W. Paul Mayhue v. Cherry Street Services, Inc.

Filing

OPINION filed : For these reasons, we AFFIRM the district court's grant of summary judgment to the defendant. Decision not for publication. Martha Craig Daughtrey (AUTHORING), Eric L. Clay, and Deborah L. Cook, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0083n.06

FILED

No. 13-2571

Jan 27, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
W. PAUL MAYHUE,
Plaintiff-Appellant,
v.
CHERRY STREET SERVICES, INC.,
Defendant-Appellee.

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN

BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge.

Plaintiff W. Paul Mayhue’s

employment with the predecessors-in-interest of defendant Cherry Street Health Services,
formerly known as Touchstone,1 was terminated in March 2011 after he had worked there for
32 years. Having enjoyed such a long association with his employer, Mayhue felt, somewhat
understandably, that nefarious forces must have been at work to result in his termination.
Seizing upon the fact that he was 63 years of age at the time, Mayhue filed suit against the
defendant, alleging age discrimination in violation of the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. §§ 621–634, and Michigan’s Elliott-Larsen Civil Rights Act, Mich.

1

Originally known as Adult Aftercare, the organization for which Mayhue worked changed its name over
the years to Transitions, then to Transitions Community Support, then to Touchstone, before merging on October 1,
2011, with Proaction Behavioral Health Alliance and Cherry Street Health Services. Cherry Street Health Services
is the surviving entity of that merger. Because the facility was known as Touchstone at the time of the events in this
opinion, the names Cherry Street and Touchstone are used interchangeably.

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Comp. Laws §§ 37.2101–37.2804. The district court granted summary judgment in favor of the
defendant, and Mayhue now appeals, contending that the district court erred in its rulings on
various discovery disputes between the parties and that the plaintiff identified genuine disputes
of fact that should have precluded summary judgment for Touchstone. Because we conclude
that the issues raised by Mayhue are without merit, we affirm the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
Touchstone was the successor-in-interest to the nonprofit entity that hired Paul Mayhue
in 1979 as a case worker to provide direct services to individuals suffering from severe mental
illness. Sometime during the 1990s, Mayhue applied for and received the job as the Housing
Specialist with the agency. In that position, Mayhue was responsible for “helping the homeless
and mentally ill secure housing,” as well as for networking with various government officials to
fulfill the responsibilities of the agency. In 2009, however, the state grant that funded the
Housing Specialist position was pulled from Mayhue’s employer and transferred to the Salvation
Army.
Because, by that time, Mayhue already had developed contacts with state and local
governments “to further issues important to Touchstone,” and because “Touchstone was
financially healthy and had a surplus of revenue,” Touchstone’s president, Gregory Dziadosz,
“allowed Mayhue to create the position of Government Relations Coordinator.” That position
was funded entirely by excess revenue in Touchstone’s account, and both Dziadosz and Margaret
Chappell, then Touchstone’s vice-president of human resources, stated, under penalty of perjury,
that they warned the plaintiff “that Touchstone could only afford a Government Relations

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Coordinator position for as long as Touchstone had surplus revenue sufficient to fund it because
it . . . was a non-revenue position.” Mayhue denied ever receiving that information.
By October 2009, Touchstone had been informed by the state agency that provided most
of its funding that the method by which Touchstone would be compensated for its services would
be altered. In fact, the change from “case rate” payments to payments only for documented faceto-face services lasting 15 minutes or longer resulted in a five-percent decline in revenue both for
2009 and for 2010. Consequently, sometime in 2010, Touchstone’s cabinet decided to eliminate
four non-revenue-producing positions—that of Adult Foster Care Coordinator, Clubhouse
Advocate, Licensed Practical Nurse, and Mayhue’s Government Relations Coordinator job. The
individuals filling the other three positions all “were roughly twenty (20) years younger than
Mayhue” and were laid off immediately. However, because Dziadosz “valued Mayhue’s work
with local and state political officials on mental health parity and wanted to keep him around,”
the plaintiff was not informed that his position was being eliminated until December 15, 2010,
“well after [the other three employees in non-revenue positions] had been laid off.”
Even then, Dziadosz did not lay the plaintiff off immediately. Instead, Dziadosz set up a
meeting with the plaintiff on February 8, 2011, to discuss opportunities to remain with
Touchstone despite the elimination of the Government Relations Coordinator position. Mayhue
did not indicate interest in any of the suggested vacant positions, but when Dziadosz “expressed
that the productivity levels of the Case Managers—in terms of billable hours—were less than
ideal[,] Mayhue offered to help find a solution to the lower productivity.”
Despite misgivings, Dziadosz instructed the plaintiff to develop a plan to address the
productivity problem and be prepared to present it to the meeting of the Touchstone cabinet the

