Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 3, 2001
BLOSSOM J. HAZLE,
Plaintiff-Appellee,
v No. 116162
FORD MOTOR COMPANY and FORD-UAW
RETIREMENT BOARD OF ADMINISTRATION,
Defendants-Appellants.
____________________________________
BEFORE THE ENTIRE COURT
YOUNG, J.
After being denied a promotion, plaintiff filed suit on
the ground that she had been discriminated against on the
basis of her race, in violation of the Michigan Civil Rights
Act. MCL 37.2101 et seq. The trial court granted summary
disposition in favor of defendants, but the Court of Appeals
reversed.
We granted leave in order to further clarify the proper
application of the burden-shifting framework established in
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36
L Ed 2d 668 (1973), for the purpose of analyzing proofs in
discrimination cases. We now reverse the Court of Appeals
decision and reinstate the trial court’s order granting
summary disposition to defendants.
I. Factual and Procedural Background
Plaintiff is a black woman with an undergraduate degree
in English. She has also completed a portion of the course
work required for a master’s degree in industrial relations.
In July 1980, plaintiff began working as a pension clerk
for the Ford-UAW Retirement Board of Administration, which
administers pension benefits for the UAW retirees of Ford
Motor Company. Plaintiff was responsible for processing
various types of retirement applications, which included
“filing, typing . . . answering the phone and helping retirees
and surviving spouses and company union rep[resentatives] with
problems regarding pensions.” She also set up medical
evaluations for disability retirement applicants.
In late 1994, when the longtime manager of plaintiff’s
office decided to retire, the board placed the following
advertisement:
OFFICE MANAGER
Seeking individual with an Office Manager
2
background to direct the activities of a 6 person
office responsible for the administration of
pension benefits for over 85,000 pensioners of a
major automotive retirement plan.
The qualified individual should have a BS
degree in finance or accounting, have strong
communication skills, and have office experience
directing the work of others. The position is
responsible for preparation of the payroll and
accounts payable, maintenance of administrative
records, and other retirement plan activities.
Plaintiff applied for the job. Among the other
applicants were Christine Ewald, another of the pension
clerks,1 and Michelle Block, an outside candidate.2 Each is
white. Block’s résumé indicated that she recently had been
employed as “supervisor of financial and management reporting”
at a medical laboratory and, before that, had been “sales
audit supervisor” for a forty-two store chain of automotive
parts retailers.
In a letter on Ford Motor Company stationery, plaintiff
was informed that she would be given an interview. The letter
also stated that her résumé had been “reviewed and determined
to satisfy the requirements outlined for this opening.”
Two members of the board, Donald Harris, a UAW employee,
and Mark Savitskie, who worked for Ford, interviewed the
1
Ewald had been a pension clerk since 1985.
2
According to defendants’ response to plaintiff’s first
set of interrogatories, there were a total of eighty
applicants (both internal and external) for the position.
3
candidates for the office manager position. On the basis of
the résumés and interviews,3 the two selected Block, whom the
board then hired. Plaintiff learned of the board’s hiring
decision in a second letter from Ford, which thanked her for
her interest in the position. The Ford letter reiterated to
plaintiff that “[her] experience and education were in line
with our expectations and the requirements of the position.”
Fourteen months after learning that she would not be
promoted, plaintiff filed the present suit in circuit court.
Proceeding under the Civil Rights Act, she alleged that
defendants “did not offer the position of Office Manager to
Plaintiff because Plaintiff is an African-American.”
Defendants moved for summary disposition. Although
defendants’ motion and brief did not indicate expressly which
part of the court rule they were relying on, it is evident
that they were seeking summary disposition under MCR
2.116(C)(10). Defendants argued that plaintiff could not
establish a prima facie case of discrimination under McDonnell
Douglas, supra. They further argued that, even if plaintiff
could offer a prima facie case, she failed to offer evidence
that defendants’ stated reason for hiring Block, that she was
3
Harris and Savitskie did not check references or seek to
confirm the factual representations made in the candidates’
written submissions.
4
more qualified, was a mere pretext for discrimination.
