            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



NANCY CHEMA,                                                         UNPUBLISHED
                                                                     February 26, 2019
               Plaintiff-Appellant,

v                                                                    No. 340013
                                                                     Macomb Circuit Court
MICHIGAN CANCER SPECIALISTS PLC,                                     LC No. 2015-000775-CD

               Defendant-Appellee.


Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ.

PER CURIAM.

        Plaintiff appeals by right an order granting defendant judgment notwithstanding the
verdict (“JNOV”) in plaintiff’s action alleging age discrimination under the Elliott-Larsen Civil
Rights Act (“CRA”), MCL 37.2101 et seq. We reverse.

                                        I. BASIC FACTS

       Plaintiff filed a one-count complaint of age discrimination against defendant. Defendant
was a small medical practice and plaintiff worked in its billing department since 1991. Plaintiff
had a positive working relationship with defendant’s de facto office manager Margaret Agnone,
the wife of Dr. Eugene Agnone. Drs. Agnone and Adli Yakan co-owned defendant. By all
accounts, plaintiff was an extremely competent employee and valued by defendant. Plaintiff
acknowledged that she enjoyed a generous salary and many fringe benefits.

        Plaintiff testified that everything changed in June 2014 when defendant hired Stacey
Wilson to be the office manager. Margaret had indicated a desire to spend less time at the office.
Additionally, as a result of the Affordable Care Act, defendant needed to make a number of
changes and adjustments to its practice. To that end, defendant hired Wilson to help manage the
practice. During one of their initial conversations, Wilson asked plaintiff if plaintiff had thought
about retiring. Plaintiff, who was 63 years old at the time, indicated that she had no intention of
retiring because she needed to work until age 66 to get full Social Security benefits.

       On October 6, 2014, plaintiff had her first evaluation with Wilson. The written
evaluation considered 10 different categories of performance. There were four possible ratings –
very effective, effective, somewhat effective, and ineffective. Plaintiff believed “somewhat
effective” and “ineffective” were both below average ratings. Plaintiff received below average
ratings in four categories that included: (1) taking action; (2) valuing diversity and respecting
others; (3) teaching and learning; and, (4) and taking responsibility. However, Wilson could not
provide plaintiff with concrete examples of how plaintiff fell short in those areas. The written
evaluation was silent on an “overall performance” rating but Wilson told plaintiff that Wilson
would have given plaintiff an “underperformed expectations” rating.

        In addition to the written evaluation, it was at this October 6, 2014, meeting that Wilson
notified plaintiff that plaintiff would not be getting any more raises. Wilson expressed shock at
how much money plaintiff earned. Wilson told plaintiff “no” to an annual raise and that plaintiff
was “maxed out.” There would be no future raises.

        The October 6, 2014, meeting also involved discussions regarding plaintiff’s hours and
overtime. Plaintiff previously came to work early – approximately 6:30 a.m. – and would leave
at 3:30. Wilson required plaintiff to change her start time, first to 7:00 a.m. and then, later, to
7:30 a.m. Employees used to have actual punch cards, but once Wilson arrived, they utilized a
“cloud” system and an employee would be considered on the clock as soon as she logged into
her work station. At the October 6, 2014, meeting, Wilson warned plaintiff that plaintiff had
unauthorized overtime. Plaintiff explained that she came to work early because the distance
from Rochester to Roseville was significant and plaintiff would rather be early than be late
because of traffic. Plaintiff asked whether Wilson could do something with the new system such
that plaintiff’s start time would be 7:30, regardless of when she actually logged in. Plaintiff did
not expect to receive overtime pay.

        At the October 6, 2014, meeting, Wilson and plaintiff also discussed plaintiff’s fringe
benefits. Wilson told plaintiff that plaintiff would receive two sick days, three personal days,
and 10 vacation days. Plaintiff attempted to correct Wilson and drew her attention to the fact
that she had much more vacation time than that. Wilson said “no, this is what it is.” Wilson
demanded that plaintiff sign a sheet indicating that they talked about days off but that Wilson
said she would look into the matter further. Plaintiff was crying and upset over the evaluation
and the changes to her salary and benefits. She testified that, at the October 6, 2014, meeting,
Wilson “said maybe you’re getting a little bit too old for this job and it’s time to retire.”

