TOWN v. MICHIGAN BELL TELEPHONE COMPANY; McCONNELL v. ROLLINS BURDICK HUNTER OF MICHIGAN, INCORPORATED
Case Details
- Citation
- 455 Mich. 688
- Judge(s)
- Boyle and Weaver, JJ., concurred with Brickley, J.; Mallett, C.J., concurred with Cavanagh, J.; Kelly, J., concurred with Cavanagh, J., only in Town.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
In Town v. Michigan Bell, the Michigan Supreme Court affirmed a directed verdict for the defendant employer on age and sex discrimination claims despite a jury verdict for the plaintiff, finding insufficient evidence of discrimination. In McConnell v. Rollins Burdick Hunter, the Court reversed and remanded the age discrimination claim for trial, finding the employee had established a prima facie case.
Excerpt
TOWN v MICHIGAN BELL TELEPHONE COMPANY McCONNELL v ROLLINS BURDICK HUNTER OF MICHIGAN, INCORPORATED Docket Nos. 102845, 103476. Argued January 15, 1997 (Calendar Nos. 10-11). Decided July 31, 1997. Rehearing denied in Town, 456 Mich 1202. Veronica Town brought an action in the Wayne Circuit Court against Michigan Bell Telephone Company, alleging constructive discharge and age and sex discrimination. The plaintiff had declined to accept a transfer when her position was consolidated, and, instead, resigned and accepted early retirement. The court, James E. Mies, J., directed a verdict for the defendant. The Court of Appeals, Michael J. Kelly and W. J. Caprathe, JJ. (White, P.J., dissenting), in an unpublished opinion per curiam, affirmed, concluding that although the plaintiff had been constructively discharged, she had not proven that age was a determining factor (Docket No. 144980). The plaintiff appeals. Ted McConnell brought an action in the Wayne Circuit Court against Rollins Burdick Hunter of Michigan, Incorporated, and Miller, Mason & Dickenson, Inc., alleging breach of employment contract, promissory estoppel, and age discrimination after being discharged from his employment. The court, William J. Giovan, X, granted summary disposition for the defendant. The Court of Appeals, Marilyn Kelly, P.J., and Shepherd and L. P. Borrello, JX, affirmed in an unpublished opinion per curiam (Docket No. 146449). On rehearing, the Court, Marilyn Kelly, P.J., and L. P. Borrello, X (Shepherd, X, not participating), affirmed in an unpublished opinion per curiam, but remanded the case for trial of the plaintiff’s age-discrimination claim (Docket No. 146449). The defendants appeal. In an opinion by Justice Brickley, joined by Justices Boyle and Weaver, and an opinion by Justice Riley, the Supreme Court held: The plaintiffs failed to present sufficient evidence that discrimination was a determining factor in their employers’ decisions to terminate their employment. 1. A claim of age discrimination may be shown by the use of direct or indirect evidence. Alternatively, in evaluating age-and sex-discrimination claims, courts have used the prima facie test articulated in McDonnell Douglas Corp v Green, 411 US 792 (1973), requiring a showing that the employee was a member of a protected class, was subject to an adverse employment action, and was qualified for the position, and that others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. The purpose of the prima facie test is to remove the most common nondiscriminatory reasons for the employer’s action, such as poor employee performance, and to force the employer to articulate a nondiscriminatory reason for the discharge. Once the employer produces evidence of a nondiscriminatory reason for the discharge, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. 2. After the employer has met its burden of production, the employee must proceed without the benefit of the earlier presumptions. However, elimination of the presumption does not imply that the trier of fact no longer may consider evidence previously introduced to establish a prima facie case. To prevail, the employee must submit admissible evidence that the employer’s nondiscriminatory reason was not the true reason for the discharge and that the plaintiff’s age was a motivating factor in the employer’s decision, i.e., the employee must prove that the employer’s explanation was a pretext for discrimination. The proofs offered in support of the prima facie case may be sufficient to create a triable issue of fact that the employer’s stated reason is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. When viewed in the light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could conclude that the employer’s stated reason is a pretext for discrimination for summary judgment to be precluded. That there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination. 