Plaintiff responded that Block was in fact not qualified,
and that she committed “résumé fraud” in representing her
educational and employment background.4
Noting that Block’s alleged misrepresentations did not
surface until after discovery began in this case, the trial
court granted defendants’ motion, concluding as follows:
The Court is satisfied that I don’t have to
get to the pretext issue, because we haven’t
established a prima facie case of discrimination.
The Court’s going to kick it under (C)(10).
The Court of Appeals reversed over the dissent of Judge
Kelly.5
We granted defendants’ application for leave to appeal.
463 Mich 928 (2000).
II. Standard of Review
We review de novo a trial court’s decision on a motion
for summary disposition. A motion for summary disposition
4
Block’s résumé suggests that she took classes at Henry
Ford Community College over an extended period. As noted, her
stated work experience included time as a “supervisor of
financial and management reporting” at a medical laboratory
and as “sales audit supervisor” at an automotive-parts
retailer. Relying on materials obtained during discovery,
plaintiff maintains that Block’s transcript shows little
academic progress, that she was only a temporary clerical
employee at the medical laboratory, and that she was fired by
the automotive-parts retailer for poor performance.
5
Unpublished opinion per curiam, issued August 27, 1999,
reh den December 21, 1999 (Docket No. 204496).
5
brought under MCR 2.116(C)(10) tests the factual support of a
claim. After reviewing the evidence in a light most favorable
to the nonmoving party, a trial court may grant summary
disposition under MCR 2.116(C)(10) if there is no genuine
issue concerning any material fact and the moving party is
entitled to judgment as a matter of law. Smith v Globe Life
Ins Co, 460 Mich 446, 453; 597 NW2d 28 (1999).
III. Analysis
A. Direct Versus Indirect Evidence of Discrimination
Plaintiff claims that defendants discriminated against
her on the basis of race in violation of MCL 37.2202(1)(a),
which provides, in relevant part:
(1) An employer shall not do any of the
following:
(a) Fail 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.
In some discrimination cases, the plaintiff is able to
produce direct evidence of racial bias. In such cases, the
plaintiff can go forward and prove unlawful discrimination in
the same manner as a plaintiff would prove any other civil
case. DeBrow v Century 21 Great Lakes, Inc (After Remand),
463 Mich 534, 537-539; 620 NW2d 836 (2001); Matras v Amoco Oil
6
Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). For purposes
of the analogous federal Civil Rights Act, the Sixth Circuit
Court of Appeals has defined “direct evidence” as “evidence
which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the
employer’s actions.” Jacklyn v Schering-Plough Healthcare
Products Sales Corp, 176 F3d 921, 926 (CA 6, 1999); see also
Harrison v Olde Financial Corp, 225 Mich App 601, 610; 572
NW2d 679 (1997).
In many cases, however, no direct evidence of
impermissible bias can be located. In order to avoid summary
disposition, the plaintiff must then proceed through the
familiar steps set forth in McDonnell Douglas, supra at 802
803. The McDonnell Douglas approach allows a plaintiff “to
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.” DeBrow, supra at 537-538.
Although originally created for use in race discrimination
cases, we have adopted the McDonnell Douglas approach for use
in age and gender discrimination cases brought under the
Michigan Civil Rights Act as well. See Lytle v Malady (On
Rehearing), 458 Mich 153, 172-178; 579 NW2d 906 (1998).
Because plaintiff here has offered no direct evidence of race
discrimination, she is constrained to rely on the McDonnell
7
Douglas framework.
Under McDonnell Douglas, a plaintiff must first offer a
“prima facie case” of discrimination. Here, plaintiff was
required to 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. Lytle, supra
at 172-173; see also Texas Dept of Community Affairs v
Burdine, 450 US 248, 254, n 6; 101 S Ct 1089; 67 L Ed 2d 207
(1981); McDonnell Douglas, supra at 802.6
When the plaintiff “has sufficiently established a prima
facie case, a presumption of discrimination arises.” Lytle,
supra at 173. In Furnco Construction Corp v Waters, 438 US
567, 577; 98 S Ct 2943; 57 L Ed 2d 957 (1978), the Court
explained that the McDonnell Douglas prima facie case raises
an inference of discrimination “because we presume these acts,
if otherwise unexplained, are more likely than not based on
the consideration of impermissible factors.”
