Hazle v. Ford Motor Co.

                                                                       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




                             24

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.




                                          25

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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