3. In McConnell, the plaintiff did not submit evidence of pretext sufficient to enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. In Town, the plaintiff failed to introduce sufficient evidence for a reasonable jury to conclude that age or sex discrimination was a determining factor in Michigan Bell’s decision to transfer her. Town, affirmed. McConnell, reversed. Justice Brickley, joined by Justices Boyle and Weaver, would further hold that under McDonnell Douglas an employee who was performing a job at a level that met the employer’s legitimate expectations is qualified for the job. In McConnell, rather than evaluating the plaintiffs case at the prima facie stage, it may be presumed that the plaintiff established a prima facie case. The purpose of the prima facie case is to force the defendant to provide a nondiscriminatory explanation for the adverse employment action. That purpose was served. However, under the circumstances, the plaintiff did not submit evidence of pretext sufficient to enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. In Town, the defendant presented sufficient evidence to sustain its burden of production and dissolve the plaintiff’s prima facie case. The comparison was not between an unqualified employee and a qualified employee, but instead between two qualified employees. The plaintiff’s proofs, at most, merely raise questions about the defendant’s business judgment. The plaintiff did not create an issue of fact regarding whether the defendant’s nondiscriminatory explanation for the plaintiff’s transfer was a pretext, much less a pretext for discrimination. Further, the plaintiff never overcame the defendant’s allegation that she had taken too long to develop her staff and had not spent adequate time visiting customers at their places of business. Justice Riley, concurring, would further hold that employers should be given wide discretion in setting job standards and requirements and in deciding whether employees meet those standards. The job standards and requirements, however, are to be reasonable and consistently applied. Qualification obviously depends on the nature of business at any given time. To ignore the shifting nature of qualification from time to time would make the qualification requirement meaningless and would encourage the harassment of small businesses having informal personnel practices, with unfounded suits. Therefore, when evaluating its employees, employers are to evaluate them on the basis of their merits, in conjunction with the nature of their businesses at the time of the evaluation, and not on the basis of any discriminatory criterion. In McConnell, reviewing the plaintiff’s proofs and drawing any reasonable inferences in his favor, it may be concluded that he presented evidence establishing a question of fact regarding whether he was minimally qualified. He established a prima facie case of age discrimination. However, there is no evidence that the employer’s proffered explanation is unworthy of credence. The record amply demonstrates that the plaintiff had a full and fair opportunity to prove age discrimination. Justice Cavanagh, joined by Chief Justice Malleit, and by Justice Kelly in Town only, concurring in part and dissenting in part, stated that in McConnell, the defendant’s reason for firing the plaintiff was that he was not performing well, not that he was unqualified. The same-actor inference should not be used by the defendant as a shield from liability, but as mere evidence in support of the defendant’s claim. Inference of nonbias is an evidentiary matter for the finder of fact, and should not provide a basis for decision as a matter of law. In Town, the plaintiff presented sufficient evidence to permit reasonable minds to conclude that a motivating factor in involuntarily transferring her was age, as evidenced by the jury verdict in her favor. It was up to the jury to decide whether the defendant discriminated against plaintiff. The majority has improperly assumed the role of the jury by concluding that the defendant, as a matter of law, did not discriminate against plaintiff. Sommers, Schwartz, Silver & Schwartz, P.C. (by Donald J. Gasiorek and Patrick Burkett), for plaintiff Town. Pitt, Dowty & McGehee, P.C. (by Michael L. Pitt), for plaintiffs McConnell. Dickinson, Wright, Moon, Van Dusen & Freeman (by Thomas G. Kienbaum, Robert W. Powell, and Jennifer A. Zinn) for the defendant-appellee in Town. Dickinson, Wright, Moon, Van Dusen & Freeman (by Elizabeth Hardy and Julia Turner Baumhart) for the defendants-appellants in McConnell. Amicus Curiae: Clark, Hill, P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Brickley, J. The issue presented in these consolidated cases is whether the plaintiffs, McConnell and Town, have presented sufficient evidence of age or sex discrimination to surmount a motion for summary disposition and a motion for a directed verdict, respectively. We conclude in both cases that the plaintiffs failed to present sufficient evidence that