Carl Rhoades v. Standard Parking Corporation

Filing

OPINION filed : AFFIRMED, decision not for publication. Richard Allen Griffin, Circuit Judge; Helene N. White, AUTHORING Circuit Judge and Jane Branstetter Stranch, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0229n.06
Case No. 13-3984

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CARL RHOADES,

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Plaintiff-Appellant,
v.
STANDARD PARKING CORP.,
Defendant-Appellee.

Mar 27, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

BEFORE: GRIFFIN, WHITE, and STRANCH, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Carl Rhoades appeals the district court’s grant of
summary judgment to his former employer, Defendant Standard Parking Corporation, in this
wrongful termination action brought under the Age Discrimination in Employment Act (ADEA)
and Ohio law. PID 5-6. We agree with the district court that Rhoades presented insufficient
evidence of pretext to survive summary judgment, and AFFIRM.
I.
Standard Parking manages and maintains parking facilities for its clients, provides
employees to operate those parking facilities, and performs services including bookkeeping.
Standard Parking’s Cleveland office hired Rhoades as a parking lot attendant in 2002, when he
was 63 years old, and he worked at the Cleveland Clinic Foundation lot until he and
approximately 175 other employees were laid off in May 2009 when Standard Parking lost its

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service contract with the Cleveland Clinic Foundation. PID 96, 98-99, 170, 172-77, 197-98, 207,
416.
In March 2010, Standard Parking rehired Rhoades. One of Standard Parking’s clients,
the Playhouse Square Foundation, owns both the Hermit Club lot at which Rhoades worked and
a nearby parking garage, the Playhouse Square Garage.

PID 90-91.

Standard Parking

terminated Rhoades’s employment on May 10, 2010, based on its determination that Rhoades
violated company policy during an exchange between Rhoades and a Playhouse Square
Foundation employee, and because the Playhouse Square Foundation executive responsible for
managing the Standard Parking contract demanded that Rhoades be removed from the lot
following that exchange. Rhoades filed a grievance pursuant to company procedures, which was
denied. PID 15. He later filed a discrimination charge with the Equal Employment Opportunity
Commission (EEOC), which issued a right to sue letter in October 2011. PID 11, 13.

A.
Rhoades filed this age-discrimination action in December 2011.1 PID 1.

Following

discovery, Standard Parking moved for summary judgment, arguing that Rhoades could not
establish a prima facie case of age discrimination and, assuming he could, the incontrovertible
evidence demonstrated that it terminated Rhoades’s employment for two legitimate, nondiscriminatory reasons—because his conduct on May 7, 2010 violated the company’s customer
service policy and because the Playhouse Square Foundation executive responsible for managing
the Standard Parking contract demanded Rhoades be removed from the Hermit Club lot as a
result of the May 7th incident. PID 73-83.
1

Although Rhoades’s complaint alleged that his layoff in 2009 was discriminatory in that
Standard Parking “retained several significantly younger, similarly-situated employees due to
their age,” PID 2, he has abandoned that claim on appeal.
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II. Pretext
Because Standard Parking does not dispute for purposes of this appeal that Rhoades
established a prima facie case of age discrimination and Rhoades does not dispute that Standard
Parking’s proffered reasons for terminating his employment are legitimate and nondiscriminatory, we address only the issue of pretext. See Standard Parking Br. at 18, Rhoades
Br. at 14.
We review the district court’s grant of summary judgment de novo, viewing the facts and
inferences therefrom in the light most favorable to the nonmoving party. Chattman v. Toho
Tenax Am., Inc., 686 F.3d 339, 346 (6th Cir. 2012). To demonstrate pretext at the summary
judgment stage, the plaintiff must show by a preponderance of the evidence either 1) that the
employer’s proffered reasons for the adverse employment action had no basis in fact, 2) that the
proffered reasons were not the true reason, or (3) that they were insufficient to motivate
discharge. See, e.g., Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003);
Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994), abrogated on
other grounds by Gross v. FBL Fin. Servs., 557 U.S. 167 (2009), as recognized in Geiger v.
Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009).
Rhoades maintains that he presented sufficient evidence of pretext to survive summary
judgment under either the first or third prong of the pretext test.

