JAMES FOSTER V TWEDDLE LITHO CO
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES FOSTER,
UNPUBLISHED
February 8, 2002
Plaintiff-Appellant,
V
No. 225169
Macomb Circuit Court
LC No. 98-003442-CL
TWEDDLE LITHO COMPANY,
Defendant-Appellee.
Before: Cavanagh, P.J., and Neff and B. B. MacKenzie, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for
summary disposition pursuant to MCR 2.116(C)(10). Plaintiff alleged that his employment with
defendant was terminated unlawfully because of age discrimination. We affirm.
We review a trial court’s grant of summary disposition de novo. Ritchie-Gamester v City
of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). A motion for summary disposition brought
under MCR 2.116(C)(10) tests whether there is factual support for a claim. Id. When deciding a
motion for summary disposition, we must consider the pleadings, affidavits, depositions,
admissions and other documentary evidence submitted in the light most favorable to the
nonmoving party. Id. The motion should be granted when there is no genuine issue as to any
material fact or when a party is entitled to judgment as a matter of law. MCR 2.116 (C)(10).
Plaintiff’s age discrimination action is based upon the Civil Rights Act, which provides,
in pertinent part:
(1)
An employer shall not do any of the following:
(a)
. . . discharge or otherwise discriminate against an individual with respect
to employment, compensation, or a term, condition, or privilege of employment,
because of … age …. [MCL 37.2202(1)(a).]
Although the ultimate inquiry is the same, i.e., whether the employee was discharged
“because of age,” two different approaches are used to prove unlawful age discrimination.
Meagher v Wayne State Univ, 222 Mich App 700, 708-710; 565 NW2d 401 (1997); Hazle v
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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Ford Motor Co, 464 Mich 456, 462; 628 NW2d 575 (2001). First, where a plaintiff is able to
produce evidence sufficiently probative of impermissible bias using the ordinary principles of
proof, the plaintiff can prove unlawful discrimination in the same manner as a plaintiff would
prove any civil case. Debrow v Century 21 Great Lakes (After Remand), 463 Mich 534, 540;
620 NW2d 836 (2001). To establish a claim of age discrimination using ordinary principles of
proof, the plaintiff must present evidence that “he had skills, experience, background, or
qualifications comparable to the retained employee” and “his age was a determining factor in the
adverse employment decision.” Featherly v Teledyne Ind, 194 Mich App 352, 358-359; 486
NW2d 361 (1992).
Plaintiff failed to present any direct evidence that unlawful discrimination was at least a
motivating factor in defendant’s termination decision. Hazle, supra at 462. Although
defendant’s president made the statements which plaintiff alleges prove discriminatory intent, the
statements were remote in time from the termination decision, not part of a pattern of age-based,
biased commentary and not sufficiently probative of discriminatory bias. Krohn v Sedgwick
James of Michigan, Inc, 244 Mich App 289, 297-300; 624 NW2d 212 (2001); see also Debrow,
supra at 540. Plaintiff presented no other direct proof that any discriminatory animus was
causally related to the termination decision. Hazle, supra at 462; Lytle v Malady (On
Rehearing), 458 Mich 153, 176; 579 NW2d 902 (1998).
Under the second approach, where a plaintiff cannot rely on ordinary principles of proof
to establish his case, such as a claim based solely on indirect or circumstantial evidence, he may
still prove discrimination utilizing a presumptive approach to prove unlawful discrimination.
Hazle, supra at 462.1 To prove a claim under the presumptive approach, plaintiff must establish
a prima facie case of discrimination. Id. at 463. A “prima facie case in this context does not
mean that the plaintiff produced enough evidence to allow the case to go to a jury, but rather that
the plaintiff produced enough evidence to create a rebuttable presumption of age discrimination.”
Meagher, supra at 710-711. To establish a prima facie case of age discrimination, plaintiff must
prove that (1) he is a member of a 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, supra
at 177.
