Dwight Gregg v. Creative Foam Corporation ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DWIGHT GREGG, UNPUBLISHED
April 20, 2023
Plaintiff-Appellant,
v No. 361562
Genesee Circuit Court
CREATIVE FOAM CORPORATION, LC No. 21-115239-CD
Defendant-Appellee.
Before: O’BRIEN, P.J., and MURRAY and LETICA, JJ.
PER CURIAM.
In this action arising from employment discharge, plaintiff, Dwight Gregg, appeals as of
right the order granting summary disposition in favor of defendant, Creative Foam Corporation.
On appeal, plaintiff contends that he was terminated for exercising his rights to compensation for
suffering a work-related injury and that he was discriminated against in light of his age and sex,
and therefore, the trial court erred in dismissing his claims. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
In September 2014, plaintiff obtained employment with defendant as a manufacturing
supervisor. Plaintiff was 55-years old at the time of hire. He claimed that he performed his work
in a satisfactory or effective manner until he suffered a work-related hand injury on June 24, 2019,
that required surgical repair and placement of metal screws. Consequently, plaintiff exercised
rights under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., to obtain
benefits to cover his loss of income and related medical expenses. Upon his return to work,
however, plaintiff asserted that he was subjected to unnecessary warnings, discipline, and a
performance improvement plan (PIP) between July 1 and November 25, 2019, “for acts and
omissions for which he was not culpable.” He was purportedly harassed and treated differently
than “similarly younger and female supervisors.” Yet, plaintiff continued to perform his work in
a minimally satisfactory or effective manner and met the requirements of the PIP. Despite
plaintiff’s performance in an effective manner, defendant’s human resources manager notified
plaintiff that he was immediately terminated on January 21, 2020, without any specified reason.
Plaintiff contended that his termination was “unjustified and otherwise wrongful, discriminatory,
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and retaliatory action.” It was further submitted that the human resources manager recognized that
the termination of employment was unjustified and contrary to the WDCA, the Michigan Elliott-
Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., and public policy, because plaintiff was
required to sign a separation agreement and release of claims in order to receive a minimal
severance payment. Plaintiff raised three counts arising from his discharge: (I) retaliation for
exercising rights under the WDCA and in violation of Michigan’s public policy; (II) violation of
ELCRA – age discrimination; and (III) violation of ELCRA – sex discrimination.
Defendant moved for summary disposition under MCR 2.116(C)(10).1 It asserted that
summary disposition was appropriate when plaintiff failed to establish a prima facie case of
discrimination under the ELCRA or WDCA retaliation because defendant had a legitimate,
nondiscriminatory, and nonretaliatory basis for terminating plaintiff’s employment, the failure to
comply with the PIP plan. Specifically, defendant alleged that plaintiff was not proficient in the
company software program known as Plex, that was responsible for everything from materials
management to employee attendance. It was further claimed that plaintiff did not collaborate and
work cooperatively with his peers or his employees. Additionally, defendant contended that
plaintiff failed to exercise a right to invoke a WDCA claim by failing to follow defendant’s policy
regarding treatment of injuries and by immediately seeking care from plaintiff’s own physician.
To support its dispositive motion, defendant submitted plaintiff’s deposition testimony, plaintiff’s
performance reviews, the PIP, a record of plaintiff’s altercation with peer Joshua Buck, employee
injury logs, and documents addressing the performance of other employees.
Plaintiff opposed defendant’s motion for summary disposition. He contended that the facts
and inferences demonstrated that factual issues precluded summary disposition. Plaintiff claimed
that defendant failed to cite to the deposition testimony of Doug Morgan, plaintiff’s former
supervisor, because it demonstrated that factual issues existed. Plaintiff contended he ended his
existing employment to accept the offer from defendant and negotiated a salary and vacation time
that exceeded the benefits of other supervisors; therefore, plaintiff’s peers resented his increased
benefits and refused to collaborate with plaintiff. Plaintiff received only limited on-the-job
training that consisted of shadowing others. Plaintiff claimed that his performance reviews
established that he met expectations, he received bonuses and raises, and he was capable of
operating and closing the plant. Furthermore, plaintiff received no warnings about his performance
until he raised the claim for WDCA benefits. Although plaintiff did not provide the specific ages
and genders of his peers with their performance records, it was apparent to plaintiff that his injury
and the different treatment of other supervisors demonstrated that he was terminated for his
workplace accident. Plaintiff contended that he demonstrated a prima facie case of retaliation
under the WDCA and discrimination premised on age and sex contrary to the ELCRA. Because
plaintiff was treated differently than his peers, there were factual issues that precluded summary
disposition.
