Michigan Supreme Court 

# Order

Lansing, Michigan

December 19, 2008 Clifford W. Taylor,
Chief Justice

134328 Michael F. Cavanag h

Elizabeth A. Weave r Marilyn Kell y Maura D. Corriga n KENNETH SCIOTTI, Robert P. Young, Jr. Plaintiff-Appellee, Stephen J. Markman, v SC: 134328 J ustices COA: 266160; 267887 Wayne CC: 03-327602-CD 36 th DISTRICT COURT, Defendant-Appellant, and

CITY OF DETROIT, Defendant.

________________ _________________________/

On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we VA CATE our order of April 30, 2008. The applica tion for leave to appeal the May 22, 2007 judgment of the Court of Appeals is DENIED, because we ar e no longer persuaded that the questions presented should be revi ewed by this Court.

K ELLY , J. ( concurring ).

I concur in the Court’s order denying defe ndant’s application fo r leave to appeal. I write separately, however, to respond to Justice Markman’s so mewhat conclusory assertions, which omit material facts that otherwise demonstrate that plaintiff has sustained his burden of proof in this case.

I. Factual Background and Procedural History

Plaintiff, a Caucasian male, began working for defendant 36 th District Court in 1979 as a file clerk. He received two automatic promotions in 1983, and in the same year, received a bachelor’s degree in ma nagement from Wayne State University. Defendant offered plaintiff anot her promotion in 1986, but pl aintiff declined because it involved a pay reduction. Pl aintiff alleged that from that time forward, he regularly applied for promotions but failed to receive one. In 1993, he filed a discrimination suit against defendant and was thereafter offered a promotion. According to plaintiff, since 1995, he has applied for eight supervisory positions: probation supervisor in March 1998,2

March 1999, and March 2002; central records supervisor in June 2002; three court services supervisor positions in 2002; and a position in jury se rvices in July 2003. He was denied each position, leading to the in stant reverse race discrimination suit filed under the Civil Rights Act 1 (CRA).

At trial, plaintiff alleged that all th e individuals promoted ahead of him were African-Americans. Specifically, he pres ented evidence that since 1999, all 18 individuals promoted to open positions were African-American and that, in 24 years, there was only one white supervisor of the probation department. Additionally, he presented evidence that 13 of 14 supervisors in the civil/real estate division were AfricanAmericans and that all 14 supervisors in th e criminal/traffic department were AfricanAmericans.

Plaintiff’s claims were tried before a ju ry. At the close of plaintiff’s proofs, defendant moved for a directed verdict, and the trial judge to ok the motion under advisement. While a ruling on the motion rema ined pending, the jury found in favor of plaintiff, determining that race was one of the motives or reasons that made a difference

in the determination to not promote plaintiff or that defendant had retaliated against plaintiff. The jury awarded pl aintiff $424,000, and the tria l court subseque ntly granted plaintiff’s motion for attorney fees. The trial judge denied de fendant’s motion for a directed verdict or judgment no twithstanding the verdict (JNOV).

Defendant appealed, challe nging the substantive rulings on liability and the fee award. In an unpublished opinion per curiam , the Court of Appeals affirmed defendant’s liability under the CRA, but reversed on the retaliatory discharge claim, holding that plaintiff failed to produce suffici ent evidence to su stain the claim.

We initially granted leave to determine whether plain tiff produced sufficient evidence in support of his discrimination claims.

II. Analysis

A. Legal Background

The CRA 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 individu al with respect to employment,

1 MCL 37.2201 et seq

.3

compensation, or a term, conditi on or privilege of employment, because of religion, race , color, national origin, age, sex, height, weight, or marital status. [2]

Thus, the CRA clearly prohibits employers from discriminating on the basis of race.

