HICKMAN
v.
W-S EQUIPMENT COMPANY, INC
Docket No. 101922.
Michigan Court of Appeals.
Decided March 20, 1989.Klein & Lesser (by David Y. Klein), for plaintiff.
*18 Barry L. Howard, P.C. (by Susan A. Davis), for defendants.
Before: HOLBROOK, JR., P.J., and MICHAEL J. KELLY and T.M. BURNS,[*] JJ.
MICHAEL J. KELLY, J.
Plaintiff, Marilyn Hickman, appeals as of right from a circuit court dismissal of her gender discrimination claim. Hickman sued defendant W-S Equipment Company, Inc. and its president, defendant Paul E. Johnson, for sex discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., following her discharge. Defendants moved for summary disposition under MCR 2.116(C)(8) for failure to state a claim, which the trial court granted. We affirm.
Hickman began working as a bookkeeper for defendant W-S Equipment Company in May of 1977. In 1982, defendant Johnson hired another woman, Nancy Greenhow, as an office assistant. Johnson became romantically involved with Greenhow, who later stopped working at W-S Equipment. In December of 1985, Greenhow was rehired by Johnson, who continued to be romantically involved with her. Johnson began assigning plaintiff's work duties and responsibilities to Greenhow and eventually terminated plaintiff's employment in July of 1986. After her termination, plaintiff sued defendants for sex discrimination under the Civil Rights Act. Her complaint alleged that defendant Johnson fired plaintiff in order to give plaintiff's job to Greenhow, his girlfriend. Plaintiff claims that defendants' actions constituted sex discrimination under § 202 of the Civil Rights Act and that defendants' reasons for *19 plaintiff's termination were pretextual and fabricated. Defendants contended that plaintiff was terminated for just cause, namely because she repeatedly failed to produce required financial records on time.
Defendants moved for summary disposition under MCR 2.116(C)(8), on the basis that the facts alleged in plaintiff's complaint failed to state a claim under the Civil Rights Act. The trial court agreed, reasoning that, although the facts alleged indicated an unfair termination, they did not state a claim for sex discrimination. Favoritism of one female over another was not the Legislature's target. On appeal, plaintiff claims that the trial court erred in concluding that she failed to state a claim for sex discrimination under the Civil Rights Act. We disagree.
A motion for summary disposition under MCR 2.116(C)(8) for failure to state a claim upon which relief can be granted tests the legal sufficiency of the claim as determined by the pleadings alone. The motion should be granted only where the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Tyrna v Adamo, Inc, 159 Mich. App. 592, 597; 407 NW2d 47 (1987).
Section 202 of the Civil Rights Act, MCL 37.2202(1); MSA 3.548(202)(1), provides:
An employer shall not:
(a) Fail or refuse to hire, or recruit, or 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.
(b) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive the employee or applicant of *20 an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
Section 103 of the act, MCL 37.2103(h); MSA 3.548(103)(h), provides:
Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when:
(i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing.
(ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual's employment, public accommodations or public services, education, or housing.
(iii) Such conduct or communication has the purpose or effect of substantially interfering with an individual's employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.
A prima facie case of sex discrimination under § 202 of the Civil Rights Act can be made in one of two ways, by showing disparate treatment or by showing intentional discrimination. Dixon v W W Grainger, Inc, 168 Mich. App. 107, 114; 423 NW2d 580 (1987); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich. App. 641, 654; 378 NW2d 558 (1985). These two ways were described in Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich. 785, 793-794; 369 NW2d 223 (1985):
*21 (1) Disparate treatment. To make a prima facie showing of discrimination, the one alleging disparate treatment must show that he was a member of the class entitled to protection under the act and that, for the same or similar conduct, he was treated differently than one who was a member of a different [class]. (2) Intentional discrimination. Here, plaintiff must show that he was a member of the affected class, that he was discharged, and that the person discharging him was predisposed to discriminate against persons in the affected class and had actually acted on that disposition in discharging him. [Citations omitted.]
Plaintiff's complaint clearly fails to state a prima facie claim under either of these two tests. Plaintiff is a member of a class entitled to protection under the act because of her gender. However, plaintiff did not allege any facts showing that she was treated differently than a man or that defendants were predisposed to discriminate against women and that this caused plaintiff's discharge from employment. Viewing the allegations made by plaintiff as true, it is obvious that plaintiff's discharge had nothing to do with her gender; plaintiff's boss merely discharged her in order to give her job to his girlfriend. This discharge would likely have occurred regardless of plaintiff's sex. Nor did these allegations show any sexual harrassment of plaintiff by defendants as defined by § 103(h) of the act.
Although plaintiff's discharge may have been unfair, it was simply not a violation of the prohibition in the Civil Rights Act against gender discrimination. As noted by our Supreme Court in Miller v C A Muer Corp, 420 Mich. 355, 363; 362 NW2d 650 (1984):
The Michigan civil rights act is aimed at "the prejudices and biases" borne against persons because *22 of their membership in a certain class and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. [Citations omitted.]
Plaintiff's claim simply does not indicate that her discharge was due to her membership in a certain suspect class. The trial court did not err in dismissing her suit.
Affirmed.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.