Lahar v. Oakland County8/25/2005
UNPUBLISHED
Before: Zahra, P.J., and Cavanagh and Owens, JJ.
Plaintiff appeals as of right from the trial court's judgment that granted defendant's motion for summary disposition. Plaintiff's claim alleged that defendant, her employer, committed age discrimination in violation of MCL 37.2202 by rejecting her application for promotion to a manager position in favor of a younger, less-qualified candidate. The trial court held that plaintiff failed to present any evidence establishing that plaintiff's age was a motivating factor in hiring someone else or that defendant's failure to hire plaintiff was a pretext for unlawful discrimination. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Shortly after plaintiff's supervisor announced his retirement from Oakland County's Children's Village, plaintiff applied for his position. However, three months later, defendant appointed another employee, Joanna Overall, who was ten years younger than plaintiff.
On appeal, a trial court's decision on a motion for summary disposition is reviewed de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). This Court must review the record in the same manner as must the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998). Defendant brought its motion for summary disposition pursuant to MCR 2.116 (C)(10), arguing that plaintiff failed to establish any evidence that age was a determining factor in defendant's decision not to promote plaintiff. When deciding a motion under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence submitted in the light most favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). A motion for summary disposition based on the lack of a material factual dispute must be supported by documentary evidence. MCR 2.116(G)(3)(b); Meyer v City of Center Line, 242 Mich App 560, 574; 619 NW2d 182 (2000).
Considering this standard of review, the question is whether a material factual dispute exists as to whether defendant's decision to promote another employee was based on plaintiff's age. MCL 37.2202(1)(a) provides:
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
Intentional discrimination can be proven by direct and circumstantial evidence. DeBrow v Century 21 Great Lakes, Inc, 463 Mich 534, 539; 620 NW2d 836 (2001). Direct evidence is evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions. Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). In this case, the record contains no direct evidence of age discrimination. In addition, neither plaintiff's motion for summary disposition below nor her brief on appeal allege that any direct evidence of age discrimination exists; instead both allege that Overall's lack of qualifications, compared to plaintiff's superior qualifications, constitute circumstantial evidence of discrimination.
Absent direct evidence, a plaintiff may establish a prima facie case of discrimination under the Civil Rights Act by showing that: (1) the plaintiff was a member of a protected class;
(2) an adverse employment action was
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