burden-shifting framework in Michigan

2026As I read the record, plaintiff has not identified one or more “similarly situated” employees for purposes of establishing either the causation component of the 1 McDonnell Douglas Corp v Green, 411 US 792, 802-805 ; 93 S Ct 1817 ; 36 L Ed 2d 668 (1973). 2 MCL 418.301(13) states: “A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.”

2026As I read the record, plaintiff has not identified one or more “similarly situated” employees for purposes of establishing either the causation component of the 1 McDonnell Douglas Corp v Green, 411 US 792, 802-805 ; 93 S Ct 1817 ; 36 L Ed 2d 668 (1973). 2 MCL 418.301(13) states: “A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act.”

2022Roulston v Tendercare (Mich) Inc, 239 Mich App 270, 280-281 ; 608 NW2d 525 (2000).

2022Roulston v Tendercare (Mich) Inc, 239 Mich App 270, 280-281 ; 608 NW2d 525 (2000).

2018As we first held in [Town, 455 Mich at 698 ], and then reaffirmed in Lytle, supra at 175-176 , 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.” A plaintiff can demonstrate that the stated reasons for not being promoted are pretext by “(1) 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 decisio

2018As we first held in [Town, 455 Mich at 698 ], and then reaffirmed in Lytle, supra at 175-176 , 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.” A plaintiff can demonstrate that the stated reasons for not being promoted are pretext by “(1) 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 decisio

2016Jones’s evidence of disparate treatment failed, 1 This burden-shifting framework also applies to retaliation claims under the Worker’s Disability Compensation Act, see Cuddington v United Health Servs, Inc, 298 Mich App 264, 276-277 ; 826 NW2d 519 (2013), and the FMLA, see Edgar v JAC Prods, Inc, 443 F3d 501, 508 (CA 6, 2006). -4- and Jones offered no further evidence of discrimination.

2016Jones’s evidence of disparate treatment failed, 1 This burden-shifting framework also applies to retaliation claims under the Worker’s Disability Compensation Act, see Cuddington v United Health Servs, Inc, 298 Mich App 264, 276-277 ; 826 NW2d 519 (2013), and the FMLA, see Edgar v JAC Prods, Inc, 443 F3d 501, 508 (CA 6, 2006). -4- and Jones offered no further evidence of discrimination.

1981Such a burden is expecially harmful when a person is required to overcome a presumption as to anything subjective, such as intent or wilfulness, and a barrier almost impossible to hurdle results.’ "We are convinced that by instructing the jury that *638 'unless the testimony satisfies you of something else’, the trial court created the prospect that the jury 'may have interpreted the judge’s instruction as * * * a burden-shifting presumption’, Sandstrom [v Montana, 442 US 510 ; 99 S Ct 2450 ; 61 L Ed 2d 39 (1979)], supra, p 524, and the instruction is therefore unconstitutional.” In People v R

1981Such a burden is expecially harmful when a person is required to overcome a presumption as to anything subjective, such as intent or wilfulness, and a barrier almost impossible to hurdle results.’ "We are convinced that by instructing the jury that *638 'unless the testimony satisfies you of something else’, the trial court created the prospect that the jury 'may have interpreted the judge’s instruction as * * * a burden-shifting presumption’, Sandstrom [v Montana, 442 US 510 ; 99 S Ct 2450 ; 61 L Ed 2d 39 (1979)], supra, p 524, and the instruction is therefore unconstitutional.” In People v R

2023Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [Maiden v Rozwood, 461 Mich 109, 120 ; 597 NW2d 817 (1999) (citations omitted).] -3- Under the burden-shifting framework of this court rule, “the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence.

2023Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [Maiden v Rozwood, 461 Mich 109, 120 ; 597 NW2d 817 (1999) (citations omitted).] -3- Under the burden-shifting framework of this court rule, “the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence.

2022Requiring litigants to preserve their claims of error with a contemporaneous objection provides trial courts the opportunity to correct the error, thereby obviating the need for further proceedings and avoiding the costs of new trials that could have been rendered unnecessary by timely objections. 26 “ ‘And of course the 25 Id. at ___; 137 S Ct at 1912 (brackets omitted; emphasis added), quoting Harrington v Richter, 562 US 86, 105 ; 131 S Ct 770 ; 178 L Ed 2d 624 (2011). 26 Cain, 498 Mich at 114 ; Grant, 445 Mich at 551 (“ ‘The reversal of a conviction entails substantial social costs: it for

