Lytle v. Malady , 456 Mich. 1 ( 1997 )

Cavanagh, J.

(concurring in part and dissenting in part). I agree with the lead opinion with respect to all sections except parts n(B) and n(c). Because discovery was not closed in this case and plaintiff established that a record might be developed that would preclude summary disposition, I respectfully dissent.

As to section n(B), the lead opinion claims that certain allegations plaintiff makes regarding whether defendant’s RIF was bona fide are “not part of the record” or had not been presented by the date of the hearing on defendant’s motion for summary disposition. See ante at 22. Furthermore, the lead opinion holds that plaintiff’s “allegations are based solely on ‘information and belief’ or inadmissible evidence” and “we are given nothing to view that would permit us to conclude that the record before us could be developed at trial . . . "Id. at 23.

I respectfully disagree. In a similar case against the same defendant, plaintiff was allowed to proceed to the jury regarding whether defendant’s RIF was bona fide. In Krantz v Howmet Coup (Circuit Court No. 90-026815-CK; Court of Appeals No. 159045), defendant Howmet was sued under a wrongful discharge theory. Defendant maintained the same arguments and presented the same evidentiary material regarding the RIF as it has done here. However, plaintiff here has not had the same opportunity to present her evidence that the RIF was not bona fide.

Economic expert William King, Ph.D., provided key testimony in Krantz that, in his opinion, the RIF was not bona fide. However, before Dr. King had the opportunity to be deposed in this case, the court prematurely granted defendants’ motion for summary disposition. Dr. King’s discovery deposition was scheduled for October 10, 1992, but was canceled in conjunction with the trial court’s decision on summary disposition, received by plaintiff on October 7, 1992. Ongoing discovery of defendant’s experts was likewise scheduled for the same date. Furthermore, the parties stipulated to extend discovery.

It is premature for this Court to decide whether defendants’ alleged rif was bona fide because it is clear that discoveiy in this matter was not complete, and, as indicated by the jury verdict in plaintiff’s favor in Krantz, it is certainly possible that a record may have been developed so that summary disposition for defendants should have been precluded. Therefore, I would remand this issue to the trial court for the completion of discovery so that plaintiff can have an equal opportunity to present evidence that defendants’ alleged RIF was not bona fide.

I also respectfully dissent from portion n(c) of the lead opinion, which states that “the Court of Appeals erred by confusing just-cause analysis with discrimination analysis under the Civil Rights Act.” Ante at 25. The Court of Appeals stated that “an employer may not use economic necessity as a pretext for unlawful discrimination. [McCart v J Walter Thompson USA, Inc, 437 Mich 109, 115; 469 NW2d 284 (1991).] When the parties dispute the genuineness of the economic necessity, the question of just cause is one for the trier of fact.” 209 Mich App 179, 198; 530 NW2d 135 (1995).

In McCart, we stated that in order for a defendant to show that it discharged plaintiff for bona fide economic reasons, it must demonstrate two things: that “adverse business conditions existed and that the elimination of plaintiff’s position was necessitated by those conditions.” Id. at 115 (emphasis added). Therefore, where a plaintiff’s proofs show that the elimination of his position was not motivated by the alleged RIF, but rather by some other illegal reason, summary disposition should be precluded.

My position has been supported by two state supreme courts. In Coelho v Posi-Seal Int’l, Inc, 208 Conn 106, 122; 544 A2d 170 (1988), the Connecticut Supreme Court stated:

We conclude that the question of whether an employer has terminated an employee because of a legitimate reduction in force or for other reasons is an issue to be determined by the trier of fact. An employer’s contention that some employees were terminated as a result of a legitimate reduction in force does not necessarily establish that all employees were discharged for the same reason. An employer may not use a reduction in force as a pretext to terminate other employees in violation of contractual obligations, public policy or statutory rights. [Emphasis added.]

Further, in Flanigan v Prudential Federal Savings & Loan Ass’n, 221 Mont 419, 426; 720 P2d 257 (1986), the Montana Supreme Court held that it was a matter for the trier of fact to determine whether an employee had been terminated as a result of a legitimate reduction in force or because of other factors.

Therefore, even if under the lead opinion’s reasoning that the RIF was bona fide, where plaintiff has presented sufficient facts to show that she was not fired because of a legitimate RIF, but, rather, she was fired because of other illegal reasons, her claim for wrongful discharge should go to the jury.

Kelly, J., concurred with Cavanagh, J.