CARL WOJCIK V ELECTRONIC DATA SYSTEMS CORP
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STATE OF MICHIGAN
COURT OF APPEALS
CARL WOJCIK,
UNPUBLISHED
December 3, 1999
Plaintiff-Appellant,
v
No. 213359
Saginaw Circuit Court
LC No. 96-014735 CZ
ELECTRONIC DATA SYSTEMS
CORPORATION and DON MacDONALD,
Defendants-Appellees.
Before: Sawyer, P.J., and Hood and Whitbeck, JJ.
PER CURIAM.
Plaintiff Carl Wojcik appeals as of right from an order granting summary disposition for
defendants Electronic Data System Corporation (“EDS”) and Don MacDonald, pursuant to MCR
2.116(C)(10), in this age discrimination suit. The case arose when EDS discharged forty-seven-year
old Wojcik, allegedly at MacDonald’s direction. The trial court granted summary disposition for
defendants, concluding that Wojcik had failed to present evidence that defendants’ proffered reasons
for this discharge—poor performance and workforce reduction—were mere pretext. We affirm.
I. Issues On Appeal
Wojcik raises three issues on appeal: (1) whether statistical evidence may be used as evidence
of age discrimination; (2) whether he established a prima facie case of age discrimination; and (3)
whether he provided sufficient evidence to show that defendants’ proffered reason for his termination
was mere pretext for age discrimination. There is precedent for using statistical evidence to establish a
prima facie case of discrimination and to show that the proffered reasons for a defendant's conduct are
pretextual. McDonnell Douglas Corp v Green, 411 US 792, 804-805; 93 S Ct 1817, 36 L Ed 2d
668 (1973); Dixon v WW Grainger, Inc, 168 Mich App 107, 118; 423 NW2d 580 (1987).
However, we believe that the best which in which to analyze this case is first to look at the elements of a
prima facie case.
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II. Standard Of Review
A motion for summary disposition based on MCR 2.116(C)(10) tests the factual support for a
claim in light of the pleadings, affidavits, depositions, admissions, and other documentary evidence
available to the court. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998). Drawing all inferences in favor of the nonmoving party, the court should deny the motion if a
record might be developed that will leave open an issue on which reasonable minds could differ.
Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995). It is insufficient for the
nonmoving party to promise to offer factual support for its claims at trial. Smith v Globe Life Ins Co,
460 Mich 446, 455-456 n 2; 597 NW2d 28 (1999). Rather, the nonmoving party must “present
evidentiary proofs creating a genuine issue of material fact for trial” to survive a motion for summary
disposition. Id. This Court reviews the grant or denial of the motion de novo. Spiek, supra at 337.
III. The Legal Standard
A. Statutory Provisions
Michigan’s Civil Rights Act, MCL 37.2202; MSA 3.548(202), provides:
(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 religion, race, color, national origin, age, sex,
height, weight, or marital status. [MCL 37.2202(1)(a); MSA 3.548(202)(1)(a).]
Age discrimination claims may be based on one of 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. [Lytle v Malady (On Rehearing), 458 Mich 153,
177 n 26; 579 NW2d 906 (1998), quoting with approval Lytle v Malady, 209 Mich
App 179, 184-185; 530 NW2d 135 (1995).]
Here, Wojcik’s claims appear to fall within each of these theories. Wojcik claimed that defendants
employed a pattern of intentional discrimination against older workers (disparate treatment) and that the
policies of EDS also had disparate impact on these older workers.
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B. Disparate Treatment
(1) Wilcoxon And The Elements Of A Disparate Treatment Case
In Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347; 597 NW2d 250 (1999),
this Court explained that disparate treatment cases typically fall within two categories: mixed motive
claims and pretextual claims. Id. at 359-360. “Where a plaintiff can present ordinary evidence that, if
believed, would require the conclusion that discrimination was at least a factor in the adverse
employment action . . . [then the] defendant’s articulation of a nondiscriminatory purpose creates a
‘mixed motive’ case.” Id. at 360. “Pretextual” claims, on the other hand, are established by satisfying
the McDonnell-Douglas burden-shifting analysis. Id. at 361, citing McDonnell-Douglas Corp, supra.
