STATE OF MICHIGAN

IN THE SUPREME COURT

DENISE DOSTER, Plaintiff-Appellant, MSC No. 162702-3 v. COA Nos. 349560, 350941 COVENANT MEDICAL CENTER, INC., Trial Court No. 17-034216-CD Defendant-Appellee. _____________________________________________________________________________

DEFENDANT-APPELLEE’S SUPPLEMENTAL BRIEF IN OPPOSITION TO PLAINTIFF’S APPLICATION FOR LEAVE TO APPEAL

DICKINSON WRIGHT PLLC David R. Deromedi (P42093) Phillip J. DeRosier (P55595) 500 Woodward Avenue, Suite 4000 Detroit, MI 48226 (313) 223-3500 Christina K. McDonald (P73517) 200 Ottawa Avenue N.W., Suite 1000 Grand Rapids, MI 49053 (616) 458-1300 Attorneys for Defendant-Appellee Covenant Medical Center, Inc.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

i

TABLE OF CONTENTS

INDEX OF AUTHORITIES........................................................................................................... ii

QUESTION PRESENTED BY THE COURT .............................................................................. iv

I. INTRODUCTION ...............................................................................................................1

II. MATERIAL FACTS AND PROCEEDINGS BELOW ......................................................3

A. Covenant created a new “generalist” position in its Human Resources (“HR”) department. ..................................................................................................3

B. Plaintiff Doster applied for the HR generalist position, but Covenant selected another applicant, Brent Ruddy, because he had more relevant experience. ...............................................................................................................5

C. The trial court denied Covenant’s motion for summary disposition as to Plaintiff Doster’s age discrimination claim. ..........................................................11

D. The Court of Appeals unanimously reversed the trial court’s denial of summary disposition, finding that Doster failed to present any evidence of unlawful discrimination. ........................................................................................13

III. ARGUMENT .....................................................................................................................17

A. The Court reviews de novo the trial court’s decision on Covenant’s motion for summary disposition. .......................................................................................17

B. Plaintiff Doster was required to present evidence from which a jury could determine that age was a motivating factor in Covenant’s hiring decision. ..........17

C. The record at the summary disposition stage was not sufficient to permit a reasonable trier of fact to conclude that age discrimination was a motivating factor in Covenant’s hiring decision. ...................................................19

1. There is no evidence “that the hiring manager may have focused on job candidates’ respective ages.” ..........................................................20

2. There were no “irregularities in the candidate scoring system.” ...............26

3. Covenant’s “stated rationale for its hiring decision” did not vary “from its originally-posted job description.” .............................................32

4. Doster’s claim amounts to second-guessing Covenant’s business judgment, which is not permitted...............................................................34

IV. CONCLUSION ..................................................................................................................37

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

ii

INDEX OF AUTHORITIES

Cases

Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362; 775 NW2d 618 (2009) ............................................................................................................. 23, 30

Briggs v Potter, 463 F3d 507 (CA 6, 2006) ............................................................................ 30, 32

Briggs v Univ of Cincinnati, 11 F4th 498 (CA 6, 2021) ............................................................... 33

Cooley v Carmike Cinemas, Inc, 25 F3d 1325 (CA 6, 1994) ................................................. 21, 22

Courtney v Biosound, Inc, 42 F3d 414 (CA 7, 1994) ................................................................... 33

Debano-Griffin v Lake Co, 493 Mich 167; 828 NW2d 634 (2013).............................................. 25

DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534; 620 NW2d 836 (2001) ................................................................................................................................ 21, 22

Emery v Chesapeake & Ohio Railway Co, 372 Mich 663; 127 NW2d 826 (1964) ..................... 24

Ercegovich v Goodyear Tire & Rubber Co, 154 F3d 344 (CA 6, 1998) ...................................... 26

George v Youngstown State Univ, 966 F3d 446 (CA 6, 2020) ................................... 16, 26, 27, 28

Goostree v Tennessee, 796 F2d 854 (CA 6, 1986) ....................................................................... 27

Hazle v Ford Motor Co, 464 Mich 456; 628 NW2d 515 (2001) ........................................... passim

Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 606; 886 NW2d 135 (2016) 17, 18, 20, 24

Jenkins v Nashville Pub Radio, 106 Fed Appx 991 (CA 6, 2004)................................................ 28

Kimble v Wasylyshyn, 439 Fed Appx 492 (CA, 2011) ................................................................. 27

Krohn v Sedgwick James, Inc, 244 Mich App 289; 624 NW2d 212 (2001)............... 16, 21, 22, 23

La Pointe v United Autoworkers Local 600, 8 F3d 376 (CA 6, 1993) ......................................... 22

Lytle v Malady, 458 Mich 153; 579 NW2d 906 (1998) ................................................................ 19

Maiden v Rozwood, 461 Mich 109; 597 NW2d 817 (1999) ......................................................... 17

McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973) 18, 20, 34

Miles v South Central Human Resource Agency, Inc, 946 F3d 883 (CA 6, 2020) ....................... 25

Presley v Ohio Dept of Rehab & Correction, 675 Fed Appx 507 (CA 6, 2017) .......................... 33

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

iii

Smith v City of Toledo, 13 F4th 508 (CA 6, 2021) ....................................................................... 25

Smith v Globe Life Ins Co, 460 Mich 446; 597 NW2d 28 (1999) ................................................ 17

Smith v Goodwill Indus of W Mich, Inc, 243 Mich App 438; 622 NW2d 337 (2000) ................. 24

Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124; 666 NW2d 186 (2003) .......................................................................................................................... 17, 18, 21

Town v Mich Bell Tel Co, 455 Mich 688; 568 NW2d 64 (1997) ................................................. 36

Statutes

MCL 37.2202(1)(a) ....................................................................................................................... 17

Rules

MCR 2.116(C)(10) ........................................................................................................................ 17

MCR 2.116(G)(4) ......................................................................................................................... 23

MCR 2.116(G)(5) ......................................................................................................................... 23

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

iv

QUESTION PRESENTED BY THE COURT

“[W]hether, when reviewing the record existing at the time the Saginaw Circuit Court

ruled on the appellee’s motion for summary disposition and when that record is construed in the

appellant’s favor, the evidence was sufficient to permit a reasonable trier of fact to conclude that

age discrimination was a motivating factor in the appellee’s hiring decision and that its stated

explanation was mere pretext for unlawful discrimination.”

The Court of Appeals would answer: No.

Defendant-Appellee Covenant Medical Center, Inc. answers: No.

Plaintiff-Appellant Denise Doster answers: Yes.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

I. INTRODUCTION

The Court has asked “whether, when reviewing the record existing at the time the

Saginaw Circuit Court ruled on the appellee’s motion for summary disposition and when that

record is construed in the appellant’s favor, the evidence was sufficient to permit a reasonable

trier of fact to conclude that age discrimination was a motivating factor in the appellee’s hiring

decision and that its stated explanation was mere pretext for unlawful discrimination.” In short,

the answer is “no.”

The Court of Appeals properly recognized that Plaintiff Doster failed to produce any

evidence that would permit a reasonable jury to infer that age played a role in Covenant’s

decision to hire Brent Ruddy over Doster for the position of “Human Resources Generalist,” that

Doster instead relied solely on speculation and second-guessing of Covenant’s business

judgment, and that Covenant was therefore entitled to summary disposition.

In an effort to demonstrate pretext, Doster relies on what she claims to be evidence

showing age-related bias on the part of Covenant’s Human Resources manager, Alison Henige,

who made the ultimate hiring decision. Specifically, Doster cites interview notes that Henige

made about the successful candidate, Brent Ruddy, “being young” and “[l]ooking for leadership

in the future.” Doster also takes issue with Henige’s note, “Why apply now,” which Doster

asserts shows Henige’s focus on Doster’s age. But as the Court of Appeals explained, none of

these notes provide any evidence of discriminatory animus.

A review of the entirety of Henige’s notes shows that her reference to Ruddy “being

young” related to his explanation during his interview about how it made it more challenging for

him to earn the respect of his superiors, and had nothing to do with her expressing a preference

for a younger applicant. To conclude otherwise, a jury would have to speculate, which is not

permitted. The same goes for Henige’s other notes. It is perfectly normal for an interviewer to

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

2

note a candidate’s statements about his or her job aspirations, as well as to “inquire about why

someone who had been in one position for many years was now interested in a different

position.” COA Op at 7, Appellant’s App 968a. Neither are suggestive of age bias

Doster also cites alleged “irregularities” in the way the interviewers scored Doster’s and

Ruddy’s interview scoring and evaluation sheets, including that some of the interviewers made

changes to their scores. But there is no support for Doster’s claim of discriminatory animus. As

the Court of Appeals observed, “[t]hat someone reflected upon which score to give a candidate

and changed his or her mind mid-interview is not, as plaintiff claims, evidence of a

discriminatory plot.” Id. Not only that, but Alison Henige testified that she did not “tally . . .

up” the scores in making her decision, and that she relied on the evaluation sheets only “for their

notes.” So Doster cannot demonstrate that the scores even affected the hiring decision. Doster

does not even address the Court of Appeals’ rationale, let alone explain why it is wrong.