1
Defendant also moved for summary disposition under MCR 2.116(C)(7), alleging that plaintiff’s
claims were barred by a shortened limitations period set forth in his employment documentation.
The trial court did not rule on this issue, and it is not challenged on appeal. Therefore, we do not
address it.
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In reply, defendant submitted that plaintiff ignored the facts that plaintiff had discipline
issues before his injury, PIP, and termination. Additionally, plaintiff failed to refute defendant’s
nondiscriminatory reason for its discipline, PIP, and termination. Plaintiff was required to present
evidence of pretext and he failed to do so. He did not demonstrate a discriminatory animus that
motivated defendant. Therefore, defendant claimed entitlement to summary disposition.
The trial court granted defendant’s motion for summary disposition in a written order. In
addressing the retaliation claim, the trial court stated:
Defendant alleges that Plaintiff did not validly assert a claim/right to
workers’[]compensation benefits/reimbursement under Defendant’s injury policy
and the WDCA. More specifically, Plaintiff did not seek medical treatment for the
subject injury immediately with a healthcare provider of Defendant in violation of
Defendant’s injury policy. Instead, he e-mailed management of Defendant roughly
two-and-a-half hours later stating that he would have his hand looked at by his own
provider.
Also, Defendant alleges further that a valid assertion of rights under the
WDCA by Plaintiff required him to initially treat with Defendant’s choice of a
provider for him for at least twenty-eight days before Plaintiff could seek treatment
with a provider of his own choosing. That is, it is only after twenty-eight days from
inception of medical care furnished by Defendant to Plaintiff that he could have
treated with a provider of his own choice by his giving to Defendant the name of
the provider and his intention to treat with same. Yet, Plaintiff never sought or
accepted medical care with any provider furnished to him by Defendant nor notified
Defendant of his intention to treat with a provider of his choosing before he saw
the provider. Rather, Plaintiff treated with the provider within a day of the injury
such that assertion by Plaintiff of his rights under the WDCA was rendered
invalid/unenforceable/inoperative.
In view of the above, the Court finds that Plaintiff failed to follow the
directive of Defendant’s injury policy and the WDCA for him to seek medical
treatment for the injury immediately with a healthcare provider of Defendant before
he treated with his own provider. In turn, the Court finds that, since Plaintiff did
not assert a right afforded to him under the WDCA, then Defendant could not have
retaliated against Plaintiff for his filing a claim under the WDCA.
In further support of such finding, the Court notes that, although no
production supervisors of Defendant (other than allegedly Plaintiff) sustained
workers’ []compensation injuries, over forty employees of Defendant did so
between January 1, 2018 and December 31, 2019 (i.e., a full two-year period of
time), and none of them was terminated by Defendant. And, nearly seven months
elapsed between the date of the filing of the subject claim (i.e., June 27, 2019) and
the termination (i.e., January 21, 2020).
The trial court also granted summary disposition of the ELCRA claim, stating:
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The Court finds that there is not direct evidence here of intentional age
and/or sex discrimination by Defendant against Plaintiff such that the “mixed
motive” test cannot be applicable here. As such, the Court finds that Plaintiff’s
claim must be analyzed under the three-part “McDonnell Douglas[2] burden-
shifting” test. In this way, Plaintiff can attempt to demonstrate such discrimination
through circumstantial or indirect evidence, whereby Plaintiff can present a
rebuttable prima facie case on the basis of proofs satisfying four elements from
which a factfinder could infer that Plaintiff was a victim of unlawful age and/or sex
discrimination by Defendant.
Toward that end, the Court finds that Plaintiff: 1) was a member of a
protected class; 2) suffered an adverse employment action; and 3) was qualified for
the position. The only remaining question as it relates to Plaintiff’s attempt to
establish the prima-facie case, then, is: 4) whether Plaintiff was terminated from
his employment with Defendant under circumstances giving rise to an inference of
unlawful age and/or sex discrimination by Defendant against Plaintiff. In this
regard, circumstances can give rise to an inference of such discrimination where
Plaintiff was treated differently than persons of a different class for the same or
similar conduct. Alternatively, background information of age and/or sex
discrimination and evidence of ageist and/or sexist statements and comments by
Defendant can certainly be used as potent circumstantial evidence of Defendant’s
potential biased decision-making and existence of a discriminatory atmosphere at
Defendant to, in turn, establish circumstantial evidence of individualized
discrimination directed at Plaintiff. While evidence of a discriminatory atmosphere
at Defendant may not be conclusive proof of discrimination by Defendant against
Plaintiff, such evidence can tend to add “color” to decision-making processes and
influences behind actions taken by Defendant with respect to Plaintiff.
