DONAJKOWSKI v. ALPENA POWER COMPANY

DURANCEAU v ALPENA POWER COMPANY Docket No. 226825. Submitted February 6, 2002, at Lansing. Decided February 26, 2002, at 9:15 A.M. Deedra Duranceau brought an action in the Apena Circuit Court against her employer, Apena Power Company, alleging gender discrimination under the Civil Rights Act, MCL 37.2101 et seq., and a violation of the Equal Pay Act, 29 USC 206(d)(1), relating to a wage freeze whose effect was limited to the single job classification in which the defendant employed females in its male-dominated unionized work force. The court, Joseph P. Swallow, J., granted summary disposition for the defendant. The plaintiff appealed. The Court of Appeals held: 1. The plaintiff failed to make a prima facie case of gender discrimination under the disparate treatment theory. Males in the plaintiff’s job classification were subject to the same wage freeze. 2. The plaintiff failed to make a prima facie case of gender discrimination under the disparate impact theory. The facially neutral policy embodied by the wage freeze did not result in similarly situated males being paid a higher wage than females. 3. Summary disposition of the claim based on the Equal Pay Act was proper. The plaintiff failed to meet her burden of proving that a male worker was paid more for work substantially similar to her job. Affirmed. Civil Rights — Employment Discrimination — Disparate Treatment — Disparate Impact. A prima facie case of discrimination under the Civil Rights Act can be made by proving either disparate treatment or disparate impact; disparate treatment requires a showing of intentional discrimination against protected employees or against an individual plaintiff; disparate impact requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class (MCL 37.2101 et seq.). Boyce, White, Werth & Mack (by Richard G. Boyce), for the plaintiff. The Fishman Group (by Steven J. Fishman, Paul D. Kramer, and Thomas A. Pinch), for the defendant. Before: Fitzgerald, P.J., and Hood and Sawyer, JJ. Per Curiam. Plaintiff Deedra Duranceau appeals as of right the order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant Alpena Power Company in this gender discrimination action brought pursuant to the Civil Rights Act, MCL 37.2101 et seq., and the Equal Pay Act, 29 USC 206(d)(1). We affirm. Defendant hired plaintiff into the general labor/meter reader classification in 1990. She started at $7.50 an hour and received regular increases until she reached the $10.50 maximum for her classification. When defendant and the union could not agree on a new contract in 1992, defendant instituted the terms of its last best offer and union members worked without a contract. Defendant’s last best offer contained the basic structure of its 1989 collective bargaining agreement insofar as it maintained the maximum wage for the general labor/meter reader classifications while providing increases for other classifications. The effect of these terms was to freeze the wages of the three female union members, all of whom were in the general labor/meter reader classification, while granting increases for the remaining classifications, which were populated by male union members. However, nonunion female employees also received pay increases during this period. In 1993, plaintiff, together with two other female employees who were employed as meter readers at the time the 1989 collective bargaining agreement was ratified, and the union filed suit against defendant, alleging sex discrimination in violation of the Civil Rights Act and Equal Pay Act. The trial court granted summary disposition of the discrimination claims. In an earlier appeal, this Court reversed the trial court’s order awarding summary disposition to defendant and dismissing with prejudice plaintiff’s claims. See Donajkowski v Alpena Power Co, 219 Mich App 441; 556 NW2d 876 (1996), aff’d on other grounds 460 Mich 243; 596 NW2d 574 (1999). This Court concluded that the trial court erred in granting summary disposition of the then plaintiffs’ discrimination claim because the plaintiffs established a prima facie case of discrimination under the disparate treatment theory and the disparate impact theory. Thus, this Court reversed the grant of summary disposition and remanded for further proceedings consistent with the opinion. On remand, defendant conducted additional discovery and again moved for summary disposition. Following a hearing on defendant’s motion, the trial court granted summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). A prima facie case of discrimination under the Civil Rights Act can be made by proving either disparate treatment or disparate impact. