SANDRA SWARTZ V BERRIEN SPRINGS PUBLIC SCHL DIST
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STATE OF MICHIGAN
COURT OF APPEALS
SANDRA SWARTZ,
UNPUBLISHED
November 24, 2009
Plaintiff-Appellant,
v
No. 286285
Berrien Circuit Court
LC No. 2007-000011-CD
BERRIEN SPRINGS PUBLIC SCHOOL
DISTRICT, ROGER ELOWSKY, JAMES
BERMINGHAM, MARJORIE HALQUIST,
DAVID PAGEL, and ROBERT IRVIN,
Defendants-Appellees.
Before: Servitto, P.J., and Bandstra and Markey, JJ.
PER CURIAM.
Plaintiff appeals by right from the trial court’s May 7, 2008, order granting defendants
summary disposition on discrimination claims based on age, sex, and marital status. We affirm.
In this case, plaintiff, who was unmarried and without children to support, was the
director of transportation and Roger Elowsky was the building and grounds supervisor for the
Berrien Springs Public School District. To control the budget, district officials decided that
plaintiff’s and Elowsky’s positions would be combined into a new one entitled the director of
operations. Both plaintiff’s and Elowsky’s former positions were eliminated. Elowsky was then
chosen to become the new director of operations. Plaintiff retired and temporarily became his
assistant on an independent contractor basis through an outside company. The following year,
plaintiff’s contract was terminated, and this lawsuit subsequently ensued.
On appeal, plaintiff argues that the trial court misread Plieth v St Raymond Church, 210
Mich App 568; 534 NW2d 164 (1995), giving it an overbroad interpretation. In addition,
plaintiff argues that a reasonable jury might find that defendants’ statements and actions create a
strong inference that her age was a motivating factor in Elowsky’s being chosen for the director
of operations instead of plaintiff. Plaintiff also alleges on appeal that the trial court did not
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properly allocate the burden of proof on her age discrimination claim, and the trial court’s
analysis was at odds with Meacham v Knolls Atomic Power Laboratory, 554 US ___; 128 S Ct
2395; 171 L Ed 2d 283 (2008).1 Further, plaintiff argues that because statements were made
that, unlike Elowsky, plaintiff was not the head of household and did not have a family to
support, defendants discriminated against her based on marital status because “family” includes
one’s spouse and the phrase “head of household” connotes a partner in a marriage. Thus, the
trial court erred in failing to find a jury question on her marital status discrimination claim.
Moreover, plaintiff argues that because statements were made that plaintiff was not the “head of
household,” unlike Elowsky, and “head of household” again carries a connotation, i.e., that a
“head of household” is a man, the trial court erred in failing to find a jury question regarding sex
discrimination.
We review de novo a trial court’s decision to grant summary disposition. Coblentz v
Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). A motion under MCR 2.116(C)(10) tests the
factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817
(1999). In evaluating a motion for summary disposition brought under this subsection, we
consider affidavits, pleadings, depositions, admissions and other evidence submitted by the
parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion,
Coblentz, supra at 567-568. Where the proffered evidence fails to establish a genuine issue
regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR
2.116(C)(10) and (G)(4); Maiden, supra at 120.
Section 202(1)(a) of the Civil Rights Act, MCL 37.2101 et seq., directs that an employer
shall not “[f]ail 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).
“In some discrimination cases, the plaintiff is able to produce direct evidence” of
discrimination. Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). “Direct
evidence” has been defined as “‘evidence which, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer’s actions.’” Id., quoting
Jacklyn v Schering-Plough Healthcare Products Sales Corp, 176 F3d 921, 926 (CA 6, 1999). If
there is direct evidence of discrimination, “the plaintiff can go forward and prove unlawful
discrimination in the same manner as a plaintiff would prove any other civil case.” Hazle, supra.
