explaining that, to create an inference of disparate treatment, a plaintiff must show that the plaintiff and a coworker “were similarly situated, i.e., all of the relevant aspects of [the plaintiff’s] employment situation were nearly identical to those of [a coworker’s] employment situation”
How later courts described this case
- explaining that, to create an inference of disparate treatment, a plaintiff must show that the plaintiff and a coworker “were similarly situated, i.e., all of the relevant aspects of [the plaintiff’s] employment situation were nearly identical to those of [a coworker’s] employment situation”
- finding that a plaintiff cannot establish pretext by simply showing that “the employer’s decision was wrong or mistaken, since the factual dispute is over whether [retaliatory] animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.”
- explaining that merely disproving an employer’s nondiscriminatory reason is insufficient to survive summary judgment unless the plaintiff raises a triable question of discriminatory motive, not mere falsity
- holding that the plaintiff must demonstrate that all relevant aspects of the plaintiff’s employment situation were nearly identical to the comparable employee’s employment situation
Written by the judges who cited it.
Later courts went against this
Abrogated in part, on other grounds by Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)
568 NW2d 64 (1997), abrogated in part on other grounds by Gross v FLB Fin Servs, Inc, 557 US 167
The opinion
Cavanagh, J.
(concurring in part and dissenting in part). I concur with the majority that plaintiff McConnell established a prima facie case of discrimination, but failed to present sufficient evidence so that defendant’s actions were a result of illegal discrimination. However, I respectfully dissent from the lead opinion that would hold that plaintiff Town failed to present sufficient evidence so that reasonable minds could conclude age was a determining factor in plaintiff’s constructive discharge.
As to plaintiff McConnell, I agree with Justice Riley that plaintiff presented sufficient evidence to satisfy a *715 prima facie case of age discrimination. As she noted, concerns about a plaintiffs performance are more appropriately considered at the second and third stages of the McDonnell Douglas 1 burden-shifting test. This is especially true where, as here, plaintiff has alleged that other employees were also performing as poorly as he. Therefore, defendant’s reason for firing plaintiff was because he was not performing well, not that he was unqualified.
I disagree with Justice Brickley’s conclusion that, because plaintiff’s manager hired and fired plaintiff within a relatively short period of time, no reasonable jury could find that discrimination was the cause of the termination. Initially, as plaintiff indicates, he was not hired by the same manager that fired him because McMillan was not the person who decided to hire plaintiff. The record establishes that in 1988, plaintiff was told that mmd of Michigan (plaintiffs former employer) would be merging with defendant. Mr. McMillan characterized this activity as a “merger.” Furthermore, plaintiff was not required to fill out an employment application or go through any of the typical new hire process. Therefore, taken in the light most favorable to plaintiff, Justice Brickley’s assertion that the same actor hired and fired plaintiff is factually incorrect.
In addition to the factual inaccuracies, I would decline to adopt a rigid test for determining whether plaintiff was discriminated against. Justice Brickley’s approach can be characterized as the “same actor inference.” Even assuming that Mr. McMillan was the *716 same person who hired and fired plaintiff, the inference should not be used by the defendant as a shield from liability; rather, the inference should be used as mere evidence in support of defendant’s claim.
In Waldron v SL Industries, Inc, 56 F3d 491, 496, n 6 (CA 3, 1995), the United States Court of Appeals for the Third Circuit rejected the same actor inference, stating:
[W]e agree with the position advanced by the Equal Employment Opportunity Commission as amicus curiae: “where . . . the hirer and firer are the same and the discharge occurred soon after the plaintiff was hired, the defendant may of course argue to the factfinder that it should not find discrimination. But this is simply evidence like any other and should not be accorded any presumptive value.” . . . Additionally, as the eeoc further notes, it was plausible under the evidence presented at summary judgment that [the defendant] would hire [the plaintiff], use his skills for a few years while a younger person was being “groomed” for his position, then fire [the plaintiff] because of his age.
Likewise, the Iowa Supreme Court has also rejected the “same actor inference” in Vaughan v Must, Inc, 542 NW2d 533, 539 (Iowa, 1996). It stated,
To apply such a wooden rule in an area where each case is factually distinct would effectively grant every employer a grace period at the beginning of each employee’s tenure . . . with no fear of sanctions.
