BLOSSOM HAZLE V FORD MOTOR CO
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 3, 2001
BLOSSOM J. HAZLE,
Plaintiff-Appellee,
v
No. 116162
FORD MOTOR COMPANY and FORD-UAW
RETIREMENT BOARD OF ADMINISTRATION,
Defendants-Appellants.
____________________________________
BEFORE THE ENTIRE COURT
YOUNG, J.
After being denied a promotion, plaintiff filed suit on
the ground that she had been discriminated against on the
basis of her race, in violation of the Michigan Civil Rights
Act.
MCL 37.2101 et seq.
The trial court granted summary
disposition in favor of defendants, but the Court of Appeals
reversed.
We granted leave in order to further clarify the proper
application of the burden-shifting framework established in
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36
L Ed 2d 668 (1973), for the purpose of analyzing proofs in
discrimination cases.
decision
and
We now reverse the Court of Appeals
reinstate
the
trial
court’s
order
granting
summary disposition to defendants.
I.
Factual and Procedural Background
Plaintiff is a black woman with an undergraduate degree
in English.
She has also completed a portion of the course
work required for a master’s degree in industrial relations.
In July 1980, plaintiff began working as a pension clerk
for the Ford-UAW Retirement Board of Administration, which
administers pension benefits for the UAW retirees of Ford
Motor Company.
various
types
Plaintiff was responsible for processing
of
retirement
applications,
which
included
“filing, typing . . . answering the phone and helping retirees
and surviving spouses and company union rep[resentatives] with
problems
regarding
pensions.”
She
also
set
up
medical
evaluations for disability retirement applicants.
In late 1994, when the longtime manager of plaintiff’s
office decided to retire, the board placed the following
advertisement:
OFFICE MANAGER
Seeking
individual
with
2
an
Office
Manager
background to direct the activities of a 6 person
office responsible for the administration of
pension benefits for over 85,000 pensioners of a
major automotive retirement plan.
The qualified individual should have a BS
degree in finance or accounting, have strong
communication skills, and have office experience
directing the work of others.
The position is
responsible for preparation of the payroll and
accounts payable, maintenance of administrative
records, and other retirement plan activities.
Plaintiff
applicants
applied
Christine
the
another
Among
of
the
other
pension
clerks,1 and Michelle Block, an outside candidate.2
Each is
Block’s résumé
Ewald,
job.
the
white.
were
for
indicated that she recently had been
employed as “supervisor of financial and management reporting”
at a medical laboratory and, before that, had been “sales
audit supervisor” for a forty-two store chain of automotive
parts retailers.
In a letter on Ford Motor Company stationery, plaintiff
was informed that she would be given an interview. The letter
also stated that her résumé had been “reviewed and determined
to satisfy the requirements outlined for this opening.”
Two members of the board, Donald Harris, a UAW employee,
and Mark Savitskie, who worked for Ford, interviewed the
1
Ewald had been a pension clerk since 1985.
2
According to defendants’ response to plaintiff’s first
set of interrogatories, there were a total of eighty
applicants (both internal and external) for the position.
3
candidates for the office manager position.
On the basis of
the résumés and interviews,3 the two selected Block, whom the
board then hired.
Plaintiff learned of the board’s hiring
decision in a second letter from Ford, which thanked her for
her interest in the position.
The Ford letter reiterated to
plaintiff that “[her] experience and education were in line
with our expectations and the requirements of the position.”
Fourteen months after learning that she would not be
promoted, plaintiff filed the present suit in circuit court.
Proceeding under the Civil Rights Act, she alleged that
defendants “did not offer the position of Office Manager to
Plaintiff because Plaintiff is an African-American.”
Defendants
moved
for
summary
disposition.
Although
defendants’ motion and brief did not indicate expressly which
part of the court rule they were relying on, it is evident
that
they
were
2.116(C)(10).
seeking
summary
disposition
under
MCR
Defendants argued that plaintiff could not
establish a prima facie case of discrimination under McDonnell
Douglas, supra.
