DANIEL R SWANTEK V ELECTRONIC DATA SYSTEMS CORPAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
DANIEL R. SWANTEK,
November 20, 1998
Oakland Circuit Court
LC No. 96-513134 CL
ELECTRONIC DATA SYSTEMS
Before: O’Connell, P.J., and Gribbs and Talbot, JJ.
This lawsuit stems from defendant’s termination of plaintiff’s employment, on October 5, 1993.
At the time, plaintiff was 49 years old and working at defendant’s Flint Help Desk. Defendant, pursuant
to a general campaign to reduce operating costs, eliminated the entire Flint Help Desk. However, of the
several employees involved, only plaintiff was unable to find another position with defendant. Plaintiff
filed a complaint, alleging age discrimination, handicap d
iscrimination, and retaliation for opposing a
discriminatory practice. The trial court granted defendant’s motion, pursuant to MCR 2.116(C)(10),
with respect to all three claims. Plaintiff appeals as of right, and we affirm.
In reviewing an order granting summary disposition under MCR 2.116(C)(10), a reviewing
court examines all relevant documentary evidence in the light most favorable to the nonmoving party to
determine whether a genuine issue of material fact exists on which reasonable minds could differ. Farm
Bureau Mutual Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991); Shirilla v Detroit,
208 Mich App 434, 437; 528 NW2d 763 (1995). “[A]n adverse party may not rest upon the mere
allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule,
set forth specific facts showing that there is a genuine issue for trial.” MCR 2.116(G)(4). A defense
motion for summary disposition should be granted only where the claim is so clearly unenforceable as a
matter of law that no factual development could establish the plaintiff’s right to prevail. Young v
Michigan Mutual Ins Co, 139 Mich App 600, 603; 362 NW2d 844 (1984).
I. Age Discrimination
Plaintiff argues that a question of fact exists concerning whether defendant discriminated against
him on the basis of his age. We disagree.
A. Prima Facie Test
A party can establish a prima facie case of discriminatory discharge by showing that the party
was (1) a member of a protect class, (2) terminated, (3) qualified for the position, and (4) replaced by a
younger person. Matras v Amoco Oil Co, 424 Mich 675, 683; 385 NW2d 586 (1986), citing
McDonnell Douglas Corp v Green, 411 US 792, 802; 93 S Ct 1817; 36 L Ed 2d 668 (1973) and
Ackerman v Diamond Shamrock Corp, 670 F2d 66, 69 (CA 6, 1982). A plaintiff must prove these
elements by a preponderance of the evidence. Lytle v Malady (On Rehearing), 458 Mich 153, 172
173 (Weaver, J., joined by Boyle and Taylor, JJ.), 185 (Brickley, J., concurring), 186 (Mallett, C.J.,
concurring in part and dissenting in part); 579 NW2d 906 (1998).1 Only the fourth of these elements is
in dispute here.
It was the entire Flint Help Desk that defendant discontinued, not just plaintiff’s position. The
displaced employees ranged in age from several months older than plaintiff to almost twenty-five years
younger. Plaintiff has offered no evidence to show that defendant eliminated the entire Flint Help Desk
for the purpose of terminating plaintiff. However, plaintiff was the only employee from the Flint Help
Desk who was unable to find alternative employment with defendant, thus rendering him in effect the
only one discharged. Plaintiff asserts that positions were available with defendant for which he was
qualified, but that defendant did not offer plaintiff one because of defendant’s age.
Where an employer has reduced the work force generally, if a discharged employee’s duties are
absorbed by the remaining workers, with no workers hired or transferred for that purpose, there has
been no replacement of the terminated worker for purposes of establishing the prima facie case of
discrimination. Barnes v GenCorp, Inc, 896 F2d 1457, 1465-1466 (CA 6, 1990). Further, an
employer has no duty to find an alternative post for an employee whose position has been eliminated
through a reduction in the work force. See Bouwman v Chrysler Corp, 114 Mich App 670, 681; 319
NW2d 621 (1982). Moreover, “[a]n employer is not required to inform former employees of all
openings which the former employee might be qualified to perform in order to avoid liability for an age
discrimination charge.” Barnes, supra at 1472.
