Ilene Howe v. C&S Motors Inc ( 2024 )

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
ILENE HOWE, UNPUBLISHED
February 22, 2024
Plaintiff-Appellant,
v No. 364777
Genesee Circuit Court
C&S MOTORS INC, LC No. 21-116008-CD
Defendant-Appellee.
Before: LETICA, P.J., and CAVANAGH and SWARTZLE, JJ.
PER CURIAM.
Plaintiff had been defendant’s employee for over 20-years when defendant terminated her
employment, and she alleged that her job was terminated because of her age or perceived disability.
The trial court granted defendant summary disposition. We affirm.
I. BACKGROUND
Defendant originally posted that it was hiring a “service writer,” and the posting indicated
that the job required the position to, among other things, “deliver vehicle(s) to customer and answer
questions.” Plaintiff applied for this position as an internal applicant, and defendant hired a
different applicant for the position who, defendant asserted, had more experience as a service
writer.
Defendant then expanded its hours of operation, and it determined that it needed an
additional service writer for those expanded hours. Plaintiff applied to defendant’s second posting
as an internal applicant, and defendant hired plaintiff into that position at a different schedule than
the first-hired service writer. Defendant later reduced its hours of operation, however, and this
caused both service writers to have overlapping schedules.
Plaintiff then informed a supervisor that she was going to a medical appointment because
of a “suspicious spot” on her lungs. The day after plaintiff informed the supervisor of her medical
appointment, defendant terminated plaintiff’s employment, and the first-hired service writer
maintained her position. At the time, plaintiff was 56-years-old and the first-hired service writer
was 46-years-old. Defendant stated that it eliminated plaintiff’s position because it only needed
-1-
one service writer after it reduced its hours of operation. Plaintiff did not apply for any other
positions that defendant was hiring for after her position as a service writer was terminated.
Plaintiff alleged that defendant had violated the Elliott-Larsen Civil Rights Act (ELCRA),
MCL 37.2101 et seq, because it had discriminated against her based on her age. Specifically, she
alleged that her employment was terminated instead of the first-hired service worker who was
approximately 10-years younger than her. Plaintiff additionally alleged that defendant had also
violated the Persons With Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq, because
she had informed her supervisor that she had a suspicious spot on her lungs soon before her
employment was terminated.
In support of her contention that the termination of her employment was premised on
unlawful discrimination, plaintiff argued that she was more qualified for the position than the first-
hired service writer. Specifically, plaintiff maintained that she had a “Commercial Driver’s
License” that was a requirement for the position, and she asserted that the first-hired service writer
did not have that license.
Defendant moved for summary disposition because, it argued, plaintiff had not provided
evidence to substantiate any alleged discriminatory motivation, and defendant provided affidavits
from its general manager as well as from plaintiff’s supervisor to argue that there was a legitimate,
nondiscriminatory purpose for the termination of plaintiff’s employment. Both affidavits stated
that each affiant had determined that the first-hired service writer was more qualified because she
had more service-writing experience and that neither knew anything about plaintiff’s medical
history or conditions. Further, defendant provided documentation substantiating that it reduced its
hours of operation, and that this reduction caused both service writers to be working on an
overlapped schedule.
The trial court found that plaintiff did not demonstrate that defendant’s employment
decision was motivated by plaintiff’s age, and there was no evidence that defendant had perceived
plaintiff as being disabled. Thus, the trial court granted defendant summary disposition.
Plaintiff now appeals.
II. ANALYSIS
“We review de novo a trial court’s decision to grant or deny a motion for summary
disposition.” Sherman v City of St Joseph, 332 Mich App 626, 632; 957 NW2d 838 (2020)
(citations omitted). This Court reviews a motion brought under MCR 2.116(C)(10) “by
considering the pleadings, admissions, and other evidence submitted by the parties in the light
most favorable to the nonmoving party.” Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d
369 (2018). “Summary disposition is appropriate if there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law.” Sherman, 332 Mich
App at 632.
Plaintiff argues that she presented a prima facie case of age discrimination under the
ELCRA as well as disability discrimination under the PWDCRA, and, thus, the trial court erred in
granting defendant summary disposition.
-2-
A. PWDCRA
Turning first to the PWDCRA, an employer may not “[d]ischarge or otherwise discriminate
against an individual with respect to compensation or the terms, conditions, or privileges of
employment, because of a disability or genetic information that is unrelated to the individual’s
ability to perform the duties of a particular job or position.” MCL 37.1202(1)(b). Plaintiff does
not argue that she was disabled, but rather that defendant discriminated against her on the basis of
a perceived disability. To succeed on a claim of a perceived disability, plaintiff must demonstrate:
(1) that the employee was regarded as having a determinable physical or mental
characteristic, (2) that the perceived characteristic was regarded as substantially
limiting one or more of the plaintiff’s major life activities, and (3) that the perceived
characteristic was regarded as being unrelated either to the plaintiff’s ability to
perform the duties of a particular job or position or to the plaintiff’s qualifications
for employment or promotion. [Michalski v Bar-Levav, 463 Mich 723, 735; 625
NW2d 754 (2001).]
