Gerard Howley v. Federal Express Corporation

Filing

OPINION filed: We REVERSE the district court's decision to grant summary judgment and REMAND for proceedings consistent with this opinion. Decision not for publication. Gilbert S. Merritt, Circuit Judge; Eric L. Clay, (authoring), Circuit Judge; and Bernice Bouie Donald, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0162n.06
No. 16-1559

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
Mar 15, 2017
DEBORAH S. HUNT, Clerk

GERARD HOWLEY,
Plaintiff-Appellant,
v.

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

FEDERAL EXPRESS
CORPORATION,
Defendant-Appellee.

BEFORE:

MERRITT, CLAY, and DONALD, Circuit Judges.

CLAY, Circuit Judge. Plaintiff Gerard Howley sued Defendant Federal Express
Corporation (“FedEx”) pursuant to Michigan’s Elliot-Larsen Civil Rights Act, Mich. Comp.
Laws § 37.2101, et seq., alleging that Howley was the victim of unlawful age discrimination.
The district court granted summary judgment on behalf of FedEx and Howley now appeals. For
the reasons set forth below, we REVERSE the district court’s decision and remand for
proceedings consistent with this opinion.
BACKGROUND
I.

Factual background
The Federal Express Corporation (“FedEx”) is an express transportation and package

delivery company based in Memphis, Tennessee. It maintains an Acceptable Conduct Policy,
which is outlined in an employee handbook. The policy states, in pertinent part, that the receipt

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of three letters of deficiency within a twelve month period may result in termination.
Additionally, the handbook outlines policies and procedures, violations of which serve as
potential grounds for disciplinary actions—including “leadership failure” and the use of abusive
language.
Howley was employed at FedEx for twenty-one years, beginning in 1992 until his
termination on November 13, 2013. At the time of his termination, FedEx employed Howley as a
Dispatch Manager at its Great Lakes District Office in Novi, Michigan. Howley’s responsibilities
included supervising FedEx’s dispatchers and performing various administrative and managerial
tasks. From 2010 until his termination, Senior Manager of Dispatch Operations, Jaime Haboush
was Howley’s supervisor. Following Howley’s termination, Haboush selected James Person, age
57, to replace Howley.
FedEx terminated Howley’s employment after he received three disciplinary letters in a
twelve month period. Prior to receipt of the disciplinary letters, Haboush counseled Howley on
several occasions relating to his conduct and performance. In March 2013, Haboush formally
disciplined Howley with a warning letter—his first offense. The discipline arose because an
employee, Debra Wagner, complained to Haboush that Howley used inappropriate language
towards her, including telling her that she was “pissing him off.” Haboush decided to discipline
Howley for his abusive language towards a subordinate because it contravened FedEx’s
Acceptable Conduct Policy.
Howley received a second disciplinary warning in October 2013 for his failure to respond
to a subordinate employee’s e-mail regarding her request for time off pursuant to the Family
Medical Leave Act (“FMLA”), 29 U.S.C.A. § 2601, et seq. FedEx employee Karen Robert sent
Howley an e-mail informing him that she needed to take time off in order to accompany her

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father to an FMLA-approved medical appointment. When Howley failed to respond, Robert
independently sought cover for her shift from a co-worker. Other dispatchers complained to
Haboush about the coverage. Upon examining the matter, Haboush decided to issue Howley a
performance reminder to reaffirm his responsibilities as a supervisor.
The third disciplinary letter was issued to Howley on November 13, 2013 for leadership
failure, and resulted in his termination. On November 1, 2013, one of Howley’s subordinates, Jo
Thomas, was speaking to an upset customer who demanded to see a manager about a missing
package. When Thomas could not reach the local manager, she asked Howley to speak with the
customer. Howley refused. Thomas complained to Haboush, who investigated the matter and
made the decision to issue a warning letter for leadership failure. Because this was Howley’s
third formal letter of deficiency within a year, Haboush terminated Howley’s employment in
accordance with the company’s Acceptable Conduct Policy. Howley appealed his termination,
and it was independently reviewed by various senior personnel in the company, all of whom
upheld Haboush’s decision.
II.