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following week for its consideration. At that subsequent meeting, however, Mayhue did not
present a plan but, rather, distributed a survey to the cabinet members. More damning, the
following day, without authorization to do so, the plaintiff sent an e-mail to all Touchstone staff
in the Grand Rapids office with the subject line: “Introducing W. Paul Mayhue, Governmental
Relatio[n]s Coordinator as Productivity Person for the Agency.”

The body of the e-mail

indicated that Mayhue was adding “productivity for the agency” to his existing responsibilities at
Touchstone. He then proceeded to explain in detail many of his own accomplishments before
concluding, “I did not want to begin to ask staff questions about productivity and you not have
an idea of who I am or what I do or have done.”
Other employees of Touchstone were outraged at the fact that a new position apparently
had been created but had not been posted for others to apply to fill it. Even Mayhue conceded
that “[e]verybody . . . became so upset about the letter” and that the “letter just muddied the
water totally” such “that nobody in the agency staff or agency leadership would deal with me
because of that letter.”
Dziadosz also recognized that the plaintiff had “destroyed his credibility with the staff.”
Consequently, on February 18, 2011, he offered the plaintiff three options: “(1) take an open
Case Manager position, (2) terminate employment and act as an independent contractor to
Touchstone for specific projects, or (3) terminate employment and end his relationship with
Touchstone.” When Mayhue made it clear that he was not interested in applying for a job as a
case manager, and when Dziadosz realized that “Mayhue could not help Touchstone with
productivity,” he determined that the plaintiff’s further employment with Touchstone was not
feasible. Dziadosz thus proposed “three choices as to how [that] employment could end.” He
explained that Mayhue could seek to associate with Touchstone as an independent contractor; he
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could retire and accept a retirement benefit of $3,200, which represented a payment of $100 for
each of the 32 years the plaintiff had been employed with the agency; or he could choose to be
laid off effective March 31, 2011, and thus be entitled to unemployment benefits and be
authorized to “interview for any open position at Touchstone to which he applied.”
Although contemporaneous notes of the meeting taken by Cleo Corliss, Touchstone’s
director of operations and compliance, indicated that “Paul [would] look into lay-off and
retirement and possible contract—let GDz know by end of next wk.,” Mayhue failed to indicate
his preferred method of separation from the agency. As a result, Dziadosz decided to lay off the
plaintiff effective at the end of March 2011. A letter formalizing that decision was sent to
Mayhue, accompanied by a list of all current job openings at Touchstone. However, Mayhue
never applied for, or even expressed interest in, another position with Touchstone.
According to Dziadosz, “[f]ollowing Mayhue’s layoff, Touchstone never employed
another Government Relations Coordinator. Similarly, Touchstone never created a productivity
manager position, nor did it assign productivity responsibilities to one particular employee. In
short, Mayhue was not replaced and his proposed productivity position never came to fruition.”
Rather than applying for another position with Touchstone, Mayhue chose to file suit
against the defendant in federal court, without the assistance of an attorney, alleging simply that
he was laid off “so that the agency could hire younger people.” Eventually, the plaintiff retained
an attorney, who filed an amended complaint. In that subsequent filing, Mayhue asserted that his
discharge from Touchstone was due to his age and thus violated the provisions of the ADEA and
the Elliott-Larsen Civil Rights Act. He further insisted that the defendant failed to hire him to

