Lytle v. Malady

• Decision Date: 06 March 1995
• Docket Number: Docket No. 157627
• Citation: 209 Mich.App. 179,530 N.W.2d 135
• Parties: , 69 Fair Empl.Prac.Cas. (BNA) 1070, 66 Empl. Prac. Dec. P 43,482, 11 IER Cases 1860 Nancy LYTLE, Plaintiff-Appellant, v. Michael MALADY and Howmet Corporation, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 135

530 N.W.2d 135

209 Mich.App. 179, 69 Fair Empl.Prac.Cas. (BNA) 1070,

66 Empl. Prac. Dec. P 43,482, 11 IER Cases 1860

Nancy LYTLE, Plaintiff-Appellant, v. Michael MALADY and Howmet Corporation, Defendants-Appellees.

Docket No. 157627.

Court of Appeals of Michigan.

Submitted July 7, 1994, at Grand Rapids.

Decided March 6, 1995, at 9:30 a.m.

Released for Publication April 17, 1995.

Bott & Spencer, P.C. (by Timothy J. Bott), Muskegon, for plaintiff.

Varnum, Riddering, Schmidt & Howlett (by Joseph J. Vogan), Grand Rapids, for defendants.

Before HOLBROOK, P.J., and MURPHY and KINGSLEY, ^* JJ.

HOLBROOK, Presiding Judge.

In this wrongful discharge case, plaintiff's complaint alleged three counts against defendant Howmet Corporation: age discrimination under the Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq., gender discrimination under the Civil Rights Act, and breach of a contract providing for termination for just cause only. The complaint also alleged tortious interference with contractual relations against defendant Michael Malady. Following some discovery, defendants moved separately for summary disposition, which was granted by the trial court on all counts. Plaintiff appeals as of right, and we affirm in part, reverse in part, and remand.

I

In 1973, Howmet, a manufacturer of aircraft engine parts, hired plaintiff as a general clerk. Following a succession of positive performance appraisals and promotions, she was promoted in 1979 by her supervisor, John Ozar, to employment manager of the human resources department of Howmet's Whitehall division. When defendant Malady became plaintiff's supervisor in 1987, a personality conflict arose, and in 1989, on Malady's recommendation, she was demoted to human resources specialist. A younger, allegedly less qualified man was promoted to replace her.

As a result of declines in military spending and a downturn in the commercial airline industry, Howmet instituted a series of reductions in its work force between 1988 and 1991. In August 1991, William Roof, director of the Whitehall human resources department, was directed to cut his 1992 department budget by fifteen percent (approximately $439,000). In November 1991, Roof eliminated four positions in the human resources department, including plaintiff's position as human resources specialist, and reassigned her job duties to other persons within the department. Roof decided to eliminate plaintiff's position because her main responsibilities involved the hourly workers who bore the brunt of the downsizing. Plaintiff's "termination evaluation" indicated that Howmet would rehire plaintiff in the event a nonsupervisory, administrative position became open.

II

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. In reviewing a grant of summary disposition, we must independently determine, giving the benefit of doubt to the nonmovant, whether the movant would have been entitled to judgment as a matter of law. Adkins v. Thomas Solvent Co., 440 Mich. 293, 302, 487 N.W.2d 715 (1992); Featherly v. Teledyne Industries, Inc., 194 Mich.App. 352, 357, 486 N.W.2d 361 (1992). This Court reviews a summary disposition determination de novo as a question of law. Borman v. State Farm Fire & Casualty Co., 198 Mich.App. 675, 678, 499 N.W.2d 419 (1993), aff'd 446 Mich. 482, 521 N.W.2d 266 (1994).

III

Plaintiff asserts that the trial court erred in finding that no genuine issue of material fact existed with respect to plaintiff's prima facie case of age discrimination and in granting Howmet summary disposition pursuant to MCR 2.116(C)(10). We agree and reverse.

A

Plaintiff's claim of age discrimination is based upon the Civil Rights Act, which provides in pertinent part:

(1) An employer shall not do any of the following:

(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... age.... [M.C.L. § 37.2202; M.S.A. § 3.548(202).]

This Court has held that federal precedent, while not binding, is persuasive authority in interpreting and applying the Civil Rights Act. Featherly, supra 194 Mich.App. at 357-358, 486 N.W.2d 361; Slayton v. Michigan Host, Inc., 144 Mich.App. 535, 548, n. 7, 376 N.W.2d 664 (1985).