6
We utilize here a formulation of the McDonnell Douglas
prima facie case approach that is consistent with the facts of
this case. As the Supreme Court explained in McDonnell
Douglas, the facts will necessarily vary in discrimination
cases. Thus, the elements of the McDonnell Douglas prima
facie case should be tailored to fit the factual situation at
hand.
8
However, the fact that a plaintiff has established a
prima facie case of discrimination under McDonnell Douglas
does not necessarily preclude summary disposition in the
defendant’s favor. As the Supreme Court explained in Burdine,
supra at 254, n 7:
The phrase “prima facie case” not only may
denote the establishment of a legally mandatory,
rebuttable presumption, but also may be used by
courts to describe the plaintiff’s burden of
producing enough evidence to permit the trier of
fact to infer the fact at issue. McDonnell Douglas
should have made it apparent that in the Title VII
context we use “prima facie case” in the former
sense. [Citation omitted.]
In other words, the McDonnell Douglas prima facie case does
not describe the plaintiff’s burden of production, but merely
establishes a rebuttable presumption.
Thus, once a plaintiff establishes a prima facie case of
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. Lytle, supra at
173; McDonnell Douglas, supra at 802.7 The articulation
7
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. In
other words, courts must not second guess whether the
employment decision was “wise, shrewd, prudent, or competent.”
Town v Michigan Bell Telephone Co, 455 Mich 688, 704; 568 NW2d
64 (1997). Instead, the focus is on whether the decision was
(continued...)
9
requirement means that the defendant has the burden of
producing evidence that its employment actions were taken for
a legitimate, nondiscriminatory reason.8 “Thus, the defendant
cannot meet its burden merely through an answer to the
complaint or by argument of counsel.” Burdine, supra at 256,
n 9; see also St Mary’s Honor Center v Hicks, 509 US 502, 506
507; 113 S Ct 2742; 125 L Ed 2d 407 (1993). If the employer
makes such an articulation, the presumption created by the
McDonnell Douglas prima facie case drops away.9
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
7
(...continued)
“lawful,” that is, one that is not motivated by a
“discriminatory animus.” Burdine, supra at 257.
8
While the burden of production shifts to the defendant
at this stage of the McDonnell Douglas analysis, “[t]he nature
of the burden that shifts to the defendant should be
understood in light of the plaintiff’s ultimate and
intermediate burdens. The ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the
plaintiff.” Burdine, supra at 253.
9
If the defendant does not articulate a legitimate,
nondiscriminatory reason for its employment decision, the
presumption created by the McDonnell Douglas prima facie case
stands unrebutted. However, this does not mean that the
plaintiff is entitled to judgment as a matter of law. Rather,
in such a case, judgment in favor of the plaintiff would be
appropriate only if the trier of fact believes the plaintiff’s
evidence. See Burdine, supra at 254.
10
“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.” Lytle,
supra at 176.10 As we first held in Town v Michigan Bell
Telephone Co, 455 Mich 688, 698; 568 NW2d 64 (1997), and then
reaffirmed in Lytle, supra at 175-176, a plaintiff “must not
merely raise a triable issue that the employer’s proffered
reason was pretextual, but that it was a pretext for
[unlawful] discrimination.”
The inquiry at this final stage of the McDonnell Douglas
framework is exactly the same as the ultimate factual inquiry
made by the jury: whether consideration of a protected
characteristic was a motivating factor, namely, whether it
made a difference in the contested employment decision. See
SJI2d 105.02.11 The only difference is that, for purposes of
10
At one point in Lytle, supra at 174, we used some
imprecise language in describing the plaintiff’s burden at
this stage of the McDonnell Douglas analysis. We stated that
a plaintiff must show “by a preponderance of admissible direct
or circumstantial evidence, that there was a triable issue
that the employer’s proffered reasons were not true reasons,
but were a mere pretext for discrimination” (emphasis added).
