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Cate v. Thetford Corp.

United States District Court, E.D. Michigan, Southern Division

July 26, 2017

JUDITH CATE, Plaintiff,



         Plaintiff Judith Cate claims that she was terminated by Defendant Thetford Corporation due to her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(c), and the Elliot-Larsen Civil Rights Act, Mich. Comp. Laws 37.2101 et seq. (Dkt. # 1.) Before the court is Defendant's motion for summary judgment (Dkt. # 25). The motion is fully briefed, and a hearing is unecessary. See E.D. Mich. LR 7.1(f)(2). For the reasons that follow, the court will grant the motion.


         Before addressing the summary judgment motion, the court must resolve the issue of Defendant's reply brief. (Dkt. # 33.) Defendant filed its summary judgment motion on March 20, 2017. (Dkt. # 25.) After notice from the court that Defendant's brief in support exceeded the 25 pages allowed pursuant to E.D. Mich. LR 7.1(d)(3)(A), the parties agreed to a stipulated order allowing additional pages and time to file briefs. (Dkt. # 27.) Plaintiff timely filed her response brief on April 21, 2017, within the 51-page limit set by the court's stipulated order. (Dkt. ## 27, 28.) The stipulated order allowed Defendant until May 8 to file its reply, which was not to exceed 14 pages-twice the 7 pages allowed by E.D. Mich. LR 7.1(d)(3)(B). (Dkt. # 27.) On May 3, 2017, Defendant filed an ex parte application to exceed the stipulated page limit, asking for 20 pages rather than 14 (Dkt. # 30.) Defendant requested the extra pages to address a “new, or at the very least, unanticipated ‘failure to hire/transfer' claim'” among other arguments. (Id.) Defendant requested that in the alternative, the court extend the due date for the reply brief by two days. (Id.) Plaintiff filed a brief opposing Defendant's request (Dkt. # 31), to which Defendant replied (Dkt. # 32).

         With no response from the court on its request, Defendant filed a 20-page reply brief on May 8, 2017. (Dkt. # 34.) Defendant attached 3 exhibits to its reply brief, 2 of which are relevant here. The first is a 9-page “evidence chart” examining in detail what Defendant alleges are misrepresentations of the record made in Plaintiff's response brief. (See Dkt. # 33-1.) The second is a two-page, single-spaced “summary of undisputed facts” purporting to set out facts admitted to, or at least not controverted, by Plaintiff's brief. (Dkt. # 33-2.)

         The next day, May 9, 2017, Plaintiff filed a motion to strike Defendant's reply brief in its entirety as improper and filed without leave of court under Federal Rule of Civil Procedure 12(f) and E.D. Mich. LR 7.1. (Dkt. # 34.) Defendant filed a response (Dkt. # 35), to which Plaintiff has declined to reply.

         First, the court admonishes Defendant for-again-filing an overlong brief without leave. While the court is sympathetic to the anxiety produced by four days of silence from this court following Defendant's application, the court is not satisfied with Defendant's request that, should the court decline to grant extra pages, the court grant extra time. (Dkt. # 30, Pg. ID 1401.) Defendant could have easily filed a brief that complied with the court's prior order alongside what might be called its “director's cut.” Instead, Defendant assumed that the court's default position would be that more is better. Indeed, not satisfied with the 6 extra pages it requested in its ex parte application, Defendant attaches 11 pages of exhibits addressing matters ordinarily dealt with in the body of the brief. (See Dkt. # 33-1, 33-2.) While the court is generally open to additional briefing, particularly when that briefing is helpful and well-drafted, it is less enthusiastic about parties circumventing its orders-even when those orders appear as mundane as page and time limits.

         Neither is the court thrilled with Plaintiff's motion to strike (Dkt. # 34). To start, the motion incorrectly invokes Federal Rule of Civil Procedure 12(f)-which is limited to pleadings by its own text-rather than the court's inherent power to control its docket, see Zep Inc. v. Midwest Motor Supply Co., 726 F.Supp.2d 818, 822 (S.D. Ohio 2010) (citing Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003)). More fundamentally, given that Plaintiff had already opposed Plaintiff's request, and the court is capable of recognizing when a party's briefing exceeds page limits without motion practice, the motion needlessly multiplies filings, burdens the court, and delays resolution of the substantive dispute.

