PHILLIP I VENABLE V GENERAL MOTORS CORP
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STATE OF MICHIGAN
COURT OF APPEALS
PHILLIP I. VENABLE,
FOR PUBLICATION
October 22, 2002
9:05 a.m.
Plaintiff-Appellant,
v
No. 219037
Genesee Circuit Court
LC No. 97-059552-CL
ON REMAND
Updated Copy
January 17, 2003
GENERAL MOTORS CORPORATION,
Defendant-Appellee.
Before: O'Connell, P.J., and Fitzgerald and Wilder, JJ.
O'CONNELL, P.J.
This reverse employment discrimination case is before us on remand from our Supreme
Court. In an unusual remand order, the Court stated in part:
The panel is directed to explain . . . whether, in affirming summary
disposition in favor of defendant, it was necessary to rely on Allen v
Comprehensive Health Services, 222 Mich App 426; 564 NW2d 914 (1997). If it
was not, the Court should explain why not. If it was, the Court should explain
why it was and address whether the ["]background circumstances["] test imposed
by Allen in evaluating ["]reverse discrimination["] claims is consistent with the
Civil Rights Act, MCL 37.2101 et seq. If so, it should also address whether the
test is consistent with state or federal equal protection principles.[1] [Venable v
General Motors Corp, unpublished order entered July 31, 2002 (Docket No.
119202).]
From this language we discern that our Supreme Court has ordered us to (1) determine if this
Court's previous opinion in Allen was wrongly decided and (2) determine if the Allen decision is
1
We note that leave to appeal to our Supreme Court was granted in Allen, 459 Mich 861 (1998),
and the Court subsequently "direct[ed] the parties to file . . . supplemental briefs on the question
of the propriety of applying the analysis of McDonnell Douglas Corp v Green, 411 US 792; 93 S
Ct 1817; 36 L Ed 2d 668 (1973), in determining the existence of a prima facie case in cases
arising under the Elliott-Larsen Civil Rights Act." Allen v Comprehensive Health Services, 590
NW2d 573 (1999). The case was dismissed soon after by stipulation of the parties without
resolution by our Supreme Court.
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outcome determinative of the present case.2 We conclude that Allen was wrongly decided and
that the Allen decision is not outcome determinative of the present case.3 Thus, we again affirm
the trial court's order granting summary disposition for defendant.4
I. THE MCDONNELL DOUGLAS FRAMEWORK
In McDonnell Douglas Corp v Green, 411 US 792, 802; 93 S Ct 1817; 36 L Ed 2d 668
(1973), the United States Supreme Court established the elements of a prima facie case for
claims alleging race discrimination in employment under title VII of the Civil Rights Act of
1964, 42 USC 2000e et seq.
The complainant in a Title VII trial must carry the initial burden under the
statute of establishing a prima facie case of racial discrimination. This may be
done by showing (i) that he belongs to a racial minority; (ii) that he applied and
was qualified for a job for which the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and (iv) that, after his rejection, the
position remained open and the employer continued to seek applicants from
persons of complainant's qualifications. [McDonnell Douglas, supra at 802.]
In Town v Michigan Bell Telephone Co, 455 Mich 688; 568 NW2d 64 (1997), our Supreme
Court adapted the McDonnell Douglas framework to the Michigan Civil Rights Act. This was
done to accommodate additional types of discrimination claims—including employment
discrimination based on sex and age—and to accommodate other "adverse employment
action[s]." Id. at 695 (Brickley, J., with Boyle and Weaver, JJ., concurring). The framework,
long used by courts of this state,5 requires a showing that plaintiff was "(1) a member of a
2
In essence, our Supreme Court has ordered us to act as an appellate court over the previous
opinion of our colleagues in Allen. We undertake this task with due respect for the Allen panel's
decision.
3
While we conclude that Allen was wrongly decided, we note that one panel of this Court may
not overrule a decision of another panel. MCR 7.215(I)(1). In addition, we cannot declare a
conflict and convene a conflict panel because, in our opinion, Allen is not outcome determinative
of the present case. See MCR 7.215(I)(2)-(3); Booker v Detroit, 251 Mich App 167, 181, 185;
650 NW2d 680 (2002). Because our Supreme Court retained jurisdiction of the present case on
remand, we urge the Court to grant leave in the present case and resolve the conflict created by
this case and the Allen decision. See Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691,
708; 614 NW2d 607 (2000) (wrongly decided cases produce more injury when followed than if
overruled).