2022Requiring litigants to preserve their claims of error with a contemporaneous objection provides trial courts the opportunity to correct the error, thereby obviating the need for further proceedings and avoiding the costs of new trials that could have been rendered unnecessary by timely objections. 26 “ ‘And of course the 25 Id. at ___; 137 S Ct at 1912 (brackets omitted; emphasis added), quoting Harrington v Richter, 562 US 86, 105 ; 131 S Ct 770 ; 178 L Ed 2d 624 (2011). 26 Cain, 498 Mich at 114 ; Grant, 445 Mich at 551 (“ ‘The reversal of a conviction entails substantial social costs: it for

2022Requiring litigants to preserve their claims of error with a contemporaneous objection provides trial courts the opportunity to correct the error, thereby obviating the need for further proceedings and avoiding the costs of new trials that could have been rendered unnecessary by timely objections. 26 “ ‘And of course the 25 Id. at ___; 137 S Ct at 1912 (brackets omitted; emphasis added), quoting Harrington v Richter, 562 US 86, 105 ; 131 S Ct 770 ; 178 L Ed 2d 624 (2011). 26 Cain, 498 Mich at 114 ; Grant, 445 Mich at 551 (“ ‘The reversal of a conviction entails substantial social costs: it for

2022Requiring litigants to preserve their claims of error with a contemporaneous objection provides trial courts the opportunity to correct the error, thereby obviating the need for further proceedings and avoiding the costs of new trials that could have been rendered unnecessary by timely objections. 26 “ ‘And of course the 25 Id. at ___; 137 S Ct at 1912 (brackets omitted; emphasis added), quoting Harrington v Richter, 562 US 86, 105 ; 131 S Ct 770 ; 178 L Ed 2d 624 (2011). 26 Cain, 498 Mich at 114 ; Grant, 445 Mich at 551 (“ ‘The reversal of a conviction entails substantial social costs: it for

2021Also, “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez v New York, 500 US 352, 359 ; 111 S Ct 1859 ; 114 L Ed 2d 395 (1991). 7 challenges.” 14 Notably, the same framework from Batson applies to cases in which the prosecution opposes a defendant’s use of a peremptory challenge on the basis of racial discrimination. 15 1.

2021Also, “[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” Hernandez v New York, 500 US 352, 359 ; 111 S Ct 1859 ; 114 L Ed 2d 395 (1991). 7 challenges.” 14 Notably, the same framework from Batson applies to cases in which the prosecution opposes a defendant’s use of a peremptory challenge on the basis of racial discrimination. 15 1.

2021In Georgia v McCollum, the Supreme Court held that “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory 11 Johnson v California, 545 US 162, 168 ; 125 S Ct 2410 ; 162 L Ed 2d 129 (2005), quoting Batson, 476 US at 94 . 12 Johnson, 545 US at 170 (“[I]n describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor’s explanation, before deciding whether it was more likely than not that the challenge was impro

2021In Georgia v McCollum, the Supreme Court held that “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory 11 Johnson v California, 545 US 162, 168 ; 125 S Ct 2410 ; 162 L Ed 2d 129 (2005), quoting Batson, 476 US at 94 . 12 Johnson, 545 US at 170 (“[I]n describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor’s explanation, before deciding whether it was more likely than not that the challenge was impro

2021In Georgia v McCollum, the Supreme Court held that “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory 11 Johnson v California, 545 US 162, 168 ; 125 S Ct 2410 ; 162 L Ed 2d 129 (2005), quoting Batson, 476 US at 94 . 12 Johnson, 545 US at 170 (“[I]n describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor’s explanation, before deciding whether it was more likely than not that the challenge was impro

2021In Georgia v McCollum, the Supreme Court held that “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory 11 Johnson v California, 545 US 162, 168 ; 125 S Ct 2410 ; 162 L Ed 2d 129 (2005), quoting Batson, 476 US at 94 . 12 Johnson, 545 US at 170 (“[I]n describing the burden-shifting framework, we assumed in Batson that the trial judge would have the benefit of all relevant circumstances, including the prosecutor’s explanation, before deciding whether it was more likely than not that the challenge was impro

2018When analyzing whether the proffered reasons is merely pretextual, we are mindful that “[p]retext is a commonsense inquiry: did the employer fire the employee for the stated reason or not.?” Id. (quotation marks and citations omitted). “ ‘At the summary disposition stage, the issue is whether plaintiff has produced evidence from which a jury could reasonably doubt the employer’s explanation.