         The court will deny Plaintiff's motion to strike (Dkt. # 34). However, in light of Defendant's failure to follow the court's stipulated order (Dkt. # 27), the court declines to consider pages 15 through 20 of Defendant's brief.


         A. BACKGROUND

         The following facts are undisputed unless otherwise noted. Defendant “manufactures sanitation products for the RV, marine, camping and truck markets and is headquartered in Ann Arbor, Michigan.” (Dkt. # 25, Pg. ID 382.) Defendant initially hired Plaintiff on April 10, 1984, as an Accounts Receivable Clerk in the Accounting Department, when she was 28 years old. (Dkt. # 25-3, Pg. ID 442, 451.) In or around 1999, when Plaintiff was approximately 43, she applied for and was transferred into, the “quality secretary” position at Defendant's Baker Road production facility in Dexter, Michigan. (Id. at Pg. ID 451-52.) In 2005, when Plaintiff was approximately 49 years old, the quality secretary position was eliminated. (Id. at Pg. ID 453.)

         When the quality secretary position was eliminated, Plaintiff became the “operations secretary” or “operations administrative assistant” in the operations department at the Baker Road facility. (Id. at Pg. ID 452.) Plaintiff testified that she did “a lot of the job” she did as quality secretary in addition to working as a receptionist, “doing metrics[, ]” ordering supplies, and coordinating the plant's “stop for safety” program, among other responsibilities. (Id.)

         1. The termination

         Plaintiff's supervisor was Gay Youngblood, Plant Manager of the Baker Road facility. (Dkt. # 25-3, Pg. ID 452.) Youngblood testified that Plaintiff's job “is the position that comes up every time we talk about financial reductions . . . that position has been up numerous times.” (Dkt. # 25-6, Pg. ID 487.) Youngblood testified that her supervisor, Wayne Lorek, specifically mentioned Plaintiff's position once or twice in that context. (Id.) Lorek died suddenly in March 2015. (Dkt. # 25-7.) After Lorek passed away, Youngblood reported to Kevin Phillips, Defendant's president. (Dkt. # 25-6, Pg. ID 488.)

         Phillips and Youngblood had weekly meetings after Lorek's death (Dkt. # 25-6, Pg. ID 489.) She met with Phillips in May of 2015 to discuss “decisions that [Lorek] had made” before he passed away, and he told her that “there were some things that we needed to talk about in regards to the financial condition of the company. And there were some activities that needed to be done. And the one was to look at the admin job at Baker Road.” (Id. at Pg. ID 488-89.) Phillips also directed Youngblood not to replace another employee, Tim Kulpinski, who had recently quit. (Id.) According to Youngblood's testimony, this was in response to the loss of a significant customer (RV manufacturer Forest River), “and we were being asked to do the best that we could to eliminate cost to help offset the loss of profit.” (Id.) Youngblood “felt that [she] could have talked to [Phillips]” about the decision to eliminate Plaintiff's position but she is “not sure that there would have been any different conclusion because it was pretty black and white in dollars and cents” and that her impression at the time was that the “cake was baked as far as Judy Cate was concerned[.]” (Id.)

         In another meeting with Phillips, at “the very end of June[, ]” Youngblood testified that Phillips “wanted to know when [Youngblood] was going to eliminate the position.” (Id. at Pg. ID 489.) At that point, Youngblood informed Phillips that Plaintiff's position would be eliminated at the beginning of July. (Dkt. # 25-6, Pg. ID 489.)

         Youngblood and Carey met with Plaintiff on July 10, 2015, to inform Plaintiff that her position would be terminated. (Dkt. # 25-6, Pg. ID 491.) Plaintiff was informed that she was not being terminated for performance reasons, it was “nothing personal, ” and her position was being eliminated. (Dkt. # 28-3, Pg. ID 777-78.) Plaintiff was offered a severance package with a separation agreement, and Youngblood informed her that she could also take the consumers job. (Id.) The separation agreement identifies Plaintiff as an “Administrative Assistant, ” states that Plaintiff's “position is being eliminated[, ]” and the agreement “is not part of any group reduction in force.” (Dkt. # 28-11, Pg. ID 975.) That day, Youngblood also put out an announcement to all employees stating, “Effective immediately, the Reception position at the Dexter Operation has been eliminated.” (Dkt. # 25-9.)

