Neubacher v. Globe Furniture Rentals, Inc., Docket No. 144350

• Citation: 205 Mich.App. 418,522 N.W.2d 335
• Decision Date: 18 May 1994
• Docket Number: Docket No. 144350
• Parties: George NEUBACHER, Plaintiff-Appellee, v. GLOBE FURNITURE RENTALS, INC., Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 335

522 N.W.2d 335

205 Mich.App. 418

George NEUBACHER, Plaintiff-Appellee, v. GLOBE FURNITURE RENTALS, INC., Defendant-Appellant.

Docket No. 144350.

Court of Appeals of Michigan.

Submitted Oct. 20, 1993, at Lansing.

Decided Jan. 24, 1994.

Approved for Publication

May 18, 1994, at 9:05 a.m.

James Schuster, Southfield, for plaintiff.

Barlow & Lange, P.C., Troy (by Craig S. Schwartz), for defendant.

Before MICHAEL J. KELLY, P.J., and SHEPHERD and MURPHY, JJ.

PER CURIAM.

In 1989, plaintiff sued defendant alleging he had been wrongfully terminated because of his age in violation of the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq.; M.S.A. § 3.548(101) et seq. Subsequently, defendant's motion for partial summary disposition on the issue of damages was denied. Defendant filed an application for leave to appeal and immediate consideration. This Court granted defendant's applications, and ordered a stay of further proceedings pending resolution of this appeal. We affirm in part and reverse in part.

On November 12, 1984, plaintiff was hired as defendant's credit manager. On November 1, 1988, defendant discharged plaintiff and replaced him with a younger man. On September 1, 1989, the job of credit manager was formally eliminated, and plaintiff's replacement was permanently laid off. For a time, defendant's assistant controller performed the credit and collection functions previously performed by the credit manager. However, eventually all credit and collection functions were performed at defendant's headquarters in Cincinnati.

Defendant argues on appeal that the trial court erred in denying its motion for partial summary disposition on the issue of economic damages, i.e., loss of pay and benefits, accruing subsequent to September 1, 1989, the date plaintiff's former job was permanently eliminated. We agree.

A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993). The moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Ward v. Frank's Nursery & Crafts, Inc., 186 Mich.App. 120, 134, 463 N.W.2d 442 (1990), lv. den. 437 Mich. 1033, 471 N.W.2d 84 (1991). The party opposing the motion then has the burden of showing that a genuine issue of disputed facts exists. Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 773, 447 N.W.2d 864 (1989), lv. den. 435 Mich. 871 (1990). The nonmovant may not rest upon mere allegations or denials in the pleadings, but must by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. McCart v. J. Walter Thompson USA, Inc., 437 Mich. 109, 115, 469 N.W.2d 284 (1991).

In support of its motion for partial summary disposition, defendant introduced evidence that prior to July 1989, defendant had decided to consolidate its Michigan and Ohio offices to improve efficiency and reduce operating costs. In July of 1989, plaintiff's successor was informed of the decision and...