A. Whether Standard Parking’s proffered reasons for terminating
Rhoades’s employment had a basis in fact
“The first type of showing [of pretext] is easily recognizable and consists of evidence that
the proffered bases for the plaintiff’s discharge never happened, i.e., that they are factually
false.” Manzer, 29 F.3d at 1084 (emphasis and internal quotation marks omitted).
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Standard Parking’s customer service policy is set forth in its Employee Handbook:
Your conduct, reflecting the guidelines below, is the most visible and important
measure that the public has in evaluating our performance. Your attention to each
point is, therefore, extremely important. Violations of these guidelines may result
in disciplinary action up to and including discharge.
....
Customers expect and deserve to be treated with respect at all times. Courteous
conduct with customers is essential. Under no circumstances are you
permitted to argue with a customer, even if you know you are correct. Use of
profanity to a customer is strictly forbidden. Regardless of the circumstances,
any lack of courtesy on your part may result in discharge.
....
Examples of offenses that warrant disciplinary action up to and including
immediate suspension and/or discharge include, but are not limited to the
following:
....
Being discourteous to customers, swearing or use of abusive or obscene language
with, or within proximity of customers.

PID 135, 139, 145/2007 Employee Handbook for Hourly Employees (emphasis added).
Rhoades acknowledged on deposition that he knew “from day one” of his employment that
Standard Parking’s policy was that an employee’s lack of courtesy to a customer could result in
discharge. PID 576.
Appended to Rhoades’s complaint was the sworn affidavit of Madora Funderburk, a
Standard Parking auditor/bookkeeper who witnessed the exchange that led to Rhoades’s
discharge. Funderburk’s affidavit stated that she had supervised Rhoades for years, that he was
always a good employee and never had trouble with customers or co-workers, and that she often
received good reports from customers about Rhoades’s excellent customer service. PID 16.
Funderburk’s affidavit summarized the May 7, 2010 incident at the Hermit Club lot:
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On May 7, 2010, Carl [Rhoades] and I were each responsible for one-half of the
parking lot at 1600 Chester Avenue. At around 9:30-10:00 AM, the customer
who complained about Carl, a monthly fee customer, pulled into my half of the
lot. When he pulled in, I told him the lot was full and asked if he would use the
neighboring garage that is also owned by Standard Parking. This is a standard
practice when the parking lot was full. The customer then told me that the garage
was full.
So, I asked Carl [Rhoades] to radio Cheryl Yarlettes [sic], another Standard
Parking employee, who worked at the parking garage. He did and Cheryl said
that the garage was not full. The customer said he would go to the garage and
began pulling out of the lot. At that time, Carl noticed a second customer leaving
the lot. So, Carl began driving another vehicle in to the newly vacant parking
space. When the first customer saw the open space, he immediately pulled his car
into it, even though he knew that Carl was in the process of parking another car
into that same space.
Carl got out of his car and told the customer that he was trying to park the car in
to that space. The customer refused to move and said, “I am a monthly parker and
I paid for parking.” Carl said, “OK. I’ll remember that.” The customer replied,
“You do that.” I was standing right there and there was no profanity or raised
voices used by either Carl or the customer. I apologized to the customer and he
said “That’s OK, no problem.” That was the end of the incident.
PID 16-17.
Rhoades’s testimony on deposition was in accord with Funderburk’s account.