They further argued that, even if plaintiff
could offer a prima facie case, she failed to offer evidence
that defendants’ stated reason for hiring Block, that she was
3
Harris and Savitskie did not check references or seek to
confirm the factual representations made in the candidates’
written submissions.
4
more qualified, was a mere pretext for discrimination.
Plaintiff responded that Block was in fact not qualified,
and that she committed “résumé fraud” in representing her
educational and employment background.4
Noting that Block’s alleged misrepresentations did not
surface until after discovery began in this case, the trial
court granted defendants’ motion, concluding as follows:
The Court is satisfied that I don’t have to
get to the pretext issue, because we haven’t
established a prima facie case of discrimination.
The Court’s going to kick it under (C)(10).
The Court of Appeals reversed over the dissent of Judge
Kelly.5
We granted defendants’ application for leave to appeal.
463 Mich 928 (2000).
II.
Standard of Review
We review de novo a trial court’s decision on a motion
for summary disposition.
A motion for summary disposition
4
Block’s résumé suggests that she took classes at Henry
Ford Community College over an extended period. As noted, her
stated work experience included time as a “supervisor of
financial and management reporting” at a medical laboratory
and as “sales audit supervisor” at an automotive-parts
retailer.
Relying on materials obtained during discovery,
plaintiff maintains that Block’s transcript shows little
academic progress, that she was only a temporary clerical
employee at the medical laboratory, and that she was fired by
the automotive-parts retailer for poor performance.
5
Unpublished opinion per curiam, issued August 27, 1999,
reh den December 21, 1999 (Docket No. 204496).
5
brought under MCR 2.116(C)(10) tests the factual support of a
claim. After reviewing the evidence in a light most favorable
to the nonmoving party, a trial court may grant summary
disposition under MCR 2.116(C)(10) if there is no genuine
issue concerning any material fact and the moving party is
entitled to judgment as a matter of law.
Smith v Globe Life
Ins Co, 460 Mich 446, 453; 597 NW2d 28 (1999).
III.
A.
Analysis
Direct Versus Indirect Evidence of Discrimination
Plaintiff claims that defendants discriminated against
her on the basis of race in violation of MCL 37.2202(1)(a),
which provides, in relevant part:
(1) An
following:
employer
shall
not
do
any
of
the
(a) Fail or refuse to hire or recruit,
discharge, or otherwise discriminate against an
individual
with
respect
to
employment,
compensation, or a term, condition, or privilege of
employment, because of religion, race, color,
national origin, age, sex, height, weight, or
marital status.
In some discrimination cases, the plaintiff is able to
produce direct evidence of racial bias.
In such cases, the
plaintiff can go forward and prove unlawful discrimination in
the same manner as a plaintiff would prove any other civil
case.
DeBrow v Century
21 Great Lakes, Inc (After Remand),
463 Mich 534, 537-539; 620 NW2d 836 (2001); Matras v Amoco Oil
6
Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986).
For purposes
of the analogous federal Civil Rights Act, the Sixth Circuit
Court of Appeals has defined “direct evidence” as “evidence
which, if believed, requires the conclusion that unlawful
discrimination
was
at
employer’s actions.”
least
a
motivating
factor
in
the
Jacklyn v Schering-Plough Healthcare
Products Sales Corp, 176 F3d 921, 926 (CA 6, 1999); see also
Harrison v Olde Financial Corp, 225 Mich App 601, 610; 572
NW2d 679 (1997).
In
many
cases,
however,
no
impermissible bias can be located.
direct
evidence
of
In order to avoid summary
disposition, the plaintiff must then proceed through the
familiar steps set forth in McDonnell Douglas, supra at 802
803.
The McDonnell Douglas approach allows 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.” DeBrow, supra at 537-538.
Although originally created for use in race discrimination
cases, we have adopted the McDonnell Douglas approach for use
in age and gender discrimination cases brought under the
Michigan Civil Rights Act as well.
See Lytle v Malady (On
Rehearing), 458 Mich 153, 172-178; 579 NW2d 906 (1998).
