Kuhn v. Healthcare Information, LLC et al
Filing
65
AMENDED 64 OPINION and ORDER (1) Granting Defendant Sheakley HR, LLC's 49 Motion for Summary Judgment and (2) Granting in Part and Denying in Part Defendant Healthcare Information, LLC's 48 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEITH KUHN,
Plaintiff,
Case No. 13-cv-12652
Hon. Matthew F. Leitman
v.
HEALTHCARE INFORMATION, LLC,
and SHEAKLEY HR, LLC d/b/a
SHEAKLEY HR SOLUTIONS,
Defendants.
_________________________________/
AMENDED OPINION AND ORDER (1) GRANTING DEFENDANT
SHEAKLEY HR, LLC’S MOTION FOR SUMMARY JUDGMENT (ECF
#49) AND (2) GRANTING IN PART AND DENYING IN PART
DEFENDANT HEALTHCARE INFORMATION, LLC’S MOTION FOR
SUMMARY JUDGMENT (ECF #48) 1
INTRODUCTION
Defendant Healthcare Information, LLC (“HCI”) sells televisions and other
entertainment systems to hospitals. In May 2012, HCI hired Plaintiff Keith Kuhn
(“Kuhn”) as a regional sales manager.
HCI paid Kuhn a base salary plus
commissions on certain HCI sales. Not long after HCI hired Kuhn, its sales
slowed. In January 2013, HCI addressed the downturn by reorganizing its sales
force, eliminating the regional sales manager position, and firing Kuhn and others.
1
This Opinion and Order supersedes and replaces the Court’s previous Opinion and
Order entered at ECF #64.
1
Kuhn now asserts that HCI (1) breached its contract with him and violated
Michigan’s Sales Representative Commissions Act, MCL § 600.2961 (the
“SRCA”) by failing to pay him sales commissions and other benefits and (2)
discriminated against him based on his age in violation of Michigan law. Kuhn
also seeks an accounting from HCI. (See First Am. Compl., ECF #1-2.) Kuhn
asserts the same claims against Defendant Sheakley HR, LLC (“Sheakley,” and
together with HCI, “Defendants”). Kuhn alleges that Sheakley is liable to the same
extent as HCI because it acted as his “co-employer.”
HCI and Sheakley have moved for summary judgment. (See ECF ##48, 49.)
For the reasons explained below, the Court GRANTS Sheakley’s Motion in its
entirety and GRANTS IN PART AND DENIES IN PART HCI’s Motion.
FACTUAL BACKGROUND
A.
HCI, Sheakley, and the Services Sheakley Provides HCI
HCI sells televisions and other “patient education and entertainment
systems” to healthcare facilities across the United States and Canada. (ECF #48-2
at 3, Pg. ID 768.) HCI also services and repairs the products it sells. (Id.)
Sheakley “does not manufacture, produce, import, sell, or distribute products
in Michigan” or elsewhere.
(Sheakley HR Consultant David Noe (“Noe”)
Declaration, ECF #49-3 at ¶4.)
Instead, Sheakley provides “certain human
resource and/or administrative services to its client companies.” (Id. at ¶3.)
2
Sheakley provides two distinct and mutually exclusive administrative
services to its clients. Which services Sheakley provides depends upon, among
other things, the state in which Sheakley is providing the services In some states,
Sheakley is registered as a “professional employer organization” (“PEO”), and in
those states Sheakley co-employs its clients’ employees. (Id. at ¶5.) Where
Sheakley acts as a co-employer, applicants seeking a position with a Sheakley
client “must complete Sheakley’s employment process,” and the “employees must
be accepted and approved by Sheakley.” (Id. at ¶5.)
In other states, Sheakley is not registered as a PEO, and it does not act as a
co-employer.
(See id. at ¶9.)
administrative
services
In these states, Sheakley “operates as an
organization”
(“ASO”),
and
it
provides
“only
administrative services, such as conducting employee background checks and
distributing payroll as directed by” its clients. (Id. at ¶¶5, 9.)
