TOWN v. MICHIGAN BELL TELEPHONE COMPANY

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Supreme Court of Michigan.

Veronica TOWN, Plaintiff-Appellant, v. MICHIGAN BELL TELEPHONE COMPANY, Defendant-Appellee,

Ted McCONNELL and Nancy McConnell, Plaintiffs-Appellees, v. ROLLINS BURDICK HUNTER OF MICHIGAN, INCORPORATED, and Miller, Mason & Dickenson, Inc., Defendants-Appellants.

Docket Nos. 102845, 103476.

Decided: July 31, 1997

 Sommers, Schwartz, Silver & Schwartz, P.C. by Donald J. Gasiorek and Patrick Burkett, Southfield, for Plaintiff-Appellant Town. Pitt, Dowty & McGehee, P.C. by Michael L. Pitt, Royal Oak, for Plaintiffs-Appellees McConnell. Dickinson, Wright, Moon, Van Dusen & Freeman by Thomas G. Kienbaum, Robert W. Powell, and Jennifer A. Zinn, Detroit, for Defendant-Appellee in Town. Dickinson, Wright, Moon, Van Dusen & Freeman by Elizabeth Hardy and Julia Turner Baumhart, Bloomfield Hills, for Defendants-Appellants in McConnell. Clark, Hill, P.L.C. by Duane L. Tarnacki and J. Walker Henry, Detroit, amicus curiae, for Michigan Manufacturers Association.

Opinion

The issue presented in these consolidated cases is whether the plaintiffs, McConnell and Town, have presented sufficient evidence of age or sex discrimination to surmount a motion for summary disposition and a motion for a directed verdict, respectively.   We conclude in both cases that the plaintiffs failed to present sufficient evidence that discriminationhad been a determining factor in their employers' decisions.

I

McConnell v. Rollins Burdick Hunter

In July of 1988, Ted McConnell accepted a job as a sales representative with Rollins Burdick Hunter (RBH).   RBH sold health insurance and provided insurance-related consulting services.   At the time that he was hired, McConnell was fifty-five years old.

In January of 1989, the plaintiff was informed that he needed to improve his sales production.   The plaintiff's next review was in September of 1989.   Because the plaintiff's sales revenue had not significantly improved by that time, he was informed that if his revenue did not increase that “there will have to be some adjustment made.”   The plaintiff was unable to improve his production.

RBH discharged McConnell in January of 1990.   At that time, the plaintiff was fifty-seven years old.   The plaintiff brought suit against defendants RBH and Miller, Mason, and Dickenson, Inc.,1 alleging breach of employment contract, promissory estoppel, and age discrimination.   The trial court granted summary disposition for the defendants on each of the plaintiff's claims.

On appeal, the Court of Appeals initially affirmed the decision of the trial court.   The plaintiff then moved for a rehearing on the age discrimination claim which was granted.   On rehearing, the Court affirmed, but remanded the case for trial of the plaintiff's age discrimination claim in an unpublished opinion per curiam.   The defendants appealed that decision in this Court.   We granted leave and consolidated this case with Town v. Michigan Bell.

Town v Michigan Bell Telephone Company

In 1980, Veronica Town sought a departmental transfer from her position of product-line manager with the Michigan Bell Telephone Company.   She was interviewed by the assessment center and was offered a position.   She turned it down, however, when she learned of the Assessment Center's schedule, which consisted of a four-day work week, with twelve-hour shifts.   This schedule was unacceptable to her because she needed to be home in the evenings to care for her husband, who was suffering from severe health problems.

Instead, the plaintiff accepted a position as manager of market administrators.   After one year, the plaintiff's supervisor notified her that she was being transferred to the Assessment Center because her position was being consolidated with that of another manager.   The person who held the other position was leaving the company.   A thirty-five-year-old male, James Aveck, assumed the consolidated position.

Still under the impression that the assessment center's schedule was incompatible with her husband's needs, the plaintiff resigned and accepted early retirement.   The plaintiff was forty-nine years old at the time she resigned.

The plaintiff filed suit against Michigan Bell in 1983, alleging constructive discharge and age and sex discrimination.   After removal to federal court, reinstatement in state circuit court, summary disposition motions, and mediation, the case was tried by a jury in April, 1991.   At the close of the plaintiff's proofs, the defendant moved for a directed verdict, which was taken under advisement by the trial court.   After the jury returned a verdict for the plaintiff, defendant renewed its motion for directed verdict, which the trial court granted.

The Court of Appeals affirmed the trial court's directed verdict.   Although it concluded that the plaintiff had been constructively discharged, it agreed with the trial court that the plaintiff had not proven that age was a determining factor in the defendant's decision.   One judge dissented, arguing that the plaintiff had presented adequate evidence of discrimination by discrediting the defendant's explanation of its decision.   Citing St. Mary's Honor Center v. Hicks,2 the dissenting judge argued that, once the employer's explanation was discredited, the jury could, but was not required to, find that the real explanation for the employer's decision was discriminatory.

We granted leave to appeal and consolidated this case with McConnell v. Rollins Burdick Hunter.

II

 A claim of age discrimination may be shown under ordinary principles of proof by the use of direct or indirect evidence.3  Alternatively, many courts, including this one,4 have used the prima facie test articulated by the United States Supreme Court in McDonnell Douglas Corp v. Green 5 as a framework for evaluating age-discrimination claims.   Originally applied to cases of race discrimination, the test has been modified to accommodate cases of age and sex discrimination.6

 The modified McDonnell Douglas prima facie approach requires an employee to show that the employee was (1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer's adverse conduct.