Finally, there is no evidentiary support for Doster’s claim that Covenant improperly

relied on her lack of experience as an HR consultant because the HR generalist job description

did not mention “consulting.” The Court of Appeals addressed, and properly rejected, this claim

by pointing out that it was “abundantly clear from the deposition testimony of [Covenant’s]

employees that even if the position posting did not use the word ‘consulting,’ the position of HR

generalist did indeed involve a combination of consulting and recruiting work. And the posting

itself clearly placed an emphasis on consulting work such as analyzing and interpreting laws and

knowing about regulatory-compliance issues.” Id. Once again, Doster offers no response to the

Court of Appeals’ analysis.

For these reasons, and as further discussed below, the Court should deny leave to appeal.

There is nothing jurisprudentially significant about Doster’s appeal, MCR 7.305(B)(3), nor is the

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

3

Court of Appeals’ decision “clearly erroneous.” MCR 7.305(B)(5). The Court of Appeals

correctly decided Covenant’s appeal, and its opinion does not raise any issues worthy of this

Court’s consideration. In assessing the sufficiency of Doster’s evidence of pretext, the Court of

Appeals applied well established legal principles and correctly determined that Doster failed to

create a genuine issue of material fact for trial. In reaching that conclusion, the Court of Appeals

properly deferred to Covenant’s reasoned business judgment in selecting who it believed to be

the better qualified candidate for the position.

II. MATERIAL FACTS AND PROCEEDINGS BELOW

The Court of Appeals provided a concise overview of the circumstances leading to

Doster’s age discrimination claim against Covenant:

Plaintiff worked as a recruiter in defendant’s human resources (HR) department for many years. In October 2016, when she was over 60 years old, plaintiff applied for a position as an HR “generalist” with defendant. Evidence established that an HR generalist performs both recruiting and consulting work. Plaintiff alleged that defendant committed age and race discrimination against her when it hired a younger white male, Brent Ruddy, instead of her for the HR generalist position. Plaintiff was interviewed before a panel consisting of Alison Henige, Kevin Birchmeier, Moll[y] Andrews, Lisa Killey, and Sandie Haley. Henige, as defendant’s HR manager, made the ultimate hiring decision. She and others testified that Ruddy was chosen for the position because he was experienced in consulting and plaintiff was not, and consulting was a vital need for the company at the time. [COA Op at 1-2, Appellant’s App 962a-963a.]1

A. Covenant created a new “generalist” position in its Human Resources (“HR”) department.

The HR generalist position that Doster applied for was a newly-created position that

combined the responsibilities of two separate positions in Covenant’s HR department—“Human

Resources Employment Specialist” and “Human Resources Consultant.” See Appellee’s App

002b-006b. As the job postings for those two positions make clear, an “employment specialist”

1 As the Court of Appeals noted, Doster did not appeal the trial court’s dismissal of her race discrimination claim, so that claim is not at issue here. Id. at 1 n 1, Appellant’s App 962a.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

4

(a/k/a “recruiter”) focuses on recruiting, working with Covenant’s managers and potential

applicants to fill job openings and verify applicants’ credentials. Id. A “consultant” helps to

create and administer HR policies, works with managers and employees on disciplinary issues,

evaluates risks to the organization, and works with Covenant’s attorneys on employment-related

legal matters. Id.

As HR manager Alison Henige explained, the HR generalist position was designed to

involve “part recruiting/part consulting.” Deposition of Alison Henige at 7, Appellee’s App

008b. Although the generalist job description did not use the word “consulting,” the Court of

Appeals correctly observed that the posting “clearly placed an emphasis on consulting work such

as analyzing and interpreting laws and knowing about regulatory-compliance issues.” COA Op

at 7, Appellant’s App 968a.

Consulting was also the area where Covenant had the greatest need at the time. There

were four recruiters working in Covenant’s HR department to help fill open positions (including

Doster), whereas Covenant had only two consultants to oversee all of its approximately 5,000

employees. Pl’s Dep at 92, Appellee’s App 032b; Affidavit of Sandie Haley, Appellee’s App

052b. Moreover, Covenant’s two most recent consultant hires had left their positions. Haley

Aff, Appellee’s App 052b.

In light of those vacancies, yet recognizing the continued need for recruiting help as well,

Henige decided to create the new position of HR generalist, with the person occupying that

position able to perform both functions. Haley Aff, Appellee’s App 053b; Henige Dep at 7,

Appellee’s App 008b. At the same time, Covenant decided to place more of a focus on prior

consulting experience when interviewing candidates because, as Henige explained, “we needed

someone that could hit the ground running as a consultant and not need as much coaching, and

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

5

time to learn the laws.” Henige Dep at 34, Appellee’s App 013b. Compared to recruiting,

consulting was a job that “[took] up a lot more time and energy at times.” Deposition of Molly

Andrews at 22, Appellee’s App 057b. In addition, Henige thought it would be easier to train

someone on the recruiting part of the job because “I . . . had four recruiters that could help

them.” Henige Dep at 24, Appellee’s App 011b.

B. Plaintiff Doster applied for the HR generalist position, but Covenant selected another applicant, Brent Ruddy, because he had more relevant experience.

Doster decided to apply for the HR generalist position after spending eighteen years

working as a recruiter/HR specialist. Pl’s Dep at 15, Appellee’s App 016b. She had never

performed any HR consulting work at Covenant, and fully admitted that she lacked knowledge

and experience in many of the functions required of an HR consultant. For example, Doster had

no experience in evaluating, disciplining, or terminating employees, and understood “consulting”

with employees and management about HR issues to mean “talking.” Id. at 94, 123, Appellee’s

App 033b, 040b.

One of the specific roles listed in the HR generalist job description was “[p]rovid[ing]

advice and expertise in the areas of employee/labor relations (represented and non-represented

employees),” yet when asked in her deposition about what “represented and non-represented

employees” meant, Doster clearly did not know, responding:

If they’re employed there they’re an employee, whether you are there with them or whether you’re not there with them. I guess I would have to have that explained more. [Id. at 109, Appellee’s App 036b.]

Doster was similarly confused when asked about other aspects of the position:

Q. “Coordinates the Alternate Dispute Resolution Process.”

A. “Coordinates the Alternate Dispute Resolution Process.”

Q. What do you think that means?

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

6

A. I don’t know.

Q. Okay.

A. I don’t. At this time I cannot think. [Id. at 115, Appellee’s App 038b.]

Doster had no experience in representing any employer—much less a large employer—in

a legal capacity or in working with attorneys, including at Covenant. Yet one of the functions of

the HR generalist position was “consult[ing] with legal counsel to represent the organization.”

Id. at 85, 115-116, 132, Appellee’s App 031b, 038b-039b, 041b; HR Generalist Job Posting,

Appellant’s App 793a. A related requirement for the position was “knowledge of State and

Federal regulations governing organizational functions and Human Resources operations.” Id.

Doster, however, acknowledged in her deposition that she would have to “learn” that on the job:

Q. . . . Why don’t we move on to the second page of the job description. “Demonstrates knowledge of State and Federal regulations governing organizational functions and Human Resources operations.” Can you -- do you believe you possess that?

A. You know what, a lot of this stuff you have to learn in the position. You’ve got to be in the position to learn it.

Q. Okay. So I’m sorry, so is the answer to the question that that you don’t know this, or you didn’t know this at the time that you applied but you could have learned it once you were in the position?

A. Both. I’m familiar with it. I may not have done exactly that but I definitely can learn it. [Pl’s Dep at 109, Appellee’s App 036b.]

When asked about her interactions with regulatory agencies, Doster had trouble even

identifying relevant agencies, let alone explaining her experience in working with them:

For Federal and State, give me some examples.

Q. Well, any kind of governmental agency. Let me think of an example. Department of Health.

A. What did I do with the Department of Health?

Q. Have you done any work with the Department of Health?

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

7

A. Over the years I have. Not anything recently.

Q. Okay. Well, I just mean that as an example of the kind of regulatory -- you know, obviously hospitals are very highly regulated. There are a lot of agencies that oversee hospitals.

A. Uh-huh.

Q. Do you have experience working with those? . . .

A. I guess I’m really trying to think. Government agencies, I’m familiar with FMLA.

Q. Okay. What about the EEOC?

A. EEOC, yes.

Q. Okay. Have you worked with them?

A. That’s part of what we practice, Equal Employment Opportunities. [Id. at 105, Appellee’s App 034b.]

By contrast, the other applicant that Covenant was considering for the HR generalist

position, Brent Ruddy, had three years of recent experience as an HR consultant with a large

health care provider, McLaren Health Care Corporation. See Brent Ruddy Resume, Appellee’s

App 059b. Ruddy’s resume detailed his responsibilities in that role:

• Serve as the primary contact person and assist over 30 departments (over 1000 employees) in the interpretation and application concerning HR policies, procedures and labor relations.

• Conduct formal investigations involving employee discipline, harassment, discrimination, etc. and recommend appropriate action to leadership.