Because plaintiff here has offered no direct evidence of race
discrimination, she is constrained to rely on the McDonnell
7
Douglas framework.
Under McDonnell Douglas, a plaintiff must first offer a
“prima facie case” of discrimination.
required
protected
to
present
class,
(2)
evidence
she
that
suffered
Here, plaintiff was
(1)
an
she
belongs
adverse
to
a
employment
action, (3) she was qualified for the position, and (4) the
job was given to another person under circumstances giving
rise to an inference of unlawful discrimination. Lytle, supra
at
172-173;
see
also
Texas
Dept
of
Community
Affairs
v
Burdine, 450 US 248, 254, n 6; 101 S Ct 1089; 67 L Ed 2d 207
(1981); McDonnell Douglas, supra at 802.6
When the plaintiff “has sufficiently established a prima
facie case, a presumption of discrimination arises.”
supra at 173.
Lytle,
In Furnco Construction Corp v Waters, 438 US
567, 577; 98 S Ct 2943; 57 L Ed 2d 957 (1978), the Court
explained that the McDonnell Douglas prima facie case raises
an inference of discrimination “because we presume these acts,
if otherwise unexplained, are more likely than not based on
the consideration of impermissible factors.”
6
We utilize here a formulation of the McDonnell Douglas
prima facie case approach that is consistent with the facts of
this case.
As the Supreme Court explained in McDonnell
Douglas, the facts will necessarily vary in discrimination
cases.
Thus, the elements of the McDonnell Douglas prima
facie case should be tailored to fit the factual situation at
hand.
8
However, the fact that a plaintiff has established a
prima facie case of discrimination under McDonnell Douglas
does not necessarily preclude summary disposition in the
defendant’s favor. As the Supreme Court explained in Burdine,
supra at 254, n 7:
The phrase “prima facie case” not only may
denote the establishment of a legally mandatory,
rebuttable presumption, but also may be used by
courts to describe the plaintiff’s burden of
producing enough evidence to permit the trier of
fact to infer the fact at issue. McDonnell Douglas
should have made it apparent that in the Title VII
context we use “prima facie case” in the former
sense. [Citation omitted.]
In other words, the McDonnell Douglas prima facie case does
not describe the plaintiff’s burden of production, but merely
establishes a rebuttable presumption.
Thus, once a plaintiff establishes a prima facie case of
discrimination,
the
defendant
has
the
opportunity
to
articulate a legitimate, nondiscriminatory reason for its
employment decision in an effort to rebut the presumption
created by the plaintiff’s prima facie case.
173; McDonnell Douglas, supra at 802.7
7
Lytle, supra at
The articulation
In determining whether an employment decision is a
“legitimate, nondiscriminatory” one, it must be noted that
courts must not analyze the “soundness” of that decision. In
other words, courts must not second guess whether the
employment decision was “wise, shrewd, prudent, or competent.”
Town v Michigan Bell Telephone Co, 455 Mich 688, 704; 568 NW2d
64 (1997). Instead, the focus is on whether the decision was
(continued...)
9
requirement
means
that
the
defendant
has
the
burden
of
producing evidence that its employment actions were taken for
a legitimate, nondiscriminatory reason.8 “Thus, the defendant
cannot
meet
its
burden
merely
through
complaint or by argument of counsel.”
an
answer
to
the
Burdine, supra at 256,
n 9; see also St Mary’s Honor Center v Hicks, 509 US 502, 506
507; 113 S Ct 2742; 125 L Ed 2d 407 (1993).
If the employer
makes such an articulation, the presumption created by the
McDonnell Douglas prima facie case drops away.9
At that point, in order to survive a motion for summary
disposition, the plaintiff must demonstrate that the evidence
in the case, when construed in the plaintiff’s favor, is
7
(...continued)
“lawful,” that is, one that is not motivated
“discriminatory animus.” Burdine, supra at 257.
by
a
8
While the burden of production shifts to the defendant
at this stage of the McDonnell Douglas analysis, “[t]he nature
of the burden that shifts to the defendant should be
understood in light of the plaintiff’s ultimate and
intermediate burdens. The ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the
plaintiff.” Burdine, supra at 253.
