Town v. Michigan Bell Telephone Co.

Riley, J.

(concurring). I write separately because I have reservations regarding the lead opinion’s articulation of the “qualification” element under the McDonnell Douglas 1 approach. 2 I also believe the lead opinion fails to properly analyze plaintiff McConnell’s claim because it merely “presume [s] that plaintiff has established a prima facie case.” Brickley, J., ante, p 699. 3 Notwithstanding, I agree, after examining the *708 evidence in a light most favorable to him, that McConnell failed to establish that age was a determining factor in defendant’s adverse employment action.

i

Under the McDonnell Douglas approach, “concerns about [a plaintiff’s] performance are more appropriately raised as part of the second and third steps of the . . . scheme.” Clark v Coats & Clark, Inc, 990 F2d 1217, 1227 (CA 11, 1993), citing, inter alia, Rosenfield v Wellington Leisure Products, Inc, 827 F2d 1493, 1495, n 2 (CA 11, 1987); Siegel v Alpha Wire Corp, 894 F2d 50, 54 (CA 3, 1990); Bienkowski v American Airlines, Inc, 851 F2d 1503, 1505-1506 (CA 5, 1988). 4 Thus, to satisfy the qualification prong of the prima facie case, under the first stage of the *709 McDonnell Douglas approach, a plaintiff may simply testify that the “general quality of his work was satisfactory.” MacDonald v Eastern Wyoming Mental Health Center, 941 F2d 1115, 1120 (CA 10, 1991), citing Yarbrough v Tower Oldsmobile, Inc, 789 F2d 508, 512 (CA 7, 1986).

Even though the first stage of the approach was not intended to be overly burdensome for an employee to satisfy, 5 “ ‘[e]mployers [should be] given wide discretion in setting job standards and requirements and in deciding whether [employees] meet those standards.’ ” York v American Telephone & Telegraph Co, 95 F3d 948, 954 (CA 10, 1996), quoting Hickman v Flood & Peterson Ins, Inc, 766 F2d 422, 425 (CA 10, 1985). The job standards and requirements, however, are to be reasonable and consistently applied. Id. As noted by the United States Court of Appeals for the Seventh Circuit in Kephart v Institute of Gas Technology, 630 F2d 1217, 1219 (CA 7, 1980):

Qualification obviously depends on the nature of . . . business at any given time. ... To ignore the shifting nature of qualification from time to time would make the qualification requirement meaningless and would encourage the harassment of small businesses having informal personnel practices, with unfounded suits.[ 6 ]

*710 Therefore, when evaluating its employees, employers are to evaluate them on the basis of their merits, in conjunction with the nature of their businesses at the time of the evaluation, and not on the basis of any discriminatory criterion. See Hazen Paper Co v Biggins, 507 US 604, 611 ; 113 S Ct 1701 ; 123 L Ed 2d 338 (1993), quoting Western Air Lines, Inc v Criswell, 472 US 400, 422 ; 105 S Ct 2743 ; 86 L Ed 2d 321 (1985).

n

In the instant case, reviewing plaintiffs proofs and drawing any reasonable inferences in his favor, I conclude that he presented evidence establishing a question of fact regarding whether he was minimally qualified. He stated that he thought his job performance was better than those situated similarly to him. 7 He also noted that, not only did other producers have to *711 increase their production but, except for Thomas O’Meara, he may have been producing the most. 8

As to whether he was replaced, Bonnie Morton testified that Lucinda Lawrence assumed a majority of plaintiff’s accounts. Defendant contends that Lutz assumed most of the responsibility for plaintiff’s accounts; however, whether Lawrence replaced plaintiff must be left to the province of the trier of fact because it involves findings of fact and weighing credibility. 9

Because plaintiff was fifty-six years old at the time of his discharge and others similarly situated and outside the protected class were not affected by defendant’s adverse employment action, as well as the dispute surrounding whether Lawrence replaced plaintiff, I conclude that he established a prima facie case of age discrimination.

In rebutting the presumption of discrimination, defendant asserted that plaintiff was discharged for poor performance. Plaintiff argues that defendant’s proffered explanation is merely a pretext for age discrimination. He asserts that defendant committed age discrimination by discharging him and replacing him with the younger Lucinda Lawrence. Plaintiff contends that Sandy McMillan, his supervisor, informed *712 him “that he was expected to generate revenue equal to 3 times his salary and benefit package.” He also contends that “Lawrence was not held to this same standard.” However, there is no support in the record for plaintiffs claim that he was expected to generate revenue of two to three times his salary. Plaintiffs claim amounts to an unsubstantiated self-serving allegation. 10 Plaintiff places great weight on defendant’s hiring of Lawrence. However, Lawrence was merely his replacement, not someone who was similarly situated. 11 It appears, on the basis of the evidence he presented, that Lutz was plaintiff’s best comparison. 12 Lutz testified that he at least “covered [his] salary and *713 fringes.” Yet, as the lead opinion observes, “plaintiff generated $70,505.11 in revenue while drawing a salary of $84,351.25 . . . .” Ante, p 699. Not only does the record indicate that Lutz generated more than plaintiff, but O’Meara generated more as well.