But not all discrimination cases may be established by direct evidence. Accordingly,
[t]he McDonnell Douglas [Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d
668 (1973)] approach was adopted because many plaintiffs in employmentdiscrimination cases can cite no direct evidence of unlawful discrimination. The
1
Plaintiff withdrew this aspect of her claim during the November 4, 2009, oral argument.
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courts therefore allow a plaintiff to present a rebuttable prima facie case on the
basis of proofs from which a factfinder could infer that the plaintiff was the victim
of unlawful discrimination. [DeBrow v Century 21 Great Lakes, Inc (After
Remand), 463 Mich 534, 537-538; 620 NW2d 836 (2001).]
Under the McDonnell Douglas approach, the plaintiff must show the following to
establish a prima facie case of discrimination: (1) membership in a protected class, (2) an
adverse employment action, (3) that the plaintiff was qualified for the position, and (4) that the
job was given to another under circumstances that give rise to an inference of discrimination.
Hazle, supra at 467; Hall v McRea Corp, 238 Mich App 361, 370; 605 NW2d 354 (1999),
remanded 465 Mich 919 (2001). In Hall, supra at 370-371 (citations omitted), this Court stated:
The plaintiff must prove the elements by a preponderance of the evidence. The
burden then shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for the discharge. At this stage, defendant does not need to persuade the
court that it was actually motivated by the proferred [sic] reasons. It is sufficient
for defendant’s evidence to raise a genuine issue of fact with respect to whether it
discriminated against the plaintiff. The defendant must set forth, through
admissible evidence, the reasons for the adverse employment decision. The
explanation must be legally sufficient to justify judgment for the defendant. If the
defendant satisfies this burden of production, the presumption raised by the prima
facie case is rebutted. The burden of proof then shifts back to the plaintiff, who
must show “that there was a triable issue of fact that the employer’s proffered
reasons were not true reasons, but were a mere pretext for discrimination.” Our
Supreme Court [in Lytle v Malady (On Rehearing), 458 Mich 153; 579 NW2d
906 (1998)] . . . adopted the “intermediate position” for determining the proper
summary disposition standard for discrimination claims under the Civil Rights
Act:
Under this position, disproof of an employer’s articulated reason
for an adverse employment decision defeats summary disposition
only if such disproof also raises a triable issue that discriminatory
animus was a motivating factor underlying the employer’s adverse
action. In other words, plaintiff must not merely raise a triable
issue that the employer’s proffered reason was pretextual, but that
it was a pretext for age or sex discrimination. Therefore, we find
that, in the context of summary disposition, a plaintiff must prove
discrimination with admissible evidence, either direct or
circumstantial, sufficient to permit a reasonable trier of fact to
conclude that discrimination was a motivating factor for the
adverse action taken by the employer toward the plaintiff. [Id., at
175-176.]
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In this case, Marjorie Halquist, the supervisor of plaintiff and Elowsky, testified that she
was present during some of the meetings between plaintiff and Robert Irvin,2 who was the
superintendent for the school district when plaintiff’s eligibility for the new position was
discussed. Halquist indicated:
Q. Okay. And it was at those meetings that her eligibility for retirement was
discussed, correct?
A. Correct.
Q. And her eligibility for continued health insurance, correct?
A. Correct.
Q. And also at those meetings there was discussion of the fact that Mr. Elowsky
had a family to support, correct?
A. He was head of the household, yes.
Q. Okay. And that he was not eligible for retirement, correct?
A. Correct.
Q. And that he would not be eligible for health benefits, correct, if he didn’t have
a position with the board -- with the school district the following -A. Correct.
Plaintiff admitted, however, that she was never told that Elowsky was getting the position
because he was younger than she. Rather, it was because he was not yet old enough to get his
retirement. She further admitted that she was never told that Elowsky was selected for the
position because he had a family to support, and plaintiff, as a single person, did not. Rather,
plaintiff testified that she was told that Elowsky had a family to support. In addition, plaintiff
was never told that Elowsky was getting the position because he was a male. Rather, plaintiff
testified that she was simply told that Elowsky was the head of household, and she was not.