 The purpose of the prima facie test is to 1) remove the most common nondiscriminatory reasons for the employer's action,7 such as poor employee performance, and 2) to force the employer to articulate a nondiscriminatory reason for the discharge.8  Once the employer produces evidence of a nondiscriminatory reason for the discharge, even if that reason later turns out to be incredible, the presumption of discrimination evaporates.9

 After the employer has met its burden of production, the employee must proceed without the benefit of the earlier presumptions.   However, elimination of the presumption does “not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case.” 10  As the United States Supreme Court explained:

A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff's initial evidence.   Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant's explanation is pretextual.   Indeed, there may be some cases where the plaintiff's initial evidence, combined with the effective cross-examination of the defendant, will suffice to discredit the defendant's explanation.[[[[[[[[11 ]

Therefore, “the evidence and inferences that properly can be drawn from the evidence presented during the plaintiff's prima facie case may be considered in determining whether the defendant's explanation is pretextual.” 12

 Once the presumption drops out of the case, the plaintiff retains the ultimate burden of proving discrimination.   Plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the discrimination was defendant's true motive in making the adverse employment decision.13

 To prevail, the employee must submit admissible evidence to prove that the employer's nondiscriminatory reason was not the true reason for the discharge and that the plaintiff's age was a motivating factor in the employer's decision.14  Thus, the employee must prove that the employer's explanation was a pretext for discrimination.   The proofs offered in support of the prima facie case may be sufficient to create a triable issue of fact that the employer's stated reason is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the employer's decision had a discriminatory basis.15  “The strength of the prima facie case and the significance of the disbelieved pretext will vary from case to case depending on the circumstances.   In short, everything depends on the individual facts.” 16

 Ultimately, the plaintiff will have the burden of producing evidence, whether direct or circumstantial, that proves that discrimination was a determining factor in the employer's decision.   Although the majority decision in Hicks appeared to be unambiguous, “many readers have found it to be otherwise.” 17

The effect of Hicks on employer-brought summary judgment motions has been a matter of particular debate.   Some employers have argued that, in order to defeat an employer's motion for summary judgment, Hicks requires plaintiffs to offer substantial evidence both that the employer's articulated reason was false and that the employer's true reason was discriminatory---i.e., a “pretext-plus” standard.   Some plaintiffs, on the other hand, have argued that once a prima facie case of discrimination is put forward, summary judgment for the employer never is appropriate, even if no evidence is put forward to refute the employer's articulated nondiscriminatory reason, because the factfinder's disbelief alone should be enough to permit a finding of pretext.[[18 ]

 We decline to adopt either extreme, and, instead, favor an intermediate position, which is the predominant view among the federal circuits.   We would hold that when viewed in the light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could conclude that the employer's stated reason is a pretext for discrimination for summary judgment to be precluded.   Thus, plaintiff will not always present a triable issue of fact merely by rebutting the employer's stated reason(s);  “put differently, that there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination.” 19  Furthermore, we note that in accordance with nine other federal circuits, “evidence sufficient to discredit a defendant's proffered nondiscriminatory reasons for its actions, taken together with the plaintiff's prima facie case, [may be] sufficient to support (but not require) a finding of discrimination.” 20  “Where ․ either direct or circumstantial evidence from which a fact-finder could rationally conclude that the employer's stated reason is a pretext for discrimination, summary judgment normally should be denied.” 21

III

In light of these principles, we turn to McConnell's case.   Defendants RBH and MMD argue that the plaintiff was not qualified to perform his job, and is therefore unable to satisfy the qualification element of the prima facie case.   An employee is qualified if he was performing his job at a level that met the employer's legitimate expectations.22  By all accounts, the plaintiff's performance was less than stellar.   Indeed, the plaintiff failed to generate enough revenue to pay his own salary.   In his first full year, 1989, the plaintiff generated $70,505.11 in revenue while drawing a salary of $84,351.25 during the same period.   He was terminated at the end of that year.

Rather than evaluate plaintiff's case at the prima facie stage, however, in this case we elect to presume that plaintiff has established a prima facie case.   The purpose of the prima facie case is to force the defendant to provide a nondiscriminatory explanation for the adverse employment action.   That purpose having been served, we move to the plaintiff's evidence that the defendant's proffered nondiscriminatory reason is a pretext for discrimination.

 We conclude that plaintiff's evidence of pretext would have been insufficient to overcome the defendant's motion for summary judgment.   First, the plaintiff argues that his alleged replacement, Lucinda Lawrence, was held to a different standard of performance than he was.   To create an inference of disparate treatment, McConnell must prove that he and Lawrence were similarly situated, i.e., “all of the relevant aspects” of his employment situation were “nearly identical” to those of Lawrence's employment situation.23  One relevant aspect of the two employees, their salaries, was far from identical.   McConnell was paid a base salary of $67,481, while Lawrence's base salary was $24,000.   Additionally, McConnell received benefits that Lawrence did not, such as a private club membership and a leased car.   Further, McConnell had over twenty-five years of experience, while Lawrence had much less comparable experience.   The most significant distinction between the two employees, however, is that McConnell failed to generate enough sales to cover his own salary, while Lawrence generated sales equivalent to nearly 2.3 times her salary in her first year.   Thus, Lawrence was not similarly situated to McConnell because her performance was proportionately higher.   A more apt comparison would have been for McConnell to compare himself to another employee who failed to generate enough sales to cover his salary, but who was retained.   Accordingly, we conclude that the two employees were not “nearly identical” on a “relevant aspect” of their respective jobs, namely, performance.

