Order Michigan Supreme Court

Lansing, Michigan 

December 19, 2008 Clifford W. Taylor,

 Chief Justice 

134328 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan KENNETH SCIOTTI, Robert P. Young, Jr. Plaintiff-Appellee, Stephen J. Markman, v SC: 134328 Justices 

 COA: 266160; 267887 

Wayne CC: 03-327602-CD

36th 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 VACATE our order of 

April 30, 2008. The application for leave to appeal the May 22, 2007 judgment of the 

Court of Appeals is DENIED, because we are no longer persuaded that the questions 

presented should be reviewed by this Court. 

KELLY, J. (concurring). 

I concur in the Court’s order denying defendant’s application for leave to appeal. 

I write separately, however, to respond to Justice Markman’s somewhat 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 36th 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 management from Wayne State University. 

Defendant offered plaintiff another promotion in 1986, but plaintiff declined because it 

involved a pay reduction. Plaintiff 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 services in July 2003. He 

was denied each position, leading to the instant reverse race discrimination suit filed 

under the Civil Rights Act1

 (CRA). 

At trial, plaintiff alleged that all the individuals promoted ahead of him were 

African-Americans. Specifically, he presented 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 the criminal/traffic department were AfricanAmericans. 

Plaintiff’s claims were tried before a jury. At the close of plaintiff’s proofs, 

defendant moved for a directed verdict, and the trial judge took the motion under 

advisement. While a ruling on the motion remained 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 plaintiff $424,000, and the trial court subsequently granted 

plaintiff’s motion for attorney fees. The trial judge denied defendant’s motion for a 

directed verdict or judgment notwithstanding the verdict (JNOV). 

 Defendant appealed, challenging 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 sufficient evidence to sustain the claim. 

We initially granted leave to determine whether plaintiff 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 individual with respect to employment, 

1

 MCL 37.2201 et seq. 
 

3 

compensation, or a term, condition 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 examined the law relative to establishing a 

prima facie case of discrimination under the CRA. The Court noted that, in some 

discrimination cases, a plaintiff is able to produce direct evidence of racial bias. In those 

cases, a plaintiff can prove unlawful discrimination 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 impermissible bias. In such cases, in order to survive a motion for 

summary disposition, a plaintiff must proceed 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 plaintiff is required to present evidence 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 another 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 then shifts to the 

defendant-employer to articulate a legitimate nondiscriminatory justification for its 

employment decision.7

 In order to survive a motion for summary disposition or a 

directed verdict, a plaintiff need only create 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 class. 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 suffered an adverse employment action. Again, 

defendant did not contest that the decision not to promote plaintiff constitutes an adverse 

employment action. Third, plaintiff must show that he was 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 likely 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 facie case of discrimination for 

these positions.

 2. May 2002 Probation Supervisor Position 

Plaintiff alleged that he was qualified for 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 further alleged that he received higher scores in his interview 

than the chosen candidate. Plaintiff also offered 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 for this position because he had the requisite 

bachelor’s degree. He had also worked with court records throughout his lengthy tenure 

with defendant. Defendant even granted plaintiff an interview for the position, indicating 

that defendant believed plaintiff met the minimum qualifications for the position. 

Plaintiff further alleged that the chosen candidate received dismal performance reviews 

and that he failed to properly answer questions 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 defendant 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 Association 
 

 

 

5 

(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 customary when GAA members do not apply for a 

position. 

5. 2002 Court Services II Positions 

Plaintiff alleged that he met the educational and work experience requirements for 

the positions and was therefore qualified. The candidate chosen for one of the positions 

did not work for defendant before being hired and therefore did not meet the requirement 

that the applicant have five to eight years of experience in court room operations. She 

also lacked seniority with the court. The candidate chosen for the second position also 

lacked the minimum work experience within the court and was thus unqualified, but was 

selected nonetheless. 

6. 2003 Jury Services Supervisor 

Plaintiff concedes that he cannot establish a prima facie 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 hiring decisions. Defendant did so in an 

attempt to rebut each of plaintiff’s claims. Accordingly, 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, the 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 drawing all legitimate factual 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 verdict 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 plaintiff, defendant has failed to establish 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 created 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 should not be overturned if there is an interpretation of the 

evidence that provides a logical explanation 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 Markman sets forth defendant’s arguments about 

why its hiring decisions were nondiscriminatory. However, Justice Markman ignores the 

fact that these arguments, used to rebut plaintiff’s prima facie claim that defendant’s 

reasons were a pretext for discrimination, merely created a question of fact on which 

reasonable minds could differ. Because the jury, not Justice Markman, was the trier of 

fact in this case, I believe that the jury’s verdict must stand. Indeed, the facts disfavoring 

plaintiff’s discrimination claims, which Justice Markman references, merely support my 

position that reasonable minds could differ in interpreting the evidence presented at trial. 

