Discrimination Cases

BENJAMIN F. McCALLUM, Plaintiff-Appellee v. NORTH CAROLINA COOPERATIVE EXTENSION SERVICE OF N.C. CAROLINA STATE UNIVERSITY and PATRICIA BARBER in her official capacity, Defendants-Appellants No. COA99-1434 (Filed 6 February 2001) 1. Appeal and Error— appealability — denial of summary judgment — collateral estoppel — substantial right The denial of a motion for summary judgment based on collateral estoppel may affect a substantial right and defendants’ appeal, although interlocutory, was properly before the Court of Appeals. 2. Collateral Estoppel and Res Judicata— collateral estop-pel — state constitutional claim — issues previously litigated in federal court Collateral estoppel may prevent the re-litigation of issues that are necessary to the decision of a North Carolina constitutional claim and that have been previously decided in federal court. Holding that state courts are never barred from hearing state constitutional claims, even when such issues have been previously litigated in the federal courts, would violate the underlying principle of judicial economy that precipitated the creation of the collateral estoppel and res judicata doctrines. 3. Collateral Estoppel and Res Judicata— collateral estop-pel — employment termination — discriminatory intent and improper motivation — previously litigated in federal court The trial court erred when it refused to grant defendants’ motion for summary judgment based on collateral estoppel of plaintiff’s claims of racial discrimination, equal protection violations, and retaliatory discharge. The issues of defendants’ discriminatory intent and improper motivation were tried in federal court after full discovery, with resolution of those issues being material and necessary to the judgment in that court. 4. Public Officers and Employees— state employee — termination — due process — employee at will An Agricultural Extension Agent was barred from bringing a due process claim arising from his discharge because he was an employee-at-will with no cognizable property right in his employment. A letter appointing defendant County Extension Director upon which plaintiff relied to contend that there were mutually explicit understandings of continued employment revealed no understanding regarding plaintiffs status as an Agricultural Extension Agent, a document concerning tenure for the County Extension Director merely expressed the possibility of continued employment as an agent if plaintiff failed to perform satisfactorily in the Director position, and, although the plaintiffs termination was not first discussed with the Richmond County Board of Commissioners, as had been agreed in a memorandum of understanding between the Board and defendants, the Board’s role did not extend to actual authority over the extension service’s ability to discharge employees. Appeal by defendants from order entered 13 July 1999 by Judge Michael E. Beale in Richmond County Superior Court. Heard in the Court of Appeals 21 September 2000. In August 1995, defendant North Carolina Cooperative Extension Service (NCCES) of North Carolina State University discharged plaintiff Benjamin F. McCallum from his employment as an Agricultural Extension Agent. In April 1997, plaintiff filed a complaint in Richmond County Superior Court against NCCES and the District Extension Director for Richmond County, alleging retaliatory discharge and equal protection violations under the United States Constitution, race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, and a violation of his rights under Article I, §§ 1, 12, 14, and 19 of the North Carolina Constitution. Defendants removed the action to the United States District Court for the Middle District of North Carolina. After the completion of discovery, defendants moved for summary judgment. On 4 January 1999, the United States District Court granted defendants’ motion for summary judgment on all claims based on violations of federal law and dismissed without prejudice the claims based on alleged violations of the North Carolina Constitution. In granting summary judgment, the federal court stated that plaintiff had failed to show any discriminatory intent by NCCES. Further, the federal court found that plaintiff could not show a causal connection between any constitutionally protected activities and his discharge from employment. In February 1999, plaintiff filed a second complaint in Richmond County Superior Court, in which he again alleged that he was discharged from employment in violation of the North Carolina Constitution. Defendants moved for summary judgment, contending that plaintiffs claims for violation of equal protection rights, racial discrimination, and retaliatory discharge were barred under the doctrine of collateral estoppel because of the federal court adjudications, and that plaintiffs due process claim was barred because plaintiff was an at-will employee with no property right in his employment. Defendants further contended that, if plaintiff were subject to the State Personnel Act, then he had an alternate remedy under that Act which he had not exhausted. On 13 July 1999, the trial court denied defendants’ motion for summary judgment, and they appealed to this Court. McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff appellee. Attorney General Michael F. Easley, by Assistant Attorney General Celia Grasty Lata, for defendant appellants. HORTON, Judge. The denial of summary judgment is not a final judgment, but rather is interlocutory in nature. We do not review interlocutory orders as a matter of course. Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh’g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). If, however, “the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate reviewf,]” we may review the appeal under N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1). N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). The moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party. Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Whether a substantial right is affected is determined on a case-by-case basis. Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982). We have ruled that “appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.” Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999); Derwort v. Polk County, 129 N.C. App. 789, 790, 501 S.E.2d 379, 380 (1998). As a state agency, NCCES is shielded by sovereign immunity from suits based on torts committed while performing a governmental function. Therefore, to the extent defendants’ appeal is based on an affirmative defense of immunity, this appeal is properly before us. Further, our Supreme Court has ruled that the denial of a motion for summary judgment based on the defense of res judicata (or claim preclusion) is immediately appealable. Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993). Under the doctrine of res judicata, a final judgment on the merits in a prior action precludes a second suit involving the same claim between the same parties. Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). Denial of a summary judgment motion based on res judicata raises the possibility that a successful defendant will twice have to defend against the same claim by the same plaintiff, in frustration of the underlying principles of claim preclusion. Bockweg, 333 N.C. at 491, 428 S.E.2d at 161. Thus, the denial of summary judgment based on the defense of res judicata can affect a substantial right and may be immediately appealed. Id. Like res judicata, collateral estoppel (issue preclusion) is “ ‘designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally.’ ” King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973) (quoting Commissioner v. Sunnen, 333 U.S. 591, 599, 92 L. Ed. 898, 907 (1948)). Under collateral estoppel, parties are precluded from retrying fully litigated issues that were decided in any prior determination, even where the claims asserted are not the same. McInnis, 318 N.C. at 428, 349 S.E.2d at 557. The denial of summary judgment based on collateral estoppel, like res judicata, may expose a successful defendant to repetitious and unnecessary lawsuits. Accordingly, we hold that the denial of a motion for summary judgment based on the defense of collateral estoppel may affect a substantial right, and that defendants’ appeal, although interlocutory, is properly before us. Summary judgment is appropriate when there is no genuine issue as to any material fact, and a party is entitled to a judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1999). Defendants assert, on two separate grounds, that they are entitled to such judgment. Defendants first contend that issues dispositive of plaintiffs claims of racial discrimination, equal protection violations and retaliatory discharge have already been litigated to final judgment by the federal court, and that collateral estoppel bars re-litigation of these issues. Second, they argue that plaintiff was an at-will employee with no property right in his employment. We will consider each argument separately. I. Collateral Estoppel Under the doctrine of collateral estoppel, when an issue has been fully litigated and decided, it cannot be contested again between the same parties, even if the first adjudication is conducted in federal court and the second in state court. King, 284 N.C. at 359, 200 S.E.2d at 807. Plaintiff argues, however, that collateral estoppel cannot bar a state constitutional claim based on a denial of equal protection or due process, regardless of previous federal court adjudications, because only North Carolina courts can “ ‘[answer] with finality’ ” “ ‘[w]hether rights guaranteed by the Constitution of North Carolina have been provided....'" Evans v. Cowan, 122 N.C. App. 181, 184, 468 S.E.2d 575, 577, disc. review denied, appeal retained, 343 N.C. 510, 471 S.E.2d 634, affirmed, 345 N.C. 177, 477 S.E.2d 926 (1996) (quoting State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260 (1984)). Plaintiff contends that since “[o]ur courts . . . when construing provisions of the North Carolina Constitution, are not bound by opinions of the federal courts ‘construing even identical provisions in the Constitution of the United States[,]’ ” defendants’ collateral estoppel argument fails. Evans, 122 N.C. App. at 183-84, 468 S.E.2d at 577. Plaintiff also bases his argument upon our recent decision in City-Wide Asphalt Paving, Inc. v. Alamance County, 132 N.C. App. 533, 513 S.E.2d 335, appeal dismissed and disc. review denied, 350 N.C. 826, 537 S.E.2d 815 (1999), which held that neither res judicata nor collateral estoppel barred plaintiff’s state constitutional claims, even though plaintiff’s claims under the federal constitution had been previously litigated in federal court. We find neither Evans nor City-Wide controlling in the instant case. Unlike the case before us, the issue before the Evans Court was “whether plaintiff’s state constitutional claims against defendants are barred by res judicata”—not by collateral estoppel. Evans, 122 N.C. App. at 183, 468 S.E.2d at 577. In Evans, plaintiff’s claims, based on violations of both the federal and the state constitutions, were initially litigated in federal court, which granted summary judgment to defendants as to all but the state constitutional claims. On remand to state court, defendants argued that plaintiffs claims under the state constitution were identical to plaintiffs claims under the federal constitution, and therefore plaintiffs subsequent litigation was barred under the doctrine of res judicata. Affirming that North Carolina courts “ ‘have the authority to construe our own constitution differently from the construction ... of the Federal Constitution,’ ” this Court held that “the claims asserted by the plaintiff in the State Court on the basis of the North Carolina Constitution are not identical to the claims asserted by the plaintiff in the Federal Court on the basis of the United States Constitution . . . .” Evans, 122 N.C. App. at 184, 468 S.E.2d at 577. Thus, concluded the Court, the doctrine of res judi-cata did not bar plaintiffs claim. We also find the decision in City-Wide distinguishable from the instant case. There, plaintiff appealed its state constitutional law claims to this Court from the trial court’s grant of defendants’ summary judgment motion. Confusing