Washburn v. General Electric Capital Corporation

Filing 40

OPINION AND ORDER denying defendant's Motion for Summary Judgment 32 . Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SUZANNE WASHBURN,
Plaintiff,
Case No. 09-CV-10202
v.
HON. GEORGE CARAM STEEH
GENERAL ELECTRIC CAPITAL,
CORPORATION,
Defendant.
_____________________________________/
OPINION AND ORDER DENYING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On January 19, 2009, plaintiff Suzanne Washburn filed a complaint against her
former employer, defendant General Electric Capital Corporation (“GE Capital”), alleging
sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and the Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2201 et seq.,
relating to the termination of her employment. Before the court is defendant’s motion for
summary judgment. Oral argument occurred at a hearing on this motion on June 29, 2011.
For the reasons that follow, the court DENIES defendant’s motion for summary judgment.
EVIDENCE
Plaintiff was a district manager (DM) in GE Capital’s Transportation Finance Group.
The Transportation Finance Group provides financing for the commercial trucking industry,
including lending products, growth capital, revolving lines of credit, equipment leasing, cash
flow programs, and asset financing. The Transportation Finance Group is based in Texas
and has multiple branch offices throughout the United States.
During the time period at issue in this case, GE Capital had a code of conduct

entitled “The Spirit and The Letter,” which sets forth the company’s fair employment
practices. The code of conduct provides that the company will “make all employment
related decisions and actions without regard to a person’s . . . sex . . . or other
characteristic protected by law.” Plaintiff received a copy of “The Spirit and The Letter”
during her employment with GE Capital and attended training about prohibited harassment.
In addition, all managers at the company, including Jim Flanigan, receive training on “The
Spirit and The Letter.”
In June 1980, McCullough Leasing hired plaintiff as a clerk in the retail department.
In 1990, GE Capital Fleet Services acquired McCullough Leasing, and plaintiff was hired
by GE Capital Fleet Services as an administrative secretary. Plaintiff held various positions
at GE Capital and her 2005 work performance rating was “Needs Improvement.” Toward
the end of 2005, Stanley Boris, who was Sales Manager for GE Capital Transportation
Finance Group, offered to interview plaintiff for the DM position. Plaintiff also interviewed
for the position with Jim Flanigan, John Conkin, and Dan Clark. At the time of plaintiff’s
hiring, Boris was aware that plaintiff’s performance was under scrutiny. Flanigan was also
told that plaintiff was on a Performance Improvement Plan (PIP). Flanigan recommended
that GE Capital hire plaintiff for the DM position and Conkin approved the hiring. When
Conkin made the final hiring decision, he was aware of plaintiff’s “Needs Improvement”
performance rating.
On April 26, 2006, Boris sent plaintiff an e-mail outlining general performance
expectations for the DM position.