Justice Markman is free to credit the testimony of whomever he wishes. However, his 

role as an appellate judge precludes him from substituting his interpretation of the 

evidence for that of the jury. 

Justice Markman also asserts that the 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 rely solely on “statistical” evidence in support of his claim. 

Rather, plaintiff introduced testimony of a coworker 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 denied promotions despite these qualifications. Justice 

Markman dismisses this evidence as “wholly irrelevant.” While 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 for 
 

7 

III. Conclusion 

I concur in the Court’s decision to deny 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, failed to persuade the jury that 

it did not discriminate against plaintiff. Accordingly, defendant is not entitled to relief, 

and the jury’s verdict must stand. 

YOUNG, 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 trial court did not abuse its 

discretion by admitting the lay opinion testimony of the defendant’s former human 

resources administrator, and the defendant did not request any limiting instruction 

concerning her testimony. The defendant also acquiesced in the jury’s consideration of 

the plaintiff’s “statistical evidence.”16 Although the defendant may have had a legal basis 

for excluding the “statistical evidence” as incompetent to establish an inference of racial 

discrimination,17 such evidence was properly before the jury in the absence of an 

objection by the defendant. Finally, in agreeing on a general verdict, the defendant 

waived any right to have the jury individually assess each contested promotional 

decision. Therefore, the jury did not need to specify which of the defendant’s 

promotional decisions violated the ban on racial discrimination in MCL 37.2202(1)(a). 

Given the evidence properly before it, a reasonable jury could have found that at 

least one of the defendant’s adverse promotional decisions violated the ban on racial 

discrimination in MCL 37.2202(1)(a). Accordingly, I concur in this Court’s decision to 

granting a motion for a directed verdict or JNOV. And, even if the statistical evidence 

were insufficient standing alone, plaintiff introduced sufficient other evidence of 

discrimination from which a reasonable mind could infer an element of discrimination. 

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

the civil and real estate divisions were held by African-Americans, that all 14 supervisory 

positions in the criminal and traffic divisions were held by African-Americans, and that 

all 18 supervisory positions filled since 1999 were filled with African-Americans. 

17 The data that the plaintiff introduced fails to indicate the racial makeup of the applicant 

pool for individual supervisor positions that the defendant filled. Absent that point of 

comparison, the data itself has little probative value in determining whether the defendant 

discriminated against the plaintiff 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 leave to appeal. The courts below correctly denied the 

defendant’s motion for a judgment notwithstanding the verdict. 

TAYLOR, C.J., and CORRIGAN, J., join the statement of YOUNG, J. 

MARKMAN, J. (dissenting). 

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

trial court denied defendant’s motion for a judgment notwithstanding the verdict (JNOV), 

and the Court of Appeals affirmed. This Court then granted leave to appeal. 

In Lind v Battle Creek, 470 Mich 230 (2004), we held that a reverse discrimination 

plaintiff must satisfy the same standards required of other discrimination plaintiffs. In 

Hazle v Ford Motor Co, 464 Mich 456, 462 (2001), we held that if there is no direct 

evidence of discrimination, the 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 protected class, (2) [he or] she suffered 

an adverse employment action, (3) [he or] she was qualified 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 evidence 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 the . . . 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 favor, 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 nondiscriminatory 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 assuming that the first three elements of Hazle are satisfied, 

plaintiff has presented absolutely no evidence to establish that the positions were given to 

other persons “under circumstances giving rise to an inference of unlawful 

discrimination.” Id. at 463. Even assuming that plaintiff had established a prima facie 

case of discrimination, defendant has produced “evidence that its employment actions 

were taken for a legitimate, nondiscriminatory reason.” Id. at 464. In response, the 
 

9 

plaintiff has failed to demonstrate that defendant’s nondiscriminatory reasons were a 

mere “‘pretext for [unlawful] discrimination.’” Id. at 466 (citation omitted).18 

Between 1998 and 2003, plaintiff unsuccessfully applied for eight different 

supervisory positions. He is Caucasian and all of the successful candidates were AfricanAmericans. 

(1) In 1998, defendant posted an opening for a Probation Supervisor. This 

position was not filled in 1998. Plaintiff does not argue that defendant’s failure to fill this 

position in 1998 was the result of racial discrimination. 