This reference in Lytle to the term “preponderance” is
suggestive of a plaintiff’s ultimate burden of persuasion. We
wish to make clear that, in response to a motion for summary
disposition brought under MCR 2.116(C)(10), the nonmoving
party’s obligation is only to show the existence of a “genuine
issue as to any material fact.”
11
The standard jury instruction is consistent with the
(continued...)
11
a motion for summary disposition or directed verdict, a
plaintiff need only create a question of material fact upon
which reasonable minds could differ regarding whether
discrimination was a motivating factor in the employer’s
decision.
As the Supreme Court explained in Burdine, supra at 256,
n 8, the McDonnell Douglas burden-shifting framework is merely
intended “to progressively sharpen the inquiry into the
elusive factual question of intentional discrimination.” It
is important to keep in mind, therefore, that for purposes of
claims brought under the Michigan Civil Rights Act, the
McDonnell Douglas approach merely provides a mechanism for
assessing motions for summary disposition and directed verdict
in cases involving circumstantial evidence of discrimination.12
It is useful only for purposes of assisting trial courts in
determining whether there is a jury-submissible issue on the
ultimate fact question of unlawful discrimination. The
McDonnell Douglas model is not relevant to a jury’s evaluation
11
(...continued)
statutory prohibition against discrimination “because of” a
protected characteristic. MCL 37.2202(1)(a).
12
As stated, the McDonnell Douglas approach is not
applicable in cases involving direct evidence of
discrimination. DeBrow, supra at 539, citing Trans World
Airlines, Inc v Thurston, 469 US 111, 121; 105 S Ct 613; 83 L
Ed 2d 523 (1985).
12
of evidence at trial. Accordingly, a jury should not be
instructed on its application. See Gehrig v Case Corp, 43 F3d
340, 343 (CA 7, 1995) (explaining that, in federal
discrimination cases, “[o]nce the judge finds that the
plaintiff has made the minimum necessary demonstration [the
‘prima facie case’] and that the defendant has produced an
age-neutral explanation, the burden-shifting apparatus has
served its purpose, and the only remaining question–the only
question the jury need answer–is whether the plaintiff is a
victim of intentional discrimination”).
B. Plaintiff’s McDonnell Douglas Prima Facie Case
As noted, in order to establish a prima facie case of
discrimination under McDonnell Douglas, plaintiff was required
to present admissible 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. Lytle, supra
at 172-173; McDonnell Douglas, supra at 802.13 There is no
dispute in this case regarding the first two elements:
13
Although Lytle states that a plaintiff must “prove”
these four elements “by a preponderance of the evidence,” we
again emphasize that a plaintiff does not have to prove
anything to the trial court at the summary disposition stage.
13
Plaintiff is black, and she did not receive the promotion for
which she applied.
At issue here are the third and fourth elements of a
prima facie case. The third element requires proof that
plaintiff was qualified for the position she sought. The
fourth element requires proof that the job was given to
another person under circumstances giving rise to an inference
of discrimination.
Defendants argue that plaintiff has failed to establish
the third and fourth elements of a McDonnell Douglas prima
facie case. They contend that, even if minimally qualified,
plaintiff had “neither supervisory experience nor training or
experience in financial or accounting matters–two crucial
preferred qualifications of the Office Manager position,” and
that, in any event, she was far less qualified than Michelle
Block. In defendants’ view, a plaintiff alleging a
discriminatory failure to promote or hire can only establish
a prima facie case under McDonnell Douglas by providing
evidence that he is at least as qualified as the successful
candidate. We disagree.
As an initial matter, nothing in the Supreme Court’s
decision in McDonnell Douglas suggests that a plaintiff is
required to offer evidence of relative qualifications in order
14
to establish a prima facie case of discrimination. Nor have
the Court’s subsequent decisions identified such a
requirement. In fact, we believe that at least one of the
Court’s post-McDonnell Douglas decisions suggests that a
plaintiff is never required to establish relative
qualifications.