Specifically: (1) the normal annual sales volume

requirements for plaintiff’s territory were $25 to $30 million; (2) after she was in the position
for 90 days, she should meet sales volumes of $1 million each month; and (3) by the end
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of 2006, she should meet sales volumes of $2 million each month.
In June 2006, plaintiff started in the DM position. She reported to Boris, who
reported to Flanigan, who reported to Conkin. As DM, plaintiff was responsible for
procuring clients to whom GE Capital would lend money. This included calling on dealers,
trucking companies, and companies with trucking fleets in the territory to try to generate
business. DMs were responsible for entering their weekly itineraries, such as information
relating to telephone calls, meetings, action items, and potential transactions into a sales
database system called Siebel. Boris and Flanigan reviewed each DM’s Siebel entries on
a regular basis. They also expected all DMs to make a monthly marketing plan, which
Boris reviewed with each DM on a weekly basis.
Plaintiff was assigned the eastern Michigan sales territory, which originally was to
include the Detroit metropolitan area and Toledo, Ohio. When she transferred to the
position, there had been no DM assigned to the Detroit metropolitan area for approximately
three or four years. During that time, DM Douglas Moeller serviced clients in the Toledo
area. Once plaintiff took the DM position, Boris allowed Moeller to continue his assignment
because he had been servicing that area. Plaintiff complained to Flanigan about the
change in the territorial division and Flanigan never responded. Plaintiff never serviced the
Toledo area during her employment as a DM. Her sales goals were based on Michigan
only.
To determine plaintiff’s sales goals, Boris reviewed written data relating to the
vehicle population and the customer bases in the territory. He also reviewed historical
business in the territory. Plaintiff’s annual sales goals were as follows: $12 million for 2006;
$24 million for 2007; and $21 million for 2008. Plaintiff understood that GE Capital
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expected her to reach her sales goals.
Plaintiff’s total sales volume for 2006 was $2,917,300. Her goal for 2006 was $12
million. Sometime in early 2007, Boris became concerned about plaintiff’s ability to
generate sales volume. At that point, Boris met with plaintiff to review her sales plan and
determine what he could do to help her succeed. In addition, Boris traveled to plaintiff’s
territory to observe her job performance and identify any missed opportunities. Finally,
Boris spoke with plaintiff on a regular basis to review her progress.
On or about March 19, 2007, plaintiff met with Boris and Flanigan in Chicago to
discuss her work performance. According to plaintiff, when Flanigan joined the meeting he
would not acknowledge her. Flanigan then allegedly told her, “I want you to give an
explanation as to why your [Siebel] schedule is not filled and I’m not seeing anything.” At
that point, Boris turned his computer to show Flanigan that plaintiff’s schedule was
complete. Plaintiff alleges that after this meeting, Boris told her that Flanigan told him that
he “did not believe that a female should be in [the DM] position.” Flanigan denies making
this statement. Flanigan believes that his limited contact with plaintiff was due to his limited
contact with DMs unless asked to participate in sales calls. Flanigan contends that he did
not attend any sales calls with plaintiff because she did not ask him to attend sales calls
and because he does not know many customers in her territory.
On March 21, 2007, Boris sent an e-mail to plaintiff stating that her sales volume for
the first quarter of 2007 was an estimated $2.5 million. The e-mail also stated that she
must “demonstrate continuous improvement in [the second quarter] with a target
achievement of $4.5 [million] and then a minimum of $2 [million] per month thereafter . . .”
Also in 2007, Boris issued plaintiff her 2006 performance review, which is referred to as an
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“EMS” (Employee Management System). Under the “Contributions/Performance Trend”
category, Boris stated that “[plaintiff] needs continued improvement in her performance to
achieve required volume objectives.” Plaintiff did not dispute the content of her 2006 EMS
with Boris. Plaintiff does not believe her EMS was based on sex.
As of August 31, 2007, plaintiff’s total sales volume for the year was $5.3 million.
Her goal for the same time period was $15 million. In September 2007, Boris placed
plaintiff on a PIP because she was not meeting her sales volume goals. Conkin gave the
final approval to issue the PIP. The PIP provided that:
[T]he following volume objectives over the next 3 [sic] will be established as
the minimum level required to achieve your performance improvement plan
during the months of September, October and November: September
$1.5M[;] October $1.8M[;] November $2.0M[; and] Total $5.3M . . .
Subsequent to October, you will be expected to continue to achieve your
minimum quarterly volume objective of $6.0M on an ongoing basis . . . Sue,
this letter is intended to reiterate that we require improvement with respect
to volume achievement for the Eastern Michigan territory . . . GE Commercial
Finance does not repeat performance improvement action plans. Failure to
achieve the minimum volume stated above could result in further action up
to and including termination.
Plaintiff understood that she was responsible for meeting the sales goals outlined in the PIP
and that failure to meet those goals could result in termination of her employment. Plaintiff
does not believe that the issuance of her September 2007 PIP was related to sex.
In early January 2008, plaintiff claims she received a phone call from Boris advising
her that he was told by Flanigan that she was “done,” meaning her employment was
terminated. Plaintiff immediately contacted the Human Resources Department and spoke
with Representative Binh Le. During this telephone call, plaintiff asked Le about her
employment status. Plaintiff claims that during this conversation Le told her GE Capital
was formally notifying her that within 90 days her employment would be terminated. He
