In this wrongful discharge case, plaintiff’s complaint alleged three counts against defendant Howmet Corporation: age discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., gender discrimination under the Civil Rights Act, and breach of a contract providing for termination for just cause only. The complaint also alleged tortious interference with contractual relations against defendant Michael Malady. Following some discovery, defendants moved separately for summary disposition, which was granted by the .trial court on all counts. Plaintiff appeals as of right, and we affirm in part, reverse in рart, and remand.
I
In 1973, Howmet, a manufacturer of aircraft engine parts, hired plaintiff as a general clerk. Following a succession of positive performance appraisals and promotions, she was promoted in 1979 by her supervisor, John Ozar, to employment manager of the human resources department of *183 Howmet’s Whitehall division. When defendant Malady became plaintiffs supervisor in 1987, a personality conflict arose, and in 1989, on Malady’s recommendation, she was demoted to human resources specialist. A younger, allegedly less qualified man wаs promoted to replace her.
As a result of declines in military spending and a downturn in the commercial airline industry, Howmet instituted a series of reductions in its work force between 1988 and 1991. In August 1991, William Roof, director of the Whitehall human resources department, was directed to cut his 1992 department budget by fifteen percent (approximately $439,000). In November 1991, Roof eliminated four positions in the human resources department, including plaintiffs position as human resources specialist, and reassigned her job duties to other persons within the department. Roof decided to еliminate plaintiff’s position because her main responsibilities involved the hourly workers who bore the brunt of the downsizing. Plaintiffs "termination evaluation” indicated that Howmet would rehire plaintiff in the event a nonsupervisory, administrative position became open.
II
A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of a claim. In reviewing a grant of summary disposition, we must independently determine, giving the benefit of doubt to the nonmovant, whether the movant would have been entitled to judgment as a matter of law.
Adkins v Thomas Solvent Co,
III
Plaintiff asserts that the trial court erred in finding that no genuine issue of material fact existed with respect to plaintiff’s prima facie case of age discrimination and in granting Howmet summary disposition pursuant to MCR 2.116(C) (10). We agree and reverse.
A
Plaintiff’s claim of age discrimination is based upon the Civil Rights Act, which provides in pertinent part:
(1) 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 ... age ... . [MCL 37.2202; MSA 3.548(202).]
This Court has held that federal precedent, while not binding, is persuasive authority in interprеting and applying the Civil Rights Act.
Featherly, supra
at 357-358;
Slayton v Michigan Host, Inc,
B
An age discrimination claim can be based on two theories: (1) disparate treátment, which requires a showing of either a pattern of intentional
*185
discrimination against protected employees, e.g., employees aged forty to seventy years, or against an individual plaintiff; or (2) disparate impact, which requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class.
1
See
Farmington Ed Ass’n v Farmington School Dist,
A plaintiff can establish a claim of disparate treatment with sufficient direct or indirect evidence of intentional discrimination. Direct evidence of disparate treatment would be evidence that, if believed, would prove the existence of the employer’s illegal motive without benefit of presumption or inference.
Matras v Amoco Oil Co,
A prima facie case of age discrimination varies with differing factual situations.
Matras, supra
at 684. Where, as here, a plaintiff is discharged as a result of an employer’s economically motivated reduction in force (rif), a prima facie case of disparate treatment requires an initial showing, by
*186
a preponderance of the evidence, that (1) the plaintiff was within the protected class and was discharged or demoted, (2) the plaintiff was qualified to assume another position at the time of discharge or demotion, and (3) age was "a determining factor” in the employer’s decision to discharge or demote the plaintiff.
2
Matras,
supra; McDonnell Douglas Corp v
Green,
Once established, a prima facie case creates a rebuttable presumption of disparate treatment. Burdine, supra at 252-253. At this point, the burden of production shifts to the defendant — as opposed to the burden of persuasion that never shifts *187 —to rebut the presumption of disparate treatment by articulating (not proving) "some legitimate, nondiscriminatory reason” for the adverse employment decision against the plaintiff. Id. at 253-258. The defendant’s explanation must be clear and reasonably specific to afford the plaintiff "a full and fair opportunity” to demonstrate pretext. Id. at 256.
If the defendant carries its burden of production, the presumption of discrimination is dispelled, and the factual inquiry proceeds to a new level of specificity.