Sheakley is not registered as a PEO in Michigan. (See id. at ¶9.) Thus,
Sheakley does not act as the co-employer of any of its clients’ Michigan-based
employees. (See id.) More specifically, Sheakley did not act as the co-employer of
any of HCI’s Michigan-based employees. (See id.) Instead, Sheakley provided
only ASO services to HCI’s Michigan-based employees. (See id.)
B.
HCI Hires Kuhn as a Regional Sales Manager
In May of 2012, Rick Margraf, HCI’s Vice President of Sales (“Margraf”),
3
interviewed Kuhn and hired him as a Michigan-based regional sales manager. (See
Margraf Declaration, ECF #48-6 at ¶4; Kuhn Dep. at 67-68, Pg. ID 784.) No
Sheakley employee participated in the interview and hiring process. (See Kuhn
Dep. at 73, Pg. ID 786.)
On May 9, 2012, HCI sent Kuhn a letter that outlined its offer of
employment. (See the “May 9 Offer Letter,” Exhibit A to ECF #48-6 at Pg. ID
823-824.) Kuhn subsequently signed the May 9 Offer Letter and began working
for HCI on May 21, 2012. (See id.) HCI assigned Kuhn to sell and service HCI
products in Michigan, northwest Ohio, and Canada. (See Margraf Dep. at 22-23,
Pg. ID 805.) For the Canadian territory, Kuhn worked with Richard Pratt (“Pratt”)
– HCI’s Chief Executive Officer – who “managed” and was “in charge” of HCI’s
lone client in that territory, Hospitality Networks. (Id. at 24, Pg. ID 805.)
As described in further detail below, the precise terms of Kuhn’s
employment with HCI, especially with respect to his compensation and right to
sales commissions, are hotly disputed.
C.
Kuhn Hears an Age-Related Comment at a Sales Meeting, but Does
Not Know Who Made It and Does Not Complain About It
In July or August 2012, Kuhn attended a national sales meeting at HCI’s
office in Cincinnati. (See Kuhn Dep. at 49-50, Pg. ID 780.) Kuhn says that during
this meeting “[t]here were some comments made pertaining to computer ability
based on the fact that a younger person [was] totally capable of … understanding
4
this much easier than [older] people …. [It was] an off-the-cuff remark like
younger people get this much quicker than the older ones [do].” (Id. at 48-49, Pg.
ID 779-780.) Kuhn could not recall who made the comment, but he believed it
was Pratt, who was approximately 57-years-old at that time. (Id. at 49-50, Pg. ID
780.)
Kuhn remembers that “everyone” (including Pratt) laughed when the
comment was made, and Kuhn never reported or complained about the comment to
anyone at HCI. (Id.)
D.
HCI Experiences a Slowdown in Sales, Reorganizes Its Sales Staff, and
Eliminates Kuhn’s Regional Sales Manager Position
HCI experienced a downturn in sales during the latter half of 2012.
(Margraf Dep., ECF #48-5 at 41, Pg. ID 809.) In order to “lower costs” and
“increase sales,” HCI decided in late 2012 to revamp its sales staff by eliminating
the regional sales manager position. (Margraf Declaration, ECF #48-6 at ¶18; See
also Magraff Dep. at 44-46, Pg. ID 809-810.) Three regional sales managers,
including Kuhn, were fired; three others resigned. (See id. at 43-44, Pg. ID 809;
See also Margraf Decl. at ¶¶19-21.) As a result, HCI had no remaining regional
sales managers. (See John Pratt Declaration, ECF #48-8 at ¶21.)
Kuhn’s
employment was formally terminated on January 18, 2013. (Margraf Decl. at ¶20.)
HCI never hired a new employee to replace Kuhn.