B

An age discrimination claim can be based on two theories: (1) disparate treatment, which requires a showing of either a pattern of intentional discrimination against protected employees, e.g., employees aged forty to seventy years, or against an individual plaintiff; or (2) disparate impact, which requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class. ¹ See Farmington Ed. Ass'n v. Farmington School Dist., 133 Mich.App. 566, 351 N.W.2d 242 (1984). In this case, plaintiff has presented competent evidence only of a disparate treatment claim.

A plaintiff can establish a claim of disparate treatment with sufficient direct or indirect evidence of intentional discrimination. Direct evidence of disparate treatment would be evidence that, if believed, would prove the existence of the employer's illegal motive without benefit of presumption or inference. Matras v. Amoco Oil Co., 424 Mich. 675, 683, 385 N.W.2d 586 (1986). That is not the usual case, however, because an employer is rarely so blatant as to announce its illegal motives. Instead, the usual case must be proven by indirect (circumstantial or statistical) evidence. In light of this reality, courts have created special rules of proof in order "to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255, n. 8, 101 S.Ct. 1089, 1095, n. 8, 67 L.Ed.2d 207 (1981).

A prima facie case of age discrimination varies with differing factual situations. Matras, supra, 424 Mich. at 684, 385 N.W.2d 586. Where, as here, a plaintiff is discharged as a result of an employer's economically motivated reduction in force (RIF), a prima facie case of disparate treatment requires an initial showing, by a preponderance of the evidence, that (1) the plaintiff was within the protected class and was discharged or demoted, (2) the plaintiff was qualified to assume another position at the time of discharge or demotion, and (3) age was "a determining factor" in the employer's decision to discharge or demote the plaintiff. ² Matras, supra; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Because plaintiff has presented no direct evidence of age discrimination by Howmet, she must attempt to create through indirect evidence a rebuttable presumption of discrimination. ³ In a RIF case, it is insufficient for a plaintiff to show merely that the employer retained a younger employee while discharging an older employee. Matras, supra 424 Mich. at 684, 385 N.W.2d 586; Featherly, supra 194 Mich.App. at 359, 486 N.W.2d 361.

Once established, a prima facie case creates a rebuttable presumption of disparate treatment. Burdine, supra 450 U.S. at 252-253, 101 S.Ct. at 1093-1094. At this point, the burden of production shifts to the defendant--as opposed to the burden of persuasion that never shifts[209 Mich.App. 187] --to rebut the presumption of disparate treatment by articulating (not proving) "some legitimate, nondiscriminatory reason" for the adverse employment decision against the plaintiff. Id. at 253-258, 101 S.Ct. at 1093-1096. The defendant's explanation must be clear and reasonably specific to afford the plaintiff "a full and fair opportunity" to demonstrate pretext. Id. at 256, 101 S.Ct. at 1095.

If the defendant carries its burden of production, the presumption of discrimination is dispelled, and the factual inquiry proceeds to a new level of specificity. Id. at 255, 101 S.Ct. at 1094. See also St. Mary's Honor Center v. Hicks, 506 U.S. ----, ----, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407, 422 (1993). The plaintiff's burdens of production and persuasion merge, requiring her to prove by a preponderance of the evidence not only that the defendant's proffered reasons are a mere pretext but also that illegal discrimination was more likely the defendant's true motivation in discharging or demoting the plaintiff. Id., Fuentes v. Perskie, 32 F.3d 759, 764 (C.A.3, 1994); Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (C.A.5, 1993).

At this juncture, we note that there is a crucial distinction between a plaintiff's prima facie case for purposes of surviving a summary disposition motion and a prima facie case sufficient to persuade a trier of fact at trial with regard to the ultimate question whether a defendant intentionally discriminated against the plaintiff. While the latter requires a plaintiff to prove her case to the trier of fact by a preponderance of the evidence, the former does not require her to go so far. Meeka v. D & F Corp., 158 Mich.App. 688, 694, 405 N.W.2d 125 (1987); Fuentes, supra at 763-764. Neither a trial court nor this Court on appellate review of a summary disposition determination need conduct a minitrial to determine whether the plaintiff has met her burden of presenting a prima facie case by a preponderance of the evidence. Instead, for the plaintiff to survive a summary disposition motion, she need only tender specific factual evidence that could lead a reasonable jury to conclude that the defendant's proffered reasons are a pretext for age discrimination. Bodenheimer, supra at 958; Hicks, supra, 506 U.S. at ----, 113 S.Ct. at 2747, 125 L.Ed.2d at 416. Thus, the plaintiff must establish, either directly or indirectly, the existence of a genuine issue of material fact that the defendant's proffered reasons are unworthy of credence, and that illegal age discrimination was more likely the defendant's true motivation in discharging or demoting her....