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 JANUARY 17, 2001
PAUL DeBROW,
Plaintiff-Appellant,
v No. 114615
CENTURY 21 GREAT LAKES INC.,
CENTURY FRANCHISE ASSOCIATION,
and KATHY MILLER,
Defendants-Appellees,
and
PATRICIA COMBS and DENNIS DROPIC,
Defendants.
________________________________
PER CURIAM
After the plaintiff was fired from his job, he sued his
former employer and others. He alleged seven species of
misconduct, including age discrimination. The circuit court
granted summary disposition in favor of the defendants, and
the Court of Appeals has twice affirmed. Because the
plaintiff has shown enough to prosecute a claim of age
discrimination, we reverse in part the judgments of the Court
of Appeals and the circuit court.
I
At the age of forty-eight, plaintiff Paul DeBrow was
removed from an executive position in the Century 21 real
estate network.1 He sued his former employer,2 alleging
wrongful discharge and unlawful discrimination.3
When the employer moved for summary disposition, the
circuit court granted the motion and denied rehearing. The
Court of Appeals affirmed4 over the partial dissent of Justice
YOUNG, who was a member of the panel.
On application to this Court, we remanded the case to the
Court of Appeals for reconsideration in light of Lytle v
Malady (On Rehearing), 458 Mich 153; 579 NW2d 906 (1998).5
1
Mr. DeBrow was employed by Century 21 Great Lakes, Inc.
From materials at hand, it appears the Century 21 has a three
tiered organizational structure. Century 21 Real Estate
Corporation is a nationwide company that franchises its system
and trademarks to regional organizations such as Mr. DeBrow’s
former employer. In turn, Century 21 Great Lakes arranges for
individual brokers to become Century 21 franchisees. We are
told that Century 21 Great Lakes handled franchises in
Michigan, Ohio, and parts of two other states.
2
The plaintiff was apparently offered other employment
by Century 21 Great Lakes. He declined the offer, however,
and proceeded on the basis that his employment had been
terminated.
3
In an amended complaint, he added claims against four
other defendants (three individuals and an association of
Century 21 franchisees). The Court of Appeals has affirmed
the circuit court’s decision to grant summary disposition in
favor of these additional defendants.
4
Unpublished per curiam opinion, issued August 13, 1996
(Docket No. 161048).
5
459 Mich 899 (1998). In this opinion, the portions of
Lytle on which we rely were supported by a majority of this
2
After the Court of Appeals again affirmed,6 the plaintiff
filed another application for leave to appeal in the Supreme
Court.
II
This opinion will focus on a single issue. Did the
circuit court err when it granted the former employer’s motion
for summary disposition7 with regard to the claim that it
unlawfully discriminated against the plaintiff on the basis of
age?
In this instance, summary disposition was granted under
MCR 2.116(C)(10). Such a motion tests the factual support of
a plaintiff’s claim, and is subject to de novo review. Harts
v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999);
Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28
(1999).
In its initial opinion of affirmance, the Court of
Appeals discussed this case in light of the shifting burdens
of proof commonly applied in employment-discrimination cases.
The second opinion of the Court of Appeals used a similar
analysis. This approach has its roots in McDonnell Douglas
Corp v Green, 411 US 792, 802-805; 93 S Ct 1817; 36 L Ed 2d
Court. See the partial concurrence of former Chief Justice
MALLETT , 458 Mich 186.
6
Unpublished per curiam opinion, issued April 13, 1999
(Docket No. 161048).
7
MCR 2.116(C)(10).
3
668 (1973), and has been employed in countless subsequent
decisions.
The McDonnell Douglas approach was adopted because many
plaintiffs in employment-discrimination cases can cite no
direct evidence of unlawful discrimination. The courts
therefore allow 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.8
The present case falls outside that common pattern,
8
Writing in the context of a plaintiff’s claim that an
employer refused to rehire a laid-off employee because of
racial animus, the U.S. Supreme Court formulated in McDonnell
Douglas four elements that compose a prima facie case of
racial discrimination. 411 US 802. The four factors have
been restated, in more general terms, for use in cases
involving, inter alia, claims of age discrimination:
To establish a prima facie case of [age]
discrimination, plaintiff must prove by a
preponderance of the evidence that (1) she was a
member of the protected class; (2) she suffered an
adverse employment action, in this case, demotion
and then discharge; (3) she was qualified for the
position; but (4) she was discharged under
circumstances that give rise to an inference of
unlawful discrimination. [Lytle, 458 Mich 172-173,
177.]