In Hazle v Ford Motor Co

, 3 this Court examin ed the law relative to establishing a prima facie case of discrimination under th e CRA. The Court not ed that, in some discrimination cases, a plaintiff is able to pro duce direct evidence of racial bias. In those cases, a plaintiff can prove unlawful discri mination in the same manner as a plaintiff would prove any other case. 4 In many cases, however, the Court recognized that there is no direct evidence of impermissi ble bias. In such cases, in order to survive a motion for summary disposition, a plaintiff must proc eed through the burden -shifting framework expounded in McDonnell Douglas Corp v Green

. 5

Under McDonnell Douglas , a plaintiff must first offer a prima facie case of discrimination. Thus, a plain tiff is required to present evid ence that (1) he belongs to a protected class; (2) he suffered an adverse employment action; (3) he was qualified for the position; and (4) the job was given to an other person under circumstances giving rise

to an inference of unlawful discrimination. 6 If a plaintiff establishes a prima facie case of unlawful discrimination through circumstantial evidence, the burden th en shifts to the defendant-employer to articulate a legitimat e nondiscriminatory justification for its employment decision. 7 In order to survive a moti on for summary disposition or a directed verdict, a plaintiff need only cr eate a question of material fact upon which reasonable minds could differ regarding whether discrimination was a motivating factor in the employer’s decision. 8

Therefore, with respect to the McDonnell Douglas factors, plaintiff was required to show first that he belongs to a protected cl ass. Defendant did not contest this showing.

2 MCL 37.2202(1)(a) (emphasis added).

3 Hazle v Ford Motor Co , 464 Mich 456 (2001).

4 Id . at 462.

5 Id ., citing McDonnell Douglas Corp v Green , 411 US 792 (1973).

6 McDonnell Douglas, supra at 802.

7 Id

.

8 Hazle

, supra at 466.4

Second, plaintiff must show that he suffere d an adverse employment action. Again,

defendant did not contest that the decision not to promote pl aintiff constitutes an adverse employment action. Third, plai ntiff must show that he wa s qualified for the positions in question. Fourth, he must show that the job was given to another person under circumstances giving rise to an inference of unlawful discrimination. Consequently, the third and fourth elements of a prima facie case of discrimination are the subject of this appeal.

B. Application

On the basis of the aforementioned framework for analyzing discrimination claims, I believe that plaintiff has presented sufficient evidence for a reasonable jury to

conclude that it is more likel y than not that defendant’s failure to promote plaintiff

included an element of racial discrimination.

1. 1998/1999 Probation Supervisor Position

Plaintiff concedes that he cannot establish a prima fa cie case of discrimination for these positions.

2. May 2002 Proba tion Supervisor Position

Plaintiff alleged that he was qualified fo r this position because he had the requisite bachelor’s degree. He also had the required two to five years of experience working as a probation officer. Plaintiff furt her alleged that he received hi gher scores in his interview

than the chosen candidate. Plaintiff also o ffered evidence that the chosen candidate was selected before the interview process began.

3. June 2002 Central Records Supervisor Position

Plaintiff alleged that he was qualified fo r this position because he had the requisite bachelor’s degree. He had also worked w ith court records through out his lengthy tenure

with defendant. Defendant ev en granted plaintiff an interv iew for the position, indicating that defendant believed plaintiff met the minimum qualifications for the position. Plaintiff further alleged that the chosen ca ndidate received dismal performance reviews and that he failed to properly answer questi ons on a computer as a required part of the interview process, yet he was hired nonetheless.

4. 2002 Clerical Services II Position

Plaintiff alleged, and defe ndant does not contest, that plaintiff met the education and work experience requirements for the position. Defendant contends that plaintiff was unqualified because he was not a member of the Government Administrators Association5

(GAA). However, the chosen candidate, the only GAA member who applied, was also unqualified because she did not meet the education requirement at the time of the hiring. Accordingly, plaintiff alleged that the position should have been opened to non-GAA members, including plaintiff, as was custom ary when GAA members do not apply for a position.

5. 2002 Court Services II Positions

Plaintiff alleged that he met the educa tional and work experience requirements for the positions and was therefore qualified. The candi date chosen for one of the positions

did not work for defend ant before being hired and theref ore did not meet the requirement that the applicant have five to eight years of experience in court room operations. She also lacked seniority with th e court. The candidate chosen for the second position also lacked the minimum work expe rience within the co urt and was thus un qualified, but was

selected nonetheless.

6. 2003 Jury Services Supervisor

Plaintiff concedes that he cannot establish a prima fa cie case of discrimination for this position.

But for the probation supervisor and jury services supervisor positions, plaintiff alleged that he was qualified for the relevant positions and that the jobs were given to

other candidates under circumstances in which a reasonable juror could find gave rise to an inference of discrimination. Thus, the burden shifted to defendant to articulate a legitimate nondiscriminatory reason for its hi ring decisions. Defe ndant did so in an attempt to rebut each of plaintiff’s claims. A ccordingly, the jury was left with a question

of material fact on which reasonable minds could differ regarding whether discrimination was a motivating factor in defendant’s decisions.