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fill vacant positions at the agency, instead offering the positions to younger, less-experienced
individuals.
The magistrate judge assigned to the case entered a case-management order on October 4,
2012, directing the parties to complete all discovery in the litigation by May 30, 2013, some
seven months from the date of entry of that order. Mayhue waited four months, however, until
February 8, 2013, before serving the defendant with his first set of interrogatories and a request
for production of documents.. The defendant served its responses on March 12, 2013, but
Mayhue deemed those responses inadequate. Consequently, he filed a motion to compel with the
court on April 29, 2013, and a hearing on that motion was conducted by the magistrate judge on
May 20. At that hearing, and in a written order filed the following day, the magistrate judge
denied the motion to compel in its entirety. In doing so, the magistrate judge concluded that the
defendant’s responses to the discovery requests were adequate and that plaintiff’s counsel had
failed to comply with a local rule requiring counsel involved in discovery disputes to attempt in
good faith to resolve disagreements with opposing counsel in person or by telephone prior to
involving the court in the battle. The magistrate judge further denied Mayhue’s cursory request
for a 60-day extension of the discovery deadline because counsel “completely failed to establish
good cause for an amendment to the case management order.”
Still not satisfied with the manner in which the discovery process had been handled,
Mayhue filed his objections to the magistrate judge’s order with the district court. In its own
written order, the district court discussed Mayhue’s objections to the defendant’s discovery
responses before overruling each of those objections, as well as denying Mayhue’s request for an
extension of the discovery deadline.

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With all discovery disputes resolved, the defendant then filed with the district court a
motion for summary judgment in its favor. Addressing first the plaintiff’s assertion that he was
terminated because of his age, the district court concluded that Mayhue failed to establish a
prima facie case of age discrimination under either the ADEA or Michigan’s comparable state
statute. Moreover, the court determined that Mayhue was unable to show that the legitimate,
nondiscriminatory reason for the termination offered by the defendant was a pretext for
forbidden discrimination. The district court further concluded that Mayhue failed to establish a
prima facie case of age discrimination on his failure-to-hire claim because he never applied for
any of the positions for which he claimed to have been passed over in favor of younger
employees. The district court thus dismissed the plaintiff’s amended complaint in its entirety.
Mayhue now appeals not only that summary judgment ruling but also the district court’s
denial of his objections to the defendant’s discovery responses.
DISCUSSION
Discovery Disputes
On appeal, Mayhue persists in arguing that the defendant failed to comply fully with his
requests for information and documents during the discovery process. “We review a district
court’s discovery-related rulings under the highly deferential abuse-of-discretion standard.”
Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014) (citation omitted). “An
abuse of discretion occurs when (1) the district court’s decision is based on an erroneous
conclusion of law, (2) the district court’s findings are clearly erroneous, or (3) the district court’s
decision is clearly unreasonable, arbitrary or fanciful.” Beil v. Lakewood Eng’g and Mfg. Co.,
15 F.3d 546, 551 (6th Cir. 1994) (citation omitted).
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In the district court, Mayhue claimed that the defendant did not respond adequately to
nine specific discovery requests. On appeal, he now addresses the alleged inadequacy of the
defendant’s responses to only five of those—two interrogatories and three requests for
production.
Interrogatory No. 1
Plaintiff’s Request In Interrogatory No. 1, Mayhue asked, “Did you rely on any documents to
aid in responding to these Interrogatories? If so, please identify such documents.”
Defendant’s Response In its initial response, the defendant answered simply, “Yes. Cherry
Street will produce documents responsive to this interrogatory in its possession, custody, or
control at a time and place convenient to counsel.” When Mayhue’s counsel failed to contact
defense counsel to arrange for the production of the documents, the defendant “produced all
documents on which counsel relied by mail.” However, such a “document dump” did not
comply with the plaintiff’s request for identification of the documents used in responding to the
discovery request. Consequently, in filing its response to the plaintiff’s motion to compel, the
defendant stated explicitly that “it relied on documents Bates Numbered CSHS 000‒CSHS 0083
in responding to Plaintiff’s interrogatories.”
Magistrate Judge’s Ruling The magistrate judge expressed discontent with the defendant’s
initial responses to the plaintiff’s request and ruled that “to give those documents shuffled in
with all the other documents leaves the interrogatory unresponded to . . . .” However, after being
informed that the defendant had later referenced Documents CSHS 1 through CSHS 83, the
magistrate judge recognized that the defendant “took care of that albeit in your response to the
motion [to compel].”
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District Court’s Ruling The district court concurred in the magistrate judge’s rationale and
concluded, “Regardless of whether Defendant’s initial response was sufficient, it now appears to
have given a complete answer to this interrogatory.” In light of the undisputed fact that the
defendant did indeed provide the requested documents and did ultimately identify those
documents on which it relied in answering the discovery request, it cannot be said that the
district court abused its broad discretion in ruling as it did on the challenge to the response to
Interrogatory No. 1.
Interrogatory No. 8
Plaintiff’s Request In Interrogatory No. 8, Mayhue asked the defendant to “identify every person
hired from 1/1/2010 through 8/1/2011” and to provide the position, education, age, and
experience of each such hire.
Defendant’s Response As it did in its responses to most of the plaintiff’s discovery requests, the
defendant answered Interrogatory No. 8 by stating initially, “Cherry Street objects to this
Interrogatory because it is overly broad and seeks information that is neither relevant nor
reasonably calculated to lead to the discovery of admissible evidence.” Then, “[s]ubject to and
without waiving these objections, or the General Objections,” the defendant proceeded to list the
names and positions of five individuals, ages 26-57, hired in March and April 2011 “for
positions to which Plaintiff could have elected to apply.” (Emphasis added.)
Magistrate Judge’s Ruling

