United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PARTIES' CROSS
MOTIONS FOR SUMMARY JUDGMENT
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is presently before the Court on the parties'
cross motions for summary judgment [docket entries 43 and
45]. Response and reply briefs have been filed. Pursuant to
E.D. Mich. LR 7.1(f)(2), the Court shall decide these motions
without a hearing.
an age discrimination and ERISA rights case. Plaintiff
Marianne Shiff worked for defendant ImageMaster Printing LLC
(“ImageMaster”) from 2001 until she resigned in
February 2018. Plaintiff alleges that ImageMaster's owner
and manager, defendant Albert Rodriguez, discriminated
against her based on her age (57 when she resigned) by
reducing her pay by 40% with the explanation that “she
was approaching the mandatory retirement age and he needed to
use part of her salary to pay for her replacement.” Am.
Compl. ¶ 39. Rodriguez allegedly made ageist comments to
plaintiff, including that “he did not want her to hire
‘old' people, anyone over the age of 50 [because] .
. . he considered older people to be ‘forgetful'
and that he did not want to hire them.” Id.
¶ 17. In 2016, Rodriguez allegedly “informed his
employees at a staff meeting that he was instituting a
‘mandatory retirement age' of 59 ½ years,
and that he had selected this age because that is when one
can begin drawing on a 401(k).” Id. ¶ 21.
Plaintiff further alleges that when she complained to
Rodriguez that his mandatory retirement policy was unlawful,
“he acknowledged the policy was ‘probably
illegal, but until someone calls me out on it, that's
what we're doing.'” Id. ¶ 28.
Based on these and other allegations, plaintiff asserts age
discrimination, retaliation, and hostile work environment
claims against defendants under the Elliott-Larsen Civil
Rights Act and the Age Discrimination in Employment Act.
plaintiff alleges that defendants violated her rights under
the Employee Retirement Income Security Act
(“ERISA”) in the way they managed the 401(k) plan
they provided to their employees. Specifically, plaintiff
alleges that ImageMaster (the plan's administrator) and
Rodriguez (the plan trustee) violated various ERISA
provisions by providing services to the plan, dealing with
plan assets “in their own interest, ”
“moving funds without advance notice to participants,
engaging in high-risk option trading, and charging excessive
fees to participants.” Id. ¶¶ 98,
seek summary judgment on all of plaintiff's claims, while
plaintiff seeks summary judgment on her ERISA claims and on
her claim that defendant's mandatory retirement policy is
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.”
Fed.R.Civ.P. 56(a). A dispute is “genuine”
“if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Ford v.
Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving
party bears the initial burden of establishing that there are
no genuine issues of material facts, which it may accomplish
“by demonstrating that the nonmoving party lacks
evidence to support an essential element of its case.”
Id. (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In
response, the nonmoving party must present “significant
probative evidence” that will reveal that there is more
than “some metaphysical doubt as to the material
facts.” Moore v. Philip Morris Cos., Inc., 8
F.3d 335, 340 (6th Cir. 1993). The mere existence of a
scintilla of evidence in support of the nonmovant's
position will not suffice to avoid summary judgment.
Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
Peeples v. City of Detroit, 891 F.3d 622, 630 (6th
reviewed the parties' briefs and exhibits in this matter,
the Court concludes that neither party is entitled to summary
judgment on any of plaintiff's claims.
the ERISA claim, plaintiff has shown that defendants breached
their duties because Rodriguez collected
“administrative fees” from plan assets and
deposited these fees into ImageMaster's corporate bank
account. Rodriguez, as a plan fiduciary, violated 29 U.S.C.
§ 1106(b)(1) by engaging in such self-dealing. See
Barboza v. Cal. Ass'n of Prof'l Firefighters,
799 F.3d 1257, 1269 (9th Cir. 2015); Pipefitters Local
636 Ins. Fund v. Blue Cross & Blue Shield of Mich.,
722 F.3d 861, 868 (6th Cir. 2013). Even if, as Rodriguez
contends, these fees were used for the benefit of the plan
participants by funding ImageMaster's matching
contributions, “[s]uch conduct constitutes a per se
violation of § 1006(b)(1).” Barboza, 799
F.3d at 1269.
summary judgment cannot be granted for either party on this
claim because defendants have not calculated plaintiff's
damages correctly and plaintiff has not calculated them at
all. On August 1, 2019, defendants refunded $31, 166.68 to
plaintiff under a cover letter from defendant Rodriguez who
indicated that this amount was due because “certain
administrative fees previously charged to your Plan account
for investment management services provided in the 2015,
2016, and 2017 Plan years have been reconciled.”
