            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



SANDRA PARKER,                                                      UNPUBLISHED
                                                                    October 1, 2019
               Plaintiff-Appellant,

v                                                                   No. 344897
                                                                    Wayne Circuit Court
DEARBORN PUBLIC SCHOOLS,                                            LC No. 17-005122-CD

               Defendant-Appellee.


Before: JANSEN, P.J., and CAMERON and TUKEL, JJ.

PER CURIAM.

       Plaintiff appeals as of right the trial court’s order granting defendant’s motion for
summary disposition as to plaintiff’s claims for a violation of the Elliott-Larsen Civil Rights Act
(CRA), MCL 37.2101 et seq., breach of contract, and promissory estoppel. We affirm in part,
reverse in part, and remand for further proceedings.

       Plaintiff has a bachelor’s degree in English, a master’s degree in special education, and a
master’s degree in educational technology. Plaintiff had a lengthy history of teaching, going
back to the late 1990s. In October 2016, plaintiff accepted a position working as a special
education teacher with Westwood Community School District (Westwood) at Robichaud High
School.

        While working for Westwood, plaintiff, who was 60 years old at the time, applied to be a
special education teacher with defendant in November 2016. Mike Esseily, a special education
coordinator for defendant, contacted plaintiff and asked her to interview; plaintiff’s first
interview took place on November 29, 2016. In December 2016, plaintiff interviewed for a
second time with members of the special education hiring committee. Plaintiff thereafter was
recommended for hire by the committee and scheduled to begin work with defendant as a special
education teacher. During plaintiff’s intake meeting on January 19, 2017, plaintiff completed
some paperwork and drafted a letter introducing herself to her new students. During the
meeting, plaintiff presented her identification to Robert Seeterlin, the Human Resources (HR)
director, in order for Seeterlin to conduct a background check; during the intake, plaintiff also
conveyed to Seeterlin that Esseily had previously told plaintiff that a salary of $47,000 was



                                                -1-
available for the position. Seeterlin suspended the intake because he was not sure whether he
could offer plaintiff $47,000. Following the intake, defendant declined to hire plaintiff on the
day she was to begin working for defendant. Fatemah Beydoun, who was 30 years younger than
plaintiff, was hired for the position that plaintiff initially was supposed to fill.

       Plaintiff filed a claim for violation of the CRA on the basis of age discrimination, as well
as claims for breach of contract and promissory estoppel. The trial court granted defendant’s
motion for summary disposition as to all claims, and this appeal ensued.

                                  I. STANDARD OF REVIEW

        A trial court’s decision on a motion for summary disposition is reviewed de novo.
Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016). A motion for summary
disposition under MCR 2.116(C)(10)1 challenges the “factual adequacy of a complaint on the
basis of the entire record, including affidavits, depositions, admissions, or other documentary
evidence.” Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223
(2013). A trial court’s grant of summary disposition under MCR 2.116(C)(10) is proper when
the evidence, “viewed in the light most favorable to the nonmoving party, show[s] that there is
no genuine issue as to any material fact and the moving party is therefore entitled to judgment as
a matter of law.” Lowrey, 500 Mich at 5. “ ‘A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.’ ” Gorman, 302 Mich App at 116 (citation omitted).

                                         II. CRA CLAIM

        Plaintiff argues that the trial court erred in granting defendant’s motion for summary
disposition as to her CRA claim because she claims that she presented sufficient evidence to
create a genuine issue of material fact as to whether defendant’s reasons for not hiring plaintiff
were a pretext for age discrimination. We agree.

        Under MCL 37.2202(1)(a), an employer shall not “[f]ail 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.” “Proof of discriminatory treatment in
violation of the CRA may be established by direct evidence or by indirect or circumstantial
evidence.” Major v Village of Newberry, 316 Mich App 527, 540; 892 NW2d 402 (2016)
(quotation marks and citation omitted). When there is no direct evidence, as is the case here, “a
plaintiff must establish a prima facie case of age discrimination by proving 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.” Id. at 540-541


1
  While defendant moved for summary disposition under both MCR 2.116(C)(8) and (C)(10), the
trial court expressly stated it was relying on materials outside the pleadings and was granting the
motion pursuant to MCR 2.116(C)(10). Thus, our review of the court’s decision is performed
pursuant to MCR 2.116(C)(10).


