GEORGE MEYERS V BASF CORPORATIONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
December 4, 1998
BASF CORPORATION and GARY LAMBERT,
Wayne Circuit Court
LC No. 96-623863 NO
Before: Griffin, P.J., and Gage and R. J. Danhof*, JJ.
Plaintiff appeals as of right from an order granting defendants’ motion for summary disposition in
this Elliott-Larsen Civil Rights action (ELCRA) based on age discrimination. MCL 37.2202(1)(a);
MSA 3.548(202)(1)(a). We affirm.
This Court reviews de novo an order granting summary disposition. Weisman v US Blades,
Inc, 217 Mich App 565, 566; 552 NW2d 484 (1996). While defendants brought their motion for
summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), the order granting the motion does
not specify under which court rule the motion was granted. However, because the court went beyond
the pleadings in deciding defendants’ motion, we will review the trial court’s grant of summary
disposition as if based on MCR 2.116(C)(10). Espinoza v Thomas, 189 Mich App 110, 114-115;
472 NW2d 16 (1991). A motion for summary disposition brought under MCR 2.116(C)(10), based
on the lack of a genuine issue of material fact, tests whether there is factual support for the claim. WB
Cenac Med Service, PC v Mich Physicians Mut Liability Co, 174 Mich App 676, 681; 436 NW2d
430 (1989). In ruling on the motion, the trial court must consider the affidavits, pleadings, depositions,
admissions and other documentary evidence submitted by the parties. Id. The opposing party must
show that a genuine issue of material fact exists. Id. The opposing party may not rest on mere
allegations or denials in the pleadings but must, by affidavit or other documentary evidence, set forth
specific facts showing that there is a genuine issue for trial. Id. Should the opposing party fail to make
such a showing, summary disposition is appropriate. Id.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
The ELCRA prohibits employers from discriminating against employees on the basis of age.
MCL 37.2202(1)(a); MSA 3.548(202)(1)(a). To address a plaintiff’s claims of unlawful age
discrimination, Michigan courts have utilized the “shifting burden” analysis set forth in McDonnell
Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Meagher v Wayne
State Univ, 222 Mich App 700, 710; 565 NW2d 401 (1997). To establish a prima facie case of age
discrimination, the plaintiff must prove by a preponderance of the evidence that (1) he was a member of
the protected class, (2) he suffered an adverse employment action, (3) he was qualified for the position,
and (4) he was replaced by a younger person. Lytle v Malady (On Rehearing), 458 Mich 153, 177;
579 NW2d 906 (1998). Once the plaintiff has sufficiently established a prima facie case, a presumption
of discrimination arises. Lytle, supra at 173. At the second stage of proofs, the burden of production
then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff’s
termination to overcome and dispose of this presumption. Id. The defendant’s response need not
persuade the court that the defendant was actually motivated by the proffered reasons, but need only
raise a genuine issue of fact as to whether the defendant discriminated against the plaintiff. Id., quoting
Texas Dep’t of Community Affairs v Burdine, 450 US 248, 254-255; 101 S Ct 1089; 67 L Ed 2d
207 (1981). Once the presumption of discrimination drops out of the case, the plaintiff retains the
ultimate burden of proving discrimination. Town v Michigan Bell Telephone Co, 455 Mich 688, 700;
568 NW2d 64 (1997). At this third stage of proof, in response to the defendant’s motion for summary
disposition, the plaintiff must come forward with evidence, including the previously produced evidence
establishing the prima facie case, creating a material issue of fact on which reasonable minds could
conclude that the employer’s stated reason is a pretext for discrimination. Lytle, supra at 174-175 n
22, citing Town, supra at 698.
