United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE.
matter is presently before the Court on defendant's
motion for summary judgment [docket entry 20]. Plaintiff has
responded, defendant has replied, and plaintiff has filed a
supplemental brief. Pursuant to E.D. Mich. LR 7.1(f)(2), the
Court shall decide this motion without a hearing.
an employment discrimination action. Plaintiff worked for
defendant from 1976 until 2015, most recently as a
“shift supervisor for dispatch.” Pl.'s Dep.
at 39. Plaintiff alleges that he was discharged because of
his age, in violation of the Age Discrimination in Employment
Act (“ADEA”) and the Elliott-Larsen Civil Rights
Act (“ELCRA”); because of his disability, in
violation of the Americans with Disabilities Act
(“ADA”) and the Persons With Disabilities Civil
Rights Act (“PWDCRA”); and because he requested a
leave of absence for medical reasons, in violation of the
Family and Medical Leave Act (“FMLA”). Compl.
¶ 26. For relief, plaintiff seeks damages, interest,
attorney fees, and costs.
seeks summary judgment on the grounds that plaintiff cannot
make out a prima facie case of discrimination under any of
these theories and that, even if he could do so, he cannot
show that defendant's stated reason for discharging him
is pretextual. Under Fed.R.Civ.P. 56(a), summary judgment is
appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” “[T]he
mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine dispute as to any
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). Viewing the evidence in the light most favorable
to the opposing party, summary judgment may be granted only
if the evidence is so one-sided that a reasonable fact-finder
could not find for the opposing party. See Id. at
248-50; Street v. J.C. Bradford & Co., 886 F.2d
1472, 1478-80 (6th Cir. 1989). In other words, “[a]
material issue of fact exists where a reasonable jury,
viewing the evidence in the light most favorable to the
non-moving party, could return a verdict for that
party.” Vollrath v. Georgia-Pacific Corp., 899
F.2d 533, 534 (6th Cir. 1990). “The pivotal question is
whether the party bearing the burden of proof has presented a
jury question as to each element of its case.”
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).
response to defendant's motion, plaintiff indicates that
his age discrimination claim is based on certain comments he
perceived as being ageist and his belief that he was replaced
by a younger worker. Pl.'s Br. at 4-6, 11-12.
Plaintiff's disability discrimination claim is that after
he was injured in an automobile accident in 2011, defendant
was slow to give him two requested accommodations (a
telephone headset and a more comfortable chair) and his
superiors ridiculed his request for a telephone headset.
Id. at 2-3, 13. Additionally, plaintiff alleges that
defendant discharged him because of his disability.
Id. at 13-14. Plaintiff's FMLA discrimination
claim is based on his allegation that one of his supervisors
told him in 2014 that “HR is watching your FMLA, so
watch what you're doing” and the fact that he was
discharged shortly after informing defendant that “he
soon would be applying for intermittent FMLA.”
Id. at 4, 10. Regarding pretext, plaintiff argues
that a jury should assess defendant's stated reason for
terminating him (“us[ing] abusive language toward an
employee and in the presence of other employees, ”
Def.'s Ex. Y) because no other employees have been
discharged for using profanity, Pl.'s Br. 15, and because
one of his supervisors admitted that she violated a workplace
rule but was not disciplined. See Pl.'s Supp.
Br. at 2-3.
reviewed the parties' briefs and exhibits, the Court
concludes that defendant is entitled to summary judgment on
all of plaintiff's claims for the following reasons.
parties do not disagree about the legal standards applicable
to this claim, which the Sixth Circuit has summarized as
The ADEA states that “[i]t shall be unlawful for an
employer-... to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's
age.” 29 U.S.C. § 623(a)(1). A plaintiff may bring
an age discrimination claim by either showing direct evidence
of discrimination or through the use of circumstantial
evidence. See Martin v. Toledo Cardiology Consultants,
Inc., 548 F.3d 405, 410 (6th Cir. 2008). [Plaintiff]
does not allege any direct evidence of age discrimination, so
we must look at circumstantial evidence and apply the
McDonnell Douglas burden-shifting framework.