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538; 470 NW2d 678 (1991). Disparate treatment requires a showing of either intentional discrimination against protected employees or against an individual plaintiff. Disparate impact requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class. Lytle v Malady (On Rehearing), 458 Mich 153, 177, n 26; 579 NW2d 906 (1998). Plaintiff alleged that defendant’s act of freezing the wages of the one job classification in which all the female union employees were employed resulted in discrimination toward female employees. To avoid summary disposition under the disparate treatment theory, the plaintiff must present sufficient evidence to permit a reasonable juror to find that for the same or similar conduct the plaintiff was treated differently from a similarly situated male employee. Id. at 181-182. Gender must be proved to be a determining factor in the allegedly discriminatory decision. Town v Michigan Bell Telephone Co, 455 Mich 688, 706; 568 NW2d 64 (1997). Here, plaintiff primarily relies on two comments allegedly made by defendant’s president to establish a motive to discriminate on the basis of gender. However, one comment occurred three to four years before the pay scale modification and four to five years before plaintiff accepted employment with defendant. The statement was too vague and remote in time to raise a triable issue of fact. Phelps v Yale Security, Inc, 986 F2d 1020, 1026 (CA 6, 1993). The second comment, made five months after plaintiff was hired, recognized that those employees in the general labor classification were all women at the time the statement was made. Plaintiff asserts that this comment supports the allegation that defendant moved the male employees out of the meter reader positions before implementing the pay freeze for a combined general labor/meter reader classification so that only females would be affected by the pay freeze. However, plaintiff was the only female of seven employees hired in the general labor classification after the implementation of the wage freeze. Hence, similarly situated male employees were subject to the same pay scale as was plaintiff. Plaintiff failed to raise a triable issue of fact that gender was a determining factor in defendant’s decision to freeze the pay scale of the general labor/meter reader classification. Betty v Brooks & Perkins, 446 Mich 270, 281; 521 NW2d 518 (1994). To avoid summary disposition under the disparate impact theory, plaintiff had to show that female employees were burdened on account of their gender by some facially neutral practice. Roberson v Occupational Health Centers of America, Inc, 220 Mich App 322, 329-330; 559 NW2d 86 (1996). Here, the pay scale modifications challenged by plaintiff applied equally to employees in the classification, regardless of gender. Plaintiff’s allegation that defendant intentionally eliminated male employees from the general labor classification in order to reduce the compensation paid to female employees is not supported by plaintiff’s own testimony that six of the seven employees hired into the classification following the implementation of the wage freeze were male. Plaintiff failed to show that a facially neutral policy, that is, the pay range modification, resulted in similarly situated male employees being paid a higher wage than female employees. Plaintiff also contends that summary disposition of her equal pay claim was inappropriate. To avoid summary disposition of the equal pay claim, plaintiff needed to show that defendant paid lower wages to her than to male employees for equal work on jobs. However, plaintiff admitted that no comparable male employee hired into her job classification was paid more than she was. Hence, she failed to meet her burden of proving that a male worker was paid more for performing substantially similar work. Corning Glass Works v Brennan, 417 US 188; 94 S Ct 2223; 41 L Ed 2d 1 (1974). Affirmed. The two other female employees are no longer part of this lawsuit. They both stipulated an order dismissing their claims with prejudice. Plaintiff argued on remand that the law of the case doctrine precluded the trial court from considering defendant’s motion for summary disposition. On appeal, plaintiff does not specifically make this argument. Nonetheless, we note that additional discovery was taken that unveiled new facts and that the case that this Court previously relied on in its decision was reversed by the Supreme Court. See Lytle v Malady (On Rehearing), 458 Mich 153; 579 NW2d 906 (1998). Under these circumstances, the law of the case doctrine did not prevent the trial court from entertaining defendant’s motion for summary disposition.