 Second, we also acknowledge the fact that the plaintiff was employed with the defendant for a relatively brief time.

[I]n cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer.[24]

 The plaintiff has argued that the “same actor” inference should not apply because he was transferred, not hired, as the result of a merger between MMD and RBH. The characterization of plaintiff's job change is not determining, however, because the same person who discharged the plaintiff, Sandy McMillan, had sole authority to bring plaintiff into his organization.   Thus, the “same actor” inference applies because McMillan both approved plaintiff's “transfer” from MMD and discharged plaintiff within a period of eighteen months.   Because the possibility that the manager at RBH would “develop[ ] an aversion to older people” within an eighteen-month period is remote, at best, we conclude that the plaintiff's brief tenure with RBH creates an inference that RBH's decision did not have a discriminatory basis.25  Taking the above inference in combination with the paucity of McConnell's other evidence, we conclude that he did not submit evidence of pretext sufficient to enable a reasonable factfinder to infer that the employer's decision had a discriminatory basis.

Accordingly, we would reverse the decision of the Court of Appeals and reinstate the trial court's grant of summary disposition in this case.

IV

The plaintiff in Town v. Michigan Bell alleges both age and sex discrimination in violation of the Michigan Civil Rights Act.26

  The defendant, Michigan Bell, contends that the plaintiff was transferred because of an overall reduction in its workforce.   The plaintiff's supervisor, Tom Rodgers, testified that he was advised that he had to reduce the number of managers in the department.   This fact was not disputed by the plaintiff.   Further, Rodgers offered a plausible explanation for transferring the plaintiff.   According to the defendant, Aveck's marketing skills were superior to those of the plaintiff.   Additionally, the defendant claimed that the plaintiff had taken too long to develop her staff and had not spent adequate time visiting customers at their places of business.   Because the defendant's burden of production is met by the introduction of evidence that would “support a finding that unlawful discrimination was not the cause of the employment action,” we conclude that the defendant presented sufficient evidence to sustain its burden of production and dissolve the plaintiff's prima facie case.27

In Matras, we held that if an employee is discharged because of a reduction in the employer's workforce, the employee must also present “sufficient evidence on the ultimate question,” namely, whether the employee's age or sex was a determining factor in the employer's decision to discharge that employee.28

 A layoff in the context of an overall workforce reduction provides a nondiscriminatory explanation for the plaintiff's discharge.   This puts the plaintiff's case in the same posture as it would be after the employer articulates any legitimate nondiscriminatory explanation in response to the plaintiff's prima  facie case.   Once the employer offers such an explanation, the presumption of the prima facie case---that the employee's discharge was discriminatory---evaporates and is no longer relevant.29  The plaintiff can no longer rely on the inference of discrimination in the prima facie case, and the evidence must be evaluated in light of the rational inferences it will support.

 The question is whether the plaintiff presented sufficient evidence, taken in a favorable light, to find that age discrimination was a determining factor in the decision to discharge the plaintiff.30  In reviewing a trial court's grant of a directed verdict, we examine the testimony and all legitimate inferences that may be drawn from it in the light most favorable to the plaintiff.31

 The plaintiff's trial strategy was to show that her qualifications were superior to those of Aveck's.   The plaintiff's former job was as a marketing manager.   Although the plaintiff had some marketing experience, her primary experience had been as a manager.   Aveck's experience, on the other hand, had been primarily in marketing and was more extensive than the plaintiff's.   Predictably, much of the trial testimony concerned whether management or marketing skills were more important to the position.

 We agree with the Court of Appeals conclusion that Aveck was qualified for the position.   In her testimony, the plaintiff conceded that Aveck was “probably qualified” for the position, and Aveck testified that he had  trained, in his capacity as an instructor, all the personnel that he would be supervising.   Further, marketing experience was relevant to the position.   Thus, the plaintiff's argument that she was more qualified than Aveck focused on the soundness of Michigan Bell's selection of one competent employee over another, as opposed to the veracity of its explanation.

[T]he 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.[32]

The comparison was not between an unqualified employee and a qualified employee, but instead between two qualified employees.   The plaintiff's proofs, at most, merely raise questions about Michigan Bell's business judgment.   Accordingly, the plaintiff did not create an issue of fact regarding whether the defendant's nondiscriminatory explanation for the plaintiff's transfer was a pretext, much less a pretext for discrimination.33  Further, the plaintiff never overcame Michigan Bell's allegation that she had taken too long to develop her staff and had not spent adequate time visiting customers at their places of business.   Under these circumstances, this Court will not second-guess an employer's decision.

The dissenting Court of Appeals judge argued that the trial court improperly entered a directed verdict for the defendants.   The dissenter argued that “the jury's apparent disbelief of Rodgers' testimony,  together with the other evidence in the case, was sufficient to permit the jury to infer the requisite intentional discrimination.” 34  Other than the presumptions of the plaintiff's prima facie case, we find no evidence in the record to support an inference of discriminatory animus.   Relying on Hicks, supra, the dissenter argued that a jury may draw an inference of discrimination solely from its disbelief of the employer's reason for the discharge.   We agree, however, that this merely acknowledges that evidence of falsity may create an inference of discrimination.   The Hicks Court was unequivocal about not replacing the plaintiff's burden of proving discrimination with the lesser burden of proving falsity, as the following passages demonstrate.

