Kimberly Johnson v. City of Detroit

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS KIMBERLY JOHNSON, UNPUBLISHED August 05, 2025 Plaintiff-Appellant, 11:23 AM v No. 367098 Wayne Circuit Court CITY OF DETROIT, MIKEL OGLESBY, LOIS LC No. 21-015461-CD PITTMAN, MARYANN WALSH, DEBRA WARE, and KELECHI N. AKINBOSEDE, Defendants-Appellees and OFFICE OF INSPECTOR GENERAL, Defendant. Before: PATEL, P.J., and RIORDAN and SWARTZLE, JJ. SWARTZLE, J., (concurring). I concur in full with the majority opinion. I write separately to point out a feature (some might say a bug) in our jurisprudence involving this state’s civil-rights laws—namely, the requirement that parties and courts apply the McDonnell Douglas burden-shifting framework to claims of unlawful discrimination whenever there is no direct evidence of discrimination. For me, the McDonnell Douglas framework calls to mind a line from a classic 1980s movie, “Is that made up? That sounds made up.”1 To begin: Turn to the Appendix of this opinion and read the primary statutory prohibition of the Whistleblowers’ Protection Act (WPA), MCL 15.362. Now read the burden-shifting framework set forth in McDonnell Douglas Corp v Green, 411 US 792, 802-805; 93 S Ct 1817; 1 Rusty Griswold, National Lampoon’s Vacation (1983). -1- 36 L Ed 2d 668 (1973), made applicable to the WPA by decisions like Debano-Griffin v Lake Co, 493 Mich 167, 176; 828 NW2d 634 (2013). Next, read the primary statutory prohibition of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2202(1)(a). Now read again the McDonnell Douglas burden-shifting framework, made applicable to the ELCRA by decisions like Lytle v Malady, 456 Mich 1, 27; 566 NW2d 582 (1997), vacated in part on other grounds 458 Mich 153; 579 NW2d 906 (1998). See Appendix. And finally, read the primary statutory prohibition of the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1202(1)(a) and (b). Now read for the last time the McDonnell Douglas burden-shifting framework, made applicable to the PWDCRA by decisions like Hall v McRea Corp, 238 Mich App 361, 371; 605 NW2d 354 (1999), remanded on other grounds 465 Mich 919; 638 NW2d 748 (2001). See Appendix. Your eyes do not deceive you—The framework is made up, as there is literally nothing in these or other civil-rights laws that resembles, or even hints at, the elaborate burden-shifting framework first announced by the U.S. Supreme Court in McDonnell Douglas and subsequently adopted by Michigan courts. Nor is there anything like this framework in our summary-disposition standards, most notably MCR 2.116(C)(10), which asks simply whether there is a genuine issue of material fact for trial. The McDonnell Douglas framework was initially conjured as an evidentiary tool to help focus the parties and trial court, in the absence of direct evidence of discrimination, on the ultimate question, i.e., did the defendant unlawfully discriminate against the plaintiff? See Lytle v Malady (On Rehearing), 458 Mich 153, 173 & n 19; 579 NW2d 906 (1998). Like any tool, the framework was meant to be used only when it would be useful in answering the ultimate question. See id. at 173 n 19; see also Hazle v Ford Motor Co, 464 Mich 456, 466; 628 NW2d 515 (2001). But, as we sometimes learn with hindsight, a mere tool can take on a metastasized life of its own, a legal frankenstein, if you will. I do not claim originality in this observation. See, e.g., Ames v Ohio Dep’t of Youth Servs, 605 US __, __; 145 S Ct 1540; __ L Ed 3d __ (2025), slip op, pp 6-14 (THOMAS, J, concurring) (discussing the lack of textual support for the burden-shifting framework in the context of Title VII and Rule 56 of the Federal Rules of Civil Procedure, and citing several concurring opinions by federal circuit court judges, including Tynes v Florida Dep’t of Juvenile Justice, 88 F 4th 939, 952 (CA 11, 2023) (NEWSOM, J, concurring)). Nor do I claim that this framework was doomed from the start, as courts in the 1970s were grappling with a new body of civil-rights law, and some early guidance might well have been needed to sift the “unlawful discrimination” from the “lawful discretion.” I question, however, whether the burden-shifting framework has outlived its usefulness, as we now have decades of experience with the general framework of civil-rights laws. Against this questi