HARRY SWYSTUN V FARMINGTON SCHOOL DIST
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STATE OF MICHIGAN
COURT OF APPEALS
HARRY SWYSTUN,
UNPUBLISHED
February 21, 2003
Plaintiff-Appellant,
v
No. 235812
Oakland Circuit Court
LC No. 00-026169-NZ
FARMINGTON SCHOOL DISTRICT,
Defendant-Appellee.
Before: Saad, P.J., and Zahra and Schuette, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant’s motion for summary
disposition, and we affirm.
I. Nature of the Case
Following his retirement from the Farmington School District on March 24, 2000,
plaintiff filed a complaint against the school district for violating the Michigan Civil Rights Act
(CRA), MCL 37.2101 et seq., by discriminating against him on the basis of his age and sex. The
trial court granted defendant’s motion for summary disposition under MCR 2.116(C)(10)
because plaintiff failed to establish that he suffered an adverse employment action and because
he failed to present direct or circumstantial evidence to support his reverse sex discrimination
claim.
II. Analysis1
1
We review “the grant or denial of summary disposition de novo to determine if the moving
party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 118; 597
NW2d 817 (1999). Further:
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. In evaluating a motion for summary disposition brought under this
subsection, a trial court considers affidavits, pleadings, depositions, admissions,
and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most
favorable to the party opposing the motion. Where the proffered evidence fails to
establish a genuine issue regarding any material fact, the moving party is entitled
(continued…)
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Plaintiff contends that the trial court erred by granting summary disposition to defendant
on his age discrimination claim because plaintiff established a genuine issue of material fact that
he suffered an adverse employment action. 2
“Absent direct evidence of discrimination, a plaintiff may establish a prima facie case of
employment discrimination by showing (1) that the plaintiff was a member of a protected class,
(2) that an adverse employment action was taken against the plaintiff, (3) that the plaintiff was
qualified for the position, and (4) that the plaintiff was replaced by one who was not a member of
the protected class.” Smith v Goodwill Industries of West Michigan, Inc, 243 Mich App 438,
447; 622 NW2d 337 (2001). To establish that a plaintiff suffered an adverse employment action,
the plaintiff must show that the action was “materially adverse in that it is more than ‘mere
inconvenience or an alteration of job responsibilities,’ and . . . [plaintiff also] must have an
objective basis for demonstrating that the change is adverse . . . .” Meyer v City of Center Line,
242 Mich App 560, 569; 619 NW2d 182 (2000), quoting Wilcoxon v Minnesota Mining & Mfg
Co, 235 Mich App 347, 364; 597 NW2d 250 (1999). Objective evidence of an adverse action is
required because “a plaintiff's ‘subjective impressions as to the desirability of one position over
another’ [are] not controlling.” Wilcoxon, supra at 364, quoting Kocsis v Multi-Care Mgt, Inc,
97 F3d 876, 886 (CA 6, 1996).
We hold that plaintiff failed to present any objective evidence that the principal’s failure
to appoint plaintiff department chair constituted a demotion or that it had a materially adverse
effect on his employment status. While plaintiff offered his opinion on the biennial chair
appointment in his affidavit, his subjective impressions of the “demotion” are insufficient to
establish a prima facie case of discrimination. Wilcoxon, supra at 364. Further, plaintiff offered
no evidence to support his claim that the loss of the department chair constituted a demotion, as
opposed to a mere inconvenience or alteration of job responsibilities.3 Meyer, supra at 569.
Moreover, though discovery was closed at the time of the motion hearing, plaintiff failed to
(…continued)
to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross &
Peters Co, 451 Mich 358; 547 NW2d 314 (1996). [Maiden, supra at 120.]
2
Plaintiff also claims that the trial court abused its discretion by denying his counsel’s request
for a one-week adjournment of the motion hearing. A motion for an adjournment must be based
on good cause, and a trial court, in its discretion, may grant an adjournment to promote the cause
of justice. MCR 2.503; Zerillo v Dyksterhouse, 191 Mich App 228, 230; 477 NW2d 117 (1991).
The motion transcript indicates that plaintiff scheduled another appointment during the motion
hearing because defense counsel allegedly said he was thinking about adjourning the hearing. At
the hearing, the trial court denied plaintiff’s motion to adjourn the hearing notwithstanding the
assertion that plaintiff wanted to be present for the court’s ruling. Plaintiff did not argue below
and does not argue on appeal that he had new facts or evidence to present at the hearing, or that
he would otherwise be prejudiced by the failure to adjourn. The trial court clearly did not abuse
its discretion; there was no “good cause” for adjournment and plaintiff was not prejudiced by the
failure to adjourn. See City of Lansing v Hartsuff, 213 Mich App 338, 351; 539 NW2d 781
(1995).
3
While it is entirely conceivable that loss of a position as department chair may be a demotion,
clearly plaintiff must offer evidence to support this, not simply state his opinion.