But nothing in law would permit us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer's explanation of its action was not believable.[35 ]

[The plaintiff must show] both that the reason was false, and that discrimination was the real reason.  [Emphasis in original.][36 ]

It is not enough ․ to disbelieve the employer;  the factfinder must believe the plaintiff's explanation of intentional discrimination.[ 37 ]

Even though (as we say here) rejection of the defendant's proffered reasons is enough at law to sustain a finding of  discrimination, there must be a finding of discrimination.  [Emphasis in original.][ 38 ]

“[N]one of this means that trial courts or reviewing courts should treat discrimination differently from other ultimate questions of fact.”[ 39 ]

Taken as a whole, Hicks indicates that, under some circumstances, a plaintiff may create an inference of discrimination through the introduction of evidence showing that the employer's proffered reason is false.   Yet, a plaintiff will not always present a triable issue of fact merely by rebutting the employer's stated reasons.  “[T]hat there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination.” 40  This point is demonstrated by the final disposition of the Hicks case.   On remand, the district court concluded that the defendant's proffered reason for discharging Hicks---alleged rule violations---was a pretext.41  The court was not persuaded that the defendant's actions were based on a discriminatory animus, however, and it entered a judgment for the defendant, which was affirmed by the United States Court of Appeals for the Eighth Circuit.42

We conclude that the plaintiff in the present case failed to introduce sufficient evidence for a reasonable jury to conclude that age or sex discrimination was a determining factor in Michigan Bell's decision to transfer her.   Because we would hold that the plaintiff did not present sufficient evidence of discrimination, the issue whether the plaintiff's transfer constituted a constructive discharge is moot.   The judgment of the Court of Appeals should be affirmed.

In conclusion, we would reverse the decision of the Court of Appeals in McConnell v. Rollins Burdick Hunter, and reinstate the trial court's grant of summary disposition.   We would affirm the decision of the Court of Appeals in Town v. Michigan Bell, upholding the trial court's grant of a directed verdict.

I write separately because I have reservations regarding the lead opinion's articulation of the “qualification” element under the McDonnell Douglas 1 approach.2  I also believe the lead opinion fails to properly analyze plaintiff McConnell's claim because it merely “presume[s] that plaintiff established a prima facie case.”   Brickley, J., op., at p. 70.3  Notwithstanding, I agree, after examining the  evidence in a light most favorable to him, that McConnell failed to establish that age was a determining factor in defendant's adverse employment action.

I

Under the McDonnell Douglas approach, “concerns about [a plaintiff's] performance are more appropriately raised as part of the second and third steps of the ․ scheme.”  Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1227 (C.A.11, 1993), citing, inter alia, Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1495, n. 2 (C.A.11, 1987);  Siegel v. Alpha Wire Corp., 894 F.2d 50, 54 (C.A.3, 1990);  Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1505-1506 (C.A.5, 1988).4  Thus, to satisfy the qualification prong of the prima facie case, under the first stage of the   McDonnell Douglas approach, a plaintiff may simply testify that the “general quality of his work was satisfactory.”  MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1120 (C.A.10, 1991), citing Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 512 (C.A.7, 1986).

Even though the first stage of the approach was not intended to be overly burdensome for an employee to satisfy,5 “ ‘[e]mployers [should be] given wide discretion in setting job standards and requirements and in deciding whether [employees] meet those standards.’ ”  York v. American Telephone & Telegraph Co., 95 F.3d 948, 954 (C.A.10, 1996), quoting Hickman v. Flood & Peterson Ins., Inc., 766 F.2d 422, 425 (C.A.10, 1985).   The job standards and requirements, however, are to be reasonable and consistently applied.  Id. As noted by the United States Court of Appeals for the Seventh Circuit in Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1219 (C.A.7, 1980):

Qualification obviously depends on the nature of ․ business at any given time․  To ignore the shifting nature of qualification from time to time would make the qualification requirement meaningless and would encourage the harassment of small businesses having informal personnel practices, with unfounded suits.[ 6 ]

 Therefore, when evaluating its employees, employers are to evaluate them on the basis of their merits, in conjunction with the nature of their businesses at the time of the evaluation, and not on the basis of any discriminatory criterion.   See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993), quoting Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422, 105 S.Ct. 2743, 2756, 86 L.Ed.2d 321 (1985).

II

In the instant case, reviewing plaintiff's proofs and drawing any reasonable inferences in his favor, I conclude that he presented evidence establishing a question of fact regarding whether he was minimally qualified.   He stated that he thought his job performance was better than those situated similarly to him.7  He also noted that, not only did other producers have to  increase their production but, except for Thomas O'Meara, he may have been producing the most.8

As to whether he was replaced, Bonnie Morton testified that Lucinda Lawrence assumed a majority of plaintiff's accounts.   Defendant contends that Lutz assumed most of the responsibility for plaintiff's accounts;  however, whether Lawrence replaced plaintiff must be left to the province of the trier of fact because it involves findings of fact and weighing credibility.9

Because plaintiff was fifty-six years old at the time of his discharge and others similarly situated and outside the protected class were not affected by defendant's adverse employment action, as well as the dispute surrounding whether Lawrence replaced plaintiff, I conclude that he established a prima facie case of age discrimination.