Both the U.S. Supreme Court and this Court have cautioned that
these factors are “not to be applied mechanically, but with
due deference to the unique facts of the individual case.”
458 Mich 173, n 19; see also 411 US 802, n 13.
If the plaintiff submits such a prima facie case, the
burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its action. 458 Mich 173-174;
411 US 802. Upon such a showing, the burden returns to the
plaintiff to show that the employer’s stated reason for its
action was actually a mere pretext. 458 Mich 174; 411 US 804.
4
however. Here, the plaintiff has direct evidence of unlawful
age discrimination. The plaintiff testified during his
deposition that, in the conversation in which he was fired,
his superior told him that he was “getting too old for this
shit.” We recognize that this remark may be subject to
varying interpretations. It might reasonably be taken as
merely an expression of sympathy that does not encompass a
statement that the plaintiff’s age was a motivating factor in
removing him from his position as an executive. However, it
is well established that, in reviewing a decision on a motion
for summary disposition under MCR 2.116(C)(10), we must
consider the documentary evidence presented to the trial court
“in the light most favorable to the nonmoving party.” Harts
v Farmers Ins Exchange, supra at 5. According to the
plaintiff’s deposition testimony, the remark was made during
the conversation in which the plaintiff’s superior informed
him that he was being fired. Considered in the light most
favorable to the plaintiff, this remark could be taken as a
literal statement that the plaintiff was “getting too old” for
his job and this was a factor in the decision to remove him
from his position. While a factfinder might be convinced by
other evidence regarding the circumstances of the plaintiff’s
removal that it was not motivated in any part by the
plaintiff’s age and that the facially incriminating remark was
no more than an expression of sympathy, such weighing of
evidence is for the factfinder, not for this Court in
5
reviewing a grant of a motion for summary disposition.
The shifting burdens of proof described in McDonnell
Douglas are not applicable if a plaintiff can cite direct
evidence of unlawful discrimination. Trans World Airlines,
Inc v Thurston, 469 US 111, 121; 105 S Ct 613; 83 L Ed 2d 523
(1985).
This point was well explained by Justice YOUNG in his
dissent from the first opinion of the Court of Appeals. We
agree with his analysis, set forth below, and adopt it as our
own.
Intentional discrimination can be proven by
direct and circumstantial evidence. Lytle v
Malady, 209 Mich App 179, 185; 530 NW2d 135
(1995).[9] Where direct evidence is offered to prove
discrimination, a plaintiff is not required to
establish a prima facie case within the McDonnell
Douglas1 framework, and the case should proceed as
an ordinary civil matter. Trans World Airlines v
Thurston, 469 US 111, 121; 105 S Ct 613; 83 L Ed 2d
523 (1985); Matras v Amoco Oil Co, 424 Mich 675,
683-684; 385 NW2d 586 (1986); Lytle, supra, 209
Mich App 186, n 3. The shifting burden of proofs
as contemplated in McDonnell Douglas and Burdine2
only apply to discrimination claims based solely on
indirect or circumstantial evidence of
3
discrimination. Thurston, supra, 469 US 121;
Lytle, supra, 209 Mich App 185.
Plaintiff testified in his deposition that
when he was being removed as president, his
superior, Century 21’s Great Lakes Executive Vice
President, Robert Hutchinson, told plaintiff
“you’re too old for this shit.” This statement is
direct evidence of age animus. Moreover, because
9
Justice YOUNG ’s partial dissent was authored in 1996,
before this Court decided Lytle on appeal, 456 Mich 1; 566
NW2d 582 (1997), and on rehearing, 458 Mich 153; 579 NW2d 906
(1998).
6
it was allegedly made in the context of the
discussion in which plaintiff was informed that he
was being removed as president, it bears directly
on the intent with which his employer acted in
choosing to demote him.
The [Court of Appeals] majority ignores this
evidence as unworthy of credibility. Neither this
court nor the trial court can make factual findings
or weigh credibility in deciding a motion for
summary disposition. Manning v Hazel Park, 202
Mich App 685, 689; 509 NW2d 874 (1993). This
evidence cannot be ignored in the context of a
motion for summary disposition and precludes, in my
judgment, dismissal of the plaintiff’s age claim.
See Lytle, supra, 209 Mich App 187-188. Clearly,
the statement by Vice President Hutchinson, if
believed by the trier of fact, suggests that
plaintiff’s age was a factor in the mind of his
employer at the point plaintiff was removed from
his position. See Matras, supra, 424 Mich 682.