He

testified that the Hermit Club lot was full to capacity on May 7, 2010, with cars double-parked.
Rhoades testified that Brian Hrivnak pulled into the vacated space before Rhoades could,
disregarding Rhoades’s taps on the horn. PID 238, 311, 327-30. Rhoades and Funderburk then
approached Hrivnak and asked him to park in the Playhouse Square Garage. Hrivnak said “no,”
and “I pay to park in this lot.” Rhoades explained that Hrivnak needed to move his car, just for
that day, because too many cars were double parked. Hrivnak refused. At that point, Rhoades
said to Hrivnak, “I’ll remember that.” PID 242, 573-74, 327-30.
Hrivnak testified on deposition that when he pulled into the Hermit Club lot and parked,
Rhoades told him he could not park there and to park in the nearby garage, that they “had a few
words,” that Rhoades swore at him, slammed his hand on Hrivnak’s car, and said to Hrivnak,
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“I’ll remember that.” Hrivnak responded by saying “you do that.” PID 291. Hrivnak testified
that he felt threatened by Rhoades, PID 277-78, 288-89, 291, and that he walked over to the
office of John Hemsath, Director of Theater Operations for the Playhouse Square Foundation and
Standard Parking’s primary contact there. Hemsath was not there, but about an hour later
Hrivnak and Hemsath walked over to the garage to talk to Standard Parking’s Facility Manager
Cheryl Yarletts about the exchange. PID 289-90, 433. Hrivnak testified that Hemsath told
Yarletts that he (Hemsath) wanted Rhoades “out of there.” PID 292.
Yarletts, Rhoades’s direct supervisor, testified that Hemsath and Hrivnak lodged a
complaint with her on the afternoon of May 7, 2010. Yarletts testified that Hrivnak “said that
Carl [Rhoades] had argued with him, swore at him. And then John [Hemsath] stated he did not
want Carl there – to work there anymore. And I said I would take care of it.” PID 264-65.
Yarletts testified “If a client doesn’t want an employee, I mean I can’t keep him there.” PID 267.
Yarletts testified that she relayed the complaint to Standard Parking’s Senior Manager, Matthew
Neuman. PID 271, 432.
Neuman testified on deposition that Facility Manager Yarletts called him on the day in
question and reported that John Hemsath and Brian Hrivnak had complained to her regarding “an
altercation between Brian and Carl on the Hermit Club Lot.” PID 432. Yarletts told Neuman
that Hemsath and Hrivnak “were very angry, very upset.” PID 432. Neuman testified that he
called Hemsath soon after and asked him to explain what happened. Hemsath said “that there
was a dispute over a parking space and that Carl put his hand on Brian’s car, was very loud and
aggressive, used quite a bit of profanity and was very threatening in nature, and this was not the
first incident or report they’ve had regarding Carl at the Hermit Club Lot and he wanted him
gone immediately.” PID 435. Neuman testified that “he’s our client and we have a valuable
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contract with them [the Playhouse Square Foundation] and we have no reason to doubt what the
client tells us.” PID 436. After conferring with corporate headquarters in Chicago, Neuman
terminated Rhoades’s employment on May 10, 2010. PID 438. Neuman testified that he did not
speak directly to Madora Funderburk about the incident, but that Yarletts did on several
occasions. PID 439-40. When asked why Rhoades “was terminated as opposed to being moved
to another lot,” Neuman responded:
Based on the aggressiveness, the vulgarity and the placing the hands on the car,
basically just based on the severity of his outburst and approach to the customer
of a threatening nature, me and [Chicago Human Resources] agreed that a
termination was warranted . . .” PID 441.
When asked why he did not get Rhoades’s side of the story before terminating his employment,
Neuman responded:
His side of the story is really not relevant. If the client says that . . . one of our
employees treated a customer poorly, then we’re gonna act on it. We’re in the
customer service business.
PID 444, 447.

1.
Rhoades argues that he and Funderburk, two of the three witnesses to the exchange at
issue, testified that Rhoades’s conduct did not violate company policy and that this alone
demonstrates the existence of a genuine issue of material fact that Rhoades did not argue with
Hrivnak, was not discourteous, and did not violate company policy.

Rhoades Br. at 20.

Rhoades’s version of the facts is that he politely tapped on the horn several times to get
Hrivnak’s attention before Hrivnak pulled his car into the open parking space; that once Hrivnak
pulled in, Rhoades approached Hrivnak and nicely asked him three times to park in the garage;

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that Hrivnak refused and that Rhoades then said to Hrivnak, quietly and dejectedly, “I’ll
remember that.” See Pl.’s Br. at 16-19.
We agree with the following observations of the district court:
The employee handbook, which Plaintiff readily admits receiving, states that
employees are not permitted to argue with customers and any lack of courtesy
may result in discharge. . . . In addition to honking his horn at him, Plaintiff’s
deposition shows he asked Hrivnak to move three times, each one followed by a
“no.” (Rhoades Dep. at 120). Regardless of whether there was any yelling,
swearing, or slapping the hood of a customer’s car, there is enough other evidence
to show that Plaintiff violated the company policy of being courteous and
refraining from arguing with a customer. Defendant’s decision was based on
facts.
PID 641. The district court properly concluded that Standard Parking’s proffered reasons for
discharging him had a basis in fact.

B. Whether Standard Parking’s proffered reasons for terminating Rhoades’s
employment were sufficient to warrant his termination
Rhoades also argues that he presented sufficient evidence of pretext to survive summary
judgment under the third prong of the pretext test, i.e., that Standard Parking’s proffered reasons
for discharging him were insufficient to motivate the discharge.
To establish the insufficiency of Standard Parking’s proffered reasons, Rhoades is
required to show by a preponderance of the evidence that “other employees, particularly
employees not in the protected class, were not fired even though they were engaged in
substantially identical conduct to that which the employer contends motivated its discharge of
[Rhoades].” Manzer, 29 F.3d at 1084.