4
Our previous opinion in this case was Venable v General Motors Corp, unpublished opinion
per curiam of the Court of Appeals, issued April 20, 2001 (Docket No. 219037).
5
One of the first cases in which our Supreme Court adopted the McDonnell Douglas framework
for "ordinary" employment discrimination cases was Victorson v Dep't of Treasury, 439 Mich
131, 142-143; 482 NW2d 685 (1992) (affirmative action plan claim brought by male employee);
see also Rasheed v Chrysler Corp, 445 Mich 109, 132-133, n 41; 517 NW2d 19 (1994) (race and
(continued…)
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protected class, (2) subject to an adverse employment action, (3) qualified for the position, and
that (4) others, similarly situated and outside the protected class, were unaffected by the
employer's adverse conduct." Id. at 695 (Brickley, J., with Boyle and Weaver, JJ., concurring),
707 (Riley, J., concurring in the judgment); see also Lytle v Malady (On Rehearing), 458 Mich
153, 171-173, n 19 (Weaver, J., with Boyle and Taylor, JJ., concurring), 185 (Brickley, J.,
concurring in the judgment); 579 NW2d 906 (1998).
II. APPLICATION TO REVERSE DISCRIMINATION CASES
We believe Allen was wrongly decided because Allen improperly modified the
McDonnell Douglas framework by adding an element for reverse employment discrimination
cases.6 Citing questionable federal precedent,7 the Allen Court concluded that reverse
discrimination plaintiffs can rely on the McDonnell Douglas framework to establish "a prima
facie case of intentionally disparate treatment only 'when background circumstances support the
suspicion that the defendant is that unusual employer who discriminates against the majority.'"
Allen, supra, 222 Mich App 432 (emphasis added), quoting Parker v Baltimore & O R Co, 209
US App DC 215, 220; 652 F2d 1012 (1981). This additional element has become known as the
"background circumstances" test. The Allen Court reasoned as follows:
(…continued)
religious discrimination case); Town, supra at 694-696 (sex and age discrimination); Lytle v
Malady (On Rehearing), 458 Mich 153, 171-173, n 19 (Weaver, J., with Boyle and Taylor, JJ.,
concurring), 185 (Brickley, J., concurring in the judgment); 579 NW2d 906 (1998) (sex and age
discrimination); Hazle v Ford Motor Co, 464 Mich 456, 467-472; 628 NW2d 515 (2001) (race
discrimination). This Court has applied the McDonnell Douglas framework in several published
"ordinary" discrimination cases based on race or sex, including: Harrison v Olde Financial
Corp, 225 Mich App 601, 606-607; 572 NW2d 679 (1997); Wilcoxon v Minnesota Mining &
Mfg Co, 235 Mich App 347, 359; 597 NW2d 250 (1999); Cunningham v Dearborn Bd of Ed,
246 Mich App 621, 626, n 1; 633 NW2d 481 (2001).
6
It appears that no Michigan appellate court has applied the McDonnell Douglas framework in a
published "reverse" discrimination decision except for Allen. Rather, our Supreme Court has
decided several "reverse" discrimination cases, but never applied the McDonnell Douglas
analysis to them. See, e.g., Crawford v Dep't of Civil Service, 466 Mich 250; 645 NW2d 6
(2002) (reverse race discrimination case under state and federal law).
7
In particular, Allen, supra, 222 Mich App 430-432, n 3, based its holding on nonbinding federal
district and circuit court discrimination case law. District and circuit federal case law
interpreting federal statutes similar to state statutes—as in the present case analogizing the
Michigan Civil Rights Act to the federal Civil Rights Act—is merely persuasive authority. See
Sharp v Lansing, 464 Mich 792, 802-803; 629 NW2d 873 (2001); Chambers v Trettco, Inc, 463
Mich 297, 313; 614 NW2d 910 (2000). Even so, decisions of the United States Supreme Court,
such as McDonnell Douglas, are binding on this Court on the precise issues those decisions
address and the precise statutes interpreted, particularly federal constitutional law. See People v
Beasley, 239 Mich App 548, 558-559; 609 NW2d 581 (2000), citing Texas v Brown, 460 US
730, 737; 103 S Ct 1535; 75 L Ed 2d 502 (1983). Thus, the McDonnell Douglas case,
addressing the federal Civil Rights Act, is merely persuasive, although widely adopted, authority
in this state. See also Allen, supra, 590 NW2d 573.
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Recognizing that "[t]he facts necessarily will vary in Title VII cases," the
McDonnell Douglas Court noted that its specification of the prima facie burden of
proof "is not necessarily applicable in every respect to differing factual
situations." Id. at 802, n 13.
