The Michigan Court of Appeals, in its decision (Hrapkiewiczv WSU Bd of Directors, No, 328215, 330189) affirming two lower court judgments granting money damages and attorney fees in an age discrimination case under the Elliot-Larsen Civil Rights Act (ELCRA. MCL 37.2101), reviews the elements needed to prove an age discrimination case. The dissent by Hon. Debra A. Servitto argues that because age was not discussed by the decision-makers, there was no prima facie case and the lower court decision should be reversed.

FACTS: Karen Hrapkiewicz, age 62, was fired from her positions as Wayne State University Division of Laboratory Animal Resources (DLAR) Director, clinical vet for the animals and course instructor in the Vet Tech program on Feb. 28, 2011. Over the 30 years that Hrapkiewicz had been employed at WSU her work was rated as “excellent,” although her supervisor (Dr. Merlin Ekstrom) acknowledged that she acted disrespectfully towards others at times, had “interpersonal conflicts” with staff at times and was sometimes difficult to supervise.

Ekstrom retired and Dr. Lisa Brossia became Hrapkiewicz’s supervisor in the fall of 2010. Brossia spoke of creating a professional development plan for Hrapkiewicz but never presented it to her. Matters came to a head in Feb. 2011 when Hrapkiewicz allowed students to remain on campus to take an exam on a day the campus was closed due to the weather. This incident combined with other disciplinary matters led to the decision to “separate” Hrapkiewicz from her employment. At the meeting with her, she was offered the opportunity to retire or be fired. She chose to be fired and filed the lawsuit based on age discrimination.

According to Brossia and others involved in the decision, age was never discussed as part of the reasons for termination. Hrapkiewicz’s position as director of DLAR was filed by Susan Dibbley, age 48. Hrapkiewicz admitted in deposition that she wasn’t told that she was being fired due to age, but that Brossia made comments suggestive of age-related animus, specifically that she did things in a “set manner” and was “old school.”

Following a 5-day trial, the lower court upheld the jury decision in response to a motion for a directed verdict by WSU stating that “the Court finds that [Hrapkiewicz] has presented a sufficient amount of testimony to overcome a Motion for Directed Verdict at this time,” further reasoning that it was a question of fact for the jury to determine whether there was evidence of age-related animus.

Hrapkiewicz was awarded $300,000 in past economic damages and costs and attorney fees totaling $265,583.98.

Analysis:

The court began with an analysis of the elements necessary to establish a prima facie case of age discrimination. The plaintiff must prove, by a preponderance of the evidence, that:

• She was a member of the protected class;

• She suffered an adverse employment action;

• She was qualified for the position; and

• She was replaced by a younger person. [Lytle v Malady, 458 Mich 153, 177; 579 NW2d 906 (1998)]

It went on to say that “The final element—replacement by a younger person—is a prima facie element in both workforce reduction cases and those where workforce reduction is not at issue.”

The court said the only prima facie element at issue was #4, that she was replaced by a younger person since she is a member of the protected class because of her age, she suffered an adverse employment action—she was fired and she was qualified for her position since she received “excellent” ratings for 30 years.

The court concluded that because Dibbley was “reassigned” to assume the majority of Hrapkiewicz’s duties, Hrapkiewicz was replaced by a younger person thus satisfying the final element for a prima facie case. It upheld the lower court decision.

The dissent, written by Judge Servitto, referred to a US Supreme Court case McDonnell Douglas Corp v Green, 411 US 792, as a framework for evaluating age-discrimination claims. While agreeing that the first 3 elements of a prima facie case had been met, it was the 4th that was at issue. Under McDonnell Douglass, she argued, it’s not enough that there is a simple age difference, it must be shown that “the job was given to another person under circumstances giving rise to an inference of unlawful discrimination.” This requires the plaintiff to show that age was a factor in her adverse employment decision—that age made a difference in her employer’s decision to fire her. Because Hrapkiewicz didn’t show that age made a difference, Judge Servitto would have granted WSU’s motion for a directed verdict in its favor.

One additional point to consider is the employer’s failure to keep more complete records to support its decision to fire Hrapkiewicz. Had it done so, it could perhaps have avoided the conclusion of age-discrimination.