In rebutting the presumption of discrimination, defendant asserted that plaintiff was discharged for poor performance.   Plaintiff argues that defendant's proffered explanation is merely a pretext for age discrimination.   He asserts that defendant committed age discrimination by discharging him and replacing him with the younger Lucinda Lawrence.   Plaintiff contends that Sandy McMillan, his supervisor, informed  him “that he was expected to generate revenue equal to 3 times his salary and benefit package.”   He also contends that “Lawrence was not held to this same standard.”   However, there is no support in the record for plaintiff's claim that he was expected to generate revenues of two to three times his salary.   Plaintiff's claim amounts to an unsubstantiated self-serving allegation.10  Plaintiff places great weight on defendant's hiring of Lawrence.   However, Lawrence was merely his replacement, not someone who was similarly situated.11  It appears, on the basis of the evidence he presented, that Lutz was plaintiff's best comparison.12  Lutz testified that he at least “covered [his] salary and  fringes.”   Yet, as the lead opinion observes, “[p]laintiff generated $70,505.11 in revenue while drawing a salary of $84,351.25․”  Op., at p. 69.   Not only does the record indicate that Lutz generated more than plaintiff, but O'Meara generated more as well.

The record also evidences that defendant was reasonable in its treatment of plaintiff.   In January 1989, McMillan informed plaintiff that he needed to increase his production.   The following September, plaintiff testified that he met with McMillan and Thomas O'Meara, plaintiff's direct supervisor, for a performance evaluation.   In that meeting, they informed him that his employment was in jeopardy, barring cognizable improvement in production by year-end.13  Plaintiff did not increase his production and, on January 22, 1990, McMillan discharged him for poor performance.14

 Conclusion

I conclude that there is no evidence “that the employer's proffered explanation is unworthy of credence.”  Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981), citing McDonnell Douglas, supra at 804-805, 93 S.Ct. at 1825-1826.   The record now before us amply demonstrates that plaintiff had a full and fair opportunity to prove age discrimination---evidence of which I find lacking.

I concur with the majority that plaintiff McConnell established a prima facie case of discrimination, but failed to present sufficient evidence so that defendant's actions were a result of illegal discrimination.   However, I respectfully dissent from the lead opinion that would hold that plaintiff Town failed to present sufficient evidence so that reasonable minds could conclude age was a determining factor in plaintiff's constructive discharge.

As to plaintiff McConnell, I agree with Justice Riley that plaintiff presented sufficient evidence to satisfy a  prima facie case of age discrimination.   As she noted, concerns about a plaintiff's performance are more appropriately considered at the second and third stages of the McDonnell Douglas 1 burden-shifting test.   This is especially true where, as here, plaintiff has alleged that other employees were also performing as poorly as he.   Therefore, defendant's reason for firing plaintiff was because he was not performing well, not that he was unqualified.

I disagree with Justice Brickley's conclusion that, because plaintiff's manager hired and fired plaintiff within a relatively short period of time, no reasonable jury could find that discrimination was the cause of the termination.   Initially, as plaintiff indicates, he was not hired by the same manager that fired him because McMillan was not the person who decided to hire plaintiff.   The record establishes that in 1988, plaintiff was told that MMD of Michigan (plaintiff's former employer) would be merging with defendant.   Mr. McMillan characterized this activity as a “merger.”   Furthermore, plaintiff was not required to fill out an employment application or go through any of the typical new hire process.   Therefore, taken in the light most favorable to plaintiff, Justice Brickley's assertion that the same actor hired and fired plaintiff is factually incorrect.

In addition to the factual inaccuracies, I would decline to adopt a rigid test for determining whether plaintiff was discriminated against.   Justice Brickley's approach can be characterized as the “same actor inference.”   Even assuming that Mr. McMillan was the  same person who hired and fired plaintiff, the inference should not be used by the defendant as a shield from liability;  rather, the inference should be used as mere evidence in support of defendant's claim.

In Waldron v. SL Industries, Inc., 56 F.3d 491, 496, n. 6 (C.A.3, 1995), the United States Court of Appeals for the Third Circuit rejected the same actor inference, stating:

[W]e agree with the position advanced by the Equal Employment Opportunity Commission as amicus curiae:  “where ․ the hirer and firer are the same and the discharge occurred soon after the plaintiff was hired, the defendant may of course argue to the factfinder that it should not find discrimination.   But this is simply evidence like any other and should not be accorded any presumptive value.”  ․ Additionally, as the EEOC further notes, it was plausible under the evidence presented at summary judgment that [the defendant] would hire [the plaintiff], use his skills for a few years while a younger person was being “groomed” for his position, then fire [the plaintiff] because of his age.

Likewise, the Iowa Supreme Court has also rejected the “same actor inference” in Vaughan v. Must, Inc., 542 N.W.2d 533, 539 (Iowa, 1996).   It stated,

To apply such a wooden rule in an area where each case is factually distinct would effectively grant every employer a grace period at the beginning of each employee's tenure ․ with no fear of sanctions.

Therefore, I believe that the inference of nonbias is an evidentiary matter for the finder of fact to consider, and should not be a something upon which the court should decide a case as a matter of law.