Further, David Pagel, the president of the board of education, indicated that the board did not
vote to put Elowsky in the position because he was younger than plaintiff, because he was a male
as opposed to a female, or because he had a family to support and plaintiff did not. Based on the
foregoing record, there is no direct evidence that the decision to give Elowsky the director of
operations position instead of plaintiff was based on age, sex, or marital status. Hazle, supra at
462. Therefore, because there is no direct evidence of discrimination, the McDonnell Douglas
factors must be considered. De Brow, supra at 537-538.
2
Robert Irvin died before this lawsuit commenced.
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In this case, plaintiff was in a protected class based on her age, sex and marital status.
MCL 37.2202(1)(a); Hall, supra at 370-371; see also Miller v C A Muer Corp, 420 Mich 355,
363; 362 NW2d 650 (1984).
Plaintiff also suffered an adverse employment action because Elowsky was selected
director of operations instead of plaintiff. “[I]n order for an employment action to be adverse for
purposes of a discrimination action, (1) the action must be materially adverse in that it is more
than ‘mere inconvenience or an alteration of job responsibilities,’ and (2) there must be some
objective basis for demonstrating that the change is adverse . . . .” Wilcoxon v Minnesota Mining
& Mfg Co, 235 Mich App 347, 364; 597 NW2d 250 (1999) (citations omitted). There is no
comprehensive list of adverse employment actions, but “typically it takes the form of an ultimate
employment decision, such as ‘a termination in employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a particular
situation.’” Peña v Ingham Co Rd Comm, 255 Mich App 299, 312; 660 NW2d 351 (2003)
(citation omitted). In this case, plaintiff clearly suffered an adverse employment action when she
was not selected to be the director of operations. A result of her not being selected, she became
an assistant to rather than becoming the director of transportation. Thus, she subsequently held a
less distinguished title. Id. Further, plaintiff’s employment with the school district was
terminated, and she became an independent contractor without any healthcare or other benefits
through the school district. So, she also suffered a termination in employment and a material
loss of benefits. Id. Consequently, based on the foregoing, plaintiff suffered an adverse
employment action when Elowsky, and not she, was selected to be the director of operations.
Plaintiff also appears to have been qualified for the position. Pagel’s comments indicate
that Elowsky “was more qualified” and that Elowsky was “the most qualified candidate.” Thus,
Pagel does not indicate that plaintiff was not qualified for the position. “[A] plaintiff cannot be
required to offer evidence that he is at least as qualified as the successful candidate in order to
establish a prima facie case under McDonnell Douglas.” Hazel, supra at 469.
Still, plaintiff has not proven by a preponderance of the evidence that she was not chosen
for the position of director of operations under circumstances that give rise to an inference of
discrimination based on her age and sex. Hall, supra. As the Court in Plieth, supra at 573
noted, consideration of an employee’s seniority or pension status, although empirically
correlated with age, does not result in an inference of age discrimination. Consequently,
although comments were made regarding plaintiff’s eligibility for retirement, we see no
inference of age discrimination rising from those comments. Id. In addition, although comments
were made regarding plaintiff’s not being a head of household and that Elowsky was, the term
“head of household” does not create an inference of sex discrimination because a woman could
be the head of the household as well as a man. See Hartle v Keefer’s Estate, 260 Mich 188, 191;
244 NW 443 (1932), and Ridky v Ridky, 226 Mich 459, 465; 198 NW 229 (1924). And
considering the fact that many heads of household are not married, a rational fact-finder could
not conclude that the head of household comment had any negative connotation as to plaintiff’s
unmarried status. Based on the foregoing, plaintiff has not established a prima facie case of age
and sex discrimination because she has failed to prove by a preponderance of the evidence
element four of the McDonnell Douglas test.