the principles of collateral estop-pel with those of res judicata, defendants argued that, because plaintiffs claims under the U.S. Constitution had been previously determined, and because those claims were identical to plaintiffs claims based on violations of the North Carolina Constitution, plaintiff was collaterally estopped from re-litigating “identical issues . . . determined by the federal court.” City-Wide, 132 N.C. App. at 536, 513 S.E.2d at 337. Defendants failed to specify, however, what the “identical issues” decided by the federal court were. This Court rejected defendants’ argument, reaffirming Evans’ principle that claims brought under the North Carolina Constitution must be independently determined from claims brought under the U.S. Constitution. Thus, neither res judicata nor collateral estoppel barred plaintiffs claims. Like the defendants in City-Wide, plaintiff in the instant case conflates the doctrines of collateral estoppel and res judicata. The CityWide defendants argued that, because the claims in the federal and state courts were essentially identical, the issues to be decided by each court were necessarily the same and collateral estoppel barred their re-litigation. Here, plaintiff contends that, because his claims in federal and state court are different, the issues cannot be the same, and that therefore collateral estoppel cannot apply. We disagree. Although plaintiff’s present state court claims are different from those brought in federal court, his state court claims may contain issues previously litigated and determined in the federal court. Thus, plaintiff may be collaterally estopped from re-litigating these issues. To hold otherwise, as plaintiff suggests we should, would mean that state courts are never barred from hearing state constitutional claims or issues pertinent to such claims, even when such issues have been previously litigated in the federal courts. Such a finding would directly violate the underlying principle of judicial economy that precipitated the creation of the collateral estoppel and res judicata doctrines as expressed in King and Bockweg. We reaffirm, therefore, that collateral estoppel may prevent the re-litigation of issues that are necessary to the decision of a North Carolina constitutional claim and that have been previously decided in federal court. To determine whether collateral estoppel prevents the re-litigation of issues presented by plaintiff in the instant case, we must first ascertain whether issues raised by the present litigation and dispositive of plaintiffs claim are identical to issues decided by the federal court. Collateral estoppel applies when the following requirements are met: (1) [t]he issues to be concluded must be the same as those involved in the prior action; (2) in the prior action, the issues must have been raised and actually litigated; (3) the issues must have been material and relevant to the disposition of the prior action; and (4) the determination made of those issues in the prior action must have been necessary and essential to the resulting judgment. King, 284 N.C. at 358, 200 S.E.2d at 806. Here, plaintiff asserts claims under the North Carolina Constitution against defendants for racial discrimination, equal protection violations and retaliatory discharge. We will consider the applicability of collateral estoppel for each claim in turn. To prevail upon a claim for racial discrimination in either a federal or state court in North Carolina, a plaintiff must establish improper motivation on defendant’s part by proffering evidence of discriminatory intent. Dept. of Correction v. Gibson, 308 N.C. 131, 138, 301 S.E.2d 78, 83 (1983) (adopting federal guidelines for discri+mination cases in North Carolina and noting that the plaintiff carries the burden of showing intentional discrimination by defendant). In the instant case, the issue of whether defendants intentionally discriminated against plaintiff was fully litigated in the federal court. After reviewing all of the evidence, the federal court found that plaintiff failed to present “any ‘direct evidence of a purpose [by defendants] to discriminate [against plaintiff] or circumstantial evidence of sufficiently probative force to raise a genuine issue of material fact.’ ” The federal court then granted defendants’ motion for summary judgment on plaintiff’s claim for racial discrimination. We hold that the issue of discriminatory intent by defendants was conclusively determined in the federal court, and thus plaintiff is collaterally estopped from re-litigating that issue in this action. Plaintiff’s failure in federal court to establish discriminatory intent by defendants also bars litigation of his equal protection violation claim in state court. In order to prevail upon an equal protection violation claim under the North Carolina Constitution, “the burden is upon the complainant to show the intentional, purposeful discrimination upon which he relies.” Kresge Co. v. Davis, 277 N.C. 654, 662, 178 S.E.2d 382, 386 (1971). As the federal court has already conclusively ruled against plaintiff upon the issue of discriminatory intent by defendants, collateral estoppel prevents the plaintiff from proceeding on this claim. Plaintiff also alleges a claim against defendants for retaliatory discharge. During his employment with NCCES, plaintiff was President of the North Carolina Association of Extension Minorities (NCAEM), a group organized to promote African-American interests within the extension agency. Plaintiff asserts that in his capacity as President, he often “spoke out on matters of public concern regarding trends and activities within the Extension Service that were adverse to the interests of African American extension agents and farmers.” Plaintiff argues that defendants fired him for his NCAEM leadership, thus violating his constitutionally protected rights of freedom of speech and association. In challenging an adverse employment decision for violation of constitutional rights, an employee must show that the “protected activity was a substantial or motivating factor in the employer’s decision.” Lenzer v. Flaherty, 106 N.C. App. 496, 509, 418 S.E.2d 276, 284, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Although evidence of retaliation may often be completely circumstantial, the causal connection between the protected activity and the discharge “must be something more than speculation.” Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 237, 382 S.E.2d 874, 882, disc. review denied, 325 N.C. 704, 388 S.E.2d 449 (1989). In the instant case, plaintiff argued in the federal court that his membership in NCAEM, among other things, triggered defendants’ decision to fire him. The federal court found no evidence, direct or indirect, to support plaintiffs claim, stating that “[n]o reasonable jury could find that McCallum’s activities with the NCAEM . . . were a ‘motivating part’ of his termination . . . .” Thus, the federal court ruled against plaintiff on the exact issue that plaintiff now raise

DeBROW v CENTURY 21 GREAT LAKES, INC (AFTER REMAND) Docket No. 114615. Decided January 17, 2001. On application by the plaintiff for leave to appeal, the Supreme Court, in lieu of granting leave, reversed in part the judgments of the Court of Appeals and the circuit court and remanded the case to the circuit court for further proceedings. Rehearing denied post, 1223. Paul DeBrow brought an action in the Oakland Circuit Court against his former employer Century 21 Great Lakes, Inc., and others, alleging, inter alia, age discrimination. The court, Robert C. Anderson, X, granted summary disposition for the defendants. The Court of Appeals, Michael X Kelly, P.J., and N. O. Holowka, X (Young, X, dissenting in part), affirmed in an unpublished opinion per curiam (Docket No. 161048). The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of Lytle v Malady (On Rehearing), 458 Mich 153 (1998). On remand, the Court of Appeals, Michael X Kelly, P.J., and Gribbs and Hoekstra, JX, again affirmed in an unpublished opinion per curiam. The plaintiff seeks leave to appeal. In an opinion per curiam, signed by Chief Justice Corrigan, and Justices Cavanagh, Weaver, Kelly, and Taylor, the Supreme Court held-. Intentional discrimination can be proven by direct and circumstantial evidence. Where direct evidence is offered to prove discrimination, a plaintiff is not required to establish a prima facie case within the framework of McDonnell Douglas Co-rp v Green, 411 US 792 (1973), and the case should proceed as an ordinary civil matter. The shifting burden of proofs as contemplated in McDonnell Douglas and Texas Dep’t of Community Affairs v Burdine, 450 US 248 (1981), only applies to discrimination claims based solely on indirect or circumstantial evidence of discrimination. In this case, the plaintiff testified in his deposition regarding direct evidence of age animus, which bears directly on the intent with which his employer acted in choosing to demote him. The evidence cannot be ignored in the context of a motion for summary disposition and precludes dismissal of the plaintiffs age claim. If believed by the trier of fact, it suggests that plaintiffs age was a factor in the mind of the employer at the point the plaintiff was removed from his position. Justice Markman, concurring, stated that the only evidence of age discrimination presented by the plaintiff consists of a single comment allegedly made to him by his supervisor during a meeting at which he was terminated. It is ultimately for the factfinder to determine whether the comment is better understood in its literal or colloquial sense. Particularly in the context of discrimination cases predicated upon age, there are a wide variety of innocent comments that, taken out of context and divorced from their meaning in common parlance, could be used by a plaintiff to defeat a motion for summary disposition. The requirements of MCR 2.116(C)(10) will not invariably be satisfied by a plaintiff who alleges remarks of this kind by an employer or a supervisor.'Although an employer or a supervisor’s comments must be viewed in the light most favorable to a plaintiff at the summary judgment stage, the proofs nevertheless must be sufficient to allow the trier of fact to reasonably conclude that age animus was a motivating factor resulting in an adverse employment action. Reversed in part and remanded. Justice Young took no part in the decision of this case. Sommers, Schwartz, Silver & Schwartz, P.C. (by Donald J. Gasiorek and Carl B. Downing), for the plaintiff-appellant. Brady Hathaway, P.C. (by John F. Brady and David A. Hardesty), for defendant Century 21 Great Lakes, Inc. W. Gregory Shanaberger for defendant-appellee Century Franchise Association. AFTER REMAND Per Curiam. After the plaintiff was fired from his job, he sued his former employer and others. He alleged seven species of misconduct, including age discrimination. The circuit court granted summary disposition in favor of the defendants, and the Court of Appeals has twice affirmed. Because the plaintiff has shown enough to prosecute a claim of age discrimination, we reverse in part the judgments of the Court of Appeals and the circuit court. i At the age of forty-eight, plaintiff Paul DeBrow was removed from an executive position in the Century 21 real estate network. He sued his former employer, alleging wrongful discharge and unlawful discrimination. When the employer moved for summary disposition, the circuit court granted the motion and denied rehearing. The Court of Appeals affirmed over the partial dissent of Justice Young, who was a member of the panel. On application to this Court, we remanded the case to the Court of Appeals for reconsideration in light of Lytle v Malady (On Rehearing), 458 Mich 153; 579 NW2d 906 (1998). After the Court of Appeals again affirmed, the plaintiff filed another application for leave to appeal in the Supreme Court. n This opinion will focus on a single issue. Did the circuit court err when it granted the former employer’s motion for summary disposition with regard to the claim that it unlawfully discriminated against the plaintiff on the basis of age? In this instance, summary disposition was granted under MCR 2.116(C)(10). Such a motion tests the factual support of a plaintiff’s claim, and is subject to de novo review. Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999); Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). In its initial opinion of affirmance, the Court of Appeals discussed this case in light of the shifting burdens of proof commonly applied in employment-discrimination cases. The second opinion of the Court of Appeals used a similar analysis. This approach has its roots in McDonnell Douglas Corp v Green, 411 US 792, 802-805; 93 S Ct 1817; 36 L Ed 2d 668 (1973), and has been employed in countless subsequent decisions. The McDonnell Douglas approach was adopted because many plaintiffs in employment-discrimination cases can cite no direct evidence of unlawful discrimination. The courts therefore allow a plaintiff to present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination. The present case falls outside that common pattern, however. Here, the plaintiff has direct evidence of unlawful age discrimination. The plaintiff testified during his deposition that, in the conversation in which he was fired, his superior told him that he was “getting too old for this shit.” We recognize that this remark may be subject to varying interpretations. It might reasonably be taken as merely an expression of sympathy that does not encompass a statement that the plaintiffs age was a motivating factor in removing him from his position as an executive. However, it is well established that, in reviewing a decision on a motion for summary disposition under MCR 2.116(C)(10), we must consider the documentary evidence presented to the trial court “in the light most favorable to the nonmoving party.” Harts v Farmers Ins Exchange, supra at 5. According to the plaintiff’s deposition testimony, the remark was made during the conversation in which the plaintiff’s superior informed him that he was being fired. Considered in the light most favorable to the plaintiff, this remark could be taken as a literal statement that the plaintiff was “getting too old” for his job and this was a factor in the decision to remove him from his position. While a factfinder might be convinced by other evidence regarding the circumstances of the plaintiffs removal that it was not motivated in any part by the plaintiffs age and that the facially incriminating remark was no more than an expression of sympathy, such weighing of evidence is for the factfinder, not for this Court in reviewing a grant of a motion for summary disposition. The shifting burdens of proof described in McDonnell Douglas are not applicable if a plaintiff can cite direct evidence of unlawful discrimination. Trans World Airlines, Inc v Thurston, 469 US 111, 121; 105 S Ct 613; 83 L Ed 2d 523 (1985). This point was well explained by Justice Young in his dissent from the first opinion of the Court of Appeals. We agree with his analysis, set forth below, and adopt it as our own. Intentional discrimination can be proven by direct and circumstantial evidence. Lytle v Malady, 209 Mich App 179, 185; 530 NW2d 135 (1995).[] Where direct evidence is offered to prove discrimination, a plaintiff is not required to establish a prima facie case within the McDonnell Douglas framework, and the case should proceed as an ordinary civil matter. Trans World Airlines v Thurston, 469 US 111, 121; 105 S Ct 613; 83 L Ed 2d 523 (1985); Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986); Lytle, supra, 209 Mich App 186, n 3. The shifting burden of proofs as contemplated in McDonnell Douglas and Burdine only apply to discrimination claims based solely on indirect or circumstantial evidence of discrimination. Thurston, supra, 469 US 121; Lytle, supra, 209 Mich App 185. Plaintiff testified in his deposition that when he was being removed as president, his superior, Century 21’s Great Lakes Executive Vice President, Robert Hutchinson, told plaintiff “you’re too old for this shit.” This statement is direct evidence of age animus. Moreover, because it was allegedly made in the context of the discussion in which plaintiff was informed that he was being removed as president, it bears directly on the intent with which his employer acted in choosing to demote him. The [Court of Appeals] majority ignores this evidence as unworthy of credibility. Neither this Court nor the trial court can make factual findings or weigh credibility in deciding a motion for summary disposition. Manning v Hazel Park, 202 Mich App 685, 689; 509 NW2d 874 (1993). This evidence cannot be ignored in the context of a motion for summary disposition and precludes, in my judgment, dismissal of the plaintiff’s age claim. See Lytle, supra, 209 Mich App 187-188. Clearly, the statement by Vice President Hutchinson, if believed by the trier of fact, suggests that plaintiff’s age was a factor in the mind of his employer at the point plaintiff was removed from his position. See Matras, supra, 424 Mich 682. The plaintiffs former employer argues that the disputed statement was a “stray remark[]” that cannot give rise to liability. See Price Waterhouse v Hopkins, 490 US 228, 277; 109 S Ct 1775; 104 L Ed 2d 268 (1989) (opinion of O’Connor, J., concurring in the judgment). In the circumstances of the present case, however, that is an argument for the finder of fact to consider. For these reasons, we reverse in part the judgments of the Court of Appeals and the circuit court. We remand this case to the circuit court for further proceedings limited to the plaintiff’s claim that his former employer unlawfully discriminated against him on the basis of age. MCR 7.302(F)(1). Corrigan, C.J., and Cavanagh, Weaver, Kelly, and Taylor, JJ., concurred. Mr. DeBrow was employed by Century 21 Great Lakes, Inc. From materials at hand, it appears that Century 21 has a three-tiered organizational structure. Century 21 Real Estate Corporation Is a nationwide company that franchises its system and trademarks to regional organizations such as Mr. DeBrow’s former employer. In turn, Century 21 Great Lakes arranges for individual brokers to become Century 21 franchisees. We are told that Century 21 Great Lakes handled franchises in Michigan, Ohio, and parts of two other states. The plaintiff was apparently offered other employment by Century 21 Great Lakes. He declined the offer, however, and proceeded on the basis that his employment had been terminated. In an amended complaint, he added claims against four other defendants (three individuals and an association of Century 21 franchisees). The Court of Appeals has affirmed the circuit court’s decision to grant summary disposition in favor of these additional defendants. Unpublished per curiam opinion, issued August 13, 1996 (Docket No. 161048). 459 Mich 899 (1998). In this opinion, the portions of Lytle on which we rely were supported by a majority of this Court. See the partial concurrence of former Chief Justice Mallett, 458 Mich 186. Unpublished per curiam opinion, issued April 13, 1999 (Docket No. 161048). MCR 2.116(C)(10). Writing in the context of a plaintiffs claim that an employer refused to rehire a laid-off employee because of racial animus, the U.S. Supreme Court formulated in McDonnell Douglas four elements that compose a prima facie case of racial discrimination. 411 US 802. The four factors have been restated, in more general terms, for use in cases involving, inter alia, claims of age discrimination: To establish a prima facie case of [age] discrimination, plaintiff must prove by a preponderance of the evidence that (1) she was a member of the protected class; (2) she suffered an adverse employment action, in this case, demotion and then discharge; (3) she was qualified for the position; but (4) she was discharged under circumstances that give rise to an inference of unlawful discrimination. [Lytle, 458 Mich 172-173, 177.] Both the U.S. Supreme Court and this Court have cautioned that these factors are “not to be applied mechanically, but with due deference to the unique facts of the individual case.” 458 Mich 173, n 19; see also 411 US 802, n 13. If the plaintiff submits such a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. 458 Mich 173-174; 411 US 802. Upon such a showing, the burden returns to the plaintiff to show that the employer’s stated reason for its action was actually a mere pretext. 458 Mich 174; 411 US 804. Justice Young’s partial dissent was authored in 1996, before this Court decided Lytle on appeal, 456 Mich 1; 566 NW2d 582 (1997), and on rehearing, 458 Mich 153; 579 NW2d 906 (1998). McDonnell Douglas v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Texas Dep’t of Community Affairs v Burdine, 450 US 248; 101 S Ct 1089; 67 L Ed 2d 207 (1981). As such, I disagree with the majority’s statement that plaintiff failed to set forth a prima facie case of age discrimination due to insufficient evidence that he was replaced by a younger person. As the United States Supreme Court recently stated, discrimination laws protect persons not classes. O’Connor v Consolidated Coin Caterers Corp, 517 US 308; 116 S Ct 1307; 134 L Ed 2d 433 (1996). In all other respects, leave to appeal is denied. Markman, J. (concurring). The only evidence of age discrimination presented by plaintiff consists of a single comment allegedly made to him by his superior during a meeting at which he was terminated. During this meeting, Robert Hutchinson, an official of Century 21 Great Lakes, told plaintiff that he was “getting too old for this sh — .” There are at least two conceivable interpretations of this comment: (1) that it constitutes what the majority describes as “direct evidence” of age animus in the context of an adverse employment decision taken by defendant, or (2) that it represents a colloquial expression which does not necessarily communicate the speaker’s perspective that the object of his remark is literally too aged to perform a particular task, but rather empathizes with the other person by indicating that, on the basis of his experience, education, or level of achievement, he should not have to tolerate certain difficult circumstances in which he has become enmeshed. I concur in the result reached by the majority because I agree that it is ultimately for the factfinder to determine which of these alternative interpretations best describes Hutchinson’s remarks, to wit, whether these remarks are better understood in their literal or in their colloquial senses. However, I write separately to express my concern that, particularly in the context of discrimination cases predicated upon age, there are a wide variety of innocent comments that, taken out of context and divorced from their meaning in common parlance, could be used by a plaintiff to defeat a motion for summary disposition. For example, if made in rough proximity to an adverse employment action and if construed literally, the following comments might be understood to constitute evidence of age discrimination: - “That’s just old hat” - “You can’t teach an old dog new tricks” - “He’s an old hand at this sort of thing” - “Your thinking is just old school” - “You’re old enough to know better” - “You belong to the good-old-boys network” Each of these phrases, similar to the one uttered in the present case, have colloquial meanings in the contemporary language that are distinct from their literal meanings and that are generally unconnected with any serious intimation of age animus. I join here with the majority because we lack any specific information concerning the context of defendant’s comment, and because there may be circumstances in which it is not unreasonable to accord the comment a literal construction. However, I do not believe that the requirements of MCR 2.116(C)(10) will invariably be satisfied by a plaintiff who alleges remarks of this kind by an employer or a supervisor. Although an employer or a supervisor’s comments must be viewed in “the light most favorable” to a plaintiff at the summary judgment stage, the proofs nevertheless must be sufficient to allow the trier of fact to reasonably conclude that age animus was a motivating factor resulting in an adverse employment action. Lytle v Malady (On Rehearing), 458 Mich 153, 176; 579 NW2d 906 (1998). Whether a comment removed from the ordinary vernacular would constitute “direct evidence” of discrimination or merely circumstantial evidence does not, in my judgment, alter the validity of this proposition. Young, J., took no part in the decision of this case.