In addressing this aspect of Mayhue’s motion to compel, the

magistrate judge disagreed with the plaintiff’s contention that the listing of the five hires did not
necessarily preclude the possibility that other individuals also were hired by the defendant.
Instead, noting that a list of people in a response to an interrogatory should be presumed to be
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all-inclusive, the magistrate judge concluded, “I don’t see that there is anything that you asked
for that is in the interrogatories that they haven’t answered.”
District Court’s Ruling In ruling that the defendant “undisputedly answered this interrogatory,”
the district court dismissed Mayhue’s allegation that the response was incomplete by noting that
the plaintiff “fails to argue why the omitted material would be relevant to his suit.” At the
hearing before the magistrate judge on the motion to compel, the plaintiff did argue that the
defendant’s limitation of its response to those positions for which Mayhue “could have elected to
apply” deprived him of critical and relevant information. Specifically, Mayhue maintained that
the defendant’s argument that he was laid off due to lack of funding could be undermined by
evidence that numerous individuals were being hired throughout the agency, especially to
positions for which the plaintiff might not have been qualified. Such an argument potentially did
have merit; however, nowhere in Mayhue’s written objections to the magistrate judge’s ruling
did the plaintiff reiterate that basis for reversing the ruling. Instead, Mayhue’s objection stated
only that “[w]hile the Defendant provided a partial answer, their failure to completely answer the
interrogatory is a failure to disclose.” Not having been alerted to the true substance of the
plaintiff’s objection to the answer provided by the defendant, the district court cannot be said to
have abused its discretion in denying the motion to compel compliance on this ground.
Request to Produce No. 1
Plaintiff’s Request In his first request for production of documents, Mayhue asked the defendant
to “provide all electronic communications between all members of the cabinet from 1/1/2010
through 12/31/2011 pertaining to reductions in staff.”

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Defendant’s Response In its response, the defendant again claimed that the request both was
overbroad and sought irrelevant evidence. Nevertheless, the defendant promised to “produce
responsive documents in its possession, custody, or control at a time and place convenient to
counsel.” At the hearing on the motion, counsel for the defendant assured the magistrate judge
that “[t]hose were provided. To the extent any existed those were provided.”
Magistrate Judge’s Ruling In light of defense counsel’s assertion that all relevant, requested
information had been provided to the plaintiff, the magistrate judge recognized, “Then that’s the
answer to that.”
District Court’s Ruling The district court refused to compel further disclosure relevant to this
request for production, in large part because “Mayhue does not argue that Defendant failed to
produce any responsive documents.”

The record before this court contains no evidence

suggesting that the district court abused its discretion in making that factual finding.
Request to Produce No. 2
Plaintiff’s Request Mayhue’s second request for documents asked broadly for “all electronic
communications from and between any staff from 1/1/2010 through 3/1/2011 pertaining to Paul
Mayhue.”
Defendant’s Response The defendant objected to this request, maintaining that it was “overly
broad and seeks information that is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence.” Consequently, the defendant initially did not produce any of
the requested information.