                                                -2-
(quotation marks and citation omitted). Once the plaintiff establishes a prima facie case of
discrimination, “the burden shifts to the defendant to articulate a legitimate nondiscriminatory
reason for the adverse employment action taken.” Id. at 541. If the defendant provides a
legitimate, nondiscriminatory reason for the adverse employment action, “a plaintiff must then
present evidence that the explanation provided by his or her employer constituted a pretext for
discrimination.” Id. at 542. A plaintiff can establish a pretext in the following ways:

       A plaintiff can establish that a defendant’s articulated legitimate,
       nondiscriminatory reasons are pretexts (1) by showing the reasons had no basis in
       fact, (2) if they have a basis in fact, by showing that they were not the actual
       factors motivating the decision, or (3) if they were factors, by showing that they
       were jointly insufficient to justify the decision. [Id. at 542 (quotation marks and
       citation omitted).]

In other words, “[a]t that point, in order to survive a motion for summary disposition, the
plaintiff must demonstrate that the evidence in the case, when construed in the plaintiff’s favor,
is 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 v Ford Motor
Co, 464 Mich 456, 465; 628 NW2d 515 (2001).

        Plaintiff established a prima facie claim of age discrimination. There is no dispute that
plaintiff was a member of a protected class at the time she applied for the position with
defendant. As to the second element, this Court has stated that there is no exhaustive list of
adverse employment actions and “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). Plaintiff had been
recommended for a teaching position with defendant and already had been scheduled to start
work with defendant; defendant announced the decision not to hire her on the day she was to
begin work. Defendant’s decision to not carry through with hiring plaintiff thus constituted an
adverse employment action. Plaintiff also was qualified for the position. She had years of
teaching experience, as well as a master’s degree in special education and a master’s degree in
educational technology. The position for which plaintiff was recommended was given to
Beydoun, a younger individual; Beydoun applied for the position on January 18, 2017, and
interviewed for the position on January 24, 2017, the day after plaintiff was scheduled to begin
working for defendant; Beydoun began working for defendant on February 7, 2017, and she was
officially hired by the school board on February 13, 2017. Thus, plaintiff established a prima
facie case of employment discrimination, shifting the burden to defendant to present a legitimate,
nondiscriminatory reason for not hiring plaintiff.

        In order to present a legitimate, nondiscriminatory reason for the adverse employment
action, “the defendant must clearly set forth, through the introduction of admissible evidence, the
reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to
justify a judgment for the defendant.” Lytle v Malady, 458 Mich 153, 173-174; 579 NW2d 906
(1998). In the trial court, defendant offered four reasons for not hiring plaintiff: (1) plaintiff
made a material misrepresentation to Seeterlin during the intake process when she was untruthful

                                                -3-
regarding the salary allegedly offered by Esseily during the interview process, (2) plaintiff failed
to include her most recent employer and salary information on her employment application, (3)
plaintiff unprofessionally resigned from her position with Westwood before defendant extended
her an offer of employment, and (4) plaintiff’s most recent employer, Westwood, provided a
“mixed” reference. All of these reasons were legitimate, nondiscriminatory reasons for deciding
not to hire plaintiff. Therefore, the burden shifted to plaintiff to present evidence that
defendant’s reasons were a pretext for unlawful discrimination.

       Plaintiff first argues that defendant’s ever-changing rationale for not hiring her supports a
finding of pretext. We agree that differing accounts for the rationale underlying an adverse
employment decision can be evidence of pretext. See Thurman v Yellow Freight Sys, Inc, 90
F3d 1160, 1167 (CA 6, 1996) (“An employer’s changing rationale for making an adverse
employment decision can be evidence of pretext.”); Edwards v US Postal Serv, 909 F2d 320, 324
(CA 8, 1990).2 In this case, defendant’s position as to why it did not hire plaintiff changed over
time.