The record also evidences that defendant was reasonable in its treatment of plaintiff. In January 1989, McMillan informed plaintiff that he needed to increase his production. The following September, plaintiff testified that he met with McMillan and Thomas O’Meara, plaintiff’s direct supervisor, for a performance evaluation. In that meeting, they informed him that his employment was in jeopardy, barring cognizable improvement in production by year-end. 13 Plaintiff did not increase his production and, on January 22, 1990, McMillan discharged him for poor performance. 14

*714 conclusion

I conclude that there is no evidence “that the employer’s proffered explanation is unworthy of credence.” Texas Dep’t of Community Affairs v Burdine, 450 US 248, 256 ; 101 S Ct 1089 ; 67 L Ed 2d 207 (1981), citing McDonnell Douglas, supra at 804-805. The record now before us amply demonstrates that plaintiff had a full and fair opportunity to prove age discrimination — evidence of which I find lacking.

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

I agree with the lead opinion that plaintiff Town failed to establish that defendant’s adverse employment action was a pretext to age and sex discrimination. Merely because Town believed that she was more qualified than James Aveck is not enough to carry her burden of persuasion under the McDonnell Douglas approach. The Civil Rights Act “protects, [not the qualified worker, but] as a practical matter, the imperfect older worker from being treated worse than the imperfect younger one.” See Shager v Upjohn Co, 913 F2d 398, 403 (CA 7, 1990). In Town’s case, both she and Aveck were qualified. Hence, it became purely a business decision when defendant decided to transfer her, and this Court should be reluctant to second-guess management.

The lead opinion also errs in concluding that “plaintiff’s brief tenure with [Rollins Burdick Hunter] creates an inference that RBH’s decision did not have a discriminatory basis.” Ante, p 701. It reaches its conclusion by claiming McConnell was both hired and discharged by the same manager within a period of eighteen months. Id. I disagree. First, plaintiff was not hired by the same “actor” that discharged him. RBH assumed all liability of Miller, Mason, and Dickenson, Inc.’s debts. Hence, plaintiff, along with *708 two other employees, was transferred from MMD to RBH. They were not considered new hirees; no new employment application was completed and plaintiffs personnel folder disclosed that plaintiffs date of hire with RBH was April 1, 1986, the date he commenced his employment with MMD. Second, assuming plaintiff was hired and discharged by the same actor, “this is simply evidence like any other and should not be accorded any presumptive value.” Waldron v SL Industries, Inc, 56 F3d 491, 496, n 6 (CA 3, 1995). See also Vaughan v Must, Inc, 542 NW2d 533, 539 (Iowa, 1996).

In Clark, supra at 1227, n 3, the court observed:

Whether an employee possesses the qualifications for a position thus is generally distinct from the issue whether he performed the job satisfactorily. But this decision should not be read to hold that evidence of performance is never relevant at the prima facie stage. We have permitted plaintiffs alleging unlawful discharge to establish that they were qualified by introducing evidence that they had performed the job without complaint. If the employee relies on satisfactory job performance to establish his qualifications, evidence of poor job performance may also be relevant at the prima facie stage. [Citations omitted; emphasis added.]

In the instant case, plaintiff does not rely on “satisfactory job performance” to establish his qualifications.

Texas Dep’t of Community Affairs v Burdine, 450 US 248, 253 ; 101 S Ct 1089 ; 67 L Ed 2d 207 (1981).

The Kephart court went further by incorporating by reference the district judge’s opinion and order, which stated:

The Age Discrimination in Employment Act, however, was not intended as a vehicle for judicial review of business decisions. See Havelick v Julius Wile Sons & Co, 445 F Supp 919, 926 (SD NY, 1978). The question before the court is not whether the company’s methods were sound, or whether its dismissal of Kephart was an error of business judgment. The question is whether he was discriminated against because of his age. Although an employer may *710 not make unreasonable expectations, and must make the employee aware of just what [¿is] expectations are, beyond that the court will not inquire into the defendant’s method of conducting its business. [Id. at 1223 (emphasis added).]

Nonetheless, “the qualifications offered by the employer [must be] reasonable [as well as] consistently applied.” York, supra at 954 .

