order granting summary disposition in favor of defendants Flat Rock Fire Department (the fire department) and the City of Flat Rock (the city) in this employment action involving allegations of discrimination, retaliation, and a hostile work environment. We reverse and remand for further proceedings.
I. BACKGROUND
Plaintiff describes himself as an Arab American-he is an American citizen of Palestinian and Middle-Eastern descent. Plaintiff, a licensed and seasoned paramedic, began working as a firefighter for the fire department in December 2016, and he was terminated during the early evening hours of March 23, 2018. There was evidence that plaintiff failed to complete a probationary training program despite several reminders and opportunities to do so and that he had also acted in an insubordinate manner toward Sergeant John Rose the night before and morning of the day of his firing. The probationary-program failure and the two acts of insubordination were the reasons given by Assistant Fire Chief (AFC) Mark Hammond for plaintiff's termination. After the alleged incident of insubordination on the morning of March 23, 2018, a frustrated plaintiff immediately spoke with Meaghan Bachman, who was responsible for handling human resource matters, to complain about working conditions, including issues of racial discrimination. This in-person conversation took place around 10:00 a.m. or 11:00 a.m.
Later in the day but before he was fired, and per Bachman's request, plaintiff sent an email to Bachman around 4:00 p.m. summarizing the problems that he was facing at work-racial or national-origin discrimination was not mentioned. According to AFC Hammond, he made the decision to terminate plaintiff during the late morning or early afternoon of March 23, 2018, and then proceeded to personally carry out the firing sometime between 5:30 p.m. and 6:30 p.m. that day. Before he terminated plaintiff, AFC Hammond contacted the mayor, city administrator, city attorney, and Bachman. AFC Hammond claimed that Bachman did not inform him of her conversation with plaintiff that day and that he did not see plaintiffs e-mail to Bachman before firing plaintiff. There was evidence, however, that Sergeant Rose e-mailed AFC Hammond twice on the morning of March 23, 2018, recounting the acts of insubordination and noting that plaintiff was planning to contact Bachman and allege harassment. AFC Hammond acknowledged that he had read the e-mails before deciding to terminate plaintiff, but he did not know at the time whether plaintiff had actually spoken to or contacted Bachman. Plaintiff testified that he told Sergeant Rose on the morning of March 23, 2018, that he was going to file an harassment complaint.
Plaintiff testified that during his 15-month tenure with the fire department, a firefighter sent a group text message of an image of a camel with a caption stating, "This is how [plaintiff] responds to the call backs." This same firefighter also questioned the parentage of plaintiff s son because of the child's darker skin tone. Additionally, according to plaintiff, the firefighter referred to plaintiff as a "sand n****r." On at least five occasions when plaintiff was driving the firetruck for his training time, Arabic music was blasted over the firetruck's PA system by a coworker. Plaintiff testified that AFC Hammond witnessed the conduct regarding Arabic music, laughed about it, pulled out his cell phone and recorded it, and shared it on social media. Another firefighter gave plaintiff a camel figurine that plaintiff placed in his station mailbox, and a week or two later plaintiff found the figurine with its head and legs chopped off and an American flag sticking out of it. Plaintiff further testified that when he washed towels for his unit, his coworkers told him that towels were for cleaning and not to wear on one's head. Plaintiff also indicated that a fellow firefighter informed plaintiff that the firetruck was not a camel.
There was evidence that plaintiff was involved in two prior employment lawsuits against other fire departments for which he had worked and that this was well known by defendants and their personnel. Plaintiff testified that when some of the firefighters were making comments about plaintiffs Middle-Eastern heritage, Sergeant Rose stated," 'You better be careful what you say around [plaintiff] because he'll turn around and sue you.'" According to plaintiff, Sergeant Rose informed him that he was not going to talk to plaintiff because of the past litigation. AFC Hammond testified that he was fully aware of plaintiff s earlier lawsuits.