        On January 20, 2017, Seeterlin told plaintiff that he was not sure plaintiff would be hired
due to her “district hopping.” In an interrogatory, defendant was asked to “[l]ist all of the
reasons that Dearborn Public Schools decided not to hire Parker.” (Emphasis added.) In
response, defendant did not rely on plaintiff’s supposed “district hopping” and instead stated
only that defendant did not hire plaintiff because it had “concluded that Plaintiff had made
material misrepresentations in discussing her salary expectations with representatives of
[defendant].” Defendant provided no other reason during discovery. In defendant’s motion for
summary disposition, defendant again asserted that plaintiff had made a material
misrepresentation during the intake when she told Seeterlin that Esseily offered her $47,000.
However, defendant also asserted, for the first time, four new reasons that it did not hire plaintiff:
(1) plaintiff also mispresented that Esseily had told her to resign from Westwood; (2) her
application was incomplete, as it did not include her current employer or her current salary; (3)
plaintiff unprofessionally resigned from her position with Westwood before defendant extended
her an offer of employment; and (4) plaintiff’s most recent employer, Westwood, provided a
“mixed reference.” Thus, while defendant initially voiced concern over plaintiff’s perceived
“district hopping,” in later stages of the litigation defendant never cited that as a basis for its
decision. And after it stated in its answers to interrogatories that there was only a single reason
for denying employment to plaintiff, defendant thereafter cited four different reasons. Viewed in
a light most favorable to plaintiff, this changing rationale for not hiring plaintiff would permit a
jury to find pretext for discrimination. 3 See Thurman, 90 F3d at 1167.



2
 Although not binding on state courts, federal decisions can be highly persuasive, especially in
employment discrimination cases. See Abela v Gen Motors Corp, 469 Mich 603, 607; 677
NW2d 325 (2004); Northville Pub Sch v Mich Civil Rights Comm, 118 Mich App 573, 576; 325
NW2d 497 (1982).
3
 Further, on January 23, 2017, the day plaintiff was to begin working for defendant, plaintiff
was notified by Alma Alcodray, an employee of defendant, that defendant would not be hiring


                                                 -4-
        Plaintiff also argues that she established that there is a genuine issue of material fact as to
whether defendant discriminated against her on the basis of her age because defendant’s reasons
for not hiring plaintiff, as stated in its motion for summary disposition, either have no basis in
fact or were not the motivating factors for not hiring her. We agree.

       Defendant asserted that it did not hire plaintiff because she twice misrepresented
conversations with Esseily—once when she claimed that Esseily offered her $47,000, and once
when she said Esseily had told her to resign from Westwood. The only evidence that plaintiff
ever communicated to a staff member of defendant that Esseily had directed her to resign from
Westwood was in an e-mail that plaintiff sent to Glenn Maleyko, defendant’s superintendent, on
January 23, 2017; that date, however, was after defendant already had told plaintiff that she was
not going to be hired. Thus, the information contained in that e-mail necessarily could not have
been the basis for defendant’s decision to not hire plaintiff.

        There is no dispute, however, that plaintiff told Seeterlin during the intake meeting that
Esseily had told her that $47,000 was available for the position. The parties dispute whether
Esseily had actually told plaintiff that a salary of $47,000 was available for the position. But
defendant argues that, even if defendant later discovered that Esseily was untruthful when he
denied that he had told plaintiff that $47,000 was available for the position, defendant’s reliance
on Esseily’s assurance that he never had this conversation with plaintiff was nevertheless
legitimate and nondiscriminatory. Our Supreme Court has stated that “[t]he plaintiff cannot
simply show that the employer’s decision was wrong or mistaken, since the factual dispute at
issue is whether discriminatory animus motivated the employer, not whether the employer is
wise, shrewd, prudent, or competent.” Hazle, 464 Mich at 476. Therefore, because defendant
could have legitimately believed that plaintiff misrepresented the nature of her conversations
with Esseily, the question is whether plaintiff presented evidence to create a genuine issue of
material fact as to whether a belief that plaintiff misrepresented her conversations with Esseily
was defendant’s motivating factor for not hiring her, as opposed to her age.