Under either a mixed motive or pretextual discrimination theory, a plaintiff must show (1) that he
or she was within a protected class, and (2) that he or she suffered an adverse employment action.
Wilcoxon, supra at 360-361. However, we address only the pretext theory of discrimination in light of
the arguments Wojcik makes on appeal. A plaintiff attempting to prove disparate treatment must satisfy
the McDonnell-Douglas burden-shifting analysis. In addition to the two universal elements, expressed
above, the plaintiff must show (3) that he or she was qualified for the position; and (4) that he or she
was discharged under circumstances suggesting unlawful discrimination, such as being replaced by a
younger worker. Lytle (On Rehearing), supra at 172-173, citing McDonnell-Douglas, supra. Once
a plaintiff satisfies these four elements, the burden shifts to the defendant to provide a legitimate, non
discriminatory reason for the adverse employment action. Lytle (On Rehearing), supra at 173, citing
Texas Dep’t of Community Affairs v Burdine, 450 US 248, 252-253; 101 S Ct 1089; 67 L Ed 2d
207 (1981). If the defendant can do so, the presumption of discrimination “drops away,” and the
burden shifts back to the plaintiff to show, by a preponderance of the evidence, that the defendant’s
proffered reasons were mere pretext for discrimination. Lytle (On Rehearing), supra at 174.
There is no dispute that Wojcik proved the first two elements that apply to both the mixed
motive and pretextual t eories. Wojcik, aged forty-seven,1 was a member of a protected class of
h
“older” workers when he suffered an adverse employment action: termination. As noted above, to
prove “pretext,” Wojcik had to show that he was qualified for the position and that he was replaced by
a younger worker or other circumstances that logically suggest unlawful discrimination. Lytle (On
Rehearing), supra at 172-173.
(2) Qualifications
With respect to Wojcik’s qualifications, defendants presented testimony that Theodore Corey,
Wojcik’s replacement, assumed not only Wojcik’s duties but additional work responsibilities as well.2
Wojcik presented no evidence indicating that he was qualified to perform these additional duties and he
testified that his poor performance evaluation was based, at least in part, on defendants’ unreasonable
work load demands. Furthermore, there was ample evidence that Wojcik was not handling his own job
responsibilities well, contradicting any automatic inference that he would have been able to perform
those additional duties.
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For instance, defendants provided a copy of Wojcik’s September 1992 performance
evaluation, indicating significant shortcomings in his on-the-job performance. Defendants also provided
testimony from McDonald, Wojcik’s supervisor, as well as Patricia Cauchi, and Theodore Corey, the
employee who ultimately assumed Wojcik’s duties. All three testified that Wojcik had a negative
attitude, was slow to adapt to change, and was not an extremely valuable worker.
Although Wojcik argues that inconsistencies in McDonald, Cauchi, and Corey’s testimony were
sufficient to find the witnesses lacked credibility, his own testimony supported the same conclusion the
witnesses reached. For instance, Wojcik testified that he disagreed with company policies, disagreed
with the changes made in his department, was unhappy that he was not allowed to transfer to another
position, and was too busy to spend adequate time with the managers he supported. In response to
recommendations in the evaluation that he take additional computer training, Wojcik responded that he
should have been teaching the class instead of taking it. While he may have been sufficiently competent
in certain technical aspects of his job, we conclude that Wojcik failed to demonstrate that he was
qualified to fulfill all the expectations of a person in his position, much less a person expected to take on
additional responsibilities.3
(3) Replacement
With respect to replacement, Wojcik also failed to show that he was “replaced” by a younger
worker to satisfy this fourth element. Although he claims that Corey was younger and had less
experience, the testimony indicated that Corey may have worked at EDS as long as Wojcik. More
importantly, Corey did not replace Wojcik in the literal sense. Rather, Corey replaced Terri McQueen
and then took on Wojcik’s duties when he left, performing both employees’ duties.
The broader scope in Corey’s responsibilities is consistent with the line our Supreme Court
draws between a potentially illegal “replacement” and a proper workforce reduction under the
McDonnell-Douglas analysis. As the Court has said:
“It is important to clarify what constitutes a true work force reduction case. A
work force reduction situation occurs when business considerations cause an employer
to eliminate one or more positions within the company. An employee is not eliminated
as part of a work force reduction when he or she is replaced after his or her discharge.