To begin its analysis of the answer to this question, the Court notes that
there appears to be no background information of age and/or sex discrimination and
evidence of ageist and/or sexist statements and comments by Defendant to be used
as potent circumstantial evidence of Defendant’s potential biased decision-making
and existence of a discriminatory atmosphere at Defendant to, in turn, establish
circumstantial evidence of individualized discrimination directed at Plaintiff. Plus,
Plaintiff was one of ten production supervisors employed by Defendant between
2014 and 2020, 55-years old when he was hired by Defendant in 2014, and 60-
years old when he was terminated from his employment by Defendant in 2020. The
Court finds that all of the production supervisors were sufficiently similarly
(although not necessarily identically) situated with respect to each other as it relates
to their corresponding job duties and responsibilities and being evaluated and
disciplined by Defendant. The age and sex of the other nine production supervisors
were, respectively, as follows: 1) 60-year-old female; 2) 48-year-old male; 3) 43-
year-old female; 4) 54-year-old male; 5) 61-year-old female; 6) 58-year-old male;
2
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 35 L Ed 2d 668 (1973).
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7) 38-year-old male; 8) 60-year-old male; and 9) 60-year-old male. On top of that,
Plaintiff’s position was filled by a 54-year-old male. As can easily be seen, there
were only three females of those nine . . . with four of them being in their sixties,
two of them in their fifties, two of them in their forties, and only one of them in his
thirties.
In contemplation of all this, the Court finds that, considering the evidence
above in the light most favorable to Plaintiff, reasonable minds could not differ
with each other that Plaintiff was not terminated from his employment with
Defendant under circumstances giving rise to an inference of unlawful age and/or
sex discrimination by Defendants against Plaintiff. In turn, the Court finds further
that there is no genuine issue of material fact on this issue.
Therefore, the Court determines that Plaintiff has not established a pre-
textual “McDonnell Douglas” type prima-facie case of prohibited age and/or sex
discrimination against Plaintiff by Defendant. Consequently, the Court need not
analyze the remaining factors of the “McDonnell Douglas burden-shifting” test.
Accordingly, the trial court granted defendant’s dispositive motion because it found no genuine
issue of material fact that plaintiff was retaliated against for filing a claim under the WDCA and
no evidence of termination arising from unlawful age or sex discrimination. The trial court
declined to award costs or fees to any party. From this ruling, plaintiff appeals.
II. STANDARDS OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo. Batista
v Office of Retirement Servs, 338 Mich App 340, 354; 980 NW2d 107 (2021). A motion for
summary disposition premised on MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
Charter Twp of Pittsfield v Washtenaw Co Treasurer, 338 Mich App 440, 449; 980 NW2d 119(2021). The moving party must identify and support the issues to which the moving party believes
there is no genuine issue of material fact, and the affidavits, pleadings, depositions, admissions,
and other documentary evidence submitted with the motion must be examined. Id. Once the
moving party makes and supports its motion, the opposing party may not rest on mere allegations
or denials in the pleadings, but must submit documentary evidence setting forth specific facts to
demonstrate a genuine issue for trial. Id.Mere conclusory allegations that are devoid of detail are insufficient to create a genuine
issue of material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362, 371-372; 547 NW2d 314(1996). When an opposing party provides mere conclusions without support for its position with
underlying foundation, summary disposition in favor of the moving party is proper. See Rose v
Nat’l Auction Group, 466 Mich 453, 470; 646 NW2d 455 (2002).
III. WDCA
Plaintiff first alleges that the trial court erred in dismissing his WDCA claim because there
were genuine issues of material fact. We disagree.
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The primary objective of the WDCA is to promptly provide benefits to employees that
suffer an injury in the scope of their employment. Dunbar v Dep’t of Mental Health, 197 Mich
App 1, 6; 495 NW2d 152 (1992). Although the WDCA did not initially include a retaliatory-
discharge cause of action, the Legislature codified such a cause of action. Cuddington v United
Health Servs, Inc, 298 Mich App 264, 272; 826 NW2d 519 (2012). MCL 418.301(13) now
provides:
A person shall not discharge an employee or in any manner discriminate against an
employee because the employee filed a complaint or instituted or caused to be
instituted a proceeding under this act or because of the exercise by the employee on
behalf of himself or herself or others of a right afforded by this act.