DONAJKOWSKI v ALPENA POWER COMPANY Docket Nos. 183174, 183475. Submitted July 11, 1996, at Lansing. Decided October 11, 1996, at 9:50 A.M. Leave to appeal sought. Christina Donajkowski, Beth McDonald, and Deedra Duranceau brought an action in the Alpena Circuit Court against then-employer, Alpena Power Company, alleging sexual discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and a violation of the Equal Pay Act, 29 USC 206(d)(1), relating to a wage freeze pursuant to the terms of a collective bargaining agreement between the defendant and Local 286, Utility Workers of America affecting only those in their job classification, all of whom were women. The court, Joseph P. Swallow, J., allowed the defendant to bring a third-party action against the union for contribution in the event that the defendant was found liable to the plaintiffs. The court summarily dismissed the plaintiffs’ action and the defendant’s third-party action, ruling that the plaintiffs’ discrimination claim under state law is preempted by the Labor Management Relations Act (lmra), 29 USC 185(a). The plaintiffs appealed and the union appealed the trial court’s allowance of the defendant’s third-party action against the union for contribution. The appeals were consolidated. The Court of Appeals held: 1. The trial court erred in determining that the plaintiffs’ discrimination claim under state law is preempted by the lmra. State law issues are preempted by the lmra only when the application of the state law requires the interpretation of the collective bargaining agreement. The resolution of the plaintiffs’ discrimination claim does not require interpretation of the collective bargaining agreement inasmuch as the Civil Rights Act confers nonnegotiable rights that are independent of any right established by contract and the issues raised by the plaintiffs concern primarily factual questions involving the employer’s conduct and motivation. 2. The trial court erred in determining that the plaintiffs were required to allege some type of unfair labor practice as a condition precedent to their discrimination claim. The right to be free from sexual discrimination is a right independent of the collective bargaining process, and the plaintiffs are under no obligation to allege a defect in that process in order to maintain their discrimination claim. 3. The trial court erred in granting summary disposition of the plaintiffs’ discrimination claim. The plaintiffs established a prima facie case of discrimination under the disparate treatment theory and the disparate impact theory. With respect to the disparate treatment theory, the plaintiffs established that they are members of a class deserving of protection under the Civil Rights Act (i.e., women), that for the same or similar conduct they were treated differently from men, and that the defendant had a discriminatory motive. With respect to the disparate impact theory, the plaintiffs showed that an issue of material fact existed regarding whether the defendant’s policy of limiting the pay of those in the plaintiffs’ job classification affected women more harshly than men. 4. The trial court properly allowed the defendant to bring a third-party action against the union for contribution. Michigan law provides for a general right to contribution in tort actions, MCL 600.2925a; MSA 27A.2925(1), and discrimination based on sex is a tort. To the extent that the union argues that the defendant is an intentional tortfeasor, the union is a joint intentional tortfeasor because liability, if any, by the defendant to the plaintiffs would be a result of the bargained-for contract to which the union was a party. Contribution among joint intentional tortfeasors is allowed under the contribution statute. Affirmed in part, reversed in part, and remanded for further proceedings. C. A. Nelson, J, dissenting, stated that the trial court properly granted summary disposition of the plaintiffs’ discrimination claim, albeit for the wrong reason. Although the plaintiffs established that they are members of a class protected by the Civil Rights Act, they nevertheless failed to demonstrate that they were discriminated against when compared to men. The evidence indicated that Donajkowsld. and McDonald were being paid substantially more than the maximum pay rate, that plaintiffs were not barred from moving from their job classification to higher classifications, that the defendant awarded pay increases to female employees other than the plaintiffs, and that the defendant’s failure to raise the plaintiffs’ wages was due to economic considerations, not discrimination. 1. Labor Relations — Labor Management Relations Act — Preemption op State Law Claims. A state law claim alleging discrimination by an employer against an employee covered by a collective bargaining agreement is not preempted by the Labor Management Relations Act if the state law at issue confers a nonnegotiable right independent of any right established by the collective bargaining agreement and the application of the state law does not require the interpretation of the collective bargaining agreement (29 USC 185[a]). 