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Magistrate Judge’s Ruling The magistrate judge stated his belief that the request indeed was too
broad and was not limited sufficiently. He thus sustained the defendant’s objection to the request
but informed the plaintiff that he was free to “ask for something more tailored to the issues in
this case.”
District Court’s Ruling The district court concurred in the magistrate judge’s determination. In
doing so, the district court noted that the request for all electronic communications over a 14month period “pertaining to” the plaintiff was “significantly overbroad, not being limited to
communications relating to Mr. Mayhue’s termination or even his employment. As written, the
request appears calculated only to increase Defendant’s defense costs.”

Without question,

Mayhue failed to limit his request for information to evidence relevant to the litigation. The
district court thus did not abuse its discretion in denying the request.
Request to Produce No. 3
Plaintiff’s Request

On appeal, Mayhue also contends that the district court should have

compelled the defendant to comply with his third request for production of documents. In that
request, the plaintiff asked Cherry Street to “provide the defendant’s budgets for the years 2009,
2010 and 2011.”

According to the plaintiff, the requested information “would show any

reductions in funding” by the defendant and “is relevant in addressing [Cherry Street’s]
Affirmative Defenses.”
Defendant’s Response In its initial response, the defendant offered yet another blanket objection
based on its opinion that the request sought information that was neither relevant nor calculated
to lead to admissible evidence. At the hearing on the plaintiff’s motion to compel, however,
counsel for the defendant offered, “[W]e’re happy to turn them over subject to entry of a
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protective order.

I mean, this is confidential financial information. . . . So if he wants to

propose a protective order I’m happy to provide these.”
Magistrate Judge’s Ruling The magistrate judge again chastised plaintiff’s counsel for seeking
to involve the court in the discovery dispute before seeking to work out any disagreements with
defense counsel, either in person or over the telephone. The magistrate judge thus denied the
motion to compel production of the budgetary information “without prejudice[,] so try to work it
out. Try to listen to him and he’ll listen to you and that’s how it’s supposed to work.”
District Court’s Ruling

Mayhue argues that the district court abused its discretion in not

compelling the defendant to produce the three years of budgets the plaintiff requested. In fact,
however, the district court noted that the defendant agreed to produce the documents subject to a
suitable protective order, thus resolving the plaintiff’s objection.
Request for Extension of Discovery Deadline
Plaintiff’s Request On April 29, 2013, approximately one month prior to the district court’s
discovery deadline, Mayhue filed his motion to compel responses to his discovery requests.
Without further explanation or support, he concluded that motion with the single sentence, “The
Plaintiff also request [sic] the Discovery be extended 60 days from the date the defendant is
ordered to comply with discovery.” Furthermore, in his brief in support of the motion, he also
failed to suggest any reason for granting such an extension and, instead, simply requested that
the court “[e]xtend Discovery 60 days from the date of compliance in the Order to compel.”
Defendant’s Response At the hearing on the plaintiff’s motion to compel, defense counsel
placed on the record his objection to any extension of the discovery period without a showing of

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good cause for the amendment to the case-management order. Counsel further explained that the
court’s customary six-month discovery window had not been shortened, and that the delay on the
part of the plaintiff in serving his discovery requests should not justify an extension of that
period.
Magistrate Judge’s Ruling The magistrate judge noted that Rule 16(b)(4) of the Federal Rules of
Civil Procedure provides that a scheduling order “may be modified only for good cause and with
the judge’s consent.” Not having heard any good cause stated by the plaintiff, the magistrate
judge thus denied the request for an extension of the discovery period.
District Court’s Ruling The district court concurred with the magistrate judge that “the parties
have had more than enough time to pursue discovery, given that Defendant’s responses to
Mayhue’s requests were not improper.”