Procedural History
Howley filed a complaint in the United States District Court for the Eastern District of

Michigan under Michigan’s Elliot-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101, et
seq., alleging unlawful age discrimination. The district court exercised jurisdiction on the basis
of diversity. At the close of discovery, FedEx moved for summary judgment. Howley then
requested additional time to depose witnesses, which the district court granted, and allowed both
parties to file supplemental briefs. On December 10, 2015, the district court heard oral arguments
on both parties’ summary judgment motions, and on March 29, 2016, issued its opinion granting
FedEx’s motion. Howley filed a timely notice of appeal.

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DISCUSSION
I.

Standard of Review
This Court reviews de novo a district court’s decision to grant a motion for summary

judgment. Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 535–36 (6th Cir. 2014).
Summary judgment is appropriate when the moving party can “show[ ] 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). This Court views the facts and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The central issue is whether the evidence presents a material factual
dispute sufficient to require submission of a plaintiff’s claims to a jury or whether the evidence is
so lacking in plaintiff’s favor as to entitle a defendant to prevail as a matter of law. Ondricko v.
MGM Grand Detroit, LLC, 689 F.3d 642, 648 (6th Cir. 2012) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986)).
II.

Analysis
Under the Elliot-Larson Civil Rights Act, an employer shall not:
Fail 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 religion, race, color, national origin, age,
sex, height, weight, or marital status.

M.C.L. § 37.2202(1)(a) (emphasis added). A plaintiff may prove discrimination through either
direct evidence of bias, or otherwise, when no direct evidence of impermissible bias can be
located, by satisfying the framework set forth in the Supreme Court case of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Hazle v. Ford Motor Co., 628 N.W.2d 515, 520
(2001). Howley argues that the district court erred in granting summary judgment to FedEx
because he put forward sufficient evidence of direct discrimination on the basis of age and
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because he satisfied the McDonnell Douglas test. We agree, finding Howley has provided
sufficient evidence of discrimination to defeat a motion for summary judgment.
A. Direct evidence
Under the Elliot-Larson Civil Rights Act, a plaintiff may produce direct evidence of
unlawful bias, and thus prove unlawful discrimination in the same manner as a plaintiff in any
other civil rights case. See, e.g., DeBrow v. Century 21 Great Lakes, Inc., 620 N.W.2d 836
(2001); Matras v. Amoco Oil Co., 385 N.W.2d 586 (1986). In its interpretation of the ElliotLarson Civil Rights Act, the Michigan Supreme Court has endorsed the Sixth Circuit’s definition
of “direct” evidence in the analogous federal Civil Rights Act and appropriated the analysis
accordingly. See Hazle, 628 N.W.2d at 520; see also Sniecinksi v. Blue Cross & Blue Shield, 666
N.W.2d 186, 192 (2003) (“[this Court] ha[s] previously cited with approval the United States
Court of Appeals for the Sixth Circuit’s definition of ‘direct evidence’ as ‘evidence which, if
believed, requires the conclusion that unlawful discrimination was at least a motivating factor in
the employer's actions.’”).
Howley contends that he submitted evidence of “multiple statements that are direct
evidence of age-based discriminatory animus, and that those statements were made in temporal
proximity to, and tied to the decision to, both discipline and terminate [Howley].” Specifically,
Howley points to the following three remarks from deposition testimony as direct evidence of
discrimination: (1) Haboush inquired about how much money Howley made and expressed
surprise at the length of his employment with FedEx; (2) Haboush asked employees in the work
group about their retirement plans and “why they were still working”; and (3) Haboush
expressed concern that employees were “being old and not keeping up with technology, the fact
that they were . . . still around and should have retired.” (Appellant Br. at pg. 16). According to

