Feickv.Monroe Co.

Michigan Court of AppealsApr 21, 1998
229 Mich. App. 335 (Mich. Ct. App. 1998)
229 Mich. App. 335582 N.W.2d 207

Docket No. 198014.

Submitted November 18, 1997, at Lansing.

Decided April 21, 1998, at 9:00 A.M.

Green Green (by Philip Green), for Nancy M. Feick.

Cummings, McClorey, Davis Acho, P.C. (by Joseph Nimako and Thomas J. Laginess), for Monroe County.

Johnson, Rosati, Galica, Labarge, Aseltyne Field, P.C. (by Marcia L. Howe and Laura S. Amtsbuechler), for Edward F. Swinkey.

Before: HOOD, P.J., and McDONALD and WHITE, JJ.


Plaintiff appeals as of right from the circuit court's order granting summary disposition and awarding sanctions to defendants in this employment discrimination action brought under the Civil Rights Act (CRA), MCL 37.2101 et seq.;MSA 3.548(101) et seq.Plaintiff, a former chief assistant prosecuting attorney, alleged that by terminating her and not subsequently rehiring her for various positions, defendants discriminated against her on the basis of her gender and age, and retaliated against her for filing a complaint with the Equal Employment Opportunity Commission (EEOC). We affirm.


Plaintiff first argues that the circuit court improperly dismissed her claims of gender and age discrimination because genuine issues of material fact remained regarding whether defendants discriminated against her. We disagree.


Absent direct evidence of discrimination, a plaintiff may establish a prima facie case of employment discrimination by showing (1) that the plaintiff was a member of a protected class, (2) that an adverse employment action was taken against the plaintiff, (3) that the plaintiff was qualified for the position, and (4) that the plaintiff was replaced by one who was not a member of the protected class. Matras v Amoco Oil Co, 424 Mich. 675, 683; 385 N.W.2d 586 (1986).

Plaintiff established that she was a member of protected classes on the basis of her age and gender and that she was not reappointed by Monroe County Prosecutor Edward F. Swinkey after he won the 1992 election, defeating her former boss, William Frey. Plaintiff also established that she was replaced by a younger male and subsequently not rehired as chief assistant prosecutor and for various other positions. Although defendants dispute that plaintiff was qualified to be rehired as chief assistant prosecuting attorney, viewing the facts in a light most favorable to plaintiff, we conclude that plaintiff established that she was qualified for the position of chief assistant prosecutor on the basis of having held the position for seven years and the qualifications she testified to at deposition. However, regarding the remaining positions plaintiff applied for, department head in the office of the friend of the court and a position with the drain commission, plaintiff presented no evidence of the qualifications required for those positions or that she met those qualifications. Accordingly, with regard to the friend of the court and drain commission positions, plaintiff failed to present the requisite evidence to establish a genuine issue of material fact that she was as qualified as the persons who obtained the positions. Dubey v Stroh Brewery Co, 185 Mich. App. 561, 564-565; 462 N.W.2d 758 (1990).

Plaintiff also presented evidence that her younger male replacement left after less than a year on the job and that another younger male was hired as chief assistant prosecutor.

Plaintiff also applied for a position with the probate court. However, at the hearing regarding defendants' motion for summary disposition, plaintiff's counsel withdrew plaintiff's claim regarding that position.

We thus conclude that plaintiff presented a prima facie case of gender and age discrimination with respect to Swinkey's not reappointing her to the chief assistant prosecutor position on December 31, 1992, and with respect to Swinkey's failure to subsequently rehire her for that position.


The burden therefore shifted to defendant to articulate a legitimate, nondiscriminatory reason for not reappointing plaintiff and not subsequently rehiring her for the chief assistant prosecutor position. Dubey, supra at 563. It is undisputed that after Swinkey won the 1992 election, he did not reappoint four prosecuting attorneys who had served under Frey, his predecessor: plaintiff, another woman, and two men. In an affidavit submitted in support of his motion for summary disposition, Swinkey stated that he did not reappoint plaintiff because he wanted to hire a staff of committed and competent attorneys who would appropriately and adequately represent and further the policies and goals he promised to the electorate and that he had evaluated plaintiff's performance and decided she did not possess the requisite competence and ability. Swinkey presented evidence that, before the 1992 election, Frey came under investigation by the Attorney Grievance Commission (AGC). Swinkey presented evidence that several of the charges brought against Frey involved plaintiff, including that plaintiff and Frey represented adverse parties in a divorce action while plaintiff was chief assistant prosecutor; that plaintiff took part in Frey's decision to fire Swinkey's brother, an assistant prosecutor under Frey who had testified before the AGC during its investigation of Frey; and that plaintiff had been aware that Frey was monitoring Swinkey's telephone conversations and had listened to tapes made by Frey.