Id.
at 255. See also
St Mary’s Honor Center v Hicks,
506 US —;
At this juncture, we note thаt there is a crucial distinction between a plaintiff’s prima facie case for purposes of surviving a summary disposition motion and a prima facie case sufficient to persuade a trier of fact at trial with regard to the ultimate question whether a defendant intentionally discriminated against the plaintiff. While the latter requires a plaintiff to prove her case to the trier of fact by a preponderance of the evidence, the former does not require her to go so far.
Meeka v D & F Corp,
C
Two issues are presented on appeal, both arising naturally from the McDonnell Douglas burden-shifting analysis: whether plaintiff created a genuine issue of material fact with regard to the existence of a prima facie case of discrimination by indirect evidence; and, if so, whether plaintiff created a genuine issue of material fact concerning whether Howmet’s proffered reasons were a mere pretext for age discrimination.
1
In this case, plaintiff’s prima facie case is based solely on circumstantial evidence. She alleges that in January 1989, defendant Malady demoted her from employment manager to human resources specialist, while simultaneously promoting Walter *189 Boczkaja to employment manager. 4 Boczkaja was younger, had less seniority with Howmet, less experience in the area of human resources, and had been trained by plaintiff during her tenure as employment manager. Plaintiff also alleges that, approximately six weeks before she was dischаrged in 1991 at age forty-four, Howmet hired Andrea Achterhoff, age thirty-one, as human resources specialist for its Operhall Research Center (orc), a division separate from the Whitehall division where plaintiff had worked. Plaintiff also alleges that, as part of an effort by Howmet to implement a new manufacturing approach, Jeff Billingsley, a training and development manager, was transferred from the corporate human resources department to Whitehall’s human resources department. Both Achterhoff and Billingsley were younger than plaintiff, had less seniority, аnd, according to plaintiff, performed duties that she could have assumed considering her nineteen years of experience at Howmet.
We find plaintiff’s allegations, although meager, to be sufficient to create a genuine issue of material fact that age was a determining factor in her discharge. Because this is a rif case, Howmet’s decision to discharge qualified, older employees is not inherently suspicious but rather readily explainable in terms of its economic situation. Standing alone, the fact of such discharges does not warrant shifting the burden of production to How-met to justify its decision. Featherly, supra at 355. Here, however, we find that Howmet’s retaining and hiring of younger, less senior, and allegedly less qualified employees, while discharging plain *190 tiff, "exude[s] that faint aroma of impropriety” sufficient to create a rebuttable presumption of disparate treatment. Thornbrough v Columbus & Greenville R Co, 760 F2d 633, 644 (CA 5, 1985).
2
In rebuttal, Howmet asserts that the elimination of plaintiff’s position as human resources specialist was justified because of a projected downturn in sales and a concomitant reduction in the hourly work force for which plaintiff was primarily responsible. Howmеt further asserts that plaintiff was not replaced but that her duties were reassigned to various other employees. Howmet further claims that the hiring of Achterhoff for the position of human resources representative at orc was irrelevant to plaintiff’s discharge because orc is a separate division with a separate budget over which plaintiff’s supervisors had no control. In any event, Howmet asserts that Achterhoff was qualified for the position and that plaintiff did not apply. At deposition, defendant Malady stated that one of the reasons he discharged plaintiff was because of concerns he had regarding her supervisory ability.
To resurrect her prima facie case at the third stage of proofs, plaintiff asserts that Howmet’s proffered reasons are a mere pretext for age discrimination. Although Howmet’s rif may have been justified, plaintiff has produced documentary evidence to support an inference that Howmet’s true motivation in discharging her was age discrimination. See Featherly, supra at 355. Plaintiff presented evidence that she was capable of assuming the duties given to Achterhoff, and that it was not rеasonable to expect her to apply for the orc position because at that time she was not aware of *191 her imminent discharge. Moreover, Howmfet has failed to rebut plaintiffs claim that its decision to discharge her and retain Boczkaja, who was younger, with less seniority and less experience, was at least partially premised on plaintiffs age. We conclude that the hiring of Achterhoff and the retention of Boczkaja, in the face of plaintiffs discharge, could reasonably lead to an inference that Howmet consciously rеfused to consider retaining or relocating plaintiff because of her age. Finally, in light of plaintiffs many years of positive performance appraisals and several promotions, she has presented evidence supporting an inference that Malady’s claim that she was not supervisory material was a mere pretext.
Viewing the evidence in a light most favorable to plaintiff and drawing all reasonable inferences in her favor, we find that she has raised a genuine issue of material fact whether Howmet’s proffered reasons for her discharge were a mere pretext for age discrimination. Accordingly, we reverse the trial court’s order of summary disposition of this claim.