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Howley’s deposition, Haboush made these comments throughout Haboush’s tenure as a
manager. Howley believes that these three statements are sufficient to show direct evidence of
discriminatory animus.1 While under some circumstances, this Court might be disinclined to find
that these statements, by themselves, are sufficient to constitute direct evidence of age-related
bias, under the circumstances presented in the instant case, we believe that an inference can be
drawn that Howley was terminated based on his age.
As a threshold matter, there is some ambiguity over the standard that the Michigan courts
use to evaluate direct evidence of age-related bias claims. Prior to the Supreme Court’s decision
in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), this Court defined direct evidence as that
evidence “which, if believed, requires the conclusion that unlawful discrimination was at least a
motivating factor in the employer’s actions.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d
564, 570 (6th Cir. 2003) (en banc). In Gross, however, the Supreme Court specifically held that
the inquiry is whether the plaintiff has proven “by a preponderance of the evidence . . . that age
was the ‘but-for’ cause of the challenged employer decision.” Geiger v. Tower Auto., 579 F.3d
614, 621 (6th Cir. 2009) (explaining the Supreme Court decision in Gross). Subsequently, this
Court has held that direct evidence of bias is evidence that, if believed, “requires the conclusion
that age was the ‘but for’ cause of the employment decision.” Scheick v. Tecumseh Pub. Sch.,
766 F.3d 523, 530 (6th Cir. 2014). Although the Michigan courts purport to follow the federal

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FedEx contends that Howley forfeited his argument regarding the existence of direct evidence of age
discrimination on appeal by failing to present the issue before the district court. Having reviewed the briefing before
the district court, we do not agree. While Howley did not explicitly state that his argument was one of direct
evidence of discrimination, he properly raised the factual circumstances giving rise to a direct evidence claim;
accordingly, we find that he did not waive his argument.

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standard under the Age Discrimination in Employment Act (“ADEA”), they have not explicitly
endorsed the post-Gross standard.2
Under normal circumstances, the alleged remarks made by Haboush might be viewed as
simply too attenuated from the termination process to constitute direct evidence of
discrimination. And we generally recognize that statements about the impending retirement of
employees are not, by themselves, sufficient to constitute direct evidence of discrimination. See
Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 724 (6th Cir. 2012). We similarly recognize
that “statements by decision makers unrelated to the decisional process itself [cannot] suffice to
satisfy the plaintiff’s burden of demonstrating animus.” Geiger, 579 F.3d at 621. However, in
this case, it is not just the statements themselves that suggest a discriminatory intent on the part
of FedEx.
Most significantly, there are the suspicious circumstances surrounding Howley’s
termination that give rise to a negative inference of age discrimination. FedEx contends that it
had legitimate reasons for issuing a warning to Howley on all three occasions for which he was
disciplined. However, this Court is struck by the relatively minor nature of Howley’s offenses
and wonders whether any of them merited termination. In the first instant, Howley allegedly
directed the term “pissed off” at a subordinate. As an initial matter, Howley disputes this
account, asserting that although he used the phrase in question, he never directed the language at
his subordinate. This already suggests a disputed issue of material fact. But more importantly,
evidence in the record exists to show that much more egregious language than that used by
Howley was regularly used in the workplace, including by Haboush himself. The infraction
posed by the use of the term “pissed off,” especially in light of the evidence showing that much
2

 In the most recent Michigan Supreme Court opinion analyzing discrimination, the court noted in passing
that “the best general definition of direct evidence is that it is evidence that proves impermissible discriminatory bias
without additional inference or presumption.” Hecht v. Nat’l Heritage Acads., Inc., 886 N.W.2d 135, 147 (2016).

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more derogatory language was used in the workplace, appears to this Court to be rather mild, and
therefore, probably not warranting discipline. The second disciplinary action also seems
unjustified. Allegedly, Howley failed to respond to one subordinate’s e-mail requesting time off,
which purportedly led to an employee complaint. However, there is evidence in the record
stating that no other employee has been subject to disciplinary action for failing to promptly
respond to a single e-mail. A supervisor in Howley’s position receives dozens of e-mails in a
given day, and the failure to respond to one, especially one that resulted in no tangible harm to
FedEx’s operation, hardly merited formal disciplinary action, and eventually termination.
Finally, the third disciplinary action also resulted from behavior that appears fairly innocuous.
Howley allegedly failed to speak to a customer, in the absence of the responsible manager, in
order to help the customer deal with a missing package that both parties concede Howley had no
knowledge about or any responsibility for. Perhaps Howley could have conducted himself in a
manner more befitting of a supervisor and attempted to pitch in and pacify the customer, but
again there does not appear to be any significant dereliction of duty.
The innocuous nature of the conduct giving rise to Howley’s termination is all the more
apparent when contrasted with Howley’s previous twenty-one years of employment at FedEx.
The parties point to no other disciplinary action that was taken against Howley throughout his
twenty-one year tenure. However, upon the appointment of Haboush as Howley’s supervisor,
Howley managed to accumulate three warning letters within a nine month span. Given the
insubstantial nature of the incidents giving rise to the disciplinary actions, when coupled with
Haboush’s statements concerning age and his purported attempt to reassign Howley to an
alternative position requiring Howley to take a fifty percent pay cut, this Court cannot help but

