                             STATE OF MICHIGAN

                              COURT OF APPEALS



KAREN HRAPKIEWICZ,                                                 UNPUBLISHED
                                                                   March 9, 2017
                 Plaintiff-Appellee,

v                                                                  No. 328215; 330189
                                                                   Wayne Circuit Court
WAYNE STATE UNIVERSITY BOARD OF                                    LC No. 11-015709-CL
GOVERNORS,

                 Defendant-Appellant.


Before: WILDER, P.J., and CAVANAGH and SERVITTO, JJ.

SERVITTO, J. (dissenting).

         I respectfully dissent.

        The majority concludes that plaintiff proved the elements of a prima facie case of age
discrimination under the McDonnell Douglas1 burden shifting analysis. I agree that there was no
direct evidence of age discrimination in this case such that the burden shifting analysis was the
appropriate framework under which to analyze defendant’s summary disposition and directed
verdict motions. See, DeBrow v Century 21 Great Lakes, Inc, 463 Mich 534, 540; 620 NW2d
836 (2001)(holding that the “shifting burden of proofs as contemplated in McDonnell Douglas
and Burdine 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.). The majority correctly quotes Lytle v Malady, 458 Mich
153, 177; 579 NW2d 906 (1998), as setting forth the prima facie case of an age discrimination
case as requiring plaintiff to prove, by a preponderance of the evidence, that “(1) she was a
member of the protected class; (2) she suffered an adverse employment action; (3) she was
qualified for the position; and (4) she was replaced by a younger person.” However, I note that
Lytle cites to Town v Michigan Bell Tel Co, 455 Mich 688, 695; 568 NW2d 64 (1997) for these
elements, when the Town Court actually stated:




1
    McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817, 36 L Ed 2d 668 (1973).




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               [m]any courts, including this one, have used the prima facie test
       articulated by the United States Supreme Court in McDonnell Douglas Corp v
       Green as a framework for evaluating age-discrimination claims. Originally
       applied to cases of race discrimination, the test has been modified to
       accommodate cases of age and sex discrimination.

       The modified McDonnell Douglas prima facie approach requires an employee to
       show that the employee 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. [Id. footnotes omitted].

Thus, the factors articulated by Lytle are not wholly accurate. And, I would add, would be
extremely easy to meet. If, as indicated in Lytle and followed by the majority, a plaintiff in an
age discrimination case need only show that he or she was of a certain age, suffered an adverse
employee action, was qualified for the position and was replaced by a person even a year
younger, our courts would be flooded with age discrimination cases. Instead, as more accurately
explained in the more recent case of Hazle v Ford Motor Co, 464 Mich 456, 463; 628 NW2d 515
(2001):

       Under McDonnell Douglas, a plaintiff must first offer a “prima facie case” of
       discrimination. Here, plaintiff was required to present evidence 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.

The fourth element is essential to the analysis. The evidence required by the plaintiff in an age
discrimination case to establish this element is more than just his or her birthdate and his or her
replacement’s birth date. Birthdates alone do not give rise to an inference of unlawful
discrimination. The majority implicitly acknowledges the same by quoting the following
applicable portion of Hazle:

       The inquiry at this final stage of the McDonnell Douglas framework is exactly the
       same as the ultimate factual inquiry made by the jury: whether consideration of a
       protected characteristic was a motivating factor, namely, whether it made a
       difference in the contested employment decision. See SJI2d 105.02. The only
       difference is that, for purposes of a motion for summary disposition or directed
       verdict, a plaintiff need only create a question of material fact upon which
       reasonable minds could differ regarding whether discrimination was a motivating
       factor in the employer's decision. [Hazle, 464 Mich at 466 (footnote omitted).]

Clearly, and sensibly, when considering whether a plaintiff has established a prima facie case of
age discrimination under the McDonnell Douglas framework, a trial court must determine
whether it was established that a protected characteristic (here, age) was a motivating factor in
the adverse employment decision. It is not enough, as the majority here appears to find, that the
plaintiff simply demonstrated that the person who replaced her was younger. Rather, in order to
present a prima facie case of age discrimination and specifically to establish the fourth element

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of her prima facie case, plaintiff was required to demonstrate that her age was a factor in her
adverse employment action, i.e., that plaintiff’s age made a difference in her employer’s decision
to fire her. See Hazle, 464 Mich at 466.

        Viewing the evidence presented at summary disposition in a light most favorable to
plaintiff, I would find that plaintiff failed to establish a prima facie case of age discrimination.
There is no dispute that plaintiff was terminated for her action in allowing students to take an
examination on campus for a class that was not even hers when the campus was closed due to
weather conditions. While there may be some dispute as to whether or not other incidents
contributed to the decision, plaintiff presented no evidence that age was a factor in the adverse
employment decision. The uncontroverted evidence was that age was not discussed by the two
decision makers, Dr. Ratner who was three years younger than plaintiff, and Gloria Heppner,
who was approximately 13 years older than plaintiff. In addition, plaintiff’s direct supervisor
began planning his retirement in 2006 and voluntarily retired in 2010. Plaintiff presented no
evidence from which it could be inferred that age played a role in defendant’s termination
decision and the majority has not identified any. Moreover, in denying defendant’s motion for
summary disposition, the trial court did not identify or indicate any evidence that supported the
fourth factor of plaintiff’s prima facie case, but instead incorrectly stated that plaintiff had to
show that defendant’s given reason for the adverse employment action was pretext. Pretext,
however, does not factor into a trial court’s analysis until after the plaintiff has established her
prima facie case. See Hazle, 464 Mich at 465.

        Because plaintiff failed to establish a prima facie case of age discrimination, I would
have reversed the trial court’s denial of summary disposition in defendant’s favor. And, because
plaintiff failed to present any evidence at trial evidencing that age was a factor in the decision to
terminate her, I would have granted defendant’s motion for directed verdict.



                                                              /s/ Deborah A. Servitto




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