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present any objective facts to raise an inference that there was some discriminatory reason for
failing to appoint plaintiff to chair the department.4 Accordingly, plaintiff failed to satisfy his
burden of showing that his loss of the department head position was materially adverse, and
therefore, he failed to demonstrate that he suffered any adverse employment action.5
Plaintiff further contends that the trial court erred by granting defendant’s motion on
plaintiff’s constructive discharge claim. Below, plaintiff asserted that Horn’s unsupportive and
discriminatory actions caused him such medical and emotional suffering that he was forced to
retire in March 2000. “A constructive discharge occurs when an employer deliberately makes an
employee's working conditions so intolerable that the employee is forced into an involuntary
resignation.” Hammond v United of Oakland, Inc, 193 Mich App 146, 151; 483 NW2d 652
(1992). Constructive discharge is not a cause of action but “a defense against the argument that
no suit should lie in a specific case because the plaintiff left the job voluntarily.” Vagts v Perry
Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102 (1994). Accordingly, in order to
maintain a claim based on constructive discharge, a “[p]laintiff must first establish the requisite
statutory . . . harassment before a claim of additional aggravating circumstances is considered.”
Radtke v Everett, 442 Mich 368, 373 n 1; 501 NW2d 155 (1993). In other words, a finding of
harassment is a “necessary predicate” to plaintiff’s claim of constructive discharge. Id.
4
While not dispositive of plaintiff’s claims, we observe that plaintiff filed this action following
his medical leave and his request to retire. Plaintiff did not pursue a claim under the Workers
Disability Compensation Act and he did not file a grievance under his collective bargaining
agreement or pursue any other administrative remedies with regard to the allegations in this case.
Nor did plaintiff make any claim at the time of his retirement that his retirement was anything
other than voluntary; that is, he did not make such a claim with the school board or file a
Teacher Tenure Act action, nor did he file a wrongful termination claim, which he could have
done under the collective bargaining agreement. Again, while not dispositive, plaintiff’s failure
to pursue any of the aforementioned potential remedies is instructive.
5
Plaintiff further claims that the trial court erred by finding that principal Rande Horn had no
authority to hire or fire teachers at Harrison High School. In her bench ruling on defendant’s
motion for summary disposition, the trial judge stated that plaintiff failed to prove his claim that
Horn discriminated against male applicants and observed that, contrary to plaintiff’s assertion,
defendant stated in its reply brief that school principals are not responsible for hiring or firing
teachers. Plaintiff provided no evidence below or on appeal to establish that Horn was
responsible for hiring or firing teachers.
More importantly, however, this fact is of no consequence to plaintiff’s claim or the trial
court’s ultimate ruling. Neither Horn nor the district fired plaintiff and, regardless whether Horn
or the district’s personnel department made hiring decisions, plaintiff failed to present evidence
supporting his allegation of discriminatory hiring practices at Harrison. It is well-established that
“[a] party opposing a motion for summary disposition must present more than conjecture and
speculation to meet its burden of providing evidentiary proof establishing a genuine issue of
material fact.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 192-193; 540
NW2d 297 (1995). Therefore, the trial court correctly granted defendant’s motion not based on
who hired teachers at Harrison, but because plaintiff failed to support his assertions regarding the
number of women and men hired at Harrison within the disputed period. In sum, plaintiff failed
to establish a prima facie case of reverse sex discrimination because he failed to introduce any
evidence, circumstantial or otherwise, that defendant discriminates against men.
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As the trial court correctly ruled, plaintiff failed to establish a claim that he was harassed
on the basis of his age or sex. “In order to establish a prima facie case of hostile work
environment, a plaintiff must prove: (1) the employee belonged to a protected group; (2) the
employee was subjected to communication or conduct on the basis of the protected status; (3) the
employee was subjected to unwelcome conduct or communication on the basis of the protected
status; (4) the unwelcome conduct or communication was intended to, or in fact did, interfere
substantially with the employee’s employment or created an intimidating, hostile, or offensive
work environment; and (5) respondeat superior.” Downey v Charlevoix County Bd of Road
Com’rs, 227 Mich App 621, 629; 576 N.W.2d 712 (1998), citing Radke, supra at 382-383.
Plaintiff’s evidence of a hostile work environment consisted of two disagreements he and Horn
had regarding field trip permission slips, two contentious discussions regarding plaintiff’s
schedule in 1995 and 1998, and plaintiff’s allegation that Horn did not acknowledge his students’
accomplishments. On this evidence, a rational trier of fact could not conclude that the district or
Horn created a hostile work environment. Moreover, no reasonable juror could conclude that
Horn’s alleged conduct was based on plaintiff’s protected status or that it was intended to or did
create an intolerable work environment. Because plaintiff failed to establish his underlying
discrimination claim, his claim of constructive discharge fails as a matter of law.6
Affirmed.
/s/ Henry William Saad
/s/ Brian K. Zahra
/s/ Bill Schuette
6
We reject plaintiff’s claim that the trial court erroneously ruled that a plaintiff must present
direct evidence of discrimination in order to survive a motion for summary disposition. To the
contrary, in its bench ruling, the trial court specifically stated that a plaintiff may establish a
discrimination claim through direct evidence or by the burden-shifting framework outlined
above. Further, in deciding the motion, the trial court considered the evidence offered by
plaintiff within that framework. Accordingly, plaintiff’s claim is without merit.
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