(2) The Probation Supervisor position was re-posted in 1999, and the position was 

filled by somebody who had 10 more years of experience as a probation officer. Plaintiff 

now concedes that he cannot prove discrimination 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 officer, two more years of experience working 

for the court, had the preferred bachelor’s degree in psychology, social work, or a related 

field, and had been the interim probation supervisor for the preceding seven months. In 

addition, this person appeared for her interview with a portfolio of her accomplishments 

and an action plan for improvements in the probation department, while plaintiff brought 

nothing like this to his interview. In fact, when applying for this position, plaintiff 

submitted a two-page resume accompanied by a letter that merely stated, “I am qualified 

for this position because I have 25 years of court experience.”19 

(4) The Central Records Supervisor position was filled by a person who had 

worked as a clerk in the records department for four years and as a senior clerk in that 

18 Even assuming that plaintiff is entitled to a presumption 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 “psychology, 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 person 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 decision, and that, in 2002, the person who 

received the promotion earned an interview score that was almost twice as high as 

plaintiff’s. 
 

 

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department for one year. Plaintiff had no experience in records. In addition, the person 

who was hired had made proposals for procedural changes in the records department that 

were later implemented by the records department, 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 using 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 Administrators 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 applicants, including African-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. Plaintiff now concedes that he cannot prove 

discrimination with regard to the Jury Services Supervisor position. 

(7) The first Court Services Supervisor 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 worked with court records, but 

ignores the fact that the person who received the promotion worked as a clerk in the 

records department for four years and as a senior clerk in that department for one year 

and that plaintiff had never worked in the records department; and (b) relies on the fact 

that the person who received the promotion had received negative performance reviews, 

but ignores the fact that these negative reviews occurred several years before the 

pertinent promotion decision and that in the meantime this person had proposed changes 

in the records department that were subsequently implemented by the department and that 

he was especially well prepared for his interview. 

21 The concurrence: (a) states that the person who received this promotion did not have a 

bachelor’s degree at the time of hiring, while failing to acknowledge that defendant’s 

human resource generalist testified that the person who received the promotion did have a 

bachelor’s degree; (b) fails to recognize that plaintiff’s only evidence that 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; and (c) fails to acknowledge that 

plaintiff admits that there is no question that this person currently has a bachelor’s 

degree. 
 

 

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years of experience with defendant as the in-house counsel coordinator, and had two 

more years of experience working for defendant.22 

(8) The second Court Services Supervisor II position was filled by somebody with 

over 20 years of management experience, 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 merely 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 defendant’s supervisors are African-Americans, a not particularly 

surprising result in light of the racial composition of the overall 36th District Court work 

force and of the surrounding community served by that court. Most tellingly, plaintiff 

has submitted no evidence regarding how many non-African-Americans 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 viewed as evidence of discrimination. To view plaintiff's 

“statistical” evidence as relevant 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 evidence, it is simply 

impossible to determine whether an employer has engaged in unlawful discrimination 

against either African-Americans or non-African-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 supervisors are of one race or another.24 

22 The concurrence states that the person who received the position was “unqualified,” 

but completely ignores the above-described qualifications of this person. 

23 The concurrence relies on the fact that the person who received 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 object to the admission of this “statistical” 

evidence is not particularly relevant because the issue here is not whether the evidence 

was admissible; rather, it is whether the Court of Appeals erred in relying on this 

evidence to justify its affirmance of the trial court’s denial of defendant’s JNOV motion. 
 _________________________________________ 

 

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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 issue 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. That is, she fails to recognize that once the 

defendant presents nondiscriminatory reasons for its decisions, “the presumption of 

discrimination created by plaintiff’s prima facie case dropped away, and the burden of 

production returned to plaintiff to show the existence of evidence ‘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 Appeals concluded that plaintiff satisfied this burden because 

plaintiff presented evidence that 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 discrimination. As discussed earlier, I do not believe 

that plaintiff presented evidence that he was more qualified than the individuals who 

secured the positions for which plaintiff applied. Therefore, whether the Court of 

Appeals erred in relying on plaintiff’s “statistical” evidence is not “tangential to the 

dispositive subject of this appeal.” Rather, it is central. 

Because plaintiff has presented no evidence of racial discrimination, or even any 

evidence that one could use to infer that plaintiff was the victim of racial discrimination, I 

would reverse. 

The concurrence states that “even if the statistical evidence were insufficient 

standing alone, plaintiff introduced sufficient other evidence of discrimination.” Ante at 

7 n 15. This “other evidence” is apparently the testimony of Nancy Cook, a former 

coworker. However, Cook 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, Cook did not work for defendant during any of the 

promotion decisions that are at issue here. Although she worked for defendant 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 discrimination with regard to this promotion 

decision. For these reasons, Cook’s testimony is wholly irrelevant. 

d1216 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

December 19, 2008 

 Clerk