DeBrow v. Century 21 Great Lakes, Inc.
620 N.W.2d 836
Mich.
2001
Check Treatment

*1 463 Mich 534 LAKES, (AFTER REMAND) v DeBROW CENTURY21 GREAT INC January 17, application by Docket No. 114615. Decided 2001. On the plaintiff appeal, Supreme Court, granting for leave to the of in lieu leave, part judgments Appeals reversed in of the of Court and the circuit court and remanded the case to circuit court for fur- proceedings. Rehearing post, ther 1223. denied brought against Paul DeBrow an action the Oakland Circuit Court employer Century Lakes, Inc., others, his former 21 Great and alia, alleging, age court, inter discrimination. The C. Robert Ander- son, X, summary granted disposition for the defendants. The Court Appeals, P.J., X, Michael X and N. O. X (Young, Kelly, Holowka, part), dissenting unpublished opinion per in an affirmed curiam (Docket 161048). Supreme No. Court remanded the case to the light Lytle Malady (On for reconsideration in Rehearing), remand, Appeals, On the Court of P.J., JX, again X and Gribbs and affirmed Michael Kelly, Hoekstra, unpublished opinion per plaintiff an curiam. The seeks leave to appeal. opinion per curiam, signed In Chief Justice Corrigan, Justices Cavanagh, Weaver, Kelly, Taylor, held-. proven by Intentional discrimination can be direct and circum- prove stantial evidence. Where direct evidence offered to dis- crimination, plaintiff required is not to establish a facie Douglas Co-rp case within the framework Green, of McDonnell (1973), proceed ordinary 411 US 792 and the case should as civil shifting contemplated matter. The burden of in McDon- Dep’t Community nell Burdine, and Texas Affairs only (1981), applies 450 US 248 to discrimination claims based solely on indirect circumstantial evidence of In case, deposition regarding testified in his direct animus, directly evidence of which bears on the intent with choosing which his acted in to demote him. The evidence ignored summary disposi- cannot be in the context of a motion for precludes plaintiffs age tion and dismissal of the claim. If believed fact, suggests plaintiffs age the trier was a (After Rem) point was removed the mind position. from his only concurring, evidence Markman, stated that the Justice single presented by com- of a consists *2 meeting supervisor during a at allegedly his made to him ment ultimately to deter- It is for the factfinder he was terminated. which or col- in its literal the is better understood mine whether comment loquial sense. predicated Particularly cases context of discrimination the variety that, upon age, comments a wide innocent there are meaning in common from out of context and divorced their taken by plaintiff for sum- parlance, a a motion defeat could used disposition. requirements 2.116(C)(10) will mary not of MCR The plaintiff invariably alleges who remarks be satisfied employer employer supervisor.'Although or a kind supervisor’s most viewed in favorable comments must be the summary judgment plaintiff stage, the neverthe- reasonably con- to allow the trier of fact to less must be sufficient resulting age motivating in an animus was clude that adverse action. part Reversed in and remanded. Young part in the this case. took no decision of Justice P.C. Schwartz, Schwartz, (by Silver & Sommers, for Downing), and Carl B. J. Gasiorek Donald plaintiff-appellant. Brady and P.C. John F.

Brady Hathaway, (by Century 21 Great for defendant Hardesty), David A. Lakes, Inc. defendant-appellee Shanaberger Gregory

W. Century Franchise Association. REMAND

AFTER from his was fired Per Curiam. After others. He former job, he sued including age species misconduct, seven alleged summary circuit court granted disposition the defendants, favor of and the Appeals has twice affirmed. Because the prosecute has shown enough to a claim dis- crimination, part judgments we reverse Appeals and the circuit court.

i At of forty-eight, Paul DeBrow was position removed from an executive estate network.1 He sued his employer,2 real former alleging wrongful discharge unlawful discrimin ation.3

When the moved for summary disposi tion, the circuit granted court motion and denied rehearing. The Court of affirmed4 over the partial dissent of Justice who was a member Young, *3 panel.

On application Court, to this we remanded the case Appeals to the Court of for reconsideration in of light 1 by Century employed Lakes, Mr. DeBrow was 21 Great Inc. From hand, appears Century materials at organiza- it 21 has a three-tiered Century Corporation tional structure. pany 21 Real Estate Is a nationwide com- system regional organizations that franchises its and trademarks to employer. turn, Century such Mr. DeBrow’s former In 21 Great Lakes arranges Century for individual brokers to 21 become franchisees. We are Century Michigan, Ohio, told that 21 Great handled Lakes franchises in parts and of two other states. 2 apparently employment by Century The was offered other 21 offer, however, proceeded Great Lakes. He declined the on the basis that his had been terminated. 3 complaint, against In an amended he added claims four other defen- (three Century franchisees). dants individuals and an association of 21 Appeals The of grant Court has circuit affirmed the court’s decision to summary disposition in favor of these additional defendants. 4 Unpublished per opinion, August 13, (Docket curiam issued 1996 No. 161048). 537 (After Rem) v