The District of Columbia Circuit Court of Appeals accepted this invitation
to modify the McDonnell Douglas test for purposes of a "reverse discrimination"
claim in Parker[,] [supra] . . . .
* * *
. . . The Parker court held that majority plaintiffs [i.e., Caucasian or male
plaintiffs] can rely on the McDonnell Douglas criteria to prove a prima facie case
of intentionally disparate treatment only "when background circumstances
support the suspicion that the defendant is that unusual employer who
discriminates against the majority." Id.
The Parker analysis has been followed by appellate courts in at least three
other federal circuits. With these courts, we conclude that Parker appropriately
modified the McDonnell Douglas test for application to a reverse discrimination
claim brought under title VII. Further, recognizing that these precedents are not
binding upon us in interpreting Michigan's Civil Rights Act, we nonetheless are
convinced by the Parker analysis and adopt its approach for purposes of this
statute as well.
Accordingly, we hold that a reverse discrimination plaintiff who has no
direct evidence of discriminatory intent may establish a prima facie claim of
gender [sex] discrimination under the Civil Rights Act with respect to a
promotion decision by showing (i) background circumstances supporting the
suspicion that the defendant is that unusual employer who discriminates against
men; (ii) that the plaintiff applied and was qualified for an available promotion;
(iii) that, despite plaintiff 's qualifications, he was not promoted; and (iv) that a
female employee of similar qualifications was promoted.[8] Upon this showing, a
"presumption" of discriminatory intent is established for possible rebuttal by the
employer. Absent this showing, a reverse discrimination plaintiff who has no
direct evidence of discriminatory intent cannot proceed. [Allen, supra, 222 Mich
App 430-433 (citations omitted; emphasis added).]
III. ALLEN'S MODIFICATION OF THE MCDONNELL DOUGLAS FRAMEWORK
By adding the "background circumstances" test to the McDonnell Douglas framework,
Allen made it more difficult procedurally for a Caucasian or male plaintiff-employee than for an
8
In Allen, supra, 222 Mich App 429, the alleged "adverse employment action" was a failure to
promote on the basis of sex. In the present case and in Town, supra at 692-694, the adverse
employment actions were the plaintiffs' discharge.
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African-American or female plaintiff-employee to allege employment discrimination. See
Pierce v Commonwealth Life Ins Co, 40 F3d 796, 801, n 7 (CA 6, 1994). While the McDonnell
Douglas decision allowed its framework to be adapted to different types of discrimination or
different types of "adverse employment action[s]" (Town, supra at 695), Allen clearly departed
from McDonnell Douglas and added an entire element to the framework.
In our opinion, the "background circumstances" test imposed by Allen in evaluating
reverse employment discrimination claims is inconsistent with the Michigan Civil Rights Act.
The Civil Rights Act does not make a distinction concerning whether an employee alleging race
discrimination is Caucasian or African-American. It only provides that "[a]n employer shall not
. . . discriminate against an individual with respect to employment . . . because of religion, race,
color, national origin, age, [or] sex . . . ." MCL 37.2202(1)(a). That is, any individual,
Caucasian or African-American, male or female, is protected from race or sex discrimination
under the Civil Rights Act. Consequently, ordinary and reverse discrimination claims are
equally sustainable under the Civil Rights Act.9 See Pierce, supra. Therefore, we hold that the
Allen Court erred in adding the "background circumstances" test to a prima facie case for
plaintiffs alleging reverse discrimination in employment.
IV. THE FACTS OF OUR PREVIOUS DECISION IN VENABLE
The facts of this case were set forth in our previous opinion:
Plaintiff, a sixty-one-year-old Caucasian male, was discharged from his
employment with defendant in 1996 after approximately thirty-one years of
service. At the time of his discharge, plaintiff held the position of a sixth-level
supervisor in defendant's Service Parts Organization (SPO) plant in Swartz Creek.
In August 1996, defendant received a phone call from an anonymous individual
on its "Awareline," a confidential toll-free number defendant's employees used to
report suspected misconduct. The caller alleged that plaintiff had been observed
leaving the SPO facility on company time with hourly employees and drinking at
a nearby bar. Subsequent surveillance by defendant confirmed the caller's
allegations, and plaintiff was discharged. Plaintiff 's termination in October 1996
followed a meeting for all sixth-level supervisors held in the spring of 1996,
where management personnel warned employees that they would be immediately
discharged if they knowingly allowed an employee to leave the plant while on
company time.