Defs.' Summ. J. Ex. 13. Elsewhere defendants indicate
that the administrative fees deducted from plaintiff's
account amounted to $27, 953.60. Defs.' Summ. J. Br. at
23. The difference between these figures, $3, 213.08,
presumably constitutes the “applicable lost earnings,
” id., defendants believe plaintiff is owed.
Yet defendants do not explain how they calculated this
figure. Nor does this figure appear to be
reasonable, given that “the Plan saw an annual return
of 11.64% [in 2015]; a 23.9% return . . . in 2016; a 34.76%
return . . . in 2017; and a 15.07% return . . . in
2018.” Id. at 29. Plaintiff is entitled to be
made whole, and the correct measure of plaintiff's
damages is her actual, not estimated, lost earnings. See
Schumacher v. AK Steel Corp. Ret. Accumulation Pension
Plan, 711 F.3d 675, 686 (6th Cir. 2013) (noting that
“[a]n award that fails to make the plaintiff whole due
to an inadequate compensation for her lost use of money
frustrates the purpose of ERISA's remedial
scheme”); Perez v. City Nat'l Corp., 231
F.Supp.3d 593, 595 (C.D. Cal. 2017), rev'd in part on
other grounds, Acosta v. City Nat'l Corp.,
922 F.3d 880 (9th Cir. 2019) (identifying “the
Plan's rate of return, which reflects the fluctuation of
the Plan during the relevant time period” as the
correct measure to remedy a breach of fiduciary duty).
Defendants' calculation appears to under-compensate
plaintiff; and plaintiff, for her part, has not presented
evidence showing what the correct calculation of her damages
would be. If the parties are unable to agree on the amount,
the Court shall make this determination at trial.
age discrimination claims must proceed to trial as well.
Plaintiff has produced significant, direct evidence of age
discrimination, including Rodriguez's many ageist
comments directed to plaintiff and to “old” or
“older” people generally. For example, plaintiff
testified that Rodriguez told plaintiff that she
“couldn't hire old people, black women, or smelly
people, ” and that after plaintiff turned 50 years old
he “continuously” joked about her age and about
her ankle and shoulder injuries he attributed to her age.
Pl.'s Dep. at 150-54, 174-75. Further direct evidence of
age-related discriminatory animus is Rodriguez's policy,
which he announced at a company-wide meeting in 2016,
requiring employees to retire at age 59-1/2. Rodriguez Dep.
at 229-31; Pl.'s Dep. at 147-48. Plaintiff testified that
Rodriguez told her that he instituted this policy so that he
could avoid having to deal with “older employees who
had been there for a long time [and] were losing their
memory.” Pl.'s Dep. at 181. Plaintiff told
Rodriguez that this policy was unlawful, but he dismissed her
concerns “because she's not a licensed lawyer,
” and he did not abandon the policy until he was served
with the instant lawsuit. Rodriguez Dep. at 233, 237.
Obviously, such a policy is unlawful on its face.
a jury must decide whether defendants discriminated against
plaintiff because of her age, caused her work environment to
be hostile on this basis, or retaliated against her because
of her opposition to the mandatory retirement age policy.
Plaintiff testified that she resigned in February 2018 (at
age 57) days after she discovered that Rodriguez had reduced
her salary by nearly 40%. Immediately prior to Rodriguez
making this reduction, he reminded plaintiff at a year-end
meeting in December 2017 that “it's getting close
to your retirement time [and] [y]ou've got to start
looking for your replacement.” Pl.'s Dep. at 142.
Rodriguez admits that he “let her know . . . that
she'd be done at the end of that two-year period.”
Rodriguez Dep. at 145. But the large salary reduction was
due, according to Rodriguez, to plaintiff's poor work
performance. Id. at 124-26. Rodriguez testified that
plaintiff had “checked out” and was doing a
“sucky ass job, ” id. at 126, a claim
plaintiff denies. See Pl.'s Dep. at 141;
Pl's Resp. Ex. 7. A jury must resolve the factual dispute
concerning Rodriguez's motivation in reducing
plaintiff's salary. A jury will also determine whether
Rodriguez's ageist comments and retirement policy
subjected plaintiff to a hostile work environment.
Accordingly, IT IS ORDERED that the parties' cross
motions for summary judgment are denied.
FURTHER ORDERED that defendants' motion for leave to file
a reply brief ...