Opinion of Court 579 Rehearing), Mich (On Lytle Malady (1998).5 NW2d 906 affirmed,6 the Appeals again of

After appeal application for leave filed another in the Court.

n Did the issue. single will focus on opinion This former when it granted court err circuit summary disposition7 employer’s motion unlawfully discriminated to the claim regard age? on the basis of against summary disposition granted instance, In this the fac- a motion tests MCR Such 2.116(C)(10). under subject to de claim, and support plaintiff’s of a tual Exchange, Ins review. Harts Farmers novo Smith Globe 1, 5; (1999); NW2d Life 446, 454; (1999). NW2d 28 Co, 460 Mich Ins affirmance, of opinion In its initial shifting this case in Appeals discussed commonly employment- proof applied burdens opinion of the Court cases. second This has analysis. approach a similar used 411 US Corp Green, its roots McDonnell 802-805; Ct 36 L Ed 2d 668 (1973), 93 S subsequent decisions. employed has been countless adopted Douglas approach was The McDonnell many employment-discrimination because of unlawful discrim- cases can cite no direct evidence portions Lytle opinion, on which In this 459 Mich 899 rely by majority partial supported con- this Court. See the we were *4 458 Mich 186. of former Chief Justice Mallett, currence opinion, April 13, (Docket Unpublished per No. issued curiam 161048). 2.116(C)(10). MCR Mich plaintiff

ination. The courts allow a pre therefore to a prima sent rebuttable facie case on basis proofs from which a factfinder could that infer plaintiff the victim unlawful discrimination.8 present case falls pat- outside that common tern, plaintiff however. Here, has direct evidence of unlawful age discrimination. The testified deposition during that, in the in conversation superior which he was fired, his told him that he was “getting too old for this shit.” We that this recognize may remark subject be to varying It interpretations. might reasonably taken merely expression sympathy that not encompass does a statement that plaintiffs a age was motivating removing position him from his as an However, executive. it is that, well established a on reviewing decision summary a motion for disposition under MCR 8 Writing in the context of claim that an refused employee rehire a animus, Supreme laid-off because of racial the U.S. compose Court formulated in McDonnell four elements that prima facie case racial US 802. The four factors restated, general terms, have been involving, more for use in cases inter alia, claims of discrimination: prima [age] discrimination, plaintiff To establish a facie case of prove by preponderance

must (1) of the evidence that she was a protected class; (2) employ- member of the she suffered an adverse action, case, ment discharge; (3) demotion then she was qualified position; (4) discharged for the but she was under circum- give stances rise to inference unlawful discrimination. [Lytle, 172-173, 458 Mich 177.] Both the U.S. Court and this Court have cautioned these applied mechanically, factors are unique to be “not but with due deference to the facts of individual case.” 458 Mich n see also 411 US 802, n 13. case, If submits such facie the burden shifts legitimate, nondiscriminatory to articulate a reason its for 173-174; Upon showing, action. 458 Mich 411 US 802. such a the burden employer’s returns to the to show that the stated reason its actually pretext. action was a mere 458 Mich 411 US 804. *5 539 21 (After Rem)

Opinion of the Court documentary evi- 2.116(C)(10), consider the must we light presented most “in the trial court to the dence party.” nonmoving v Farmers Harts favorable to the plaintiff’s According supra Exchange, to at 5. Ins during testimony, deposition was made remark superior plaintiff’s which the in the conversation being Considered was fired. he him that informed plaintiff, remark to the most favorable a literal statement as could be taken job “getting was a factor and this for his too old” position. him from his remove to in the decision by might evi- other be convinced While a factfinder regarding the circumstances dence any part motivated it was not removal that incriminating facially plaintiffs age and that sympathy, expression of than an more remark was no weighing factfinder, not for the evidence is such reviewing grant motion for of a this Court in summary disposition. proof shifting in McDon- described burdens applicable Douglas can cite if a are not

nell Trans of unlawful direct evidence 111, 121; 105 469 US Thurston, Airlines, Inc World (1985). 523 83 L Ed 2d 613; S Ct explained point Young Justice was well This opinion the first his dissent from analysis, agree Appeals. below, forth set We adopt own. it as our proven direct and can be Intentional discrimination App 179, Lytle Malady, Mich 209 circumstantial evidence. (1995).[9] Where direct evidence 185; NW2d 135 530 9 Young’s 1996, partial before this was authored dissent Justice (1997), 1; and on rehear- appeal, NW2d 582 Lytle on decided 153; NW2d 906 ing, 458 Mich Mich prove discrimination, plaintiff required

offered to is not Douglas1 establish a case within the facie McDonnell proceed ordinary framework, and the case should as Thurston, 111, civil matter. Trans World Airlines 469 US (1985); 105 S Ct Ed 2d 83 L Matras v Amoco Co, 683-684; (1986); Lytle, Oil 424 Mich 385 NW2d 586 supra, App 186, shifting 209 Mich n 3. The burden of contemplated only in McDonnell and Burdine2 apply solely discrimination claims based on indirect Thurston, supra, circumstantial evidence discrimination.3 121;Lytle, supra, App 469 US 209 Mich 185. *6 deposition

