JOYCE A GARNEY V LADCO INTL LTDAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
Oakland County Circuit
LC No. 95-492846 CZ
LADCO INTERNATIONAL, LTD.,
Before: Young, Jr., P.J., and Kelly and Doctoroff, JJ.
KELLY, J. (dissenting).
I respectfully dissent.
The trial court ruled with respect to the discrimination claim that plaintiff had established a prima
facie case. The majority agrees with the trial court ruling that once the defendant articulates a legitimate
nondiscriminatory reason for its terminating decision, in this case plaintiff’s bad attitude and her inability
to get along with others, then the burden shifts to plaintiff who must demonstrate that defendant’s
proffered reason is a pretext for it’s discrimination. I believe plaintiff offered sufficient evidence which,
when view in a light most favorable to her, could have established such pretext. Although summary
disposition was granted pursuant to MCR 2.116(C)(10), I do not believe the trial court assessed the
plaintiff’s allegations in a light most favorable to her. In my opinion, a trier of fact should weigh the
evidence since reasonable minds could differ.
At the time of her termination, plaintiff had been employed by defendant for fourteen years and
had never received a negative evaluation for bad attitude or inability to get along with others until two
weeks prior to her termination. Plaintiff was forty-six years of age when hired and approximately sixty
years old at the time of her termination. She was replaced by a person thirty-three years old and not
nearly as capable or qualified as plaintiff. Also, defendant hired three more people to perform duties
that plaintiff had previously performed. Further, plaintiff presented affidavits of former employees that
she was competent, friendly, reasonable and polite. Plaintiff also countered defendant’s claims of long
standing difficulty by noting that she was left in charge of the company for extended periods of time.
In my opinion, no weight should be given to the Bauter affidavit because, taking the evidence in
the light most favorable to the plaintiff, Bauter never complained about plaintiff’s temperament. Nor
should weight be given to defendant’s claim that several vendors expressed gratification at plaintiff’s
termination because those vendors were not identified and plaintiff was given no opportunity to rebut the
It is true that plaintiff admitted she was unable to testify to a pattern of defendant firing older
employees, but does that mean whenever a plaintiff is the first to be discriminated against, he or she has
no remedy1? I would reverse.
/s/ Michael J. Kelly
The Supreme Court recently stated in Town v Michigan Bell, that even if plaintiff produces factual
evidence that an employers stated reason is a pretext, summary judgment is not necessarily precluded.
“Thus, plaintiff will not always present a triable fact merely by rebutting the employers stated reason(s);
put differently, that there maybe a triable question of falsity does not necessarily mean that there is a
triable question of discrimination.” Town v Michigan Bell, 455 Mich 688, 698 (1997). That sounds
like what we used to call in Philosophy101, sophistry, or at the very least, specious reasoning. At least
in Town the plaintiff had a trial. After the jury returned a verdict in favor of the plaintiff, the trial court,
on proper motion, entered a directed verdict for the defendant. Although the standards seem to be
malleable and mercurial, the quoted language is an invitation to busy trial judges deprive plaintiffs who
have presented appropriate issues of fact to be tossed out of court on summary disposition motions. If
we are going to make it impossible for the first age discrimination case to be brought to trial against an
employer, we ought to make it clear to bench and bar that an employer gets the first one free.