BRENT VEENSTRA V WASHTENAW COUNTRY CLUB
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STATE OF MICHIGAN
COURT OF APPEALS
BRENT VEENSTRA,
UNPUBLISHED
April 27, 2004
Plaintiff-Appellant,
v
No. 244930
Washtenaw Circuit Court
LC No. 97-004385-NO
WASHTENAW COUNTRY CLUB,
Defendant-Appellant.
Before: Jansen, P.J., and Markey and Gage, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order granting defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(10) on plaintiff’s claim that his employment contract was
not renewed because of his impending divorce and that he was thereby discriminated against
because of his marital status, in violation of the Elliott-Larsen Civil Rights Act, MCL
37.2202(1)(a). We reverse and remand for trial.
This is plaintiff’s second appeal from an order granting summary disposition to
defendant. After summary disposition was entered the first time, a different panel of this Court
reversed in part, leaving undisturbed the trial court’s grant of summary disposition on the breach
of contract count, but reversing on the discrimination count. The Supreme Court granted leave,
reversed our decision, and remanded the case for further proceedings. Veenstra v Washtenaw
Country Club, 466 Mich 155; 645 NW2d 643 (2002). In its opinion, the Supreme Court clarified
the standard for analyzing a claim of discrimination based on marital status. The Supreme Court
ruled that if there was evidence of discrimination based on plaintiff’s actual marital status, that
is, his impending divorce, summary disposition was inappropriate, even if such discrimination
was only one of the factors leading to the non-renewal of plaintiff’s employment contract.
Veenstra, supra at 164. If on the other hand the contract was not renewed because the employer
disapproved of plaintiff’s romantic attachment before the divorce to a woman who was not his
wife, this was not marital status discrimination, and if the only evidence of supposed marital
status discrimination rested on this ground, summary disposition would be appropriate. Id. at
167-168. The Supreme Court noted that the trial court had not focused sufficiently on an
affidavit presenting evidence that the divorce, as opposed to the relationship, was a factor in the
non-renewal, and directed the trial court to do so on remand. On remand, the trial court again
granted defendant summary disposition.
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Summary disposition is appropriate under MCR 2.116(C)(10) only if there is no genuine
issue of material fact as to the dispositive issues in the case. Ritchie-Gamester v City of Berkley,
461 Mich 73, 76; 597 NW2d 517 (1999). The evidence is viewed in the light most favorable to
the nonmoving party, and it is given the benefit of all reasonable inferences. Hall v McRea
Corp, 238 Mich App 361, 369-370; 605 NW2d 354 (1999). If reasonable minds could, when the
evidence is viewed in this light, view the issue differently, summary disposition is not
appropriate. Allstate Ins Co v State, ___ Mich App ___; ___ NW2d ___ (#243201, rel’d
12/9/03), slip op p 3. Summary disposition is rarely appropriate in cases that hinge on
determinations of credibility, intent or state of mind. Michigan National Bank-Oakland v
Wheeling, 165 Mich App 738, 744-745; 419 NW2d 746 (1988). A court may not make findings
of fact or weigh credibility in deciding a summary disposition motion. Skinner v Square D Co,
445 Mich 153, 161; 516 NW2d 475 (1994).
Plaintiff asserts that there was evidence that defendant chose not to renew plaintiff’s
contract because plaintiff was getting a divorce. We agree. In reaching the contrary conclusion,
the trial court ignored the appropriate standard for deciding a motion for summary disposition.
Rather, it weighed the evidence, consisting of depositions and affidavits, and credited that
evidence favoring defendant while discounting that favoring plaintiff. The trial court apparently
gave dispositive weight to affidavits from several of defendant’s board members in which the
members asserted that they did not discriminate against plaintiff based on his upcoming divorce,
instead their reasons for not renewing plaintiff’s contract had nothing to do with the divorce and
were reasons that were determined before the members were aware of the breakup of plaintiff’s
marriage. This is certainly evidence the finder of fact could consider at trial, and it might lead to
a verdict in defendant’s favor. But there was contrary evidence as well. In particular, the
affidavit of defendant’s outside operations manager Patrick Godfrey, which the Supreme Court
specifically directed the trial court to consider on remand, Veenstra, supra at 165, states that “on
several occasions” he heard three board members “express their disapproval about [plaintiff’s]
divorce from his wife,” and “that they ‘had to get rid of him.’” The affidavit also references the
board members’ statement that “the situation was ‘disgusting.’” While this statement could be a
reference to the alleged extramarital affair, the remark was coupled with the expressions of
disapproval about the divorce. Even though an employment decision based on the affair would
not be actionable, one based on the divorce is, and where there is evidence of “mixed motives,”
summary disposition is precluded. Veenstra, supra at 164. Moreover, to the extent Godfrey’s
affidavit was ambivalent as to the relation between the board members’ attitudes and plaintiff’s
upcoming divorce, Godfrey clarified in his deposition that the board members disapproved of the
divorce and were negative toward plaintiff because of it. This evidence permits an inference that
the adverse employment decision was based on plaintiff’s marital status, and thus, was sufficient
to avoid summary disposition.
The trial court placed a great deal of reliance on the fact that the decision not to extend
plaintiff’s contract was made before his wife filed divorce papers. However, this reasoning
places too mechanical a reliance on chronology. There clearly is evidence in the record that
plaintiff and his wife separated in contemplation of a divorce in April 1996, well before the
employment decision was made. The trial court ignored the realities of the situation.
Discrimination based on marital status is just as real when it is committed against a person about
to be married or divorced as when committed against someone who has completed the process or
begun the paperwork by filing a complaint for divorce or obtaining a license to be married. If
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this reality were ignored, there would be nothing to stop an unscrupulous employer who wanted
to have only single persons on staff from discharging them as soon as they began to make plans
for a wedding, and then asserting that, because the marriage had not been effectuated, there was
no discrimination.1
There was also evidence that, at a club tournament shortly after the separation, a member
stood up on a bench in the locker room and made a speech to about forty people present that their
“favorite pro” and his wife were separating. Almost immediately after this, a survey was sent to
club members, asking them to evaluate certain employees. There is no evidence that the
positions of the other employees evaluated were in jeopardy; thus, the survey could also be
evidence, along with the locker room speech, that a campaign to terminate plaintiff because he
was getting a divorce began as soon as the divorce plans were known.
In sum, there was evidence both to support the position that plaintiff was not rehired
because he was getting divorced, and that he was not rehired for legitimate reasons. The
outcome depends on whose evidence is believed. The trial court, contrary to the clear instruction
of MCR 2.116(C)(10) and case law interpreting it, chose to credit the evidence of defendant’s
witnesses and discredit that of plaintiff’s, and to give the moving party (defendant) the benefit of
favorable inferences from the evidence (such as chronology) rather than giving the benefit of
such inferences to plaintiff, as the law directs. Summary disposition was, therefore,
inappropriate. On remand, the case should be tried on its merits, and decided by the trier of fact.
Reversed and remanded for trial on plaintiff’s claim for employment discrimination. We
do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Jane E. Markey
/s/ Hilda R. Gage
1
The Supreme Court does not discuss whether “separated” as well as “divorced” constitutes a
marital status category on the basis of which discrimination is prohibited, and so we do not base
this ruling on evidence of discrimination based on separation. Rather, because separation is both
the normal legal prerequisite to a divorce, and the first practical step divorcing couples usually
take in the divorce process, it is evidence that the divorce was underway and that defendant knew
about it.
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