MI court lowers the bar on what constitutes adverse action for ELCRA retaliation claims

A Michigan Department of Transportation (MDOT) employee claimed the department retaliated against her by issuing her first-ever “needs improvement” evaluation, subjecting her to a performance improvement plan (PIP), and transferring her to a new location after she asserted a race discrimination claim. The Michigan Court of Appeals recently agreed with her that the so-called adverse employment actions supported denying the employer’s request for summary judgment (dismissal without a trial) and allowing her retaliation claim under the state’s Elliott-Larsen Civil Rights Act (ELCRA) to go forward.

Facts

Ellen White, an African-American property analyst, was one of two internal applicants for a promotion with the MDOT. At the time of her application, she was formally assigned to the department’s Lansing office but worked in the Detroit office four days each week, when she would be housed in a local hotel.

White’s arrangement in Detroit was established three years before her failure-to-promote claim and was necessary to be accessible to her property owner clients. For her work, she received only “high performing” and “meets expectations” ratings in her annual evaluations and never was given a “needs improvement” score or placed under a PIP.

The MDOT’s three-person interview panel unanimously selected the other candidate for the promotion. In response, White filed suit in circuit court alleging racial bias (failure-to-promote) in violation of the ELCRA.