ORTMAN v. GORDON FOOD SERVICE INC (1997)

Defendant Gordon Food Service, Inc., appeals by leave granted from a March 19, 1996, order denying defendant's motion for summary disposition pursuant to MCR 2.116(C)(10) regarding plaintiffs' employment discrimination claim based on marital status.   We reverse.

Defendant was sued by plaintiffs after defendant fired plaintiff Michael Ortman (hereafter plaintiff) from his position as a salesman for defendant.   Plaintiff alleged his discharge was based on the failure of his wife and family to relocate with him from their established home in Midland to his sales territory in Flint, and that his discharge, therefore, constituted unlawful discrimination based on his marital status in contravention of the Michigan Civil Rights Act, specifically M.C.L. § 37.2202;  M.S.A. § 3.548(202).   Defendant argued plaintiff was discharged for his failure to fulfill his obligation to relocate to Flint and because plaintiff warned that the current commuting situation might not continue to work out.   We find the trial court erred in determining a genuine issue of material fact existed regarding whether plaintiff's marital status was a reason for his termination.

 Employment discrimination based on marital status must arise from a policy that differentiates “based on whether a person is married” and not to whom, or otherwise.  Miller v. C A Muer Corp., 420 Mich. 355, 363, 362 N.W.2d 650 (1984).   Here, the policy in question, defendant's requirement that its sales people reside in their sales territories, is not dependent upon or related to an employee's marital status.   All employees, whether single, married, or divorced, are treated similarly by the policy, and plaintiff has failed to present any evidence that the policy was applied differently to single or divorced employees.

Plaintiff's focus on defendant's consideration of his wife's and family's domicile is unavailing.   This Court has previously held that, when evaluating whether an individual employee has established a residence in a particular geographical area, the residence of the other family members is relevant:

Residence of one's family is not determinative, but is a relevant factor.   The question of residency is one of intent which is arrived at from careful consideration of all facts and circumstances.  [Saginaw v. Lindquist, 139 Mich.App. 515, 520, 362 N.W.2d 771 (1984), affirmed on other grounds sub nom Parks v. Employment Security Comm., 427 Mich. 224, 398 N.W.2d 275 (1986).]

Defendant could properly consider plaintiff wife's residency when determining whether plaintiff had in fact relocated to his sales territory.   Thus, plaintiff's contention that defendant “required” plaintiff's family to move is untenable.   Defendant did not require plaintiff's family to move, but lawfully took into account the fact the family had not moved when it determined plaintiff had not moved either.   The trial court erred in determining there was a genuine issue of material fact regarding whether plaintiff's marital status was a reason for his termination.

Reversed.

PER CURIAM.