In Cuddington, 298 Mich App 264-265, this Court explained the application of MCL 418.301(13):
The plain language of MCL 418.301(13) establishes that a petition for
workers’ compensation benefits is not a condition precedent to all retaliatory-
discharge claims. Rather, the statute creates a cause of action when an employer
terminates or otherwise discriminates against an employee in retaliation (1) for
filing a complaint under the WDCA, (2) for instituting or causing a proceeding to
be instituted under the WDCA, or (3) “because of the exercise by the
employee . . . of a right afforded by this act.” By including within the prohibitions
set forth in MCL 418.301(13) that an employer may not retaliate against an
employee who has exercised a protected right, the Legislature recognized that an
employer could circumvent the goals of the WDCA by firing an injured employee
before the employee had any opportunity to formally initiate workers’
compensation proceedings. Had the statute failed to include the final alternative
clause, the result would be “a foot race, with the winner being determined by the
event to first occur – either the firing of the employee or the filing of a claim with
the Workers’ Compensation Board.” Bullard v Alcan Aluminum Corp, 113 Fed
Appx 684, 690 (CA 6, 2004) (quotation marks and citation omitted). [Emphasis in
original.]
An action for wrongful discharge for filing a worker’s compensation action arises from tort, not
contract law. See Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 248-
249; 531 NW2d 144 (1995).
The Cuddington Court also addressed the requirements to support a WDCA retaliation
claim:
To establish a prima facie case of retaliation under the WDCA, an employee who
has suffered a work-related injury must present evidence: (1) that the employee
asserted a right to obtain necessary medical services or actually exercised that right,
(2) that the employer knew that the employee engaged in this protected conduct,
(3) that the employer took an employment action adverse to the employee, and
(4) that the adverse employment action and the employee’s assertion or exercise of
a right afforded under MCL 418.315(1) were causally connected. [Cuddington,
298 Mich App at 275.]
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Plaintiff met the first requirement by asserting a right to medical care from an injury that occurred
at work at the company’s expense. Secondly, defendant, as the employer, knew that plaintiff
requested this care and engaged in protected conduct. Plaintiff notified human resources manager
Rick Waterson and Morgan of his injury. Waterson ensured that the necessary documents were
prepared. Defendant’s third-party administrator for worker’s compensation paid plaintiff’s claims.
To establish the third requirement, plaintiff must show that defendant took employment
action adverse to plaintiff. Indeed, within three months of his injury, defendant prepared a PIP,
requiring plaintiff take action to correct issues in his work performance, apprised him that the
failure to cure identified difficulties could result in his termination, and plaintiff was terminated in
January 2020, seven months after his injury. Accordingly, plaintiff was a five-year employee who
suffered an injury at work and then later incurred an adverse employment action.
The last requirement is that the adverse employment action and the employee’s assertion
or exercise of a right afforded under MCL 418.315(1) were causally connected. We conclude that
plaintiff failed to demonstrate that there was a causal connection between his adverse employment
action and the claim made to and paid by defendant through its worker’s compensation
administrator. That is, there was no indication that plaintiff’s adverse employment action was in
retaliation for the request for benefits under the WDCA. In his deposition testimony, plaintiff
indicated that Waterson was upset with how plaintiff handled the injury. Plaintiff acknowledged
that after he tripped, he did not leave to seek treatment from a facility designated by defendant.
He explained that he contemplated the need to finish his shift and the degree of the injury. Plaintiff
opted to place ice on his hand and completed his shift, underestimating that his left hand was
broken. The next day, plaintiff sent an e-mail to Waterson and copied Morgan advising that he
was going to seek treatment from his provider. Apparently, Waterson advised that he spent a day
on the phone to ensure that plaintiff’s claim was covered because of the failure to follow policy.
In plaintiff’s affidavit, he expressed apprehension of adverse consequences because he “messed
up” defendant’s “injury record.”
But there was no evidence that defendant took action against plaintiff for being injured on
the job and making a claim for benefits. Plaintiff did not present the deposition testimony of
Waterson or any other employee injured on the job. Plaintiff did not present any evidence that
after an employee suffered a workplace injury, he or she was terminated.