       Prior to plaintiff’s intake meeting, she was recommended for hire by the hiring committee
and plaintiff was scheduled to begin teaching for defendant; a new hire recommendation form
completed on January 6, 2017, stated that plaintiff’s first day of work initially was scheduled for
January 9, 2017. However, plaintiff notified Esseily that she could not begin work until January



her. After being asked for an explanation as to why plaintiff would not be hired, Alcodray said
that she was “not at liberty” to tell plaintiff. Logically, this statement would mean that Alcodray
was stating that defendant’s internal policies prevented her from disclosing the reason to
plaintiff. Indeed, Alcodray admitted as much in an e-mail dated January 26, 2017, in which she
referenced “reiterat[ing] what [was] said and that as policy, we do not discuss specific details.”
However, Seeterlin, the director of defendant’s HR department, admitted during his deposition
that he was unaware of any policy that prevented defendant from explaining to plaintiff why she
was not hired. Thus, when viewed in a light most favorable to plaintiff, Alcodray’s statement
could be found to have been intentionally false, and while not a true “changing rationale,” the
evidence of this dishonest answer could be viewed as evidence of pretext.


                                                 -5-
20, 2017. On January 10, 2017, Esseily recommended plaintiff for a “step five” salary because
he did not want defendant “put in a situation where [plaintiff] is turning down our job offer”; in
the recommendation, Esseily listed numerous reasons why plaintiff should be given a salary
higher than step three. As of January 19, 2017, plaintiff was scheduled to begin working for
defendant on January 24, 2017, the Monday after her last day at Robichaud. During the January
19, 2017 intake interview, plaintiff presented her identification (which contained her birthdate) to
Seeterlin, and she testified that she felt that the mood in the room shifted when Seeterlin returned
with her identification. After Seeterlin returned with her identification, plaintiff also conveyed to
Seeterlin that Esseily had previously indicated to her that a salary of $47,000 was available for
the position; after this conversation, Seeterlin suspended the intake to determine whether a higher
salary was available.

        Following the intake interview, a series of e-mails on January 19 and January 20
indicated that Esseily had misunderstood the process of recommending salaries to potential
candidates. In the afternoon of January 19, 2017, after the intake had ended, Seeterlin e-mailed
Esseily, Maleyko, Jill Chochol (the executive of the instructional staff), and Michelle DeJaeger
(the director of special education), indicating that there had been some confusion regarding the
process of recommending salaries: “The recommendation of a starting pay was never clear from
Special Ed. [Esseily] agreed with step 3 in one e-mail and argued for step 5 in another.”
Seeterlin further stated that he met with plaintiff, and plaintiff had conveyed to Seeterlin that
Esseily told her $47,000 was available; Seeterlin stated that the salary for plaintiff should be
decided by the following day because she was set to begin work on Monday. In another e-mail,
DeJaegar stated that she spoke to Esseily, and Esseily told her that he never conveyed specifics
to plaintiff regarding salary. In response to DeJaegar’s e-mail, on January 19, 2017, at 7:25 p.m.,
Maleyko sent an e-mail stating: “We might want to hold off on processing [plaintiff] until we get
some more reference checks completed because it seems as if she misrepresented what happened
with [Esseily].” On the same night, at 7:54 p.m., Esseily sent an e-mail, apologizing for the
confusion regarding the salary mix up:

       I would like to take this opportunity to apologize to each of you in regards to the
       process of hiring the potential resource teacher candidate. I did in fact send two
       separate emails that were contradicting. This caused confusion and put [Seeterlin]
       in a difficult position. . . .

