Meeka v. D & F Corp.

• Decision Date: 14 May 1987
• Docket Number: Docket No. 87721
• Citation: 405 N.W.2d 125,158 Mich.App. 688
• Parties: Edward MEEKA and Shirley Meeka, Plaintiffs-Appellants, v. D & F CORPORATION, Defendant-Appellee. 158 Mich.App. 688, 405 N.W.2d 125, 47 Fair Empl.Prac.Cas. (BNA) 908
• Court: Court of Appeal of Michigan — District of US

Page 125

405 N.W.2d 125

Edward MEEKA and Shirley Meeka, Plaintiffs-Appellants, v. D & F CORPORATION, Defendant-Appellee.

Docket No. 87721.

158 Mich.App. 688, 405 N.W.2d 125,

47 Fair Empl.Prac.Cas. (BNA) 908

Court of Appeals of Michigan.

Submitted Oct. 16, 1986.

Decided Jan. 15, 1987.

Released for Publication May 14, 1987.

[158 MICHAPP 689] Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Kathleen L. Bogas and Sharon D. Blackmon, Southfield, for plaintiffs-appellants.

Dykema, Gossett, Spencer, Goodnow & Trigg by Seth M. Lloyd and Michael R. Lied, Detroit, for defendant-appellee.

Before WAHLS, P.J., and R.B. BURNS and WARSHAWSKY ^*, JJ.

PER CURIAM.

Plaintiffs, Edward Meeka (plaintiff) and Shirley Meeka, filed a complaint in the Macomb Circuit Court alleging age discrimination against Edward Meeka as a result of his layoff by defendant, D & F Corporation. Edward's wife, [158 MICHAPP 690] Shirley, claims loss of consortium. The trial court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(10) and dismissed plaintiffs' suit. Plaintiffs appeal as of right.

Defendant, D & F Corporation, specializes in the manufacturing of products for the auto industry. As defendant's work is tied to the auto industry, it is subject to downturns in the economy. Plaintiff was a skilled tradesman with a journeyman's card in pattern making. He also was a journeyman machinist. He was hired by defendant in November, 1979. Plaintiff was fifty-five years old at the time of his layoff.

On October 29, 1982, defendant laid off five employees, including plaintiff. On November 5, 1982, it laid off two more employees. The ages of the seven laid off employees ranged from twenty-nine years to seventy years. Plaintiff was informed that his layoff was due to a lack of available work and that he would be recalled in a couple of weeks. It is this layoff that plaintiff alleges was a product of discrimination.

By February, 1983, plaintiff still had not been called back to work. However, he had seen a younger person at the work place, apparently working in plaintiff's old position. As a result, plaintiff filed a grievance with his union claiming age discrimination. Soon after, plaintiff was recalled to work. There is some dispute as to whether the recall was a result of an agreement to dismiss the grievance or whether plaintiff was scheduled to be called back to work at this time. However, plaintiff did not return to work because he wanted time to withdraw from a class he was taking. Because of an unexpected strike and plaintiff's refusal to cross the picket line, plaintiff did not return until March 24, 1983.

A motion for summary judgment under GCR [158 MICHAPP 691] 1963, 117.2(3), now MCR 2.116(C)(10), asserts that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Such a motion should not be granted when there is an issue of material fact, since the motion tests the factual support for plaintiff's claim. The trial court must consider the affidavits submitted, pleadings, depositions, admissions and documentary evidence. The opposing party must show that a genuine issue of disputed fact exists. The test is whether the kind of record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. This Court is liberal in finding a genuine issue of material fact. Langlois v. McDonald's Restaurants of Michigan, Inc., 149 Mich.App. 309, 314, 385 N.W.2d 778 (1986).

Plaintiff's claim of age discrimination is based upon the Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548 (101) et seq., which prohibits employers from discriminating against a person on the basis of age.

The act states in pertinent part:

"An employer shall not:

"(a) ... 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. Sec. 37.2202; M.S.A. Sec. 3.548 (202).

In determining the substantive law in discrimination cases, it is appropriate to consider federal precedent. Langlois, supra. See also Matras v. Amoco Oil Co., 424 Mich. 675, 385 N.W.2d 586 (1986).

Age does not have to be the sole factor for the discharge, as long as it is one of the determining [158 MICHAPP 692] factors. Matras, supra, p. 682, 385 N.W.2d 586. In the instant case, the question is whether there was sufficient evidence, when viewed most favorably to plaintiff, to conclude that age discrimination was a determining factor in the decision to lay him off.

The burden and order of proofs in an employment discrimination case was stated in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), reaffirming the holding of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973):

"First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' ... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination."

See Jenkins v. Southeastern Michigan Chapter, American Red Cross, 141 Mich.App. 785, 793, 369 N.W.2d 223 (1985).

In order to establish a prima facie case of age discrimination, plaintiff must present evidence that (1) he had skills, experience, background or qualifications comparable to other employees who were not laid off, and (2) that age was the determining factor in defendant's decision to lay plaintiff off. Matras, supra, 424 Mich. pp. 683-684, 385 N.W.2d 586. This Court has previously held that a prima facie case of age discrimination is not shown by mere termination of a competent employee when the employer is [158 MICHAPP 693] forced to lay off due to adverse economic conditions. Bouwman v. Chrysler Corp., 114 Mich.App. 670, 680-682, 319 N.W.2d 621 (1982), lv. den. 417 Mich. 989 (1983); Eliel v. Sears Roebuck & Co., 150 Mich.App. 137, 140, 387 N.W.2d 842 (1985). A prima facie case may be established by circumstantial evidence. Jenkins, supra, 141 Mich. p. 794, 369 N.W.2d 223.

Plaintiff's claim...