Plaintiff argues that her announcing that she was attending a medical appointment for a
suspicious spot on her lungs demonstrates a prima facie case of discrimination, but plaintiff ignores
that our Supreme Court has held that claims similar to plaintiff’s fail when there is no
substantiating evidence. In Michalski, the plaintiff told her employer that she had been tentatively
diagnosed with multiple sclerosis. Id. at 726. Our Supreme Court held that the plain language of
the statute required the plaintiff to prove that the defendant regarded her as having a characteristic
that substantially limited one or more of her major life activities, and the plaintiff had not done
that because:
She presented no evidence that [her doctor] regarded her as unable to perform basic
tasks of ordinary life. Indeed, from all indications, she was physically capable of
performing her job duties. At most, [the] plaintiff presented evidence that she
informed defendant that she had been tentatively diagnosed with multiple sclerosis
and that he believed that this might substantially limit her major life activities in
the future. Thus, the trial court properly granted summary disposition on plaintiff’s
claim that she was regarded as handicapped under the [Handicappers’ Civil Rights
Act].[1] [Id. at 734.]
Similarly, in this case, plaintiff provided the trial court with no evidence that defendant
regarded her as unable to perform basic tasks of ordinary life. By her own admission, plaintiff
tentatively informed defendant that she had a suspicious spot on her lung with no other information
1
“In 1998, after plaintiff filed her claim, the name of the [Handicappers’ Civil Rights Act] was
changed to the Persons with Disabilities Civil Rights Act.” Michalski, 463 Mich at 725 n 1.
“Following the 1998 amendments to the act, the substance of MCL 37.1103(e); MSA
3.550(103)(e) is now found in MCL 37.1103(d); MSA 3.550(103)(d). Apart from substituting the
word ‘disability’ for the word ‘handicap,’ the subsections are identical.” Id. at 731 n 10.
-3-
substantiating a potential diagnosis or limits to her major life activities. Thus, the trial court did
not err in granting defendant summary disposition on this issue.
B. ELCRA
Next, the ELCRA prohibits employers from discriminating “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). Without direct evidence of discrimination, a plaintiff may “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.” Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d
515 (2001) (cleaned up). To establish a prima facie case, a plaintiff must “present 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.” Id. at 463.
If a plaintiff is able to establish a prima facie case of unlawful 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.” Id. at 464. “The articulation requirement means that the defendant has the burden of
producing evidence that its employment actions were taken for a legitimate, nondiscriminatory
reason.” Id. “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 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.” Id. at 465 (cleaned up).
In this case, the parties do not dispute that plaintiff was in a protected class concerning her
age, suffered an adverse employment decision, and was qualified for the position. Instead, plaintiff
argues that the job was given to another person under circumstances giving rise to an inference of
unlawful discrimination because the first-hired service writer was approximately 10-years younger
than her. Michigan has not adopted the same “40-year-old threshold” that federal courts enforce,
General Dynamics Land Sys, Inc v Cline, 540 US 581, 591-592; 124 S Ct 1236; 157 LEd2d 1094
(2004), and there is no “bright-line rule” regarding whether what type of discrepancy in age
presents a prima facie discriminatory animus.
Nevertheless, assuming without deciding that plaintiff established a prima facie case of age
discrimination, defendant provided evidence of a legitimate, nondiscriminatory reason for the
termination of plaintiff’s employment. Namely that a reduction of its hours of operation eliminated
its need for two service-writer positions.
Plaintiff argues that defendant’s reasoning was a pretext for discrimination because
plaintiff was more qualified than the first-hired service writer and defendant did not offer plaintiff
other employment. Plaintiff, ignores, however, that even though she had a Commercial Driver’s
License and the first-hired service writer purportedly did not, the job posting did not require
applicants to have that license but only to “deliver vehicles to customers.” Additionally, plaintiff
did not apply for the positions that she now complains were not offered by defendant.
-4-
Further, “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.” Hazle, 464 Mich at 464 n 7 (cleaned up). “In other words, courts must not second guess
whether the employment decision was wise, shrewd, prudent, or competent.” Id. (cleaned up).
“Instead, the focus is on whether the decision was lawful, that is, one that is not motivated by a
discriminatory animus.” Id. (cleaned up). Thus, this Court will not second-guess whether
defendant made a wise, shrewd, or prudent decision in determining that the first-hired service
writer was more qualified, and even if plaintiff was more qualified than the first-hired service
writer, that does not, by itself, show that the employment decision was motivated by a
discriminatory animus.
Instead, plaintiff must demonstrate that the decision was motivated by the discrepancy in
age. Plaintiff does not argue, however, whether the first-hired service writer’s age was materially
different from her own, and, in this case, there has been no evidence to substantiate that the 10-
year difference between plaintiff and the first-hired service writer was material to defendant’s
employment decision. Consequently, the trial court did not err because plaintiff did not
demonstrate that unlawful discrimination based on plaintiff’s age was defendant’s motivating
factor.
III. CONCLUSION
Plaintiff’s claim that defendant discriminated against her for a perceived disability is barred
by our Supreme Court’s holding in Michalski, and plaintiff has not demonstrated that her age was
a motivating factor in defendant’s employment decision after defendant presented evidence of a
legitimate, nondiscriminatory reason.
Affirmed.
/s/ Anica Letica
/s/ Mark J. Cavanagh
/s/ Brock A. Swartzle
-5-