__________________________________________________
1
McDonnell Douglas v Green, 411 US 792; 93 S Ct 1817; 36
L Ed 2d 668 (1973).
2
Texas Dep’t of Community Affairs v Burdine, 450 US 248;
101 S Ct 1089; 67 L Ed 2d 207 (1981).
3
As such, I disagree with the majority’s statement that
plaintiff failed to set forth a prima facie case of age
discrimination due to insufficient evidence that he was replaced
by a younger person. As the United States Supreme Court
recently stated, discrimination laws protect persons not
classes. O’Connor v Consolidated Coin Caterers Corp, 517 US
308; 116 S Ct 1307; 134 L Ed 2d 433 (1996).
__________________________________________________
The plaintiff’s former employer argues that the disputed
statement was a “stray remark[]” that cannot give rise to
liability. See Price Waterhouse v Hopkins, 490 US 228, 277;
109 S Ct 1775; 104 L Ed 2d 268 (1989) (opinion of O’CONNOR , J.,
concurring in the judgment). In the circumstances of the
present case, however, that is an argument for the finder of
fact to consider.
7
For these reasons, we reverse in part the judgments of
the Court of Appeals and the circuit court. We remand this
case to the circuit court for further proceedings limited to
the plaintiff’s claim that his former employer unlawfully
discriminated against him on the basis of age.10 MCR
7.302(F)(1).
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , and TAYLOR , JJ.,
concurred.
10
In all other respects, leave to appeal is denied.
8
S T A T E O F M I C H I G A N
SUPREME COURT
PAUL DeBROW,
Plaintiff-Appellant,
v No. 114615
CENTURY 21 GREAT LAKES, INC,
CENTURY FRANCHISE ASSOCIATION,
and KATHY MILLER,
Defendants-Appellees,
and
PATRICIA COMBS and DENNIS DROPIC
Defendants.
____________________________________
MARKMAN, J. (concurring).
The only evidence of age discrimination presented by
plaintiff consists of a single comment allegedly made to him
by his superior during a meeting at which he was terminated.
During this meeting, Robert Hutchinson, an official of Century
21 Great Lakes, told plaintiff that he was “getting too old
for this sh—.” There are at least two conceivable
interpretations of this comment: (1) that it constitutes what
the majority describes as “direct evidence” of age animus in
the context of an adverse employment decision taken by
defendant, or (2) that it represents a colloquial expression
which does not necessarily communicate the speaker’s
perspective that the object of his remark is literally too
aged to perform a particular task, but rather empathizes with
the other person by indicating that, on the basis of his
experience, education, or level of achievement, he should not
have to tolerate certain difficult circumstances in which he
has become enmeshed.
I concur in the result reached by the majority because I
agree that it is ultimately for the factfinder to determine
which of these alternative interpretations best describes
Hutchinson’s remarks, to wit, whether these remarks are better
understood in their literal or in their colloquial senses.
However, I write separately to express my concern that,
particularly in the context of discrimination cases predicated
upon age, there are a wide variety of innocent comments that,
taken out of context and divorced from their meaning in common
parlance, could be used by a plaintiff to defeat a motion for
summary disposition. For example, if made in rough proximity
to an adverse employment action and if construed literally,
the following comments might be understood to constitute
evidence of age discrimination:
- “That’s just old hat”
- “You can’t teach an old dog new tricks”
- “He’s an old hand at this sort of thing”
- “Your thinking is just old school”
- “You’re old enough to know better.”
- “You belong to the good-old-boys network”
Each of these phrases, similar to the one uttered in the
2
present case, have colloquial meanings in the contemporary
language that are distinct from their literal meanings and
that are generally unconnected with any serious intimation of
age animus. I join here with the majority because we lack any
specific information concerning the context of defendant’s
comment, and because there may be circumstances in which it is
not unreasonable to accord the comment a literal construction.
However, I do not believe that the requirements of MCR
2.116(C)(10) will invariably be satisfied by a plaintiff who
alleges remarks of this kind by an employer or a supervisor.
Although an employer or a supervisor’s comments must be viewed
in “the light most favorable” to a plaintiff at the summary
judgment stage, the proofs nevertheless must be sufficient to
allow the trier of fact to reasonably conclude that age animus
was a motivating factor resulting in an adverse employment
action. Lytle v Malady (On Rehearing), 458 Mich 153, 176; 579
NW2d 906 (1998). Whether a comment removed from the ordinary
vernacular would constitute “direct evidence” of
discrimination or merely circumstantial evidence does not, in
my judgment, alter the validity of this proposition.
YOUNG , J., took no part in the decision of this case.
3