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Zanni v. Medaphis Physician Services Corp.8/10/1999
FOR PUBLICATION
Macomb Circuit Court
Plaintiff appeals as of right from an order granting summary Disposition pursuant to MCR 2.116(C)(8) in favor of defendants. The order dismissed plaintiff's claim of reverse age discrimination brought under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We affirm the trial court under the rule of law expressed in Zoppi v Chrysler Corp, 206 Mich App 172; 520 NW2d 378 (1994), because we are required to do so pursuant to MCR 7.215(H)(1). But for our obligation to follow the rule of law as expressed in Zoppi, we would reverse the trial court's order dismissing defendant's cause of action for the reasons set forth below.
We review a trial court's order regarding a motion for summary Disposition under MCR 2.116(C)(8) de novo, "to determine if the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery." Smith v Kowalski, 223 Mich App 610, 612-613; 567 NW2d 463 (1997). Plaintiff's complaint contained the following allegations. Defendant Medaphis hired plaintiff in 1985, later promoted her to the position of account executive, and then terminated her employment in 1996 because she lost two accounts and had "violated her employee plan." A less qualified, older female replaced plaintiff on or about the same day she was terminated. Before her termination, plaintiff's supervisor told plaintiff that her "voice sounded too young on the phone and that the clients wanted an older account executive." Plaintiff also alleged that older account representatives who previously lost two or more accounts were not terminated for their actions and that she was treated differently from older employees due to her age rather than the quality of her work, in violation of the Civil Rights Act. Plaintiff was thirty-one years old when she filed the complaint in the present case. In short, plaintiff claims that defendants discriminated against her because she was too young.
To establish a prima facie case of age discrimination, plaintiff must establish that she was a member of a protected class and that she was subjected to adverse employment action because of her age. Zoppi, supra at 175. In affirming the trial court's order dismissing plaintiff's cause of action, we rely upon this Court's opinion in Zoppi, which held that a plaintiff cannot establish an age discrimination case where the employer denied him a special early retirement because he was too young. Id. at 176. In Zoppi, the plaintiff's employer established an early retirement program for certain employees age fifty-five or older. Zoppi, supra at 173. Plaintiff did not qualify for the program and he subsequently filed a reverse age discrimination claim under the Civil Rights Act. Id. at 174-175. The trial court granted the defendant's motion for summary Disposition pursuant to MCR 2.116(C)(10) on the ground that the retirement plan was exempt from the Civil Rights Act pursuant to ยง 202(2) of the Act, which contains an exemption from the general prohibition against age discrimination for bona fide retirement policies. Id.; MCL 37.2202(2); MSA 3.548(202)(2).
This Court affirmed, holding that the Civil Rights Act "does not protect plaintiff in this situation." Id. at 175. This Court further explained:
"Obviously, whether a person is a member of a protected class for racial, sexual, or religious discrimination is easily identified by a person's race, sex, or religion. However, whether a plaintiff is a member of the protected class for age discrimination is not so easily identified because the determination is not based on the age of the plaintiff per se; also to be considered is the age of
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