At plaintiff’s deposition the following exchange occurred between plaintiff and defense counsel:

[Defense Counsel]: So, in January 1989 you thought you were performing at least satisfactorily and better than satisfactorily?

[.Plaintiff: I was out working. I was bringing in some customers. Yes, the dollar figures weren’t up there, but I had more money coming in than some guys that had been there that had business like Tom O’Meara, but he wasn’t bringing any new groups. There wasn’t anybody bringing new groups in and so forth. That I believe I was the one that was bringing in some business. The dollar volume wasn’t quite that high and even with the service fees that I had coming in from the old businesses that I had it’s my opinion that I had enough money coming in or more money than most of the people that were in there. [Emphasis added.]

John Lutz, a producer in employee benefits who had twenty-one years experience in the actuarial area with Blue Cross/Blue Shield, testified that he did not receive a raise in September 1989 because his performance, as well as that of other producers, was down. In particular, he stated that “at a producers meeting [it was announced] that the office results were not good. Therefore, nobody gets a raise . . . .”

In support of its contention that plaintiff was not replaced, defendant cites Barnes v GenCorp Inc, 896 F2d 1457, 1465 (CA 6, 1990). In Barnes, however, the United States Court of Appeals for the Sixth Circuit was addressing when an employee is replaced under a reduction in work force situation.

In concluding that “[t]here is a question of fact on whether [McConnell] was held to a different performance standard than the other employees,” the Court of Appeals noted that “deposition testimony established] that other employees, particularly the younger [Lawrence], were not held to comparable production standards.” Unpublished opinion per curiam of the Court of Appeals, issued March 22, 1995 (Docket No. 146449), p 2. However, the Court of Appeals mistakenly references plaintiff’s own deposition. To establish a genuine issue of material fact that he was not held to “comparable” standards, plaintiff may not merely rely on unsubstantiated allegations, but, rather, must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute. See MCR 2.116(G)(4). See also Durant v Stahlin, 375 Mich 628, 638-639 ; 135 NW2d 392 (1965).

“[A]llowing a cause of action any time a worker can show replacement by a younger person ignores the realities of the workplace noted in Laugesen [v Anaconda Co, 510 F2d 307 (CA 6, 1975)], i.e., that older workers will, more often than not, be replaced by younger persons.” Matras v Amoco Oil Co, 424 Mich 675, 708 ; 385 NW2d 586 (1986) (Riley, J., dissenting).

In this respect, the lead opinion is correct. No anomaly exists in defendant’s hiring of Lawrence. As noted by the lead opinion:

McConnell was paid a base salary of $67,481, while Lawrence’s base salary was $24,000. Additionally, McConnell received benefits that Lawrence did not, such as a private club membership and a leased car. [Ante, p 700.]

Lutz is probably most similarly situated to McConnell. However, others may include O’Meara and Kathy Kristopik.

In his deposition, plaintiff explained what McMillan and O’Meara told him:

[Defense Counsel]: What exactly do you claim Sandy [McMillan] told you, Sandy and Tom [O’Meara] told you in this meeting of September of ’89 about your performance?

[Plaintiff]: About the performance that the dollars were down.

[Defense Counsel]: Your dollars were down?

[Plaintiff]: Everybody’s dollars were down, but mine were down.

[Defense Counsel]: And that your dollars had to improve?

[Plaintiff]: Well, they said that production has got to improve, we got to get more money, more money into the house or there will have to he some adjustment made. [Emphasis added.]

It is uncontested that plaintiff’s annual production was less than his base pay and lagged far behind his total compensation package. Hence, because plaintiff was on notice that he had to increase his production, I conclude that defendant justifiably considered his salary and total benefits in relation to his productivity as grounds for his discharge.

In Anderson v Baxter Healthcare Corp, 13 F3d 1120, 1125-1126 (CA 7, 1994), quoting in part Metz v Transit Mix, Inc, 828 F2d 1202, 1212 (CA 7, 1987) (Easterbrook, J., dissenting), the court noted that the Supreme *714 Court’s decision in “Hazen Paper Co vindicates the dissent in Metz which contended that ‘[w]age discrimination is age discrimination only when wage depends directly on age, so that the use for one is a pretext for the other; high covariance is not sufficient ....’” In Metz, supra at 1212-1213, Judge Easterbrook stated:

[E]mployers always should be entitled to consider the relation between a particular employee’s wage and his productivity. . . . Many people under 40 (the lower bound of the protected group) earn $26,000 or more; if such a salary exposes them to discharge on economic grounds, then it should expose older employees to discharge. You do not get immunity from an otherwise lawful employment decision by growing old. As my colleagues say, the “ADEA is aimed at protecting the individual employee” but what it protects each employee against is age discrimination. [Emphasis added.]