KROHN v SEDGWICK JAMES OF MICHIGAN, INC Docket No. 211111. Submitted July 5, 2000, at Detroit. Decided January 12, 2001, at 9:05 A.M. Norine Krohn brought an action in the Oakland Circuit Court against Sedgwick James of Michigan, Inc., and Mark Miller, seeking damages as a result of the termination of her employment with Sedgwick James of Michigan and alleging that the termination was the result of age-based discrimination in violation of the provisions of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The plaintiff had been hired in 1981, had held various positions, and had eventually become senior vice president of human resources. In 1993, Michael Rastigue, who was then the managing executive for Sedgwick James of Michigan and the plaintiffs supervisor, hired a group of employees from a competing firm. The plaintiff alleged that Rastigue, in referring to this new group of employees, had remarked “out with the old and in with the new.” In July 1995, Rastigue was transferred to another office, and defendant Miller became managing executive for Sedgwick James of Michigan. In June 1996, the plaintiff, then fifty-seven years old, and several other employees were dismissed, allegedly as part of a downsizing effort brought on by financial necessity. Before trial, the defendants filed a motion in limine to exclude certain evidence, including any reference to Rastigue’s remark. The court, Robert C. Anderson, J., granted the defendants’ motion to exclude Rastigue’s remark. Following a trial at which the thrust of the defense was that the plaintiff’s employment had been terminated because of financial necessity, the jury returned a verdict of no cause of action. The plaintiff appealed, claiming among other things error as a result of the trial court’s exclusion of testimony concerning Rastigue’s remark. The Court of Appeals held'. 1. Courts are reluctant to overturn a jury’s verdict, particularly if there is ample evidence to justify the jury’s decision, and will not do so on the basis of an erroneous evidentiary ruling unless refusal to take this action would be inconsistent with substantial justice. 2. After the plaintiff in an employment discrimination case involving alleged wrongful termination establishes a prima facie case of termination as the result of unlawful discrimination, the defendant may present evidence of any legitimate nondiscriminatory reason for terminating the plaintiff’s employment. If the defendant carries the burden of establishing a nondiscriminatory reason, the burden then shifts to the plaintiff to show that the reason articulated by the defendant was not the true reason, but rather was a mere pretext for discrimination. 3. Because the defendant had asserted the defense that the termination of the plaintiffs employment was the result of legitimate financial reasons, the plaintiff had the burden of proving that the defendants’ articulated reason was not the true reason, but rather was a mere pretext for discrimination. Accordingly, the issues with respect to the admission of testimony concerning the statement made by the defendants’ agent were whether the statement was relevant to the establishing of unlawful discrimination and, if the statement was relevant, whether its relevance was substantially outweighed by the risk of unfair prejudice. 4. In employment discrimination cases, federal courts have adopted a four-part test to assess the relevancy of isolated or stray remarks. In determining the admissibility of evidence of such remarks, a trial court should consider whether the disputed remarks were made by the decisionmaker or by an agent of the employer uninvolved in the challenged decision, whether the disputed remarks were isolated or part of a pattern of biased comments, whether the disputed remarks were made close in time or remote from the challenged decision, and whether the disputed remarks were ambiguous or were clearly reflective of discriminatory bias. 5. The record shows that although the disputed remark was made by Rastigue while he was the plaintiff’s supervisor, Rastigue was not the person who decided that the plaintiff’s employment should be terminated. The remark was not directed toward the plaintiff, but was rather made in reference to recently hired employees, and it was made more than two years before the plaintiff’s employment was terminated. Under these circumstances, any discriminatory intent was ambiguous. Accordingly, because the remark was an ambiguous, isolated, and temporally remote statement by a person who was not involved in the decision to terminate the plaintiff’s employment, the proffered evidence was not relevant, and the trial court did not abuse its discretion by excluding that evidence. 6. Even if the remark were found to have some minimal relevance, the probative value would have been substantially outweighed by the harm likely to result from its admission. Affirmed. Evidence — Civil Rights — Employment Discrimination — Stray Remarks. A court assessing the relevancy of proffered evidence of remarks asserted to show discrimination in an employment discrimination case should consider whether the disputed remarks were made by the decisionmaker or by an agent of the employer uninvolved in the challenged decision, whether the disputed remarks were isolated or part of a pattern of biased comments, whether the disputed remarks were made close in time or remote from the challenged decision, and whether the disputed remarks were ambiguous or were clearly reflective of discriminatory bias. Stark and Gordon (by Deborah L. Gordon and Carol A. Laughbaum), for the plaintiff. Cox, Hodgman & Giarmarco, P.C. (by Andrew T. Baran and William H. Horton), for the defendants. Before: Saad, P.J., and Cavanagh and Meter, JJ. Saad, P.J. I. nature of the case In this age-based employment discrimination case, plaintiff seeks to overturn the jury’s verdict because of the trial court’s evidentiary ruling made pursuant to defendants’ motion in limine. Defendants asked the trial court to exclude the statement “out with the old and in with the new” made by plaintiff’s former supervisor. Plaintiff contends that this is an ageist statement that constitutes direct evidence that she was fired because of her age as part of defendants’ plan to terminate older employees and replace them with younger employees. Conversely, defendants claim that the remark is irrelevant because it (1) is ambiguous, (2) was an isolated remark, (3) was made long before plaintiffs termination, and (4) was made by a manager who had no involvement in plaintiffs termination. Further, defendants say that any possible relevancy of this remark is substantially outweighed by its potential prejudicial effect. The trial court agreed with defendants’ position and ruled the proffered evidence inadmissible. Because this precise issue has not been addressed by our appellate courts in a published opinion, this narrow issue is one of first impression and one on which we will seek guidance from federal precedent. Accordingly, we have reviewed a line of authority from the federal courts known as stray remarks cases. The federal courts in these employment discrimination cases assess the relevancy of stray remarks by reviewing the following factors: (1) Were the disputed remarks made by the decisionmaker or by an agent of the employer uninvolved in the challenged decision? (2) Were the disputed remarks isolated or part of a pattern of biased comments? (3) Were the disputed remarks made close in time or remote from the challenged decision? (4) Were the disputed remarks ambiguous or clearly reflective of discriminatory bias? We hold that our courts should review these factors in ruling on the relevancy of similar comments, and we further hold that, here, the trial court properly excluded the disputed remark. n. FACTS AND PROCEEDINGS Defendant Sedgwick James of Michigan, Inc., hired plaintiff as an executive secretary in April 1981. Plaintiff held several positions while at the company and, in 1995, became senior vice president of human resources while continuing to work as an executive secretary. During her employment, plaintiff worked under various supervisors, including Michael Rastigue, who was managing executive for Sedgwick James of Michigan during the early to mid-1990s. In February 1993, Rastigue hired a group of employees, including defendant Mark Miller, from a competing firm, Marsh & McClennan. Miller later took over Rastigue’s job as managing executive in July 1995, after Rastigue transferred to another office. After company executives discovered that Sedgwick James of Michigan was operating at a significant financial deficit, Miller terminated the employment of plaintiff, along with the employment of several other employees, as part of a downsizing effort in June 1996. Following her dismissal, plaintiff filed this age discrimination claim against Miller, Sedgwick James of Michigan, and its parent company, Sedgwick James, Inc. Plaintiff, fifty-seven years old at the time her employment was terminated, alleged that defendants fired her because of her age in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Before trial, defendants filed a motion in limine to exclude certain potential evidence, including Rastigue’s remark “out with the old and in with the new.” According to plaintiff’s deposition testimony, Rastigue made this comment in reference to the new group of employees hired from Marsh & McClennan. The trial court granted defendants’ motion to exclude the remark, but did not articulate its reasons for doing so on the record. That is, the trial court did not specify whether it excluded the proffered evidence as irrelevant or as more prejudicial than probative. At trial, plaintiff presented evidence of her qualifications and history with Sedgwick James of Michigan as well as statistical evidence regarding the companies’ termination of employment of employees over the age of forty. In response, defendants presented several present and former employees of the Sedgwick James companies who testified about financial problems in the Michigan office resulting, in part, from the expense of highly paid employees who were performing low-level work. The defense witnesses further testified that personnel changes and reorganization were necessary for Sedgwick James of Michigan to remain in operation. Defense witnesses testified that, despite these changes, the company continued to lose money and executives determined that significant revenue could be saved by transferring the accounting and human resources functions of Sedgwick James of Michigan to the Chicago office, thereby eliminating several positions, including plaintiff’s. The defense witnesses denied plaintiff’s allegation that plaintiff’s age was a factor in their decision to terminate her employment. The jury apparently accepted defendants’ business reasons for the termination of plaintiffs employment and returned a verdict of no cause of action. m. ANALYSIS A. STANDARD OF REVIEW Plaintiff avers that the trial court’s exclusion of Rastigue’s comment so prejudiced her case that the jury’s verdict should be reversed. Our courts axe reluctant to overturn a jury’s verdict, particularly if there is ample evidence to justify the jury’s decision, and we will not do so on the basis of an erroneous evidentiary ruling unless refusal to take this action would be inconsistent with substantial justice. MCR 2.613(A); MRE 103(a); Chmielewski v Xermac, Inc, 216 Mich App 707, 710-711; 550 NW2d 797 (1996), aff’d 457 Mich 593; 580 NW2d 817 (1998). It is well established that this Court reviews a trial court’s evidentiary rulings for an abuse of discretion and, in making that determination, we consider the facts on which the trial court acted to determine whether an unprejudiced person “would say that there is no justification or excuse for the ruling made.” Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 282; 608 NW2d 525 (2000). In general, in an employment discrimination case, after the plaintiff establishes a prima facie case, the defendant presents evidence of its legitimate, nondiscriminatory reason for terminating the plaintiff’s employment. Kerns v Dura Mechanical Components, Inc (On Remand), 242 Mich App 1, 12; 618 NW2d 56 (2000). Thereafter, the plaintiff bears the burden of proving that the employer’s articulated reason was not the true reason, but rather a mere pretext for discrimination. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 359; 597 NW2d 250 (1999). Here, plaintiff would have presumably offered Rastigue’s remark to persuade the jury that defendants’ asserted reason for the termination of her employment (financially induced downsizing) was untrue and that her age made a difference in defendants’ decision to terminate her employment. The analysis used to determine the admissibility of an agent’s remark is particularly important in this type of employment discrimination case because the central question the jury must decide is not what occurred, but why the action was taken by the employer. Because the controlling issue is motivation (the reason for the decision), courts must be particularly careful in making determinations regarding the relevancy of remarks by agents of corporate defendants. Obviously, remarks indicating bias by the decisionmaker directed at the discharged employee would be highly probative when made at or about the time of the decision. On the other hand, allegedly biased but, in fact, ambiguous remarks by an agent who is not involved in the decision and made remote in time from the decision would hardly be relevant and certainly would be highly prejudicial precisely because motivation is the key issue in this type of employment discrimination case. Thus, our review of whether the remark was properly excluded requires more than merely labeling the comment a “stray remark.” The important issues here are whether the employee’s remark is relevant to show that defendants made the employment decision on the basis of plaintiff’s age and whether, if relevant, the remark’s relevance is substantially outweighed by the risk of unfair prejudice. B. RELEVANCE Because a work-related comment may be uttered in myriad factual contexts, a simple definition of an inadmissible stray or isolated remark is not feasible and would not facilitate a proper determination of its relevance at trial. The proffered evidence may range from an innocuous remark made by an employee with no involvement in the alleged adverse employment action long before such action takes place to a blatantly discriminatory comment made by a decisionmaker at the time the adverse action occurs. A trial court’s determination of the probative value of a remark depends on where it falls on that continuum. Accordingly, a trial court must consider several factors to determine whether the comment in issue is relevant to show that an employer took the challenged action because of the employee’s age. As stated above, because our state courts have not articulated those factors in a published opinion, we look to various federal court decisions for guidance. C. STRAY REMARKS CASES In Cooley v Carmike Cinemas, Inc, 25 F3d 1325 (CA 6, 1994), the defendant appealed from a jury verdiet in favor of the plaintiff and argued that the district court abused its discretion in admitting certain ageist remarks made by the defendant’s president. Id. at 1327-1329. In deciding the issue, the Sixth Circuit Court of Appeals emphasized that the admissibility of the proffered comments requires the court to balance the relevancy of the comments against their prejudicial effect. Id. at 1330. The Court reviewed various cases defining stray remarks and set forth several factors to determine the admissibility of statements offered to show an employer’s discriminatory bias. Id. at 1330-1331. Specifically, the Court opined: In age discrimination cases, this court has examined statements allegedly showing employer bias by considering whether the comments were made by a decision maker or by an agent within the scope of his employment; whether they were related to the decision-making process; whether they were more than merely vague, ambiguous, or isolated remarks; and whether they were proximate in time to the act of termination. [Id. at 1330.] Other federal courts have considered these factors in a number of procedural contexts to determine the probative value of an agent’s remarks. In Lawrence v Syms Corp, 969 F Supp 1014 (ED Mich, 1997), the plaintiff attempted to defeat the employer’s motion for summary judgment by raising a genuine issue of material fact to rebut the employer’s assertion that it had terminated the plaintiff’s employment because of poor performance. Id. at 1017. The plaintiff presented his supervisor’s comment “that the defendant was ‘out to get’ the oldest store managers who were well paid, and replace them with younger, more energetic peopie.” Id. at 1018. The court concluded that, because the comment was made up to two years before the plaintiff’s employment was terminated, it was isolated and remote in time and its meaning was ambiguous. Id. Further, although the plaintiff’s supervisor made the comment, no evidence showed that it was related to the decision to discharge the plaintiff. Id. Therefore, the court ruled that the remark did not raise an issue of material fact showing the employer’s discriminatory motivation because it was isolated, remote in time, vague, and unrelated to the discharge decision. Id. In Phelps v Yale Security, Inc, 986 F2d 1020 (CA 6, 1993), the plaintiff appealed a district court’s grant of judgment notwithstanding the verdict in favor of the defendant. At trial, the plaintiff presented evidence that her age was a factor in her dismissal by presenting, among other evidence, comments by her supervisor, Ray McCulloch. Id. at 1025. The plaintiff alleged that, when she was transferred to McCulloch’s office from her job as the plant manager’s secretary, McCulloch told her she was too old to be the plant manager’s secretary and that he later said that her upcoming fifty-fifth birthday “was a cause for concern.” Id. In considering whether the manager’s remarks established that the defendant was motivated by the plaintiff’s age, the court opined: Age-related comments referring directly to the worker may support an inference of age discrimination. However, as Yale Security argues, isolated and ambiguous comments “ ‘are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination.’ ” Because [the manager] made the statements nearly a year before the layoff, the comments were made too long before the layoff to have influenced the termination decision. Moreover, the statement regarding [the plaintiff’s] birthday was too ambiguous to establish the necessary inference of age discrimination. [Id. at 1025-1026 (citations omitted).] Thus, regardless of the procedural context, federal courts have consistently held that isolated or vague comments made by nondecisionmakers long before the adverse employment decision is made are not probative of an employer’s discriminatory motivation. See, also, McDonald v Union Camp Corp, 898 F2d 1155, 1161, n 3, 1162 (CA 6, 1990) (comment by a person other than the decisionmaker that “a senior salesman at age 55 ‘could be cheaply replaced with a younger salesman’ ” does not raise an issue of material fact regarding the employer’s motives); Stone v Autoliv ASP, Inc, 210 F3d 1132, 1140 (CA 10, 2000) (remark that “ ‘at [the plaintiff’s] age, it would be difficult to train for another position’ ” or “ ‘difficult to find a new job’ ” was insufficient to survive a motion for summary judgment because it was unrelated to the termination decision and was too ambiguous to show discriminatory animus); Shorette v Rite Aid of Maine, Inc, 155 F3d 8, 13-14 (CA 1, 1998

TIMKO v OAEWOOD CUSTOM COATING, INC Docket No. 212927. Submitted May 3, 2000, at Detroit. Decided January 2, 2001, at 9:00 A.M. Leave to appeal sought. Ernest M. Tünko brought an action in the Wayne Circuit Court against Oakwood Custom Coating, Inc., alleging that he had been discriminated against in violation of the provisions of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., on the basis of age as a result of the defendant’s termination of his employment. At the time the defendant hired the plaintiff, the plaintiff signed an employment application that provided that he would bring any action arising out of his employment or termination of employment, including claims under state and federal civil rights statutes, within 180 days after the event giving rise to the claim and that he waived any limitation periods to the contrary. The defendant moved for summary disposition on the basis that the plaintiff had not brought action within 180 days of his termination. The court, Robert L. Ziolkowski, J., granted summary disposition for the defendant, finding that the 180-day limitation period in the contractual agreement was reasonable. The court denied the plaintiff’s motion for reconsideration, reiterating that the shortened contractual period was reasonable and holding that the employment application did not constitute an adhesion contract. The plaintiff appealed. The Court of Appeals held: 1. The opinion of the Supreme Court in Herweyer v Clark Hwy Services, Inc, 455 Mich 14 (1997), should not be read to hold that a six-month period of limitation contained in an employment agreement is unreasonable and, therefore, unenforceable. The Herweyer Court specifically indicated that it was expressing no opinion regarding the reasonableness of any shortened period agreed to by the parties. The Herweyer Court did, however, restate the accepted principle that parties may contract for a limitation period shorter than that set by statute provided that the abbreviated period remained reasonable. The Court further noted that a limitation period is reasonable if it allows a claimant sufficient opportunity to investigate and file an action, is not so short as to amount to the practical abrogation of the right of action, and does not act to bar an action before the loss or the damage can be ascertained. 2. The plaintiff failed to show which of the criteria reiterated in Herweyer would render the 180-day limitation in this matter not reasonable. The limitation period in this matter is similar to contractual limitation periods held to be reasonable by federal courts applying Michigan law and is consistent with some state and federal statutory limitation periods. Because the limitation period is not inherently unreasonable and because the plaintiff failed to show that the shortened period unfairly deprived him of the opportunity to file an action, the 180-day period qualifies as reasonable. 3. The enforceability of a contract depends on consideration and not mutuality of obligation. The terms of an employment application constitute part of an employee’s and employer’s contract of employment. Here the defendant clearly provided the plaintiff consideration to support enforcement of the terms of the application, specifically employment and wages. 