Finding that a discharged plaintiff had failed to establish that she engaged in a protected activity under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., failed to demonstrate a causal connection between her receipt of medical treatment and her discharge, and failed to show that her employer’s nonretaliatory reason for discharging her was merely pretextual, the Court of Appeals of Michigan, in Bush v. Peninsular Realty, Inc., 2011 Mich. App. LEXIS 2179 (Dec. 13, 2011), recently affirmed a trial court’s summary disposition of her tort action.
Plaintiff’s initial difficulty in showing that she had engaged in a protected activity under the WDCA was made more difficult because she did not file her worker’s compensation claim until after she was discharged. She countered that she asserted her rights under the WDCA by seeking medical care and treatment before her discharge. The appellate court indicated that even if plaintiff’s receipt of medical treatment constituted a protected activity under the WDCA, she nevertheless failed to establish a genuine issue of material fact regarding whether her termination was causally connected to her medical treatment and whether the employer’s stated reason for her discharge was pretextual.
The court noted that plaintiff had relied upon a temporal link between the medical treatment she received and her termination. While she had, perhaps, made out a prima facie case of retaliation, the claim had been effectively rebutted by the employer. Plaintiff had just completed a 90-day orientation period and her supervisor had received complaints regarding plaintiff’s performance. Plaintiff’s coworkers also had concerns about plaintiff’s interaction and comfort level with the residents at the employer’s facility. The court accordingly concluded that the employer provided a legitimate, nonretaliatory reason for discharging plaintiff, and plaintiff failed to provide any evidence beyond her subjective belief that the employer’s reason was a mere pretext for retaliation.