Plaintiff contends that he established a prima facie case of age discrimination, that defendants’
reason for firing him was pretextual, and that he presented evidence of discrimination sufficient to survive
defendant’s motion for summary disposition. For purposes of argument, we will assume that plaintiff
has established a prima facie case of age discrimination. Plaintiff was aged fifty-four years at the time
defendants terminated his employment, and thus was a member of a protected class at the time he
suffered an adverse employment action. Lytle, supra at 177 n 26. Furthermore, plaintiff’s complaint
alleges that he possessed adequate qualifications for the account manager position he held, and that
defendant replaced him with a younger employee. Id. at 177.
Regarding the second stage of proofs, defendants have articulated a legitimate,
nondiscriminatory reason for terminating plaintiff’s employment. Specifically, defendants allege that
plaintiff poorly performed the duties of his account manager position. Defendants’ offer of this legitimate
reason for plaintiff’s termination removes the inference of discrimination created by plaintiff’s statement
of a prima facie case. Town, supra at 696.
Therefore, to succeed at the third stage of proofs, plaintiff must present evidence sufficient to
permit a reasonable factfinder to conclude that defendants’ true motive in terminating plaintiff’s
employment was discrimination. Id. In support of his claim, plaintiff avers that he was treated
differently from other, younger employees in that he was the only one given an outdated computer, was
prohibited from working out of his home office, never received the prime tickets to client entertainment
events that younger employees enjoyed, was denied permission to work at home while younger
employees were permitted to do so, and was criticized for spending an inadequate amount of time with
clients while other, younger employees who had spent the same amount or less time than plaintiff with
their clients were not similarly criticized. To create an inference of disparate treatment, however,
plaintiff must prove that he and these younger employees were similarly situated; that is, that all of the
relevant aspects of his employment situation were nearly identical to those of the younger employees’
employment situations. Town, supra at 699-700. Plaintiff has presented no evidence in this regard. It
is impossible to discern from the record the identities or job duties of these younger employees, whether
they had been with the company the same amount of time as plaintiff, whether they were also hired as a
result of defendants’ purchase of Olin, or by whom they were supervised. In short, it is impossible to
determine whether these younger employees were similarly situated to plaintiff, so that there is nothing
beyond plaintiff’s unsubstantiated allegations on which to base an inference of disparate treatment.
Mere allegations are insufficient to support such an inference. MCR 2.116(G)(4).
Plaintiff also argues that defendants’ allegations of plaintiff’s poor performance have no basis in
fact. According to plaintiff, defendants kept increasing his workload and alleging new areas of
deficiency so that plaintiff could not succeed and would never appear to be a satisfactory employee.
Plaintiff alleges that defendant Lambert gave him an old computer incapable of performing the tasks
necessary to his position, then criticized him for failing to perform these tasks. Plaintiff also avers that
defendants’ criticisms that he failed to communicate adequately with clients and failed to be a team
player, and that other employees did not get along well with him are baseless.
However, a review of the record reveals support for defendants’ criticisms. Attached to their
motion for summary disposition, defendants supplied plaintiff’s 1992-1994 yearly performance
evaluations. While these evaluations praise plaintiff’s sales, knowledge, and experience, they
consistently note his inability to work as a member of the team, his neglect of certain of his accounts, his
failure to share his knowledge and experience with other employees, his unacceptable efforts to
communicate with coworkers and clients, and his lack of respect amongst his peers. Defendants also
presented several 1995 performance review memoranda from L
ambert to plaintiff dated April 12,
August 21, October 4, and December 4, 1995. These communications represented defendants’
attempt “to clearly communicate areas where [plaintiff’s] performance is unacceptable and to work with
[plaintiff] to correct the deficiencies identified.” These memoranda cite many of the same areas of
concern as noted within plaintiff’s performance evaluations, and indicate that plaintiff’s failure to
immediately and consistently improve would result in more severe sanctions, including termination.
Although many of the evaluations and memoranda indicate defendants’ willingness to do what they
could to help plaintiff improve, they do not note any marked improvement by plaintiff.
