Harrison v. Olde Financial Corp., Docket No. 183996

• Decision Date: 03 October 1997
• Docket Number: Docket No. 183996
• Citation: 225 Mich.App. 601,572 N.W.2d 679
• Parties: , 72 Empl. Prac. Dec. P 45,024 Diane HARRISON, Plaintiff-Appellant, v. OLDE FINANCIAL CORPORATION, Olde Discount Corporation, and Deanna Hatmaker, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 679

572 N.W.2d 679

225 Mich.App. 601, 72 Empl. Prac. Dec. P 45,024

Diane HARRISON, Plaintiff-Appellant, v. OLDE FINANCIAL CORPORATION, Olde Discount Corporation, and Deanna Hatmaker, Defendants-Appellees.

Docket No. 183996.

Court of Appeals of Michigan.

Submitted Sept. 3, 1996, at Detroit.

Decided Oct. 3, 1997, at 9:15 a.m.

Released for Publication Jan. 8, 1998.

Law Offices of Thomas E. Marshall by Thomas E. Marshall and Nancy Brewer, Detroit, for plaintiff-appellant.

Dickinson, Wright, Moon, Van Dusen & Freeman by Francis R. Ortiz and Andrew S. Doctoroff, Detroit, for defendants-appellees.

Before YOUNG, P.J., and TAYLOR and R. LIVO ^*, JJ.

YOUNG, Judge.

In this action alleging racial discrimination in employment, plaintiff Diane Harrison appeals as of right an order granting summary disposition under MCR 2.116(C)(10) to defendants Olde Financial Corporation, Olde Discount Corporation, and Deanna Hatmaker. ¹ We reverse and remand.

I Background

Plaintiff is an African-American. In 1994, defendant retained plaintiff through an agency to work as a temporary legal secretary. Bruce Campbell, defendant's corporate counsel, subsequently invited plaintiff to apply for a permanent secretarial position with defendant. Two staff attorneys later interviewed her. Plaintiff testified in her deposition that, at some point during her temporary employment with defendant, she overheard one of the two staff attorneys, Karen Brink, say to the other that, although plaintiff was a good secretary, she was "the wrong color." ² Although defendant asserted that the two attorneys who interviewed plaintiff reportedly were dissatisfied with plaintiff's job performance, Brink nonetheless recommended that Campbell give plaintiff a second interview. Campbell and Deanna Hatmaker, defendant's personnel director, thereafter interviewed plaintiff. As plaintiff was leaving that interview, plaintiff testified that she overheard Hatmaker tell Campbell that he should not permit plaintiff to address him by his first name because plaintiff was black.

Defendant offered the job to an applicant with higher qualifications than those of plaintiff. ³ However, this applicant declined the offer because the salary associated with the position was too low. Defendant ultimately reorganized the secretarial position plaintiff had applied for and hired two nonminority women who allegedly were less qualified than plaintiff for the two new clerical legal support positions that encompassed the duties of the original legal secretarial position. ⁴ Plaintiff ceased working for defendant in April 1994 and immediately filed suit. The trial court granted defendant's motion for summary disposition, ruling that defendant had legitimate, nondiscriminatory business reasons for declining to hire plaintiff.

On appeal, plaintiff asserts that the circuit court erred in granting summary disposition to defendant. We agree, but for entirely different reasons than urged by plaintiff. Instead, we conclude that the circuit court and the parties applied an incorrect legal analysis.

This Court reviews a trial court's determination regarding motions for summary disposition de novo. Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 85, 520 N.W.2d 633 (1994). A motion for summary disposition under MCR 2.116(C)(10) tests whether factual support exists for the claim. The trial court considers the affidavits, pleadings, depositions, admissions, and other admissible documentary evidence within the action. Skinner v. Square D Co., 445 Mich. 153, 161, 516 N.W.2d 475 (1994). The court's task is to review the record evidence, and all reasonable inferences therefrom, and determine whether a genuine issue of material fact exists to warrant a trial. Id. In reviewing a trial court's summary disposition decision, this Court makes all legitimate inferences in favor of the nonmoving party. Id. at 162, 516 N.W.2d 475.

II Proof of Employment Discrimination

Plaintiff alleges that defendant engaged in disparate treatment in violation of the Michigan Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq., by refusing to hire her because of race. ⁵ This constitutes a claim of intentional discrimination, which may be proved by alternate methods. Meagher v. Wayne State Univ., 222 Mich.App. 700, 708-710, 565 N.W.2d 401 (1997). Intentional discrimination may be established by direct or indirect evidence. Id. at 710, 565 N.W.2d 401.

