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Konieczny v. Mercy Mount Clemens Corp.7/14/2005
UNPUBLISHED
Before: Murphy, P.J., and Sawyer and Donofrio, JJ.
Plaintiff, an obstetrician and gynecologist, worked for defendant from 1999 to 2002 and was subject to a non-compete clause as a condition of her employment. The clause prohibited plaintiff from engaging in her specialty within a ten-mile radius of defendant's location for a period of two years after her employment with defendant ended. Plaintiff alleges that after she left her employment with defendant, she was offered a position at a nearby location, but was unable to accept the position because of the non-compete clause. She subsequently commenced this action against defendant for gender discrimination under the Michigan Civil Rights Act, MCL 37.2101 et seq., alleging that only female physicians in her department were required to agree to a non-compete clause with a ten-mile work restriction, whereas male doctors were offered non-compete clauses with a five-mile work restriction. The parties filed cross-motions for summary disposition. The trial court denied the motions. This Court granted defendant's application for leave to appeal. We reverse and remand.
In its motion for summary disposition, defendant argued that plaintiff failed to prove a prima facie case of discrimination. This Court reviews a trial court's decision on summary disposition de novo. Spiek v. Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Defendant moved for summary disposition under MCR 2.116(C)(10). A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence. MCR 2.116(G)(5). Summary disposition should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995).
A prima facie case of discrimination under the Civil Rights Act can be proven under either a disparate impact or disparate treatment theory.
Disparate treatment requires a showing of either intentional discrimination against protected employees or against an individual plaintiff. Disparate impact requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class. [Duranceau v Alpena Power Co, 250 Mich App 179, 182; 646 NW2d 872 (2002).]
To prove gender discrimination, plaintiff must show that she was "(1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer's adverse conduct." Town v Michigan Bell Telephone Co, 455 Mich 688, 695; 568 NW2d 64 (1997).
Plaintiff relies on the test from McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Under that test, a plaintiff may establish a prima facie case of discrimination by showing that she suffered an adverse employment action under circumstances that give rise to an inference of unlawful discrimination. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 361; 597 NW2d 250 (1999). Once a prima facie case is established, the employer has the burden of coming forward with a legitimate nondiscriminatory reason for the adverse employment action. Id. If the employer meets that burden, the plaintiff then must prove that the stated reason is a mere pretext for discrimination. Id.
We agree with defendant that plaintiff failed to establish a prima facie case of discrimination under a disparate treatment theory. In particular, plaintiff failed to show that similarly situa
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