        Two days after that evaluation, on October 8, 2014, plaintiff received a written warning
from Wilson for “carelessness” regarding a patient’s care. Plaintiff explained that there was
confusion about what transpired. Plaintiff believed that one of the chemo nurses asked her to
verify that a patient could receive an IV infusion of anti-nausea drugs at the time he received his
chemo infusion. In fact, the nurse wanted to know whether prescription oral medication was a
covered benefit. Plaintiff told the nurse that she could not verify coverage because Yakan had
not written a prescription.

        A week later, on October 15, 2014, Wilson called plaintiff into her office and advised
plaintiff that she was going to receive three written warnings that day. Wilson told plaintiff that
the first warning was for insubordination and violation of the anti-harassment policy. Plaintiff
explained that Wilson got into an argument with one of the chemo nurses, Theresa Evaldi.
While the two of them were arguing in the hallway, Wilson stuck her head in the office where

                                                -2-
plaintiff was working and asked whether she knew where Margaret was. Plaintiff turned from
her computer and said, “no, I don’t.” Wilson asked plaintiff a second time where Margaret was
and plaintiff again said, “I don’t know where Margaret is.” Plaintiff noted that there were two
other employees in the room at the time. Both of these individuals were substantially younger
than plaintiff. Plaintiff felt she had done nothing wrong, yet Wilson recommended that
defendant seek legal counsel regarding plaintiff’s “harassment and insubordination.”

        The second warning discussed at the October 15, 2014, meeting was based on plaintiff’s
alleged behavior toward Leslie Killop, an individual that plaintiff was tasked with training. The
written warning indicated that plaintiff swore at Killop, was rude, and was unwilling to assist
Killop with training questions. Again, plaintiff disputed Wilson’s version of events. Plaintiff
explained that she had reminded Killop to make copies of hospital lists for the chemo nurses.
Killop snapped at her that plaintiff never told her that before. Plaintiff responded that she had
told Killop that many times. Plaintiff believed Killop was doing a great job, but that she kept
forgetting to make copies of the hospital lists for the nurses. Killop refused to talk to plaintiff for
the rest of the day. The next morning, Killop arrived at work and threw down her belongings.
Plaintiff denied asking Killop what Killop was “pissed” about. Instead, plaintiff asked Killop
whether she was having problems at home or problems at work that would have placed her in a
bad mood. Plaintiff expressed dismay that she would receive a write-up for the interaction.
Plaintiff told Wilson that there were plenty of times that she could have complained about co-
workers, but was under the impression that such things should be handled by the employees
themselves.

        The third warning plaintiff received on October 15, 2014, was for unapproved overtime.
Plaintiff thought that Wilson had set her time to punch in at 7:30 a.m. regardless of her arrival
time.

        After receiving the three consecutive warnings, plaintiff was once again crying and upset.
At that point, Wilson told plaintiff that if plaintiff received one more write-up she would be fired.
Wilson told plaintiff that “it’s better if you retire now than get fired.” Wilson resigned
immediately following the meeting with Wilson. Wilson told plaintiff “now I can hire people
that are younger and cheaper than you.” Plaintiff rejected defendant’s January 2016 offer of
reinstatement.

        The jury returned a verdict in plaintiff’s favor. The jury concluded that plaintiff proved
by a preponderance of the evidence that plaintiff’s working conditions at defendant were so
intolerable that she was forced to resign and that defendant caused intolerable working
conditions for plaintiff because of her age. The jury concluded that plaintiff was not
unreasonable in rejecting the unconditional offer of reinstatement. It awarded plaintiff
$141,416.50 in past and future wage loss and fringe benefits and $33,583.50 for past and future
emotional distress.

        However, as will be discussed in greater detail below, the trial court granted defendant’s
motion for JNOV in a written opinion and order dated August 24, 2017, finding that plaintiff
failed to establish an adverse employment action as a matter of law and that, without an adverse
employment action, plaintiff could not sustain a claim for constructive discharge.


                                                 -3-
       Plaintiff now appeals by right.

                                            II. JNOV

        An appellate court “reviews de novo a trial court’s decisions regarding motions for
JNOV. The appellate court is to review the evidence and all legitimate inferences in the light
most favorable to the nonmoving party. Only if the evidence so viewed fails to establish a claim
as a matter of law, should the motion be granted.” Hecht v Nat’l Heritage Academies, Inc, 499
Mich 586, 604; 886 NW2d 135 (2016) (footnotes and quotation marks omitted). In the context
of the CRA, this Court must determine whether plaintiff presented sufficient evidence to support
a jury verdict finding employment discrimination. Id. at 605. “If reasonable jurors could have
honestly reached different conclusions, the jury verdict must stand.” Id. at 605-606.