9
If the defendant does not articulate a legitimate,
nondiscriminatory reason for its employment decision, the
presumption created by the McDonnell Douglas prima facie case
stands unrebutted.
However, this does not mean that the
plaintiff is entitled to judgment as a matter of law. Rather,
in such a case, judgment in favor of the plaintiff would be
appropriate only if the trier of fact believes the plaintiff’s
evidence. See Burdine, supra at 254.
10
“sufficient to permit a reasonable trier of fact to conclude
that discrimination was a motivating factor for the adverse
action taken by the employer toward the plaintiff.”
supra at 176.10
Lytle,
As we first held in Town v Michigan Bell
Telephone Co, 455 Mich 688, 698; 568 NW2d 64 (1997), and then
reaffirmed in Lytle, supra at 175-176, a plaintiff “must not
merely raise a triable issue that the employer’s proffered
reason
was
pretextual,
but
that
it
was
a
pretext
for
[unlawful] discrimination.”
The inquiry at this final stage of the McDonnell Douglas
framework is exactly the same as the ultimate factual inquiry
made by the jury:
whether consideration of a protected
characteristic was a motivating factor, namely, whether it
made a difference in the contested employment decision.
SJI2d 105.02.11
See
The only difference is that, for purposes of
10
At one point in Lytle, supra at 174, we used some
imprecise language in describing the plaintiff’s burden at
this stage of the McDonnell Douglas analysis. We stated that
a plaintiff must show “by a preponderance of admissible direct
or circumstantial evidence, that there was a triable issue
that the employer’s proffered reasons were not true reasons,
but were a mere pretext for discrimination” (emphasis added).
This reference in Lytle to the term “preponderance” is
suggestive of a plaintiff’s ultimate burden of persuasion. We
wish to make clear that, in response to a motion for summary
disposition brought under MCR 2.116(C)(10), the nonmoving
party’s obligation is only to show the existence of a “genuine
issue as to any material fact.”
11
The standard jury instruction is consistent with the
(continued...)
11
a motion for summary disposition or directed verdict, a
plaintiff need only create a question of material fact upon
which
reasonable
minds
could
differ
regarding
whether
discrimination was a motivating factor in the employer’s
decision.
As the Supreme Court explained in Burdine, supra at 256,
n 8, the McDonnell Douglas burden-shifting framework is merely
intended
“to
progressively
sharpen
the
inquiry
into
elusive factual question of intentional discrimination.”
the
It
is important to keep in mind, therefore, that for purposes of
claims brought under the Michigan Civil Rights Act, the
McDonnell Douglas approach merely provides a mechanism for
assessing motions for summary disposition and directed verdict
in cases involving circumstantial evidence of discrimination.12
It is useful only for purposes of assisting trial courts in
determining whether there is a jury-submissible issue on the
ultimate
fact
question
of
unlawful
discrimination.
The
McDonnell Douglas model is not relevant to a jury’s evaluation
11
(...continued)
statutory prohibition against discrimination “because of” a
protected characteristic. MCL 37.2202(1)(a).
12
As stated, the McDonnell Douglas approach is not
applicable
in
cases
involving
direct
evidence
of
discrimination.
DeBrow, supra at 539, citing Trans World
Airlines, Inc v Thurston, 469 US 111, 121; 105 S Ct 613; 83 L
Ed 2d 523 (1985).
12
of evidence at trial.
Accordingly, a jury should not be
instructed on its application. See Gehrig v Case Corp, 43 F3d
340,
343
(CA
discrimination
7,
1995)
cases,
(explaining
“[o]nce
the
that,
judge
in
finds
federal
that
the
plaintiff has made the minimum necessary demonstration [the
‘prima facie case’] and that the defendant has produced an
age-neutral explanation, the burden-shifting apparatus has
served its purpose, and the only remaining question–the only
question the jury need answer–is whether the plaintiff is a
victim of intentional discrimination”).
