Labor & Employment Law Daily Wrap Up, RETALIATION—E.D. Mich.: Employee’s retaliation suit involving work on DEI subcommittee may proceed, (Jun 25, 2025)

By Ursula Furi-Perry, J.D., MBA

The employee adequately pleaded protected activity in speaking out about underrepresentation, the employer’s knowledge, an adverse action of termination, and a plausible causal connection.

A former employee, terminated for allegedly failing to demonstrate “mindfulness” after regularly advocating for improved representation of women and people of color within her organization and raising concerns about the alleged underrepresentation of women in management, stated claims of retaliation but not discrimination, a federal district court found. The court held that she adequately pleaded a protected activity in speaking out about the alleged underrepresentation, the employer’s knowledge of her protected activity, an adverse action of termination, and a plausible causal connection (Spencer v. DocNetwork, Inc., No. 2-24-CV-13207-TGB-APP (E.D. Mich. Jun. 23, 2025)).

Instructional designer. The plaintiff was employed as an instructional designer, developing training content for the defendant employer’s staff and clients, and she received favorable feedback regarding her job performance and was viewed as a cooperative team member.

Concerns about DEI raised. The plaintiff was actively involved in a company subcommittee aimed at promoting diversity, equity, and inclusion (DEI) and regularly advocated for improved representation of women and people of color within the organization, even raising concerns about the alleged underrepresentation of women in management. On March 8, 2023, she directly addressed these issues, which reportedly caused discomfort among company leadership.

Discharge for lack of “mindfulness.” In the weeks preceding her termination, her manager criticized her for the way she had raised these concerns with the company’s owner. On November 15, 2023, during a training team meeting, the plaintiff’s manager instructed her to read a book outside of work hours without compensation and be prepared to discuss it. The plaintiff declined, citing that unpaid reading time was not a good use of her time. The next day, she was informed by her manager that she was being terminated for allegedly failing to demonstrate “mindfulness.”

Lawsuit. The plaintiff filed suit in the U.S. District Court for the Eastern District of Michigan, Southern Division, claiming the employer unlawfully discriminated against her based on her sex, in violation of Title VII of the Civil Rights Act and Michigan’s Elliot-Larsen Civil Rights Act (ELCRA); unlawfully retaliated against her under Title VII and ELCRA; and unlawfully retaliated against her under the FLSA. The employer filed a motion to dismiss the claims.

Title VII and ELCRA discrimination claims. The employer conceded that the plaintiff satisfied the first three elements of a prima facie case (protected class, adverse action, qualification), but the federal court agreed with the employer that she failed to allege the fourth element: that she was replaced by someone outside her protected class or that similarly situated male employees were treated more favorably. The plaintiff did not allege in her complaint that she was replaced by a person who was not a woman, nor that similarly situated employees who were not women were treated differently—for example, that any male colleagues in her company criticized management but were not terminated. The federal district court dismissed the discrimination claims without prejudice.

Title VII and ELCRA retaliation claims. However, the court allowed the retaliation claims to continue. While the employer argued that the plaintiff failed to prove causation, the court acknowledged that the plaintiff alleged that her termination was, in part, retaliation for her protected activity of complaining about a lack of representation. The court found she adequately pleaded protected activity in speaking out about underrepresentation, the employer’s knowledge, an adverse action of termination, and a plausible causal connection. The court rejected the employer’s argument that proximity to her refusal to read the book justified termination, noting that the timing of events and prior criticism supported a plausible inference of retaliation. At the motion to dismiss stage, the court must interpret facts in the light most favorable to the plaintiff, and the plaintiff’s retaliation claims met the plausibility threshold.

FLSA retaliation claim. The court considered the employer’s argument that the plaintiff was exempt from FLSA protections due to her administrative role but held that even exempt employees may pursue retaliation claims under FLSA, consistent with the holding in Wirtz v. Ross Packaging Co. The court also found the plaintiff’s refusal to perform unpaid work could plausibly be construed as protected activity under FLSA, rejecting the employer’s contention that it could not have reasonably perceived her refusal as invoking statutory rights.

The case is No. 2-24-CV-13207-TGB-APP.

Judge: Berg, T.

Attorneys: Nicholas Roumel (Law Offices of Nicholas Roumel) for Elise Spencer. Kevin F. O'Shea (Miller Law Firm) for DocNetwork, Inc.

Companies: DocNetwork, Inc.

Cases: Retaliation Discharge Discrimination SexDiscrimination StateLawClaims MichiganNews ESGNews