       The CRA 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 . . .age . . . [MCL 37.2202(1)(a).]

In order to establish a claim under the CRA, a plaintiff must establish that she suffered an
adverse employment action.” Chen v Wayne State Univ, 284 Mich App 172, 201; 771 NW2d
820 (2009). “The ultimate question in an employment discrimination case is whether the
plaintiff was the victim of intentional discrimination.” Hecht, 499 Mich at 606.

         In granting defendant JNOV, the trial court’s legal analysis was flawed. The trial court
first cited the “burden-shifting” approach McDonnell Douglas Corp v Green, 411 US 792; 93 S
Ct 1817; 36 L Ed 2d 668 (1973) as adopted by Lytle v Malady, 458 Mich 153, 172; 579 NW2d
906 (1998). It noted that in order to demonstrate a rebuttable prima facie case of discrimination,
plaintiff had to prove: (1) that she was a member of a protected class; (2) that she suffered an
adverse employment action; (3) she was qualified for her position; and (4) suffered the adverse
employment action under circumstances giving rise to an inference of unlawful discrimination.
Defendant could then articulate a non-discriminatory reason for the adverse employment action,
requiring plaintiff to demonstrate that the reason was pretext for discrimination.

        However, the McDonnell-Douglas burden-shifting approach does not apply in situations
where there is direct evidence of discriminatory animus. DeBrow v Century 21 Great Lakes, Inc
(After Remand), 463 Mich 534, 540; 620 NW2d 836 (2001) (“shifting burden of proofs as
contemplated in McDonnell Douglas . . . only apply to discrimination claims based solely on
indirect or circumstantial evidence of discrimination” and when direct evidence is offered to
prove discrimination the case proceeds as an ordinary civil matter). “There are multiple ways to
prove that a plaintiff was the victim of unlawful discrimination. Direct evidence of intentional
discrimination is a sure but rare method of challenging an employer’s decision.” Hecht, 499
Mich at 607. “Perhaps the best general definition of direct evidence is that it is evidence that
proves impermissible discriminatory bias without additional inference or presumption.” Id. at
608 n 34. For example, this can be accomplished when a decision-maker tells an employee at a


                                                -4-
meeting in which the employee suffers an adverse employment action that the employee is
“getting too old for this . . .” Id., quoting DeBrow, 463 Mich at 538. Here, plaintiff testified that
Wilson specifically commented on her age and need to retire. Therefore, the trial court’s
reference to the burden-shifting approach was unnecessary.

       Regardless, the trial court then correctly noted that, in order to maintain a claim under the
CRA, plaintiff had to demonstrate that she suffered an adverse employment action. Wilcoxon v
Minnesota Min & Mfg Co, 235 Mich App 347, 362; 597 NW2d 250 (1999). “[I]n order 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 because a plaintiff’s subjective impressions as to the desirability of one position over
another are not controlling.” Id. at 364 (quotation marks and citation omitted). “Although there
is no exhaustive list of adverse employment actions, typically it takes the form of an ultimate
employment decision, such as a termination in employment, a demotion evidenced by a decrease
in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished
material responsibilities, or other indices that might be unique to a particular situation.” Pena v
Ingham Co Rd Comm’n, 255 Mich App 299, 312; 660 NW2d 351 (2003).

        In finding that plaintiff’s proofs fell short of demonstrating an adverse employment
action, the trial court made the following observation:

               In the case at bar, to support her argument that she suffered an adverse
       employment action, plaintiff relies on a poor performance review by Wilson, an
       October 6, 2014 meeting in which she alleges that Wilson told her that she would
       not receive a raise in the future, an alleged reduction in plaintiffs sick leave and
       vacation time and an allegation that Wilson told plaintiff that she should retire and
       that she is too old for the job. Next, plaintiff contends that she received a written
       warning for the first time in her career on October 8, 2014, and another warning
       on October 15, 2014. However, none of these employment actions noted by
       plaintiff are adverse employment actions akin to “termination of employment, a
       demotion evidenced by a decrease in wage or salary, a less distinguished title, a
       material loss of benefits, significantly diminished material responsibilities, or
       other indices that might be unique to a particular situation.” Furthermore, it is
       undisputed that Wilson lacked the authority to fire plaintiff. Importantly, plaintiff
       and the owners testified that the owners of the company, who possessed firing
       authority, told plaintiff that her job was “secure.”                Considering the
       aforementioned facts, even when reviewing this matter in the light most favorable
       to plaintiff, plaintiff clearly failed to establish an adverse employment action as a
       matter of law.

