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### STATE OF MICHIGAN

COURT OF APPEALS

KAREN HRAPKIEWICZ,

Plaintiff-Appellee, UNPUBLISHED March 9, 2017

v No. 328215; 330189 Wayne Circuit Court

WAYNE STATE UNIVERSITY BOARD OF GOVERNORS, LC No. 11-015709-CL

Defendant-Appellant.

Before: W ILDER , P.J., and C AVANAGH and S ERVITTO , JJ.

S ERVITTO , J. ( dissenting ).

I respectfully dissent.

The majority concludes that plaintiff proved the elements of a prima facie case of age

discrimination under the McDonnell Douglas 1 burden shifting analysis. I agree that there was no direct evidence of age discrimin ation in this case such that th e burden shifting analysis was the appropriate framework under which to analyze defendant’s summar y disposition and directed verdict motions. See, DeBrow v Century 21 Great Lakes, Inc , 463 Mich 534, 540; 620 NW2d 836 (2001)(holding that the “shifti ng burden of proofs as conte mplated in McDonnell Douglas

and Burdine only apply to discrimination claims based solely on indirect o r circumstantial

evidence of discrimination” and when direct evidence is offered to prove discrimination the case proceeds as an ordinary civil matter.). The majority correctly quotes Lytle v Malady , 458 Mich 153, 177; 579 NW2d 906 (1998), as setting forth the prima facie case of an age discrimination case as requiring plaintiff to p rove, by a preponderance of the evidence, that “(1) she was a member of the protected class; (2) she suffered an adverse empl oyment action; (3) she was qualified for the position; and (4) she was replaced by a young er person.” However, I note that Lytle cites to Town v Michigan Bell Tel Co , 455 Mich 688, 695; 568 NW2d 64 (1997) for these elements, when the Town Court actually stated:

1 McDonnell Douglas Corp v Green , 411 US 792; 93 S Ct 1817, 36 L Ed 2d 668 (1973).-2- [m]any courts, including this one, have used the prima facie t est articulated by the United States Supreme Court in McDonnell Douglas Corp v

Green as a framework for evaluating ag e-discrimination claims. Origi nally applied to cases of race discrimination, the test has been modi fied to accommodate cases of age and sex discrimination.

The modified McDonnell Douglas prima facie approach requires an employee to show that the employee was (1) a member of a protected class, ( 2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside t he protected class, were unaffe cted by the employer's adverse conduct. [ Id . footnotes omitted].

Thus, the factors articulated by Lytle are not wholly accurate. And, I would add, would be extremely easy to meet. If, as indicated in Lytle and followed by the majority, a plaintiff in an age discrimination case need only show that he or she was of a certain age, suffered an adverse employee action, was qualified for the position and was replace d by a person even a year younger, our courts would be floode d with age discrimination ca ses. Instead, as more accurately explained in the more recent case of Hazle v Ford Motor Co , 464 Mich 456, 463; 628 NW2d 515 (2001):

Under McDonnell Douglas, a plaintiff must first offer a “prima facie case” of discrimination. Here, plaintiff was required to present evidenc e that (1) she belongs to a protected class, (2) she suffered an adverse emplo yment action, (3) she was qualified for the position, and (4) the job was given t o another person under circumstances giving rise to an inference of unlawful dis crimination.

The fourth element is essential to the analysis. The evidence required by the plaintiff in an age discrimination case to establish this element is more than just his or her birthdate and his or her replacement’s birth date. Birthdates alone do not give rise to an inference of unlawful discrimination. The majority implicitly acknowledges the same by quoting the following applicable portion of Hazle :

The inquiry at this final stage of the McDonnell Douglas framework is exactly the same as the ultimate factual inquiry made by the jury: whether consideration of a protected characteristic was a m otivating factor, namely, wheth er it made a difference in the contested employment decision. See SJI2d 105. 02. The only difference is that, for purposes of a motion for summary dispos ition or directed verdict, a plaintiff need only create a question of material fa ct upon which reasonable minds could differ regarding whether discrimination was a motivating factor in the employer's decision. [ Hazle , 464 Mich at 466 (footnote omitted).]

Clearly, and sensibly, when consid ering whether a plaintiff has established a prima facie case of age discrimination under the McDonnell Douglas framework, a trial court must determine whether it was established that a protected characteristic (her e, age) was a motivating factor in the adverse employment decision. It is not enough, as the majo rity here appears to find, that the plaintiff simply demonstrated that the person who replaced her was younger. Rather, in order to present a prima facie case of age discrimination and specifical ly to establish the fourth element-3- of her prima facie case, plaintiff was required to demonstrate that her age was a factor in her adverse employment action, i.e., that plaintiff’s age made a di fference in her employer’s decision

to fire her. See Hazle , 464 Mich at 466.

Viewing the evidence presented at summary disposition in a lig ht most favorable to plaintiff, I would find that plaintiff failed to establish a pr ima facie case of age discrimination. There is no dispute that plaintiff was terminated for her actio n in allowing students to take an examination on campus for a class that was not even hers when t he campus was closed due to weather conditions. While there may be some dispute as to whet her or not other incidents contributed to the decision, plaintiff presented no evidence th at age was a factor in the adverse employment decision. The uncontr overted evidence was that age was not discussed by the two decision makers, Dr. Ratner who was three years younger than pl aintiff, and Gloria Heppner, who was approximately 13 years older than plaintiff. In additi on, plaintiff’s direct supervisor began planning his retirement in 2006 and voluntarily retired i n 2010. Plaintiff presented no evidence from which it could be inferred that age played a role in defendant’s termination decision and the majority has not identified any. Moreover, in denying defendant’s motion for summary disposition, the trial c ourt did not identify or indica te any evidence that supported the fourth factor of plaintiff’s prima facie case, but instead inco rrectly stated that plaintiff had to show that defendant’s given reason for the adverse employment a ction was pretext. Pretext, however, does not factor into a tr ial court’s analysis until after the plaintiff has established her prima facie case. See Hazle , 464 Mich at 465.

Because plaintiff failed to establish a prima facie case of ag e discrimination, I would

have reversed the trial court’s denial of summary disposition i n defendant’s favor. And, because plaintiff failed to present any evidence at trial evidencing th at age was a factor in the decision to terminate her, I would have gran ted defendant’s motion for dire cted verdict.

/s/ Deborah A. Servitto