Having established a prima facie case, th e question therefore becomes whether the trial court should have granted a directed verdict or JNOV to defendant. Directed verdicts and JNOVs are granted only in limited circumstances. 9 This Court reviews motions for a directed verdict or JNOV by dr awing all legitimate fact ual inferences in the light most favorable to the nonmoving party. 10 Such motions may be granted on some or all of the issues presented if a verdict is against the great weight of the evidence. 11 A

9 See MCR 2.611(A).

10 Wilkinson v Lee , 466 Mich 388, 391 (2000).

11 MCR 2.611(A)(1)(e).6

verdict is against the great weight of the evidence if the evidence preponderates so heavily against the verdic t that it would be a miscarriage of justice to allow the verdict to

stand. 12 If the evidence conflicts, the issue of credibility ordinarily should be left with the

trier of fact. 13

Here, viewing the evidence in a light most favorable to plaintiff and granting every reasonable inference to plainti ff, defendant has failed to esta blish a right to relief. As alleged, plaintiff set forth a prima facie case , which defendant then rebutted with claims that its hiring decisions were nondiscriminatory. This create d a question of fact on which reasonable minds could differ. The jury rendered a verdict for plaintiff, and I believe the

verdict must stand. A verdict shou ld not be overturned if there is an interpretation of the evidence that provides a logical e xplanation for the jury’s findings. 14 I believe that the evidence can be interpreted so as to uphold the jury’s findings. 15

12 People v Musser , 259 Mich App 215 , 218-219 (2003).

13 People v Lemmon , 456 Mich 625, 642-643 (1998).

14 Granger v Fruehauf Corp , 429 Mich 1, 7 (1987).

15 In his dissenting statement, Justice Mark man sets forth defendant’s arguments about why its hiring decisions were nondiscriminatory. However, Justice Markman ignores the fact that these arguments, used to rebut pl aintiff’s prima facie claim that defendant’s reasons were a pretext for discrimination, merely created a questi on of fact on which

reasonable minds could differ. Because the jury, not Justice Markman, was the trier of fact in this case, I be lieve that the jury’s ve rdict must stand. Indeed, the facts disfavoring plaintiff’s discrimination claims, which Jus tice Markman references, merely support my position that reasonable minds coul d differ in interpreting the evid ence presented at trial.

Justice Markman is free to credit the testim ony of whomever he wishes. However, his role as an appellate judge precludes hi m from substituting his interpretation of the

evidence for that of the jury.

Justice Markman also asserts that th e Court of Appeals erred in relying on plaintiff’s “statistical” evidence. This assertion is somewhat tangential to the dispositive subject of this appeal—whether plaintiff set forth a prima facie case of discrimination. Nonetheless, plaintiff did not re ly solely on “statistical” eviden ce in support of his claim. Rather, plaintiff introduced testimony of a cowo rker that defendant made hiring decisions without considering all applicants, offered evidence that he was treated poorly by defendant’s human resources department, and evidence that he was more qualified than

chosen candidates and was de nied promotions despite th ese qualifications. Justice Markman dismisses this evidence as “wholly irrelevant.” Whil e he may question the credibility of the evidence, the jury apparently did not. It is worth repeating that this Court’s mere disagreement with the factual findings of the jury is not grounds for7

III. Conclusion

I concur in the Court’s decision to de ny defendant’s application for leave to appeal. Plaintiff established a prima facie case of discrimination and defendant, although offering nondiscriminatory reasons for its hiring decisions, faile d to persuade the jury that it did not discriminate against plaintiff. Accordi ngly, defendant is not entitled to relief, and the jury’s verdict must stand.

Y OUNG , J. ( concurring ).

I concur in the Court’s decision to deny the application for leave to appeal because

the defendant is not entitled to the relief it seeks. The tr ial court did not abuse its discretion by admitting the lay opinion te stimony of the defenda nt’s former human resources administrator, and the defendan t did not request any limiting instruction concerning her testimony. The defendant also acquiesced in the jury’s consideration of the plaintiff’s “sta tistical evidence.” 16 Although the defendant may have had a legal basis for excluding the “statistical evid ence” as incompetent to establish an inference of racial discrimination, 17 such evidence was prop erly before the jury in the absence of an objection by the defendant. Finally, in agre eing on a general verdict, the defendant waived any right to have the jury indivi dually assess each contested promotional decision. Therefore, the jury did not n eed to specify which of the defendant’s promotional decisions violat ed the ban on racial discri mination in MCL 37.2202(1)(a).