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The district court concluded that Rhoades did not make the required showing, in part
because none of the comparable employees Rhoades pointed to had been the subject of a client’s
demand for discharge:
While Plaintiff points to other employees who violated various policies of
Standard Parking, including being argumentative with customers, none of those
involved an apparent client demand for the removal of that employee. See
Funderburk Aff. ¶ 7 and 20. While there is no direct testimony from Hemsath,
the client’s liaison who allegedly demanded Plaintiff’s removal, there is plenty of
evidence to support the notion that multiple people involved in the decision to
terminate Rhoades were under the impression that a client had demanded the
removal of Plaintiff. See Hrivnak Dep. 68-69, 74-76; Radovan [Yarletts] Dep. 41.
“As long as an employer has an honest belief in its proffered nondiscriminatory
reason for discharging an employee, the employee cannot establish that reason
was pretextual simply because it is ultimately shown to be incorrect.”
PID 641–42.

1.
Rhoades argues that since Standard Parking offered only the testimony of its employees
to prove that Hemsath demanded Rhoades’s discharge, that testimony is inadmissible hearsay
and there thus was a genuine issue of material fact as to whether any Standard Parking client
demanded Rhoades’s termination. Rhoades Br. at 21-22.
A court cannot rely on unsworn inadmissible hearsay when ruling on a motion for
summary judgment. Hoover v. Walsh, 682 F.3d 481, 491 n.34 (6th Cir. 2012). But, as the district
court found in the instant case, Standard Parking did not offer Hemsath’s demand that he wanted
Rhoades gone immediately for its truth, but rather, to show that several Standard Parking
managers involved in the decision to discharge Rhoades were under the impression that Hemsath
demanded Rhoades’s discharge. PID 641. A statement that is not offered to prove the truth of
the matter asserted but offered to show its effect on the listener is not hearsay. See Biegas v.

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Quickway Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009). All but one of the cases Rhoades
relies on are distinguishable, since they involve statements offered for the truth of the matter
asserted. See e.g., Owhor v. St. John Health-Providence Hosp., 503 F. App’x 307, 313 (6th Cir.
2012) (out of court third-party statement constituted inadmissible hearsay because it was offered
to prove the truth of the matter asserted; that the defendant defamed the plaintiff); Ford v.
Securitas Sec. Servs. USA, Inc., 338 F. App’x 483, 487—88 (6th Cir. 2009) (district court
improperly accepted Lawson’s statement, offered through Durkee’s testimony, for its truth);
Quinn-Hunt v. Bennett Enters., Inc., 211 F. App’x 452, 458 (6th Cir. 2006) (the plaintiff’s
allegation that a hotel guest told her that another employee stole cash from their employer and
was suspended is inadmissible hearsay, as it was offered for its truth). At argument Rhoades also
relied on Shazor v. Professional Transit Management, Ltd., __ F.3d __, No. 13-3253, 2014 WL
627406 (Feb. 19, 2014) (reversing grant of summary judgment to the defendant employer on the
basis that there was a material issue of fact whether the employer’s proffered reason for the
plaintiff’s discharge, that she lied to Board members, was pretextual). But Shazor also involved
statements offered for their truth and is thus inapposite. 2014 WL 627406, at *10.2
In the lone case Rhoades cites that did not involve a statement offered for its truth,
Michigan First Credit Union v. Cumis Insurance Socitey, Inc., 641 F.3d 240 (6th Cir. 2011), this

2

Rhoades also relies on Shazor as supporting his argument that Standard Parking insufficiently
investigated his purported misconduct. The employer in Shazor investigated the plaintiff’s
purported misconduct by speaking to one person. This court held that one conversation did not
establish sufficient particularized facts about the truth behind the plaintiff’s statements and thus
the defendants failed to establish a foundation for the honest belief doctrine to apply. Id. at *11.
Shazor is clearly distinguishable from the instant case. Here, Rhoades’s direct supervisor,
Cheryl Yarletts, testified that Hemsath and Hrivnak met with her and complained that Rhoades
had argued and sworn at Hrivnak. Yarletts testified that at that meeting, Hemsath stated to her
that he did not want Rhoades to work there anymore. Senior Manager Neuman testified that
after hearing Yarletts’ account, he called Hemsath to hear Hemsath’s complaint and that
Hemsath told him he wanted Rhoades gone immediately.
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court held that a command did not constitute hearsay: “the challenged statement was made by
Yarber, who testified that Lewis instructed him to remove a particular indirect loan from the
“exceptions” section of his October 2003 audit report. This statement is not hearsay because it is
a command, a verbal act without truth value.” 641 F.3d at 251. We fail to see how this case
benefits Rhoades. In fact, it helps demonstrate that the statement was also admissible to show
that the request occurred. See United States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir.
2004). The issue here is whether Hemsath demanded that Rhoades be discharged. Various
persons testified that he did and Rhoades presented no evidence to the contrary.