4. Because the 180-day limitation in the employment application agreement was found to be reasonable, the agreement is not rendered unenforceable as a contract of adhesion, because courts will not invalidate contracts as contracts of adhesion where the challenged provision is reasonable. Affirmed. McDonald, P.J., dissenting, stated that the 180-day limitation set forth in the employment application is an unreasonably short period for bringing a civil rights claim. Although the Supreme Court in Herweyer v Clark Hwy Services, Inc, 455 Mich 14 (1997), stated that it was disavowing any expression of opinion whether the six-month limitation period contained in the contract in that case was reasonable, other language in that opinion and the disposition ordered by the Court in that case strongly suggest that the Court found the shortened period was not reasonable. Under the facts of this case, the shortened limitation period was unreasonable. 1. Limitation of Actions — Employment Contracts — Reasonableness. Parties may contract for a limitation period shorter than that set by statute provided that the abbreviated period remains reasonable; a limitation period is reasonable if it allows a claimant sufficient opportunity to investigate and file an action, is not so short as to amount to the practical abrogation of the right of action, and does not act to bar an action before the loss or the damage can be ascertained. 2. Contracts — Enforceability — Mutuality. The enforceability of a contract depends on consideration and not mutuality of obligation. 3. Contracts — Contracts of Adhesion. Courts will not invalidate contracts as contracts of adhesion where the challenged provision is reasonable. Sommers, Schwartz, Silver & Schwartz, P.C. (by David F. Greco), for the plaintiff. The Fishman Group (by Donald H. Scharg and Paul D. Kramer), for the defendant. Before: McDonald, P.J., and Gage and Talbot, JJ. Gage, J. Plaintiff appeals as of right the trial court’s grant of summary disposition for defendant. The trial court granted defendant summary disposition of plaintiff’s age discrimination claims pursuant to MCR 2.116(C)(7) (statute of limitations). We affirm. On August 26, 1996, plaintiff, at age seventy-one, began tool and die work for defendant. On August 28, 1996, plaintiff signed a three-paragraph portion of defendant’s employment application labeled “Authorization and Understanding.” Among other things, the understanding provided for plaintiff’s agreement that the parties’ employment relationship was at will, and in bold print explained, in relevant part, as follows: I agree that any action or suit against the firm arising out of my employment or termination of employment, including, but not limited to, claims arising under State or Federal civil rights statutes, must be brought within 180 days of the event giving rise to the claims or be forever barred. I waive any limitation periods to the contrary. Plaintiff’s term of employment lasted for approximately five and one-half months, until February 7, 1997, when defendant discharged plaintiff allegedly because plaintiff unsatisfactorily performed his job. On March 3, 1998, plaintiff sued defendant, alleging unlawful age discrimination under the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq. Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that because plaintiff filed suit more than 180 days after his term of employment ended the 180-day period of limitation precluded plaintiff’s claim. Plaintiff responded that Herweyer v Clark Hwy Services, Inc, 455 Mich 14; 564 NW2d 857 (1997), stood for the proposition that a six-month period of limitation placed within an employment agreement was unreasonable and therefore unenforceable. The trial court concluded that the 180-day period of limitation satisfied the requirement under Michigan law that a shortened period of limitation must qualify as reasonable and granted defendant summary disposition because plaintiff filed suit beyond the 180-day period. Plaintiff moved for reconsideration on the bases that no mutuality of obligation supported defendant’s attempted enforcement of the 180-day period contained within the employment application and that defendant’s standard form employment application represented a contract of adhesion. Plaintiff also reiterated that Michigan law viewed as unreasonable a six-month period of limitation. The trial court found plaintiff bound by the terms of the employment application. The court also restated its finding that the 180-day period of limitation was reasonable and, consequently, determined that the employment application did not constitute an adhesion contract. Accordingly, the court denied plaintiffs motion for reconsideration. Plaintiff on appeal challenges the trial court’s decision to apply the 180-day period of limitation contained within the employment application. We review de novo a trial court’s summary disposition ruling. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Defendant sought summary disposition based on MCR 2.116(C)(7), which provides that “[t]he claim is barred because of . . . statute of limitations.” When reviewing a motion for summary disposition under MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual allegations, affidavits, or other documentary evidence and construe them in the plaintiff’s favor. If no facts are in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a plaintiff’s claim is barred by the statute of limitations is a question for the court as a matter of law. [Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 77; 592 NW2d 112 (1999) (citation omitted).] Plaintiff first asserts that the 180-day period of limitation is unreasonable according to Herweyer, supra. In Herweyer, the plaintiff signed an employment contract with the defendant that described a six-month period of limitation for bringing employment-related claims against the defendant, and additionally provided that “ ‘if any of the above commitments by me is ever found to be legally unenforceable as written, the particular agreement concerned shall be limited to allow its enforcement as far as legally possible.’’ ” Herweyer, supra at 16 (emphasis added). The instant plaintiff reasons that the Supreme Court would not have considered the question whether the Herweyer parties’ above highlighted savings provision applied had it not preliminarily determined that the six-month period there involved qualified as unreasonable. Plaintiff’s argument, however, plainly lacks merit. The Supreme Court “granted [Herweyer]’s application in order to determine whether the contract’s saving provision can be read to require any claims to be brought within the minimum reasonable period.” Id. at 18-19. The Court specifically enunciated that “we express no opinion regarding the reasonableness of any shortened period agreed to by the parties.” Id. at 18. The Supreme Court in Herweyer restated the accepted principle that parties may contract for a period of limitation shorter than the applicable statute of limitation provided that the abbreviated period remains reasonable. The period of limitation “is reasonable if (1) the claimant has sufficient opportunity to investigate and file an action, (2) the time is not so short as to work a practical abrogation of the right of action, and (3) the action is not barred before the loss or damage can be ascertained.” Id. at 20, citing Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 127; 301 NW2d 275 (1981). To this point, no published opinion by this Court or the Supreme Court has specifically addressed the reasonableness of a shortened, 180-day period of limitation in the context of an employment agreement. Plaintiff does not address how the instant, shortened period of limitation violates any of the three prescribed considerations. Applying Michigan law, at least two federal courts have found that a six-month period of limitation contained within an employment agreement qualified as reasonable. In Myers v Western-Southern Life Ins Co, 849 F2d 259, 260 (CA 6, 1988), the plaintiff signed an employment contract agreeing “ ‘[n]ot to commence any action or suit relating to your employment . . . more than six months after the date of termination of such employment, and to waive any statute of limitation to the contrary.’ ” More than sixteen months after the plaintiff retired, he filed a constructive discharge lawsuit against the defendant, alleging age and handicap discrimination in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq., and the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.) MSA 3.550(101) et seq. The United States District Court for the Eastern District of Michigan (Feikens, J.) granted the defendant’s motion for summary judgment based on the six-month period of limitation. Myers, supra at 260. The Sixth Circuit Court of Appeals on appeal addressed the reasonableness of the abbreviated period of limitation. Judge Keith, writing for the court, restated the Michigan Supreme Court’s reasonableness requirements, see Camelot, supra, then concluded as follows: There is nothing inherently unreasonable about a six-month limitations period. For example, six months is the time limit within which claims must be brought for breach of the duty of fair representation under the Labor Management Relations Act. 29 USC § 160(b); DelCostello v International Brotherhood of Teamsters, 462 US 151; 103 S Ct 2281; 76 L Ed 2d 476 (1983). We cannot say that, under the Camelot criteria, the six-month limitation in this case is less reasonable than that applied to fair representation claims. [Myers, supra at 262.] Accordingly, the Court of Appeals affirmed the district court’s grant of summary judgment to the defendant. Id. In Perez v Western-Southern Life Ins Co, 1987 WL 16355 (ED Mich, 1987), Judge Newblatt of the United States District Court for the Eastern District of Michigan considered briefly the reasonableness of a six-month period of limitation according to Michigan law. The plaintiff therein also signed the defendant’s employment contract that provided for a six-month period of limitation regarding any employment-related claim. The defendant moved for summary judgment on the basis of the contractual six-month period of limitation. Although the parties did not specifically address whether the shortened period qualified as reasonable under the test described in Camelot, supra, Judge Newblatt concluded “that it is reasonable especially in the light of the six-month period of limitations imposed by section 301 of the Labor Management Relations Act, 29 USC § 301.” 