B.
Plaintiff’s McDonnell Douglas Prima Facie Case
As noted, in order to establish a prima facie case of
discrimination under McDonnell Douglas, plaintiff was required
to present admissible evidence that (1) she belongs to a
protected
class,
(2)
she
suffered
an
adverse
employment
action, (3) she was qualified for the position, and (4) the
job was given to another person under circumstances giving
rise to an inference of unlawful discrimination. Lytle, supra
at 172-173; McDonnell Douglas, supra at 802.13
dispute
in
this
case
regarding
13
the
first
There is no
two
elements:
Although Lytle states that a plaintiff must “prove”
these four elements “by a preponderance of the evidence,” we
again emphasize that a plaintiff does not have to prove
anything to the trial court at the summary disposition stage.
13
Plaintiff is black, and she did not receive the promotion for
which she applied.
At issue here are the third and fourth elements of a
prima facie case.
The third element requires proof that
plaintiff was qualified for the position she sought.
The
fourth element requires proof that the job was given to
another person under circumstances giving rise to an inference
of discrimination.
Defendants argue that plaintiff has failed to establish
the third and fourth elements of a McDonnell Douglas prima
facie case.
They contend that, even if minimally qualified,
plaintiff had “neither supervisory experience nor training or
experience in financial or accounting matters–two crucial
preferred qualifications of the Office Manager position,” and
that, in any event, she was far less qualified than Michelle
Block.
In
defendants’
view,
a
plaintiff
alleging
a
discriminatory failure to promote or hire can only establish
a prima facie case under McDonnell Douglas by providing
evidence that he is at least as qualified as the successful
candidate.
We disagree.
As an initial matter, nothing in the Supreme Court’s
decision in McDonnell Douglas suggests that a plaintiff is
required to offer evidence of relative qualifications in order
14
to establish a prima facie case of discrimination.
Nor have
the
such
Court’s
subsequent
requirement.
Court’s
identified
a
In fact, we believe that at least one of the
post-McDonnell
plaintiff
decisions
is
never
Douglas
decisions
required
to
suggests
establish
that
a
relative
qualifications.
In Patterson v McLean Credit Union, 491 US 164; 109 S Ct
2363;
105
plaintiff’s
L
Ed
2d
burden
discrimination.
132
of
(1989),
persuading
the
a
Court
jury
of
addressed
a
intentional
The federal district court in that case had
instructed the jury that the plaintiff, in order to prevail on
her claim that the defendant failed to promote her because of
race discrimination, was required to show that she was better
qualified than the employee who received the promotion.
In
determining that this was error, the Supreme Court emphasized
that a plaintiff
is not limited to presenting evidence of a certain
type. . . .
The evidence which petitioner can
present
in
an
attempt
to
establish
that
respondent’s stated reasons are pretextual may take
a variety of forms.
Indeed, she might seek to
demonstrate that respondent's claim to have
promoted
a
better
qualified
applicant
was
pretextual by showing that she was in fact better
qualified than the person chosen for the position.
The District Court erred, however, in instructing
the jury that in order to succeed petitioner was
required to make such a showing.
There are
certainly other ways in which petitioner could seek
to prove that respondent’s reasons were pretextual.
15
Thus, for example, petitioner could seek to
persuade the jury that respondent had not offered
the true reason for its promotion decision by
presenting evidence of respondent’s past treatment
of petitioner, including the instances of the
racial
harassment
which
she
alleges
and
respondent’s failure to train her for an accounting
position.
While we do not intend to say this
evidence necessarily would be sufficient to carry
the day, it cannot be denied that it is one of the
various ways in which petitioner might seek to
prove intentional discrimination on the part of
respondent. She may not be forced to pursue any
particular means of demonstrating that respondent's
stated reasons are pretextual.
[Id. at 187-188
(citations omitted).]
Because a plaintiff has no obligation to prove relative
qualifications to a jury, it can hardly be disputed that a
plaintiff cannot be required to offer evidence that he is at
least as qualified as the successful candidate in order to
establish a prima facie case under McDonnell Douglas.