However, a person is not replaced when another employee is assigned to perform the
plaintiff ’s duties in addition to other duties, or when the work is redistributed among
other existing employees already performing related work. A person is replaced only
when another employee is hired or reassigned to perform plaintiff ’s duties.” [Lytle (On
Rehearing), supra at 178-179 n 27, quoting Barnes v GenCorp, Inc, 896 F2d 1457,
1465 (CA 6, 1990) (emphasis added).]
The Court in Lytle (On Rehearing) went on to note that the plaintiff was not replaced; rather, “her job
duties were reassigned to other employees to assume in addition to their other work.” Id., citing
Sahadi v Reynolds Chemical, 636 F2d 1116 (CA 6, 1980). That is precisely what happened in this
case. Therefore, we conclude that EDS did not cross the line from permissible management practices
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affecting work assignments and workforce reduction to impermissibly replacing Wojcik because of his
age.
C. Disparate Impact
A prima facie case of discrimination under a disparate impact theory requires a showing that a
facially neutral employment practice burdens a protected class of persons more harshly than others.
Farmington Ed Ass'n v Farmington School Dist, 133 Mich App 566, 571; 351 NW2d 242 (1984).
Again, Wojcik presented no evidence showing that any EDS policy affected members of the protected
class, i.e., those aged forty to seventy, more severely than the younger members of the non-protected
class.4 Although he attempted to use statistical data to show that the EDS policies related to discharge
only affected older people in the protected class, the evidence ultimately failed to make this point.5
Moreover, we see no inconsistency in defendants’ firing practices solely because there were other,
younger people who received Wojcik’s performance rating who were not fired given our analysis of his
individual qualifications. We conclude that Wojcik failed to meet his burden with respect to his claim of
disparate impact.
Affirmed.
/s/ David H. Sawyer
/s/ Harold Hood
/s/ William C. Whitbeck
1
We note that documentation provided to this Court indicates Wojcik may have actually been forty-six
in June 1993, not turning forty-seven until September.
2
The testimony indicated that Corey took over the position of another person, Terri McQueen, and
ultimately took on Wojcik’s responsibilities as well. Significantly, Wojcik did not dispute this testimony.
Further, the testimony consistently indicated that Terri McQueen had additional responsibilities above
and beyond the duties she shared with Wojcik. Corey, Cauchi, and MacDonald all testified that, in
addition to supporting various managers, McQueen also provided support to Chuck Mills, who was
responsible for overseeing all managers supported by Wojcik and McQueen. Cauchi testified that,
contrary to Wojcik’s claims, McQueen actually had a heavier work load than Wojcik and that she also
performed a consolidation function each month, in which she compiled her own work product with
Wojcik’s work product and presented it to her supervisors.
3
Wojcik’s statistical “evidence” would be of no help in these circumstances where his individual
performance was in question. Wojcik submitted an affidavit from Dennis Brady containing statistics.
The affidavit merely states that an unknown individual from West Virginia allegedly examined
unidentified termination documentation concerning an EDS financial organization and conducted a
statistical analysis of this information. There was no indication that the affiant would be qualified to
testify as an expert witness, that his methodology had been approved as scientific evidence in this state,
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where he obtained his data, or that the employees within the control group were similarly situated to
Wojcik.
4
Wojcik was hired in May 1985, and claims he was forty-seven years old at the time of his discharge in
June 1993. He was, therefore, approximately thirty-nine years old when he was actively recruited and
hired in 1985. This at least suggests that Wojcik’s age was not a factor with respect to his employment
status.
5
Dennis Brady’s affidavit stated that he performed a statistical analysis with respect to the terminations
within the department in which Wojcik worked. Brady compared the age of terminated employees with
the age of those retained, and concluded that “the average age of those laid-off is 37.77, and the
average of those retained is 33.31.” He concluded that, “based on this result, terminations of EDS
employees in 1993 adversely impacted older employees.” He also noted that this pattern of adverse
impact “is similar to statistical analyses I have performed of the 1993 Resource Alignment layoffs in at
least four other EDS areas.”
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