In Patterson v McLean Credit Union, 491 US 164; 109 S Ct
2363; 105 L Ed 2d 132 (1989), the Court addressed a
plaintiff’s burden of persuading a jury of intentional
discrimination. The federal district court in that case had
instructed the jury that the plaintiff, in order to prevail on
her claim that the defendant failed to promote her because of
race discrimination, was required to show that she was better
qualified than the employee who received the promotion. In
determining that this was error, the Supreme Court emphasized
that a plaintiff
is not limited to presenting evidence of a certain
type. . . . The evidence which petitioner can
present in an attempt to establish that
respondent’s stated reasons are pretextual may take
a variety of forms. Indeed, she might seek to
demonstrate that respondent's claim to have
promoted a better qualified applicant was
pretextual by showing that she was in fact better
qualified than the person chosen for the position.
The District Court erred, however, in instructing
the jury that in order to succeed petitioner was
required to make such a showing. There are
certainly other ways in which petitioner could seek
to prove that respondent’s reasons were pretextual.
15
Thus, for example, petitioner could seek to
persuade the jury that respondent had not offered
the true reason for its promotion decision by
presenting evidence of respondent’s past treatment
of petitioner, including the instances of the
racial harassment which she alleges and
respondent’s failure to train her for an accounting
position. While we do not intend to say this
evidence necessarily would be sufficient to carry
the day, it cannot be denied that it is one of the
various ways in which petitioner might seek to
prove intentional discrimination on the part of
respondent. She may not be forced to pursue any
particular means of demonstrating that respondent's
stated reasons are pretextual. [Id. at 187-188
(citations omitted).]
Because a plaintiff has no obligation to prove relative
qualifications to a jury, it can hardly be disputed that a
plaintiff cannot be required to offer evidence that he is at
least as qualified as the successful candidate in order to
establish a prima facie case under McDonnell Douglas. See
Walker v Mortham, 158 F3d 1177, 1192 (CA 11, 1998) (“We cannot
imagine that the Supreme Court would speak so strongly
regarding the lack of any burden to prove lesser
qualifications and still leave available to the defendant at
summary judgment the argument that the plaintiff failed to
prove equal qualifications”).
Nor does anything in the language of the Civil Rights Act
itself suggest a requirement that a plaintiff prove relative
qualifications in order to succeed on a discrimination claim,
let alone require that a plaintiff offer such evidence in
16
order to survive a motion for summary disposition or directed
verdict. As stated, the ultimate factual inquiry in any
discrimination case is whether unlawful discrimination was a
motivating factor in the employer’s decision. We think it
beyond question that, although relative qualifications
certainly may be relevant in a discrimination case,
particularly, as explained below, if a defendant relies on
them to rebut the presumption of discrimination created by the
plaintiff’s prima facie case, the fact that a plaintiff was
“less qualified” than the successful applicant would not
necessarily preclude a jury from finding that unlawful
discrimination was nevertheless a motivating factor in the
employer’s decision. Therefore, we hold that a plaintiff is
not required to provide evidence that he is at least as
qualified as the successful candidate in order to establish a
prima facie case under McDonnell Douglas.
By this holding, we do not mean to suggest that a
plaintiff can establish the third and fourth elements of a
McDonnell Douglas prima facie case merely by showing that he
was qualified for the position and that a nonminority
candidate was chosen instead. While a plaintiff is not
required to show circumstances giving rise to an inference of
discrimination in any one specific manner, the plaintiff’s
burden of production remains to present evidence that the
17
employer’s actions, “if otherwise unexplained, are more likely
than not based on the consideration of impermissible factors.”
Burdine, supra at 253. In short, a plaintiff must offer
evidence showing something more than an isolated decision to
reject a minority applicant. See Teamsters v United States,
431 US 324, 358, n 44; 97 S Ct 1843; 52 L Ed 2d 396 (1977).
As a matter of law, an inference of unlawful discrimination
does not arise merely because an employer has chosen between
two qualified candidates.14 Under such a scenario, an
equally–if not more–reasonable inference would be that the
employer simply selected the candidate that it believed to be
most qualified for the position. See id.
In this case, plaintiff met the third element of a
McDonnell Douglas prima facie case by presenting evidence that
she was qualified for the office manager position. Indeed, as
stated, defendants themselves twice confirmed in writing their
belief that plaintiff was among those who had the necessary
qualifications for the position.
