ROBERT LEAN V UPPER PENINSULA POWER CO
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT LEAN,
UNPUBLISHED
October 28, 1997
Plaintiff-Appellant,
v
No. 201594
Houghton Circuit Court
LC No. 96-009708-CZ
UPPER PENINSULA POWER COMPANY,
Defendant-Appellee.
Before: Murphy, P.J., and Hood and Bandstra, JJ.
PER CURIAM.
Defendant was granted summary disposition pursuant to MCR 2.116(C)(10) on plaintiff's age
and handicap discrimination claims. Plaintiff appeals as of right. We affirm.
Plaintiff was fifty-nine years of age and had a heart condition at the time he was forced to accept
the terms of defendant's voluntary early retirement program (VERP). If he had not accepted the terms,
he would have been involuntarily terminated because his position was eliminated. Plaintiff filed suit for
age discrimination pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.,
and for handicap discrimination pursuant to the Michigan Handicappers Civil Rights Act, MCL 37.1101
et seq.; MSA 3.550(101) et seq. The trial court held that plaintiff failed to submit sufficient evidence to
create an issue of material fact to survive summary disposition. We review the grant of summary
disposition de novo. Plieth v St Raymond Church, 210 Mich App 568, 571; 534 NW2d 164
(1995).
Plaintiff first argues that the trial court erred in determining that there was no genuine issue of
material fact regarding pretext. Defendant offered that in order to meet corporate, strategic and
competitive goals to reduce costs, it took steps to reduce its workforce. It identified and eliminated
certain positions, which it deemed under-utilized or unnecessary. During implementation of this plan in
1994, eight employees over the age of fifty-five elected to accept the VERP, including plaintiff.
Seventeen employees, ranging in age from twenty-four to fifty-four, were involuntarily terminated. None
of the employees were replaced. Because the employer articulated a legitimate, non-discriminatory
reason for its actions in eliminating plaintiff's position, plaintiff was required to submit evidence sufficient
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to support a finding that the employer's reason was a pretext and that the true reason was
discriminatory. Lytle v Malady, 456 Mich 1, 36; 566 NW2d 582 (1997) (emphasis added). Plaintiff
did not do so.
Plaintiff presented evidence that one of defendant's vice presidents had made a statement to the
effect that individuals, as opposed to positions, were targeted when the adverse employment decisions
were made. Plaintiff argues that this statement indicates a discriminatory policy. We disagree. The
statement was not age related nor did it refer directly to plaintiff. "[I]solated and ambiguous comments
'are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age
discrimination'." Phelps v Yale Security, 986 F2d 1020, 1025 (CA 6, 1993). See also Leichihman v
Pickwick International, 814 F2d 1263 (CA 8, 1987) and Morales v Dain, Kalman & Quail, Inc,
467 F Supp 1031 (Minn, 1979).
Plaintiff also claimed that pretext should be inferred because other, available cost-saving
options, such as decreasing officer salaries and reducing the dividends paid to shareholders, were not
utilized. Plaintiff offered evidence that some of defendant's officers received increases in compensation
and that dividends rose while defendant claimed cost cutting was necessary. The officer compensation
statistics that plaintiff submitted, however, took into account only defendant’s top three officers.
Defendant provided uncontradicted testimony that total officer compensation decreased from $951,276
in 1992 to $574,396 in 1995. The soundness of defendant's business judgment may not be questioned
as a means of showing pretext. Meagher v Wayne State University, 222 Mich App 700, 712; 565
NW2d 401 (1997), lv pending. Officer compensation and dividend policy are within the purview of
management’s business judgment. Thus, whether the RIF could have been avoided in this case by
reducing expenses elsewhere is irrelevant.
Plaintiff also failed to produce any evidence to support his contention that age discrimination
was the true reason for the adverse employment decision. Therefore, it was not error for the trial court
to grant summary disposition. Lytle, supra at 36. Plaintiff argues that defendant's failure to offer him
the position from which his supervisor retired in 1992 was evidence of age discrimination. We disagree.
There was no evidence that plaintiff was qualified for the supervisor's position or that he even sought the
position. It is disingenuous for plaintiff to argue that age discrimination had to be a motivating factor in
the elimination of his position because he was not gratuitously offered a promotion two years prior to
that time.
Plaintiff also argues that the trial court improperly drew inferences in favor of defendant.
Defendant presented evidence that the average age of its workforce increased from 1992 to 1997. The
trial court noted that this evidence suggested there was no conspiracy to eliminate older workers.
Plaintiff argues that the trial court should have made an inference in favor of him, the nonmoving party,
that a hiring freeze and seniority-related union layoffs should have resulted in an even higher average
age. This argument is without merit. Plaintiff did not suggest or argue to the trial court that such an
inference should be made. Moreover, the information presented below does not support an inference
that the average age of the workforce should have been even higher.
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Summary disposition was also proper on the handicap discrimination claim because plaintiff
offered insufficient evidence. He presented evidence that he was aware of three other employees who
alleged that they had been discriminated against on the basis of “health problems”. Two of three filed
civil rights claims. There was no evidence that defendant had discriminated against these other
individuals. In fact, neither of the two who filed claims were terminated or forced to retire. Rather they
were placed on sick leave or worker's compensation. The mere allegations of these other workers
regarding their own employment are not sufficient to satisfy plaintiff’s burden. Plaintiff needed to offer
evidence that he was discharged because of his handicap. Hall v Hackley Hospital, 210 Mich App
48, 53-54; 532 NW2d 893 (1995); MCL 37.1202; MSA 3.550(202). The evidence that two other
employees complained is also not evidence of a pattern of discrimination where twenty-four other
positions were eliminated at the same time plaintiff's was. The only other evidence offered was that
defendant was concerned with cutting insurance premiums and issued a vision statement in 1994 that
indicated the company had controlled the "rising cost of employee benefits" and in "many areas
significantly reduced these benefit costs". The evidence that defendant was concerned about cost
cutting does not support that plaintiff was discharged because of his heart condition. There was no
evidence that handicapped persons were impacted or singled out in order to cut costs.
Affirmed. Defendant being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ William B. Murphy
/s/ Harold Hood
/s/ Richard A. Bandstra
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