However, I concur with Justice Riley that plaintiff failed to present sufficient evidence upon which reasonable minds could conclude that age was a determining factor in defendant's decision to fire him.   Plaintiff contends that he was expected to generate revenue equal to three times his salary and benefit package, and that others were not held to the same standard.   However, even if others were not making “three times” their salary and benefits, it is undisputed that plaintiff was not even generating revenue equal to “one time” his salary and benefits.   Furthermore, while it is true that plaintiff presented evidence that production was down across the board, he did not present any figures demonstrating that other employees who were generating less revenue than “one time” their salary were retained by the employer.   In short, plaintiff failed to show that persons who were performing as poorly he was were treated differently.   Therefore, I concur with the majority that plaintiff McConnell failed to show that reasonable minds could conclude that plaintiff was being discriminated against on the basis of age.

As to plaintiff Town, the majority would hold that because both plaintiff and Aveck were qualified for their positions, it was purely a business decision for defendant to retain Aveck.   I disagree.   While it is true that courts should not second-guess the sound business decisions of an employer, an employer's actions are not entirely beyond review.   Where, as here, the plaintiff has alleged that the decision was not a sound business decision, but rather the product of illegal discrimination, we must review the proofs in the light most favorable to plaintiff to determine whether reasonable minds could conclude that age was a determining factor in its decision to transfer plaintiff.   We cannot simply accept defendant's assertion that the  decision was a business decision without having viewed the record in the light most favorable to the plaintiff.

The majority concludes that, because both employees were qualified, the decision of the employer should stand.   However, the majority ignores the proofs plaintiff presented at trial, which, taken in the light most favorable to her, would indicate that she was more qualified than Aveck.   As noted by the Court of Appeals dissenting judge,

Part of [plaintiff's] strategy was to show that the testimony of Tom Rodgers, plaintiff's supervisor, regarding Aveck's and plaintiff's qualifications was unworthy of belief.   A reasonable trier of fact could have concluded, after evaluating Rodgers' testimony, that Rodgers was unfamiliar with Aveck's skills, that plaintiff's skills and qualifications were superior to Aveck's, that Rodgers' stated reasons for choosing Aveck were a pretext, and that plaintiff's age and sex were determining factors in Rodgers' decision.  [Unpublished opinion, issued February 16, 1995 (Docket No. 144980) (White, J. dissenting), op., at p. ---- (emphasis added).]

Furthermore, I agree with the dissenting judge that a plaintiff must do more than simply disprove a proffered reason.  Id. Here, plaintiff did not rely solely on the fact that she lost her job to a younger, male employee.   Rather, she also presented evidence that she was more qualified than Aveck.   Furthermore, she presented evidence that the defendant violated its own policy on involuntary transfers when it transferred her rather than Aveck who had substantially less seniority than plaintiff.   Finally, plaintiff presented evidence that the reason she was involuntarily transferred in violation of the company's internal policy  was because it knew that she could not accept the new position because she could not work the evening hours the job required, and that she previously refused the same position, thus creating a likelihood that the older employee would retire.   Plaintiff presented sufficient evidence so that reasonable minds could conclude that a motivating factor in involuntarily transferring plaintiff was her age.   Indeed, reasonable minds did conclude that age was a determining factor, as evidenced by the jury's verdict in plaintiff's favor.

Unlike the majority, I would hold that it was up to the jury to decide whether defendant discriminated against plaintiff.   The majority has improperly assumed the role of the jury by concluding that defendant, as a matter of law, did not discriminate against plaintiff.   Obviously, reasonable minds can and have disagreed with the majority.   Therefore, I respectfully dissent.

FOOTNOTES

1.   The plaintiff worked for Miller, Mason, and Dickenson (MMD) immediately before joining RBH. Both firms were subsidiaries of another corporation.   The relationship between these two firms and the circumstances of the plaintiff's move (it was disputed whether he transferred to RBH or was hired) from one firm to the other is not relevant to our disposition of this case.

2.   509 U.S. 502, 525, 113 S.Ct. 2742, 2756-2757, 125 L.Ed.2d 407 (1993).

3.   Matras v. Amoco Oil Co., 424 Mich. 675, 683, 385 N.W.2d 586 (1986).

4.   Id.

5.   411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

6.   Matras, n. 3 supra.

7.   Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-1094, 67 L.Ed.2d 207 (1981).

8.   Hicks, supra at 510-511, 113 S.Ct. at 2748-2749.

9.   Burdine, n. 7 supra at 255, 101 S.Ct. at 1094-1095.

10.   Id.

11.   Id. at 255, n. 10, 101 S.Ct. at 1095, n. 10.

12.   1 Lindemann & Grossman, Employment Discrimination Law, (3d ed), p 23.

13.   Id.;  McDonnell Douglas, supra at 804, 93 S.Ct. at 1825;  Combsv. Plantation Patterns, 106 F.3d 1519, 1528 (C.A.11, 1997).