“An independent
consulting firm is now handling HCI’s clients in Michigan and Ohio,” and “HCI’s
Canadian client, [Hospitality Networks], continues to be serviced by [Rick] Pratt,
5
who generated sales and serviced [this] account both prior to and during Kuhn’s
employment.” (John Pratt Decl. at ¶¶22-23.)
PROCEDURAL HISTORY
Kuhn originally filed this action in the Wayne County Circuit Court. On
May 16, 2013, Kuhn filed a First Amended Complaint in that court. (See First.
Am. Compl., ECF #1-2.) Defendants removed the action to this Court on June 17,
2013. (See Notice of Removal, ECF #1.)
The First Amended Complaint asserts four claims against both HCI and
Sheakley. In Count I, entitled “Loss of Sales and/or Commissions,” Kuhn seeks
allegedly unpaid sales commissions plus double damages and attorneys fees under
the SCRA. (See First Am. Compl. at ¶¶12-13.) In Count II, entitled “Breach of
Contract,” Kuhn alleges that he “had a contract for commission sales amounts” and
that “Defendants’ conduct [in refusing to pay him the commissions he believes he
is owed] … constitutes a breach of the contract between the parties…” and violates
the SCRA. (Id. at ¶¶15, 19.) In Count III, Kuhn alleges that the Defendants
violated Michigan’s Elliott-Larsen Civil Rights Act, MCL § 37.2101 et seq. (the
“ELCRA”), by discriminating and/or retaliating against him because of his age.
(See id. at ¶¶20-27.) Finally, in Count IV, Kuhn demands the equitable remedy of
an accounting. (See id. at ¶29.)
6
Defendants have both moved for summary judgment. (See HCI Motion. and
Brief at ECF #48; see also Sheakley Mot. and Br. at ECF #49.) The Court heard
oral argument on Defendants’ motions on July 21, 2013.
GOVERNING LEGAL STANDARD
A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact....” U.S. SEC v. Sierra Brokerage Services,
Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986)) (quotations omitted). When reviewing the record,
“the court must view the evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in its favor.” Id. “The mere existence of
a scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. However, summary judgment is not
appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Id. at 251-252. Indeed, “[c]redibility determinations, the
weighing of the evidence, and the drafting of legitimate inferences from the facts
are jury functions, not those of a judge…” Id. at 255.
7
ANALYSIS
A.
Sheakley is Entitled to Summary Judgment on All Counts of Kuhn’s
First Amended Complaint
1.
Kuhn’s Claims Against Sheakley for Unpaid Sales
Commissions Fail Because Sheakley Was Not Obligated to Pay
Commissions to Kuhn
In Counts I and II of the First Amended Complaint, Kuhn alleges that
Sheakly breached its obligation to pay him sales commissions. But Sheakley had
no such obligation, and thus it is entitled to summary judgment on Kuhn’s claims
for unpaid commissions.
To begin, Sheakley was not a party to any contract with Kuhn, and thus it
had no contractual obligation to pay him sales commissions.
Under settled
Michigan law, “[b]efore a contract can be completed, there must be an offer and
acceptance.” Kloian v. Domino’s Pizza, L.L.C., 273 Mich. App. 449, 452, 733
N.W.2d 766 (2007). “Further, a contract requires mutual assent or a meeting of the
minds on all the essential terms.” Id. Here, Kuhn never formed a contract with
Sheakley because Sheakley never made him an offer, he never accepted its offer,
and he reached no meeting of the minds with Sheakley.
As Kuhn candidly
admitted: “I know nobody at Sheakley [] and have no idea who they are…” (Kuhn
Dep. at 46, Pg. ID 779.) That comes as no surprise because nobody at Sheakley
“participated in [Kuhn’s] interview” with HCI, “told [him] what tasks to
perform…,” or gave him “performance evaluations or appraisals.” (Id. at 73-74,
8
Pg. ID 786.) Indeed, the relationship between Kuhn and Sheakley bore none of the
traditional hallmarks of a contractual employer-employee relationship. As David
Noe, a consultant employed by Sheakley’s parent company succinctly explained in
his sworn declaration:
Sheakley did not employ Keith Kuhn. Nor did it make
any decision to hire, supervise or discipline him. It also
did not make any decisions regarding the calculation of
his commissions, or make the decision to terminate his
employment. Rather, Sheakley primarily conducted Mr.