IV
Plaintiff next asserts that the trial court erred in finding that no genuine issue of material fact existed with respect to her prima facie case of gender discrimination and in granting Howmet summary disposition pursuant to MCR 2.116(C) (10). We agree and reverse.
A
The essence of a gender discrimination claim is that for the same or similar conduct a female plaintiff was treated differently than a similarly
*192
situated male employee.
Betty v Brooks & Perkins,
B
In this case, defendant Malady became plaintiff’s supervisor in March 1987 and a personality conflict quickly erupted. Plaintiff cited the following incident, which she described at deposition:
In ’87, the only other thing I can really think of, and it sounds real silly, but shortly after Michael [Malady] started there we had an open house — and I remember it very plain, and he came to my оffice and said, well, I want you girls to wear dresses to the open house. I said, Michael, I don’t want to wear a dress to the open house. We’re out on the *193 grass. We’re walking around and slopping hotdogs and eating ice cream and I don’t want to look like a snot. I said, besides, I don’t even have a dress I can wear to a picnic, and he said, well, here’s your paycheck, buy one. Well, I didn’t wear one and I think right then and right there is where our trouble started. I mean, I honestly do.
In June 1987, and again in September 1987, plaintiffs performance was appraised by Malady, resulting in evaluаtions more critical than those she had received under previous supervisors.
In January, 1989, after further confrontations, Malady demoted plaintiff and simultaneously promoted Walter Boczkaja to employment manager. As stated previously, Boczkaja had less seniority with Howmet, less experience in the area of human resources, and had been trained by plaintiff during her tenure as employment manager. In her brief opposing Howmet’s motion for summary disposition, plaintiff alleges that "Mr. Malady had difficulty in getting along with women in positions of authority.”
Plaintiffs allegations permit an inference that her discharge was not merely the result of a personality conflict with Malady. See
Coleman-Nichols v Tixon Corp,
V
Plaintiff next asserts that the trial court erred in finding that she had failed to establish a legitimate expectation of employment terminable for just cause only, and granting summary disposition to Howmet pursuant to MCR 2.116(0(10). Plaintiff further asserts that the trial court erred to the extent that it held that plaintiff had failed to rebut Howmet’s alleged economic justification for discharge.
A
Employment contracts for an indefinite period are presumed to bе terminable at the will of either party for any reason or for no reason at all.
Rood v General Dynamics Corp,
In this case, we find that plaintiffs allegations give rise to a question of fact with regard to whether policy statements in Howmet’s employee handbook and oral assuranсes of job security were sufficient to create in plaintiff a legitimate expectation of just-cause employment. In 1973, when plaintiff was initially hired by Howmet, she was given a handbook containing the following provision:
No employee will be terminated without proper *195 cause or reason and not until management has made a careful review of all facts.
In a separate section, the handbook provided the following contract disclaimer:
The contents of this booklet are not intended to establish, and should not be interpreted to constitute any contract between [defendant Howmet] and any еmployee or group of employees.
In Rood, supra at 140-141, our Supreme Court explained:
Consistent with Toussaint [v Blue Cross & Blue Shield of Michigan,408 Mich 579 ;292 NW2d 880 (1980)] and Renny [v Port Huron Hosp,427 Mich 415 ;398 NW2d 327 (1986)], we therefore hold that, in all claims brought under the legitimate expectations theory of Toussaint, the trial court should examine employer policy statements, concerning employee discharge, if any, to determine, as a threshold matter, whether such policies are reasonably capable of being interpreted as promises of just-cause employment. If the employer policies are incapable of such interpretation, then the court should dismiss the plaintiffs complaint on defendаnt’s motion for summary disposition. MCR 2.116(0(10). If, however, the employer’s policies relating to employee discharge are capable of two reasonable interpretations, the issue is for the jury.
We find that Howmet’s explicit policy statement forbidding discharge except for just cause could have reasonably created a legitimate expectation of just-cause employment, notwithstanding the absence of any express contract between Howmet and its employees.
Rood, supra
at 140. To hold otherwise and find that Howmet’s contract disclaimer obviаted its just-cause policy statement
*196
would create an illusory promise of just-cause employment to its employees yet permit Howmet to reap all the benefits of improved employee morale as a result of the promise. See
Rowe v Montgomery Ward & Co, Inc,
B
Our finding that Howmet’s policy statement was reasonably capable of being interpreted as a promise of just-cause employment does not end the matter. We must next determine whether the nature of the employment relationship was changed unilaterally by Howmet with subsequent distribution of a disclaimer providing fоr employment at will. We find in plaintiff’s case that it was not.