        There are a number of errors with the trial court’s assessment. First, at no time did
plaintiff claim that she suffered an adverse employment action because of the performance
review or written warning. Instead, plaintiff claimed that the adverse employment action was her
constructive discharge. Second, presumably because the trial court was operating under the
wrong legal framework, the trial court glosses over the fact that Wilson told plaintiff she was too
old for the job. Whether Wilson was a “decision-maker” is a factor to consider only if defendant

                                                 -5-
argues that the statements were “stray remarks.” Sniecinski v Blue Cross & Blue Shield of
Michigan, 469 Mich 124, 136 n 8; 666 NW2d 186 (2003). Defendant could not and did not
claim that Wilson’s remarks were stray remarks; instead, defendant claimed Wilson never made
the statements. Finally, the trial court makes a factual finding that plaintiff was reassured that
her job was secure. However, there was conflicting testimony about when Dr. Yakan made that
statement and in what context. In short, the trial court failed to take the evidence in a light most
favorable to the non-moving party.

       The trial court rejected plaintiff’s claim that she was constructively discharged:

               [P]laintiff’s contention is without merit because ‘constructive discharge is
       not in itself a cause of action.’ Vagts v Perry Drug Stores, Inc, 204 Mich App
       481, 487; 516 NW2d 102 (1994). “Rather, constructive discharge is a defense
       against the argument that no suit should lie in a specific case because the plaintiff
       left the job voluntarily.” Id. “Thus, an underlying cause of action is needed
       where it is asserted that a plaintiff did not voluntarily resign but was instead
       constructively discharged.” Id. In the present case, plaintiff’s underlying cause
       of action was age discrimination.

               Constructive discharge “is established where ‘an employer deliberately
       makes an employee’s working conditions so intolerable that the employee is
       forced into an involuntary resignation or, stated differently, when working
       conditions become so difficult or unpleasant that a reasonable person in the
       employee’s shoes would feel compelled to resign.’” Vagts, 204 Mich App at 487,
       quoting Mourad v Automobile Club Ins Ass’n, 186 Mich App 715, 721; 465
       NW2d 395 (1991). If constructive discharge is established, the employee is
       treated as if he or she had actually been discharged. Jacobson v Parda Fed Credit
       Union, 457 Mich 318, 328; 577 NW2d 881 (1998). Constructive discharge
       demands an objective standard of reasonableness. Jacobson, 457 Mich at 328.

       The trial court correctly stated the law but then failed to properly apply it. The trial court
concluded:

               In the case at bar, plaintiff has clearly failed to establish an adverse
       employment action. Without an adverse employment action, plaintiff cannot
       sustain a claim for constructive discharge. Chen, 284 Mich App at 201. In sum,
       the evidence in this case was insufficient for a reasonable person to find that
       plaintiff suffered an adverse employment action. The only evidence plaintiff
       claims amounts to age discrimination was her testimony that on two occasions
       Wilson stated to plaintiff to the effect, “maybe you’re getting a little bit too old
       for this job and it’s time to retire.” However, the evidence showed from June
       2014 to the date she resigned, October 15, 2014, that plaintiff earned the same
       salary, had the same paid-time off, and possessed the same job duties. The same
       is true regarding the evaluation in which Wilson indicated plaintiff needed to
       improve in four performance measures, and was either satisfactory or excelled in
       the six remaining performance categories. This also applies to the four written
       warnings of alleged inadequate performance, one on October 8, 2014, and three

                                                 -6-
       on October 15, 2014. Plaintiff also relied on her subjective feelings of how she
       was treated by Margaret Agnone and another employee, Leslie [Killop]. At a
       minimum, plaintiff must point to a tangible adverse employment action that she
       suffered or was in jeopardy of suffering because of the evaluation or warnings.
       However, plaintiff has clearly failed to meet her burden. Consequently,
       defendant’s motion for judgment notwithstanding the verdict must be granted.