Kuhn’s background check, processed his benefits
election paperwork, and issued payroll checks to Mr.
Kuhn based on direction from HCI. (Noe Decl. at ¶14.)
In addition to alleging that Sheakley is contractually liable for unpaid
commissions, Kuhn appears to claim that Sheakley owes unpaid commissions
pursuant to the procuring-cause doctrine. (See First Am. Compl. at Count I.) This
“doctrine applies when the parties have a contract governing the payment of sales
commissions, but the contract is silent regarding the payment of posttermination
commissions.” KBD & Associates, Inc. v. Great Lakes Foam Technologies, Inc.,
295 Mich. App. 666, 673, 816 N.W.2d 464 (2012) (emphasis added). Here, the
lack of a contract between Sheakley and Kuhn is fatal to any claim by Kuhn under
the procuring-cause doctrine. Moreover, Kuhn did not procure any orders for
Sheakley, and that is yet another reason Sheakley has no liability under this theory.
Kuhn may also allege (it is far from clear) that Sheakley is liable for unpaid
commissions under an unjust enrichment theory. (See First Am. Compl. at Count
9
I.) But there is no evidence that Sheakley was enriched in any way by the sales
orders Kuhn claims to have secured for HCI.
Kuhn additionally appears to allege that Sheakley is liable under the SCRA.
(See First Am. Compl. at Count II.) However, Kuhn has not even attempted to
rebut Sheakley’s showing that it does not fall within the Act’s definition of
“principal’ and that it is thus not covered by the Act.
Kuhn’s primary argument that Sheakley is liable for unpaid commissions
rests upon his allegation that Sheakley was his co-employer. (See Kuhn Br. at 2425, Pg. ID 1126-1127.) But the evidence says otherwise. Most importantly, as
noted above, there is no evidence that Sheakley offered to serve as Kuhn’s coemployer nor that Kuhn ever accepted an offer by Sheakley to serve in that
capacity.
Simply put, there is no contract that makes Sheakley Kuhn’s co-
employer.
Kuhn’s efforts to convert Sheakley into his co-employer fail.
At his
deposition, Kuhn testified that his “contract makes [Sheakley] a co-employer.”
(Kuhn Dep. at 45, Pg. ID 996.) However, the “contract” Kuhn mentioned was the
May 9 Offer Letter in which HCI “extend[ed] an offer of employment with HCI as
Regional Sales Manager…” (May 9 Offer Letter at 1, Pg. ID 823; emphasis
added.) As Kuhn himself later conceded, “[t]here is nothing in [the May 9 Offer
Letter] that says Sheakley is a co-employer.” (Kuhn Dep. at 56, Pg. ID 998.)
10
Kuhn further argues that Sheakley is his co-employer because he received an
employee manual “that says Sheakley HR is a co-employer.” (Id.) In support of
this argument, Kuhn relies upon a Sheakley employee manual that he attached as
an exhibit to his summary judgment response brief. (See ECF #52-8.) However,
there is no evidence in the record as to who gave this manual to Kuhn; when it was
given to Kuhn 2; whether Sheakley, in fact, agreed that the terms of that manual
would apply to its relationship with Kuhn; nor even whether Kuhn accepted the
terms of the manual. There are also serious questions as to the manual’s
authenticity that Kuhn has failed to answer. 3
Finally, even if Kuhn had authenticated the manual, given its express
language, the manual did not obligate Sheakley to pay him commissions. The
manual expressly provides that it “does not in any way constitute a contract” and
2
In his brief opposing Sheakley’s Motion, Kuhn asserts for the first time that the
manual was “distributed to [him] at the time of hire.” (Kuhn’s Br. at 24, Pg. ID
1126.) Kuhn cites no evidence for that proposition. As stated above, the only
manual Kuhn testified that he received at the time he was hired was an HCI
employee handbook. (See Kuhn Dep. at 66-67, Pg. ID 1001.)