Given the evidence properly before it, a re asonable jury could have found that at least one of the defendant’s adverse promoti onal decisions violated the ban on racial discrimination in MCL 37.2202(1)(a). Accordingl y, I concur in this Court’s decision to

granting a motion for a directed verdict or JN OV. And, even if th e statistical evidence were insufficient standing alone, plainti ff introduced sufficient other evidence of

discrimination from which a reasonable mind co uld infer an element of discrimination.

16 The plaintiff submitted evidence indicating that 13 of the 14 supe rvisory positions in

the civil and real estate divisi ons were held by African-Amer icans, that all 14 supervisory positions in the criminal and traffic division s were held by African -Americans, and that all 18 supervisory positions filled since 1999 were fille d with African-Americans.

17 The data that the plaintiff in troduced fails to indicate the ra cial makeup of the applicant pool for individual supervisor positions that the defendant f illed. Absent that point of comparison, the data itself ha s little probative value in dete rmining whether the defendant discriminated against the plainti ff on account of his race. See Pippin v Burlington

Resources Oil & Gas Co , 440 F3d 1186, 1197-1198 (CA 10, 2006).8

deny the application for leav e to appeal. The courts below correctly denied the defendant’s motion for a judgment notwithstanding the verdict.

T AYLOR , C.J., and C ORRIGAN , J., join the statement of Y OUNG , J.

M ARKMAN , J. ( dissenting ).

In this “reverse discrimination” case, the jury awarded plai ntiff $424,000. The

trial court denied defendant’ s motion for a judgment notw ithstanding the verdict (JNOV), and the Court of Appeals affirmed. This Court then grante d leave to appeal.

In Lind v Battle Creek, 470 Mich 230 (2004), we held that a reverse discrimination plaintiff must satisfy the same standards requi red of other discrimina tion plaintiffs. In Hazle v Ford Motor Co, 464 Mich 456, 462 (200 1), we held that if there is no direct evidence of discrimination, th e plaintiff may “‘present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination.’” (Citation omitted; emphasis in the original.) In order to establish a prima facie case of discrimination, the plaintiff must present evidence that:

(1) [he or] she belongs to a protec ted class, (2) [h e or] she suffered an adverse employment action, (3) [he or] she was qu alified for the position, and (4) the job was given to another person under circumstances giving rise to an inference of unlawful discrimination. [ Id. at 463.]

“[O]nce a plaintiff establishes a prima facie case of discrimination, . . . the defendant has the burden of producing eviden ce that its employment actions were taken for a legitimate, nondiscriminatory reason.” Id. at 464. “If the employer makes such an articulation, the presumption created by th e . . . prima facie case drops away.” Id. at 465. “At that point, . . . the plaintiff must demonstrate that the evidence in the case, when construed in the plaintiff’s fa vor, is ‘sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff.’” Id . (citation omitted). In other words, the plaintiff must demonstrate that the employer’s nondiscrimin atory reason was a “‘pretext for [unlawful]

discrimination.’” Id. at 466 (citation omitted).

In the instant case, plaintiff has failed, in my judgment, to establish a prima facie

case of discrimination. Even assumi ng that the first three elements of Hazle are satisfied, plaintiff has presented absolutely no evidence to establish th at the positions were given to other persons “under circumstances givi ng rise to an inference of unlawful

discrimination.” Id. at 463. Even assuming that plai ntiff had established a prima facie case of discrimination, defendant has pro duced “evidence that its employment actions were taken for a legitimate, nondiscriminatory reason.” Id. at 464. In response, the9

plaintiff has failed to demonstrate that de fendant’s nondiscriminatory reasons were a mere “‘pretext for [unlaw ful] discrimination.’” Id. at 466 (citation omitted). 18

Between 1998 and 2003, plaintiff unsu ccessfully applied for eight different supervisory positions. He is Caucasian and a ll of the successful candidates were AfricanAmericans.

