LEM D GILMER V IBM CORP
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STATE OF MICHIGAN
COURT OF APPEALS
LEM D. GILMER,
UNPUBLISHED
November 4, 1997
Plaintiff-Appellant,
v
No. 198593
Oakland Circuit Court
LC No. 94-481460-CZ
IBM CORP.,
Defendant-Appellee.
Before: Fitzgerald, P.J., and Markey and J. B. Sullivan*, JJ.
PER CURIAM.
Plaintiff appeals as of right a circuit court order granting summary disposition pursuant to MCR
2.116(C)(10) in favor of defendant in this race and age discrimination case. We affirm in part, reverse
in part, and remand.
At the time this suit was filed, plaintiff was a 43-year-old African-American male who has been
employed at International Business Machines Corporation (IBM) since 1974 and remains employed by
IBM today. Plaintiff worked in several positions over the years including marketing, systems
engineering, and management. At the time this lawsuit was filed, plaintiff was providing business
consulting services to corporations on behalf of IBM.
The events giving rise to this lawsuit occurred primarily after plaintiff was promoted in 1990 to
branch manager at IBM’s Toledo office. Plaintiff was removed from this position in 1992 after
receiving a low rating in a performance evaluation. His supervisor attributed the rating to low employee
moral and poor overall performance. Plaintiff was replaced by another African-American male seven
years his senior and was transferred laterally within the company.
On appeal, plaintiff first claims that the circuit court committed legal error by dismissing his race
discrimination claim because he established a prima facie case of disparate treatment with respect to
promotional and demotional decisions made by defendant’s agents.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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Michigan’s Elliott-Larsen Civil Rights Act prohibits an employer from “discriminat[ing] against
an individual with respect to employment, compensation, or a term, condition, or privilege of
employment, because of . . . race. MCL 37.2202(1); MSA 3.548(202)(1). In order to establish a
prima facie case of intentional racial discrimination based on the disparate treatment theory, a plaintiff
must prove (1) that he was a member of a protected class, and (2) that he was treated differently than
persons of a different class for the same or similar conduct. Reisman v Wayne State Regents, 188
Mich App 526, 538; 470 NW2d 678 (1991). Michigan law requires a plaintiff to prove that race was
one of the determining factors or motives for the employment decision. Id.
Once a plaintiff establishes a prima facie case of racial discrimination, the burden shifts to the
defendant to proffer a non-discriminatory reason for the employment decision. Featherly v Teledyne
Indus, Inc, 194 Mich App 352; 486 NW2d 361 (1993). If the defendant satisfies this burden, the
plaintiff must present sufficient documentary evidence to create a material issue of fact on which
reasonable minds could conclude that the employer’s reason is a pretext for discrimination for summary
disposition to be precluded. Town v Michigan Bell, 455 Mich 688, 697-698; ___ NW2d ___
(1997). Plaintiff may not rely on his allegations in the pleadings, nor may he assert mere conclusory
accusations without documentary evidence. Ewers v Stroh Brewery Co, 178 Mich App 371, 374;
443 NW2d 504 (1989).
Here, plaintiff attributed his removal from branch manager to the discriminatory practices of
defendant’s agents. He cites several instances where he was treated with less respect and appreciation
than his white co-workers during his tenure as branch manager. However, although plaintiff presented
evidence of racially motivated and derogatory comments by defendant’s agents, he has failed to connect
those remarks to any alleged discriminatory practice on behalf of defendant. All of the alleged racial
comments occurred before plaintiff received the promotion and significant salary increases and bonuses.
Moreover, plaintiff has not provided any evidence of racial animus while he was branch manager that
prompted his removal. Therefore, we are not persuaded that plaintiff has submitted any evidence that
defendant’s explanation for removing plaintiff from the position of branch manager was pretextual and
that the employment decision was racially motivated.
However, plaintiff also argues that race was a determining factor in other employment decisions
that adversely affected his opportunity to further advance within the company. After he was removed
from the position of branch manager, plaintiff applied for another managerial position and was denied
this job in favor of a less experienced white co-worker. Plaintiff alleged that his supervisor explained
that, despite his qualifications, plaintiff did not fit the “profile” because the company needed an individual
who could satisfy IBM’s white male customers. In addition, after his transfer from the position of
branch manager, and while he was working as a consultant, plaintiff was again overlooked for an
advisory consulting position when the same supervisor awarded the position to another while male with
less experience.
In light of this evidence, and because defendant has not come forth with a non-discriminatory
basis to explain the employment decisions taken after plaintiff was removed from the position of branch
manager, we find that plaintiff has sustained his burden and submitted sufficient evidence to create a
factual dispute regarding whether race was an issue in these later employment decisions. Accordingly,
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plaintiff’s race discrimination claim with respect to promotional decisions made after plaintiff was
removed from the position of branch manager should not have been summarily dismissed.
Plaintiff next argues that the trial court erred by dismissing his age discrimination claim because
plaintiff offered factual support and documentary evidence sufficient to allow a reasonable jury to
conclude that plaintiff’s age was a determining factor in defendant’s employment decisions. We
disagree.
Michigan’s Elliott-Larsen Civil Rights Act forbids an employer to “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.” MCL 37.2202;
MSA 3.548(202). A plaintiff establishes a prima facie case of age discrimination by showing that (1)
the plaintiff was within the protected class, (2) the plaintiff was qualified for the position, and (3) the
plaintiff was replaced by a substantially younger person. Meagher v Wayne State University, 222
Mich App 700, 710; 565 NW2d 401 (1997). Here, plaintiff was replaced by a man seven years his
senior. Hence, plaintiff failed to establish the third prong of a prima facie case of age discrimination with
respect to removal from the position of branch manager. Further, plaintiff’s allegations with respect to
other positions for which plaintiff felt he was qualified rest entirely on one instance where he and two
IBM employees conversed about what it takes to be successful in the business. The employees
indicated to plaintiff that potential advancement in the company was limited by one’s age, referring to the
term “runway” as the approximate time that a person should attain a certain level of performance in
order to be successful. Plaintiff apparently interpreted this comment to mean that his own opportunity
to advance was declining. However, never during the conversation did either employee imply that they
were referring specifically to plaintiff. There is no evidence that this term was not merely contrived by
the employees. Further, no evidence was presented that age had any significance whatsoever on the
hiring, promotion, or termination procedures in the company at all. Thus, we find that plaintiff failed to
introduce any factual support or documentary evidence that plaintiff was discriminated against based on
his age, or that age was even a factor in any of defendant’s employment decisions regarding plaintiff.
Town, supra. Accordingly, plaintiff’s age discrimination claim was properly dismissed. Quinto v
Cross & Peters, 451 Mich 358, 362-363; 547 NW2d 314 (1996).
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings.
Jurisdiction is not retained.
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
/s/ Joseph B. Sullivan
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