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come away with the conclusion that there are disputed issues of material fact regarding Howley’s
termination.
Accordingly, notwithstanding the evidence that Howley may have violated certain
company policies, the evidence taken as a whole, and in the light most favorable to Howley, is
sufficient to permit a reasonable juror to conclude that age was the but-for cause of FedEx’s
decision to terminate Howley’s employment. Although the fact finder may ultimately determine
otherwise, Howley has met his burden to avoid summary judgment and to present his case to a
jury. Alternatively, we also find that Howley has made out his prima facie case under the
McDonnell Douglas.
B. Prima facie case
Under the framework established in McDonnell Douglas, if a plaintiff cannot prove
discriminatory intent by direct evidence, he may do so by making out a prima facie case of age
discrimination through indirect or circumstantial evidence. See Martin v. Toledo Cardiology
Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008); Hazle, 628 N.W.2d at 520. Once a prima
facie case has been made, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Lefevers, 667 F.3d at 725. If a
defendant comes forward with appropriate reasons for termination, “‘the plaintiff must produce
sufficient evidence from which the jury may reasonably reject the employer’s explanation’ as
pretextual.” Martin, 548 F.3d at 410–11 (quoting Manzer v. Diamond Shamrock Chems. Co., 29
F.3d 1078, 1083 (6th Cir. 1994)).
To establish a prima facie case of discrimination under the Elliot-Larson Civil Rights
Act, a plaintiff must prove four things: “(1) [he] belonged to a protected class, (2) [he] suffered
an adverse employment action, (3) [he] was qualified for the position, and (4) [the adverse

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employment action] occurred under circumstances giving rise to an inference of unlawful
discrimination.” Sniecinski, 666 N.W.2d at 193. The standard used to establish a prima face case
under the Elliot-Larson Civil Rights Act is the same as the standard used by this Circuit in cases
involving the ADEA. See Town v. Michigan Bell Tel. Co., 568 N.W.2d 64 (1997). FedEx does
not dispute that Howley can satisfy the first three elements of his prima facie case, and instead
argues that Haboush’s actions do not give rise to an inference of discrimination.
A plaintiff can satisfy the fourth prong of the prima facie test by showing that he was
“treated differently from similarly situated employees outside the protected class.” Mitchell v.
Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004). Howley argues that he has submitted
substantial evidence that similarly situated persons regularly violated FedEx policies without
being terminated. This Court agrees.
As a threshold matter, FedEx contends that any inference of age discrimination is
rebutted by the fact that Howley was replaced by an older employee. While this certainly is
probative evidence that Howley suffered no age-discrimination, it is not dispositive. This Court
has stated that one way an employee can make out a prima facie case is by showing that she was
replaced by someone outside the protected class. See Martin, 548 F.3d at 410. However, another
avenue available to the employee is to show that “she received different treatment than a
similarly situated non-protected employee.” Oliver v. St. Luke's Dialysis LLC, 491 F. App’x 586,
587 (6th Cir. 2012); see also, Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 347–48 (6th Cir.
2012) (identifying that the fourth prong can be satisfied by showing that “either a person outside
the protected class replaced [the employee] or [the employee] received different treatment than a
similarly situated non-protected employee.”) (emphasis added). Accordingly, Howley is still
entitled to make out his prima facie case if he can show that his treatment differed from that of