The decision to extend the discovery period is

committed to the district court’s discretion, and the court did not abuse that discretion in denying
the plaintiff’s request in the absence of any demonstration of good cause for the failure to
comply with the original schedule. See Leary v. Daeschner, 349 F.3d 888, 907 (6th Cir. 2003).
In addressing the plaintiff’s discovery issues, the district court concluded that the
defendant had either complied with the plaintiff’s requests, agreed to do so in a timely manner,
or was not required to do so because of the improperly broad scope of the request. We review
such a determination only for an abuse of discretion. Nothing in the record before this court on
appeal supports a conclusion that the district court’s broad discretion was abused. We thus
conclude that there is no merit to the plaintiff’s first issue on appeal.

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Age-Discrimination Claim
In his substantive challenge on appeal, Mayhue contends that the district court’s grant of
summary judgment to Touchstone was improper because he had identified sufficient evidence to
suggest that his employment with Touchstone was terminated solely because he was, at that time,
63 years of age. Moreover, he insists that the defendant also discriminated against him in the
hiring for other positions within the agency because of his age.
We review de novo the grant of summary judgment by a district court. See Dodd v.
Donahoe, 715 F.3d 151, 155 (6th Cir. 2013). Summary judgment is proper Aif 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 genuine dispute of material fact exists only when,
assuming the truth of the non-moving party=s evidence and construing all inferences from that
evidence in the light most favorable to the non-moving party, there is sufficient evidence for a
trier of fact to find for that party. See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006).
A non-moving party cannot withstand summary judgment, however, by introduction of a Amere
scintilla@ of evidence in its favor. Id.
The ADEA makes it unlawful for an employer covered by the Act “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). Thus, an ADEA plaintiff must “establish that age was
the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 177 (2009); see also Bondurant v. Air Line Pilots Ass’n, Int’l, 679 F.3d 386, 394 (6th Cir.
2012).

A plaintiff may satisfy that burden through the production of either direct or

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circumstantial evidence of age discrimination. Wexler v. White’s Fine Furniture, Inc., 317 F.3d
564, 570 (6th Cir. 2003) (en banc) (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th
Cir. 1997)). In this appeal, Mayhue attempts to utilize both methods to establish his right to
relief.
As his sole “direct” evidence of age discrimination on the part of Touchstone, Mayhue
points to an e-mail from Gregory Dziadosz to Margaret Chappell, recounting Dziadosz’s offer of
a retirement bonus:
I informed [the plaintiff] that he will either be laid off at the end of the day March
31, or since he is over 62, he would be eligible for retirement effective the same.
He will have 32 years of service on that date, so I told him, consistent with past
practice, that he could receive a one time payment of $3,200 if he chose that
option.
Mayhue insists that this reference to his age in connection with the discussion of a possible
retirement would allow a trier of fact to conclude that, “but for [Mayhue] reaching the retirement
age he would not have been laid off.” However, the plaintiff has presented Dziadosz’s e-mail
comments completely out of context. In fact, Dziadosz wanted to retain the plaintiff as an
employee but, because of budgetary concerns, the only manner in which he could do so was if
Mayhue applied for another position with the agency—an option the plaintiff refused to exercise.
The mention of possible retirement was made only as one of three alternatives available to
Mayhue.
Even taking the e-mail comments out of context, the plaintiff has failed to establish direct
evidence of age discrimination. We have held that even questions put directly to an employee
about his or her retirement plans “do not alone constitute direct evidence of age discrimination.”
Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 724 (6th Cir. 2012). The district court did not
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err in granting summary judgment to the defendant on Mayhue’s claim that he had proffered
direct evidence of discrimination.
If a plaintiff is unable to identify direct evidence of discrimination in an ADEA case, he
or she still may seek to prove age discrimination under the now-familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Pursuant to that analytical
construct, a plaintiff first must establish a prima facie case of age discrimination. Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998). If the plaintiff can overcome
that hurdle, the burden of production shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its adverse employment action. Id. Upon satisfaction of that
burden, the plaintiff must respond by showing that the employer’s purported rationale for its
decision was a mere pretext for intentional age discrimination. Id.
In order to establish a prima facie case of age discrimination under the ADEA, a plaintiff
must offer evidence that, if believed, would show: (1) that he is a member of a protected class;
(2) that he was subject to an adverse employment action; (3) that he was otherwise qualified for
the position he held; and (4) that he was replaced by a younger employee outside of the protected
class. See Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009). When, as here, the layoff
at issue is alleged to be part of a workforce reduction, the fourth prong of the prima facie case
analysis requires a plaintiff to offer “additional direct, circumstantial, or statistical evidence
tending to indicate that the employer singled out the plaintiff for discharge for impermissible
reasons.” Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 265 (6th Cir. 2010)
(quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)). Moreover, in satisfying
the fourth prong of a plaintiff’s prima facie case, it is not enough to show that “another employee
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is assigned to perform the plaintiff’s duties in addition to other duties, or when the work is
redistributed among other existing employees already performing related work. A person is
replaced only when another employee is hired or reassigned to perform the plaintiff’s duties.”
Barnes, 896 F.2d at 1465 (citation and footnote omitted).
The parties to this appeal do not dispute that Mayhue has proven the first three elements
of his prima facie case. They disagree sharply, however, over whether the plaintiff can establish
the fourth element.

