Short v. Gerdau Macsteel, Inc.

Filing 21

ORDER Granting in part and Denying in part 17 Motion for Summary Judgment. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEITH SHORT,
Plaintiff,
Case No. 14-12678
v.
HON. DENISE PAGE HOOD
GERDAU MACSTEEL, INC.,
Defendant.
_________________________________/

ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR SUMMARY JUDGMENT [Docket No. 17]

This matter is before the Court on Defendant Gerdau Macsteel, Inc.’s
(“Defendant”) Motion for Summary Judgment [Docket No. 17, filed April 16,
2015]. Plaintiff Keith Short (“Plaintiff”) filed a response opposing the motion
[Docket No. 19, filed May 7, 2015]. Defendant filed a reply to the response
[Docket No. 20, filed May 15, 2015]. A hearing on Defendant’s Motion was held
on June 24, 2015.
I.

BACKGROUND
Plaintiff was employed by Defendant’s predecessor from March 16, 1990

until 2008, when Defendant purchased the steel manufacturing facility. Defendant
continued to employ Plaintiff as a Mechanical Project Engineer until it laid off

Plaintiff for five months in 2009. Defendant brought Plaintiff back in December
2009 as a Maintenance Shift Supervisor and, beginning in 2010, he was the
supervisor for two areas of the facility (the “Rolling Mill” and the “Machine
Shop”).

Plaintiff received merit raises in at least 2010 and 2011.

In 2012,

Defendant hired David Bussell (“Bussell”) as Plaintiff’s supervisor.
In Plaintiff’s 2012 and 2013 performance reviews, he was given the rating of
“below expectations.” Other maintenance supervisors received the same rating and
in July 2013, all the maintenance supervisors were rated “below expectations.” On
January 29, 2014, Bussell placed Plaintiff on a Performance Improvement Plan
(“PIP”). Plaintiff’s PIP was to “run for just more than 60 days Beginning on
January 29, 2014] and ending on March 7, 2014. Immediate and continuous
improvement is required throughout this time period.”1 [Docket No. 17-10, PgID
121 (emphasis in original)]

The PIP lists four areas of concern and three

performance issues, but it does not specify tasks or goals for Plaintiff. Id. The PIP
states that “[f]ailure to [complete the items detailed above and maintain that
improvement] will result in further discipline, up to and including the termination
of your employment.” Id. Plaintiff testified at his deposition that he disputed all of
the concerns and performance issues regarding the PIP during a meeting with

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According to Bussell, March 7, 2014 was a typo. [Docket No. 17, PgID 347
(“That’s a typo. That should have been the end of March.”)] Plaintiff agreed that
the PIP was to last for 60 days. [Docket No. 19-2, PgID 436]
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Bussell on or about February 14, 2014, and that he previously had disputed
Defendant’s complaints regarding his performance in meetings on November 6,
2013 and January 29, 2014. [Docket No. 19, PgID 382-85; Ex. 1, at 139, 150-51,
156, 158-62]
At Plaintiff’s request, Plaintiff and Bussell met regarding the PIP and
Plaintiff’s satisfaction of PIP goals on March 18, 2014, even though the PIP was to
remain in effect for at least 1½ weeks longer. At that meeting, Plaintiff requested
to know what Defendant was going to decide when the PIP was over. Bussell
maintains that Plaintiff demanded to know Plaintiff’s status vis a vis satisfaction of
the PIP at that meeting and, because Plaintiff insisted, Bussell informed Plaintiff
that if Bussell had to make a decision on that day, his decision would be to
terminate Plaintiff. On March 19, 2014, