TROY LEWIS V BRAUN-BRUMFIELD INCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
TROY LEWIS and LOLA LEWIS,
Washtenaw Circuit Court
LC No. 94-003333 CZ
BRAUN-BRUMFIELD, INC., and DAVID P.
Before: Young, Jr., P.J., and Wahls and White, JJ.
WHITE, J. (concurring in part, dissenting in part).
I agree that the trial court’s determination that Mrs. Lewis suffered no loss of consortium
damages is not clearly erroneous.
I also agree that the trial court did not err in finding that age discrimination was a motivating
factor in defendant’s decision to demote plaintiff for the second time, from his position of supervisor of
However, I do not agree that plaintiff failed to prove age discrimination in his initial demotion
from the Plant Manager position, and thus dissent from sections I(A) and IV of the majority opinion.
Regarding plaintiff’s discrimination claim, the trial court found:
ELCRA prohibits employment discrimination based on age. MCL 37.2202. Plaintiff
need not prove that age was the only factor in an adverse decision, but that age was a
factor that made a difference. Matras v Amoco Oil Co., 424 Mich 675 (1986).
Regarding Plaintiff’s claim of age discrimination due to the elimination of his Plant
Manager position, Plaintiff has shown that more likely than not, the new position of
Operations Manager was, in fact, just a new title for his old position, and he has proven
that he was qualified to assume the duties of Operations Manager. Even though
Groeber, the person appointed as Operations Manager, was older than Lewis, this fact
alone, though mitigating against age discrimination, does not defeat a claim of age
Groeber was hired to implement the Theory of Constraints, streamline production and
weed out those persons unable to face and implement high velocity cultural change.
Though these goals are legitimate, a predisposition existed at BBI that older, senior
supervisors would be resistant to change.
There was insufficient evidence presented to establish a factual basis for that
In particular, Lewis had performed competently as Plant Manager for a number of
years. Even when he reported to Ziroli, he was never given a poor evaluation or
warned about deficient performance. Rather, Ziroli reached a broad conclusion that
Lewis must step aside.
This conclusion reflected a pervasive attitude at BBI that older, senior supervisors
would not fit into the new culture.
BBI made no attempt to educate the older employees in the new theories, even though
it provided such education for younger employees.
BBI disposed of older supervisors either by demotion, elimination of position or
streamlining production while continuing to perform most of the same tasks under a new
Together with the restructuring of the pay scale, minimizing long-tenured service, the
failure to assist or educate older employees while providing such to younger employees
establishes that it is more likely than not that age was a factor that made a difference in
the adverse decisions affecting Lewis.
All of the substantive duties of the Operations Manager position were those Lewis had
competently performed as Plant Manager.
Although Ziroli asserted Lewis was not a good communicator and had misled him
regarding the success of a quad shift in production tried earlier, these complaints about
Lewis were unsubstantiated and were insufficient in severity to warrant the adverse
decisions affecting Lewis. Further, Ziroli’s failure to provide Lewis with performance
evaluations deprived Lewis of the opportunity of meeting the reasonable expectations of
The tasks of the Operations Manager, to the extent they coincide with the plant
manager’s duties, continue to be performed at BBI by younger supervisors, including
the production manager, age 34.
The fact that the instrument for change and implementation of the Theory of
Constraints together with disparate treatment of older employees, was a man older
than Lewis is further evidence that BBI’s view of the necessary cultural change to
improve the value of the company necessitated the replacement of senior people in
management positions. Groeber’s tenure was limited and his task well defined. The
Court does not consider him a true replacement for Lewis in any of the positions he lost.
The ultimate fact is that after 1994 and the departure of a number of senior supervisors,
BBI is a company managed by much younger supervisors, including the positions held
by Lewis. [Emphasis in original.]
The trial court’s conclusion that plaintiff established that defendant was predisposed to
discriminate against older employees is not clearly erroneous. Plaintiff presented evidence that Ziroli
determined that plaintiff was not suitable to lead the company in the Theory of Constraints as
Operations Manager even though Lewis had never been given the opportunity for education or training
in the theory, unlike a number of younger employees. Plaintiff presented evidence that Groeber, who
was hired by defendant in May 1994, was alerted before being hired that several senior supervisors,
including plaintiff, were likely to resist change, although there was insufficient evidence to establish a
factual basis for the predisposition to believe that senior supervisors would resist change.
I agree with the majority that an age discrimination plaintiff seeking to establish a prima facie
case under McDonnell Douglas must show that he or she was replaced by a younger person. 1 I also
agree that, generally, a plaintiff’s replacement 1 ½ years later by a younger person is too attenuated a
connection to satisfy this element. However, in the instant case, plaintiff presented evidence that Ziroli,
defendant’s President, and Groeber, who assumed the Operations Manager position for about seven
months, were not his true replacements, in that each assumed plaintiff’s duties for a limited time, Ziroli
had his own duties as President and could be seen as simply “holding the fort,” and Groeber was
brought in from the outside to implement the theory of constraints. The trial court’s conclusion that
Whitley was plaintiff’s true replacement was not clearly erroneous.
I would affirm.
/s/ Helene N. White
Defendant asserts that the positions at issue were eliminated. Where positions are eliminated, a
plaintiff need not show that he or she was replaced by a younger person, a plaintiff must show that age
was a factor in his or her selection for termination or other adverse employment action, Matras v
Amoco Oil Co, 424 Mich 675, 682-685; 385 NW2d 586 (1986), and that he or she had skills,
experience, background, or qualifications comparable to the retained employee, Featherly v Teledyne,
194 Mich App 352, 358-359; 486 NW2d 361 (1992); Meeka v D & F Corp, 158 Mich App 688,
692-693; 405 NW2d 125 (1987); Bouwman v Chrysler Corp, 114 Mich App 670, 678-680; 319
NW2d 621 (1982). The trial court’s conclusions that plaintiff established both that age was a factor in
defendant’s adverse employment actions and that he was as least comparably qualified to perform the
Operations Manager and Prepress Supervisor positions, were not clearly erroneous.