Wexler v. White's Fine Furniture, Inc., 317 F.3d
564, 570-74 (6th Cir. 2003). Under this analysis, the
employee first has the burden to prove a prima facie case.
Id. at 574. If he succeeds, the employer must show a
legitimate, nondiscriminatory reason for the adverse
employment action. Id. If a satisfactory response is
made, the employee has the burden to rebut this reason by
proving that it was merely pretext for age discrimination.
Id. Ultimately, this requires showing by a
preponderance of the direct or circumstantial evidence that
“but for” his age, the employee would not have
suffered the adverse action. Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d
* * *
To make out a prima facie case of age discrimination using
circumstantial evidence, the employee must show that he (1)
is a member of the protected class; (2) was subject to an
adverse employment action; (3) was qualified for the position
he held; and (4) was replaced by someone outside the
protected class. Geiger v. Tower Auto., 579 F.3d
614, 622 (6th Cir. 2009).
Terre v. Hopson, 708 Fed.Appx. 221, 224 (6th Cir.
2017). “The same analysis governs [ADEA and ELCRA]
claims.” Bondurant v. Air Line Pilots Ass'n,
Int'l, 679 F.3d 386, 394 (6th Cir. 2012).
does not contend that he has any direct evidence that he was
discharged because of his age. Nor may the comments he
identified at his deposition as showing anti-age bias be
viewed as direct evidence of discrimination. For instance,
plaintiff testified that the human resources representative
at the facility where he worked, Stacey Simonson,
“always in meetings would say, ‘And how many
years do you have in at Chrysler again?'” Pl.'s
Dep. at 191. But when pressed, plaintiff could provide only
one example when Simonson made such a comment. During a
discussion of the company's policy regarding which
employees “were supposed to go out to the accident
scene [when] [t]here was a death, ” plaintiff thought
that “it's always been the . . . safety
department” that should go, while Simonson believed the
policy required plaintiff to do so. Id. at 192-93.
Simonson's question - “How many years have you
worked here?” - is not direct evidence of
discrimination because it does not require the conclusion
that defendant discriminated against plaintiff because of his
age. Rather, the comment could be construed as a criticism of
plaintiff's unfamiliarity with the policy despite his
many years of service for the company. Likewise, plaintiff
indicated that Simonson sometimes asked similar questions -
“So how many years does Steve Daidone have with
Chrysler?”- in meetings where the topic was “[o]n
how to do certain things.” Pl.'s Dep. at 193.
did point to one possibly ageist comment by Ross Sharp, who
allegedly “used to call me ‘Old man. You
can't get out of the chair. Why don't you just
retire.'” Pl.'s Dep. at 197. However, plaintiff
testified that Sharp was a fellow co-worker who “wanted
my job, ” not a supervisor. Id. Plaintiff did
not report the comment, and he acknowledged that none of his
supervisors made ageist comments. Id. at 199.
plaintiff has no direct evidence of age discrimination, the
McDonnell-Douglas analytical framework applies.
Plaintiff has failed to state a prima facie case of age
discrimination because he has not produced any evidence that
he “was replaced by someone outside the protected
class.” Terre, 708 Fed.Appx. at 224. In his
response to the instant motion, plaintiff asserts that
“Defendant replaced Plaintiff with a person 30 years
younger than him [Ex. 1, Daidone Deposition Exhibit
26].” Pl.'s Br. at 6, 11. The cited
deposition exhibit is not attached to either party's
brief, and the only reference to it during plaintiff's
deposition appears on p. 315, where plaintiff identified the
exhibit as his “EEOC Intake Questionnaire.” In
short, there is nothing in this record beyond plaintiff's
mere allegation that he was replaced by a younger worker.
There is no testimony or other evidence identifying
plaintiff's replacement and the replacement's age.
Defendant is entitled to summary judgment on plaintiff's
age discrimination claims due to plaintiff's failure to
state a prima facie case.
Sixth Circuit has summarized the standards governing