discrimination had been a determining factor in their employers’ decisions. i McCONNELL v. ROLLINS BURDICK HUNTER In July of 1988, Ted McConnell accepted a job as a sales representative with Rollins Burdick Hunter (rbh). Rbh sold health insurance and provided insurance-related consulting services. At the time that he was hired, McConnell was fifty-five years old. In January of 1989, the plaintiff was informed that he needed to improve his sales production. The plaintiff’s next review was in September of 1989. Because the plaintiff’s sales revenue had not significantly improved by that time, he was informed that if his revenue did not increase that “there will have to be some adjustment made.” The plaintiff was unable to improve his production. Rbh discharged McConnell in January of 1990. At that time, the plaintiff was fifty-seven years old. The plaintiff brought suit against defendants RBH and Miller, Mason, and Dickenson, Inc., alleging breach of employment contract, promissory estoppel, and age discrimination. The trial court granted summary disposition for the defendants on each of the plaintiff’s claims. On appeal, the Court of Appeals initially affirmed the decision of the trial court. The plaintiff then moved for a rehearing on the age discrimination claim which was granted. On rehearing, the Court affirmed, but remanded the case for trial of the plaintiff’s age discrimination claim in an unpublished opinion per curiam. The defendants appealed that decision in this Court. We granted leave and consolidated this case with Town v Michigan Bell. TOWN v MICHIGAN BELL TELEPHONE COMPANY In 1980, Veronica Town sought a departmental transfer from her position of product-line manager with the Michigan Bell Telephone Company. She was interviewed by the assessment center and was offered á position. She turned it down, however, when she learned of the assessment center’s schedule, which consisted of a four-day work week, with twelve-hour shifts. This schedule was unacceptable to her because she needed to be home in the evenings to care for her husband, who was suffering from severe health problems. Instead, the plaintiff accepted a position as manager of market administrators. After one year, the plaintiff’s supervisor notified her that she was being transferred to the assessment center because her position was being consolidated with that of another manager. The person who held the other position was leaving the company. A thirty-five-year-old male, James Aveck, assumed the consolidated position. Still under the impression that the assessment center’s schedule was incompatible with her husband’s needs, the plaintiff resigned and accepted early retirement. The plaintiff was forty-nine years old at the time she resigned. The plaintiff filed suit against Michigan Bell in 1983, alleging constructive discharge and age and sex discrimination. After removal to federal court, reinstatement in state circuit court, summary disposition motions, and mediation, the case was tried by a jury in April, 1991. At the close of the plaintiff’s proofs, the defendant moved for a directed verdict, which was taken under advisement by the trial court. After the jury returned a verdict for the plaintiff, defendant renewed its motion for directed verdict, which the trial court granted. The Court of Appeals affirmed the trial court’s directed verdict. Although it concluded that the plaintiff had been constructively discharged, it agreed with the trial court that the plaintiff had not proven that age was a determining factor in the defendant’s decision. One judge dissented, arguing that the plaintiff had presented adequate evidence of discrimination by discrediting the defendant’s explanation of its decision. Citing St Mary’s Honor Center v Hicks, the dissenting judge argued that, once the employer’s explanation was discredited, the jury could, but was not required to, find that the real explanation for the employer’s decision was discriminatory. We granted leave to appeal and consolidated this case with McConnell v Rollins Burdick Hunter. n A claim of age discrimination may be shown under ordinary principles of proof by the use of direct or indirect evidence. Alternatively, many courts, including this one, have used the prima facie test articulated by the United States Supreme Court in McDonnell Douglas Corp v Green as a framework for evaluating age-discrimination claims. Originally applied to cases of race discrimination, the test has been modified to accommodate cases of age and sex discrimination. The modified McDonnell Douglas prima facie approach requires an employee to show that the employee was (1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. The purpose of the prima facie test is to 1) remove the most common nondiscriminatory reasons for the employer’s action, such as poor employee performance, and 2) to