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Downey v. Charlevoix County Board of County Road Commissioners2/3/1998
In this age and handicapper's discrimination case, plaintiff, Charlotte K. Downey, appeals as of right from a January 23, 1996, order granting summary Disposition in favor of defendant pursuant to MCR 2.116(C)(10). We reverse and remand for further proceedings.
I.
Plaintiff's decedent, James Bradley Downey (hereafter Downey), worked for defendant at the Ironton garage for approximately twenty years. Downey was discharged on September 6, 1994. Before his discharge, he worked as a heavy equipment operator. Apparently, Downey wanted the assignment of "regular" grader operator, however, that assignment went to another employee who was four years older than Downey, but had less seniority. After the assignment was posted, an altercation occurred between Downey and his supervisor. Defendant claimed that it had discharged Downey after an investigation into the incident in which he had physically attacked his supervisor, Tim Parsel, on August 23, 1994. Plaintiff, however, claims that age and handicap discrimination were the real reasons for termination and that Downey was provoked into the altercation with his supervisor.
Defendant moved for summary Disposition pursuant to MCR 2.116(C)(10). It argued that, with respect to plaintiff's claim of handicap discrimination, the claim should be dismissed because Downey failed to provide notice of a request for an accommodation for his handicap or, alternatively, that he was not discharged because of his handicap. It also argued that, with respect to the claim of age discrimination, the claim should be dismissed because age was not a determining factor in Downey's discharge. The trial court granted defendant's motion with respect to both counts. The trial court ruled that Downey was discharged because he had assaulted the supervisor and that the supervisor did not provide sufficient provocation. The trial court ruled that there was no reasonable argument that Downey's violence was justifiable or the result of sufficient provocation. It further ruled that because the grader operator assignment went to an employee who was four years older than Downey, it was "difficult" to accept Downey's claim of age discrimination. Ultimately, the trial court ruled that there was "no evidence sufficient in the records . . . that creates a genuine issue of material fact," and entered summary Disposition in favor of defendant pursuant to MCR 2.116(C)(10).
On appeal, plaintiff argues that the trial court erred in granting defendant's motion for summary Disposition. Plaintiff contends that she has created a material factual dispute regarding whether a hostile work environment claim based on age and handicapper's discrimination exists such that summary Disposition was improperly granted for defendant. She also contends that there is a material factual dispute regarding whether age was a significant factor in Downey's discharge such that summary disposition was improperly granted.
We review de novo a trial court's ruling on a motion for summary disposition. Harrison v Olde Financial Corp, 225 Mich App 601, 605; 572 NW2d 679 (1997). A motion brought under MCR 2.116(C)(10) tests the factual support for the claim. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). The pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted by the parties must be considered by the court when ruling on a motion brought under MCR 2.116(C)(10). MCR 2.116(G)(5). The court is not permitted to assess credibility or to determine facts on a motion for summary disposition. Skinner, supra, p 161. Rather, the court's task is to review the record evidence, and all reasonable inferences from it, and determine whether a genuine
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