Plaintiff complained about his workload and the jobs that were assigned to him. Plaintiff testified that he "did all the full-time truck checks, which were supposed to be done by the full-timers." Plaintiff noted that there were probationary truck checks that needed to be done by probationers, but this did not include truck checks for full-timers, which was not part of the probationary checklist. Plaintiff further contended, "The things that I was supposed to be doing as a probationary firefighter, they weren't allowing me to complete those because I was too busy doing their [full-timers] job instead of mine." He asserted that Sergeant Rose would tell him to do truck checks, even though there were other probationary persons available and plaintiff was "on a callback." Plaintiff also testified that he was required to fulfill so many hours behind "the wheel of each apparatus" used by the fire department for purposes of probationary training, but "none of [his] drive time was being signed by any of the full-timers when [he] was on shift." He additionally claimed that the full-timers would not allow him to drive. Plaintiff indicated that he told AFC Hammond that he was tired of the harassment by the full-timers and the difficulties he faced in working with them. Plaintiff testified that he also voiced these complaints in discussions with Fire Chief William Vack in August 2017.
Plaintiff further testified that he complained numerous times to Fire Chief Vack and to AFC Hammond that expired equipment was being kept in ambulances in violation of the Public Health Code, that ambulance-response times were poor, that personnel were performing procedures for which they were not licensed, and that ambulances were inadequately staffed. AFC Hammond acknowledged in his testimony that plaintiff complained about equipment and staffing problems. AFC Hammond also testified that plaintiff was a good firefighter and paramedic and that on several occasions Hammond talked plaintiff out of quitting over his frustrations, which frustrations Hammond attributed to plaintiff s being a seasoned firefighter and paramedic who was "used to being a little higher up" in position or authority.
Plaintiff subsequently commenced this action. In his first amended complaint, plaintiff alleged that defendants violated the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., and the Civil Rights Act (CRA), MCL 37.2101 et seq. Plaintiff also raised claims of breach of contract and wrongful termination in violation of public policy, but those counts are not at issue on appeal. Defendants moved for summary disposition, and the trial court rendered a ruling from the bench after entertaining oral arguments by the parties. The trial court summarily dismissed all of plaintiffs claims, and a judgment of dismissal was later entered by the court. Specifics regarding the nature of plaintiffs causes of action and the trial court's reasoning for rejecting plaintiffs claims and granting summary disposition are discussed in the analysis section of this opinion. The trial court denied plaintiffs motion for reconsideration. Plaintiff now appeals by right.
II. ANALYSIS
A. STANDARD OF REVIEW AND SUMMARY DISPOSITION PRINCIPLES
We review de novo a trial court's ruling on a motion for summary disposition. Hoffner v Lanctoe, 492 Mich. 450, 459; 821 N.W.2d 88 (2012). And this Court likewise reviews de novo issues of statutory construction. Estes v Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493 (2008).
MCR 2.116(C)(10) provides that summary disposition is appropriate when, "[e]xcept as to the amount of damages, 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." A motion brought pursuant to MCR 2.116(C)(10) tests the factual support for a party's action. Pioneer State Mut Ins Co v Dells, 301 Mich.App. 368, 377; 836 N.W.2d 257 (2013). "Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion are required . . . when judgment is sought based on subrule (C)(10)," MCR 2.116(G)(3)(b), and such evidence, along with the pleadings, must be considered by the court when ruling on the (C)(10) motion, MCR 2.116(G)(5). "When a motion under subrule (C)(10) is made and supported . . ., an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial." MCR 2.116(G)(4). "A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact." Pioneer State, 301 Mich.App. at 377. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003). The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(C)(10). Pioneer State, 301 Mich.App. at 377. "Like the trial court's inquiry, when an appellate court reviews a motion for summary disposition, it makes all legitimate inferences in favor of the nonmoving party." Skinner v Square D Co, 445 Mich. 153, 162; 516 N.W.2d 475 (1994). A court may only consider substantively admissible evidence actually proffered by the parties when ruling on the motion. Maiden v Rozwood, 461 Mich. 109, 121; 597 N.W.2d 817 (1999); see also MCR 2.116(G)(6).