See
Walker v Mortham, 158 F3d 1177, 1192 (CA 11, 1998) (“We cannot
imagine
that
regarding
the
the
Supreme
lack
of
Court
any
would
burden
speak
to
so
prove
strongly
lesser
qualifications and still leave available to the defendant at
summary judgment the argument that the plaintiff failed to
prove equal qualifications”).
Nor does anything in the language of the Civil Rights Act
itself suggest a requirement that a plaintiff prove relative
qualifications in order to succeed on a discrimination claim,
let alone require that a plaintiff offer such evidence in
16
order to survive a motion for summary disposition or directed
verdict.
As stated, the ultimate factual inquiry in any
discrimination case is whether unlawful discrimination was a
motivating factor in the employer’s decision.
beyond
question
certainly
may
that,
be
although
relevant
relative
in
a
We think it
qualifications
discrimination
case,
particularly, as explained below, if a defendant relies on
them to rebut the presumption of discrimination created by the
plaintiff’s prima facie case, the fact that a plaintiff was
“less qualified” than the successful applicant would not
necessarily
preclude
a
jury
from
finding
that
unlawful
discrimination was nevertheless a motivating factor in the
employer’s decision.
Therefore, we hold that a plaintiff is
not required to provide evidence that he is at least as
qualified as the successful candidate in order to establish a
prima facie case under McDonnell Douglas.
By this holding, we do not mean to suggest that a
plaintiff can establish the third and fourth elements of a
McDonnell Douglas prima facie case merely by showing that he
was
qualified
for
the
position
candidate was chosen instead.
and
that
a
nonminority
While a plaintiff is not
required to show circumstances giving rise to an inference of
discrimination in any one specific manner, the plaintiff’s
burden of production remains to present evidence that the
17
employer’s actions, “if otherwise unexplained, are more likely
than not based on the consideration of impermissible factors.”
Burdine, supra at 253.
In short, a plaintiff must offer
evidence showing something more than an isolated decision to
reject a minority applicant.
See Teamsters v United States,
431 US 324, 358, n 44; 97 S Ct 1843; 52 L Ed 2d 396 (1977).
As a matter of law, an inference of unlawful discrimination
does not arise merely because an employer has chosen between
two
qualified
candidates.14
Under
such
a
scenario,
an
equally–if not more–reasonable inference would be that the
employer simply selected the candidate that it believed to be
most qualified for the position.
See id.
In this case, plaintiff met the third element of a
McDonnell Douglas prima facie case by presenting evidence that
she was qualified for the office manager position. Indeed, as
stated, defendants themselves twice confirmed in writing their
belief that plaintiff was among those who had the necessary
qualifications for the position.
14
Largely because the issue was undisputed, we assumed in
Lytle, supra at 177, that the plaintiff established a prima
facie case under McDonnell Douglas by presenting evidence that
“she was replaced by a younger person.” We caution the bench
and bar not to rely on Lytle for the proposition that a prima
facie case of unlawful discrimination can be established
merely by providing evidence that a qualified minority
candidate was rejected in favor of a qualified nonminority
candidate. As opposed to this case, Lytle did not involve a
choice between two qualified candidates for an open position.
18
Finally, plaintiff presented evidence from which a jury,
if
unaware
of
defendants’
discrimination.
reasons,
could
infer
unlawful
Although she was not required to proceed in
this manner, plaintiff presented evidence suggesting that she
was rejected in favor of a less qualified white applicant.
There was evidence that (1) only plaintiff had a college
degree and credits toward a master’s degree in industrial
relations,
and
(2)
only
plaintiff
experience with defendants.
had
substantial
work
Thus, we conclude that plaintiff
presented evidence supporting the fourth and final element of
a McDonnell Douglas prima facie case, and that the burden then
shifted
to
defendants
to
articulate
a
legitimate,
nondiscriminatory reason for their decision to hire Michelle
Block instead of plaintiff.
