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Foster v. Dow Corning Corp.7/12/2005
UNPUBLISHED
Before: Fitzgerald, P.J., and Meter and Owens, JJ.
Plaintiff appeals as of right an opinion and order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.
This is a racial discrimination case arising out of plaintiff's employment with defendant Dow Corning Corporation. The trial court granted defendant's motion for summary disposition, finding that plaintiff failed to establish a prima facie case of racial discrimination because she did not show that she suffered an adverse employment action. Plaintiff argues that she suffered an adverse employment action because she was constructively discharged from her position. We review de novo the trial court's decision on a motion for summary disposition. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
In employment discrimination cases under the state Civil Rights Act, MCL 37.2101 et seq., where there is no direct evidence of racial discrimination, the plaintiff must rely on the four steps set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), to establish a prima facie case of race discrimination. Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). Under McDonnell Douglas, the plaintiff must show 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. Id. at 463. If the plaintiff establishes a prima facie case, then there is a rebuttable presumption of discrimination and the burden shifts to the employer to articulate and present admissible evidence in support of a "legitimate nondiscriminatory reason" for its decision. Id. at 464; see also Lytle v. Malady (On Rehearing), 458 Mich 153, 173; 579 NW2d 906 (1998). The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the reason offered by the defendant was a mere pretext for unlawful discrimination. Hazle, supra at 466; Lytle, supra at 173-174.
For an employment action to be adverse for purposes of a discrimination action, (1) the action must be materially adverse in that it is more than mere inconvenience or an alteration of job responsibilities, and (2) there must be some objective basis for demonstrating that the change is adverse. Wilcoxon v Minnesota Mining & Mfg, 235 Mich App 347, 364; 597 NW2d 250 (1999). A plaintiff's subjective impressions as to the desirability of one position over another are not controlling. Id. at 364. Further, while constructive discharge is an adverse employment action, it "only occurs when an employer or its agent's conduct is so severe that a reasonable person in the employee's place would feel compelled to resign." Champion v Nationwide Security, Inc, 450 Mich 702, 710-711; 545 NW2d 596 (1996).
Plaintiff asserts that she was constructively discharged by defendant either when she was forced to take a medical leave as a result of defendant's race-based conduct with no guarantee of rehire, or when defendant eliminated her position with no bona fide option of continued employment. We reject both of these arguments.
Plaintiff first argues that she suffered the adverse employment action of constructive discharge when she was forced to avail herself of medical leave, which eventually resulted in no guarantee of rehire with the company. But "while an employer's action may lead to a constructive discharge, such a discharge itself generally cannot become evident until the employee has, in fact, left the employment. . . . Until the employee resigns, the employer's
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