2.
In support of his argument that the proffered reasons for discharge were insufficient,
Rhoades also contends that the district court erred by applying the honest belief rule to the third
pretext prong.3 This argument is unavailing.
The “honest belief” rule, as it is called, comes in at the pretext stage and places an
additional evidentiary burden on Plaintiffs. See, e.g., Braithwaite v. Timken Co.,
258 F.3d 488, 494 (6th Cir. 2001). This circuit follows a modified form of the
rule, asking whether the defendant “made a reasonably informed and considered
decision before taking an adverse ... action.” Smith v. Chrysler, 155 F.3d 799, 807
(6th Cir. 1998). Where the defendant “‘made an error too obvious to be
unintentional,’” a fact-finder may infer that “‘it had an unlawful motive for doing
so.’” Id. (quoting Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C.
Cir. 1996)).
A.C. ex rel. J.C. v. Shelby County Bd. of Educ., 711 F.3d 687, 705 (6th Cir. 2013).
Rhoades cites an unpublished district court opinion, Gurne v. Mich. Bell Tel. Co., No. 1014666, 2011 WL 5553817 (E.D. Mich. Nov. 15, 2011), for its interpretation of a footnote in
Joostberns v. United Parcel Servs., Inc., 166 F. App’x 783, 794 n.5 (6th Cir. 2006), as precluding
3

Rhoades did not waive or forfeit this argument because the issue did not arise until the district
issued its opinion. Standard Parking did not argue below that the honest belief rule applied to the
third prong, nor did the district court discuss this issue before issuing its decision.
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an employer from invoking the honest belief rule when an employee seeks to establish pretext
other than under the first pretext prong:
If the plaintiff uses the first method [of establishing pretext], which “is essentially
an attack on the credibility of the employer’s proffered reason,” the “honest
belief” rule may be invoked. [Joostberns v. United Parcel Servs., Inc., 166 F.
App’x 783,] 791. It may not be invoked if plaintiff uses the other two methods.
Id. at 794, n.5.
The footnote in Joostberns stated “[t]he honest belief rule would not prevent Plaintiff from
establishing pretext through methods other than the falsity of the reason offered.”
Assuming that the scant nonbinding authority Rhoades relies on is correct, any error was
harmless, because the district court correctly determined that Rhoades failed to show by a
preponderance of the evidence that other employees were not discharged even though they
engaged in substantially identical conduct to his. See Manzer, 29 F.3d at 1084. Excluding the
honest belief rule from use in the third prong would only matter if Hemsath’s statement was
inadmissible hearsay. It is not. The statement is admissible as evidence of the request and the
request differentiates Rhoades’s circumstances from other employees’ circumstances.
None of the three younger employees Rhoades points to, Mitri Ndoni, Rube Richards,
and Latasha Jones, were the subject of a client complaint and a client’s demand that he or she be
removed.
Moreover, Ndoni and Richards were 65 years old and 68 years old at the time Rhoades
was discharged at age 71 in May 2010, and thus were in the same protected class as Rhoades.
This court has held that “in the absence of direct evidence that the employer considered age to be
significant, an age difference of six years or less between an employee and a replacement is not
significant.” Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003). Rhoades
presented no direct evidence that Standard Parking considered age to be significant.
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In any event, even if Ndoni yelled at a customer and was not discharged, but rather, was
transferred to a different parking lot, Ndoni, unlike Rhoades who was an at-will employee, was a
member of the Teamsters’ Union and subject to a grievance procedure that requires a showing of
just cause to support termination. PID 621. Matthew Neuman’s affidavit submitted below stated
regarding Latasha Jones that, to his knowledge, Standard Parking never concluded that she was
guilty of theft, and regarding Rube Richards that no client demanded that Richards be removed
from any lot he worked for Standard Parking.

PID 621.

Rhoades presented no contrary

evidence, and thus failed to demonstrate that younger employees were not fired even though they
engaged in substantially identical conduct to his.
For these reasons, we agree with the district court that Rhoades did not present sufficient
evidence of pretext to survive summary judgment, and AFFIRM the grant of summary judgment
to Standard Parking.

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