B. STATUTORY CONSTRUCTION
In Slis v Michigan, 332 Mich.App. 312, 335-336; 956 N.W.2d 569 (2020), this Court recited the principles that govern statutory construction:
This Court's role in construing statutory language is to discern and ascertain the intent of the Legislature, which may reasonably be inferred from the words in the statute. We must focus our analysis on the express language of the statute because it offers the most reliable evidence of legislative intent. When statutory language is clear and unambiguous, we must apply the statute as written. A court is not permitted to read anything into an unambiguous statute that is not within the manifest intent of the Legislature. Furthermore, this Court may not rewrite the plain statutory language or substitute its own policy decisions for those decisions already made by the Legislature.
Judicial construction of a statute is only permitted when statutory language is ambiguous. A statute is ambiguous when an irreconcilable conflict exists between statutory provisions or when a statute is equally susceptible to more than one meaning. When faced with two alternative reasonable interpretations of a word in a statute, we should give effect to the interpretation that more faithfully advances the legislative purpose behind the statute. [Quotation marks and citations omitted.]
C. THE CRA DISCRIMINATION CLAIM
1. STATUTORY AND ANALYTICAL FRAMEWORK
An employer shall not "[f]ail 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 . . . race . . . [or] national origin . . . ." MCL 37.2202(1)(a).
In discrimination cases, when a plaintiff is able to produce direct evidence of, for example, racial bias, "the plaintiff can go forward and prove unlawful discrimination in the same manner as a plaintiff would prove any other case." Hazle v Ford Motor Co, 464 Mich. 456, 462; 628 N.W.2d 515 (2001). Direct evidence is evidence which, if believed, requires the conclusion that unlawful discrimination played at least a motivating factor with respect to the employer's adverse action. Id. Statements in the workplace that are merely stray remarks do not constitute direct evidence of discrimination. See Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich. 124, 135-136; 666 N.W.2d 186 (2003).
The Sniecinski Court observed:
Factors to consider in assessing whether statements are "stray remarks" include: (1) whether they were made by a decision maker or an agent within the scope of his employment, (2) whether they were related to the decision-making process, (3) whether they were vague and ambiguous or clearly reflective of discriminatory bias, (4) whether they were isolated or part of a pattern of biased comments, and (5) whether they were made close in time to the adverse employment decision. [Id. at 135-136 n 8 (citations omitted).]
When a plaintiff has no direct evidence of discrimination, the plaintiff must proceed through the steps outlined in McDonnell Douglas Corp v Green, 411 U.S. 792, 802-803; 93 S.Ct. 1817; 36 L.Ed.2d 668 (1973). Hazle, 464 Mich. at 462. "The McDonnell Douglas approach allows a plaintiff to present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination." Hazle, 464 Mich. at 462 (quotation marks and citation omitted).
With regard to establishing a prima facie case of discrimination, a plaintiff is required to present evidence (1) that he belonged to a protected class, (2) that he suffered an adverse employment action, (3) that he was qualified for his position or other relevant positions, and (4) that he suffered the adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Id. at 463. A presumption of discrimination arises when a plaintiff adequately establishes a prima facie case. Id. But "the fact that a plaintiff has established a prima facie case of discrimination under McDonnell Douglas does not necessarily preclude summary disposition in the defendant's favor." Id. at 463-464. A prima facie case under McDonnell Douglas does not describe the plaintiff s burden of production, but merely establishes a rebuttable presumption. Id. at 464. Therefore, "once a plaintiff establishes a prima facie case of discrimination, the defendant has the opportunity to articulate a legitimate, nondiscriminatory reason for its employment decision in an effort to rebut the presumption created by the plaintiffs prima facie case." Id. Our Supreme Court in Hazle, id. at 464-466, further explained the analytical process, stating:
"[T]here [are] multiple ways of proving the ultimate question of discrimination in a circumstantial evidence case[, ]" and "[a] plaintiff can attempt to prove discrimination by showing that the plaintiff was treated unequally to a similarly situated employee who did not have the protected characteristic." Hecht v Nat'l Heritage Academies, Inc, 499 Mich. 586, 607-608; 886 N.W.2d 135 (2016).
The articulation requirement means that the defendant has the burden of producing evidence that its employment actions were taken for a legitimate, nondiscriminatory reason. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel. If the employer makes such an articulation, the presumption created by the McDonnell Douglas prima facie case drops away.