Plaintiff argues that defendant discharged plaintiff "for being associated with his opponent in an election" and that such reason does not constitute a legitimate reason for its adverse employment actions but is, rather, unlawful political discrimination.

Plaintiff has cited no authority in support of this argument.

In response to plaintiff's argument, Swinkey argued that, by statute, assistant prosecuting attorneys hold office at the pleasure of the prosecuting attorney. See MCL 49.35; MSA 5.795, which provides that "assistant prosecuting attorneys and other employees appointed by said prosecuting attorney under this act shall hold office during the pleasure of the prosecuting attorney." Swinkey also argues that he could properly premise not reappointing plaintiff on plaintiff's political affiliation. Under the circumstances presented here, we agree.

A dismissal or other adverse employment action toward a public employee based solely on the employee's private political beliefs or affiliation presumptively violates the First Amendment. Branti v Finkel, 445 U.S. 507, 515-517; 100 S Ct 1287; 63 L Ed 2d 574 (1980); Rutan v Republican Party of Illinois, 497 U.S. 62, 65, 71-73, 75; 110 S Ct 2729; 111 L Ed 2d 52 (1990) (noting that promotions, transfers, and recalls after layoffs of lower-level public employees based on political affiliation or support impermissibly infringe their First Amendment rights). However, political affiliation may be an acceptable requirement for some types of employment. Branti, supra at 517-518; Hall v Tollett, 128 F.3d 418, 422 (CA 6, 1997).

The term "political affiliation" includes not only partisan political interests and concerns, but also beliefs and commitments, Monks v Marlinga, 732 F. Supp. 749, 753, n 2 (ED Mich, 1990), aff'd 923 F.2d 423 (CA 6, 1991). In the instant case, plaintiff and Swinkey are members of the same political party. The United States Court of Appeals for the Sixth Circuit in McCloud v Testa, 97 F.3d 1536, 1553 (CA 6, 1996), held that First Amendment protection from adverse patronage employment actions extends to nonideological political factions of the same party. See also Monks, supra at 753, n 2.

In McCloud, several Franklin County auditor's office employees, who were Republicans, brought suit when they were dismissed following the resignation of the Ohio Auditor and the appointment of a rival Republican to serve out the term. Id. at 1539. The plaintiffs alleged that their First Amendment rights to be free of patronage dismissals were violated, contravening 42 U.S.C. § 1983. Id. at 1541.

To determine whether political considerations are appropriate in making personnel decisions for a certain position, courts must examine the inherent duties of that position and the duties that the new holder of that position will perform. Hall, supra at 423.

In Monks, supra, which also involved members of the same party, the plaintiffs were assistant prosecutors who brought suit against Macomb County's prosecutor, alleging that the defendant terminated them because of their political affiliation, in violation of 42 U.S.C. § 1983. The district court dismissed the plaintiffs' political affiliation claims, concluding that political affiliation is pertinent to the effective performance of an assistant prosecutor's duties:

The Court's research has uncovered no precedent squarely addressing whether political affiliation is pertinent to the performance of the duties of an assistant county prosecutor appointed pursuant to Michigan law. The language of the relevant statutes, however, suggests that an assistant prosecutor's position involves, at a minimum, "a modicum of policymaking responsibility, access to confidential information, or official communication." Mariani-Giron v Acevedo Ruiz, 877 F.2d 1114, 1117 (1st Cir 1989) (emphasis in original). Specifically, assistant prosecutors "perform any and all duties pertaining to the office of prosecuting attorney at such time or times as he may be required so to do by the prosecuting attorney and during the absence or disability of the prosecuting attorney. . . ." [Quoting MCL 49.42, 49.52; MSA 5.802, 5.812.] . . .