• Meet with employees and managers upon notice of termination and layoffs (voluntary/involuntary).

• Responsible for union grievances and support the arbitration process. • Assist in preparation for negotiations and arbitration hearings. • Work with third party administrators to facilitate and resolve employment

claims. • Facilitated new employee orientations and leadership training classes. • Review and evaluat[e] below standard performance reviews and discuss

strategies with department leadership. • Support managers and directors by explaining the system policies and

procedures. [Id.]

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

8

Although perhaps not as extensive as Doster’s, Ruddy also had recruiting experience in both his

consulting position and in a prior HR assistant position he held with McLaren. Id.; Henige Dep

at 28, Appellee’s App 012b (“If you look at his HR assistant role, he was assisting the recruiting

team, and when we talked with him in his interview . . . when he was doing the consultant role,

he was also assisting the recruitment team.”).

As the Court of Appeals observed, Doster and Ruddy were both interviewed by a panel

consisting of Alison Henige (Covenant HR manager), Kevin Birchmeier (Covenant Vice

President of HR), Molly Andrews (Covenant HR consultant), Sandie Haley (Covenant HR

consultant), and Lisa Killey (former Covenant HR consultant)—although Ruddy’s interview

panel had an additional member, Erik Fielbrandt. COA Op at 2, Appellant’s App 963a. Henige,

Andrews, Haley, and Killey all took notes during the interviews and filled out scoring and

evaluation sheets, but Henige made the ultimate hiring decision. See Interview Scoring and

Evaluation Sheets, Appellant’s App 804a-823a, 833a-856a; Deposition of Kevin Birchmeier at

19, Appellee’s App 062b.

Henige testified that she reviewed the interviewers’ scoring and evaluation sheets “for

their notes,” but did not “tally” the scores. Henige Dep at 23, Appellee’s App 010b. She also

spoke with Molly Andrews and Sandie Haley—both HR consultants for Covenant—about

Doster’s interview, and recalled “talking about needing an applicant who had more consulting

experience.” Id. at 24, Appellee’s App 011b. That was consistent with what both Andrews and

Haley noted on their evaluation sheets. Andrews commented under Doster’s “weaknesses” her

lack of “HR consulting experience” and that she did not “seem to understand the true meaning of

the consultant part [of the HR generalist position.]” Appellant’s App 818a. Haley similarly

noted that although Doster had recent “recruiting experience,” she had “[n]o consulting

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

9

experience.” Appellant’s App 808a. Haley included under “additional comments” that “there

would be a big learning [curve] for the role outside of the recruitment realm.” Id. Lisa Killey,

who was a former Covenant HR consultant, noted on her evaluation sheet that she felt Doster

showed “minimal knowledge in employment law.” Appellant’s App 813a.

Andrews, Haley, and Killey also testified about Doster’s lack of consulting experience

and resulting lack of knowledge in that area in their depositions. Andrews testified that they

asked questions “that an HR consultant role would get asked on a continuous basis,” that

Doster’s responses were “very general,” and that she “didn’t know the specifics.” Andrews Dep

at 15, Appellee’s App 055b. Haley testified that when “reviewing the applicants in their

strengths and weakness[,] [t]he concern that I had with [Doster] in the generalist role is the lack

of consulting experience.” Deposition of Sandie Haley at 9, App 066b. Killey echoed those

comments: “She didn’t have the necessary skill sets . . . [T]he interview was very general . . .

[There] was just a general consensus [that she lacked knowledge in employment law] [b]ased

upon her work history and what her current position was in human resources being a recruiter.”

Deposition of Lisa Killey at 11, Appellee’s App 072b.

Meanwhile, the consensus among the interviewers after Brent Ruddy’s interview was that

he was a very strong candidate for what Covenant was looking for in the HR generalist position.

On her evaluation sheet, Lisa Killey noted that Ruddy had “relatable consultant experiences” and

exclaimed that he “answered on point!” Appellant’s App 842a. Sandie Haley’s notes were

similar (“Has a good handle on the consulting role”), Appellee’s App 077b,2 as were Molly

Andrew’s (“[H]as been a consultant/utilizing consultant experience . . . great experience with

consult[ing]”), Appellant’s App 847a.

2 Doster omitted this page from her appendix.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

10

At her deposition, Alison Henige testified that she selected Ruddy for the position

because “we felt like he was the best fit for the position.” Henige Dep at 34, Appellee’s App

013b. Asked to elaborate, Henige explained that the most important factor was his consulting

experience:

Q. And why did you think he was the best fit?

A. Because he had good consulting experience, recent consulting experience, and like I mentioned, we needed someone that could hit the ground running as a consultant and not need as much coaching, and time to learn the laws, and know how to help our leaders. [Id.]

Sandie Haley similarly testified that Ruddy’s consulting experience made him a “better fit for the

team than [Doster] would have been,” adding that Covenant had previously hired a recruiter to

do HR consulting and was “suffering to this day as a result.” Haley Dep at 12-14, Appellee’s

App 067b-069b. Lisa Killey testified that, unlike Doster, Ruddy “could articulate and give past

experience to [employment-related] questions. They weren’t vague.” Killey Dep at 17,

Appellee’s App 075b.

Finally, Molly Andrews addressed Doster’s and Ruddy’s relative experience with

recruiting, how this factored in to her recommendation, and why she ultimately placed more

weight on Ruddy’s consulting experience compared to Doster’s recruiting experience, which was

more extensive than Ruddy’s:

Q. So comparing the two, Ms. Doster and Mr. Ruddy, why was limited experience in consulting a reason not to hire or select Ms. Doster in your mind, but limited experience in recruiting wasn’t a reason to not select Mr. Ruddy?

A. At the time there were, you know, two of us who were HR consultants working the entire hospital system, and the consulting does take up a lot more time and energy at times. Where recruiting may be—having done recruiting in a past, past life, may not have been as much, and we needed the consultant help in areas so that we were able to continue doing consulting in an efficient level. [Andrews Dep at 21-22, Appellee’s App 056b-057b.]

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

11

C. The trial court denied Covenant’s motion for summary disposition as to Plaintiff Doster’s age discrimination claim.

On December 12, 2016, shortly after she was passed over the HR generalist position,

Doster retired from Covenant. Pl’s Dep at 26, Appellee’s App 017b. Doster sued Covenant on

September 8, 2017, alleging age and race discrimination in violation of the Elliott-Larsen Civil

Rights Act (ELCRA), MCL 37.2101 et seq. As mentioned previously, the trial court eventually

dismissed Doster’s race discrimination, and she did not appeal, so only Doster’s age

discrimination claim is at issue here.

After discovery closed, Covenant filed a motion for summary disposition arguing that

Doster’s claim for age discrimination failed as a matter of law. See Def’s Mot for Summ Disp,

Appellee’s App 079b. As the Court of Appeals explained, Covenant “conceded that [Doster] had

established a prima facie case, see, e.g., Hazle v Ford Motor Co, 464 Mich 456, 463; 628 NW2d

515 (2001), and the parties agreed that [Covenant] had proffered legitimate, nondiscriminatory

reasons for its hiring decision. The dispute, therefore, surrounded whether [Doster] established a

genuine issue of material fact regarding whether [Covenant’s] proffered reasons were merely a

pretext for unlawful discrimination.” COA Op at 2, Appellant’s App 963a.

On the issue of pretext, Doster cited various reasons why she believed there to be genuine

issues of material fact for trial:

• Doster claimed that there were discrepancies in how the interviewers asked Doster and Ruddy questions, including asking Ruddy follow up questions that they did not ask her.

• Doster claimed that when filling out evaluation sheets, some of the interviewers scored certain of Ruddy’s responses but not Doster’s, and that two of the interviewers—Sandie Haley and Lisa Killey—changed some of their scores during the interview process, including a score for Doster that was decreased and one for Ruddy that was increased.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

12

• Doster argued that Henige’s explanation that Ruddy was the “best fit for the position” was likewise subjective and a pretext for age discrimination in light of Doster’s claim of having received “different treatment” during the interview process.

• Although the job posting stated “Previous recruiting experience required,” Doster believed that Ruddy did not have such experience, while she did, making her the “plainly superior candidate.”

• Henige made notes about Ruddy “looking for leadership in the future” and being “young.”

See Pl’s Br in Support of Opp to Def’s Mot for Summ Disp at 6-14, Appellee’s App 103b-111b.

The trial court denied Covenant’s motion for summary following a hearing held on July

16, 2018. See 7/6/18 Hrg Tr, Appellee’s App 115b. As the Court of Appeals observed, in

finding a jury-submissible issue as to whether age was a motivating factor in Covenant’s hiring

decision, the trial court relied solely on the “notation by Henige on her interview scoring sheet

about Ruddy ‘being young.’” COA Op at 5, Appellant’s App 966a; see also 7/16/18 Hrg Tr at

59-61, Appellee’s App 173b-175b. The Court of Appeals summarized the trial court’s rationale:

As noted by defendant on appeal, the trial court relied on a single piece of evidence in denying defendant’s motion for summary disposition—a notation by Henige on her interview scoring sheet about Ruddy “being young.” In Henige’s interview notes regarding Ruddy, she made a notation about “values.” She wrote, “Accountability—having the same standards & following them,” and “Respect—being young—took a while to gain [with] leaders.” The court concluded that it could not interpret this statement and that the statement could be evidence that Henige “did place some emphasis on the age of Mr. Ruddy in comparison to that of the plaintiff for purposes of making her decision.” The court said:

I don’t think the Court for purposes of deciding a motion for summary disposition can give interpretation to that statement without there being some testimony to put that in context. I guess the Court could go out on a limb and assume that that means that being young took a while to gain the respect of leaders, however, that’s just one interpretation.

