TYRONE STOKES V GREEKTOWN CASINO LLC
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STATE OF MICHIGAN
COURT OF APPEALS
TYRONE STOKES,
UNPUBLISHED
June 22, 2004
Plaintiff-Appellant,
No. 246524
Wayne Circuit Court
LC No. 01-141684-CL
v
GREEKTOWN CASINO, L.L.C., and JOHN
HAWKINS,
Defendants-Appellees.
Before: Murphy, P.J., and Jansen and Cooper, JJ.
PER CURIAM.
Plaintiff Tyrone Stokes appeals as of right the trial court’s order granting summary
disposition in favor of defendants Greektown Casino, L.L.C., (“Greektown”) and John Hawkins
on plaintiff’s claims of racial and reverse gender employment discrimination pursuant to MCR
2.116(C)(10).1 We affirm.
I. Facts and Procedural History
Greektown hired plaintiff, an African-American male, as an assistant slot shift manager
in September of 2000, as an at-will employee.2 On November 11, 2000, plaintiff was
reprimanded by written warning for handling two customer machine disputes in a manner that
violated Greektown’s Code of Conduct. The warning, as well as the Code of Conduct, indicated
that plaintiff could be terminated for further infractions.
On October 30, 2000, Greektown issued a written bulletin reminding employees that it
was the policy of the casino that employees only be dropped off and picked up at the Greektown
Casino Parking Facility. Plaintiff received a ticket on February 6, 2001, for blocking traffic
while dropping off his immediate supervisor, Clivalee Mundle, at the Beaubien Street entrance,
as opposed to the parking facility, per casino policy. Plaintiff demanded to speak to the issuing
1
The trial court also dismissed plaintiff’s claim of retaliatory discharge, but plaintiff does not
contest that ruling on appeal.
2
Mr. Hawkins, as Vice President of Slot Operations, participated in the hiring decision.
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officer’s supervisor regarding the officer’s conduct. Sergeant Joseph Solomon arrived to handle
the complaint. Sergeant Solomon reported the incident to the Michigan Gaming Control Board
(MGCB),3 describing plaintiff as “something of a hot head.”4 The MGCB in turn contacted Mr.
Hawkins regarding the incident.
As a result of the February incident, plaintiff was placed on an immediate investigative
suspension. Greektown terminated plaintiff’s employment a week later, citing the November
reprimand, the current infraction, and concern over the negative attention from the MGCB
pertaining to the incident. Plaintiff filed the current lawsuit alleging discrimination and
defendants brought a motion for summary disposition. In granting defendants’ motion, the trial
court noted the lack of evidence of discrimination and the fact that plaintiff clearly violated
Greektown policy in dropping off Mr. Mundle at the casino entrance.
II. Legal Analysis
This Court reviews a trial court’s determination regarding a motion for summary
disposition de novo.5 A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s
claim.6 “In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we
consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence
submitted in the light most favorable to the nonmoving party to decide whether a genuine issue
of material fact exists.”7 Summary disposition is appropriate only if there are no genuine issues
of material fact, and the moving party is entitled to judgment as a matter of law.”8
A. Racial Discrimination
Plaintiff asserts that the trial court erred in granting defendants’ motion for summary
disposition on his claim of racial discrimination. We disagree. Michigan’s Civil Rights Act
prohibits an employer from discriminating against an individual with respect to employment
based on race.9 Absent direct evidence of discrimination, a plaintiff must proceed under the
shifting burdens of proof articulated in McDonnell Douglas Corp v Green.10 To establish a
3
The MGCB is the state agency that regulates casinos and administers occupational licenses to
casino employees.
4
[Affidavit of Sergeant Joseph Solomon.]
5
Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
6
Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d
685 (1999).
7
Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001).
8
MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001).
9
MCL 37.2202(1)(a); Wilcoxon v 3M, 235 Mich App 347, 358; 597 NW2d 250 (1999).
10
Hazle v Ford Motor Co, 464 Mich 456, 463-464; 628 NW2d 515 (2001), citing McDonnell
Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
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prima facie case under McDonnell Douglas, a plaintiff must prove that: (1) he was a member of a
protected class; (2) he suffered an adverse employment action; (3) he was qualified for the
position; and (4) the adverse employment action occurred under circumstances giving rise to an
inference of discrimination.11 If a plaintiff establishes a prima facie case, “a presumption of
discrimination arises.”12 Thereafter, the defendant bears the burden of articulating a legitimate,
nondiscriminatory reason for its employment decision.13 “If the employer makes such an
articulation, the presumption created by the McDonnell Douglas prima facie case drops away.”14
Plaintiff failed to establish a prima facie claim of disparate treatment based on race.