2. Labor Relations — Civil Rights — Unfair Labor Practices. An employee has a right under the Civil Rights Act not to be discriminated against by an employer on the basis of sex; because the right exists independent of any rights under an applicable collective bargaining agreement, the employee need not allege an unfair labor practice in bringing an action under the Civil Rights Act for discrimination by the employer (MCL 37.2101 et seq.] MSA 3.548[101] et seq.). 3. Contribution — Civil Rights — Sexual Discrimination. The general right provided by Michigan law to contribution in tort actions extends to a defendant in an action for discrimination based on sex (MCL 600.2925a; MSA 27A.2925[1]). 4. Contribution — Joint Intentional Tortfeasors. Contribution among joint intentional tortfeasors is allowed under the contribution statute (MCL 600.2925a; MSA 27A.2925[1]). Boyce, White & Werth (by Richard G. Boyce), for Christina Donajkowski, Beth McDonald, and Deedra Duranceau. The Fishman Group (by Steven J. Fishman and Niels Eric Hansen), for Alpena Power Company. Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, RC. (by Mary Ellen Gurewitz), for Local 286, Utility Workers of America. Before: Neff, P.J., and Fitzgerald and C. A. Nelson , JJ. Circuit judge, sitting on the Court of Appeals by assignment. Neff, P.J. In Docket No. 183174, plaintiffs appeal as of right from the trial court’s order awarding summary disposition to defendant and dismissing with prejudice plaintiffs’ gender discrimination action brought pursuant to the Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq., and the Equal Pay Act, 29 USC 206(d)(1). In Docket No. 183475, Local 286, Utility Workers of America, AFL-CIO, appeals as of right from the same order, which also dismissed with prejudice defendant’s third-party complaint seeking contribution from the union in the event that defendant was found liable to plaintiffs. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion. I Plaintiff Christina Donajkowski began working for defendant on or about June 27, 1985, as a receptionist. In 1986, she became a meter reader and the first female member of the union. Plaintiff Beth McDonald commenced employment with defendant in an office position in June 1989 and transferred to meter reading on or about July 31, 1989. In the fall of 1989, Donajkowski, McDonald, and Tom Clearwood were full-time meter readers, and Ray Robb was employed in general labor. Donajkowski and Clearwood made $12.40 an hour, Robb made $11.93, and McDonald made $11.80. During the fall of 1989, defendant and the union negotiated a three-year collective bargaining agreement that created a new job classification known as “general labor/meter reader,” comprised of certain lower-skill jobs and having a wage range of $7.50 to $10.50 an hour. Donajkowski and McDonald, being members of the new classification, had their wages “frozen” at their existing pay rates even though they exceeded the maximum rate provided by the classification. The record indicates that both of these plaintiffs voted to ratify the agreement. Defendant stated that the new job classification was created to furnish more flexibility in its labor force and to help contain costs by establishing a market-sensitive “hire-in” wage rate. Plaintiff Deedra Duranceau hired in with defendant as a general laborer in the general labor/meter reader classification in March 1990 at $7.50 an hour and thereafter received step increases bringing her to the $10.50 an hour maximum rate for that classification. Consistent with the “wage freeze” policy for the new classification, defendant granted no pay increases for the general labor/meter reader employees, although the 1989 bargaining agreement provided for yearly 2½ percent pay increases for other workers. When defendant and the union could not agree on a new contract in the fall of 1992, defendant implemented the terms of its last offer and union members continued to work on that basis without a contract. These terms apparently included a yearly three percent pay increase for all bargaining unit employees except plaintiffs. Thus, the situation existing at the time of the September 8, 1994, hearing on defendant’s motion for summaiy disposition was that the general labor/meter reader classification was comprised solely of plaintiffs, whose wages remained frozen in contrast to other union members. Female employees who were not union members also received wage increases during this period. After the union was dismissed as a party-plaintiff pursuant to stipulation, defendant filed a third-party complaint seeking contribution from the union in the event defendant was found liable to plaintiffs. Plaintiffs and the union now challenge the trial court’s award of summary disposition to defendant. n We first examine plaintiffs’ appellate claims. We conclude that reversal is required. A This Court reviews de novo the trial court’s order under MCR 2.116(C)(10). Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 85-86; 514 NW2d 185 (1994). When conducting this review, we examine the entire record in a light most favorable to the nonmoving party to determine whether a record could be developed that would leave open an issue on which reasonable minds could differ. Id. Summary disposition is proper where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Id. However, a court may not weigh the evidence before it, or make findings of fact; if the evidence before it is conflicting, summary disposition is improper. Barnell v Taubman Co, Inc, 203 Mich App 110, 115; 512 NW2d 13 (1993). B We first address that aspect of the trial court’s ruling that dealt with plaintiffs’ claim based on the collective bargaining agreement. We find this ruling to have been in error. 1 The trial court determined that plaintiffs’ discrimination claims challenged the validity of the bargained-for contract and that they could not be brought in state court because the issues raised were preempted by federal law. In Betty v Brooks & Perkins, 446 Mich 270; 521 NW2d 518 (1994), our Supreme Court examined whether the plaintiff’s state law discrimination claim was preempted by the Labor Management Relations Act (LMRA), 29 USC 185(a). The Court, construing United States Supreme Court precedent, determined that state law issues are preempted by the lmra only when the application of the state law requires the interpretation of the collective bargaining agreement. Id. at 276-280. An important factor in determining whether contractual interpretation is involved is whether the state law at issue confers nonnegotiable rights on employers or employees independent of any right established by the contract. Id. Also, when the state court action involves primarily factual determinations, such as the conduct and motivation of the employer, the issues raised do not involve interpretation of the contract. Id. at 280. The Court specifically noted the unique nature of state discrimination claims, which generally require a primarily factual inquiry. Id. at 281-282. Here, we conclude that plaintiffs’ state law discrimination claims are not preempted by the lmra. First, the issues raised by plaintiffs involve rights that may not be waived by contract, i.e., the right to be free from sexual discrimination. Id. at 284. Further, the issues raised by plaintiffs do not require interpretation of the contract, but raise primarily factual questions. Plaintiffs claim that defendant intentionally discriminated against them, as evidenced by defendant’s conduct and statements, and claim that even if its conduct does not demonstrate discrimination, women were treated more harshly than men as a result of defendant’s implementation of the new, otherwise facially valid, classification. Because neither claim requires interpretation of the contract, but an investigation into defendant’s conduct and motives, we conclude that the trial court erred in determining that plaintiffs’ claims were barred by the LMRA. 2 The trial court also held that plaintiffs were required to allege some type of unfair labor practice as a condition precedent to a state law sexual discrimination claim. We find this ruling to have been in error. As noted above, the right to be free from sexual discrimination is a right independent of the collective bargaining process. Id. at 284. Accordingly, plaintiffs were under no obligation to allege a defect in that process, and the trial court erred to the extent it relied on the absence of such an allegation in granting summary disposition to defendant. c Next, we address the merits of plaintiffs’ claims. A discrimination claim can be based on two theories: (1) disparate treatment and (2) disparate impact. Lytle v Malady, 209 Mich App 179, 184; 530 NW2d 135 (1995). In order to prove disparate treatment, plaintiffs must prove either a pattern of intentional discrimination against a protected class or against themselves individually. Id. at 184-185. Disparate impact requires a showing that an otherwise facially neutral policy has a discriminatory effect. Id. i From our reading of the pleadings, we conclude that plaintiffs pursued both theories below. First, we conclude that the trial court erred in granting summary disposition with regard to plaintiffs’ disparate treatment theory. To avoid summary disposition under that theory, plaintiffs were required to establish a genuine issue of material fact regarding whether a prima facie case of discrimination existed, i.e., that they are members of a class deserving of protection under the statute and that, for the same or similar conduct, they were treated differently from men. Schultes v Naylor, 195 Mich App 640, 645; 491 NW2d 240 (1992). Further, plaintiffs must present evidence that defendant had a discriminatory motive. See Dep’t of Civil