The court added, “While this handwritten comment may be viewed as nothing more than a record of a response given, such evidence also may support the conflicting inference that this comment was noted as evidence of defendant’s

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

13

preference for a younger applicant.” [COA Op at 5-6, Appellant’s App 966a-967a.]

After the trial court denied Covenant’s motion for summary disposition, “[t]he case ultimately

went to trial and the jury found that age discrimination, not defendant’s business judgment, was

the reason that it did not promote plaintiff.” Id. at 2, Appellant’s App 963a.

D. The Court of Appeals unanimously reversed the trial court’s denial of summary disposition, finding that Doster failed to present any evidence of unlawful discrimination.

On appeal, Covenant argued, in relevant part, that the trial court should have granted its

motion for summary disposition, and that the case never should have gone to trial. The Court of

Appeals agreed. The Court began its analysis by citing Covenant’s legitimate, non-

discriminatory explanation for its decision:

In this case, Henige testified in her deposition that Ruddy was “the best fit for the position.” When asked to elaborate, she said that that this was the case

[b]ecause he had good consulting experience, recent consulting experience, and like I mentioned, we needed someone that could hit the ground running as a consultant and not need as much coaching, and time to learn the laws, and know how to help our leaders.

In contrast, Andrews testified that plaintiff did not know “specifics” about HR consulting. She opined that plaintiff would end up focusing on recruiting and that “actual assistance for HR legal risks will be put to the side.” Andrews testified that Ruddy did have experience in consulting, but that Ruddy had limited experience in recruiting. Andrews also testified, however, that consulting was a bigger need for defendant at the time of hiring. In addition, the evidence clearly showed that Ruddy did have some recruiting experience.

Killey testified that after plaintiff’s interview, the panel members decided that plaintiff did not have the “necessary skill sets that was [sic] needed for the position” and lacked knowledge of employment law. Similarly, Haley testified that she had a concern about plaintiff’s lack of consulting experience. She stated that, “[b]ased on the experience level between the two of them, [Ruddy] was a better fit for the team than [plaintiff] would have been.” Haley stated that in the past, when a recruiter had been hired as a consultant, the company suffered. [Id. at 5, Appellant’s App 966a.]

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

14

The Court of Appeals then carefully addressed Doster’s claim that Covenant’s

explanation was merely a pretext for age discrimination. The Court first determined that “[t]he

trial court erred by concluding that [Henige’s notation] was sufficient to raise a genuine issue of

material fact regarding pretext” because, “contrary to the trial court’s conclusion, the notation

did not provide any evidence of ‘defendant’s preference for a younger application.’” Id. at 6,

Appellant’s App 967a. The Court of Appeals explained:

To begin with, plaintiff conceded that the use of the word “young” was Ruddy’s, not Henige’s, and that Henige merely wrote down what Ruddy had said. In any event, there is no natural and common-sense manner in which to interpret the statement other than Ruddy explaining why, as a young person, it had taken some time to earn his colleagues’ respect. If anything, even viewing the statement in the light most favorable to plaintiff, as we view all of the evidence for purposes of the summary disposition motion, had defendants in fact had discriminatory intent, it likely would have redounded to plaintiff’s benefit as it constituted a concession by Ruddy that his youth had been something of a disadvantage in his then-current position, albeit one he had overcome. All of the other interview participants’ notes support that conclusion. Haley noted in her interview notes that Ruddy had stated that “accountability & respect resonate with him.” Similarly, Andrews wrote “accountability” and “respect—huge/earned” in her notes about Ruddy, and Erik Fielbrandt wrote the following on his notes concerning Ruddy: “Accountability—Easier when held to the same standard,” and “Respect—Takes some time to earn the respect of leaders.” [Id.]

Turning next to Doster’s other purported evidence of pretext, the Court of Appeals found

“unpersuasive” Doster’s claim that pretext was shown by “interview panel members changing

their scores on interview sheets”:

That someone reflected upon which score to give a candidate and changed his or her mind mid-interview is not, as plaintiff claims, evidence of a discriminatory plot. As noted by defense counsel at the summary-disposition hearing, “All the evidence shows is somebody wrote down a score, crossed it out, and wrote something else. People do that all the time.” Indeed, Henige testified that she ultimately made the hiring decision in this case. Henige reviewed the interview scoring sheets “for their notes,” but testified that the sheets were merely advisory to assist her in making her decision. In fact, Henige did not even “tally . . . up” the scores when making her hiring decision. Similarly, Birchmeier also testified that any numerical “scoring” on the interview scoring sheets was simply advisory and not dispositive. Consequently, there was no evidence that the scoring sheets actually affected Henige’s hiring decision and, even if they did, no evidence

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

15

established that the scoring changes were caused by age discrimination. Thus, the scoring sheets also fail to establish that defendant discriminated against plaintiff because of her age. [Id. at 7, Appellant’s App 968a.]

Although Doster had not cited it in responding to Covenant’s motion for summary

disposition, the Court of Appeals assessed another of Henige’s notes that Doster claimed was

evidence of age bias. As the Court explained, “Henige wrote in plaintiff’s interview notes, in the

section dealing with why the applicant is interested in the position, ‘Why apply now.’” Id.,

Appellant’s App 968a. The Court reasoned that one could only speculate as to whether this was

evidence of “invidious discrimination as opposed to a bona fide inquiry about the applicant’s

motivation,” and that such speculation was not sufficient to establish a genuine issue of material

fact. Id.

The Court also addressed and rejected Doster’s claim that the HR generalist job posting

did specifically mention “consulting,” which Doster argued allowed for an inference that

Covenant’s focus on consulting experience was actually a pretext for discrimination:

Plaintiff also notes that the job posting for the HR generalist position did not specifically mention consulting, but it was abundantly clear from the deposition testimony of defendant’s employees that even if the position posting did not use the word “consulting,” the position of HR generalist did indeed involve a combination of consulting and recruiting work. And the posting itself clearly placed an emphasis on consulting work such as analyzing and interpreting laws and knowing about regulatory-compliance issues. [Id. at 7, Appellant’s App 968a.]

Finally, the Court of Appeals took note of additional “evidence” that Doster cited for the

first time on appeal, including that Covenant allegedly had “a pattern of hiring young job

applicants” and “failed to follow its own hiring policies” by not giving preference to an internal

candidate. Id. at 6, Appellant’s App 967a. The Court held that this evidence could not be

considered because Doster had failed to present it in responding to Covenant’s motion for

summary disposition. Id. The Court further remarked that even if it considered Covenant’s other

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

16

hiring decisions, Doster made “no assertions regarding the ages of the other individuals in the

applicant pools when hiring decisions were made. As such, this supposed ‘evidence’

demonstrates nothing of import because the young individuals who were hired might have been

the oldest individuals who applied, or at least no younger than other applicants.” Id.3

Doster moved for reconsideration, arguing, without support, that the Court of Appeals

“lacked jurisdiction” to review the trial court’s decision denying Covenant’s motion for summary

disposition, and was not permitted to limit its review to the summary disposition record. The

Court denied Doster’s motion, and this application for leave to appeal followed.

On June 11, 2021, this Court directed the Clerk to schedule oral argument on Doster’s

application for leave to appeal, and ordered the parties to submit supplemental briefs

addressing whether, when reviewing the record existing at the time the Saginaw Circuit Court ruled on the appellee’s motion for summary disposition and when that record is construed in the appellant’s favor, the evidence was sufficient to permit a reasonable trier of fact to conclude that age discrimination was a motivating factor in the appellee’s hiring decision and that its stated explanation was mere pretext for unlawful discrimination. See generally Hazle v Ford Motor Co, 464 Mich 456 (2001). In particular, the appellant should address any inferences arising from evidence that the hiring manager may have focused on job candidates’ respective ages, that there were irregularities in the candidate scoring system, and that the appellee’s stated rationale for its hiring decision varied from its originally-posted job description. See, e.g., Krohn v Sedwick James of Mich, Inc, 244 Mich App 289, 298 (2001) (considering the probative value of “stray remarks”); George v Youngstown State Univ, 966 F3d 446, 466 (CA 6, 2020) (recognizing that “evidence suggest[ing] irregularities with the search process . . .