14
Largely because the issue was undisputed, we assumed in
Lytle, supra at 177, that the plaintiff established a prima
facie case under McDonnell Douglas by presenting evidence that
“she was replaced by a younger person.” We caution the bench
and bar not to rely on Lytle for the proposition that a prima
facie case of unlawful discrimination can be established
merely by providing evidence that a qualified minority
candidate was rejected in favor of a qualified nonminority
candidate. As opposed to this case, Lytle did not involve a
choice between two qualified candidates for an open position.
18
Finally, plaintiff presented evidence from which a jury,
if unaware of defendants’ reasons, could infer unlawful
discrimination. Although she was not required to proceed in
this manner, plaintiff presented evidence suggesting that she
was rejected in favor of a less qualified white applicant.
There was evidence that (1) only plaintiff had a college
degree and credits toward a master’s degree in industrial
relations, and (2) only plaintiff had substantial work
experience with defendants. Thus, we conclude that plaintiff
presented evidence supporting the fourth and final element of
a McDonnell Douglas prima facie case, and that the burden then
shifted to defendants to articulate a legitimate,
nondiscriminatory reason for their decision to hire Michelle
Block instead of plaintiff.
C. Defendants’ Justification for their Employment Decision
Defendants cited several reasons for their decision to
hire Michelle Block rather than plaintiff. Among them were
plaintiff’s lack of experience in supervision, finance, or
accounting. By contrast, Block’s application materials
indicated that she had supervised an audit department of six
persons and had significant financial experience.
Defendants also expressed their desire to change the
manner in which business would be conducted in the office;
19
they wanted to hire what is customarily known as a “change
agent.” Deposition testimony indicates that the former office
manager allowed the pension clerks great autonomy with regard
to their work and even their work schedules. Petty cash was
handled informally, and a simple matter like the office’s no
smoking policy was routinely ignored. As the number of Ford-
UAW retirees continued to grow, defendants wanted the office
to improve the service it was providing. In this regard, Mark
Savitskie testified that he was looking for someone “who would
be able to identify problems and effect change and processes
that would correct problems.”
When asked why he believed Block to be more qualified
than plaintiff, Savitskie testified as follows:
I believe that Michelle’s experience, her
practical experience, her business experience, her
work experience, gave her a broad number of skills
that would help her meet my requirement.
Compared to Block, Savitskie felt that plaintiff was “somewhat
isolated in terms of comparing the dealings with outsiders,
written responsibilities, dealing with processes and data and
correcting problems.” Savitskie testified that he saw
plaintiff as a person who did not seem to appreciate the need
for change. Donald Harris expressed a similar view,
testifying that he believed Block to be a person “who could
make changes, incorporate those changes and motivate people to
20
accept those changes.”
We conclude that defendants made a sufficient showing
that they had legitimate, nondiscriminatory reasons for
choosing Michelle Block over plaintiff. This means that the
presumption of discrimination created by plaintiff’s prima
facie case dropped away, and the burden of production returned
to plaintiff to show the existence of evidence “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.” Lytle, supra at
176.
D. Was Race a Motivating Factor in Defendants’
Employment Decision?
Reviewing the evidence in a light most favorable to
plaintiff and drawing any reasonable inferences in her favor,
we conclude that she has failed to create a triable issue for
the jury concerning whether race was a motivating factor in
defendants’ employment decision.
While plaintiff maintains that the office manager
position did not in fact require knowledge of finance or
accounting principles, it is fatal to plaintiff’s claim that
she has offered no record evidence that actually supports this
position. We also note plaintiff’s repeated assertion that,
21
when she asked for an explanation for why she was not selected
for the office manager position, she was told that Michelle
Block “had a Bachelor’s Degree in Accounting.” This, of
course, would have been a false explanation, given that Block
had no college degree at all and that she never claimed to
have one. Such evidence very likely would have provided a
basis for a reasonable jury to infer unlawful discrimination.
However, again, plaintiff has offered no evidence to support
her claim. Instead of record evidence, plaintiff relies on a
statement made by her attorney during the hearing on
defendants’ motion for summary disposition. That clearly is
an inappropriate means of opposing a motion for summary
disposition brought under MCR 2.116(C)(10). See Maiden v
Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999).