3
As noted above, Kuhn attached the manual to his summary judgment response
brief as Exhibit H, but he made no effort to authenticate that exhibit. The record
does not contain an affidavit or any deposition testimony confirming that Exhibit H
is, in fact, the version of the manual mentioning Sheakley that Kuhn testified he
received. Notably, when questioned at his deposition, Kuhn acknowledged
receiving an HCI employee handbook that never mentions Sheakley, much less
identifies it as Kuhn’s co-employer. (Kuhn’s Dep. at 66-67, Pg. ID 1001; See also
ECF #48-2.) The handbook that does not mention Sheakley is the only
authenticated handbook in the record.
11
that it is provided for “guidance” only. (See ECF #52-8 at 5, Pg. ID 1548.) Given
this clear disclaimer, the manual does not confer upon Kuhn any enforceable rights
against Sheakley – as Kuhn’s alleged co-employer or otherwise. See Lytle v.
Malady, 458 Mich. 153, 169, 579 N.W.2d 906 (1998) (reaffirming that “provisions
in a handbook will not create enforceable rights when the handbook expressly
states that such provisions are not intended to create an employment contract”);
Highstone v. Westin Eng'ing, Inc., 187 F.3d 548, 552 (6th Cir. 1999) (applying
Lytle and finding no contractual obligation where employee manual states that “[i]t
is not a contract with any employee”). All of this is fatal to Kuhn’s argument that
the manual somehow imposed upon Sheakley an obligation to pay sales
commissions to Kuhn.
In sum, the evidence conclusively establishes that Sheakley had no
obligation to pay commissions to Kuhn. The Court therefore grants summary
judgment in favor of Sheakley on Counts I and II of his First Amended Complaint.
2.
As Kuhn Has Now Properly Conceded, Sheakley is Entitled to
Summary Judgment on His Employment Discrimination Claim
There is absolutely no evidence in this record that Sheakley committed, or is
responsible for, any age discrimination against Kuhn. Thus, as Kuhn properly
conceded at the hearing before the Court, Sheakley is entitled to summary
judgment on Kuhn’s employment discrimination claim (Count III of his First
Amended Complaint).
12
3.
Sheakley is Entitled to Summary Judgment on Kuhn’s
Demand for an Accounting
As explained in detail above, Sheakley had no contractual relationship with
Kuhn, and Kuhn never engaged in any sales of any products or services for
Sheakley. Moreover, there is no evidence in the record that Sheakley maintains
any records (concerning the HCI sales that form the basis of Kuhn’s commission
claims) from which Kuhn’s requested accounting could be performed. For those
reasons, and for all of the reasons stated below with respect to HCI (see pp. 20-21),
Kuhn is not entitled to an accounting from Sheakley. The Court therefore grants
Sheakley summary judgment as to Count IV of Kuhn’s First Amended Complaint.
B.
HCI is Not Entitled to Summary Judgment on Counts I and II of
Kuhn’s First Amended Complaint, But is Entitled to Summary
Judgment on Counts III and IV
1.
HCI is Not Entitled to Summary Judgment on Counts I and II of
Kuhn’s First Amended Complaint Because There are Material
Factual Disputes as to the Terms of Kuhn’s Employment with
HCI and the Amount of Commissions Kuhn is Owed
HCI argues that it is entitled to summary judgment on Counts I and II of the
First Amended Complaint – in which Kuhn seeks to recover for unpaid sales
commissions – because “(1) [Kuhn] cannot establish the existence of a contract for
commissions between him and HCI and, (2) assuming that he could, HCI actually
paid him more commissions than he was eligible for, rather than less.” (HCI Mot.
and Br. at 29, Pg. ID 743.)
