A Close Friendship Is Not Enough To Maintain A "Third-Party" Retaliation Claim

• Jurisdiction: Michigan,United States
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals
• Author: Mr William S. Cook and Matthew High
• Published date: 23 January 2023

Most retaliation claims are brought by plaintiffs who allege their employer has taken adverse employment actions against them after they have engaged in a protected activity. A recent Michigan Court of Appeals case, however, involves plaintiffs who claim their employment was terminated because they are close friends with the person engaging in the protected activity. In Miller v. Michigan Department of Corrections, unpublished per curiam of the Michigan Court of Appeals, issued August 25, 2022 (Docket No. 356430), the court held that while third-party retaliation claims are viable under Michigan law, plaintiffs must show they have aided or encouraged a fellow employee in exercising a protected right.

Factual Background

The plaintiffs in Miller were the defendants' employees, and they had a close relationship with their supervisor, Cedric Griffey. Employee Lisa Griffey, Cedric's wife, filed a civil rights complaint alleging that she was racially harassed in the workplace. The plaintiffs allege internal affairs retaliated against Cedric after he complained about the harassment of his wife. The plaintiffs also believe a "sham investigation" was conducted on another matter to justify disciplining Cedric. The employment of the plaintiffs, Cedric and Lisa, was later terminated.

Procedural History

The plaintiffs filed a complaint alleging, among other claims, retaliation under Michigan's civil rights statute - the Elliott-Larsen Civil Rights Act (ELCRA). The plaintiffs also alleged the defendant had a pattern of retaliating against employees. The defendant filed a dispositive motion arguing that because plaintiffs did not allege that they engaged in any protected civil rights activity, they had failed to state a claim under the ELCRA. In response, the plaintiffs argued that they pled a claim for "associational" or "third-party" retaliation under Thompson v. North American Stainless, LP, 562 US 170, 173-174 (2011). The trial court relied on Thompson and denied the defendant's motion.

Analysis

As a result of the defendant's appeal, the Michigan Court of Appeals rejected the plaintiffs' reliance on Thompson. But it's important to understand what exactly the Thompson court held. There, the court considered whether a plaintiff who alleged that he was fired in retaliation for his fiancée's filing of a discrimination complaint against their mutual employer could bring a retaliation claim under Title VII.

The court concluded it was "obvious that a reasonable worker...