According to the evidence in this case, the only member of the Flint Help Desk who was older
than plaintiff was in fact able to find another job with defendant after the Flint Help Desk was closed.
The evidence further indicates that, all of the positions for which plaintiff alleges he was qualified were
filled by employees who were better qualified than plaintiff. Although plaintiff states that he was easily
qualified for several positions filled by former members of the Flint Help Desk, he has offered no
evidence to show that he was better qualified in any case. Rather, the evidence shows that the
employees who were retained had experience that plaintiff lacked in similar positions. Plaintiff has also
asserted that defendant retained younger employees who were less qualified than plaintiff for their
positions than he would have been, but plaintiff does not argue that the younger workers were
unqualified, only less qualified. We conclude that this scanty evidence, viewed in the light most
favorable to plaintiff, fails to measure up to the preponderance required to give rise to an inference that
defendant terminated plaintiff an exercise of age discrimination.
B. Direct or Indirect Evidence
As an alternative to the modified McDonnell Douglas test for establishing a prima facie case of
employment discrimination, a party may proceed “‘under ordinary principles of proof by any direct or
indirect evidence relevant to and sufficiently probative of the issue .. . without resort to any special
judicially created presumptions or inferences related to the evidence.’” Matras, supra at 683, quoting
Lovelace v Sherwin-Williams Co, 681 F2d 230, 239 (CA 4, 1982). For direct evidence of age
discrimination against him, plaintiff points to several age-related comments made by defendant’s
management during defendant’s resource alignment in 1993. Plaintiff further cites deposition testimony
from other lawsuits, plus several newspaper and magazine articles as evidence that he was the victim of
defendant’s age discrimination.
However, even giving the benefit of any reasonable doubt to plaintiff, this evidence was
insufficient to allow reasonable jurors to conclude that age discrimination was a factor in the decision to
discharge plaintiff. See Matras, supra at 682. None of the articles or testimony directly mentions
plaintiff or the subdivision within defendant for which plaintiff worked. Nor does the testimony, or any
of the articles, suggest that plaintiff would have been retained but for his advancing age. In fact,
plaintiff’s evidence does not show that age was a factor in the termination, retention, or hiring of any of
defendant’s employees, much less that it was a factor in the termination of plaintiff himself.
Two of the articles mention that the average age of defendant’s employees was in the mid
thirties. However, presuming the accuracy of those reports, this information does not show that
defendant—then a relatively new and growing technology company—engaged in a pattern of age
discrimination of which plaintiff was a victim. Nor does the report of defendant’s CEO’s decision to
pander to the perceived youthfulness of the work force in a promotional video bear on the question
whether defendant discriminated against plaintiff because of his age.
Regarding other implications from the evidence to which plaintiff points, it is irrelevant to
plaintiff’s claim of age discrimination that defendant regarded voluntary early retirement as a means of
cutting salary costs. It is likewise irrelevant that the manager of a department other than the one for
which plaintiff worked, who had no responsibility for plaintiff’s termination, commented that younger
individuals were quicker and smarter. Finally, that another member of defendant’s management team,
who also had no direct involvement with plaintiff’s unit and did not participate in the decision to
discharge plaintiff, simply took cognizance of the ages of the employees who were already on a list to be
discharged, is not evidence that defendant discriminated against any of its employees because of age. In
short, plaintiff’s evidence hardly hints that defendant practices any age discrimination at all, let alone that
defendant terminated plaintiff because of his age.
II. Handicapper Discrimination
Plaintiff argues that a question of fact exists concerning whether defendant discriminated against
him based on his perceived handicap. We disagree. To recover under the Michigan Handicappers’
Civil Rights Act, plaintiff must prove that (1) he has a handicap as statutorily defined, (2) that the
handicap is unrelated to his ability to perform his job, and (3) that defendant terminated plaintiff because
of that handicap. See Hall v Hackley Hosp, 210 Mich App 48, 53-54; 532 NW2d 893 (1995).