13
However, there are several material factual disputes with respect to both of
Kuhn’s claims for unpaid commissions. These disputes include the following:
1. Whether the parties have an enforceable contract.
HCI points to
language in the May 9 Offer Letter disclaiming the existence of a
contract (see the May 9 Offer Letter, Pg ID. 823) and argues that in light
of that language, the parties did not have a binding sales commission
contract. (See HCI Mot. and Br. at 30-31, Pg. ID 744-745.)
counters
with
his
sworn
deposition
testimony
Kuhn
recounting
his
communications with HCI concerning the terms on which he would be
paid and express promises made to him concerning the payment of
commissions. (See Kuhn Dep. at 87, 98, Pg. ID 1222, 1232.) This
conflicting evidence precludes summary judgment on the question of
whether the parties had an enforceable contract.
2. The payment terms of the contract. Citing certain deposition testimony
and sworn declarations, HCI argues that Kuhn is entitled to commissions
on a particular sale if and only if three precise conditions are met. (See
HCI Mot. and Br. at 20-22, Pg. ID 745-747; see also John Pratt Decl. at
¶8) Kuhn has testified under oath that pursuant to his agreement with
HCI, he was entitled to commissions under at least one other condition.
(See, e.g., Kuhn Dep. at 96-97, Pg. ID 1231-1232). Kuhn’s testimony and
14
affidavit statements concerning the calculation of his commissions (see
Kuhn Supplemental Affidavit, ECF #52-31) sharply differ from HCI’s
view as to how the commissions should be calculated. The conflicting
evidence on the commission calculation issue further precludes summary
judgment on Counts I and II.
3. Whether HCI breached the contract or otherwise failed to pay
commissions owed to Kuhn.
HCI has submitted calculations by its
employees showing that it has overpaid commissions to Kuhn. (See John
Pratt Decl. at ¶¶13-17.) Kuhn has countered with a calculation showing
that HCI underpaid him by at least $50,000. (See ECF #52-31.) In
addition, there is a dispute between the parties as to whether Kuhn
procured certain orders and is thus entitled to a commission on them
(under the procuring-cause doctrine or otherwise). (See id.; See also Mr.
Kuhn Dep. at 99-102, Pg. ID 1234-1237.) These disputes are a further
bar to summary judgment on Counts I and II.
On this record, there are material factual disputes concerning which terms, if
any, the parties intended to govern Kuhn’s compensation and the amount of unpaid
commissions, if any, to which he is entitled. For that reason (and the reasons
explained above), HCI is not entitled to summary judgment on Counts I or II of
Kuhn’s First Amended Complaint. See Terry Barr Sales Agency, Inc. v. All-Lock
15
Co., Inc., 96 F.3d 174, 179 (6th Cir. 1996) (reversing grant of summary judgment
for employer in sales commission dispute and finding that while “summary
judgment may be appropriate when the documents and/or evidence underlying the
contract are undisputed and there is no question as to intent… disputed issues of
contractual intent are considered to be factual issues which preclude an award of
summary judgment”).
2.
There is No Material Factual Dispute as to Whether HCI Engaged
in Age Discrimination and HCI is Therefore Entitled to Summary
Judgment as to Count III of Kuhn’s First Amended Complaint
In Count III of his First Amended Complaint, Kuhn alleges that HCI
violated the ELCRA by discriminating against him because of his age.