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also recommended that she resign. According to plaintiff, she told him that she was being
treated differently than her male counterparts under the supervision of Flanigan and that
she felt her situation was due to her gender.
On or about January 7, 2008, Boris issued plaintiff a memorandum regarding her
PIP progress. The memorandum stated:
During the plan period, you achieved the following volume levels: September
$.5M[;] October $1.4M[;] November $.1M[; and] and Total $2.0M . . . This
represented a 38% achievement level against the performance plan minimum.
In December you booked $1.7MM . . . which would give you a total for the 4
months of $3.7MM or 51% achievement of the performance plan level.
Overall, your performance is still rated as Needs Improvement, and you have
not successfully met the outlined objectives of the Performance Improvement
Plan we initiated in September 2007. As stated in my September 10th letter,
your failure to meet the objectives in the PIP could result in further action by
GE, including termination.
Plaintiff’s total sales volume for 2007 was $8,824,400 and her sales goal for that period was
$24 million. Plaintiff does not believe that the issuance of the PIP progress memorandum
was related to her sex.
In February 2008, plaintiff received her 2007 EMS from Boris. Under the category
of “Contributions/Performance Trend,” the EMS states “Sue’s performance needs
improvement in 2008 to achieve her required volume objectives.” In early 2008, Boris
transferred from the Sales Manager position to the Medium Duty Finance Representative
position. In March 2008, he voluntarily resigned. Plaintiff then began reporting to Sales
Manager Jim Loughery. On March 27, 2008, Flanigan emailed Boris requesting he
discharge plaintiff. Boris then emailed Le stating that it would be inappropriate for him to
fire her because he was no longer her manager. Boris also said, “Michigan may not be
able to support two DM’s and a $48MM budget at this time. [Plaintiff] has called on
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customers and dealers as I have asked her to do. GE has a presence in the Detroit market
because of her efforts but the [sales] volume has not followed as of this date . . . [I]f it is
determined that the company should terminate her, my recommendation is that her position
be considered as a reduction in force . . .”
During the first quarter of 2008, plaintiff’s sales volume was $2,897,200 and her goal
was $3,822,000. On April 1, 2008, plaintiff received a memo from Flanigan terminating her
employment effective April 4, 2008. Conkin made the final decision to discharge plaintiff
after consulting with Flanigan and Le. Flanigan testified that plaintiff is the only DM whose
employment he recommended be terminated.
Other DMs in the Transportation Finance Group were issued warnings by Boris,
Flanigan, and Loughery. On or about August 24, 2005, Boris issued a PIP to DM Victor
Siegel because he was not meeting his sales goals. Siegel ultimately did not meet his PIP
requirements and resigned in lieu of termination.
On or about April 3 and 4, 2008, Flanigan and Loughery issued performance
counseling memorandums to Thomas Rayburg, John Mauer, and Mike Hirsch because
they failed to meet their sales goals in 2007 and for the first quarter of 2008. None of these
male DMs received a PIP and none of these male DMs were fired. Boris testified that the
decision to issue a PIP to a DM is based on “making progress, historically how they
performed, and whether they were continuing to make progress in their numbers.” When
testifying as to why the male DMs were not issued PIPs, Boris said Rayburg had not
worked for a full year and was trending upward, Mauer had a solid pipeline and was
trending upward, and Hirsch “had a history of high performance.” Another DM, Moeller,
was never issued a counseling memorandum for failing to meet his sales goals because
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Boris believed “he was a solid performer historically.”
Flanigan testified that plaintiff was issued a PIP and other DMs were not because
she did not meet sales numbers, and her marketing plan, itinerary, sales calls, and
projections were unsuccessful. During the period in which plaintiff worked as a DM, she
was the lowest-rated performer in the Transportation Finance Group. Plaintiff was the only
female DM working under Boris and Flanigan during the period in which she was employed
by defendant.
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) empowers the court to render summary
judgment forthwith if the “pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law." See
Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has
affirmed the court's use of summary judgment as an integral part of the fair and efficient
administration of justice. The procedure is not a disfavored procedural shortcut. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The standard for determining whether summary judgment is appropriate is "'whether
the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.'" Amway Distributors
Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all reasonable
inferences must be construed in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[T]he
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mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there
be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original).
If the movant establishes by use of the material specified in Rule 56(c) that there is
no genuine issue of material fact and that it is entitled to judgment as a matter of law, the
opposing party must come forward with "specific facts showing that there is a genuine issue
for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean
v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in
the non-movant's pleadings will not meet this burden, nor will a mere scintilla of evidence
supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be
evidence on which a jury could reasonably find for the non-movant. Id.
ANALYSIS
To establish a claim under Title VII and the Elliott-Larsen Civil Rights Act, plaintiff
may either present direct or circumstantial evidence of discrimination. “[D]irect evidence
is that evidence which, if believed, requires the conclusion that unlawful discrimination was
at least a motivating factor in the employer’s actions.”

