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Daidone v. FCA Transport LLC

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

April 13, 2018

STEPHEN DAIDONE, Plaintiff,
v.
FCA TRANSPORT LLC, Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         This is 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.

         Defendant 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).

         In his 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.

         Having 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.

         Age Discrimination Claim

         The parties do not disagree about the legal standards applicable to this claim, which the Sixth Circuit has summarized as follows:

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 119 (2009).
* * *
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).

         Plaintiff 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.

         Plaintiff 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.

         Since 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.

         Disability Discrimination

         The Sixth Circuit has summarized the standards governing plaintiff's ...


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