“Handicap” is statutorily defined, in pertinent part, as follows:
(i) A determinable physical or mental characteristic of an individual, which may
result from disease, injury, c
ongenital condition of birth, or functional disorder, if the
(A) . . . substantially limits 1 or more of the major life activities of that individual
and is unrelated to the individual’s ability to perform the duties of a particular job or
position or substantially limits 1 or more of the major life activities of that individual and
is unrelated to the individual’s qualifications for employment or promotion.
(iii) Being regarded as having a determinable physical or mental characteristic
described in subparagraph (i).
MCL 37.1103(e)(i)(A) and (iii); MSA
3.550(103)(e)(i)(A) and (iii).
Plaintiff testified that he was physically able to perform his Help Desk job, and that he was
unable to name any major life activity that was limited by his arthritis. Plaintiff’s posture on appeal is that
he was a handicapper only insofar as defendant perceived him as handicapped and discriminated against
him because of that perception. In support of this position, plaintiff testified that in August 1993, when
he advised his regional manager of the surgery he required, she “harshly” told him that he “just came up
with this” after he had “found out the job was gone.” However, because defendant’s decision to
terminate plaintiff was already in place at the time of the regional manager’s remarks, her statement
hardly supports plaintiff’s argument. Plaintiff offers no additional evidence in support of his claim except
for the circular argument that his dismissal itself bespeaks handicapper discrimination. In particular,
plaintiff offers no evidence to suggest that any manager considering rehiring him was aware of his
arthritic condition. Viewing plaintiff’s evidence in the light most favorable to him, we conclude that
plaintiff has failed to support his claim that there was a connection between his arthritis and his
III. Retaliatory Discharge
Plaintiff argues that a question of fact exists concerning whether defendant retaliated against him
for his opposition to defendant’s discriminatory practices. We disagree.
Section 701 of the Elliot-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et
seq., reads as follows:
Two or more persons shall not conspire to, or a person shall not . . . (a) [r]etaliate or
discriminate against a person because the person has opposed a violation of this act, or
because the person has made a charge, filed a complaint, testified, assisted, or
participated in an investigation, proceeding, or hearing under this act.
Section 801 provides that a person alleging a violation may bring a civil action. To establish a prima
facie case of unlawful retaliation, a party must produce evidence (1) that the party engaged in a
protected activity, (2) that the employer was aware of the protected activity, (3) that the party was
subjected to adverse employment action, and (4) that a causal link exists between the protected activity
and the adverse employment action. DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566
NW2d 661 (1997).
Plaintiff alleges that defendant terminated him in 1993 in retaliation for plaintiff’s letter to
defendant’s CEO of September 19, 1991, in which plaintiff complained of his inability to find a more
challenging position and attributed his plight to age discrimination. However, although plaintiff has
produced evidence that he engaged in a protected activity of which defendant was aware, he has
produced no evidence of a causal link between his protected activity and his discharge two years later.
Indeed, plaintiff admitted at deposition that he was unaware of any causal link.
At the time of his termination, plaintiff worked in a unit with defendant other than the one for
which he worked when he wrote his letter to defendant’s CEO. Although plaintiff testified that he
advised his regional manager in 1993 of the letter he wrote to the CEO two years earlier, plaintiff has
offered no evidence to suggest that this information had any bearing on defendant’s decision to eliminate
the Flint Help Desk. Plaintiff alleges that the regional manager treated him coldly, but plaintiff also
admitted that she was not a “people person” generally. Viewing the evidence in plaintiff’s best light, we
conclude that plaintiff has failed to support his theory that the elimination of the Flint Help Desk, or his
failure to obtain other work with defendant, was linked to plaintiff’s protected activities of two years
/s/ Peter D. O’Connell
/s/ Roman S. Gribbs
/s/ Michael J. Talbot
In this recent case, our Supreme Court restated the test for the prima facie case, referring to adverse
employment generally for the second element, and referring to discharge “under circumstances that give
rise to an inference of unlawful discrimination” for the fourth element. Id.