After his employment with defendant was terminated, plaintiff
commenced the instant action alleging race, gender, and age discrimination in
violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.,
wrongful discharge, and fraudulent misrepresentation. After defendant moved for
9
As we did in our previous opinion in this case, we again note, without deciding the unpreserved
constitutional issue, that the "background circumstances" test in Allen's prima facie case for
reverse discrimination claims also may be violative of equal protection and due process. See
also Venable, supra, unpublished order of the Michigan Supreme Court.
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summary disposition under MCR 2.116(C)(10), the trial court summarily
disposed of all of plaintiff 's claims.[10] [Venable v General Motors Corp,
unpublished opinion per curiam of the Court of Appeals, issued April 20, 2001
(Docket No. 219037).]
V. ANALYSIS
Our previous opinion in this case cited Allen's modification and application of the
McDonnell Douglas framework. See Allen, supra, 222 Mich App 431-432, citing McDonnell
Douglas, supra. Having determined that Allen was wrongly decided, our next task is to ascertain
whether the result of our previous opinion in this case would have been the same without
employing the Allen "background circumstances" test. In direct answer to our Supreme Court's
first question on remand, we hold that it was not necessary to rely on Allen in our previous
opinion because direct application of the adapted McDonnell Douglas framework produces the
same result. Thus, because our application of Allen in our previous opinion was not outcome
determinative, we need not declare a conflict in the present case. See MCR 7.215(I)(2)-(3);
Booker v Detroit, 251 Mich App 167, 181, 185; 650 NW2d 680 (2002).
In our opinion, under McDonnell Douglas, the present plaintiff cannot survive summary
disposition. See Spiek v Dep't of Trans, 456 Mich 331, 337; 572 NW2d 201 (1998). Therefore,
the trial court in this case properly granted summary disposition to defendant pursuant to MCR
2.116(C)(10) for lack of a genuine issue of material fact.
With regard to the first element in the McDonnell Douglas framework, according to
Michigan's Civil Rights Act, the instant plaintiff is a member of a protected class on the basis of
his race and sex. See Town, supra at 695, 707; MCL 37.2202(1)(a) ("[a]n employer shall not . . .
discriminate against an individual . . . because of . . . race, color, national origin, age, sex . . .").
Second, plaintiff was subject to an adverse employment action, i.e., discharge. See Town, supra.
Third, according to the evidence in this case, plaintiff was otherwise qualified for his position.
Id. Fourth, and finally, plaintiff claims that similarly situated African-American and female
employees were not discharged for the same conduct. Id.; Lytle, supra at 172-173, 185.
Even if plaintiff could make out a prima facie case under the above framework, we hold
that he cannot survive the next steps in the analysis involving shifting the burden of production.
After a plaintiff-employee sets out a McDonnell Douglas prima facie case, the burden of
production shifts to the defendant-employer to produce a nondiscriminatory reason for the
adverse employment decision. Town, supra at 695, citing McDonnell, supra. In the present
case, defendant established (and plaintiff conceded) that plaintiff was discharged because he
regularly joined his subordinate employees in leaving work early and proceeding to a nearby bar.
Because this explanation satisfied defendant's burden at this stage of the analysis, the burden of
production shifted back to plaintiff to prove by a preponderance of the evidence that this reason
for discharge was a pretext for race or sex discrimination. Town, supra at 696-697, 707.
10
Plaintiff 's age discrimination, wrongful discharge, and fraudulent misrepresentation claims are
not relevant to our task on remand.
-6-
Plaintiff cannot meet this burden of production on the evidence presented on summary
disposition. Indeed, the evidence shows that after defendant announced a policy prohibiting the
alleged misconduct and warning of adverse employment consequences for those who defied the
policy, plaintiff chose to leave work early with his subordinates. As we stated in our previous
opinion, the similarly situated individuals plaintiff points to did not engage in such conduct after
the policy was announced, as plaintiff did. Nor was their conduct as egregious as plaintiff 's.
Thus, plaintiff was not fired because of his race or sex, but for misconduct that similarly situated
African-American and female employees did not commit. See Town, supra; Lytle, supra.
VI. CONCLUSION
Therefore, on remand, as in our previous opinion, we again affirm the trial court's grant
of summary disposition, albeit on different grounds. See Town, supra; Lytle, supra. Having
decided that it was not necessary to rely on Allen in this case, but that the outcome is the same,
we need not address the additional questions posed by our Supreme Court.
Affirmed.
/s/ Peter D. O'Connell
Fitzgerald, J., I concur in the result only.
/s/ E. Thomas Fitzgerald
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