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Foster v. Tweddle Litho Co.2/8/2002
UNPUBLISHED
Plaintiff appeals as of right from the trial court's order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(10). Plaintiff alleged that his employment with defendant was terminated unlawfully because of age discrimination. We affirm.
We review a trial court's grant of summary disposition de novo. Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). A motion for summary disposition brought under MCR 2.116(C)(10) tests whether there is factual support for a claim. Id. When deciding a motion for summary disposition, we must consider the pleadings, affidavits, depositions, admissions and other documentary evidence submitted in the light most favorable to the nonmoving party. Id. The motion should be granted when there is no genuine issue as to any material fact or when a party is entitled to judgment as a matter of law. MCR 2.116 (C)(10).
Plaintiff's age discrimination action is based upon the Civil Rights Act, which provides, in pertinent part:
(1) An employer shall not do any of the following:
(a) . . . discharge or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... age .... [MCL 37.2202(1)(a).]
Although the ultimate inquiry is the same, i.e., whether the employee was discharged "because of age," two different approaches are used to prove unlawful age discrimination. Meagher v Wayne State Univ, 222 Mich App 700, 708-710; 565 NW2d 401 (1997); Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 575 (2001).
First, where a plaintiff is able to produce evidence sufficiently probative of impermissible bias using the ordinary principles of proof, the plaintiff can prove unlawful discrimination in the same manner as a plaintiff would prove any civil case. Debrow v Century 21 Great Lakes (After Remand), 463 Mich 534, 540; 620 NW2d 836 (2001). To establish a claim of age discrimination using ordinary principles of proof, the plaintiff must present evidence that "he had skills, experience, background, or qualifications comparable to the retained employee" and "his age was a determining factor in the adverse employment decision." Featherly v Teledyne Ind, 194 Mich App 352, 358-359; 486 NW2d 361 (1992).
Plaintiff failed to present any direct evidence that unlawful discrimination was at least a motivating factor in defendant's termination decision. Hazle, supra at 462. Although defendant's president made the statements which plaintiff alleges prove discriminatory intent, the statements were remote in time from the termination decision, not part of a pattern of age-based, biased commentary and not sufficiently probative of discriminatory bias. Krohn v Sedgwick James of Michigan, Inc, 244 Mich App 289, 297-300; 624 NW2d 212 (2001); see also Debrow, supra at 540. Plaintiff presented no other direct proof that any discriminatory animus was causally related to the termination decision. Hazle, supra at 462; Lytle v Malady (On Rehearing), 458 Mich 153, 176; 579 NW2d 902 (1998).
Under the second approach, where a plaintiff cannot rely on ordinary principles of proof to establish his case, such as a claim based solely on indirect or circumstantial evidence, he may still prove discrimination utilizing a presumptive approach to prove unlawful discrimination. Hazle, supra at 462. To prove a claim under the presumptive approach, plaintiff must establish a prima facie case of discrimination. Id. at 463.
A "prima facie case in this context does not mean that the plaintiff produced enough evidence to allow the case to go to a jury, but rather that the
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