1987 WL 16355, *1. Judge Newblatt further observed that [t]hough the three-year period of limitations for injuries to a person under MCL[] 600.5805(7) [MSA 27A.5805(7)] is applicable to employees alleging discrimination in employment practices, . . . there is nothing in either the Elliott-Larsen Act or § 600.5805(7) which prohibits a shorter reasonable period agreed upon by the parties nor which evinces any state public policy to the contrary. [Perez, supra at *2, n 2.] The court granted the defendant summary judgment. Id. at *2. We agree with Judge Keith in Myers, supra at 262, that no inherent unreasonableness accompanies a six-month period of limitation. We find that in this case the 180-day period of limitation afforded plaintiff adequate time to investigate and file his age discrimination claim. Both Michigan law and federal law provide for six-month or even shorter periods of limitation in the context of various employment actions. See MCL 423.216(a); MSA 17.455(16)(a) [“No complaint shah issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the commission . . . .”]; MCL 15.363(1); MSA 17.428(3)(1) [“A person who alleges a violation of th[e Whistleblowers’ Protection A]ct may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act.”]; see also 29 USC 160(b) (“[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board . . . .”). Furthermore, both Michigan and federal law apply six-month periods of limitation even where an employee’s civil rights are involved. See 1999 AC, R 37.4(6) (requiring that a complaint to Michigan’s Civil Rights Commission “shall be filed within 180 days from the date of the occurrence of the alleged discrimination, or within 180 days of the date when the occurrence of the alleged discrimination was or should have been discovered”); see also 42 USC 2000e-5(e)(l) (“A charge [of an unlawful employment practice] under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . .”). The instant record reveals no explanation why the 180-day period of limitation at issue did not provide plaintiff a sufficient opportunity to investigate and to file this action within the abbreviated period, and no indication exists that the 180-day period effectively abrogated plaintiff’s right to bring his age discrimination claims. Moreover, we find the approximate six-month period of limitation wholly adequate to permit plaintiff to ascertain any alleged discrimination that may have occurred during the approximate five-and-one-half-month term of plaintiff’s employment with defendant. Because the 180-day period of limitation does not constitute an inherently unreasonable amount of time and because plaintiff failed to otherwise demonstrate that the shortened period unfairly deprived him of the opportunity to file his instant claims, we conclude that the 180-day period qualifies as reasonable. Camelot, supra; Myers, supra. Plaintiff next argues that the 180-day period of limitation cannot be enforced because defendant is “attempting to enforce the provisions contained in the employment application as if it is a contract, a contract where the Defendants have absolutely no obligation.” “The enforceability of a contract depends, however, on consideration and not mutuality of obligation.” Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 600; 292 NW2d 880 (1980); 1 Restatement Contracts, 2d, § 79, p 200. This Court previously has recognized that the terms of an employment application constituted part of an employee’s and employer’s contract of employment. Butzer v Camelot Hall Convalescent Centre, Inc, 183 Mich App 194, 200; 454 NW2d 122 (1989); Eliel v Sears, Roebuck & Co, 150 Mich App 137, 140; 387 NW2d 842 (1985). Here, defendant clearly provided plaintiff consideration to support enforcement of the terms of the application, specifically employment and wages. 1 Restatement Contracts, 2d, § 71, p 172 (consideration may constitute a return promise or a performance, including an act, a forbearance, or “the creation, modification, or destruction of a legal relation”); Black’s Law Dictionary (7th ed), p 300 (defining consideration as “[sjomething of value [such as an act, a forbearance, or a return promise] received by a promisor from a promisee”). Lastly, plaintiff alternatively argues that the parties’ employment contract constitutes an unenforceable adhesion contract because plaintiff could not negotiate the terms of the standard form contract drafted by defendant. However, because we have found the 180-day period of limitation reasonable, plaintiff’s adhesion contract argument must fail. Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118, 157; 596 NW2d 208 (1999) (“Courts will not invalidate contracts as adhesion contracts where the challenged provision is reasonable.”). In conclusion, because undisputed facts establish plaintiff’s assent to a reasonable 180-day period of limitation regarding employment-related claims, the trial court properly found that defendant was entitled to summary disposition of plaintiff’s complaint, which was filed almost thirteen months after plaintiff’s termination. Affirmed. Talbot, J., concurred. Because it appears that the various defendant names appearing in the case caption represent alternate appellations for the same entity, when referring to this entity we utilize the singular “defendant.” The Supreme Court cited its order granting leave to appeal, which “limited [the issue to be considered] to whether, if the contractual limitation period contained in the employment contract was unreasonable, the limitation co

SMITH v GOODWILL INDUSTRIES OF WEST MICHIGAN, INC Docket No. 218795. Submitted November 8, 2000, at Grand Rapids. Decided December 1, 2000, at 9:15 A.M. Tamera Smith brought an action in the Muskegon Circuit Court against Goodwill Industries of West Michigan, Inc., alleging discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., and violation of the federal Family and Medical Leave Act (fmla), 29 USC 2601 et seq. The action was based on the plaintiff’s dismissal from employment when she returned to work following a maternity leave taken pursuant to the fmla. The defendant alleged that the plaintiff’s position had been eliminated under a corporate restructuring plan. The court, James M. Graves, Jr., J., granted summary disposition in favor of the defendant. The plaintiff appealed. The Court of Appeals held: 1. The court properly applied the burden-shifting analysis first established in McDonnell Douglas Corp v Green, 411 US 792 (1973), in granting summary disposition of the claim alleging violation of the fmla. The plaintiff established a prima facie case of a violation of the fmla, the defendant then met its burden of demonstrating that there was a nondiscriminatory reason for its actions, and the plaintiff then failed to meet her burden of establishing a genuine issue of material fact regarding whether the defendant’s stated reason for eliminating the plaintiff’s position was unworthy of belief. The defendant raised the issue whether the plaintiff would have been entitled to her position had she not taken the leave and, consequently, the question of intent was relevant, and the McDonnell Douglas analysis was appropriately applied. 2. The court erred in requiring the plaintiff to establish a prima facie case of gender discrimination by showing that she was replaced by a person who was not a member of her protected class. The court erred in granting summary disposition of this claim without considering the plaintiff’s argument that the defendant acted discriminatorily by treating her different from a similarly situated male employee. However, reversal is not required because the plaintiff failed to establish that she was treated different from a similarly situated male employee. 3. The plaintiff failed to meet her burden with regard to her pregnancy discrimination claim that was based on disparate treatment. The plaintiff failed to show that the defendant had a discriminatory intent and therefore failed to establish a prima facie case. Affirmed. 1. Motions and Orders — Summary Disposition — Family and Medical Leave Act. The burden-shifting analysis applicable in some employment discrimination actions that was established in McDonnell Douglas Gorp v Green, 411 US 792 (1973), applies in cases involving alleged violations of the Family and Medical Leave Act; in the summary disposition context, the plaintiff employee must raise a genuine issue of material fact with regard to each element of the prima facie case; once that has been accomplished the burden shifts to the defendant employer to offer a legitimate nondiscriminatory reason for its employment decision; if the defendant produces such a legitimate nondiscriminatory reason, the burden reverts to the plaintiff to show that there is a genuine dispute of material fact regarding whether the defendant’s proffered reason for the challenged action is pretextual or unworthy of belief (29 USC 2601 et seq.). 2. Motions and Orders — Summary Disposition — Family and Medical Leave Act. The question of intent may become relevant once one of the parties to an action alleging a violation of the Family and Medical Leave Act raises the issue whether a right, benefit, or position is one to which the plaintiff employee would have been entitled had the plaintiff not taken the leave or whether the defendant employer has taken adverse action against the plaintiff for having exercised a right under the act; in a summary disposition context, once the question of intent is relevant, application of the burden-shifting analysis established in McDonnell Douglas Corp v Green, 411 US 792 (1973), is appropriate (29 USC 2601 et seq.). 3. Civil Rights — Employment Discrimination — Gender Discrimination. A female employee who brings an action under the Civil Rights Act alleging that her employer acted discriminatorily by treating her different from a similarly situated male employee must establish a prima facie case by showing that she was a member of a protected class, that she was subject to an adverse employment action, that she was qualified for the position, and that others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 4. Civil Eights — Employment Discrimination — Pregnancy. A plaintiff in an action under the Civil Rights Act alleging employment discrimination attributable to the plaintiff’s pregnancy and basing the claim on a “disparate treatment” theory must establish a prima facie case by showing the defendant had a discriminatory motive (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Warner Norcross & Judd LLP (by Paul T. Sorensen and Daniel P. Ettingef), for the defendant. Before: Neff, P.J., and Murphy and Griffin, JJ. Per Curiam. Plaintiff appeals as of right from the circuit court’s grant of summary disposition in favor of defendant. We affirm. Plaintiff was hired by defendant in December 1993 as director of placement services. In that position, plaintiff was responsible for managing defendant’s “community placement program,” which locates employment for disabled persons. On December 8, 1995, plaintiff took a maternity leave pursuant to the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. When plaintiff returned to work as scheduled on March 11, 1996, her supervisor, Dan Christensen, informed her that her position had been eliminated under a corporate restructuring plan, and that, consequently, she was dismissed from employment. According to Richard Carlson, defendant’s president, defendant began considering a reorganization of its management staff in 1994 because of changes mandated by welfare reform, school-to-work legislation, and the federal Job Training Partnership Act, PL 97-300, 96 Stat 1322, especially under directives of the Michigan Jobs Commission. The restructuring plan would streamline defendant’s management structure to reflect an integrated service delivery system, rather than the previous categorical program model. The plan eliminated the positions of director of placement, assessment counselor, director of assessment, and work activities program director, which were geared to specific programs, and created a new community services manager position to oversee all community services operations. The community services manager assumed, in part, the directors’ responsibilities. Diana Briggs, defendant’s assessment counselor, was notified in late September 1995 that she would be dismissed as a result of corporate restructuring. According to Christensen’s affidavit, the management restructuring plan was incorporated into defendant’s October 1995 proposed budget and was approved by defendant’s board of directors in February 1996. Lynne Spencer subsequently was hired as the community services manager. Richard