(1) In 1998, defendant pos ted an opening for a Proba tion Supervisor. This position was not f illed in 1998. Plaintiff doe s not argue that defendant ’s failure to fill this position in 1998 was the result of racial discrimination.

(2) The Probation Supervis or position was re-posted in 1999, and the position was filled by somebody who had 10 more years of e xperience as a probation officer. Plaintiff now concedes that he cannot prove discri mination with regards to this promotion

decision.

(3) The second Probation Supervisor position was filled by a person who had three more years of experience as a probation offi cer, two more years of experience working for the court, had the preferred bachelor’s de gree in psychology, soci al work, or a related field, and had been the interim probation supe rvisor for the preceding seven months. In addition, this person appeared for her interv iew with a portfolio of her accomplishments and an action plan for improve ments in the probation depart ment, while plaintiff brought nothing like this to his interview. In fa ct, when applying for this position, plaintiff submitted a two-page resume acco mpanied by a letter that mere ly stated, “I am qualified for this position because I have 25 years of court experience.” 19

(4) The Central Records Supervisor position was f illed by a person who had worked as a clerk in the records department fo r four years and as a senior clerk in that

18 Even assuming that plai ntiff is entitled to a pres umption of discrimination, the Court of Appeals, contrary to the test set forth in Hazle, failed to even consider whether defendant rebutted this presumption.

19 Justice Kelly’s concurrence: (a) relies on the fact that plaintiff had a bachelor’s degree, but ignores the fact that the person who received the promotion had the preferred bachelor’s degree in “psycholo gy, social work, counseling, or a related field”; (b) relies on the fact that plaintiff had seven years of experience working as a probation officer, but ignores the fact that the pe rson who received the promotion had 10 years of experience working as a probation officer; and (c) relies on the fact that plaintiff received higher scores in his interview, but ignores the fact that this higher score was received in 1999, three years before the 2002 promotion de cision, and that, in 2002, the person who received the promotion earned an interview sc ore that was almost twice as high as plaintiff’s.10

department for one year. Plaintiff had no expe rience in records. In addition, the person who was hired had made proposals for procedur al changes in the reco rds department that were later implemented by the records depart ment, he had prepared for his interview by researching court records storage techniques used in other states and by drafting a mission statement for the records department, and he presented this information to the interview panel in what was viewed as a professional manner us ing a display board. 20

(5) Plaintiff was not eligible for the Clerical Services Supervisor II position

because he was not a member of the Government Administra tors Association (GAA), as only supervisors are members of the GAA. Plaintiff had the opportunity to become a member of the GAA, but turned this down because it would have involved a pay reduction. Plaintiff admitted that other ap plicants, including Afri can-Americans, who were not GAA members were not eligible for this promotion either. 21

(6) Plaintiff was also not eligible for the Jury Services Supervisor position because

he was not a member of the GAA. Plain tiff now concedes that he cannot prove discrimination with regard to the Ju ry Services Supervisor position.

(7) The first Court Services Supervis or II position was filled by somebody who

had been the Assistant to the Chief Administrative Officer for the City of Detroit, had six

20 The concurrence: (a) relies on the fact that plaintiff had wo rked with cour t records, but ignores the fact that the person who receive d the promotion worked as a clerk in the records department for four years and as a se nior clerk in that department for one year and that plaintiff had never wo rked in the records departmen t; and (b) relies on the fact that the person who received th e promotion had received ne gative performance reviews, but ignores the fact that these negative reviews occurred several years before the pertinent promotion decision and that in th e meantime this person had proposed changes in the records department that were subseque ntly implemented by the department and that he was especially well pr epared for his interview.

21 The concurrence: (a) states that the person who received th is promotion di d not have a bachelor’s degree at the time of hiring, wh ile failing to acknowledge that defendant’s human resource generalist testified that the person who received the promotion did have a bachelor’s degree; (b) fa ils to recognize that plaintiff’s only evidence th at the person who received the promotion did not have a bachelor’s degree in 2002 was that in 2000 she indicated that she was in her second year in college, yet does not explain why this means

that she did not have her bachelor’s degree in 2002; an d (c) fails to acknowledge that plaintiff admits that there is no question th at this person curren tly has a bachelor’s degree.11

years of experience with de fendant as the in-h ouse counsel coordinator, and had two more years of experien ce working for defendant. 22

(8) The second Court Services Supervis or II position was filled by somebody with over 20 years of management ex perience, a bachelor’s degree, and excellent references. Plaintiff has no management experience. 23

For the above reasons, I believe that defendant has presented a race-neutral rationale for each of its decisions. In response, plaintiff has failed to provide any

evidence that these reasons were me rely a pretext for discrimination.