14.   Hicks, supra at 507-508, 113 S.Ct. at 2747-2748.

15.   Udo v. Tomes, 54 F.3d 9, 13 (C.A.1, 1995).

16.   Woods v. Friction Materials, Inc., 30 F.3d 255, 260, n. 3 (C.A.1, 1994).

17.   Lindemann, n 12 supra at 24.

18.   Id. at 25 (emphasis in original).

19.   Id. at 26 (emphasis in original).

20.   Combs, n. 13 supra at 1535.

21.   Lindemann, n 12 supra at 26-27.

22.   Bouwman v. Chrysler Corp., 114 Mich.App. 670, 679, 319 N.W.2d 621 (1982);  Menard v. First Security Services Corp., 848 F.2d 281, 285 (C.A.1, 1988)(“To establish that he was ‘qualified’ a complainant must show ‘that he was doing his job well enough to rule out the possibility that he was fired for inadequate job performance, absolute or relative’ ”);  McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (C.A.6, 1990) (“at a level which met his employer's legitimate expectations”).

23.   Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (C.A.6, 1994).

24.   Proud v. Stone, 945 F.2d 796, 797 (C.A.4, 1991).

25.   Lowe v. J B Hunt Transport, Inc., 963 F.2d 173, 175 (C.A.8, 1992).

26.   “An employer shall not ․ discharge ․ an individual ․ because of ․ age [or] sex․”  M.C.L. § 37.2202(1)(a);  M.S.A. § 3.548(202)(1)(a).

27.   Hicks, supra at 507, 113 S.Ct. at 2747.   For purposes of analysis only, we presume that the plaintiff has established a prima facie of discrimination.

28.   Matras, n. 3 supra at 684, 385 N.W.2d 586.

29.   Hicks, supra at 510, 113 S.Ct. at 2748-2749.

30.   Matras, n. 3 supra at 682-683, 385 N.W.2d 586.   For purposes of analysis only, we assume that the plaintiff's transfer constituted a constructive discharge.

31.   Mulholland v. DEC Int'l Corp., 432 Mich. 395, 415, 443 N.W.2d 340 (1989).

32.   Fuentes v. Perskie, 32 F.3d 759, 765 (C.A.3, 1994).

33.   Dubey v. Stroh Brewery Co., 185 Mich.App. 561, 566, 462 N.W.2d 758 (1990).

34.   Unpublished opinion per curiam, issued February 16, 1995 (Docket No. 144980), slip op at 2.

35.   Id. at 514-515, 113 S.Ct. at 2751-2752.

36.   Id. at 515, 113 S.Ct. at 2751-2752.

37.   Id. at 519, 113 S.Ct. at 2753-2754.

38.   Id. at 511, n. 4, 113 S.Ct. at 2749, n. 4.

39.   Id. at 524, 113 S.Ct. at 2756.

40.   1 Lindemann, n 12 supra at 26.

41.   1995 WL 879968 (E.D.Mo.).

42.   90 F.3d 285 (C.A.8, 1996).

1.   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

2.   I agree with the lead opinion that plaintiff Town failed to establish that defendant's adverse employment action was a pretext to age and sex discrimination.   Merely because Town believed that she was more qualified than James Aveck is not enough to carry her burden of persuasion under the McDonnell Douglas approach.   The Civil Rights Act “protects, [not the qualified worker, but] as a practical matter, the imperfect older worker from being treated worse than the imperfect younger one.”   See Shager v. Upjohn Co., 913 F.2d 398, 403 (C.A.7, 1990).   In Town's case, both she and Aveck were qualified.   Hence, it became purely a business decision when defendant decided to transfer her, and this Court should be reluctant to second-guess management.

3.   The lead opinion also errs in concluding that “plaintiff's brief tenure with [Rollins Burdick Hunter] creates an inference that RHB's decision did not have a discriminatory basis.”   Op., at p. 70.   It reaches its conclusion by claiming “McConnell was both hired and discharged by the same manager within a period of eighteen months.”   Op., at p. 70.   I disagree.   First, plaintiff was not hired by the same “actor” that discharged him.   RHB assumed all liability of [Mason & Dickenson, Inc.'s] debts.   Hence, plaintiff, along with two other employees, were transferred from MMD to RBH. They were not considered new hirees;  no new employment application was completed and plaintiff's personnel folder disclosed that plaintiff's date of hire with RBH was April 1, 1986, the date he commenced his employment with MMD. Second, assuming plaintiff was hired and discharged by the same actor, “this is simply evidence like any other and should not be accorded any presumptive value.”  Waldron v. SL Industries, Inc., 56 F.3d 491, 496, n. 6 (C.A.3, 1995).   See also Vaughan v. Must, Inc., 542 N.W.2d 533, 539 (Iowa, 1996).

4.   In Clark, supra at 1227, n. 3, the court observed:Whether an employee possesses the qualifications for a position thus is generally distinct from the issue whether he performed the job satisfactorily.   But this decision should not be read to hold that evidence of performance is never relevant at the prima facie stage.   We have permitted plaintiffs alleging unlawful discharge to establish that they were qualified by introducing evidence that they had performed the job without complaint.   If the employee relies on satisfactory job performance to establish his qualifications, evidence of poor job performance may also be relevant at the prima facie stage.  [Citations omitted;  emphasis added.]In the instant case, plaintiff does not rely on “satisfactory job performance” to establish his qualifications.

5.   Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-1094, 67 L.Ed.2d 207 (1981).