At that point, in order to survive a motion for summary disposition, the plaintiff must demonstrate that the evidence in the case, when construed in the plaintiffs favor, is sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff. . . . [A] plaintiff must not merely raise a triable issue that the employer's proffered reason was pretextual, but that it was a pretext for [unlawful] discrimination.
The inquiry at this final stage of the McDonnell Douglas framework is exactly the same as the ultimate factual inquiry made by the jury: whether consideration of a protected characteristic was a motivating factor, namely, whether it made a difference in the contested employment decision. The only difference is that, for purposes of a motion for summary disposition or directed verdict, a plaintiff need only create a question of material fact upon which reasonable minds could differ regarding whether discrimination was a motivating factor in the employer's decision. [Citations and quotation marks omitted; second alteration in original.]
Establishing pretext or that discrimination was a motivating factor in an employer's decision can be accomplished by showing that the purported legitimate, nondiscriminatory reasons for the decision had no basis in fact, by showing, if there was a basis in fact, that the reasons were not the actual factors motivating the decision, or, if they were factors, by showing that they were jointly insufficient to justify the decision. Debano-Griffin v Lake Co, 493 Mich. 167, 180; 828 N.W.2d 634 (2013).
2. FIRST AMENDED COMPLAINT
Plaintiff alleged in his first amended complaint that defendants, by and through their agents, discriminated against or harassed plaintiff on the basis of his race and national origin, engaging in unwelcome communications and conduct, which unlawful practices were never remedied despite actual and personal knowledge by AFC Hammond, Sergeant Rose, and Fire Chief Vack. Plaintiff further alleged that but for the illegal discrimination he would not have been damaged or discharged.
3. THE TRIAL COURT'S RULING
The trial court concluded that plaintiff "was terminated for legitimate non-discriminatory reasons of both insubordination [and] failure to complete probationary training," and not "based on his national origin." The court noted that the only adverse employment action suffered by plaintiff was termination. The trial court opined that the legitimate, non-discriminatory reasons for plaintiffs firing "were not pretextual because they had a basis in fact." The court found as a matter of law that plaintiff failed to complete probation within one year as required and that plaintiffs conduct relative to Sergeant Rose amounted to insubordination. The trial court acknowledged that racial slurs can constitute direct evidence of discrimination. The court determined, however, that the only decisionmaker in this case was AFC Hammond and that there was no evidence that he made any racial slurs, nor that such slurs were ever brought to AFC Hammond's attention. The court also observed that the racial slurs that were directed at plaintiff were made months before plaintiff was terminated. For these reasons, the trial court summarily dismissed plaintiffs CRA discrimination cause of action.
4. DISCUSSION AND RESOLUTION
On appeal, plaintiff presents numerous arguments in challenging the trial court's ruling that there was no viable CRA claim of discrimination, but we need not weed through all of them. The overriding premise of plaintiffs stance on appeal is that the trial court failed to make all legitimate and reasonable inferences in his favor or, in some instances, simply ignored or misstated plaintiffs position. One of plaintiff s arguments is that the trial court did not properly apply the McDonnell Douglas burden-shifting framework. With respect to indirect evidence and the McDonnell Douglas test, the trial court jumped over the question whether plaintiff established a prima facie case of discrimination and went straight to the issue concerning whether defendants articulated legitimate, nondiscriminatory reasons to terminate plaintiff. The trial court, relying on evidence of insubordination and a failure to complete probationary requirements, concluded that defendants presented evidence of legitimate, nondiscriminatory reasons to fire plaintiff, and that plaintiff failed to show that defendants' reasons were pretextual.