       It is true that Vagts stands for the proposition that constructive discharge is not a cause of
action. Instead, it is a defense against the argument that a plaintiff cannot sue because she
voluntarily quit her job:

       [C]onstructive discharge is not in itself a cause of action, although it is routinely
       alleged as a separate count in complaints for wrongful discharge. Rather,
       constructive discharge is a defense against the argument that no suit should lie in
       a specific case because the plaintiff left the job voluntarily. Thus, an underlying
       cause of action is needed where it is asserted that a plaintiff did not voluntarily
       resign but was instead constructively discharged. [Vagts, 204 Mich App at 487
       (citations omitted).]

But Vagts did not serve as a proper basis for granting defendant JNOV in this case.

        The Vagts Court concluded that there was no statutory basis for the plaintiff’s cause of
action and no basis for bringing public policy claims. In essence, the Court concluded that the
plaintiff failed to state a claim. That is not the case here where plaintiff relies on the CRA in her
one-count complaint for age discrimination. The CRA, recognizing freedom from discrimination
because of age, prohibits discrimination because of age in employment. MCL 37.2202(1)(a). In
a case involving the Whistleblower Protection Act (“WPA”), MCL 15.361 et seq., our Supreme
Court observed that while constructive discharge is not, itself, a cause of action, “discharge is
among the retaliatory actions prohibited by the [WPA]. Plaintiff alleged she was constructively
discharged. The actual posturing of her claim, accordingly, is one of discharge in violation of
the act.” Jacobson v Parda Fed Credit Union, 457 Mich 318, 321 n 9; 577 NW2d 881, 882
(1998), rev’d on other grounds Joliet v Pitoniak, 475 Mich 30; 715 NW2d 60 (2006). The same
is true here. Plaintiff alleges that she was constructively discharged as a result of age
discrimination in violation of the CRA. Therefore, plaintiff’s complaint contained a proper
underlying cause of action and Vagts was not an impediment.

        As the trial court seemed to acknowledge, constructive discharge is the equivalent of
being fired. “It is well established that the law does not differentiate between employees who are
actually discharged and those who are constructively discharged. In other words, once
individuals establish their constructive discharge, they are treated as if their employer had
actually fired them.” Champion v Nationwide Sec, Inc, 450 Mich 702, 710; 545 NW2d 596
(1996), rev’d on other grounds Hamed v Wayne Co, 490 Mich 1; 803 NW2d 237 (2011). The
CRA prohibits an employer from discharging an employee based on age.

       Having concluded that constructive discharge is the legal equivalence of being fired, the
issue becomes whether the jury could have found that defendant, in fact, constructively
discharged plaintiff. “Constructive discharge requires inquiry into the intent of the employer and

                                                -7-
the reasonably foreseeable impact of the employer’s conduct on the employee.” Jenkins v SE
Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985). “An
employer is held to intend the reasonably foreseeable consequences of his conduct.” Id. “A
constructive discharge occurs when an employer deliberately makes an employee’s working
conditions so intolerable that the employee is forced into an involuntary resignation.” Hammond
v United of Oakland, Inc, 193 Mich App 146, 151; 483 NW2d 652, 654 (1992), quoting Mourad
v Auto Club Ins Ass’n, 186 Mich App 715, 721, 465 NW2d 395 (1991). “[O]r, stated differently,
when working conditions become so difficult or unpleasant that a reasonable person in the
employee’s shoes would feel compelled to resign.” Mourad, 186 Mich App at 721. “A finding
of constructive discharge depends on the facts of each case.” Wolff v Auto Club of Michigan,
194 Mich App 6, 15; 486 NW2d 75 (1992).

        Because it is a fact-based inquiry, whether a plaintiff has been constructively discharged
is an issue for the jury to decide. See Manning v City of Hazel Park, 202 Mich App 685, 698;
509 NW2d 874 (1993). As previously stated, in the context of a JNOV, this Court “is to review
the evidence and all legitimate inferences in the light most favorable to the nonmoving party”
and “[o]nly if the evidence so viewed fails to establish a claim as a matter of law, should the
motion be granted.” Hecht, 499 Mich at 604. In the context of the CRA, this Court must
determine whether plaintiff presented sufficient evidence to support a jury verdict finding
employment discrimination. Id. at 605. “If reasonable jurors could have honestly reached
different conclusions, the jury verdict must stand.” Id. at 605-606.