To support his claim under the WDCA, plaintiff cites to his testimony that Waterson
complained that he spent the day on the phone to get the claim covered because plaintiff had not
timely left the work site, not proceeded to the employer-approved provider, and not filled out the
injury report form until June 27, 2019. Despite Waterson’s complaint of having to do additional
work, plaintiff was not precluded from filing the WDCA claim, and plaintiff acknowledged that
his dealings about the claim were with the third-party insurance administrator. There was no
testimony that Waterson interfered with plaintiff’s WDCA claim or went to plaintiff’s superior,
Morgan, and requested that he contrive allegations against plaintiff in retaliation for filing a
worker’s compensation claim.
We note plaintiff filed an affidavit in opposition to defendant’s motion for summary
disposition. In the affidavit, plaintiff expressed that he regretted “messing up” defendant’s injury
record and feared that he would be fired. This affidavit expressed concerns or emotions that
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plaintiff felt and did not aver that Waterson or another representative of defendant told plaintiff
that a work-related injury could jeopardize his employment. Plaintiff’s own personal feelings
without a responding validation or correlation by defendant’s representatives failed to demonstrate
a connection between the injury, the WDCA request for benefits, and the adverse employment
action.
Additionally, defendant submitted documentation demonstrating injuries to employees
between January 2019 and December 31, 2019, and indicated that the 45 injured employees were
still actively employed. Plaintiff contends that this evidence could not be considered because it
was inadmissible hearsay. However, evidence offered in support of summary disposition must be
admissible in content, but need not be in admissible form. See Barnard Mfg Co v Gates
Performance Engineering, Inc, 285 Mich App 362, 373; 775 NW2d 618 (2009); see MRE 803(6).
Plaintiff’s contention that the retaliation was exhibited by the injury and the adverse
employment action in light of his essentially unblemished employment record is contrary to the
evidence. The testimony revealed that plaintiff did not interact well with his employees or his
peers, that he failed to address shortcomings in his work performance, that he got into an altercation
with another supervisor and threatened to take it “outside,” and admitted that he did not participate
in the PIP. Plaintiff ignored all facts that are adverse to his position.
In sum, plaintiff’s deposition testimony did not demonstrate that his termination was
causally connected to his workplace injury and the receipt of benefits through the WDCA.
Waterson’s expression of additional work and plaintiff’s expression of fear did not rise to the level
of demonstrating any correlation to plaintiff’s termination. The trial court did not err in granting
summary disposition of the WDCA claim because of the lack of a causal connection between the
injury and the adverse employment action.3
IV. ELCRA
Plaintiff contends that the trial court erred in granting summary disposition of his ELCRA
claim. We disagree.
3
We note that defendant also requested summary disposition premised on Gjokaj v US Steel Corp,
700 Fed Appx 494 (CA 6, 2017), contending that plaintiff failed to properly follow defendant’s
policy and procedure relating to treatment with defendant’s medical providers, and thereby failing
to invoke a right under the WDCA. The moving party must make and support its claim for
summary disposition with affidavits, depositions, admissions, or other documentary evidence.
McCoig Materials, LLC v Galui Constr, Inc, 295 Mich App 684, 693; 818 NW2d 410 (2012).
Defendant did not present documentary evidence, through the human resources director or
otherwise, of the policy regarding injuries to supervisory employees, any onsite medical clinic,
and company required treatment facilities. Plaintiff testified that he underestimated the degree of
his injury, placed ice on his hand, and finished his shift. He averred that a policy regarding
treatment was not set “in stone.” Because defendant failed to demonstrate the policy regarding
injury, we decline to address this alternative ground to affirm the trial court.
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The ELCRA recognizes and declares a civil right to include, “[t]he opportunity to obtain
employment, housing and other real estate, and the full and equal utilization of public
accommodations, public service, and educational facilities without discrimination because of
religion, race, color, national origin, age, sex, height, weight, familial status, or marital status[.]”
MCL 37.2102(1). The recognition of these civil rights set forth in the ELCRA are designed to
eliminate the prejudices and biases held against persons because of their membership in a particular
class and to dismantle the effects of offensive or demeaning stereotypes, prejudices, and biases.
Rouch World, LLC v Dep’t of Civil Rights, ___ Mich ___, ___; ___ NW2d ___ (2022), slip op at
2. An employer shall not “[f]ail 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.” MCL 37.2202(1)(a).
In ELCRA cases when no direct evidence of impermissible bias is presented, a plaintiff
must offer a rebuttable prima facie case4 of discrimination. Hazle v Ford Motor Co, 464 Mich
456, 462-463; 628 NW2d 515 (2001). The plaintiff must present evidence that (1) he belongs to
a protected class, (2) he was subjected to adverse employment action, (3) he was qualified for the
position, and (4) the job was given to another person under facts giving rise to an inference of
unlawful discrimination. Id. at 463.