Defendants also attached to their motion for summary disposition copies of various 1995 and
1996 email messages containing criticisms of plaintiff’s failures to address and follow through with client
communications and concerns, to provide necessary documentation, and to make himself available to
other BASF employees. Specifically, these messages indicate that plaintiff had failed to follow up on an
issue involving Ford Motor Company, that several email messages were written and forwarded to
various employees because “people keep asking George to do the same thing three, four and five times
and it never gets done,” and that “[a]gain and again, George neglects his responsibility. Something must
be done to stop the damage.” One of the message authors--someone other than defendant Lambert–
also demanded that plaintiff be removed from an account. Notably, defendant Lambert did not write
most of these messages. Furthermore, the complaints evidenced within the email messages are nearly
identical to those included by Lambert in plaintiff’s evaluations.
Plaintiff has denied that these criticisms have any basis in fact, and proffers reasons as to why he
was unable to meet defendants’ employment expectations, for example, because they were
unreasonable or were foisted on him only to prevent him from performing his other duties, or that he
was unable to contact a client because the client did not have an answering machine, or that there was
no internal company documentation regarding client contacts because he often used the internet for this
purpose. Thus, plaintiff “is basically arguing that he was not responsible for the problems that the
company was having . . . and thus, that defendant’s stated reasons for his discharge must be a pretext.”
Menard v First Security Services Corp, 848 F2d 281, 287 (CA1, 1988).1 Even assuming arguendo
that plaintiff’s performance was not as bad as defendants indicated and that reasonable explanations
existed for plaintiff’s failure to perform his job in a manner satisfactory to defendants, 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
adverse action. Lytle, supra at 175. Plaintiff must not merely raise a triable issue that the employer’s
proffered reason was pretextual, but that it was a pretext for age discrimination. Id. at 175-176.
Plaintiff has failed to establish that age was a motivating factor in the decision to terminate him.
The only additional evidence that plaintiff offers in support of his contention that defendants discharged
him because of his age consists of certain comments made by defendant Lambert. According to
plaintiff, Lambert expressed his discomfort regarding attending a weekend ski trip with plaintiff and
some clients because he was younger than plaintiff and the other participants, Lambert on one occasion
remarked that his parents were “old and set in their ways,” and Lambert on several occasions indicated
to BASF customers that he was plaintiff’s supervisor despite their age difference. However, Lambert’s
comments are only isolated and ambiguous statements that fail to establish that defendants relied on age
in deciding to terminate plaintiff’s employment. See Phelps v Yale Security, Inc, 986 F2d 1020,
1025-1026 (CA 6, 1993); Gagne v Northwestern National Ins Co, 881 F2d 309, 315-316 (CA 6,
Plaintiff also avers that the fact that he was given Lambert’s old computer, was treated
differently than younger employees, and was replaced by a younger man is further evidence of age
discrimination. As discussed above, plaintiff failed to establish that he was similarly situated to these
younger employees who were allegedly treated differently, so that his claim of disparate treatment fails.
Regarding plaintiff’s claim that he was replaced by a younger employee, this standing alone is insufficient
to establish a violation of the age discrimination laws. Shager v Upjohn Co, 913 F2d 398, 401 (CA 7,
1990); Laugesen v Anaconda Co, 510 F2d 307, 312-313 n 4 (CA 6, 1975).
Thus, even if plaintiff’s performance could be deemed satisfactory, and defendants’ reason for
firing him deemed false, plaintiff has nonetheless failed to establish a genuine issue of material fact that his
age was a motivating factor in his discharge. Lytle, supra. Thus, we conclude that the trial court
properly granted summary disposition for defendants. Because of our resolution of this matter, we need
not address plaintiff’s remaining arguments regarding the same actor defense and defendant Lambert’s
personal liability. Ballman v Borges, 226 Mich App 166, 170; 572 NW2d 47 (1997).
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
/s/ Robert J. Danhof
In analyzing discrimination claims arising under the Michigan Civil Rights Act, Michigan courts have
often resorted to federal precedent for guidance. Harrison v Olde Financial Corp, 225 Mich App
601, 606; 572 NW2d 679 (1997).