If the plaintiff is able to establish a prima facie case of age discrimination, a presumption
of discrimination arises. Hazle, supra at 463. The burden then shifts to the defendant who must
provide a “legitimate, nondiscriminatory” reason for the adverse employment action in order to
rebut the presumption of unlawful discrimination. Id. at 464. Once the defendant provides a
legitimate, nondiscriminatory reason for the adverse action, plaintiff must show that there was a
triable issue of fact that the employer’s proffered reasons were not true, but were a “mere pretext
for discrimination.” Lytle, supra at 178.
The first three elements are not in dispute. Plaintiff was over age forty when he was
discharged,2 and was qualified for the position because he worked for defendant in the position
1
The presumptive or burden-shifting approach is modeled after the analysis set forth in
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
2
This Court follows federal precedent, which defines a protected class for age discrimination in
the employment context as persons between the ages of forty and seventy. Lytle, supra, 458
(continued…)
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for nineteen years. The parties take issue with the fourth element, which requires proof that
plaintiff’s discharge occurred under circumstances giving rise to an inference of unlawful
discrimination. Hazle, supra at 468. In Meagher, supra at 711, this Court, relying on a recent
United States Supreme Court decision, O’Connor v Consolidated Coin Caterers Corp, 517 US
308, 312-313; 116 S Ct 1307; 134 L Ed 2d 433 (1996), stated that an inference of age
discrimination “can be drawn from the replacement of an older worker with a significantly
younger worker.”3 Plaintiff argues that an eight-year disparity is significant enough to establish
a prima facie case. Michigan Courts have not specifically addressed this issue; however, we
need not address how the decisions in O’Connor and Meagher affect plaintiff’s claim because
we find defendant was entitled to summary disposition even if plaintiff established a prima facie
case. We assume without deciding that plaintiff established a prima facie case, thus giving rise
to a presumption of discrimination. Lytle, supra at 173.
In response to plaintiff’s claim, defendant clearly set forth, through the introduction of
admissible evidence, legitimate, nondiscriminatory reasons for plaintiff’s discharge. Id. None of
the specific reasons proffered by defendant directly or indirectly implicated plaintiff’s age, but
instead involved plaintiff’s overall poor performance. Thus, defendant successfully carried its
burden of overcoming the presumption.
Because defendant articulated a legitimate, nondiscriminatory reason for its decision to
terminate plaintiff’s employment, the burden shifted to plaintiff to show that the reason proffered
by defendant was a mere pretext for unlawful discrimination. Hazle, supra at 465. We find
plaintiff failed to carry his burden because he was unable to show that defendant’s proffered
reasons were not based on fact, were not the actual factors that motivated the decision, or were
insufficient to justify the decision. Meagher, supra at 712.
In an attempt to prove pretext, plaintiff offered proofs to establish that some of
defendant’s specific proffered reasons for his termination were not based on fact. However, he
failed to offer any factual evidence to establish that most of defendant’s reasons were unworthy
of credence. Further, plaintiff cannot defeat a motion for summary disposition by mere disproof
of an employer’s proffered reason for the action but must raise “a triable issue that
discriminatory animus was a motivating factor underlying the employer’s adverse action.” Lytle,
supra at 175. Plaintiff presented no probative evidence that defendant’s termination decision
was motivated by discriminatory animus, thereby failing to establish pretext. Reviewing the
evidence in the light most favorable to plaintiff and drawing any reasonable inferences in his
favor, we find that plaintiff has failed to create a triable issue for the jury concerning whether age
was a motivating factor in the termination decision. Hazle, supra at 466; Lytle, supra at 157.
Defendant was entitled to summary disposition because it successfully articulated a
legitimate, nondiscriminatory reason for its decision to discharge plaintiff, and plaintiff was
(…continued)
Mich 153, 177 n 26. However, this Court also determined that it is not necessary that the
plaintiff fit within the strict federal age limits. Zanni v Medaphis Physician Services Corp, 240
Mich App 472, 476-477; 612 NW2d 845 (2000).
3
In O’Connor, supra at 313, the Court stated that an inference of age discrimination “cannot be
drawn from the replacement of one worker with another worker insignificantly younger.”
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unable to carry his burden of showing that defendant’s reasons were merely a pretext for
discrimination. We affirm the trial court’s grant of summary disposition.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Janet T. Neff
/s/ Barbara B. MacKenzie
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