       Initially, I felt that step 3 would be a good starting point for this candidate. After
       speaking to more of her references, including her current employer, they spoke of
       [plaintiff] in high regards. Additionally, when I called her about additional
       reference phone numbers, she did inquire about pay. She mentioned she was a
       single mom and it would be difficult for her to take a pay cut. I made it clear that
       she would have to discuss salary with HR. Therefore I sent an email supporting
       her starting pay at step 5 in case she declined due to salary.

       In retrospect, I should have put more thought before responding to emails or
       [plaintiff]. I understand this puts HR and the entire district in a bad position when
       communication is not clear. I assure you in the future I will be sure to
       communicate more thoroughly in terms of potential employees.


                                                -6-
In response to Esseily’s e-mail, Chochol wrote to Esseily, stating that she understood that the
process of offering a salary at a level above step three might not have been clear, but there was
some concern because plaintiff had conveyed to Seeterlin that Esseily had discussed a step five
salary with her, and the “practice has typically been to defer to HR”; Chochol also stated to
Esseily, “When recommending more than step 5, please clear with [DeJaegar] and send to me.”
There were no other e-mails regarding whether plaintiff misrepresented the nature of her
conversations with Esseily or that defendant believed that she had been dishonest. Esseily also
testified that there had been some confusion between him and the HR department regarding
whether plaintiff would be recommended for a step three salary or a step five salary on the pay
scale.

        The evidence presented created a genuine issue of material fact as to whether defendant’s
decision not to hire plaintiff was motivated by its belief that plaintiff had misrepresented the
nature of her conversation with Esseily regarding salary. Prior to the intake, plaintiff was set to
begin work with defendant and there was no indication that there were any concerns with hiring
plaintiff. Moreover, the evidence shows that, prior to defendant deciding not to hire plaintiff, it
could have been clear to defendant that there had merely been a miscommunication regarding
plaintiff’s salary. Although Maleyko indicated initially that plaintiff may have misrepresented
her conversation with Esseily, in a subsequent e-mail from Esseily, Esseily apologized for the
confusion and stated that he should have thought before he responded to e-mails and plaintiff.
These e-mail conversations took place prior to defendant deciding not to hire plaintiff. A jury
could reasonably find that, at the time defendant decided not to hire plaintiff, defendant was
aware that there had been a misunderstanding among defendant’s employees regarding salary,
that Esseily may have conveyed specific information to plaintiff regarding a salary of $47,000,
and that defendant did not actually believe that plaintiff had made a material misrepresentation to
Seeterlin regarding her conversation with Esseily. Thus, a jury reasonably could find that
defendant’s belief that plaintiff had been dishonest was not the motivating factor in refusing to
hire her and instead was merely pretext for plaintiff’s age having been the motivating factor in
the decision.

        Defendant also argues that it did not hire plaintiff because she provided an “incomplete”
application that did not include her employment with Westwood or her current supervisor’s
name. Plaintiff presented sufficient evidence to create a genuine issue of material fact as to
whether her age was the motivating factor in defendant’s decision not to hire her, as opposed to
her incomplete application. First, defendant’s attempt to categorize the application as
“incomplete” gives a distorted view. Seeterlin, in an e-mail dated January 19, 2017,
acknowledged that plaintiff’s “application was 2 years old” and thus had “no information on pay
since 2015.” Thus, defendant, as the possessor of the application, necessarily knew from the
beginning of this process that the information contained in the application contained no new
information since 2015. But there is no dispute that defendant had actual knowledge of
plaintiff’s current employment and pay at Westwood. Esseily testified that plaintiff told him
during her interview that she worked for Westwood, and plaintiff followed up with Esseily,
supplying information regarding her supervisor. Indeed, the evidence shows that two weeks
prior to deciding not to hire plaintiff, defendant was aware of plaintiff’s current employer,
supervisor, and her current salary, yet defendant still scheduled plaintiff for an intake interview
and to start work with defendant on January 24, 2017, even though it knew that the Westwood

                                                -7-
information was not contained in plaintiff’s application. It was not until after the intake
interview on January 19, 2017, when defendant may have learned plaintiff’s age, that defendant
decided not to hire plaintiff. Thus, there was sufficient evidence to permit a reasonable trier of
fact to conclude that discrimination was a motivating factor for defendant’s failure to offer
plaintiff employment, instead of defendant’s proffered reason of a stale or incomplete
application.