In evaluating this dispute, we recognize that a plaintiff’s burden in

establishing a prima facie case of discrimination is not intended to be onerous. Burdine, 450
U.S. at 253. Even so, Mayhue has failed to establish that he was replaced as Government
Relations Coordinator by a younger employee or that the agency hired another person to increase
case-manager productivity. He also has not provided the “additional direct, circumstantial, or
statistical evidence” necessary to satisfy the fourth prong of the prima facie-case framework in a
work-force-reduction scenario.
First, although the plaintiff submits that “it defies credibility that there was not an
individual assigned to increase productivity,” the record is completely devoid of any evidence
that such a position was created or filled at the agency after Mayhue’s termination. Gregory
Dziadosz’s sworn declaration states unambiguously:
Following Mayhue’s layoff, Touchstone never employed another Government
Relations Coordinator. Similarly, Touchstone never created a productivity
manager position, nor did it assign productivity responsibilities to one particular
employee. In short, Mayhue was not replaced and his proposed productivity
position never came to fruition.
The plaintiff himself offers nothing other than his unsupported supposition to counterbalance the
defendant’s assertion.
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Additionally, Mayhue’s own testimony during his deposition refutes any claim that he
was “replaced” as Government Relations Coordinator. Indeed, he admitted that he had no facts
to dispute the defendant’s claim that Mayhue’s position “was being eliminated because of budget
concerns,” and he conceded that he had no facts “to support the idea that [he was] replaced by
somebody” at Touchstone.
Nor does the appellate record contain any evidence to support the proposition that the
defendant singled out Mayhue for discharge for impermissible reasons. As was made abundantly
clear from the deposition testimony before the court, Dziadosz and other Touchstone
management officials struggled mightily to keep Mayhue as an employee so as to benefit from
his governmental-relations experience.

Due to the non-revenue-producing nature of the

plaintiff’s position, however, the defendant was forced to reorganize its employee-organizational
structure, and Mayhue refused even to apply for any of the alternate positions suggested by
Touchstone’s management. Moreover, the plaintiff has offered no evidence of any hostility
shown him by any Touchstone employee as a result of his age. Absent such a showing, Mayhue
cannot satisfy even the less-than-onerous burden of establishing a prima facie case of age
discrimination.

The district court thus did not err in granting summary judgment to the

defendant on Mayhue’s claim of improper termination.
Even if Mayhue had succeeded in establishing his prima facie case of age discrimination,
an analysis of the remainder of the McDonnell Douglas decisional framework indicates that the
plaintiff could not prove his entitlement to the result he desired. There is no dispute that the
defendant articulated a legitimate, nondiscriminatory reason for terminating Mayhue’s
employment. Because the agency was facing a severe budget shortfall, Touchstone made the
sound economic decision to eliminate non-revenue-producing positions within the organization.
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The fact that the other employees laid off as a result of that decision were much younger than
Mayhue provides further support for the conclusion that the defendant’s decision was not
motivated by discriminatory animus toward older employees.
Once the defendant articulated a legitimate, nondiscriminatory reason for its adverse
employment action, the plaintiff was required to refute that justification “by showing that the
proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged
conduct, or (3) was insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231
F.3d 1016, 1021 (6th Cir. 2000) (citation omitted). Mayhue now argues that the defendant’s
proffered reason for the termination of his position—the need to save money—had no basis in
fact because, despite cutting the plaintiff’s position, the agency sought to continue to pay him as
a productivity manager and encouraged him to apply for other positions within the agency. This
argument demonstrates not only Mayhue’s misunderstanding of the record but also of the
defendant’s underlying rationale for its decision.
First, the record on appeal is clear that the defendant never offered Mayhue a position as
productivity manager and, in fact, never created such a position. Second, to the extent that the
agency allowed Mayhue to continue on the payroll while exploring the option of creating the
subject position, that fact supports the defendant’s claim that it was interested only in saving
money, not in eliminating the positions of older employees. Finally, the fact that Touchstone
continued to hire individuals for other positions and also encouraged the plaintiff to apply for
those positions does nothing to undermine its claim that Mayhue was terminated in an effort to
address a budget crisis.