. . . . The mere fact that assistant prosecutors try cases under the direction of the prosecutor indicates that political loyalty is important to the office of assistant prosecutor. Every prosecuting attorney, as an elected official, necessarily possesses a political agenda. That agenda is manifested through the handling of criminal cases within such prosecutor's county. Thus, the Court cannot escape the conclusion that political affiliation is pertinent to the effective performance of an assistant prosecutor's duties. [ Monks, supra at 753].

See also McCloud, supra at 1557, in which the court established four categories which attempt to capture the positions that could possibly fall into the Branti exception, including: Category One: positions specifically named in relevant federal, state, county or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted.

We conclude that under this line of authority, Swinkey could properly premise his decision not to reappoint plaintiff on plaintiff's political affiliation with his opponents. Swinkey thus articulated a legitimate, nondiscriminatory reason for not reappointing or subsequently rehiring plaintiff.

The burden then shifted to plaintiff to show by a preponderance of the evidence that the legitimate reason offered by defendants was a mere pretext for discrimination. Dubey, supra at 563. A plaintiff can establish that a defendant's articulated legitimate, nondiscriminatory reasons are pretexts (1) by showing the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the decision. Id. at 565-566. Plaintiff did not present evidence sufficient to satisfy any of the three prongs. She did not present evidence that defendants' reasons had no basis in fact or that they were insufficient to justify the decision not to reappoint or rehire. Plaintiff also failed to introduce evidence from which a factfinder could conclude that Swinkey's articulated reasons were not the actual factors motivating the decisions.

We conclude that the circuit court properly dismissed plaintiff's claims of age and gender discrimination because plaintiff failed to present sufficient evidence to raise a triable factual issue that Swinkey's articulated nondiscriminatory reasons for not reappointing her or subsequently rehiring her were pretexts. Grant v Michigan Osteopathic Medical Center, Inc, 172 Mich. App. 536, 540; 432 N.W.2d 313 (1988).


Plaintiff next argues that a genuine issue of material fact remained regarding whether defendants retaliated against her. We disagree.

The CRA prohibits an employer from retaliating against an employee for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act. MCL 37.2701; MSA 3.548(701). McLemore v Detroit Receiving Hosp, 196 Mich. App. 391, 395-396; 493 N.W.2d 441 (1992). Plaintiff's retaliation claim fails because she presented no evidence from which a reasonable factfinder could infer that there was a causal connection between her EEOC complaint and defendants' adverse employment actions. Kocenda v Detroit Edison Co, 139 Mich. App. 721, 726; 363 N.W.2d 20 (1984); see also Parnell v Stone, 793 F. Supp. 742, 746 (ED Mich, 1992), aff'd 12 F.3d 213 (CA 6, 1993). The only evidence plaintiff presented was that Swinkey testified at deposition that he was not pleased that plaintiff had filed an EEOC complaint and that he had talked about the complaint to one other person. This was insufficient to establish a causal link between plaintiff's EEOC complaint and the adverse employment actions. The circuit court properly dismissed plaintiff's retaliation claim for failing to establish that a genuine issue of material fact remained regarding whether defendants retaliated against her for filing her discrimination complaint. McLemore, supra at 395-396.

In light of our disposition, we need not address defendant Monroe County's argument that it was not an employer within the meaning of the CRA. Monroe County was properly dismissed because plaintiff's claims of discrimination and retaliation failed.

Plaintiff alleged that Monroe County funded and assisted in operating the office of Monroe County prosecutor and assisted in staffing that office with assistant prosecutors, all of whom are Monroe County employees.


Finally, plaintiff argues that the circuit court erred in granting defendants' motions for sanctions and costs pursuant to MCL 600.2591(3)(a); MSA 27A.2591(3)(a), MCR 2.114(F), and MCR 2.625(A)(2). A circuit court's finding that a claim is frivolous is reviewed for clear error. LaRose Market, Inc, v Sylvan Center, Inc, 209 Mich. App. 201, 210; 530 N.W.2d 505 (1995).

The trial court expressly found that the action was brought to harass and embarrass defendant Swinkey and with malice. While the conclusion was not compelled, we are unable to conclude that the circuit court's finding was clearly erroneous.