6.   The Kephart court went further by incorporating by reference the district judge's opinion and order, which stated:The Age Discrimination in Employment Act, however, was not intended as a vehicle for judicial review of business decisions.   See Havelick v. Julius Wile Sons & Co., 445 F.Supp. 919, 926 (S.D.N.Y., 1978).   The question before the court is not whether the company's methods were sound, or whether its dismissal of Kephart was an error of business judgment.   The question is whether he was discriminated against because of his age.   Although an employer may not make unreasonable expectations, and must make the employee aware of just what [its ] expectations are, beyond that the court will not inquire into the defendant's method of conducting its business.  [Id. at 1223 (emphasis added).]   Nonetheless, “the qualifications offered by the employer [must be] reasonable [as well as] consistently applied.”  [Kephart, supra at 1219 (emphasis added).]

7.   At plaintiff's deposition the following exchange occurred between plaintiff and defense counsel:[Defense Counsel ]:  So, in January 1989 you thought you were performing at least satisfactorily and better than satisfactorily?[Plaintiff]:  I was out working.   I was bringing in some customers.   Yes, the dollar figures weren't up there, but I had more money coming in than some guys that had been there that had business like Tom O'Meara, but he wasn't bringing any new groups.   There wasn't anybody bringing new groups in and so forth.   That I believe I was the one that was bringing in some business.   The dollar volume wasn't quite that high and even with the service fees that I had coming in from the old businesses that I had it's my opinion that I had enough money coming in or more money than most of the people that were in there.

8.   John Lutz, a producer in employee benefits who had twenty-one years experience in the actuarial area with Blue Cross/Blue Shield, testified that he did not receive a raise in September 1989 because his performance, as well as that of other producers, was down.   In particular, he stated that “at a producers meeting [it was announced] that the office results were not good.   Therefore, nobody gets a raise․”

9.   In support of its contention that plaintiff was not replaced, defendant cites Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (C.A.6, 1990).   In Barnes, however, the United States Court of Appeals for the Sixth Circuit was addressing when an employee is replaced under a reduction in work force situation.

10.   In concluding that “[t]here is a question of fact on whether [McConnell] was held to a different performance standard than the other employees,” the Court of Appeals noted that “deposition testimony establishe[d] that other employees, particularly the younger [Lawrence], were not held to comparable production standards.”   Unpublished opinion per curiam of the Court of Appeals, issued March 22, 1995 (Docket No. 146449), p. 2. However, the Court of Appeals mistakenly references plaintiff's own deposition.   To establish a genuine issue of material fact that he was not held to “comparable” standards, plaintiff may not merely rely on unsubstantiated allegations, but, rather, must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute.   See MCR 2.116(G)(4).   See also Durant v. Stahlin, 375 Mich. 628, 638-639, 135 N.W.2d 392 (1965).

11.   “[A]llowing a cause of action any time a worker can show replacement by a younger person ignores the realities of the workplace noted in Laugesen [v. Anaconda Co., 510 F.2d 307 (C.A.6, 1975) ], i.e., that older workers will, more often than not, be replaced by younger persons.”  Matras v. Amoco Oil Co., 424 Mich. 675, 708, 385 N.W.2d 586 (1986)(Riley, J., dissenting).In this respect, the lead opinion is correct.   No anomaly exists in defendant's hiring of Lawrence.   As noted by the lead opinion:McConnell was paid a base salary of $67,481, while Lawrence's base salary was $24,000.   Additionally, McConnell received benefits that Lawrence did not, such as a private club membership and a leased car.  [Op., at p. 70.]

12.   Lutz is probably most similarly situated to McConnell.   However, others may include O'Meara and Kathy Kristopik.

13.   In his deposition, plaintiff explained what McMillan and O'Meara told him:[Defense Counsel ]:  What exactly do you claim Sandy [McMillan] told you, Sandy and Tom [O'Meara] told you in this meeting of September of '89 about your performance?[Plaintiff ]:  About the performance that the dollars were down.[Defense Counsel ]:  Your dollars were down?[Plaintiff's ]:  Everybody's dollars were down, but mine were down.[Defense Counsel ]:  And that your dollars had to improve?[Plaintiff's ]:  Well, they said that production has got to improve, we got to get more money, more money into the house or there will have to be some adjustment made.  [Emphasis added.]

14.   It is uncontested that plaintiff's annual production was less than his base pay and lagged far behind his total compensation package.   Hence, because plaintiff was on notice that he had to increase his production, I conclude that defendant justifiably considered his salary and total benefits in relation to his productivity as grounds for his discharge.In Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125-1126 (C.A.7, 1994), quoting in part Metz v. Transit Mix, Inc., 828 F.2d 1202, 1212 (C.A.7, 1987) (Easterbrook, J., dissenting), the court noted that the Supreme Court's decision in “Hazen Paper Co. vindicates the dissent in Metz which contended that ‘[w]age discrimination is age discrimination only when wage depends directly on age, so that the use for one is a pretext for the other;  high covariance is not sufficient․’ ”  In Metz, supra at 1212-1213, Judge Easterbrook stated:[E]mployers always should be entitled to consider the relation between a particular employee's wage and his productivity․  Many people under 40 (the lower bound of the protected group) earn $26,000 or more;  if such a salary exposes them to discharge on economic grounds, then it should expose older employees to discharge.   You do not get immunity from an otherwise lawful employment decision by growing old.   As my colleagues say, the ‘ADEA is aimed at protecting the individual employee’ but what it protects each employee against is age discrimination.  [Emphasis added.]

1.   McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

BRICKLEY, Justice.

BOYLE and WEAVER, JJ., concurred with BRICKLEY, J.