Jacklyn v. Shering-Plough

Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). Also, “direct evidence
of discrimination does not require the factfinder to draw any inferences in order to conclude
that the challenged employment action was motivated at least in part by prejudice against
members of the protected group.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.
2003). Once direct evidence has been presented, “the burden of persuasion shifts to the
defendant to show that it would have terminated the plaintiff’s employment had it not been
motivated by discrimination.” Jacklyn, 176 F.3d at 926.
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To establish a claim using circumstantial evidence, plaintiff’s evidence needs to
allow the fact finder to draw a reasonable inference that discrimination occurred. Kline v.
Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 2003). Plaintiff is required to first establish
a prima facie case by showing that (1) she was a member of a protected class, (2) she
suffered an adverse employment action, (3) she was qualified for her position, and (4) she
was treated differently than similarly situated employees. Wright v. Murray Guard, Inc., 455
F.3d 702, 707 (6th Cir. 2006) (describing the McDonald Douglass Corp. elements to
establish a prima facie case). The Sixth Circuit has summarized the burden shifting as
follows:
Under the McDonnell Douglas burden-shifting framework, once the plaintiff
establishes a prima facie case of intentional discrimination, the burden shifts
to the defendant to articulate a nondiscriminatory reason for its actions. The
defendant bears only the burden of production; the burden of persuasion
remains with the plaintiff at all times. Once the defendant has articulated a
nondiscriminatory reason for its decision, the presumption of discrimination
that arises from the plaintiff’s prima facie case disappears and the plaintiff
must have the opportunity to show that the defendant’s proffered
explanation is merely a pretext for discrimination.
Weigel v. Baptist Hosp., 302 F.3d 367, 377-78 (6th Cir. 2002) (internal citations omitted).
When defendant establishes a non-discriminatory reason for termination, it becomes
plaintiff’s burden to show that defendant’s proffered reason for termination is mere pretext.
To meet her burden, “plaintiff must show that ‘either (1) the proffered reason had no basis
in fact, or (2) that the proffered reason did not actually motivate [her] discharge, or (3) that
[the proffered reason was] insufficient to motivate the discharge.”’ Russell v. Univ. of
Toledo, 537 F.3d 596, 604 (6th Cir. 2008) (emphasis in original) (citing Manzer v. Diamond
Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994)).
As the following discussion indicates, plaintiff has successfully presented direct
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evidence of gender discrimination. It should also be noted that plaintiff can establish a
prima facie case using circumstantial evidence of disparate treatment as compared to her
male counterparts. Defendant only seriously challenges plaintiff’s ability to show that she
was treated differently than similarly situated employees. However, plaintiff satisfies this
element as discussed in the pretext section of this opinion.
Plaintiff’s Direct Evidence of Discrimination
Plaintiff argues that Boris’s statement to her describing Flanigan’s statement about
not wanting a female in the DM position constitutes direct evidence of discrimination.
Plaintiff also alleges Flanigan’s behavior at the March 19, 2007 meeting and Flanigan’s
failure to attend sales calls with plaintiff constitute direct evidence of discrimination.
Defendant argues Boris’s statement is inadmissible hearsay. Plaintiff contends
Boris’s statement is not hearsay. Under FRE 801(d)(2)(D), a statement is not hearsay
when it is “offered against a party” which was made “by the party’s agent or servant
concerning a matter within the scope of the agency or employment, made during the
existence of the relationship.” The alleged statement is offered by plaintiff and was
allegedly made by Boris during Boris’s employment with defendant. Defendant argues that
Boris’s statement was not made during the scope of his employment because, “there is a
critical difference between making a statement as an employee and having the actual or
implied authority to make such a statement on behalf of your employer.” Jacklyn, 176 F.3d
at 928. In Jacklyn, the plaintiff attested that her manager told her that the regional manager
said he did not want any “skirts” working for him. Because the regional manager who
allegedly made the “skirts” statement was not the regional manager at any time when the
manager was supervising the plaintiff, and because the manager was not involved in any
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of the critical appraisals preceding the plaintiff’s leave, the court concluded the manager’s
statement was not within the scope of his employment. Id. Conversely, Boris’s alleged
statement about Flanigan’s alleged statement was made at a time when Boris was
plaintiff’s direct supervisor and Boris reported to Flanigan. Boris issued plaintiff a PIP,
plaintiff failed to meet her goal, and plaintiff was terminated upon Flanigan’s
recommendation. Therefore, Boris’s statement falls within the scope of his employment
and thus is not hearsay.
Defendant also argues plaintiff’s description of Boris’s alleged statement is an
inadmissible opinion of a lay witness under FRE 701. However, plaintiff is testifying about
a fact and is not asserting an opinion. Next, defendant argues Boris’s statement is
inadmissible because plaintiff “bears the burden of establishing the proper foundation for
the admissibility of the statements.” Liadis v. Sears, Roebuck & Co., 47 F. App’x 295, 303
(6th Cir. 2002)). Defendant claims plaintiff did not establish a proper foundation. According
to plaintiff, Flanigan treated her in a bizarre manner during the March 2007 meeting.
Plaintiff asserts that when she asked Boris about Flanigan’s behavior, Boris told her that
Flanigan stated that he “did not believe that a female should be in [the DM] position.”
Plaintiff infers that the temporal proximity of the comment to the bizarre interaction at the
meeting establishes a foundation. Drawing all inferences in favor of the non-moving party,
plaintiff has established that Flanigan was speaking about her position with the company.1
Defendant further claims that even if Boris’s statement is admissible, the statement

