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Provenzano v. LCI Holdings

April 12, 2010


The opinion of the court was delivered by: Honorable Thomas L. Ludington


On December 29, 2008, this case was removed from Saginaw County Circuit Court on the basis of diversity jurisdiction. In her original complaint, Plaintiff Regina Provenzano alleged that her former employer, Defendant LCI Holdings, Inc., discriminated against her based on age in violation of the Michigan Elliott-Larsen Civil Rights Act ("ELCRA"), Mich. Comp. Laws § 37.2101 et seq. On November 2, 2009, pursuant to leave granted by the Court, Plaintiff filed an amended complaint adding allegations of violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq. Plaintiff's claims arise from Defendant's decision to promote Judy Babcock, a younger employee, and not Plaintiff, to an assistant manager position on April 13, 2008.

Now before the Court is Defendant's motion for summary judgment [Dkt. # 32], filed on January 28, 2010. Plaintiff filed a response [Dkt. # 36] on February 18, 2010; and Defendant filed a reply [Dkt. # 37] on February 25, 2010. The Court has reviewed the parties' submissions and finds that the facts and the law have been sufficiently set forth in the motion papers. The Court concludes that oral argument will not aid in the disposition of the motion. Accordingly, it is

ORDERED that the motion be decided on the papers submitted. E.D. Mich. LR 7.1(e)(2). For the reasons stated below, Defendant's motion for summary judgment will be granted.


Under Rule 56(c), a court must review "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," to conclude that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party bringing the summary judgment motion has the initial burden of informing the court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002).

The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The party who bears the burden of proof must present a jury question as to each element of the claim, Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000), rather than raise only "metaphysical doubt as to the material facts." Highland Capital, Inc. v. Franklin Nat'l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).


Plaintiff was born on September 24, 1958. Plaintiff has a high school diploma and an Associate's degree in retail management. Defendant operates Liz Claiborne Outlet stores throughout the United States. Plaintiff began working for Defendant as a sales associate at its Liz Claiborne Outlet store in Birch Run, Michigan, in September 1997, when she was thirty-nine years old. About two years later, at age forty-two, Plaintiff was promoted to a full-time supervisor position. Plaintiff was promoted by Erica Hall, then an assistant manager acting as the store manager. As a full-time supervisor, Plaintiff performed sales audits, opened boxes, serviced customers, opened and closed the store, took out the trash, and coached sales associates on making sales. Also, Plaintiff testified that throughout her employment with Defendant, she was called upon to travel to assist at other stores that were struggling. She was not responsible for handling payroll, preparing performance evaluations, or scheduling, which were tasks performed by assistant and store managers.

Throughout 2007 and 2008, Defendant underwent a company-wide restructuring based on economic conditions, which resulted in layoffs and required some employees to change positions. Generally, the restructuring was directed at reducing costs and optimizing resources by aligning each store's projected sales volume with employee headcount and a template-based mix of non-supervisory and management positions.

Meanwhile, on April 13, 2008, Judy Babcock, who was thirty-three years old, was promoted to an assistant manager position. By that time, Connie Romanetto, who was sixty-one years old, was the store manager, and Hall was the district manager. Romanetto recommended Babcock for the position and Hall accepted her recommendation. While Plaintiff had worked at the store longer than Babcock, Hall approved the decision because she believed that Babcock satisfied more of the qualifications of an assistant manager than Plaintiff. Hall Tr. 110-11, May 22, 2009. While Babcock did not have a high school diploma and Plaintiff did, a high school diploma was only one of over forty experiences, skills, and attributes expected of a candidate for an assistant manager position, and Hall testified that no one factor weighs more heavily than another. Id. 104-05; Def. Br. Ex. 8 (assistant manager job description).

Specifically, Hall felt that Babcock was a superior candidate because "she got along well with her team members, followed company policies and procedures, had proper communication skills, received positive feedback from employees and customers, was reliable, created displays that were visually appealing, provided good results for the store, and had a positive attitude." Hall. Aff. ¶ 17, Jan. 26, 2010; Hall Tr. 106-07. In addition, Babcock did not have any policy violations or coachings on file. Hall. Aff. ¶ 17. Conversely, Hall felt that Plaintiff's "performance issues, lack of communication skills, and failure to partner with her superiors undermined her promotability." Id.; Hall Tr. 117-20.

Plaintiff had been counseled on more than one occasion about her lack of respect for authority, failure to work as part of a team, and poor oral and written communication skills. Pl. Tr. 31, 34-36, May 8, 2009; Hall Tr. 117-18; Def. Br. Ex. 4 (Plaintiff's disciplinary file). For example, in November 2006, Romanetto issued Plaintiff a "final written warning" for violating Defendant's security policy. Pl. Tr. 45, 47; Def. Br. Ex. 4. Another written note authored by Romanetto indicates that Plaintiff violated the policy again on April 4, 2008. Def. Br. Ex. 4. Plaintiff did not deny the accuracy of the write-ups at the time that they were issued. Pl. Tr. 133-34.

Sometime between summer and October 2008, Plaintiff testified that while working she read and printed a corporate email that provided that the company "was going to turn the stores around to look like 30-something so that the clothes would be geared toward the 30-year-old." Pl. Tr. 71. Plaintiff testified that it was her interpretation of the email that Defendant wanted to "get rid of the younger (sic) people and want to get younger people in there." Id. Another employee, Roselle Sanburn, testified that she read the email and it indicated that Defendant "wanted to try to sell to a younger ...

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