Furthermore, even if, as plaintiff claims, Block’s
application materials contained exaggerated and false
information calling into question her qualification for the
office manager position, there is no record evidence that any
of this was known to defendants when they made their
employment decision. Therefore, any subsequently discovered
shortcomings in Block’s credentials cannot possibly serve as
a basis for an inference of unlawful discrimination.15
15
In McKennon v Nashville Banner Publishing Co, 513 US
(continued...)
22
For its part, the Court of Appeals held that
discriminatory animus was shown by defendants’ decision to
hire Michelle Block despite the fact that she did not have a
college degree, and by defendants’ knowledge that Block “would
require considerable training in order to do her job.”
However, we fail to see how either observation could possibly
support a jury finding that race was a motivating factor in
defendants’ employment decision. There is no dispute that
Block did not have a college degree, and there is no evidence
that defendants ever claimed that she did. Moreover, although
plaintiff did have a college degree, it was in English, not in
finance or accounting. The bottom line is that both plaintiff
and Block lacked the preferred qualification of a degree in
finance or accounting. Thus, the mere fact that defendants
hired Block despite her lack of a college degree does not give
rise to an inference of unlawful discrimination. Finally, no
15
(...continued)
352, 360; 115 S Ct 879; 130 L Ed 2d 852 (1995), the Supreme
Court held that an employer may not rely on after-acquired
evidence of an employee’s wrongdoing in order to avoid
liability for a discriminatory employment decision, explaining
in part that “[t]he employer could not have been motivated by
knowledge it did not have and it cannot now claim that the
employee was fired for the nondiscriminatory reason.”
We believe a logical corollary of this principle to be
that an employee cannot establish discriminatory intent by
offering evidence of facts that were unavailable to the
employer when it made its employment decision.
23
record evidence suggests that plaintiff would have been able
to assume the office manager position with any less training
than Block required.
Plaintiff, and the Court of Appeals for that matter,
would have the jury second-guess defendants’ business judgment
concerning whether Block or plaintiff was better qualified.
However, as we explained in Town, supra at 704:
“A 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.” [Citation omitted.]
The only requirement is that, “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.” Id. at 710 (Riley, J., concurring).
The essence of defendants’ stated reasons for their
decision to hire Michelle Block over plaintiff was that they
did not believe that plaintiff was as qualified as Michelle
Block for the office manager position. While plaintiff was
not required to seek to show that she was in fact more
qualified than Block in order to survive summary disposition,
plaintiff was required to demonstrate that the evidence in
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this case would permit a jury to find that defendants’
explanation was a pretext for race discrimination. Other than
her subjective claim that she was more qualified than Michelle
Block, plaintiff has offered nothing to support her claim that
defendants acted with racial animus. In our view, the
following testimony from plaintiff’s deposition accurately
captures the dispute in this case:
Q. Why do you believe that your race had
anything to do with the selection of [Michelle
Block] over you?
A. Well, because I felt I was very qualified
for the position and just from my own observation I
just feel that I’m a better qualified person. They
hired a Caucasian woman. So I felt it was a racial
issue.
Q. Do you have any other reason, any reason
at all for thinking that your race had anything to
do with the selection of [Block] over you?
A. No.
Accordingly, plaintiff has failed to create a genuine issue of
material fact concerning whether defendants relied on any
discriminatory animus in making their employment decision.
IV. Conclusion
The record in this case contains evidence sufficient to
create a prima facie case of race discrimination under
McDonnell Douglas. In response, defendants articulated a
legitimate, nondiscriminatory reason for their action.
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Plaintiff, however, was unable to offer any evidence that the
defendants’ stated reasons were a pretext for discrimination,
that is, that race was a motivating factor in their employment
decision. Defendants were therefore entitled to summary
disposition as a matter of law.
Because the trial court properly granted summary
disposition to defendants, we reverse the decision of the
Court of Appeals, and reinstate the trial court’s order.
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , and
MARKMAN , JJ., concurred with YOUNG , J.
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