3 In her application for leave to appeal, Doster argued that “the Court of Appeals ignored evidence that Defendant had engaged in a pattern of hiring substantially younger employees in the Human Resources Department.” Pl’s App for Lv at 36. Doster does not continue to press this alleged “pattern” in her supplemental brief, and for good reason. First, as the Court of Appeals correctly noted, it is not part of the summary disposition record. Second, it is plainly insufficient to create question of fact for trial for the reasons the Court of Appeals cited. See White v Dep’t of Transp, 334 Mich App 98, 113-114; 964 NW2d 88 (2020) (finding the plaintiff’s claim that “no African American had been hired [for the position at issue] in at least the last 15 years” to be “insufficient to establish a pattern of discrimination” because the plaintiff failed to provide “information regarding the number of postings or the applicant pool for those postings.”).

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

17

can raise a genuine issue of fact as to whether an employer’s asserted reason is pretextual”).

III. ARGUMENT

A. The Court reviews de novo the trial court’s decision on Covenant’s motion for summary disposition.

The standards for reviewing a motion for summary disposition under MCR 2.116(C)(10)

are well established. Most relevant here is that in order to survive summary disposition, the

opposing party must “set forth specific facts showing a genuine issue for trial.” Maiden v

Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “Mere speculation or conjecture is

insufficient[.]” Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 140; 666

NW2d 186 (2003). “If the opposing party fails to present documentary evidence establishing the

existence of a material factual dispute, the motion is properly granted.” Smith v Globe Life Ins

Co, 460 Mich 446, 455; 597 NW2d 28 (1999).

B. Plaintiff Doster was required to present evidence from which a jury could determine that age was a motivating factor in Covenant’s hiring decision.

Plaintiff claims that in failing to hire her for the HR generalist position, Covenant

discriminated against her on the basis of her age in violation of MCL 37.2202(1)(a). That

provision states, in relevant part, that an employer “shall not . . . [f]ail or refuse to hire . . . or

otherwise discriminate against an individual with respect to employment . . . because of . . . age.”

The Court of Appeals, however, properly determined that there is no evidence to support an age

discrimination claim, and that Covenant was therefore entitled to summary disposition.

This Court has explained that “[t]he ultimate question in an employment discrimination

case is whether the plaintiff was the victim of intentional discrimination.” Hecht v Nat’l Heritage

Academies, Inc, 499 Mich 586, 606; 886 NW2d 135 (2016). Discriminatory treatment may be

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

18

shown in one of two ways: it may be established by (1) “direct evidence,” or (2) by “indirect or

circumstantial evidence.” Sniecinski, 469 Mich at 132.

“In cases involving direct evidence of discrimination, a plaintiff may prove unlawful

discrimination in the same manner as a plaintiff would prove any other civil case.” Id. “Direct

evidence” is defined as “evidence which, if believed, requires the conclusion that unlawful

discrimination was at least a motivating factor in the employer’s actions.” Id. (citation and

internal quotations omitted); see also Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d

515 (2001). It is evidence that “proves impermissible discriminatory bias without additional

inference or presumption.” Hecht, 499 Mich at 608 n 34.

“In cases involving indirect or circumstantial evidence, a plaintiff must proceed by using

the burden-shifting approach set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S

Ct 1817; 36 L Ed 2d 668 (1973).” Sniecinski, 469 Mich at 133-134. “This approach allows ‘a

plaintiff to present a rebuttable prima facie case on the basis of proofs from which a factfinder

could infer that the plaintiff was the victim of unlawful discrimination.’” Id. at 134 (citation

omitted). “To establish a rebuttable prima facie case of discrimination, a plaintiff must present

evidence that (1) [she] belongs to a protected class, (2) [she] suffered an adverse employment

action, (3) [she] was qualified for the position, and (4) [his] failure to obtain the position

occurred under circumstances giving rise to an inference of unlawful discrimination.” Id.

“Once a plaintiff has presented a prima facie case of discrimination, the burden then

shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse

employment action.” Id. “If a defendant produces such evidence, the presumption is rebutted,

and the burden shifts back to the plaintiff to show that the defendant’s reasons were not the true

reasons, but a mere pretext for discrimination.” Id. “At that point, in order to survive a motion

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

19

for summary disposition, the plaintiff must demonstrate that the evidence in the case, when

construed in the plaintiff’s favor, is ‘sufficient to permit a reasonable trier of fact to conclude that

discrimination was a motivating factor for the adverse action taken by the employer toward the

plaintiff.’” Hazle, 464 Mich at 465 (citation omitted).

Whether a plaintiff seeks to rely on direct or circumstantial evidence, the analysis at the

summary disposition stage is the same: “a plaintiff must prove discrimination with admissible

evidence, either direct or circumstantial, sufficient to permit a reasonable trier of fact to conclude

that discrimination was a motivating factor for the adverse action taken by the employer toward

the plaintiff.” Lytle v Malady, 458 Mich 153, 176; 579 NW2d 906 (1998).

C. The record at the summary disposition stage was not sufficient to permit a reasonable trier of fact to conclude that age discrimination was a motivating factor in Covenant’s hiring decision.

Here, Covenant conceded that Doster presented a prima facie case of age discrimination,

but articulated a legitimate, non-discriminatory reason for its hiring decision—namely, that

Ruddy’s superior consulting experience made him a better fit than Doster for the HR generalist

position. As the Court of Appeals observed, this explanation finds ample support in Alison

Henige’s testimony that Ruddy was “the best fit for this position,” as well as testimony from

three other members of the interview panel (Sandie Haley, Lisa Killey, and Molly Andrews)

confirming that Covenant’s needs at the time were such that Ruddy’s consulting experience was

weighed more heavily than Doster’s recruiting experience, and that Ruddy was the better fit for

the team than Doster. COA Op at 5, Appellant’s App 966a.

Therefore, the issue before the trial court was whether Doster presented evidence

sufficient to permit a reasonable trier of fact to conclude that Covenant’s explanation was

pretextual, and that age discrimination was a motivating factor in its hiring decision. As

discussed below, the Court of Appeals thoroughly addressed and properly rejected all of Doster’s

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

20

purported “evidence” of pretext as speculation and ultimately insufficient to create a genuine

issue of material fact for trial.

1. There is no evidence “that the hiring manager may have focused on job candidates’ respective ages.”

In in its order directing oral argument on Doster’s application for leave to appeal and

requesting supplemental briefing, this Court’s first area of focus was on whether an inference of

age bias can be drawn “from evidence that the hiring manager may have focused on job

candidates’ respective ages.” There is no evidence giving rise to any such inference.

As an initial matter, the Court of Appeals correctly noted that “Plaintiff did not present

any direct evidence of age discrimination in this case,” and that it was therefore necessary to use

the McDonnell Douglas analysis for assessing claims of indirect evidence of discrimination.

COA Op at 4, Appellant’s App 965a.4 Doster has never suggested otherwise until now. Indeed,

both in responding to Covenant’s motion for summary disposition and in the Court of Appeals,

Doster proceeded under the McDonnell Douglas framework. Now, in her supplemental brief,

Doster argues for the first time that Henige’s reference in her notes to Ruddy “being young”

(Appellant’s App 836a) is actually “direct evidence” of age bias when considered along with

Henige’s note about how Ruddy was “[l]ooking for leadership in the future” (Appellant’s App

837a), and her question to Doster, “Why apply now”? (Appellant’s App 819a). See Pl’s Supp

Br at 3-6.

Doster is mistaken, as Henige’s note about Ruddy “being young” is not the sort of

statement that “proves impermissible discriminatory bias without additional inference or

presumption.” Hecht, 499 Mich at 608 n 34. So for that reason alone it is not direct evidence of

discrimination. As this Court observed in Hecht, the “hallmark” of direct evidence is “a

4 See McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

21

statement made by a decision-maker, to the plaintiff, at the meeting in which the plaintiff

suffered the adverse employment decision, and evincing a causal nexus.” Id. That is not the

case here.

On the contrary, Henige’s interview notes that Doster cites are precisely the sort of “stray

remarks” that courts have consistently found to be insufficient to show bias. In Sniecinski v Blue

Cross & Blue Shield of Michigan, 469 Mich 124; 666 NW2d 186 (2003), this Court adopted the

following “[f]actors to consider in assessing whether statements are ‘stray remarks’ [or evidence

of bias in the decisionmaking]”:

(1) whether they were made by a decision maker or an agent within the scope of his employment, (2) whether they were related to the decision-making process, (3) whether they were vague and ambiguous or clearly reflective of discriminatory bias, (4) whether they were isolated or part of a pattern of biased comments, and (5) whether they were made close in time to the adverse employment decision. [Id. at 136 n 8.]

The Sniecinski Court did not end up assessing the statements at issue in Sniecinski

because it concluded that regardless whether they were “‘stray remarks’ or direct evidence of a

discriminatory animus, [the] plaintiff failed as a matter of law to prove that the remarks were

causally related to [the employer’s] failure to hire her.” Id. at 136. The Court did, however, cite

the Sixth Circuit’s decision in Cooley v Carmike Cinemas, Inc, 25 F3d 1325 (CA 6, 1994), as

well as the Court of Appeals’ decision in Krohn v Sedgwick James, Inc, 244 Mich App 289; 624

NW2d 212 (2001). Both are helpful in analyzing Henige’s notes, as is the Court’s decision in

DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534; 620 NW2d 836 (2001).