1

Defendant argues that the FRE 804(b)(3) does not apply. This rule only applies
when the declarant is unavailable. Boris and Flanigan are available to testify and both
were deposed. The court does not need to address this issue because plaintiff has
already established Boris’s statement was not hearsay.
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is not direct evidence of discrimination because Flanigan was not the final decision maker
in plaintiff’s termination. Defendant relies on McDonald v. Union Camp Corp., 898 F.2d
1155, 1161 (6th Cir. 1990) which found “a statement by an intermediate level management
official is not indicative of discrimination when the ultimate decision to discharge is made
by an upper level official.” However, the Supreme Court recently held an employer liable
when “one of its agents committed an action based on discriminatory animus that was
intended to cause, and did in fact cause, an adverse employment decision.” Staub v.
Proctor Hosp., 131 S. Ct. 1186, 1193 (2011). Because Flanigan was plaintiff’s supervisor
and was involved in her termination, plaintiff can use his statement to establish
discriminatory animus.
To constitute direct evidence, “the evidence must establish not only that the plaintiff’s
employer was predisposed to discrimination . . . but also that the employer acted on that
predisposition.” Hein v. All Am. Plywood Co., 232 F.3d 482, 488 (6th Cir. 2000). In Hein,
a case involving weight discrimination, the Sixth Circuit found “[plaintiff] presented no
evidence to connect [defendant’s] alleged prejudice against heavier individuals with his
decision to fire [plaintiff].” Id. at 489. The court in DiCarlo v. Potter, 358 F.3d 408 (6th Cir.
2004) held that a closer temporal proximity between the discriminatory act and the
termination allows for a lesser quantum of evidence needed to conclude discriminatory
animus motivated termination. Id. at 416-17. The alleged statements and behavior upon
which plaintiff relies occurred around March 19, 2007. She was issued her PIP in
September 2007 and terminated in April 2008. A factfinder could reasonably conclude from
Flanigan’s statement that he was predisposed to discrimination. Flanigan was defendant’s
agent, he recommended that plaintiff’s employment be terminated, and plaintiff was
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terminated. Drawing all inferences in favor of plaintiff, plaintiff has set forth sufficient direct
evidence of sex discrimination.
Defendant’s Non-Discriminatory Reason for Termination
As plaintiff can establish direct evidence of discrimination, the court reviews
defendant’s alleged reason for plaintiff’s termination. Plaintiff never met a sales goal,
was the lowest rated sales performer, was placed on a PIP, and failed to meet the
standards set forth in the PIP. Moreover, Boris attempted to help plaintiff meet her
sales goals but she still failed. Based on plaintiff’s poor performance, it is reasonable
for the court to accept defendant’s reason for terminating her as non-discriminatory.
Plaintiff’s Pretext Evidence
Plaintiff claims defendant’s proffered reasons did not actually motivate her
discharge. She relies upon Flanigan’s discriminatory statement, her allegedly arbitrary
and unreasonable sales goals, and the difference between defendant’s treatment of her
and her male counterparts.
Plaintiff argues Flanigan’s alleged statement portrays defendant’s discriminatory
motive and shows that Flanigan’s recommendation to discharge plaintiff was based on
his discriminatory animus towards females in the DM position. Defendant counters by