C. Defendants’ Justification for their Employment Decision
Defendants cited several reasons for their decision to
hire Michelle Block rather than plaintiff.
Among them were
plaintiff’s lack of experience in supervision, finance, or
accounting.
By
contrast,
Block’s
application
materials
indicated that she had supervised an audit department of six
persons and had significant financial experience.
Defendants also expressed their desire to change the
manner in which business would be conducted in the office;
19
they wanted to hire what is customarily known as a “change
agent.” Deposition testimony indicates that the former office
manager allowed the pension clerks great autonomy with regard
to their work and even their work schedules.
Petty cash was
handled informally, and a simple matter like the office’s no
smoking policy was routinely ignored.
As the number of Ford-
UAW retirees continued to grow, defendants wanted the office
to improve the service it was providing. In this regard, Mark
Savitskie testified that he was looking for someone “who would
be able to identify problems and effect change and processes
that would correct problems.”
When asked why he believed Block to be more qualified
than plaintiff, Savitskie testified as follows:
I believe that Michelle’s experience, her
practical experience, her business experience, her
work experience, gave her a broad number of skills
that would help her meet my requirement.
Compared to Block, Savitskie felt that plaintiff was “somewhat
isolated in terms of comparing the dealings with outsiders,
written responsibilities, dealing with processes and data and
correcting
problems.”
Savitskie
testified
that
he
saw
plaintiff as a person who did not seem to appreciate the need
for
change.
Donald
Harris
expressed
a
similar
view,
testifying that he believed Block to be a person “who could
make changes, incorporate those changes and motivate people to
20
accept those changes.”
We conclude that defendants made a sufficient showing
that
they
had
legitimate,
nondiscriminatory
choosing Michelle Block over plaintiff.
reasons
for
This means that the
presumption of discrimination created by plaintiff’s prima
facie case dropped away, and the burden of production returned
to plaintiff to show the existence of evidence “sufficient to
permit
a
reasonable
trier
of
fact
to
conclude
that
discrimination was a motivating factor for the adverse action
taken by the employer toward the plaintiff.”
Lytle, supra at
176.
D.
Was Race a Motivating Factor in Defendants’
Employment Decision?
Reviewing the evidence in a light most favorable to
plaintiff and drawing any reasonable inferences in her favor,
we conclude that she has failed to create a triable issue for
the jury concerning whether race was a motivating factor in
defendants’ employment decision.
While
plaintiff
maintains
that
the
office
manager
position did not in fact require knowledge of finance or
accounting principles, it is fatal to plaintiff’s claim that
she has offered no record evidence that actually supports this
position.
We also note plaintiff’s repeated assertion that,
21
when she asked for an explanation for why she was not selected
for the office manager position, she was told that Michelle
Block “had a Bachelor’s Degree in Accounting.”
This, of
course, would have been a false explanation, given that Block
had no college degree at all and that she never claimed to
have one.
Such evidence very likely would have provided a
basis for a reasonable jury to infer unlawful discrimination.
However, again, plaintiff has offered no evidence to support
her claim.
statement
Instead of record evidence, plaintiff relies on a
made
by
her
attorney
during
the
defendants’ motion for summary disposition.
hearing
on
That clearly is
an inappropriate means of opposing a motion for summary
disposition brought under MCR 2.116(C)(10).
See Maiden v
Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999).
Furthermore,
application
even
materials
if,
as
plaintiff
contained
claims,
exaggerated
Block’s
and
false
information calling into question her qualification for the
office manager position, there is no record evidence that any
of
this
was
known
employment decision.
to
defendants
when
they
made
their
Therefore, any subsequently discovered
shortcomings in Block’s credentials cannot possibly serve as
a basis for an inference of unlawful discrimination.15
15
In McKennon v Nashville Banner Publishing Co, 513 US
(continued...)
22
For
its
part,
the
Court
of
Appeals
held
that
discriminatory animus was shown by defendants’ decision to
hire Michelle Block despite the fact that she did not have a
college degree, and by defendants’ knowledge that Block “would
require
considerable
training
in
order
to
do
her
job.”