Starting with DeBrow, the plaintiff in that case claimed that his superior told him, “in the

conversation in which he was fired,” that he was “getting too old for this shit.” Id. at 538. This

Court, not surprisingly, found this to be “direct evidence of unlawful age discrimination.” Id.

As the Court explained, “this remark could be taken as a literal statement that the plaintiff was

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

22

‘getting too old’ for his job and this was a factor in the decision to remove him from his

position.” Id. at 539. Thus, the statement created a question of fact sufficient to overcome

summary disposition. Id.

In Cooley, various comments were attributed to the decisionmaker about how he “wanted

a younger work force and felt uncomfortable around older people.” Cooley, 25 F3d at 1331. As

in DeBrow, these statements were considered to be evidence of age discrimination, and not

merely “stray remarks.” Id. at 1333. See also La Pointe v United Autoworkers Local 600, 8 F3d

376, 380 (CA 6, 1993) (holding that the plaintiff’s supervisor’s ageist remarks about “oldtimers”

were “direct evidence of age discrimination”).

By contrast, the Court of Appeals in Krohn addressed the plaintiff’s former supervisor’s

comment “out with the old and in with the new,” which the plaintiff claimed showed her

employer’s plan to “terminate older employees and replace them with younger employees.”

Krohn, 244 Mich App at 291. The Court of Appeals, however, disagreed that the comment was

“age-related,” finding that when considered in context, it was “ambiguous and clearly age

neutral.” Id. at 301-302. This is because it apparently was made in reference to a group of new

employees that had been hired in from a competing firm. Id. at 302. As a result, it did not “carry

with it a discriminatory connotation.” Id.5

Henige’s reference to Ruddy “being young” is not even remotely comparable to the

comments found to show age-related bias in DeBrow and Cooley, and exactly like the statement

5 The Court also cited the fact that the comment was made a year before the plaintiff’s termination, and that the individual was no longer the plaintiff’s supervisor and was not involved in the decision to discharge her. Id. at 301. But neither of those factors altered the Court’s independent assessment of the comment as “ambiguous.”

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

23

found to be “ambiguous” in Krohn. In asserting otherwise, Doster mischaracterizes Henige’s

note, the entirety of which read:

The Court of Appeals properly recognized that this hardly suggests a “preference for a younger

employee” as Doster asserts. See Pl’s Supp Br at 4. Instead, when read in context, “there is no

natural and common-sense manner in which to interpret the statement other than Ruddy

explaining why, as a young person, it had taken some time to earn his colleagues’ respect.”

COA Op at 6, Appellant’s App 967a.

Nor is there any support for Doster’s assertion of “a pattern of notations indicative of

age-related bias” by Henige. Pl’s Supp Br at 4. Once again, Doster takes Henige’s “Why apply

now” note out of context.6 The full note read:

Henige did not, as Doster claims, “questio[n] why Plaintiff would apply to a new job at her age

in her early sixties.” Pl’s Supp Br at 5. Nowhere does Henige’s note even hint at that. Rather,

as the Court of Appeals observed, the note reflected a “completely reasonable” question about

“why someone who had been in one position for many years [recruiting] was now interested in a

6 It is also worth noting that Doster did not cite this note as evidence of pretext when she responded to Covenant’s motion for summary disposition. Thus, it should not even be considered here. See Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 381; 775 NW2d 618 (2009) (“The trial court was not obligated under MCR 2.116(G)(5) to ‘scour the record to determine whether there exists a genuine issue of fact’ to preclude summary disposition. Rather, [plaintiffs] had the obligation to ‘set forth specific facts showing that there is a genuine issue for trial,’ MCR 2.116(G)(4), which they did not do. Consequently, given the evidence actually raised by the parties and considered by the trial court, we cannot conclude that the trial court erred when it granted [defendant’s] motion for summary disposition.”) (citation omitted).

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

24

different position [HR generalist].” COA Op at 7, Appellant’s App 968a. The Court of Appeals

further reasoned, quite appropriately, that “if [Doster] chose to apply for the HR generalist

position because she was unhappy with her then-current job, such knowledge could have been

important and useful for [Covenant] in making its hiring decision.” Id.

Doster asserts that while this is one possible inference, Henige’s question could also

suggest that she was “focus[ed] . . . on the applicant’s ages.” Pl’s Supp Br at 5. According to

Doster, the statement’s “import depends upon Ms. Henige’s intent, which is a question for the

jury.” Id. That argument is flawed because, once again, if any of Henige’s notes were truly

“direct evidence” of discrimination, then no inferences would be required. Hecht, 499 Mich at

608 n 34.

In any event, it is not enough to simply recite the truisms that questions of intent are

ordinarily reserved for the jury, and that it is the jury’s prerogative to choose between

“competing inferences.” A jury is only entitled to draw permissible inferences; it is not allowed

to speculate, which is what it would be required to do to find age-related bias on Henige’s part.

See Emery v Chesapeake & Ohio Railway Co, 372 Mich 663, 666; 127 NW2d 826 (1964)

(distinguishing between “permissible inferences” arising from evidence and “conjecture”). As

the Court of Appeals explained, “it would require speculation to infer that the question of ‘Why

apply now,’ could evidence invidious discrimination as opposed to a bona fide inquiry about the

applicant’s motivation.” COA Op at 7, Appellant’s App 968a.

Doster’s reliance on Henige’s note that Ruddy was “Looking for leadership in the future”

fares no better, as a jury could only speculate that this is suggestive of age animus as opposed to

an interviewer simply taking note of a job candidate’s ambitions. See Smith v Goodwill Indus of

W Mich, Inc, 243 Mich App 438, 444-445; 622 NW2d 337 (2000) (affirming dismissal of the

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

25

plaintiff’s FMLA claim because the “[p]laintiff’s theory that [the] defendant dismissed her

because she was on leave was based on conjecture”).

Finally, Doster argues that even if Henige’s note about Ruddy “being young” is not direct

evidence of discrimination, it still serves as “circumstantial evidence of pretext” sufficient to

withstand summary disposition because it suggests that age discrimination played at least a role

in the hiring decision. Pl’s Supp Br at 7. Doster is incorrect. This Court has recognized that

“[t]here are three ways a plaintiff can establish that a defendant’s stated legitimate,

nondiscriminatory reasons are pretexts: (1) by 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

decision.” Debano-Griffin v Lake Co, 493 Mich 167, 180; 828 NW2d 634 (2013).

Doster has apparently chosen to focus on the second prong, but whether Henige’s note is

viewed in isolation or along with the other notes that Doster incorrectly claims reflect an age-

related bias on Henige’s part, it provides no evidence of age discrimination. Comments that are

too “ambiguous” generally have been found to be insufficient to demonstrate pretext. See Smith

v City of Toledo, 13 F4th 508, 518 (CA 6, 2021) (explaining that while discriminatory statements

can be used to show pretext, statements that are “too abstract and attenuated” are “insufficient to

establish that discriminatory animus motivated [the employment decision]”); Miles v South

Central Human Resource Agency, Inc, 946 F3d 883, 896 (CA 6, 2020) (observing that allegedly

discriminatory remarks “can only serve as pretext if . . . they are not ‘so isolated or ambiguous as

to be nonprobative’”). This precisely describes Henige’s notes. Thus, no reasonable juror could

rely on them to conclude that Henige was motivated by discriminatory animus.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

26

Doster cites Ercegovich v Goodyear Tire & Rubber Co, 154 F3d 344 (CA 6, 1998), but a

review of the statements at issue in that case actually supports the Court of Appeals’ decision

here. In Ercegovich, the Sixth Circuit found the following comments to be evidence of age bias

sufficient to overcome summary judgment: “this company is being run by white haired old men

waiting to retire, and this has to change”; “[I do] not want any employee over 50 years old on

[my] staff”; and “there will be no more promotions of anyone—to different departments—for

anyone over age 51.” Id. at 354. In contrast with these comments, Henige’s notes fall far short

of creating a genuine issue of material fact concerning whether age discrimination was a

motivating factor in Covenant’s hiring decision.

2. There were no “irregularities in the candidate scoring system.”

Doster also relies on alleged “irregularities in the candidate scoring system” to show

pretext (Pl’s Supp Br at 7-9), but that effort similarly fails. In requesting supplemental briefing,

this Court cited the Sixth Circuit’s decision in George v Youngstown State Univ, 966 F3d 446,

466 (CA 6, 2020), as “recognizing that ‘evidence suggest[ing] irregularities with the search

process . . . can raise a genuine issue of fact as to whether an employer’s asserted reason is

pretextual.’” True enough, but comparing the facts in George with ours shows that this is not the

case here—not even close.