        Defendant also claimed that it decided not to hire plaintiff because she had
unprofessionally resigned from her position with Westwood, by doing so before being officially
offered the position with defendant. The parties dispute whether Esseily directed plaintiff to
resign from her position with Westwood. Plaintiff testified that she did so at Esseily’s urging
because he told her that defendant would be contacting Westwood and Esseily thought it best
that Westwood first hear that plaintiff was leaving from plaintiff herself. Esseily denied telling
plaintiff to resign from Westwood. Regardless of this open factual question, the evidence
establishes that Esseily and Seeterlin both were aware, as of January 10, 2017, that plaintiff had
tendered her resignation to Westwood in order to work for defendant. Indeed, in an e-mail dated
January 10, 2017, Seeterlin stated that he spoke to Westwood’s HR department and learned that
plaintiff already had resigned.4 Nevertheless, defendant moved forward with the hiring process
after having been made aware of this information. Notably, as previously noted, it was not until
after the intake that any concern was expressed about hiring plaintiff. Therefore, when viewing
this evidence in a light most favorable to plaintiff, there is a genuine issue of material fact as to
whether defendant’s decision to not hire plaintiff was based on the manner in which she resigned
from her prior employment, as opposed to her age.

        Defendant also asserts that it decided not to hire plaintiff because the principal at
Robichaud provided a “somewhat negative” or “mixed” review of plaintiff.                     E-mail
communications indicate that all of plaintiff’s references were positive prior to plaintiff’s intake
interview on January 19, 2017; however, following the intake, Maleyko requested additional
references because he believed plaintiff may have misrepresented her conversation with Esseily.
On January 20, 2017, Esseily spoke with Learst; Esseily’s notes from his conversation with
Learst indicate that Learst found that plaintiff was organized and had developed great
relationships with the students, so much so that when she left Robichaud, students were upset.
However, Learst also found plaintiff’s resignation to be unprofessional because she only worked
a half day on her last day at Robichaud, she did not follow up with Learst or the director of
special education, and she had not been officially hired by defendant when she resigned from
Westwood. Learst also stated the following areas of concern regarding plaintiff: she was overly
passionate and could become easily frustrated, but this behavior could be attributed to her
passion for the students; when plaintiff had problems with certain technology used in the


4
  Contrary to this record evidence, Maleyko told plaintiff, after defendant informed plaintiff that
she would not be hired, that Seeterlin did not become aware that plaintiff had resigned from her
position with Westwood until he conducted the intake with plaintiff on January 19, 2017. Aside
from the documentary evidence refuting Maleyko’s claim, Seeterlin himself testified that he
never told Maleyko that he learned of plaintiff’s resignation from Westwood during the intake.


                                                -8-
classroom, she would provide the students with alternate assignments instead of speaking with
Learst; and plaintiff was very assertive in the classroom, which had previously caused
disagreement with other teachers. However, Learst did not personally find plaintiff’s assertive
personality to be a weakness because “[w]e want Co-teachers to be strong and assertive.” After
Esseily sent Learst’s reference to Maleyko, Maleyko replied, “I also don’t like the way that she
treated Westwood so unprofessionally. That is what I heard from my sources. She could turn
around and do the same to us.” The only critique mentioned by Maleyko following the reference
from Learst was the unprofessional way in which she treated Westwood; there is no evidence
that the other critiques from Learst were factors in defendant’s decision not to hire plaintiff. As
stated previously, defendant was aware that plaintiff resigned from Westwood without being
officially hired by defendant but moved forward with the hiring process nonetheless; moreover,
it was not until after the intake meeting that Maleyko decided additional references were needed.
Given the record as a whole, a jury could reasonably find that Learst’s review was not the
motivating factor behind defendant’s decision to not hire plaintiff and that her age was the
motivating factor.