Plaintiff alleged that he was treated differently than members of another race for the same
conduct without presenting any evidence to that effect. Contrary to his assertion that nonAfrican-American employees were not disciplined for violating the drop-off policy, an AfricanAmerican female was subject to verbal reprimand for such a violation. Plaintiff also
acknowledges that Mr. Mundle, another African-American male, was not reprimanded or
disciplined for his participation or involvement in the incident. In contradiction to his claim of
racial discrimination, plaintiff actually asserts that defendants give African-American females
preferential treatment. As such, plaintiff has failed to establish a prima facie claim of disparate
treatment based upon race.
Furthermore, defendants have provided a legitimate nondiscriminatory reason for
plaintiff’s discharge. Plaintiff was an at-will employee and, as such, could be discharged at any
time and for any reason by defendants. Defendants have asserted various legitimate reasons for
plaintiff’s discharge, not limited to plaintiff’s violation of the drop-off policy. Plaintiff received
a prior written warning that any further infractions could result in the termination of his
employment. As plaintiff has failed to establish a prima facie case, and has failed to present any
evidence that defendants’ proffered reasons for his discharge were a mere pretext for racial
discrimination, the trial court properly granted defendants’ motion for summary disposition.15
B. Reverse Gender Discrimination
Plaintiff also contends that the trial court erred in granting defendants’ motion for
summary disposition and inappropriately applied a heightened standard of proof on plaintiff’s
claim of reverse gender discrimination. This Court has utilized a version of the McDonnell
11
Id. at 463.
12
Lytle v Malady (On Rehearing), 458 Mich 153, 173; 579 NW2d 906 (1998).
13
Hazle, supra at 464.
14
Id. at 465.
15
We decline to review plaintiff’s contention that the findings of fact by an administrative law
judge in a hearing pertaining to the availability of unemployment benefits establish a prima facie
claim of disparate treatment. Plaintiff fails to provide any law in support of his contention and
we are not required to make a party’s argument for him. Wilson v Taylor, 457 Mich 232, 243;
577 NW2d 100 (1998), citing Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
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Douglas test in gender-based reverse discrimination claims.16 Pursuant to the “background
circumstances” test in Allen v Comprehensive Health Services, a plaintiff may establish a prima
facie claim of reverse gender discrimination by proving: (1) the background circumstances
supporting the suspicion that the defendant is the unusual employer that discriminates against
men; (2) the plaintiff was qualified for the position; (3) the plaintiff was discharged despite his
qualification; and (4) a female employee of similar qualifications was treated differently.17 This
Court recently held that Allen was wrongly decided as it improperly modifies McDonnell
Douglas by requiring a plaintiff to establish the background circumstances for his suspicion.18
The Supreme Court recently granted leave in Lind v Battle Creek,19 to determine whether Allen’s
background circumstances test violates the Civil Rights Act.20 However, the issue is not
outcome determinative in the present case as the trial court properly granted defendants’ motion
for summary disposition under either analysis.
Plaintiff suggests that defendants give preferential treatment to African-American female
employees, but has failed to come forward with any evidence to support his claim. Assuming,
for purposes of a straight McDonnell Douglas analysis, that plaintiff is a member of a protected
class who suffered an adverse employment action and was qualified for his position, plaintiff has
not demonstrated that “others, similarly situated and outside the protected class, were unaffected
by the employer’s adverse conduct.”21 Contrary to plaintiff’s position, a female employee was
verbally reprimanded for violation of the drop-off policy. Although the female employee was
not discharged, the factual circumstances surrounding plaintiff’s incident are distinguishable. As
the only relevant evidence plaintiff has presented fails to establish a factual basis for plaintiff’s
claim, the trial court properly granted defendants’ motion for summary disposition.
Even resorting to the Allen background circumstances test, plaintiff has failed to establish
his claim of reverse gender discrimination. Plaintiff has not surmounted defendants’ legitimate,
nondiscriminatory reasons for his discharge by establishing that the evidence, construed in his
16
Allen v Comprehensive Health Services, 222 Mich App 426; 564 NW2d 914 (1997).
17
Id. at 433.
18
Venable v General Motors Corp (On Remand), 253 Mich App 473; 656 NW2d 188 (2002), lv
den 468 Mich 870 (2003).
19
Lind v Battle Creek, 468 Mich 869; 661 NW2d 230 (2003).
20
MCL 37.2101 et seq.
21
Smith v Goodwill Indus of W Michigan, Inc, 243 Mich App 438, 447-448; 622 NW2d 337
(2000).
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favor, would be sufficient for a reasonable trier of fact to conclude that discrimination was a
motivating factor in his discharge.22 Therefore, summary disposition was proper under either
analysis.
Affirmed.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Jessica R. Cooper
22
Hazle, supra at 465.
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