In his deposition, plaintiff testified that he did not make various statements attributed to him by Sergeant Rose relative to the claims of insubordination. Plaintiff also testified that he did not speak to Sergeant Rose in a disrespectful manner. Plaintiff further denied that he directed any derogatory statements toward Sergeant Rose. Plaintiff effectively denied engaging in insubordination, thereby undermining defendants' position that he was fired, in part, because of insubordination and demonstrating pretext sufficient to survive summary disposition, i.e., that an articulated seemingly legitimate, nondiscriminatory reason for termination had no basis in fact. Debano-Griffin, 493 Mich. at 180. For purposes of summary disposition, we are not permitted to assess plaintiffs credibility, weigh his deposition testimony, or resolve conflicts between plaintiff s testimony and evidence produced by defendants. Pioneer State Mut Ins Co v Dells, 301 Mich.App. 368, 377; 836 N.W.2d 257 (2013). It was not necessary for plaintiff to show that both reasons given for firing plaintiff were a pretext for discrimination because discrediting one of the reasons necessarily calls into question the legality of the overall determination to terminate plaintiffs employment. That said, plaintiff did testify that full-timers were interfering with his ability to accomplish the probationary requirements. Furthermore, plaintiff testified that AFC Hammond said nothing about probation or insubordination when he fired plaintiff. Also, plaintiff argued below that he was no longer on probation or should not have been on probation after he had served one-year on the job, citing the probation policy, which provided that new employees "will serve a one (1) year probationary period" and that "[t]here will be no extensions given for failing to meet the requirements."
Lending further support for our conclusion is that there was evidence that AFC Hammond found it amusing that a firefighter on multiple occasions blared Arabic music from a firetruck as plaintiff operated the vehicle. The timing of the termination in relation to plaintiff's statement to Sergeant Rose that plaintiff was going to lodge a complaint of harassment and discrimination provides additional support.
In sum, the trial court's reasoning for summarily dismissing the CRA discrimination claim was flawed when it concluded that plaintiff failed to create a genuine issue of fact with respect to the question whether plaintiff offered evidence of pretext in the face of defendants' alleged reasons for the discharge.
D. THE CRA RETALIATION CLAIM
1. STATUTORY AND ANALYTICAL FRAMEWORK
Under MCL 37.2701(a), a provision in the CRA, a person shall not "[r]etaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act." In Meyer v City of Center Line, 242 Mich.App. 560, 568-569; 619 N.W.2d 182 (2000), this Court set forth the elements of a CRA-based retaliation claim under MCL 37.2701(a), explaining:
To establish a prima facie case of retaliation under the Civil Rights Act, a plaintiff must show (1) that the plaintiff 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. [See also DeFlaviis v Lord & Taylor, Inc, 223 Mich.App. 432, 436; 566 N.W.2d 661 (1997).]
To establish the element of causation, a plaintiff must show that his or her participation in protected activity identified in the CRA was a "significant factor" in the employer's adverse employment action, not simply that a causal link existed between the two. Barrett v Kirtland Community College, 245 Mich.App. 306, 315; 628 N.W.2d 63 (2001). "A causal connection can be established through circumstantial evidence, such as close temporal proximity between the protected activity and adverse actions, as long as the evidence would enable a reasonable factfinder to infer that an action had a discriminatory or retaliatory basis." Rymal v Baergen, 262 Mich.App. 274, 303; 686 N.W.2d 241 (2004). With respect to establishing a causal connection, if there is direct evidence of retaliation, a "plaintiff can go forward and prove unlawful [retaliation] in the same manner as a plaintiff would prove any other civil case." Hazle, 464 Mich. at 462. In retaliation cases, direct evidence "establishes without resort to an inference that an employer's decision to take an adverse employment action was at least in part retaliatory." Cuddington v United Health Servs, Inc, 298 Mich.App. 264, 276; 826 N.W.2d 519 (2012).
"Absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or her employer's unlawful motivation to show that a causal link exists . . . ." Debano-Griffin, 493 Mich. at 176. In such a case, we apply the burden-shifting framework set forth in McDonnell Douglas. Id. We have already explained the burden-shifting framework in discussing the principles governing a discrimination case.
2. FIRST AMENDED COMPLAINT
Plaintiff alleged that he opposed a violation of the CRA and engaged in protected activity by "[g]oing directly to the human resources department to complain of the treatment [p]laintiff was receiving." Plaintiff further contended that defendants retaliated against him for opposing a violation of the CRA and engaging in protected activity by terminating him very shortly after he complained to Bachman.
3. THE TRIAL COURT'S RULING
The trial court determined that the protected activity at issue was plaintiffs e-mail to Bachman at around 4:00 p.m. on March 23, 2018, and that AFC Hammond, the sole decisionmaker, made the decision to terminate plaintiff several hours before plaintiff sent the e-mail to Bachman. Indeed, there was no evidence that AFC Hammond was even aware of the 4:00 p.m. e-mail. Although not directly stated by the trial court, it clearly dismissed the CRA retaliation claim on the basis that, as a matter of law, there was no causal connection between the protected activity and the adverse employment action, i.e., plaintiffs termination.