In 1981, plaintiff’s subordinates in the human resources department were instructed to place stickers on employee handbooks disclaiming just-cause employment. The disclaimer provided:
The Company reserves the right to terminate employees without assigning cause; therefore, the employee serves at the will of the employer.
Upon becoming aware of the disclaimer, plaintiff inquired of Mason Archer, 5 supervisor of Howmet’s employee benefits department, whether it applied to her, and Archer replied that it only applied to new employees. Defendant Howmet concedes that plaintiff was never notified directly that the disclaimer applied to her.
*197
Howmet asserts that plaintiff is bound by the change in policy because she was aware of the disclaimer being placed in employee handbooks. An employer’s written policy statements, which create legitimate expectations in an employee of just-cause employment, may be unilaterally modified provided that the employer gives affected emplоyees reasonable notice of the change.
Rowe, supra
at 648 (Riley, J.), 662 (Boyle, J.) (an employee can "no longer harbor any legitimate expectations of a discharge-for-cause policy,” once the employee becomes aware of a change in policy, despite the absence of formal assent);
In re Certified Question,
Howmet nonetheless asserts that plaintiff’s knowledge of the at-will disclaimer operated to dispel any legitimate expectation of just-cause employment. A legitimate expectation of just-cause employment may be created by statements of management personnel, not by mere statements of fellow employees.
Gonyea v Motor Parts Federal Credit Union,
C
Notwithstanding the existence of an enforceable just-cause employment policy, Howmet asserts that just cause was present in this case in the form of its economically motivated rif.
Bona fide economic reasons are just cause for discharge.
McCart v J Walter Thompson USA, Inc,
VI
Plaintiff claims that the trial court erred in granting summary disposition to defendant Malady on the basis that she had failed to raise a genuine issue of material fact with respect to a prima facie case against Malady for tortious interference with her employment at Howmet. We disagree.
To maintain a cause of actiоn for tortious interference with contractual relations, a plaintiff bears a heavy burden of showing that the defendant, as a corporate agent or officer, was acting outside the scope of his authority by interfering with the plaintiff’s contractual relations without justification.
Coleman-Nichols, supra
at 657;
Bradley v Phillip Morris, Inc,
Here, we agree with the trial court that plaintiff has presented insufficient evidence of any affirmative act by Malady to corroborate a claim of tortious interference. Plaintiff’s only such evidence is that Malady concurred with William Roofs deci *200 sion to discharge plaintiff; however, this does not rise to the level of an affirmative act of interference with plaintiff’s contractual relations. Coleman-Nichols, supra. Moreover, plaintiff has failed to allege any personal benefit reaped by Malady because of plaintiff’s discharge, other than not having to deal with her anymore. Accordingly, we affirm the trial court’s order granting summary disposition to defendant Malady of this claim.
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings regarding plaintiff’s breach of a just-cause employment contract and Civil Rights Act claims against defendant Howmet. We do not retain jurisdiction.
Notes
We note that a growing number of decisions from this Court have confused these two theories of discrimination with the differing methods of proving each theory. For example, intentional discrimination is not a separate theory but rather another name for the disparate treatment theory.
Thus, in the usual non-RiF case, a plaintiff can establish a prima facie case of disparate treatment by a rudimentary showing that (1) the plaintiff was within the protected class, (2) the plaintiff was qualified for the job in question, and (3) the plaintiff was replaced by a substantially younger person.
McDonnell Douglas Corp v Green,
Where direct evidence is offered to prove that an employer discriminated, the
McDonnell Douglas
burden-shifting analysis is inapplicable and the case should proceed as an ordinary civil matter. See
Trans World Airlines, Inc v Thurston,
Howmet’s claim that plaintiffs 1989 demotion was unrelated to her subsequent discharge nearly three years later is unsupported by the evidence. A reasonable inference can be made that these acts constituted a continuing violatiоn of the Civil Rights Act.
Sumner v Goodyear Tire & Rubber Co,
According to personnel documents, Mason Archer was plaintiffs immediate supervisor from 1973 until 1979, when he was laterally-transferred "to the area of supervising Employee Benefits and Equal Employment Opportunity.” At that time, plaintiff was promoted to Employment Manager, Archer’s former position.
We further note that, in the section entitled "Your Handbook” of the original handbook given to plaintiff, employees were assured as follows: "The procedures, benefits and practices outlined here may be changed from time to time. You will be advised of such changes as they are put into effect.”