In George, there was evidence of numerous irregularities in connection with the

university’s failure to hire John George, a 65-year-old assistant professor, for various teaching

and administrative jobs after his contract expired. For one of the positions, which was in the

university’s College of Science, Technology, Engineering, and Mathematics (STEM), George

provided evidence that the successful candidate, a woman in her forties, had been preselected for

the job and that the university changed the job posting to ensure that she would be eligible. Id. at

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

27

454. There was also evidence that one of the search committee members told a colleague on the

committee “that, if asked at his deposition whether he told George that [the successful candidate]

had been preselected, he should say no.” Id. The Sixth Circuit found those irregularities to be

significant. Id. at 466, citing Kimble v Wasylyshyn, 439 Fed Appx 492, 497–501 (CA, 2011)

(holding that irregularities in the interview process and a “pre-rejection” of the applicant can

support pretext), and Goostree v Tennessee, 796 F2d 854, 861 (CA 6, 1986) (“Evidence of

preselection operates to discredit the employer's proffered explanation for its employment

decision.”).

After George filed an EEOC charge, he applied for another position in the university’s

Office of Research but was told by the office’s director, Mike Hripko, that his interview was “not

impressive.” Id. at 455. It turned out that George’s interview was the only one that Hripko sat in

on, and there was evidence that Hripko had a close relationship with the former dean of the

STEM college and then-university provost, Martin Abraham, who had been responsible for

administering a settlement between George and the university arising from a race discrimination

lawsuit that George filed against the university years earlier. Id. at 452, 455. George presented

evidence that Hripko and Abraham retaliated against him for that and for filing the more recent

age discrimination charge that was still pending before the EEOC by orchestrating the hiring

process to work against him. Id. Those irregularities included:

For example, on an internal form, YSU listed reasons why each candidate was not selected, including by identifying why [the successful candidate] had greater experience. Even though the form says that the hiring team “must identify” this greater experience for candidates whose lesser experience was noted as a basis for rejection, George’s entry on the form is the only one that fails to discuss his experience or compare it to [the successful candidate’s]. George also claims that [the successful candidate] met both Hripko and the chair of the search committee in Utah before the hiring process began, and then applied for the job within twenty-four hours of its being posted, suggesting an inside track. [Id.]

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

28

Finally, there was yet another position George applied for that involved teaching courses

“that included the introductory level class [George] previously developed and taught, as well as

some of George’s other former classes.” Id. at 456. Coincidentally, the position opened up three

days after George sued the university for age discrimination over its failure to hire him for the

other positions. Id. at 455-456. George presented evidence that when Abraham learned of the

lawsuit, he terminated the job search without filling the position, which Abraham admitted

George was qualified for. Id. at 456.

In light of these irregularities and other evidence of pretext too extensive to recount here,

the Sixth Circuit held that a reasonable juror could conclude that the university’s asserted bases

for not hiring George for any of the open positions were pretexts for age discrimination and

unlawful retaliation. See id. at 465-470. The Sixth Circuit explained: “Much of George’s

evidence suggests irregularities with the search process, which can raise a genuine issue of fact

as to whether an employer’s asserted reason is pretextual.” Id. at 466. As support, the Sixth

Circuit cited Jenkins v Nashville Pub Radio, 106 Fed Appx 991 (CA 6, 2004), in which the court

found there to be irregularity in the search process where the decisionmaker admitted that he had

already decided to hire the successful candidate before interviewing the plaintiff, and only

interviewed the plaintiff as a “courtesy.” Id. at 995.

This case is nothing like George or Jenkins. Doster claims that there are “numerous

irregularities in the Interview Scoring and Evaluation Sheets,” including “deviations from the

scripted questions, changed scores, and the failure to score certain questions” (Pl’s Supp Br at 8),

but Doster has not created a genuine issue of material fact as to any of the irregularities she

describes. Doster claims that Sandie Haley “did not score questions asked of Plaintiff, which

would result in a negative effect on Plaintiff’s overall score” (id.), but Haley did not score those

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

29

particular questions for Ruddy either. Compare Appellant’s App 804a-807a with App 853a-

856a.7

The same goes for the two questions Doster identifies that Lisa Killey did not score—she

did not score them for either candidate (and neither did Haley). Compare Appellant’s App 809a-

812a with 838a-841a. Of the several questions that Molly Andrews and Alison Henige left

unscored, there was only one that they scored for Ruddy but not Doster. Compare Appellant’s

App 814a-817a with 843a-846a (Andrews’ scores for Doster and Ruddy) and App 819a-822a

with 833a-836a (Henige’s scores for Doster and Ruddy).8 So Doster’s claim of disparate

treatment in that regard simply doesn’t hold water. And while Haley and Killey did change

some of their scores for Doster (Haley and Killey) and Ruddy (Haley) during the interview

process (Appellant’s App 806a, 811a, and 855a), the Court of Appeals properly recognized that

the fact “[t]hat someone reflected upon which score to give a candidate and changed his or her

mind mid-interview is not, as plaintiff claims, evidence of a discriminatory plot.” COA Op at 7,

Appellant’s App 968a. Indeed, for two of Doster’s scores that Killey changed, Killey’s

scribbling on the evaluation sheet makes it impossible to tell what the original scores were, and

Killey could not recall at the time of her deposition. Killey Dep at 9, Appellee’s App 071b.

7 Those questions were:

• Review Resume and discuss relevant experience and education for position.

• Explain a time when you received feedback from a peer, subordinate or leader. How did you respond and what did you do in response to the feedback (what did you learn)?

• Do you have any questions for us?

8 That one question was “What are some of your professional developmental needs/opportunities for growth?”

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

30

More importantly, as the Court of Appeals further noted, Alison Henige—who made the

hiring decision—testified that she only “reviewed the interview scoring sheets ‘for their notes,’”

and that “the sheets were merely advisory to assist her in making her decision. In fact, Henige

did not even ‘tally . . . up’ the scores when making her hiring decision.” COA Op at 7,

Appellant’s App 968a; see also Henige Dep at 23, Appellee’s App 010b. “Similarly, [Kevin]

Birchmeier also testified that any numerical ‘scoring’ on the interview scoring sheets was simply

advisory and not dispositive.” COA Op at 7, Appellant’s App 968a; see also Birchmeier Dep at

19-20, Appellee’s App 062b-063b. Thus, the Court of Appeals correctly found that “there was

no evidence that the scoring sheets actually affected Henige’s hiring decision,” let alone “that the

scoring changes were caused by age discrimination.” COA Op at 7, Appellant’s App 968a. See

Briggs v Potter, 463 F3d 507, 516 (CA 6, 2006) (affirming summary judgment in the employer’s

favor because the plaintiff failed to demonstrate that alleged irregularities “prejudiced [the

plaintiff] in the selection process or indicate[d] ‘any dishonesty or bad faith.’”).

Doster argues that additional evidence of pretext can be found in Haley’s note on

Doster’s evaluation sheet that “Denise does not possess recent HR experience.” Pl’s Supp Br at

8, citing Appellant’s App 808a. Doster claims that this statement is “fals[e]” because Doster

“had worked in the Human Resources Department alongside Ms. Haley for numerous years.” Id.

This is a distortion of Haley’s note. 9 Here is the full context:

9 Haley’s reference to Doster lacking “recent HR experience” is also yet another note that Doster never cited in responding to Covenant’s motion for summary disposition, and thus should not be considered for the first time on appeal. Barnard, 285 Mich App at 381.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

31

Clearly, Haley’s note had nothing to do with whether Doster had recently worked “in the Human

Resources Department.” Of course she did, but as a recruiter. In making her comments, Haley

was obviously distinguishing between Doster’s “recruiting experience (recent)” and her “[o]ther

HR roles,” including “consulting.” When asked about her notes in her deposition, Haley

explained that her concern was Doster’s lack of HR experience beyond recruiting, most notably

as a consultant. Haley Dep at 8-9, Appellee’s App 065b-066b. Once again, no reasonable juror

could view these notes as reflecting any sort of discriminatory age bias.

As for Haley, Killey, and Andrews “add[ing] scores [for Ruddy] for unscripted

questions” (Pl’s Supp Br at 8), this too fails to create a question of fact regarding pretext. First

of all, all three interviewers added scores for Doster for unscripted questions too. See

Appellant’s App 806a, 811a, 816a-817a. So there is no evidence that they were even treated

differently in this respect.10 Moreover, it would make sense for Ruddy to be asked follow-up

10 Doster also references Erik Fielbrandt as having added scores for Ruddy for unscripted questions, but that is not a valid comparison here because, as mentioned previously, Fielbrandt did not interview Doster.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

32

questions relating to his consulting experience (which Doster did not have) given that this was

the area of most importance to Covenant. As a result, the jury could only speculate as to whether

the manner in which the interviewers asked follow-up questions and scored the candidates’

answers to those questions was indicative of age bias. And this assumes that the scores even

mattered, which Henige testified they did not. Regardless, none of these alleged irregularities

give rise to a permissible inference of a discriminatory motive. Briggs, 463 F3d at 516. It is all

speculative.

3. Covenant’s “stated rationale for its hiring decision” did not vary “from its originally-posted job description.”

Finally, Doster seeks to show pretext by pointing to the fact that the posting for the HR

generalist position did not mention “consulting” as being required, yet lack of consulting

experience was cited as the primary reason why Covenant selected Ruddy over her. Pl’s Supp

Br at 9. Doster argues that this is evidence “that [Covenant’s] stated rationale for its hiring

decision varied from its originally-posted job description,” and that it raises “a factual question

regarding pretext.” Id.