4. DISCUSSION AND RESOLUTION
Once again, the trial court's reasoning was flawed. The trial court completely ignored the documentary evidence that before the 4:00 p.m. e-mail from plaintiff to Bachman on March 23, 2018, plaintiff spoke directly to Bachman at approximately 10:00 a.m. or 11:00 a.m. that day and alleged discrimination. Further, there was evidence that AFC Hammond had been informed by e-mail from Sergeant Rose that plaintiff was going to lodge a discrimination and harassment complaint with Bachman, which e-mail was sent and viewed before AFC Hammond decided to fire plaintiff. Accordingly, the protected activity was not solely the e-mail from plaintiff to Bachman, it also included the earlier conversation in which plaintiff voiced complaints to Bachman, and AFC Hammond was aware that plaintiff was going to Bachman to complain about discrimination and then he fired plaintiff. Although AFC Hammond may not have known with 100% certainty that plaintiff had actually spoken to Bachman when he made the determination to terminate plaintiff, the conversation did in fact take place, and AFC Hammond certainly could have been motivated to terminate plaintiff on the belief that plaintiff would contact Bachman.Moreover, plaintiffs communications to Sergeant Rose could be viewed as conduct opposing a violation of the CRA. In sum, the trial court's reasoning for summarily dismissing the CRA retaliation claim was flawed, and we reverse the court's ruling on the matter.
We also believe that a trier of fact should assess the credibility of the assertion that Bachman made no mention of plaintiff's in-person complaint when AFC Hammond contacted Bachman to inform her of the decision to fire plaintiff.
E. THE CRA HOSTILE-WORK-ENVIRONMENT CLAIM
1. STATUTORY AND ANALYTICAL FRAMEWORK
There are five elements that must be established for a prima facie CRA case of discrimination based on a hostile work environment: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of his protected status; (3) the employee was subjected to unwelcome communication or conduct involving his protected status; (4) the unwelcome communications or conduct was intended to or in fact did substantially interfere with the employee's employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. Quinto v Cross & Peters Co, 451 Mich. 358, 368-369; 547 N.W.2d 314 (1996).
2. FIRST AMENDED COMPLAINT
Plaintiff alleged that he was subjected to conduct and communications that created a work environment that a reasonable person would consider intimidating, hostile, offensive, and abusive and that interfered with his employment. Plaintiff further maintained that Fire Chief Vack, AFC Hammond, and Sergeant Rose had the authority to direct plaintiffs daily activities and control his work environment, yet they did nothing to eliminate the hostile work environment and actually contributed to it. Plaintiff alleged that the hostile work environment resulted in humiliation, mental anguish, and emotional distress, and that it ultimately led to his termination.
3. THE TRIAL COURT'S RULING
The trial court concluded that the circumstances did not "ris[e] to a level of a hostile work environment." The court explained:
Simple teasing, offhand comments, and isolated incidents unless extremely serious will not amount to discriminatory charges in the terms and conditions of the employment.....
Plaintiff does put forth incidents troubling, teasing and his testimony establishes, his own testimony establishes that it did not amount to a change in terms and conditions of this employment.
And Plaintiff from the music playing and the gift and a text of a camel doesn't rise to a level under the standard put forth in the applicable statutory and court precedent to show a hostile environment and no adverse employment action based on race.
4. DISCUSSION AND RESOLUTION
"Whether harassing conduct is sufficiently severe or pervasive to establish a hostile work environment is 'quintessentially a question of fact.'" Hawkins v Anheuser-Busch, Inc, 517 F.3d 321, 333 (CA 6, 2008) (citation omitted). In this case, plaintiff presented evidence sufficient to create a genuine issue of material fact regarding whether there was an intimidating, hostile, and offensive work environment. There was documentary evidence of the text message with an image of a camel, the questioning of plaintiff s parentage in regard to his son, the "sand n****r" slur, the playing of Arabic music over the firetruck's P A system on multiple occasions, the beheaded camel figurine with an American flag stuck in it, and the references to towels being used for cleaning and not to wear on one's head. In conjunction with that evidence, there was plaintiffs testimony regarding his work conditions and his claimed mistreatment and harassment by full-timers and by Sergeant Rose, as well as his testimony that AFC Hammond and Fire Chief Vack did nothing to address or alleviate the toxic environment. We conclude that the trial court erred by determining as a matter of law that there was no hostile work environment.
