MICHELLE A KONIECZNY V MERCY MOUNT CLEMENS CORP
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STATE OF MICHIGAN
COURT OF APPEALS
MICHELLE A. KONIECZNY,
UNPUBLISHED
July 14, 2005
Plaintiff-Appellee,
v
MERCY MOUNT CLEMENS CORPORATION,
d/b/a ST. JOSEPH'S MERCY OF MACOMB,
No. 260045
Macomb Circuit Court
LC No. 2003-005741-NZ
Defendant-Appellant.
Before: Murphy, P.J., and Sawyer and Donofrio, JJ.
PER CURIAM.
Plaintiff, an obstetrician and gynecologist, worked for defendant from 1999 to 2002 and
was subject to a non-compete clause as a condition of her employment. The clause prohibited
plaintiff from engaging in her specialty within a ten-mile radius of defendant’s location for a
period of two years after her employment with defendant ended. Plaintiff alleges that after she
left her employment with defendant, she was offered a position at a nearby location, but was
unable to accept the position because of the non-compete clause. She subsequently commenced
this action against defendant for gender discrimination under the Michigan Civil Rights Act,
MCL 37.2101 et seq., alleging that only female physicians in her department were required to
agree to a non-compete clause with a ten-mile work restriction, whereas male doctors were
offered non-compete clauses with a five-mile work restriction. The parties filed cross-motions
for summary disposition. The trial court denied the motions. This Court granted defendant’s
application for leave to appeal. We reverse and remand.
In its motion for summary disposition, defendant argued that plaintiff failed to prove a
prima facie case of discrimination. This Court reviews a trial court’s decision on summary
disposition de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998). Defendant moved for summary disposition under MCR 2.116(C)(10). A motion under
MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings,
affidavits, depositions, admissions, and other documentary evidence. MCR 2.116(G)(5).
Summary disposition should be granted if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Babula v Robertson, 212 Mich App 45,
48; 536 NW2d 834 (1995).
A prima facie case of discrimination under the Civil Rights Act can be proven under
either a disparate impact or disparate treatment theory.
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Disparate treatment requires a showing of either intentional discrimination
against protected employees or against an individual plaintiff. Disparate impact
requires a showing that an otherwise facially neutral employment policy has a
discriminatory effect on members of a protected class. [Duranceau v Alpena
Power Co, 250 Mich App 179, 182; 646 NW2d 872 (2002).]
To prove gender discrimination, plaintiff must show that she was "(1) a member of a 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." Town v Michigan Bell Telephone Co, 455 Mich 688, 695; 568 NW2d 64
(1997).
Plaintiff relies on the test from McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct
1817; 36 L Ed 2d 668 (1973). Under that test, a plaintiff may establish a prima facie case of
discrimination by showing that she suffered an adverse employment action under circumstances
that give rise to an inference of unlawful discrimination. Wilcoxon v Minnesota Mining & Mfg
Co, 235 Mich App 347, 361; 597 NW2d 250 (1999). Once a prima facie case is established, the
employer has the burden of coming forward with a legitimate nondiscriminatory reason for the
adverse employment action. Id. If the employer meets that burden, the plaintiff then must prove
that the stated reason is a mere pretext for discrimination. Id.
We agree with defendant that plaintiff failed to establish a prima facie case of
discrimination under a disparate treatment theory. In particular, plaintiff failed to show that
similarly situated male employees were treated more favorably. Town, supra at 695. To create
an inference of disparate treatment and show that male employees were similarly situated, the
plaintiff must show that all relevant aspects of her employment situation were nearly identical to
those of her male co-workers. Id. at 699-700. The burden is on the plaintiff to show that other
employees were similarly situated. The defendant is not required to offer proof of dissimilarity.
Lytle v Malady (On Rehearing), 458 Mich 153, 178 n 28; 579 NW2d 906 (1998).
We agree with defendant that plaintiff failed to show that her five male co-workers, also
ob/gyns, were similarly situated. Although the male ob/gyns had more favorable non-compete
clauses in their employment agreements with defendant, the evidence establishes that their
experience and work histories, and the length of their contracts, were not nearly identical to
plaintiff ’s work history or length of contract. In contrast to plaintiff, the male ob/gyns all had
more experience than plaintiff. Some also agreed to longer terms of employment with defendant.
Given the dissimilar circumstances of these individuals, they cannot be compared to plaintiff to
allow a factfinder to infer a discriminatory intent. Town, supra at 699-700. Because plaintiff
could not prove this element of her prima facie case, the trial court erred in not granting
defendant’s motion for summary disposition on plaintiff’s disparate treatment theory.
We also agree with defendant that the trial court erred in not granting summary
disposition of plaintiff’s claim under a disparate impact theory. To prove disparate impact, a
plaintiff must show that an otherwise facially neutral employment policy has a discriminatory
effect on members of a protected class. Lytle, supra at 177 n 26. However, the plaintiff need not
prove that the defendant intended to discriminate in order to prevail under this theory.
Donajkowski v Alpena Power Co, 219 Mich App 441, 450-451; 556 NW2d 876 (1996), aff'd 460
Mich 243; 596 NW2d 574 (1999).
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For her disparate impact claim, plaintiff again compares herself to her male co-workers,
who received more favorable non-compete agreements. To support her disparate impact claim,
plaintiff relied on statistical differences between male and female ob/gyns.
We conclude that plaintiff cannot prove a disparate impact claim based upon her
statistical evidence because she has not shown that the disparity between the treatment of male
and female ob/gyns is not due to nondiscriminatory reasons. As previously indicated, plaintiff’s
male co-workers had more experience and were willing to work for longer terms than plaintiff.
The disparity between these two groups makes a statistical comparison between them insufficient
to prove discrimination. Similarly, the size of the sample is too small to infer discrimination.
See Pollis v The New School for Social Research, 132 F3d 115, 121 (CA 2, 1997); Tinker v
Sears, Roebuck & Co, 127 F3d 519, 524 (CA 6, 1997).
Because plaintiff failed to prove a prima facie case of discrimination under either a
disparate treatment or disparate impact theory, the trial court erred in denying defendant’s
motion for summary disposition. We reverse and remand for entry of judgment in favor of
defendant. In light of our decision, we need not address defendant’s remaining arguments.
Reversed and remanded. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Pat M. Donofrio
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