4
Kuhn
addressed this claim in only two sentences in his twenty-four page response brief:
“Finally, Kuhn describes the age discriminatory statements made by his supervisor
at pages 41, 48-49 [of his deposition]. In addition, pages 82-83 he [sic] outlines
that he was replaced by John Pratt approximately 30 years old, some 20 plus years
4
Kuhn’s First Amended Complaint brings forth an action for “[a]ge discrimination
and/or retaliation.” (See First. Am. Compl. at ¶¶ 14-19.) Kuhn, however, admitted
that he never lodged a complaint of age discrimination prior to his termination (see
Kuhn’s Dep. at 42, 45, Pg. ID 778-779) and he has failed to otherwise explain how
his discharge was in any way retaliatory. In fact, Kuhn did not respond at all to
HCI’s argument that no retaliation claim can exist on these facts. (See HCI Mot.
and Br. at 28-29, Pg. ID 742-743.) The Court therefore finds Kuhn has conceded
HCI’s argument on this issue. See Jewel v. Chrysler, LLC, 2014 WL 764660 at *4
(E.D. Mich. Feb. 25, 2014) (internal quotation marks omitted) (“When a plaintiff
files an opposition to a dispositive motion and addresses only certain arguments
raised by the defendant, a court may treat those arguments that the plaintiff failed
to address as conceded”).
16
Kuhn’s junior.” (Kuhn Br. at 17-18, Pg. ID 1119-1120.) Kuhn spends little time
addressing his age discrimination claim with good reason: it cannot withstand
HCI’s motion for summary judgment on this record.
A plaintiff may rely on either direct or indirect evidence to establish an age
discrimination claim under the ELCRA. See Laster v. City of Kalamazoo, 746
F.3d 714, 726 (6th Cir. 2014). Direct evidence is “evidence which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating
factor” in an adverse employment action. Smith v. Chrysler Corp., 155 F.3d 799,
805 (6th Cir. 1998) (noting in the context of the Americans with Disabilities Act,
which also borrows the same standards the Court applies here, that direct evidence
“would take the form, for example, of an employer telling an employee, ‘I fired
you because you are disabled’”).
A plaintiff who lacks direct evidence of discrimination may rely on indirect
or circumstantial evidence. See Laster, 746 F.3d at 726. Under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), to
establish a prima facie case of discrimination under the ELCRA, a plaintiff must
show that (1) he is a member of a protected class; (2) he was qualified for the job
and performed it satisfactorily; (3) despite his qualifications and performance, he
suffered an adverse employment action; and (4) he was replaced by a person
outside the protected class or was treated less favorably than a similarly situated
17
individual outside of his protected class. See Laster, 746 F.3d at 727. “If [a]
termination arises as part of a work force reduction, [the United States Court of
Appeals for the Sixth Circuit] has modified the fourth element to require the
plaintiff to provide additional direct, circumstantial, or statistical evidence tending
to indicate that the employer singled out the plaintiff for discharge for
impermissible reasons.” Geiger v. Tower Automotive, 579 F.3d 614, 622 (6th Cir.
2009) (internal quotation marks omitted).
Kuhn has not presented any direct evidence that HCI discriminated against
him based upon his age. The only evidence of discrimination Kuhn has identified
is an “off-the-cuff remark” that an unidentified person made at an HCI sales
meeting that “younger people get this [i.e. computers] much quicker than the older
ones [do].” (Kuhn Dep. at 48-49, Pg. ID 779-780.) Even if, as Kuhn believes, the
statement was made by Richard Pratt, HCI’s CEO, this one isolated remark, made
in jest, to a room full of HCI employees, by a person older than Kuhn, is not direct
evidence that, more than six months later, HCI discriminated against Kuhn due to
his age when Margraf – who also is older than Kuhn – decided to fire him. See
Oliver v. Federated Mut. Ins. Co., 341 Fed. App’x 108, 110 (6th Cir. 2009)
(finding no direct evidence of discrimination because “isolated statement that
‘[y]ou know, old guys like us, you and me, we can't type as fast as those younger
guys,’ was not part of the decisional process and was unconnected in time and
18
context to [plaintiff’s] termination”).