Tejchma, the director of assessment, whose position was eliminated, was assigned a position as director of vocational evaluations. In October 1997, plaintiff filed the instant action against defendant. In count I of her complaint, plaintiff alleged that defendant discriminated against her on the basis of her gender and her pregnancy in violation of the Civil Rights Act (cra). In count II, plaintiff alleged that defendant violated the fmla by dismissing her because of her decision to take maternity leave. The trial court granted summary disposition in favor of defendant on both counts pursuant to MCR 2.116(0X10). i Plaintiff first argues that the trial court improperly granted summary disposition of her fmla claim. We disagree. We review the trial court’s grant of summary disposition de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). Subsection 2614(a)(1) of the fmla, 29 USC 2614(a)(1), provides: (a) Eestoration to position (1) In general Except as provided in subsection (b) of this section, any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave— (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. Plaintiff argues that summary disposition was improper because defendant conceded that plaintiff had established a prima facie case of a violation of fmla § 2614. Thus, plaintiff contends that a jury should have decided whether defendant’s stated reasons for terminating plaintiff’s employment were legitimate and unrelated to plaintiff’s decision to take maternity leave pursuant to the fmla. We found no Michigan case addressing the issue raised by plaintiff under the fmla. However, review by this Court of the federal law regarding this federal statute is proper. See Markis v Grosse Pointe Park, 180 Mich App 545, 553; 448 NW2d 352 (1989). In Morgan v Hilti, Inc, 108 F3d 1319 (CA 10, 1997), the Tenth Circuit Court of Appeals explained the proper analytical framework for addressing alleged violations of the fmla. The court noted that the “burden-shifting analysis” first established in McDonnell Douglas Corp v Green, 411 US 792, 802-804; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is applicable to cases involving alleged violations of the fmla. Morgan, supra at 1322-1323. Accordingly, the Morgan court stated: In the summary judgment context, a plaintiff initially must raise a genuine issue of material fact on each element of the prima facie case. After establishment of a prima facie case, the burden shifts to the employer to offer a legitimate nondiscriminatory reason for its employment decision. If the employer comes forward with a nondiscriminatory reason for its actions, the burden then reverts to the plaintiff to show that “there is a genuine dispute of material fact as to whether the employer’s proffered reason for the challenged action is pretextual — i.e., unworthy of belief.” [Id. at 1323, quoting Randle v City of Aurora, 69 F3d 441, 451 (CA 10, 1995) (citations omitted).] Applying the McDonnell Douglas analysis in the present case, it is clear that plaintiff established a prima facie case of a violation of fmla § 2614. It is uncontested that plaintiff took maternity leave pursuant to the fmla and was dismissed by defendant before returning from that leave. The burden then shifted to defendant to demonstrate that there was a nondiscriminatory reason for its actions. Morgan, supra at 1323. Defendant presented evidence of its adoption of a management restructuring plan under which plaintiffs position as director of placement and two other management positions were eliminated. Following this evidence, the burden reverted to plaintiff to establish a genuine issue of material fact regarding whether defendant’s stated reason for eliminating her position was “unworthy of belief.” Id. Plaintiff failed to carry this burden, and therefore summary disposition in favor of defendant was properly granted. Plaintiff claims that she was dismissed “as a result of her requesting and taking a medical leave.” However, plaintiff presented no evidence to contradict the affidavit of defendant’s human resources director, Vicky Hilliard, stating that from 1993 through 1998, seven of defendant’s employees took maternity leaves, and none of those employees were dismissed by defendant. Also, plaintiff offered no evidence to contradict Hilliard’s statement that from 1992 through 1998, “there have been ninety . . . employees who have taken fmla leaves” and “[n]one of these employees have lost their positions because of their leaves of absence.” Plaintiff offered no evidence to contradict Christensen’s statements that the corporate restructuring plan that resulted in the elimination of plaintiff’s position was proposed in October 1995, approximately two months before plaintiff requested maternity leave pursuant to the fmla. Furthermore, plaintiff admitted during her deposition that she had no evidence to contradict defendant’s assertion that her position was eliminated as part of the management restructuring plan, rather than in response to her decision to take maternity leave. Plaintiff’s theory that defendant dismissed her because she was on leave was based on conjecture. Thus, the lower court correctly concluded that plaintiff failed to show that genuine issues of material fact existed regarding whether defendant’s claim that plaintiff’s position was eliminated as part of a management restructuring plan was “unworthy of belief.” Id. Plaintiff argues that the McDonnell Douglas analysis is inapplicable in this case because plaintiff’s claim is based on a “failure to restore” theory pursuant to FMLA § 2614, and therefore, defendant’s intent in terminating her employment was irrelevant. Plaintiff’s argument appears to be based on Peters v Community Action Committee, Inc of Chambers-Tallapoosa-Coosa, 977 F Supp 1428 (MD Ala, 1997). In Peters, the plaintiff claimed that her employer “reassigned [her] from one position to another and [ ] ultimately constructively discharged” her for exercising her rights under the fmla. Id. at 1432. The court stated: To the extent that the sole question presented by the parties in an fmla case is whether an employee has received her entitlements under the fmla — for example, a 12-week leave or reinstatement — the employer’s intent may be immaterial. . . . However, once one of the parties raises the issue of whether a right, benefit, or position is one to which the employee would have been entitled had the employee not taken the leave or whether the employer has taken adverse action against the employee for having exercised an fmla right, the question of intent, may become relevant. [Id. at 1433.] The court found that because the plaintiff had alleged that the employer’s actions were discriminatory and retaliatory, she had “framed her claims as turning on her employer’s intent,” and the McDonnell Douglas analysis was applicable. Id. at 1433. Plaintiff in the present case contends that her claim relates solely to defendant’s failure to reinstate her after her leave as required under the fmla. Thus, plaintiff argues that under the holding of Peters, the McDonnell Douglas analysis is inapplicable and defendant’s reasons for failing to reinstate plaintiff should not have been considered by the trial court. We disagree. Defendant raised the issue whether plaintiff would have been entitled to her position had she not taken the leave, and, consequently, the question of intent is relevant, and the McDonnell Douglas analysis applies. Id. Further, in count H of her complaint, plaintiff alleged that “[defendant violated [the fmla] by terminating the Plaintiff, in whole or in part, as a result of her requesting and taking medical leave.” Thus, plaintiff’s claim was not merely that defendant failed to reinstate her as required by the fmla, but also that defendant had “taken adverse action against [her] for having exercised an FMLA right.” Id. During the hearing regarding the motion for summary disposition, plaintiff claimed that defendant dismissed her because “she was off pregnant.” Thus, because plaintiff framed her argument in terms of defendant’s intent with regard to the termination of her employment, the McDonnell Douglas analysis was appropriately applied by the trial court. The court properly granted defendant’s motion for summary disposition of plaintiff’s claim under the fmla. n Plaintiff next argues that her gender discrimination claim was improperly dismissed. We disagree. In count I of her complaint, plaintiff alleged that she was treated differently by defendant because of her gender, in violation of § 202 of the CRA, MCL 37.2202; MSA 3.548(202). In Feick v Monroe Co, 229 Mich App 335, 338; 582 NW2d 207 (1998), this Court stated: 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. The Feick test was applied by the trial court in the present case. The court found that because “it is uncontroverted that the female plaintiff in this action was replaced by a woman, plaintiff has failed to create a material issue of fact as to the 4th element of the prima facie case.” On appeal, plaintiff claims that the trial court erred in requiring plaintiff to show that she was replaced by a person who is not a member of her protected class in order to establish a prima facie case of gender discrimination. We agree. Plaintiff conceded that she was “replaced” by a woman after being dismissed by defendant. If plaintiff’s only argument had been that she was replaced for discriminatory reasons, the trial court’s application of the test in Feick would have been appropriate. However, plaintiff did not present a “discriminatory replacement” argument. Instead, plaintiff argued that defendant acted discriminatorily by treating her differently than a similarly situated male employee. Therefore, the trial court erred in granting summary disposition of plaintiffs gender discrimination claim in favor of defendant without considering plaintiffs argument based on a “similarly situated” theory. However, this Court will not reverse when the trial court reaches the correct result regardless of the reasoning employed. Zimmerman v Owens, 221 Mich App 259, 264; 561 NW2d 475 (1997). Because plaintiff failed to establish that she was treated differently than a similarly situated male employee, summary disposition was properly granted in favor of defendant. Given plaintiffs argument that she was treated differently than a similarly situated male employee, Town v Michigan Bell Telephone Co, 455 Mich 688, 695; 568 NW2d 64 (1997) (opinion by Brickley, J.), articulates the appropriate test for establishment of a prima facie case of gender 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. Plaintiff claims that Richard Tejchma was a similarly situated male employee who was unaffected by defendant’s adverse conduct. Tejchma began working for defendant as an industrial subcontract supervisor in approximately 1975. He has a bachelor’s degree in sociology. After working for defendant for approximately three years, Tejchma received his certification as a rehabilitation counselor, and defendant employed him as a vocational evaluator. Tejchma testified that as a vocational evaluator, he provided diagnostic aptitude testing and vocational testing to evaluate individuals with handicaps and develop rehabilitation plans for training or community employment. Tejchma testified that he was still working for defendant as a vocational evaluator, although the title of his position has changed several times over the years. As previously noted, Tejchma’s position of director of assessment was eliminated along with plaintiff’s position of director of