Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  December 9, 2005                                                                Clifford W. Taylor,
                                                                                           Chief Justice

  126547-48                                                                      Michael F. Cavanagh
                                                                                 Elizabeth A. Weaver
                                                                                        Marilyn Kelly
                                                                                   Maura D. Corrigan
  DAVID M. MICK,                                                                 Robert P. Young, Jr.
            Plaintiff-Appellee,                                                  Stephen J. Markman,
                                                                                                Justices

  v      	                                              SC: 126547
                                                        COA: 241121
                                                        Oakland CC: 00-027577-NZ
  LAKE ORION COMMUNITY SCHOOLS, 

  ROBERT BASS, RICHARD KAST, CRAIG A. 

  YOUNKMAN, GLORIA ROSSI, CHRISTINE 

  LEHMAN, and DAVID BEITER,

             Defendants-Appellants.
  ________________________________________

  DAVID M. MICK, 

            Plaintiff-Appellee, 

  v      	                                              SC: 126548
                                                        COA: 241122
                                                        Oakland CC: 00-033085-NZ
  ROBERT M. BASS and RICHARD KAST,

             Defendants-Appellants.        

  _________________________________________/

         On November 8, 2005, the Court heard oral argument on the application for leave
  to appeal the June 3, 2004 judgment of the Court of Appeals. On order of the Court, the
  application for leave to appeal is again considered and, pursuant to MCR 7.302(G)(1), in
  lieu of granting leave to appeal, we REVERSE that portion of the Court of Appeals
  judgment reinstating plaintiff’s retaliation claim based on defendant principal’s
  February 11, 1999 memorandum. The memorandum did not constitute a materially
  adverse employment action, as explained in the Court of Appeals opinion dissenting on
  this issue. We AFFIRM the Court of Appeals reinstatement of plaintiff’s gender
  discrimination claim relative to the Orion Oaks principal position as against defendant
  Lake Orion Community Schools, for the reasons stated in the Court of Appeals
  controlling opinion. We REMAND this case to the Oakland Circuit Court for further
  proceedings consistent with the Court of Appeals controlling opinion regarding the
  reinstated claim.
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       CORRIGAN, J., concurring in part and dissenting in part, states as follows:

        I concur in the majority’s decision to reverse that portion of the Court of Appeals
judgment reinstating plaintiff’s retaliation claim. I disagree, however, with the majority’s
decision to affirm the Court of Appeals reinstatement of plaintiff’s gender discrimination
claim involving the position of principal at Orion Oaks Elementary School. Viewing the
evidence in a light most favorable to plaintiff, I cannot join the majority’s conclusion that
plaintiff created a triable issue that plaintiff’s gender was a motivating factor in
defendant’s employment decision. I would reinstate the trial court’s decision granting
summary disposition to the school district on both claims.

      The Elliott-Larsen Civil Rights Act (ELCRA) prohibits discrimination on the basis
of gender. MCL 37.2202(1)(a) states:

              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.
       To avoid summary disposition in cases where the plaintiff has offered no direct
evidence of discrimination, the plaintiff must proceed through the steps prescribed in
McDonnell Douglas Corp v Green, 411 US 792, 802-803 (1973). Although originally
created for use in race discrimination cases, we have adopted the McDonnell Douglas
approach for use in age and gender discrimination cases brought under the ELCRA.
Hazle v Ford Motor Co, 464 Mich 456, 462-463 (2001). Because plaintiff here has
offered no direct evidence of gender discrimination, we rely on the McDonnell Douglas
framework.