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But regardless of whether plaintiff established a prima facie case of discrimination,
defendants set forth legitimate reasons for the adverse employment decision: they indicated that
Elowsky was more or the most qualified and that the skills that Elowsky would need to acquire
to effectively perform the transportation aspects of the position would be much easier to acquire
than the skills that plaintiff would need to acquire to effectively perform the building and
grounds aspects of the position. Hall, supra at 371. In fact, although plaintiff obviously was
more than capable of handling the transportation aspects of the position, she appears to have not
been nearly as qualified to handle the building and grounds aspects of the position. Plaintiff
possessed no specialized training or education regarding electricity, mechanics, heating and
cooling, plumbing, and construction. Based on the record, it is very clear that there was a great
deal of specialized knowledge and training involved with the building and grounds aspects of the
position. In addition, Elowsky testified that he was able to assume all of plaintiff’s duties
supervising the transportation area without significant difficulty because the duties required no
specialized knowledge beyond organizational skills and common sense.
Furthermore, in Town v Mich Bell Tel Co, 455 Mich 688, 702-704; 568 NW2d 64 (1997),
the Court indicated that overall reduction in workforce, an employer’s belief that a coemployee’s
marketing skills were superior to those of the plaintiff, and the employer’s belief that the
employee took too long developing her staff and not enough time visiting customers, were
legitimate nondiscriminatory reasons for transferring the plaintiff. Similarly, in this case, the
reason why the two positions were consolidated was because of budget and financial concerns.
School officials also believed that Elowsky was more qualified for the position. Consequently,
we find, similar to the Court’s finding in Town, that the budget and financial concerns that were
the impetus for consolidating the positions and the belief that Elowsky was more qualified for
the position than plaintiff, were legitimate, nondiscriminatory reasons for giving Elowsky the
position of director of operations and transforming plaintiff’s position to one of independent
contractor.
Thus, because there were legitimate reasons for the adverse employment decision,
plaintiff had the burden of showing that there was a triable issue of fact that defendants proffered
reasons were not true reasons, but were instead a mere pretext for discrimination. Hall, supra at
370-371. Because the overwhelming evidence indicates that Elowsky was more qualified for the
job, that Elowsky was able to easily acquire the skills to perform the transportation aspects of the
job and that plaintiff would have more difficulty acquiring the skills needed to perform the
building and grounds aspects of the job, defendants reasons for the adverse employment decision
do not appear to be reasons that were not true. Moreover, plaintiff has not presented any
evidence to indicate that the adverse employment decision was, in fact, a pretext for
discrimination. An employer’s honest belief in a proffered reason for a challenged employment
decision will be upheld against a charge of pretext as long as the employer can identify
particularized facts for its honest belief. Nizami v Pfizer, Inc, 107 F Supp 2d 791, 803-804 (ED
Mich, 2000). Pagel provided particularized facts regarding Elowsky being the most qualified for
the job based on the fact that Pagel indicated that Elowsky possessed specific skills relating to
maintenance and operations. Pagel also indicated that Elowsky possessed some experience in
transportation. Pagel testified that he thought that Elowsky would have an easier time acquiring
the skills needed for the transportation aspects of the job than plaintiff would have acquiring the
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skills for the building and grounds aspects of the job. So again, there was evidence that school
officials held an honest belief that Elowsky was clearly the most qualified person for the
position. Id. Based on the foregoing, the trial court did not err in finding insufficient evidence
of age, sex or marital status discrimination.
Finally, because plaintiff has withdrawn his argument that the trial court improperly
shifted the burden of persuasion, under Meacham, supra at 2406, we need not address it.
Moreover, the issue in Meacham was one alleging disparate impact discrimination, rather than
disparate treatment discrimination, which is the case here. Here, the trial court properly
allocated the parties’ burdens.
We affirm. As the prevailing party, defendants may tax costs. MCR 7.219.
/s/ Deborah A. Servitto
/s/ Richard A. Bandstra
/s/ Jane E. Markey
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