The funding for the plaintiff’s position as Government Relations

Coordinator had ended, and the position itself generated no additional income for the agency.
Other positions, however, either came with outside funding sources or were revenue-generating
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due to the fees that were paid for the services rendered. The plaintiff, therefore, has failed to
point to any evidence that a rational factfinder could credit to support a conclusion that the
reason proffered by the defendant for eliminating Mayhue’s position was a mere pretext for
prohibited discrimination.
Mayhue also asserts that age discrimination alone can explain the defendant’s refusal to
hire him for other positions within the agency. We have recognized that to succeed on such a
claim, a plaintiff must first state a prima facie case of discrimination in failing to hire by showing
that: “(1) [ ]he was a member of a protected class; (2) [ ]he applied for and was qualified for the
position . . . ; (3) [ ]he was considered for and denied the position; and (4) [ ]he was rejected in
favor of another person with similar qualifications who was not a member of [the] protected
class.” Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1095 (6th Cir. 1996) (citation omitted).
Although Mayhue was a member of a protected class, he refused to apply for any of the open
positions at the agency that were identified by the defendant. Consequently, by his own choice,
he could not be considered for or denied any such position, and he could not be rejected in favor
of a non-protected-class individual. Because Mayhue thus could not state a prima facie case on
his failure-to-hire claim, the district court correctly granted summary judgment to the defendant
on that cause of action as well.
Although he fails to mention it anywhere in the argument section of his appellate brief,
Mayhue’s amended complaint also sought relief under the anti-discrimination provisions of
Michigan’s Elliott-Larsen Civil Rights Act. Pursuant to the provisions of Michigan Compiled
Laws § 37.2202(1)(a), it is illegal for an employer to “[f]ail or refuse to hire or recruit, discharge,
or otherwise discriminate against an individual with respect to employment, compensation, or a
term, condition, or privilege of employment, because of . . . age . . . .”
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Under the Elliott-Larsen Civil Rights Act, as under the ADEA, “[i]n cases involving
indirect or circumstantial evidence [of discrimination], a plaintiff must proceed by using the
burden-shifting approach set forth in McDonnell Douglas . . . .” Sniecinski v. Blue Cross & Blue
Shield of Mich., 666 N.W.2d 186, 193 (Mich. 2003) (citations omitted). Thus, for the same
reasons that the district court appropriately granted summary judgment to the defendant on
Mayhue’s ADEA claim, the district court also properly granted summary judgment to the
defendant on the plaintiff’s state-law claim.
CONCLUSION
The district court is granted broad discretion in ruling upon discovery disputes. The
plaintiff has failed to offer evidence or argument that would indicate that an abuse of that
discretion occurred here. Furthermore, the plaintiff failed to establish even a prima facie case of
age discrimination under either the ADEA or under the Elliott-Larsen Civil Rights Act. Even if
we were to conclude that Mayhue did satisfy his initial burden under the McDonnell Douglas
burden-shifting framework applicable in this case, the plaintiff cannot point to any material fact
that would allow a finder of fact to conclude that the defendant discriminated against the plaintiff
based upon age either in terminating Mayhue’s employment or in failing to hire him for other
positions within the defendant agency. For these reasons, we AFFIRM the district court’s grant
of summary judgment to the defendant.

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