Plaintiff testified in his that when he was being president, Century superior, removed as his 21’s President, Hutchinson, Great Lakes Executive Vice Robert plaintiff “you’re told old too for this shit.” This statement age Moreover, direct of evidence animus. because it was allegedly in made the context of discussion in which being presi- was informed he that removed as dent, directly employer bears on the intent which his choosing acted to demote him. Appeals] majority ignores

The of this evidence as [Court unworthy credibility. of Neither this Court nor trial findings weigh credibility court can make factual deciding summary disposition. Manning motion for v Park, App 689; 685, Hazel 202 (1993). Mich 509 NW2d 874 ignored This evidence cannot context of a motion summary disposition precludes, my for judgment, and plaintiff’s age dismissal Lytle, supra, of claim. See 209 App Clearly, by 187-188. the statement Vice President Hutchinson, by fact, suggests if believed the trier that plaintiff’s age was a in the mind of point plaintiff position. was removed from his See Matras, supra, 424 Mich 682. 1 Douglas Green, 792; 1817; McDonnell 411 US 93 S Ct 36 L Ed (1973). 2d 668 Dep’t Community Burdine, Texas 248; US Affairs 1089; Ct (1981). S 67 L Ed 2d 207 such, disagree majority’s As I with the statement failed to set forth facie case of discrimination due replaced person. younger insufficient evidence that he was As recently stated, the United States Court (After Rem) J. Opinion Markman, Coin persons v Consolidated protect O’Connor not classes. laws 1307; L Ed 2d 433 Corp, 116 S Ct 517 US Caterers employer argues the dis- former The “stray that cannot puted remark[]” awas statement Hopkins, liability. give Price Waterhouse See rise Ed 2d 268 104 L Ct 277; 109 S 490 US concurring in the (opinion (1989) J., O’Connor, present case, judgment). of the In the circumstances argument of fact to the finder for is an however, that consider. judgments part the reverse in reasons, we

For these court. We circuit and the pro further the circuit court case to remand this plaintiff’s that his for ceedings claim limited to unlawfully against him discriminated mer 7.302(F)(1). age.10MCR basis of on the Weaver, Cavanagh, Kelly, Corrigan, C.J., Taylor, JJ., concurred. only (concurring). evidence J. Markman, by presented of a sin consists

discrimination gle superior allegedly him his made to comment *7 During during meeting which he was terminated. meeting, of Cen “getting Hutchinson, an official this tury Robert he was that Lakes, told Great two conceiv are at least sh—.” There too old for this (1) interpretations that it con of this comment: able majority evi as “direct describes what the stitutes adverse of an in the context animus dence” of employment (2) by defendant, taken

decision expression colloquial represents does not which appeal respects, to is denied. leave In all other Mich Opinion Markman, J.

necessarily speaker’s perspective communicate the object literally aged that the of his remark is too to perform particular empathizes task, but rather person by indicating the other that, on basis of his experience, education, or of achievement, level he should not have to tolerate certain difficult circum- stances in which he has become enmeshed. majority

I concur in the result reached ultimately agree I because it is for the factfinder interpreta- to determine which of these alternative tions best describes remarks, wit, Hutchinson’s to whether these are remarks better understood in their colloquial literal or in their senses. separately express my I

However, write to concern particularly that, in the context of discrimination predicated upon age, variety cases there are a wide innocent that, comments taken out of context and meaning parlance, divorced from their in common be could used to defeat a motion for summary disposition. example, rough For if made in proximity adverse action and if literally, following might construed comments understood to constitute evidence discrimi- nation:

- just “That’s old hat” - dog “You can’t teach an old new tricks” - thing” “He’s an old hand at this sort of - thinking just “Your old school” - enough “You’re old know better” - belong good-old-boys “You to the network” phrases, Each of these similar to the one uttered in present colloquial meanings case, have in the con- temporary language that are distinct from their literal *8 (After Rem) J. Opinion by Markman, generally meanings with and that are unconnected join any I animus. here serious intimation of any specific majority lack information because we concerning comment, defendant’s the context of may in which it is be circumstances because there a the comment literal to accord not unreasonable However, I do not believe construction. invariably requirements 2.116(C)(10) will be of MCR alleges remarks who satisfied supervisor. Although an kind or supervisor’s comments must be viewed or to a the sum- in “the most favorable” mary stage, judgment nevertheless must reasonably con- to allow the trier of fact sufficient motivating animus was a result- clude that Malady Lytle ing adverse action. Rehearing), (On 579 NW2d 906 458 Mich from the ordi- Whether comment removed nary “direct evidence” of would constitute vernacular merely circumstantial evidence validity my judgment, of this alter the not, does proposition. part took no in the decision of this case.

Young, J.,