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similarly situated younger employees with respect to the individual disciplinary actions that were
taken against him.
The crux of this inquiry turns on the term “similarly situated.” To satisfy the similarly
situated requirement, a plaintiff must demonstrate that the comparable employee is similar “in all
of the relevant aspects.” Martin, 548 F.3d at 412. We have made clear that this does not mean
that the plaintiff must demonstrate an exact correlation. See Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). This Court looks “at those factors relevant to the
factual context” in order to determine whether an employee is similarly situated. Jackson v.
FedEx Corp. Servs., Inc., 518 F.3d 388, 396 (6th Cir. 2008). This includes examining whether a
plaintiff’s proposed comparators engaged in acts of comparable seriousness. Bobo v. United
Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012). But we have not required all the factual
circumstances to be identical before we considered a younger employee to be “similarly
situated.”
In examining each of the incidents at issue, this Court finds that Howley has satisfied the
similarly situated requirement and made out his prima facie case. With respect to the first
disciplinary action taken against him, Howley has come forward with testimony in the record
stating that employees who were considerably younger than him used inappropriate language in
the workplace all the time. Even Haboush allegedly cursed during staff meetings. FedEx argues
that the circumstances surrounding Howley’s use of inappropriate language are different because
Howley targeted his inflammatory language toward a subordinate. However, Howley disputes
this account. On a motion for summary judgment, this Court credits Howley’s version of the
facts. Therefore, we find that sufficient evidence has been presented of similarly situated
individuals who engaged in conduct identical to Howley—cursing in the workplace—and

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escaped punishment. Likewise, for each of the other two disciplinary incidents, Howley has put
forward evidence that no one—including younger employees—had ever been disciplined for
either failing to respond to an e-mail or by declining to speak to a customer concerning a lost
package. In light of this evidence, the Court concludes that Howley has satisfied his prima facie
case of age discrimination.
According to the framework set forth in McDonnell Douglas, after Howley successfully
establishes his prima facie case, the burden shifts to FedEx to articulate a legitimate, nondiscriminatory reason for the employment action. 411 U.S. at 802. With respect to each
disciplinary action undertaken against Howley, FedEx presented an arguably legitimate and nondiscriminatory reason. A legitimate, non-discriminatory reason is one “which, if believed by the
trier of fact, would support a finding that unlawful discrimination was not the cause of the
employment action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993). This Court
has repeatedly held that violations of company policies, poor managerial skills, or leadership
failures are legitimate, non-discriminatory reasons for disciplining or discharging an employee.
See Idemudia v. J.P. Morgan Chase, 434 F. App’x 495, 502 (6th Cir. 2011) (poor management
of a branch bank office, operation issues, and failure to follow policy and procedures were
legitimate nondiscriminatory reasons for terminating the employee); Clark v. Walgreen Co., 424
F. App’x 467, 473 (6th Cir. 2011) (violation of company policy is a legitimate,
nondiscriminatory reason for firing a plaintiff); Bowie v. Advanced Ceramics Corp., 72 F. App’x
258, 263 (6th Cir. 2003) (lack of leadership skills constitute a non-discriminatory reason for
terminating an employee).
Once the employer meets its burden under step two of McDonnell Douglas, Howley must
demonstrate that the articulated reason is mere pretext for discrimination. See Blizzard v. Marion

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Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012) (citing Sutherland v. Mich. Dep’t of Treasury, 344
F.3d 603, 615 (6th Cir. 2003). To do so, Howley must “produce sufficient evidence from which
the jury may reasonably reject the employer’s explanation.” Idemudia, 434 F. App’x at 502. This
requires demonstrating that “the employer’s given reason for its conduct ‘had no basis in fact,
did not actually motivate the defendant’s challenged conduct, or was insufficient to motivate the
defendant’s challenged conduct.’” Lefevers, 667 F.3d at 725 (quoting Schoonmaker v. Spartan
Graphics Leasing, LLC, 595 F.3d 261, 269 (6th Cir. 2010)). We believe that there is a sufficient
basis for a jury to conclude that FedEx’s articulated reasons did not actually indicate its
motivation for terminating Howley. Our conclusion rests in part upon the suspicious
circumstances surrounding Howley’s termination, which we have described at sufficient length
in the preceding section. And our conclusion is further buttressed by the age-related comments
made by Haboush toward Howley and other employees. Consequently, we find that the district
court improperly entered judgment against Howley with respect to his age discrimination claim.
CONCLUSION
For the foregoing reasons, we REVERSE the district court’s decision to grant summary
judgment and remand for proceedings consistent with this opinion.

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