604 South Jefferson Ave, Saginaw, MI 48607

Michigan County Attorney to Get Gender-Based Retaliation Trial

·        Close timing, lack of discipline could show causal link

·        Legitimate, nonretaliatory reason for firing not shown

A female assistant prosecuting attorney in Saginaw County, Mich., could convince a jury she was fired for complaining about sex discrimination, given the mere two weeks between when she complained and was fired, the Eastern District of Michigan ruled.

Alena Clark’s proof of a causal connection between her bias report and discharge also includes that she was never disciplined for the alleged performance shortcomings the county cites as justification for firing her, the court said.

The county says Clark regularly bullied less senior lawyers in the office, spied on her bosses for another attorney she was friendly with who was suspended and out of the office, and mishandled a major felony case.

But the county hasn’t produced any real evidence of spying or that it forbade Clark or other employees from speaking with the suspended lawyer, the U.S. District Court for the Eastern District of Michigan said. Clark also denies sharing confidential information with him and the county hasn’t established that she did, the court said.

Some evidence exists of Clark’s “inability to handle major crime felony cases and that she mistreated fellow employees,” Judge Thomas L. Ludington said.

However, that evidence wasn’t supported by proof that she received negative performance reviews, was put on a work improvement plan, or told to generally minimize her interactions with the lawyers she allegedly bullied, Ludington said.

The county’s failure to come forward with a legitimate rationale for firing Clark meant she didn’t need to specifically rebut the county’s account as a pretext to take her retaliation claim under Michigan’s Elliott-Larsen Civil Rights Act to trial, the judge said.

The county and two individual defendants were entitled to summary judgment on the rest of Clark’s claims, however, the court said in Tuesday’s ruling.

These included on claims of sex discrimination under ELCRA, pay bias under the Equal Pay Act, free-speech retaliation under the First Amendment, and denial of equal protection under the 14th Amendment, the court said.

Freid, Gallagher, Taylor & Associates and Julie A. Gafkay of Frankenmuth, Mich., represent Clark. Cummings, McClorey, Davis & Acho PLC represents the defendants.

The court is Clark v. Cty. of Saginaw, 2020 BL 372815, E.D. Mich., No. 1:19-cv-10106, 9/29/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

Reproduced with permission. Published Sept. 30, 2020. Copyright 2020 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bloombergindustry.com>

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