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Quiros v. Kalitta Flying Service6/3/2003
idence is sufficient to establish a prima facie case of discrimination. Despite the fact that plaintiff lacked the necessary FAA type rating for becoming a Lear Jet captain, the inquiry as to whether he was qualified to become a Lear Jet captain should not stop there. Plaintiff asserted that his failure to obtain the necessary rating was due both to defendant's failure to provide him the necessary training and the intolerable working conditions that forced him to leave the company. As our Supreme Court has stated in regard to the establishment of a prima facie case, "the facts will necessarily vary in discrimination cases. Thus, the elements of the McDonald Douglas prima facie case should be tailored to fit the factual situation at hand." Hazle v Ford Motor Co, 464 Mich 456, 463 n 6; 628 NW2d 515 (2001).
Here, the evidence established that plaintiff was otherwise qualified as a pilot, and that plaintiff's qualification for the Lear Jet position, i.e. plaintiff's advancement, was directly dependent upon the very training that plaintiff did not receive. There was also evidence in the record to establish that plaintiff did not receive the necessary training for advancement because of the discriminatory animus of defendant. On this unique set of facts, I would find that plaintiff has established a prima facie case of discrimination and that the case was properly submitted to the jury for decision. To conclude otherwise, in my judgment, results in consequences clearly unintended by Title VII and the ELCRA: an employer can withhold from its employees, in a discriminatory manner, the very training opportunities necessary to qualify for promotion, yet avoid liability for discriminatory failure to promote on the basis that the plaintiff was not qualified for promotion.
Although not addressed by the majority, I would also reject defendant's claim that the trial court lacked jurisdiction to consider plaintiff's asserted defense that he was constructively discharged, because the exhibits necessary to resolve this issue were not a part of the record below, and our review is limited to the record developed by the trial court. Harkins v Dep't of Natural Resources, 206 Mich App 317, 323; 520 NW2d 653 (1994). Additionally, I would reject defendant's contention that judgment notwithstanding the verdict was warranted as to the jury's finding that plaintiff was constructively discharged, because there was sufficient evidence presented on this theory to support the jury's verdict. Attard v Citizens Insurance Co, 237 Mich App 311, 320; 602 NW2d 633 (1999).
The record evidence supports the finding of the jury that plaintiff was subjected to discrimination in the workplace. For the reasons articulated above, I cannot join in the majority opinion.
Kurtis T. Wilder
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