         2. The “consumers” or “production” position

         After it was decided that Plaintiff's position would be eliminated, Youngblood spoke to Defendant's Human Resources Generalist, Lisa Carey, about getting Plaintiff a job “on the shop floor.” (Dkt. # 25-6, Pg. ID 489.) Youngblood testified that Defendant had never taken a “white collar” employee and “put them in blue collar” before, so she needed approval to offer the position to Plaintiff. (Id.) Youngblood's plan was approved by Vice President of Human Resources Rob Trax. (Id.)

         She then approached Operations Manager Neil Bates for approval to offer Plaintiff a job “in the consumers area[.]” The consumers area is where “after-market items are assembled and packaged and boxed.” (Dkt. # 25-8, Pg. ID 499.) Youngblood believed that, as plant manager, she could keep Plaintiff from being placed “on the line” doing physically demanding labor and that the consumers job would never be lost to a reduction in force. (Dkt. # 25-6, Pg. ID 490.) Bates approved. (Id.) Youngblood testified that she pursued this option for Plaintiff “[b]ecause Judy is a good person, and Judy I know needed to work and she needed her insurance, and I was trying to think of a way that I could help her.” (Id.)

         It is unclear how much Plaintiff knew about the consumers position. Youngblood testified she told Plaintiff “[t]hat [Bates] had agreed we would put her in consumers and we would not move her out to any of the lines.” (Dkt. # 25-6, Pg. ID 491.) Plaintiff testified that Youngblood said “something about a job in production” at either Baker Road or Jackson Road and, more specifically, she was told Bates “could put [her] in consumers, but nothing more than that.” (Dkt. # 28-3, Pg. ID 777.) Plaintiff testified that working in consumers involves making “small kits and packages and things like that.” (Dkt. # 25-3, Pg. ID 454.) However, she also testified that “when you're in production, they can put you wherever they want you” and that she did not believe she was physically capable of doing the work that she could potentially be asked to do as part of working in production. (Dkt. # 28-3, Pg. ID 780.) Plaintiff ultimately declined both the consumers position and the severance package, and was terminated at 59 years old. (Dkt. # 25, Pg. ID 388; Dkt. # 28, Pg. ID 698.)

         Plaintiff's briefing claims that she was only offered the opportunity to “apply for a ‘production job' and was told that Neal [sic] Bates . . . ‘could put her in consumers, but nothing more than that.'” (Dkt. # 28, Pg. ID 697 (quoting Dkt. # 28-3, Pg. ID 777) (emphases added by Plaintiff).) But nothing in Plaintiff's deposition testimony suggests that she was asked to apply for the consumers position rather than offered it outright- Plaintiff testified that she had until Sunday, July 12, 2015, to “decide if [she] wanted to take a job in production” and she “could either choose Baker Road or Jackson Road.” (Dkt. # 28-3, Pg. ID 777.) Plaintiff also cites to Trax's deposition testimony, where he responds “yes” to the question “We spoke earlier about Ms. Cate's termination meeting and that she was offered the opportunity to apply for a position in production. Is that fair?” (Dkt. # 28-5, Pg. ID 891.) But the “earlier” deposition questioning referred to is explicit that Plaintiff was offered the job-specifically, Plaintiff's counsel asked if Trax knew about the “production job that was offered to Ms. Cate during the termination meeting”; if he knew “whose decision it was to offer Ms. Cate the production job”; and if “there was any other discussion about offering Ms. Cate any other open positions[.]” (Id., at Pg. ID 891.) Trax also explained that he did not attend the termination meeting, and that all he knows about the meeting is secondhand from Carey. (Id. at Pg. ID 887.) The court concludes there is no genuine dispute that Plaintiff was offered the consumers position, not an opportunity to apply for the position.

         3. The marketing position

         At the July 10 termination meeting, Plaintiff also asked about a “marketing administrative assistant” position, and Carey told her the position was “under review.” (Dkt. # 25, Pg. ID 393; Dkt. # 28, Pg. ID 703.)

         Andrea Conway resigned from the marketing administrative assistant position on June 23, 2015, about three weeks prior to Plaintiff's termination meeting. (Dkt. # 25-14.) The position was part of Defendant's marketing department, while Plaintiff's position was part of the Production Department. (Dkt. # 25-6, Pg. ID 485-86.) Carey, Defendant's human resources generalist, testified that Conway's sudden resignation triggered “kind of a reaction ...

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