force the employer to articulate a nondiscriminatory reason for the discharge. Once the employer produces evidence of a nondiscriminatory reason for the discharge, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. After the employer has met its burden of production, the employee must proceed without the benefit of the earlier presumptions. However, elimination of the presumption does “not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case.” As the United States Supreme Court explained: A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextaal. Indeed, there may be some cases where the plaintiff’s initial evidence, combined with the effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation. [] Therefore, “the evidence and inferences that properly can be drawn from the evidence presented during the plaintiff’s prima facie case may be considered in determining whether the defendant’s explanation is pretextual.” Once the presumption drops out of the case, the plaintiff retains the ultimate burden of proving discrimination. Plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the discrimination was defendant’s true motive in making the adverse employment decision. To prevail, the employee must submit admissible evidence to prove that the employer’s nondiscriminatory reason was not the true reason for the discharge and that the plaintiff’s age was a motivating factor in the employer’s decision. Thus, the employee must prove that the employer’s explanation was a pretext for discrimination. The proofs offered in support of the prima facie case may be sufficient to create a triable issue of fact that the employer’s stated reason is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. “The strength of the prima facie case and the significance of the disbelieved pretext will vary from case to case depending on the circumstances. In short, everything depends on the individual facts.” Ultimately, the plaintiff will have the burden of producing evidence, whether direct or circumstantial, that proves that discrimination was a determining factor in the employer’s decision. Although the majority decision in Hicks appeared to be unambiguous, “many readers have found it to be otherwise.” The effect of Hicks on employer-brought summary judgment motions has been a matter of particular debate. Some employers have argued that, in order to defeat an employer’s motion for summary judgment, Hicks requires plaintiffs to offer substantial evidence both that the employer’s articulated reason was false and that the employer’s true reason was discriminatory — i.e., a “pretext-plus” standard. Some plaintiffs, on the other hand, have argued that once a prima facie case of discrimination is put forward, summary judgment for the employer never is appropriate, even if no evidence is put forward to refute the employer’s articulated nondiscriminatory reason, because the factfinder’s disbelief alone should be enough to permit a finding of pretext.[] We decline to adopt either extreme, and, instead, favor an intermediate position, which is the predominant view among the federal circuits. We would hold that when viewed in the light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could conclude that the employer’s stated reason is a pretext for discrimination for summary judgment to be precluded. Thus, plaintiff will not always present a triable issue of fact merely by rebutting the employer’s stated reason(s); “put differently, that there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination.” Furthermore, we note that in accordance with nine other federal circuits, “evidence sufficient to discredit a defendant’s proffered nondiscriminatory reasons for its actions, taken together with the plaintiff’s prima facie case, [may be] sufficient to support (but not require) a finding of discrimination.’’ “Where . . . either direct or circumstantial evidence from which a fact-finder could rationally conclude that the employer’s stated reason is a pretext for discrimination, summary judgment normally should be denied.” m In light of these principles, we turn to McConnell’s case. Defendants RBH and MMD argue that the plaintiff was not qualified to perform his job, and is therefore unable to satisfy the qualification element of the prima facie case. An employee is qualified if he was performing his job at a level that met the employer’s legitimate expectations. By all accounts, the plaintiff’s performance was less than stellar. Indeed, the plaintiff failed to generate enough revenue to pay his own salary. In his first full year, 1989, the plaintiff generated $70,505.11 in revenue while drawing a salary of $84,351.25 during the same period. He was terminated at the end of that year. Rather than evaluate plaintiff’s case at the prima facie stage, h
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