United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (DKT. 30)
A. GOLDSMITH United States District Judge
an age discrimination case. Plaintiff is Purnima Shrivastava,
now a 64-year-old woman, who alleges that she was subjected
to “derogatory” remarks at work and that her
employment was ultimately terminated by her branch manager,
Alaina Keen, because of her age. Shrivastava claims that this
conduct violated the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. § 621 et
seq., and Michigan's Elliot-Larsen Civil Rights Act
(“ELCRA”), Mich. Comp. Laws § 37.2201 et
seq. Because Shrivastava fails to show a genuine issue
of material fact whether Defendants' proffered
legitimate, non-discriminatory reasons for their decision
were pretexts for discrimination, the Court grants
Defendants' motion for summary judgment (Dkt.
RBS Citizens is a bank that operates retail locations
(“branches”) in Michigan. See Compl.
¶ 6 (Dkt. 1). Defendant Citizens Financial Group is a
holding company, and RBS is its wholly owned subsidiary.
Id. ¶ 7. Shrivastava began her employment with
Defendants in 2002. Id. ¶ 5.
worked as a teller at various branches in Michigan from 2002
until she was involuntarily transferred to the Sterling
Heights branch on March 13, 2013. See Defs.
Statement of Material Facts (“SMF”) ¶ 3; Pl.
Resp. at 1-2. It is undisputed that, as a senior teller at
the Sterling Heights branch, Shrivastava was expected to
provide “quality customer service, ” including
“timely” and “accurate processing of
customer transactions”; “maintain[ ] a high level
of attention to detail”; and consistently adhere to
bank policies and procedures, including those concerning bank
fraud and cash handling. See SMF ¶ 6.
such as Shrivastava also were expected to complete sales
referrals, id., which occur when a teller informs a
customer about a bank product or service (e.g., a checking
account), the teller refers that customer to a personal
banker, and the banker sells that product or service to the
customer, id. ¶ 8. Bankers also had sales
goals, but they were of a different character. See
Pl. Resp. at 2 (citing Keen Dep. 91:12-15 (Dkt. 39-4));
see also note 7, infra. Referrals were a
“high priority” for the bank, and tellers were
expected to achieve 100% of their quarterly referral goals.
Id. ¶ 7.
18, 2013, Keen documented her first customer complaint about
Shrivastava's “lack of customer service.”
Id. ¶ 17. According to that complaint,
Shrivastava had completed the customer's transaction with
minimal interaction and failed to respond to the
customer's questions after the transaction was completed,
and that customer went to another branch to have her
questions answered. See Ex. 1-2 to Keen Decl., Ex. J
to Defs. Mot. at 9, 11 (cm/ecf pages) (Dkt.
determined that Shrivastava did not meet her quarterly
referral goal for Quarter 2 of 2013 (i.e., April, May, and
June of 2013). See SMF ¶ 18. They also
determined that she did not meet her quarterly referral goal
for Quarter 3 of 2013 (i.e., July, August, and September of
2013). See id. ¶ 20.
September 2013, the Sterling Heights branch implemented two
new sets of operating procedures - the Universal Banker Model
(“UBM”) and the BIC Teller System
(“BIC”) - which, respectively, required (i) a
transition from multiple tellers handling customer
transactions to just one primary teller at a given time; and
(ii) a new computer system for processing customer
transactions. See SMF ¶ 13. The transition to
UBM and BIC required tellers to take on new responsibilities,
such as vault and cash management. Id. ¶ 14;
Pl. Resp. at 2; Pl. Dep. At 50:18-51:15.
October 18, 2013, after UBM and BIC were adopted, a customer
complained that Shrivastava was taking too long to process
the transaction and requested a different teller.
See SMF ¶ 21. Around the same time, in October
2013, according to Shrivastava, Keen asked Shrivastava when
she planned to retire. See Pl. Dep. at 79:17-81:1.