        Plaintiff presented evidence from which a reasonable jury could conclude she was
discriminated against because of her age. Plaintiff testified that Wilson made repeated comments
about plaintiff’s age and the need for her to retire. Additionally, over the span of just a few days,
plaintiff received a negative performance review, was issued numerous warnings, and was
threatened with termination if another warning occurred. A jury could conclude that defendant
created working conditions so intolerable that a reasonable person in plaintiff’s shoes would
have felt compelled to resign. In granting defendant JNOV, the trial court substituted its opinion
for that of the jury, applied erroneous legal principles, and required plaintiff to jump through
non-existent temporal requirements by first demonstrating an adverse employment action before
demonstrating constructive discharge when those issues were necessarily intertwined.

                                   III. JURY INSTRUCTIONS

        Defendant argues that, in the event this Court reverses on the issue of JNOV, a new trial
is warranted due to instructional errors. We disagree.

        “We review a trial court’s decision regarding jury instructions for an abuse of discretion.”
Alfieri v Bertorelli, 295 Mich App 189, 196; 813 NW2d 772 (2012). “An abuse of discretion
occurs when the trial court chooses an outcome falling outside the range of principled
outcomes.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010).

        “[J]ury instructions must be reviewed as a whole, rather than extracted piecemeal to
establish error in isolated portions.” Hill v Sacka, 256 Mich App 443, 457; 666 NW2d 282
(2003) (internal quotation marks omitted). “There is no error requiring reversal if, on balance,
the theories of the parties and the applicable law were adequately and fairly presented to the

                                                -8-
jury.” Id. at 457–458. Reversal is not required unless failing to do so would be “inconsistent
with substantial justice.” MCR 2.613(A).

        The trial court gave the following instruction, which was a modification of model
instructions M Civ JI 105.02 and M Civ JI 105.04:

               Plaintiff must prove that she was discriminated against because of age.
       The discrimination must have been intentional. It cannot have occurred by
       accident. Intentional discrimination means that one of the motives or reason for
       plaintiff constructive discharge was her age. Age does not have to be the only
       reason, or even the main reason. It means that age was the “but for” cause of the
       Plaintiff constructive discharge.

              Another formulation would be that age was a determining factor [and] the
       constructive discharge would not have occurred without age discrimination.

                                              * * *

              Plaintiff has the burden of proving that defendant constructively
       discharged the Plaintiff, and were it not for age discrimination plaintiff would not
       have been constructively discharged.

               Your verdict will be for the plaintiff if you find that the Defendant
       constructively discharged the Plaintiff and that were it not for age discrimination,
       [P]laintiff would not have been constructively discharged. Age does not have to
       be the only reason or the main reason. It means that age was the “but for” cause
       in plaintiff constructive discharge.

                                              * * *

               Your verdict will be for the defendant if you find the Defendant did not
       constructively discharge the Plaintiff. Your verdict will also be for the defendant
       if you find that the Defendant did constructively discharge the Plaintiff, but that
       age was not the “but for” reason for the constructive discharge.

        Defendant claims that the trial court’s instructions were confusing and failed to reflect the
Michigan Supreme Court’s decision in Hecht. The Hecht Court held: “In our caselaw, we have
interpreted the CRA to require ‘but for causation’ or ‘causation in fact.’ We reaffirm that
construction here.” Hecht, 499 Mich at 606 (footnote and quotation marks omitted). The Court
cited Matras v Amoco Oil Co, 424 Mich 675, 682; 385 NW2d 586 (1986). Hecht, 499 Mich 606
n 32. The Matras Court held:

               A jury can find that the discharge was “because of age” even if age was
       not the sole factor. As accurately expressed in the Michigan Standard Jury
       Instruction, “[age] does not have to be the only reason, or even the main reason,
       but it does have to be one of the reasons which made a difference in determining
       whether or not to [discharge] the plaintiff.” Another formulation would be that
       age is a determining factor when the unlawful adverse action would not have

                                                -9-
       occurred without age discrimination. Alternative expressions of the determining
       factor concept are “but for causation” or “causation in fact.”

               In the instant case, the question therefore becomes whether there was
       sufficient evidence, when the evidence and inferences therefrom are viewed in a
       light most favorable to Matras, for reasonable jurors to conclude that age
       discrimination was a determining factor in the decision to discharge him.
       [Matras, 424 Mich at 682–683 (footnote omitted).]

The trial court’s instructions were in keeping with the model instructions and Hecht. We find no
error in the instructions, which adequately set forth plaintiff’s burden of proof.

        Reversed and remanded with instructions that the jury’s verdict be reinstated. We do not
retain jurisdiction.

                                                           /s/ Elizabeth L. Gleicher
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Anica Letica




                                             -10-