relying on the “same-actor inference,” arguing that because Flanigan and Conkin were
willing to hire plaintiff knowing she is female they are unlikely to fire her because of her
sex. Yet, the Sixth Circuit rejected the idea that a mandatory “same-actor inference” be
applied “in favor of a summary judgment movant.” Wexler v. White’s Fine Furniture,
Inc., 317 F.3d 564, 573 (6th Cir. 2003). Additionally, the length of time between
plaintiff’s hiring and firing weakens the “same-actor inference.” Buhrmaster v. Overnite
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Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995).
Plaintiff also asserts that her sales goals were arbitrary and raise a genuine issue
as to whether they were set to ensure her failure. She claims that defendant’s reliance
on the territory’s historical sales data to set her goals is arbitrary because her territory
had not had a representative for three to four years and Detroit has had a declining
business market. Boris even testified that Michigan may not have enough sales
opportunities to handle two DMs. Defendant answers by explaining that DM sales goals
are set using the same procedure regardless of sex. All DM sales goals are based on
the overall goal for the Chicago region plus past sales goals for each territory. Because
no recent sales goals were available for plaintiff’s territory, defendant relied on vehicle
population, customers data, and dealer bases. The Sixth Circuit found that it is
irrelevant whether a company’s sales goals were reasonably set, “so long as the
[company] applied them equally . . .” Brown v. Bank One, 168 F. App’x 46, 2006 WL
348133 at *52 (6th Cir. Feb. 14, 2006). Defendant claims the goals were applied
equally among male and female DMs. For example, it issued Siegel a PIP and issued
Mauer, Hirsch, and Rayburg performance counseling memorandum for failing to meet
sales goals. Plaintiff argues that no male DMs who failed to meet sales goals were
issued PIPs or fired during her employment. Defendant relies on plaintiff’s poor
performance to distinguish its actions regarding plaintiff and male DMs. However, out of
the ten remaining DMs who worked under Flanigan, all of whom were male, five failed
to come within 10% of their sales goals and were not issued PIPs or fired. Additionally,
plaintiff claims defendant knew of Detroit’s declining market and only lowered her sales
goals 3%.
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Finally, plaintiff argues that the disciplinary actions taken against male DMs,
which coincided with her termination, raise a genuine issue as to defendant’s
discriminatory motive. Plaintiff claims defendant took disciplinary actions against the
male DMs as a prophylactic measure. Mauer, Rayburg, and Hirsch were each
disciplined on or around April 4, 2008, the same day plaintiff was fired. Defendant
counters by noting that Siegel was issued a PIP before plaintiff was hired. However,
Flanigan testified that plaintiff was the only DM whose employment he recommended be
terminated. Viewing the evidence as a whole, and in the light most favorable to plaintiff,
the court finds a genuine issue of material fact as to whether defendant’s reason for
plaintiff’s termination is mere pretext.
CONCLUSION
For the reasons set forth above, defendant’s motion for summary judgment is
DENIED.

Dated: July 20, 2011
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 20, 2011, by electronic and/or ordinary mail.
S/Josephine Chaffee
Deputy Clerk

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