Keen asked Shrivastava a similar question a second time, and
Shrivastava believes that this also occurred in 2013.
December 10, 2013, Shrivastava was placed on a Performance
Improvement Plan (“PIP”) for failing to achieve
100% of her quarterly referral goals in Quarters 2 and 3 of
2013, and for not being on pace to achieve 100% of her
Quarter 4 referral goal. See SMF ¶
23.According to Sarah Rudisill, who worked in
Defendants' ER division, a PIP is the first written
warning in Defendants' progressive discipline scheme.
See Rudisill Dep. at 8:16-9:10 (Dkt. 39-7). The PIP
explains that “[o]ver the next 30 days, if you do not
demonstrate immediate and sustained improvement or if other
deficiencies arise, management will continue the Performance
Management Improvement Process, which may result in further
corrective action up to and including termination.”
PIP, Ex. 18 to Pl. Resp. (Dkt. 39-18). Following a PIP, the
next step is a Final Written Warning, followed, typically, by
termination. See Rudisill Dep. at 8:16-9:10.
December 20, 2013, a customer complained that Shrivastava had
tried to credit her $290 deposit as only $265, and that
Shrivastava had taken too long to complete the transaction.
SMF ¶ 24.
failed to meet 100% of her referral goal for Quarter 4 of
2013. Id. ¶ 25. Although Keen stated that
Shrivastava only achieved 25% of her goal in Quarter 4 of
2013, see Keen Dep. at 134:23-25, another document
in the record states that she achieved 57% of her goal in
that quarter, see Teller Balance Scorecard, Ex. 20
to Pl. Resp. (Dkt. 39-20).
January 10, 2014, Shrivastava was given a Final Written
Warning (“FWW”). Id. ¶ 26. The
purported reason for the FWW was Shrivastava's alleged
failure to meet her referral goals in Quarter 4 of 2013 and
not being on pace to achieve 100% of her referral goal for
Quarter 1 of 2014. Id.; see also Pl. Resp.
at 4; FWW, Ex. 31 to Pl. Resp. (Dkt. 39-31). An FWW explains
that “[i]f this deficiency continues, or other
deficiencies arise at any time during this [FWW], you may be
immediately discharged or receive additional
discipline.” FWW, Ex. 31 to Pl. Resp.
either January 2 or January 20, 2014, another customer
complained about Shrivastava's “poor customer
service, ” citing mistakes Shrivastava made in handling
the transaction and requesting that Defendants “get
better tellers.” See SMF ¶ 27 (citing Ex.
5 to Keen Decl., at 17 (cm/ecf page)); Pl. Resp. at 4. On
January 21, 2014 and January 24, 2014, two customers
complained that Shrivastava deposited their money into the
wrong accounts. See SMF ¶ 28 (citing Exs. 6-7
to Keen Decl., Ex. J to Defs. Mot. at 19, 21 (cm/ecf pages)).
January 28, 2014, Shrivastava was placed on Final Written
Warning Extension status (“FWWE”). See
SMF ¶ 30; see also FWWE, Ex. 15 to Pl. Resp.
(Dkt. 39-15). As discussed fully infra, an FWWE
supplements an existing FWW without subjecting the employee
to further discipline under Defendants' progressive
discipline scheme or otherwise increasing the employee's
risk of termination. The FWWE noted Shrivastava's
referral-goal shortfalls, as well as customers'
complaints regarding her processing errors. See id.
(citing Ex. 15 to Keen Decl., Ex. J to Defs. Mot. at 38-39
February 7, 2014, while Shrivastava was on FWWE status, two
customers complained that Shrivastava had failed to process a
total of three night deposits made on January 10, 2014 and
January 30, 2014. See SMF ¶ 32 (three customers
complained about three deposits); Pl. Resp. at 5 (clarifying
that two, not three, customers had complained about three
deposits). In each case, the deposits were found unprocessed
in Shrivastava's “work batch.” See
SMF ¶ 32.