F. CLAIM UNDER THE WHISTLEBLOWERS' PROTECTION ACT
1. STATUTORY AND ANALYTICAL FRAMEWORK
Plaintiff presented a claim under the WPA, and MCL 15.362 provides that "[a]n employer shall not discharge . . . an employee . . . because the employee . . . reports or is about to report, verbally or in writing, a violation or a suspected violation of a law . . . of this state . . ., unless the employee knows that the report is false[.]" In an employment termination case brought under the WPA, there are three elements that a plaintiff must demonstrate to make out a prima facie case: (1) the employee was engaged in one of the protected activities listed in MCL 15.362; (2) the employee was discharged or otherwise discriminated against; and (3) a causal connection existed between the employee's protected activity and the employer's act of discharging the employee or discriminating against him. Wurtz v Beecher Metro Dist, 495 Mich. 242, 251-252; 848 N.W.2d 121 (2014). Two of the three protected activities under MCL 15.362 concern reporting a violation of law to a public body and being about to report such a violation to a public body. Truel v Dearborn, 291 Mich.App. 125, 138; 804 N.W.2d 744 (2010).
2. FIRST AMENDED COMPLAINT
Plaintiff alleged that he engaged in numerous instances of protected activity, including expressing concerns regarding the functioning and staffing of the fire department and certain actions by Sergeant Rose in responding to emergency calls, informing a response victim's mother on how to file a complaint against the fire department, disclosing to supervisors that plaintiff was enduring pervasive racial discrimination and harassment, and attempting to be removed from probationary status. Plaintiff contended that in response to his participation in these protected activities he was terminated shortly after e-mailing human resources about his complaints, was initially refused an interview for a full-time position, was not hired for the position after finally being interviewed, and was improperly forced to remain a probationary firefighter beyond the one-year probationary period.
3. THE TRIAL COURT'S RULING
The trial court determined that the protected activity at issue was plaintiff's e-mail to Bachman at around 4:00 p.m. on March 23, 2018, and that AFC Hammond, the sole decisionmaker, made the decision to terminate plaintiff several hours before plaintiff sent the email to Bachman. Indeed, there was no evidence that AFC Hammond was even aware of the 4:00 p.m. e-mail. Although not directly stated by the trial court, it clearly dismissed the WPA claim on the basis that, as a matter of law, there was no causal connection between the protected activity and the adverse employment action, i.e., plaintiff's termination.
We recognize that this is a near-verbatim recitation of the trial court's ruling with respect to the CRA retaliation claim that we set forth earlier. But this constitutes the entirety of the court's very vague and unprecise discussion of retaliation and whistleblowing, which we assume was intended to encompass the CRA retaliation claim and the WPA claim.
4. DISCUSSION AND RESOLUTION
The trial court's reasoning was flawed for the same reason we gave when analyzing the CRA retaliation claim-the court did not take into consideration the earlier in-person discussion between plaintiff and Bachman regarding allegations of harassment and discrimination. Additionally, plaintiff alleged that he engaged in numerous instances of protected activity beyond his contacts with Bachman, e.g., his complaints about alleged violations of the Public Health Code, and the trial court essentially ignored these claims and allegations. In sum, the trial court's reasoning for summarily dismissing the WPA claim was flawed, and we reverse the court's ruling on the matter.
III. CONCLUSION
The trial court erred by granting defendants summary disposition on plaintiff's theories under the CRA and WPA. We acknowledge that we did not contemplate alternate grounds to affirm on all of the causes of action because that would require extensive examination that is best initially left to the trial court should defendants decide to refile a motion for summary disposition. We would be invading the province of the trial court were we to now decide this case from the ground up.
We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, plaintiff may tax costs under MCR 7.219.