Moreover, the Court of Appeals seriously erred in relying on plaintiff’s supposed “statistical” evidence of racial discrimination. Plaintiff here has merely submitted

evidence that most of defendan t’s supervisors are African-Americans, a not particularly surprising result in light of th e racial composition of the overa ll 36th District Court work force and of the surrounding comm unity served by that court. Most tellingly, plaintiff has submitted no evidence regarding how ma ny non-African-Ameri cans applied for any of these supervisory positions. Without knowing whether there were non-AfricanAmericans who applied for a given position, the fact that an African-American received the position can hardly be view ed as evidence of discrimina tion. To view plaintiff's

“statistical” evidence as releva nt under these circumstances is to accept the premise that employment numbers ought to reflect certain racial proportions. I do not accept this premise in minority discrimination lawsuits , and I do not accept this in “reverse

discrimination” lawsuits. Absent direct or circumstantial evid ence, it is simply impossible to determine whether an employe r has engaged in unlawful discrimination against either African-Americans or non-A frican-Americans without at least knowing how many African-Americans and how many non-African-Americans applied for a particular position. One simply cannot infer racial discrimination from the mere fact that a disproportionate number of defendant’s s upervisors are of one race or another. 24

22 The concurrence states that the person who received the positi on was “unqualified,” but completely ignores th e above-described qualifications of this person.

23 The concurrence relies on the fact that the person who receiv ed the position had no experience in courtroom operations and no seniority with the court, but ignores the fact that while plaintiff had no management experience of any kind, the person who received the position had over 20 years of management experience.

24 That defendant did not affirmatively obje ct to the admission of this “statistical” evidence is not particularly re levant because the issue here is not whether the evidence was admissible; rathe r, it is whether the Court of Appeals erred in relying on this evidence to justify its affirman ce of the trial court’s denial of defendant’s JNOV motion._______________________________________ __ __________ ___________ 12

The concurrence states that this issue is “tangential to the dispositive subject of this appeal—whether plaintiff set forth a prima facie case of discrimination.” Ante at 6 n

15. However, contrary to her contention, the i ssue here is not merely whether plaintiff set forth a prima facie case of discrimination. Although the concurrence admits that defendant presented a race-neutral rationale for each of its decisions, it fails to recognize the legal significance of this assertion. Th at is, she fails to recognize that once the defendant presents nondiscrimi natory reasons for its deci sions, “the presumption of discrimination created by plaintiff’s prima fa cie case dropped away , and the burden of production returned to plainti ff to show the existence of ev idence ‘sufficient to permit a

reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff.’” Hazle, supra at 473 (citation omitted). The Court of Appeal s concluded that plaintiff sa tisfied this burden because plaintiff presented evidence th at he was more qualified than some of the individuals who were hired to fill the positions that he sought and because plaintiff presented “statistical” evidence to support his claim of discrimina tion. As discussed earlier, I do not believe that plaintiff presented evid ence that he was more qualifie d than the individuals who secured the positions for which plaintiff a pplied. Therefore, whether the Court of Appeals erred in relying on plaintiff’s “sta tistical” evidence is no t “tangential to the dispositive subject of this appe al.” Rather, it is central.

Because plaintiff has presen ted no evidence of racial discrimination, or even any evidence that one could use to infer that plain tiff was the victim of racial discrimination, I

would reverse.

The concurrence states that “even if th e statistical evidence were insufficient standing alone, plaintiff introduced suffici ent other evidence of discrimination.” Ante at 7 n 15. This “other evidence” is apparen tly the testimony of Nancy Cook, a former coworker. However, C ook admittedly played no role in any promotion decision and her

beliefs about defendant’s exercises in racial discrimination were based on nothing other than her own speculations. Moreover, Co ok did not work for defendant during any of the promotion decisions that are at issue here. Although she worked for defe ndant at the time of the first probation supervisor promotion decision, plaintiff now concedes that he is not able to establish a prima facie case of disc rimination with regard to this promotion decision. For these reasons, Cook’s testimony is wholly irrelevant.

d1216 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

December 19, 2008

Clerk