If the plaintiff successfully demonstrates the prima facie case, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its actions. Dubey v Stroh
Brewery Co, 185 Mich App 561, 563; 462 NW2d 758 (1990). Once the defendant articulates a
legitimate reason for its action, the plaintiff has the burden of demonstrating, by a preponderance
of the evidence, that the legitimate reason offered by the defendant was merely a pretext for
discrimination. Id.When presenting an age discrimination claim, the plaintiff must present evidence not only
of possession of qualifications comparable to the person selected for the job, but also demonstrate
that age was a determining factor in the defendant’s adverse action against the plaintiff. See id. at
564-565. When a plaintiff must present evidence of his skills and qualifications and fails to present
evidence of age discrimination or age animus, he fails to create a genuine issue of material fact
pertaining to the defendant’s employment decision. Id. at 565. Additionally, the plaintiff must
show that the defendant’s stated legitimate, nondiscriminatory reasons are pretexts: (1) by
showing the rationale had no basis in fact, (2) if there is a basis in fact, by demonstrating that they
were not the actual motivating factors for the decision, or (3) by showing that the factors were
insufficient to justify the decision. Id. at 566.
In the present case, plaintiff demonstrated that he was a 61-year-old male, a member of a
protected class, subjected to adverse employment action, his termination from defendant’s employ.
Arguably, plaintiff was qualified for the position in light of prior supervisory experience and the
fact that he held the position since 2014. However, plaintiff failed to establish that he was
terminated and his job was given to a 54-year old male under facts giving rise to an inference of
discrimination. Hazle, 464 Mich at 463. Plaintiff failed to demonstrate that any adverse
4
The test arises from McDonnell Douglas Corp.
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employment action was premised on age or sex. In his deposition, plaintiff asserted that he was
treated differently than his peers. But plaintiff failed to attribute any disparity to age and gender.
Rather, plaintiff acknowledged that both female supervisors had 20 years of experience with
defendant in another department and their treatment may reflect their valued expertise.
Additionally, plaintiff agreed that the treatment of Joshua Buck may have been more favorable
because Morgan associated with Buck outside of the workplace. Plaintiff acknowledged that any
perceived differential treatment was plausibly the result of factors unrelated to his age or sex.
If plaintiff had successfully demonstrated the prima facie case, the burden shifted to
defendant to articulate a legitimate, nondiscriminatory reason for its actions. Dubey, 185 Mich
App at 563. Here, defendant alleged that it had a legitimate, nondiscriminatory reason for its
action. Specifically, plaintiff had a history of failing to use the Plex system correctly and that
errors in using the Plex system cost defendant. It was also alleged that plaintiff did not
appropriately manage his team and did not work cooperatively with his peers. Rather, when
criticized about his work performance, plaintiff responded by reciting deficiencies of other
supervisors. Plaintiff’s deposition testimony demonstrated that plaintiff felt wronged by his
superiors when his actions were compared to other supervisors. Plaintiff seemingly surmised that
this was attributed to the age and gender of others. Yet, he acknowledged that production
supervisors Jennifer Turner and Cathy Allen’s longstanding employment with defendant and their
prior experience in other departments made them valuable assets to defendant and potentially
caused Morgan to treat them more favorably. Additionally, Morgan trained Buck and socialized
with Buck and Allen outside of work. Plaintiff admitted that he could not attribute different
treatment of those individuals to age or sex discrimination. Thus, plaintiff failed to establish the
legitimate reason offered by the defendant was merely a pretext for discrimination. Id.When presenting an age discrimination claim, plaintiff had to present evidence not only of
possession of qualifications comparable to the person selected for the job, but also demonstrate
that age was a determining factor in the defendant’s adverse action against him. See id. at 564-
565. When a plaintiff must present evidence of his skills and qualifications and fails to present
evidence of age discrimination or age animus, he fails to create a genuine issue of material fact
pertaining to the defendant’s employment decision. Id. at 565. Plaintiff failed to present any
evidence comparing his employment and qualifications to his replacement, a 54-year old male.
Accordingly, the trial court did not err in granting summary disposition on his ELCRA claims.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Christopher M. Murray
/s/ Anica Letica
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