Employment - Discrimination

Where a plaintiff’s claims of discrimination based on age and national origin were dismissed, that was error because the plaintiff’s amended complaint alleged that numerous positions were given to another person under circumstances giving rise to an inference of unlawful discrimination.

“In this case involving alleged violations of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq ., plaintiff appeals by right the trial court’s order partially granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7) (statute of limitations), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

“Plaintiff argues that the trial court erred by determining that his claims for the farm finance position accrued on September 11, 2017. According to plaintiff, his claims accrued when defendants hired the other candidate for the position. We disagree.

“Plaintiff argues that the trial court erred by granting summary disposition on his retaliation counts under MCR 2.116(C)(10) because his ‘declaration’ created a genuine issue of material fact and defendants’ motion was premature prior to the completion of discovery. We disagree, except as to the retaliation claim involving Porter.

“Plaintiff argues that his complaint adequately alleged that he was qualified for the nine positions and that the trial court applied a higher standard than that required under Michigan law. We agree.

“We conclude that plaintiff’s allegations in his first amended complaint were sufficient to withstand challenge under MCR 2.116(C)(8).

“Again, it is the lack of an allegation, not the lack of evidence in support of an allegation, that is fatal under MCR 2.116(C)(8). ... Because plaintiff’s amended complaint alleged that numerous positions were given to another person under circumstances giving rise to an inference of unlawful discrimination, the trial court erred in dismissing plaintiff’s claims of discrimination based on age and national origin under MCR 2.116(C)(8).

“Nevertheless, we affirm the trial court’s dismissal of plaintiff’s age and national-origin discrimination claims against Showerman and Kiley, and resultantly MSU, under MCR 2.116(C)(10).

“Affirmed in part, reversed in part, and remanded for further proceedings as to plaintiff’s counts alleged against Porter and MSU insofar as the allegations against Porter are involved.”

Gardner v. Michigan State Univ.; MiLW 08-108098, 18 pages; Michigan Court of Appeals unpublished per curiam; Garrett, J., Letica, J., Maldonado, J.; on appeal from Ingham Circuit Court; Marc M. Susselman for appellant; Elizabeth Watza for appellee.

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