In analyzing discrimination claims arising under the Michigan Civil Rights Act, Michigan courts have often resorted to federal precedent for guidance. Id. Indeed, the parties in this case have used, and the circuit court applied, the federal burden of proof analysis and construct established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Because most employment discrimination cases involve only circumstantial evidence of discrimination, the McDonnell Douglas burden of proof model was tailored for such cases. See Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 801, n. 6 (C.A.6, 1994). Consequently, as explained in Meagher, the McDonnell Douglas method of establishing a prima facie case of intentional discrimination relies upon a "presumptive approach." Meagher, supra at 710, 565 N.W.2d 401. The Supreme Court in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981), stated:

The [McDonnell Douglas ] prima facie case serves an important function ...: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection. As the Court explained in Furnco Construction Corp. v. Waters, 438 U.S. 567, 577[,] 98 S.Ct. 2943 [2949-50,] 57 L.Ed.2d 957 (1978), the prima facie case "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." [Some citations omitted.]

Under the McDonnell Douglas approach that Michigan has adopted in various forms, the court must first determine if the plaintiff has stated a prima facie case of discrimination. Meagher, supra at 710-711, 565 N.W.2d 401. ⁶ "Prima facie case" in the McDonnell Douglas context means only that the plaintiff has provided enough evidence to create a rebuttable presumption of discrimination. Dixon v. W.W. Grainger, Inc., 168 Mich.App. 107, 115, 423 N.W.2d 580 (1987). It does not mean that the plaintiff has provided sufficient evidence to allow the case to go to a jury. Id. If the court concludes that the plaintiff has established a prima facie case of discrimination, the court then examines whether the defendant has articulated a legitimate, nondiscriminatory reason for its action. Meagher, supra at 711, 565 N.W.2d 401. If that articulation is made, the court next considers whether the plaintiff has proved by a preponderance of the evidence that the reason offered by the defendant was a mere pretext for discrimination. Id. at 711-712, 565 N.W.2d 401.

As noted, the circuit court relied upon the McDonnell Douglas model in resolving defendant's motion. We conclude that the circuit court correctly found that plaintiff had stated a prima facie case of discrimination under McDonnell Douglas, ⁷ that defendant had articulated nondiscriminatory reasons for its action, ⁸ and that plaintiff failed to establish a genuine issue of material fact concerning whether defendant's reasons were merely pretexts for discrimination. ⁹

Nevertheless, while the McDonnell Douglas burden-shifting analysis is appropriate in cases without direct evidence of discrimination, this case presents a different situation. Federal case law holds, and we agree, that the McDonnell Douglas evidentiary framework does not apply when a plaintiff presents direct evidence of discriminatory animus. Kresnak v. Muskegon Heights, 956 F.Supp. 1327 (W.D.Mich., 1997); see also Matras v. Amoco Oil Co., 424 Mich. 675, 683-684, 385 N.W.2d 586 (1986). "Direct evidence and the McDonnell Douglas formulation are simply different evidentiary paths by which to resolve the ultimate issue of [the] defendant's discriminatory intent." Blalock v. Metals Trades, Inc., 775 F.2d 703, 707 (C.A.6, 1985).

"Direct evidence" has been defined in the Sixth Circuit Court of Appeals as evidence that, if believed, " ' "requires the conclusion that unlawful discrimination was at least a motivating factor." ' " Kresnak, supra at 1335 (citations omitted). For example, racial slurs by a decisionmaker constitute direct evidence of racial discrimination that is " 'sufficient to get the plaintiff's case to the jury.' " Id. (citation omitted). Thus, when direct evidence of discrimination is involved, we believe that federal case law provides appropriate guidance for analyzing discrimination claims arising under the Michigan Civil Rights Act. ¹⁰

In the instant case, plaintiff testified in her deposition that defendant's employees made derogatory comments about her race. Because of plaintiff's direct evidence of discrimination, ¹¹ this case presents a question of mixed motives, one in which defendant's decision not to hire plaintiff could have been based on several factors, legitimate ones as well as legally impermissible ones. ¹²

In federal cases involving mixed or dual motives, once the plaintiff has met the initial burden of proving that the illegal conduct (in this case, race discrimination) was more likely than not a "substantial" or "motivating" factor in the defendant's decision, the defendant has the opportunity to show by a preponderance of the evidence that it would have reached the same decision without consideration of the protected characteristic. See Mt. Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (involving a First Amendment claim arising under 42 U.S.C. § 1983); see also East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 404, n. 9, 97 S.Ct. 1891, 1897, n. 9, 52 L.Ed.2d...