        In conclusion, the evidence shows that defendant’s reasons for not hiring plaintiff
changed both before and during litigation, the concerns regarding whether to hire plaintiff did
not arise until right after defendant may have learned of plaintiff’s age at the intake meeting, and
there was evidence presented that would allow a jury to reasonably find that each of defendant’s
proffered reasons for not hiring plaintiff were not the motivating factors and that her age was the
motivating factor. Thus, plaintiff presented evidence to create a genuine issue of material fact as
to whether defendant’s reasons for not hiring her were a pretext for age discrimination.
Accordingly, the trial court erred when it granted defendant’s motion for summary disposition on
plaintiff’s CRA claim.

          III. BREACH OF CONTRACT AND PROMISSORY ESTOPPEL CLAIMS

        Plaintiff also argues that the trial court erred in granting defendant’s motion for summary
disposition in regard to her claims for breach of contract and promissory estoppel. We disagree.

        The parties do not dispute that there was no written contract between the parties. The
trial court dismissed plaintiff’s breach of contract and promissory estoppel claims, holding that
MCL 380.1231(1) categorically bars teachers from bringing a cause of actions against a school
for breach of an oral contract. MCL 380.1231(1) provides:

       [T]he board of a school district shall hire and contract with qualified teachers.
       Contracts with teachers shall be in writing and signed on behalf of the school
       district by a majority of the board, by the president and secretary of the board, or
       by the superintendent of schools or an authorized representative of the board. The
       contracts shall specify the wages agreed upon.

       Plaintiff is correct that, generally, promissory estoppel claims may still proceed even if an
oral contract claim is barred by the statute of frauds. In Opdyke Investment Co v Norris Grain
Co, 413 Mich 354, 365; 320 NW2d 836 (1982), our Supreme Court recognized that the doctrines
of “estoppel and promissory estoppel have developed to avoid the arbitrary and unjust results
required by an overly mechanistic application of the [statute of frauds].” The Court noted that

                                                -9-
“[i]t has been suggested that if the statute lacked such equitable ‘loopholes,’ the outcry would
soon be such that amendments would be passed in short order.” Id. The Court concluded that
“[s]ince the statute of frauds only applies to certain ‘contracts,’ recovery based on noncontractual
promises falls outside the scope of the statute of frauds.” Id. at 370.

        However, in Martin v East Lansing Sch Dist, 193 Mich App 166, 180; 483 NW2d 656
(1992), this Court specifically held that because MCL 380.12315 requires “contracts between
teachers and boards of education [to] be in writing and signed by the proper entity,” any claims
of promissory estoppel were barred because “[t]o allow verbal representations by staff
administrators to bind the district without a written contract or action by the board itself would
be to ignore the statute.” This Court’s decision in Martin is binding. MCR 7.215(J)(1). Thus,
with respect to plaintiff’s claim of a breach of an oral contract, that claim cannot be sustained.
Martin has interpreted MCL 380.1231(1) as requiring contracts between a teacher and a school
board to be in writing and that the approval of a school board is a condition precedent to the
formation of a contract; therefore, the trial court did not err in dismissing plaintiff’s breach of
contract claim. Likewise, Martin forecloses any promissory estoppel claims arising out of oral
promises. Therefore, the trial court did not err in granting defendant’s motion for summary
disposition with respect to plaintiff’s breach of contract claim and her promissory estoppel claim.

       We affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion. We do not retain jurisdiction. No taxable costs, as no party has prevailed in full. MCR
7.219.

                                                             /s/ Kathleen Jansen
                                                             /s/ Thomas C. Cameron
                                                             /s/ Jonathan Tukel




5
  MCL 380.1231(1), as it existed at the time Martin was decided, was substantively the same as
the present version quoted in this opinion. See 1976 PA 451, § 1231.


                                               -10-