Nor has Kuhn satisfied his burden of establishing a prima facie case of age
discrimination. In this case, HCI has presented persuasive evidence that, due to a
slowdown in sales, it eliminated several regional sales manager positions and that
all of its regional sales managers, not just Kuhn, either were fired or resigned from
the company. (See, e.g., Margraf Dep. at 43-44, Pg. ID 809; See also Margraf
Decl. at ¶¶19-21.) In fact, even Margraf, Kuhn’s boss (and Vice President of
Sales), resigned from HCI due to slow sales. (Margraf Decl. at ¶21.) Given the
clear evidence that HCI conducted a reduction in force, 5 Kuhn must establish as
part of his prima facie case that he was “singled out” for “impermissible reasons.”
Geiger, 579 F.3d at 622. Kuhn has failed to do so. As noted above, apart from one
isolated and innocuous age-related comment, Kuhn has not presented any evidence
that HCI ever considered his age (or anyone else’s) in any way.
5
At oral argument, Kuhn suggested that HCI did not conduct a reduction in force
because when HCI terminated him, it replaced him on the Hospitality Networks
account. However, a “person is not replaced when another employee is assigned to
perform the plaintiff’s duties in addition to other duties,” Barnes v. GenCorp, 896
F.2d 1457, 1465 (6th Cir. 1990), and that is what happened here. HCI did not hire
a new account manager to take on Kuhn’s responsibilities. Rather, HCI’s CEO,
Richard Pratt, assumed Kuhn’s responsibilities related to the Hospitality Networks
account. (John Pratt Decl. at ¶23.) Because Richard Pratt absorbed Kuhn’s
responsibilities for the Hospitality Networks account and continued to perform his
responsibilities as CEO, as a matter of law, HCI did not replace Kuhn on that
account. See Geiger, 579 F.3d at 623 (employee not replaced where other
employee absorbed that employee’s duties and continued to perform his own
duties).
19
Moreover, Kuhn has even failed to establish that he was replaced by
someone outside his protected class. While Kuhn testified at his deposition that,
based upon hearsay reports, he “believed” 32 year-old John Pratt serviced the
Hospitality Networks account following his (Kuhn’s) discharge (Kuhn Dep. at 83,
162-63, Pg. ID 1218, 1297-98), the unrebutted admissible evidence establishes that
Richard Pratt, HCI’s CEO who is older than Kuhn (Kuhn Dep. at 50-51, Pg ID
1184-85), not John Pratt, actually serviced the Hospitality Networks account
following Kuhn’s departure. (John Pratt Decl. at ¶23.)
Finally, even if Kuhn had established a prima facie case of age
discrimination (and he has not), his discrimination claim would still fail because he
has not shown that HCI’s stated legitimate and non-discriminatory reason for his
discharge – the need to reduce its work force – was a pretext for age
discrimination. See Geiger, 579 F.3d at 626.
Therefore, for all of the reasons stated above, HCI is entitled to summary
judgment on Count III of Kuhn’s First Amended Complaint.
3.
Kuhn is Not Entitled to an Accounting From HCI
In Count IV of his First Amended Complaint, Kuhn seeks an accounting
from HCI. (See First Am. Compl. at ¶29.) But under long-standing Michigan law,
an accounting is an equitable remedy available only where a plaintiff lacks an
adequate remedy at law. See Basinger v. Provident Life & Accident Ins., 67 Mich.
20
App. 1 (1976); Burke v. Eddy & Co., 332 Mich. 300 (1952). Here, Kuhn has an
adequate remedy at law through his breach of contract claim and his request for
damages under the SCRA. Kuhn therefore has no grounds to seek an accounting.
The Court therefore grants HCI summary judgment as to Count IV of Kuhn’s First
Amended Complaint.
CONCLUSION
For all of the reasons started above, the Court GRANTS Sheakley’s Motion
for Summary Judgment (ECF #49) in its entirety. The Court further GRANTS
HCI’s Motion for Summary Judgment (ECF #48) as to Counts III and IV of
Kuhn’s First Amended Complaint and DENIES HCI’s Motion as to Counts I and
II.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 6, 2014
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on August 6, 2014, by electronic means and/or
ordinary mail.
s/Julie Owens
Case Manager
(313) 234-5137
21
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