February 10, 2014, a customer complained that Shrivastava had
not completed her $500 deposit, which later caused an
overdraft fee. See id. ¶ 33; Ex. 11 to Keen
Decl., Ex. J to Defs. Mot. at 29 (cm/ecf page). Shrivastava
had deposited the money into the wrong customer account.
See SMF ¶ 33 (citing Keen Decl. ¶ 9).
February 11, 2014, Defendants' regional operations
manager informed Keen that Shrivastava had been issued a
Policy Not Followed (“PNF”) for cashing a
counterfeit check that resulted in a $1, 683.71 loss to the
bank. See SMF ¶ 34; PNF, Ex. H7 to Defs. Mot
February 18, 2014, a customer complained that Shrivastava
incorrectly credited her account with $392, despite having
given Shrivastava $400 for deposit. See SMF ¶
35. The customer communicated that Shrivastava frequently
makes such errors, requested that Shrivastava not process her
transactions in the future, and noted that she was
considering closing her accounts with Defendants as a result.
Id.; Ex. 12 to Keen Decl., Ex. J to Defs. Mot. at 31
February 25, 2014, a customer complained that he never
received credit for a night deposit left in the drop box on
February 8, 2014. See SMF ¶ 36. The deposit was
found unprocessed in Shrivastava's “work
batch.” Id.; Ex. 13 to Keen Decl., Ex. J to
Defs. Mot. at 33 (cm/ecf page).
alleges that, beginning in roughly late June or early July of
2013, and lasting until January 2014, Keen called her
“slow” because Shrivastava's queue of
customers got too long, with a frequency of about three times
per week. See Pl. Dep. at 75:17-78:25. Shrivastava
further claims that, contrary to the dictates of UBM, Keen
compounded the problem by discouraging Shrivastava's
coworkers from helping her with the long queue. Id.
at 76:3-24. Shrivastava admits that she did not hear Keen
discourage the other employees from helping her; rather, it
was relayed to her by those employees. Id.
the parties obviously dispute the impetus behind
Shrivastava's termination, it is undisputed that Keen
recommended Shrivastava for termination on February 19, 2014,
see SMF ¶ 41; Pl. Resp. at 6, and Shrivastava
was terminated on March 18, 2014. See SMF ¶ 38;
Pl. Resp. at 5. Two days after Keen initiated termination,
Keen informed the ER department that Shrivastava was on pace
to meet her quarterly referral goal for Quarter 1 of 2014.
See Rudisill Dep at 98:5-10; see also
Termination Case Note, Ex. 23 to Pl. Resp. (Dkt. 39-23).
admits that the only other teller under Keen's management
who was ever terminated for failing to meet her quarterly
referral goal for three consecutive quarters was 21 years
old. See Pl. Resp. at 6; SMF ¶ 46.
STANDARD OF DECISION
motion for summary judgment, “facts must be viewed in
the light most favorable to the nonmoving party only if there
is a ‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587
initial matter, “ELCRA claims are analyzed under the
same standards as federal ADEA claims.” Geiger v.
Tower Auto., 579 F.3d 614, 626 (6th Cir. 2009).
Accordingly, although the analysis to follow focuses on
federal authority applicable to the ADEA, the conclusions
reached apply to Shrivastava's claims under either
Direct Evidence of Discrimination
plaintiff can create a genuine issue of material fact as to
age discrimination using either direct or circumstantial
evidence of discrimination. Lefevers v. GAF Fiberglass
Corp., 667 F.3d 721, 723 (6th Cir. 2012). Direct
evidence is evidence that is probative of the existence of a
fact without requiring any further inferences. See Rowan
v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548
(6th Cir. 2004). It is “that evidence which, if
believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the
employer's actions.” Jacklyn v. Schering-Plough
Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th
Cir. 1999) (emphasis added). When examining statements
allegedly showing employer bias on the basis of age, courts
consider whether the comments were made by a decision-maker;
whether they were related to the decision-making process;
whether they were more than merely vague, ambiguous, or
isolated remarks; and whether they were proximate in time to
the challenged action. Cooley v. Carmike Cinemas,
Inc., 25 F.3d 1325, 1330 (6th Cir. 1994); see also
Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir.