       Under McDonnell Douglas, a plaintiff must first offer a “prima facie case” of
discrimination by presenting evidence that (1) the plaintiff belonged to a protected class,
(2) the plaintiff suffered an adverse employment action, (3) the plaintiff was qualified for
the position, and (4) the job was given to another person under circumstances giving rise
to an inference of unlawful discrimination. Hazle, supra at 463, citing Lytle v Malady
(On Rehearing), 458 Mich 153, 172-173 (1998). Once a plaintiff establishes a prima
facie case of discrimination, the defendant has the opportunity to articulate a legitimate,
nondiscriminatory reason for its employment decision in an effort to rebut the
presumption created by the plaintiff's prima facie case. Hazle, supra at 464, citing Lytle,
supra at 173. If the defendant provides a legitimate, nondiscriminatory reason for its
employment decision, the plaintiff must then demonstrate that the evidence in the case,
when construed in the plaintiff’s favor, is “‘sufficient to permit a reasonable trier of fact
                                                                                           3

to conclude that discrimination was a motivating factor for the adverse action taken by
the employer toward the plaintiff.’” Hazle, supra at 465, quoting Lytle, supra at 176.

       I concur with the Court of Appeals and my colleagues that plaintiff successfully
advanced a prima facie case. It was undisputed that plaintiff satisfied the first three
McDonnell Douglas elements. Plaintiff is a male, he did not receive the Orion Oaks
principal’s position for which he applied, and he was qualified for the position.
Defendant disputes that plaintiff satisfied the fourth element, but plaintiff also satisfied
that element, requiring him to offer proof that the position was given to another person
under circumstances giving rise to an inference of discrimination. Plaintiff presented
evidence suggesting that he was rejected in favor of a woman who was less qualified.
Plaintiff had two advanced degrees while the successful applicant, at the time of hiring,
had none. Plaintiff had twenty-four years of teaching experience while the woman
chosen had only five years of teaching experience. Plaintiff had ten years of
administrative experience while the successful applicant had only one year of assistant
administrative duties.

       I part company with my colleagues on the sufficiency of the remaining proofs.
Once plaintiff successfully advanced a prima facie case, the burden then shifted to
defendant to articulate a legitimate, nondiscriminatory reason for its decision to hire the
woman applicant over plaintiff. Defendant offered several reasons for its hiring decision.
Among them were plaintiff’s lack of “people skills” and lack of ability to communicate
effectively. More importantly, plaintiff had not participated in the development of Orion
Oaks. He showed no interest in teaching at the school when it opened in 1996. The
woman chosen as principal, on the other hand, had participated in the work leading to the
formation of the school. She applied for and been hired to teach at the school when it
opened and was promoted to serve as the school’s assistant principal during the 1997-98
school year. By the time she started as principal in 1998, she had obtained a master’s
degree. Defendant thus furnished legitimate, nondiscriminatory reasons for its hiring
decision.

        The presumption of discrimination initially created by plaintiff’s prima facie case
disappeared. The burden of production shifted back to plaintiff to show the existence of
evidence “‘sufficient to permit a reasonable trier of fact to conclude that discrimination
was a motivating factor for the adverse action taken by the employer toward the
plaintiff.’” Hazle, supra at 473, quoting Lytle, supra at 176.

       In an attempt to satisfy his burden with statistical proof, plaintiff claimed that the
superintendent had placed less-qualified women in five of six positions for which he
applied between 1991 and 1999. Yet the school district’s statistical evidence showed it
had placed nine men and eleven women in administrative positions for which
                                                                                                               4

plaintiff was qualified, a nearly equal ratio of men and women in administrative positions
in the district.

       On this record, I do not see how plaintiff’s statistical evidence supports a jury
finding that plaintiff’s gender motivated defendant’s employment decision in any respect,
especially when considered in light of all the relevant statistics on hiring of men and
women in administrative positions in the district. Accordingly, I would reverse the Court
of Appeals decision and reinstate the trial court’s grant of summary disposition to
defendants on both claims.

      CAVANAGH, J., states as follows:

       I believe that plaintiff presented sufficient evidence of his claims of gender
discrimination and retaliation. His claims are strong enough to survive defendants’
motions for summary disposition. I believe the Court of Appeals reached the right result
and, thus, I would simply deny leave to appeal in this case.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 9, 2005                    _________________________________________
       t1206                                                                 Clerk