Therefore, I believe that the inference of nonbias is an evidentiary matter for the finder of fact to consider, and should not be a something upon which the court should decide a case as a matter of law.
However, I concur with Justice Riley that plaintiff failed to present sufficient evidence upon which rea *717 sonable minds could conclude that age was a determining factor in defendant’s decision to fire him. Plaintiff contends that he was expected to generate revenue equal to three times his salary and benefit package, and that others were not held to the same standard. However, even if others were not making “three times” their salary and benefits, it is undisputed that plaintiff was not even generating revenue equal to “one time” his salary and benefits. Furthermore, while it is true that plaintiff presented evidence that production was down across the board, he did not present any figures demonstrating that other employees who were generating less revenue than “one time” their salary were retained by the employer. In short, plaintiff failed to show that persons who were performing as poorly as he was were treated differently. Therefore, I concur with the majority that plaintiff McConnell failed to show that reasonable minds could conclude that plaintiff was being discriminated against on the basis of age.
As to plaintiff Town, the majority would hold that because both plaintiff and Aveck were qualified for their positions, it was purely a business decision for defendant to retain Aveck. I disagree. While it is true that courts should not second-guess the sound business decisions of an employer, an employer’s actions are not entirely beyond review. Where, as here, the plaintiff has alleged that the decision was not a sound business decision, but rather the product of illegal discrimination, we must review the proofs in the light most favorable to plaintiff to determine whether reasonable minds could conclude that age was a determining factor in its decision to transfer plaintiff. We cannot simply accept defendant’s assertion that the *718 decision was a business decision without having viewed the record in the light most favorable to the plaintiff.
The majority concludes that, because both employees were qualified, the decision of the employer should stand. However, the majority ignores the proofs plaintiff presented at trial, which, taken in the light most favorable to her, would indicate that she was more qualified than Aveck. As noted by the Court of Appeals dissenting judge,
Part of [plaintiff’s] strategy was to show that the testimony of Tom Rodgers, plaintiff’s supervisor, regarding Aveck’s and plaintiff’s qualifications was unworthy of belief. A reasonable trier of fact could have concluded, after evaluating Rodgers’ testimony, that Rodgers was unfamiliar with Aveck’s skills, that plaintiff’s skills and qualifications were superior to Aveck’s, that Rodgers’ stated reasons for choosing Aveck were a pretext, and that plaintiffs age and sex were determining factors in Rodgers’ decision. [Unpublished opinion, issued February 16, 1995 (Docket No. 144980) (White, J., dissenting), slip op, p 1 (emphasis added).]
Furthermore, I agree with the dissenting judge that a plaintiff must do more than simply disprove a proffered reason. Id. Here, plaintiff did not rely solely on the fact that she lost her job to a younger, male employee. Rather, she also presented evidence that she was more qualified than Aveck. Furthermore, she presented evidence that the defendant violated its own policy on involuntary transfers when it transferred her rather than Aveck who had substantially less seniority than plaintiff. Finally, plaintiff presented evidence that the reason she was involuntarily transferred in violation of the company’s internal policy *719 was because it knew that she could not accept the new position because she could not work the evening hours the job required, and that she previously refused the same position, thus creating a likelihood that the older employee would retire. Plaintiff presented sufficient evidence so that reasonable minds could conclude that a motivating factor in involuntarily transferring plaintiff was her age. Indeed, reasonable minds did conclude that age was a determining factor, as evidenced by the jury’s verdict in plaintiff’s favor.
Unlike the majority, I would hold that it was up to the jury to decide whether defendant discriminated against plaintiff. The majority has improperly assumed the role of the jury by concluding that defendant, as a matter of law, did not discriminate against plaintiff. Obviously, reasonable minds can and have disagreed with the majority. Therefore, I respectfully dissent.
Mallett, C.J., concurred with Cavanagh, J.
Kelly, J., concurred with Cavanagh, J., only in Town.
McDonnell Douglas Corp v Green, 411 US 792 ; 93 S Ct 1817 ; 36 L Ed 2d 668 (1973).