Rights ex rel Peterson v Brighton Area Schools, 171 Mich App 428, 439; 431 NW2d 65 (1988). As females, plaintiffs have satisfied the requirement that they be members of a statutorily protected class. The question becomes then, whether, when viewed in a light most favorable to plaintiffs, they could show at trial that they were treated differently from men performing the same or similar work. The facts in favor of granting summary disposition are that Donajkowski and McDonald are being paid substantially more than the maximum pay rate provided by the labor contract, that plaintiffs are not barred from moving out of their classification into higher-level jobs, and that defendant awarded pay increases to female employees other than plaintiffs. Evidence also existed, however, that before the existing contract classification was created, one of defendant’s officials stated that he wanted housewives to read meters. Indeed, at the time of this case, only women were full-time meter readers. Further, in the course of contract talks in 1992, the president of the union allegedly offered a two percent pay increase for all employees instead of a four percent increase for all employees except for the meter readers. This proposal was rejected by defendant. Also, after the 1989 contract in which the meter readers’ wages were frozen, a company official told the union president that the three women (the meter readers) were treated badly as a result of the contract. We find this latter piece of evidence particularly important. In contrast to this Court’s statement in Lytle, supra at 185, here, defendant was “so blatant as to announce its illegal motives.” Viewed in a light most favorable to plaintiffs, we conclude that this evidence is sufficient to allow a jury to conclude that plaintiffs, because of their status as women, were treated differently from their male counterparts. The evidence indicated that the intent was that the meter reader job be assigned to women and that that job classification was the only one to be singled out for a wage freeze. 2 To avoid summary disposition under the disparate impact theory, plaintiffs were required to create an issue of fact with regard to whether defendant’s policy of limiting the pay for meter readers affected women more harshly than it did men. See Brighton Area Schools, supra at 440. Under this theory, plaintiffs need not prove that defendant intended to discriminate. Id. We conclude that sufficient evidence existed to allow plaintiffs to create an issue of material fact under a disparate impact theory. Although the classification itself does not seem to be discriminatory, we conclude that under defendant’s implementation of that classification, women were treated more harshly than men. The evidence demonstrated that around the time the pay freeze was put into effect, all the men transferred out of the meter reader classification so that only women were left in that position. While some evidence exists suggesting that the enforcement of the wage freeze may have been nondiscriminatory, we find it important that in the three-year period relevant to this appeal, the meter reader classification consisted only of women, but before the implementation of the freeze, mainly men occupied the position of meter reader. Because conflicting evidence existed, summary disposition was improperly granted. Accordingly, we conclude that reversal is also required to the extent the trial court dismissed plaintiffs’ claims on a disparate impact theoiy. m We next address the union’s claim on appeal that the trial court improperly allowed defendant to implead the union to obtain contribution in plaintiffs’ cause of action. We conclude that the trial court properly allowed defendant’s contribution action. a The union first argues that federal law should govern this case and that, under federal law, contribution actions in civil rights claims such as this are not permitted. While we recognize the validity of the federal precedent on which the union relies, we conclude that it does not apply with equal force in Michigan. In Northwest Airlines, Inc v Transport Workers Union of America, 451 US 77; 101 S Ct 1571; 67 L Ed 2d 750 (1981), the Supreme Court determined that contribution claims could not be had in federal discrimination causes of action. The Court in Northwest Airlines based its decision on two grounds. First, the Court determined that no right to contribution existed in title VII or the Equal Pay Act. Id. at 91-95. In this context, the Court stated that employers are not members of a class to be protected under either of these two statutes. Id. at 92. As a separate issue, the Court also addressed whether a general right to contribution existed at federal common law, suggesting that, even though such a right did not exist under the statutes, if a common-law right existed, contribution co