Doster is mistaken. As the Court of Appeals observed, the fact that the job posting did

not use the word “consultant” is of no moment because the posting “clearly placed an emphasis

on consulting work such as analyzing and interpreting laws and knowing about regulatory-

compliance issues.” COA Op at 7, Appellant’s App 968a; HR Generalist Job Posting,

Appellant’s App 793a-795a. The posting also stressed the importance of being able to represent

Covenant in connection with “litigation claims and issues.” Appellant’s App 795a. Plus, both

Alison Henige and Sandie Haley made it “abundantly clear” that “the position of HR generalist

did indeed involve a combination of consulting and recruiting work.” COA Op at 7, Appellant’s

App 968a; Henige Dep at 7, Appellee’s App 008b; Haley Aff, Appellee’s App 052b.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

33

As a result, the cases Doster cites “where an employer’s stated rationale for not hiring the

plaintiff is a qualification not listed on the job posting” are easily distinguishable. See Pl’s Supp

Br at 9-11. Those cases stand for the unremarkable proposition that such evidence may

demonstrate pretext because it raises questions about whether the employer “honestly believed”

that the qualification was required for the job. See, e.g., Courtney v Biosound, Inc, 42 F3d 414,

421 (CA 7, 1994) (“Given Biosound’s claim that it had placed a ‘high premium’ on finding an

individual who could satisfy its ‘unique communication needs,’ a reasonable juror could

conclude that Biosound would have included this qualification in the job listing had it honestly

believed that it was of primary importance for the new position.”).

There is no such evidence here. First, it cannot reasonably be disputed that the job

posting did include consulting-related experience among its various requirements. Second, there

is no record evidence suggesting that Covenant did not “honestly believe” such experience to be

important for the HR generalist position. Cf. Briggs v Univ of Cincinnati, 11 F4th 498, 503, 517-

518 (CA 6, 2021) (finding evidence that the employer “revis[ed] a job posting for which [the

plaintiff] had been encouraged to apply so that he was no longer eligible” to raise a question of

fact regarding pretext).

As previously discussed, the evidence in the summary disposition record shows the exact

opposite—that both the ultimate decisionmaker, Alison Henige, and the Covenant employees

involved in the interview process all deemed recent consultant experience to be critical. See

Hazle, 464 Mich at 474 (“While plaintiff maintains that the office manager position did not in

fact require knowledge of finance or accounting principles, it is fatal to plaintiff’s claim that she

has offered no record evidence that actually supports this position.”); Presley v Ohio Dept of

Rehab & Correction, 675 Fed Appx 507, 514 (CA 6, 2017) (rejecting as insufficient evidence of

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

34

pretext the fact that the job posting was changed from “bargaining unit” to “exempt” because

there was undisputed evidence that “the position was always treated as exempt”).

Moreover, there is no support for Doster’s assertion of “inconsistencies” in Covenant’s

explanation for its decision to hire Ruddy over Doster. See Pl’s Supp Br at 12-16. Doster

repeatedly points out that because Covenant gave her an interview, she necessarily “possessed

the minimum requirements for the job.” Id. at 16. That misses the point entirely. Covenant has

never disputed that Doster was qualified for the HR generalist position. In fact, Covenant even

conceded that Doster had established a prima facie of age discrimination for purposes of the

McDonnell Douglas burden-shifting framework, and instead argued that there was no evidence

of pretext. See Covenant’s Summ Disp Br at 16, Appellee’s App 094b.

Thus, Doster’s focus on whether she possessed the “minimum qualifications” for the job

is misplaced because that was never an issue. The question was—and is—whether Covenant’s

explanation that Ruddy was the “best fit” for the HR generalist position given his superior

consulting experience was really just a pretext for discrimination. Despite Doster’s assertion,

there is simply no evidence “permi[tting] the inference that age was the true motivating factor”

for Covenant’s hiring decision. Pl’s Supp Br at 12. That is fatal to Doster’s claim, as the Court

of Appeals properly determined. See Hazle, 464 Mich at 465.

4. Doster’s claim amounts to second-guessing Covenant’s business judgment, which is not permitted.

The Court of Appeals aptly summed up this case when it observed that Doster’s claim

resembles that of the plaintiff in Hazle, and fails for essentially the same reasons. COA Op at 4-

6, Appellant’s App 965a-967a. In Hazle, the plaintiff, a black woman, was denied a promotion

to the position of office manager. Hazle, 464 Mich at 476. The defendants instead hired an

outside candidate, Michelle Block, a white woman. The defendants’ explanation for their hiring

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

35

decision was that they did not believe the plaintiff to be as qualified as Block for the office

manager position. Id.

In concluding that the defendants were entitled to summary disposition with respect to

the plaintiff’s race discrimination claim, the Court held that “[o]ther than her subjective claim

that she was more qualified than Michelle Block, plaintiff has offered nothing to support her

claim that defendants acted with racial animus.” Id. The Court found the following testimony

from the plaintiff to “accurately captur[e] the dispute in this case”:

Q. Why do you believe that your race had anything to do with the selection of [Michelle Block] over you?

A. Well, because I felt I was very qualified for the position and just from my own observation I just feel that I’m a better qualified person. They hired a Caucasian woman. So I felt it was a racial issue.

Q. Do you have any other reason, any reason at all for thinking that your race had anything to do with the selection of [Block] over you?

A. No. [Id. at 476-477.]

The Court of Appeals correctly found this case to be analogous to Hazle, as Doster’s

assertions are similar to those of the plaintiff in that case. When asked during her deposition if

Alison Henige or the other Covenant employees who interviewed her gave Doster “any reason to

believe that they would discriminate against you based on your age,” Doster responded:

The fact that they hired -- that I met all of the qualifications for the job, --

Q. Uh-huh.

A. -- and that they did not hire me or offer me the position was discrimination.

Q. Okay.

A. They offered it to a younger white male. [Plaintiff’s Dep at 148, Appellee’s App 050b.]

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

36

Like the plaintiff in Hazle, Doster “would have the jury second-guess [Covenant’s]

business judgment concerning whether [Doster or Ruddy] was better qualified” for the HR

generalist position. Hazle, 464 Mich at 475-476. However, a plaintiff may not demonstrate

pretext by challenging the soundness of an employer’s business judgment in determining

whether the plaintiff or another candidate was better qualified for a position. Id. See also Town

v Mich Bell Tel Co, 455 Mich 688, 704; 568 NW2d 64 (1997) (“The plaintiff’s proofs, at most,

merely raise questions about Michigan Bell’s business judgment. Accordingly, the plaintiff did

not create an issue of fact regarding whether the defendant’s nondiscriminatory explanation for

the plaintiff’s transfer was a pretext, much less a pretext for discrimination.”).

As the Court explained in Hazle, “‘[t]he plaintiff cannot simply show that the employer’s

decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory

animus motivated the employer, not whether the employer is wise, shrewd, prudent, or

competent.’” Id. at 476, quoting Town, 455 Mich at 704. “The only requirement is that, ‘when

evaluating its employees, employers are to evaluate them on the basis of their merits, in

conjunction with the nature of their businesses at the time of the evaluation, and not on the basis

of any discriminatory criterion.’” Id., quoting Town, 455 Mich at 710 (Riley, J., concurring).

While Doster claims that age discrimination was a motivating factor in Covenant’s hiring

decision, the Court of Appeals properly determined that Doster’s claim is based on speculation,

not evidence permitting a reasonable inference of age-related bias, and that Doster’s claim

amounted to nothing more than her disagreement with Covenant’s hiring decision. See COA Op

at 6-7, Appellant’s App 967a-968a. That is plainly insufficient to survive summary disposition,

as the Court of Appeals found, and Doster has provided no valid grounds for disturbing the Court

of Appeals’ judgment.

REC

EIVED

by MSC

11/15/2021 4:15:30 PM

37

IV. CONCLUSION

The Court should deny leave to appeal because the Court of Appeals correctly

determined that Plaintiff Doster failed to create a genuine issue of material fact as to whether

Covenant discriminated against her on the basis of age, and that the trial court therefore erred in

denying Covenant’s motion for summary disposition. Moreover, the Court of Appeals relied on

established legal principles in reaching its decision, and thus there are no jurisprudentially

significant issues warranting the Court’s review.

Respectfully submitted,

DICKINSON WRIGHT PLLC By: /s/ Phillip J. DeRosier

David R. Deromedi (P42093) Phillip J. DeRosier (P55595)

500 Woodward Avenue, Suite 4000 Detroit, MI 48226 (313) 223-3500 Christina K. McDonald (P73517) 200 Ottawa Avenue N.W., Suite 1000 Grand Rapids, MI 49053 (616) 458-1300

Attorneys for Defendant-Appellee Covenant Medical Center, Inc. Dated: November 15, 2021

REC

EIVED

by MSC

11/15/2021 4:15:30 PM