2018When analyzing whether the proffered reasons is merely pretextual, we are mindful that “[p]retext is a commonsense inquiry: did the employer fire the employee for the stated reason or not.?” Id. (quotation marks and citations omitted). “ ‘At the summary disposition stage, the issue is whether plaintiff has produced evidence from which a jury could reasonably doubt the employer’s explanation.

2018As we first held in [Town, 455 Mich at 698 ], and then reaffirmed in Lytle, supra at 175-176 , 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.” A plaintiff can demonstrate that the stated reasons for not being promoted are pretext by “(1) 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 decisio

2018As we first held in [Town, 455 Mich at 698 ], and then reaffirmed in Lytle, supra at 175-176 , 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.” A plaintiff can demonstrate that the stated reasons for not being promoted are pretext by “(1) 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 decisio

2017Having failed to demonstrate a prima facie case of discrimination by direct evidence, the burden-shifting framework of McDonnell Douglas is applied to determine if plaintiff produced sufficient circumstantial evidence “to create a rebuttable presumption of discrimination.” Meagher v Wayne State Univ, 222 Mich App 700, 711 ; 565 NW2d 401 (1997) citing Dixon v W W Grainger, Inc., 168 Mich App 107, 115 ; 423 NW2d 580 (1987).

2017Having failed to demonstrate a prima facie case of discrimination by direct evidence, the burden-shifting framework of McDonnell Douglas is applied to determine if plaintiff produced sufficient circumstantial evidence “to create a rebuttable presumption of discrimination.” Meagher v Wayne State Univ, 222 Mich App 700, 711 ; 565 NW2d 401 (1997) citing Dixon v W W Grainger, Inc., 168 Mich App 107, 115 ; 423 NW2d 580 (1987).

2017Having failed to demonstrate a prima facie case of discrimination by direct evidence, the burden-shifting framework of McDonnell Douglas is applied to determine if plaintiff produced sufficient circumstantial evidence “to create a rebuttable presumption of discrimination.” Meagher v Wayne State Univ, 222 Mich App 700, 711 ; 565 NW2d 401 (1997) citing Dixon v W W Grainger, Inc., 168 Mich App 107, 115 ; 423 NW2d 580 (1987).

2017Having failed to demonstrate a prima facie case of discrimination by direct evidence, the burden-shifting framework of McDonnell Douglas is applied to determine if plaintiff produced sufficient circumstantial evidence “to create a rebuttable presumption of discrimination.” Meagher v Wayne State Univ, 222 Mich App 700, 711 ; 565 NW2d 401 (1997) citing Dixon v W W Grainger, Inc., 168 Mich App 107, 115 ; 423 NW2d 580 (1987).

2015Applying this standard to retaliation claims, a plaintiff must show that his “protected activity under the WPAwas “one of the reasons which made a difference in determining whether or not to [discharge] the plaintiff.” Matras v Amoco Oil Co, 424 Mich 675, 682 ; 385 NW2d 586 (1986) (quotation marks and citations omitted; emphasis added; alteration in original).

2015Applying this standard to retaliation claims, a plaintiff must show that his “protected activity under the WPAwas “one of the reasons which made a difference in determining whether or not to [discharge] the plaintiff.” Matras v Amoco Oil Co, 424 Mich 675, 682 ; 385 NW2d 586 (1986) (quotation marks and citations omitted; emphasis added; alteration in original).

2008We heard oral argument on defendant employer’s application for leave to appeal to consider whether the burden-shifting analysis articulated by the Court of Appeals relieved claimant of the burden of proving that he was disabled from all jobs paying the maximum wages within his qualifications and training, as required by Sington v Chrysler Corp, 467 Mich 144 ; 648 NW2d 624 (2002).

2008We heard oral argument on defendant employer’s application for leave to appeal to consider whether the burden-shifting analysis articulated by the Court of Appeals relieved claimant of the burden of proving that he was disabled from all jobs paying the maximum wages within his qualifications and training, as required by Sington v Chrysler Corp, 467 Mich 144 ; 648 NW2d 624 (2002).

2025Kincaid v Cardwell, 300 Mich App 513 , 537 n 6; 834 NW2d 122 (2013).

2025Kincaid v Cardwell, 300 Mich App 513 , 537 n 6; 834 NW2d 122 (2013).

2025See Quinto v Cross & Peters Co, 451 Mich 358, 361-362 ; 547 NW2d 314 (1996). “[C]onsistent[] with our adversarial system, MCR 2.116(G)(4) squarely places the burden of identifying the issues and evidentiary support on the parties, not the trial court.” Barnard, 285 Mich App at 376 .

2025Hazle, 454 Mich at 462; Johnson, 319 F3d at 865-866 .