1993) (“isolated and ambiguous comments are too
abstract, in addition to being irrelevant and prejudicial, to
support a finding of age discrimination”).
address Keen's alleged tendency to comment on
Shrivastava's (i) expected retirement date and (ii) slow
pace when processing customers' transactions.
See Defs. Mot. at 16. They claim that these
statements are “at best ‘stray remarks' that
do not qualify as direct evidence of discrimination.”
Id. (citing Phelps, 986 F.2d at 1025).
Shrivastava does not respond to Defendants'
direct-evidence argument, instead cabining her discussion to
the McDonnell-Douglass burden-shifting framework,
are correct; Shrivastava's claims cannot survive summary
judgment on a direct-evidence theory. Several courts,
including this one, have addressed decision-makers'
comments about a plaintiff's retirement plans, in
particular. General questions about retirement directed
toward various employees do not compel a conclusion that
Shrivastava was terminated because of her age. See Neff
v. Petoskey Pub. Sch., No. 236287, 2003 WL 1698215, at
*1 (Mich. Ct. App. Mar. 27, 2003) (per curiam) (“Merely
asking a candidate's age or retirement plans, without
more, does not compel the conclusion that age discrimination
occurred, ” particularly when candidate brought up
retirement in interview); see also Howley v. Fed. Express
Corp., No. 14-cv-11874, 2016 WL 1223356, at *5 (E.D.
Mich. Mar. 29, 2016); Stedman v. Cox, Hodgman &
Giarmarco, P.C., No. 216008, 2002 WL 234874, at *2
(Mich. Ct. App. Feb. 15, 2002) (“Questions about an
employee's retirement plans are not enough to raise an
inference of age discrimination.”) (citing Woytral
v. Text-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997)).
comments regarding the slow speed at which Shrivastava
performed her duties also do not rise to the level of direct
evidence. Connecting those comments to a conclusion that
Shrivastava was terminated due to her age requires a string
of inferences, but no inferences between the evidence and the
conclusion of age-related animus are permitted in the direct
evidence context. See Suits v. The Heil Co., 192 F.
App'x 399, 403-404 (6th Cir. 2006); Rowan, 360
F.3d at 548. First, one must draw the inference that slow
customer service is caused by advanced age. One also must
draw a second inference, i.e., that Shrivastava was
terminated due to this animus. See Suits, 192 F.
App'x at 403 (“To prevail based on direct evidence,
plaintiff must show that the defendant employer acted on its
discriminatory animus, not just that it possessed
one.”). No such inferences are permitted; direct
evidence is that which “requires” the conclusion
that discrimination was a motivating factor in the decision
to terminate. Jacklyn, 176 F.3d at 926;
Suits, 192 F. App'x at 403-404
(“Additional inferences are necessary, which compels
the conclusion a direct evidence claim has not been
established.”). In contrast, Wexler v. White's
Fine Furniture, Inc., 317 F.3d 564, 571-572 (6th Cir.
2003) (en banc), presents an example of when direct evidence
is sufficient to survive summary judgment. In that case, the
employee's managers were found to be making remarks about
his protected age status in connection with his
eligibility for ongoing employment in the same capacity.
Id. Here, the comments regarding Shrivastava's
slow customer service were not made in a context showing
their relationship to Defendants' decision to terminate.
Rather, the cause for Shrivastava's termination, insofar
as it was based on her slow speed and customer service
failings, derived from customers' complaints, not Keen.
bottom, Shrivastava does not argue that she has produced
direct evidence of discrimination. Accordingly, Shrivastava
can only survive summary judgment if she can show a genuine
issue of ...