However, we fail to see how either observation could possibly
support a jury finding that race was a motivating factor in
defendants’ employment decision.
There is no dispute that
Block did not have a college degree, and there is no evidence
that defendants ever claimed that she did. Moreover, although
plaintiff did have a college degree, it was in English, not in
finance or accounting. The bottom line is that both plaintiff
and Block lacked the preferred qualification of a degree in
finance or accounting.
Thus, the mere fact that defendants
hired Block despite her lack of a college degree does not give
rise to an inference of unlawful discrimination.
Finally, no
15
(...continued)
352, 360; 115 S Ct 879; 130 L Ed 2d 852 (1995), the Supreme
Court held that an employer may not rely on after-acquired
evidence of an employee’s wrongdoing in order to avoid
liability for a discriminatory employment decision, explaining
in part that “[t]he employer could not have been motivated by
knowledge it did not have and it cannot now claim that the
employee was fired for the nondiscriminatory reason.”
We believe a logical corollary of this principle to be
that an employee cannot establish discriminatory intent by
offering evidence of facts that were unavailable to the
employer when it made its employment decision.
23
record evidence suggests that plaintiff would have been able
to assume the office manager position with any less training
than Block required.
Plaintiff, and the Court of Appeals for that matter,
would have the jury second-guess defendants’ business judgment
concerning whether Block or plaintiff was better qualified.
However, as we explained in Town, supra at 704:
“A plaintiff cannot simply show that the
employer’s decision was wrong or mistaken, since
the
factual
dispute
at
issue
is
whether
discriminatory animus motivated the employer, not
whether the employer is wise, shrewd, prudent, or
competent.” [Citation omitted.]
The only requirement is that, “when evaluating its employees,
employers are to evaluate them on the basis of their merits,
in conjunction with the nature of their businesses at the time
of the evaluation, and not on the basis of any discriminatory
criterion.”
Id. at 710 (Riley, J., concurring).
The essence of defendants’ stated reasons for their
decision to hire Michelle Block over plaintiff was that they
did not believe that plaintiff was as qualified as Michelle
Block for the office manager position.
While plaintiff was
not required to seek to show that she was in fact more
qualified than Block in order to survive summary disposition,
plaintiff was required to demonstrate that the evidence in
24
this
case
would
permit
a
jury
to
find
that
defendants’
explanation was a pretext for race discrimination. Other than
her subjective claim that she was more qualified than Michelle
Block, plaintiff has offered nothing to support her claim that
defendants
acted
with
racial
animus.
In
our
view,
the
following testimony from plaintiff’s deposition accurately
captures the dispute in this case:
Q.
Why do you believe that your race had
anything to do with the selection of [Michelle
Block] over you?
A.
Well, because I felt I was very qualified
for the position and just from my own observation I
just feel that I’m a better qualified person. They
hired a Caucasian woman. So I felt it was a racial
issue.
Q.
Do you have any other reason, any reason
at all for thinking that your race had anything to
do with the selection of [Block] over you?
A.
No.
Accordingly, plaintiff has failed to create a genuine issue of
material fact concerning whether defendants relied on any
discriminatory animus in making their employment decision.
IV.
Conclusion
The record in this case contains evidence sufficient to
create
a
prima
facie
McDonnell Douglas.
legitimate,
case
of
race
discrimination
under
In response, defendants articulated a
nondiscriminatory
25
reason
for
their
action.
Plaintiff, however, was unable to offer any evidence that the
defendants’ stated reasons were a pretext for discrimination,
that is, that race was a motivating factor in their employment
decision.
Defendants were therefore entitled to summary
disposition as a matter of law.
Because
the
trial
court
properly
granted
summary
disposition to defendants, we reverse the decision of the
Court of Appeals, and reinstate the trial court’s order.
CORRIGAN ,
C.J.,
and
CAVANAGH , WEAVER , KELLY , TAYLOR ,
MARKMAN , JJ., concurred with YOUNG , J.
26
and
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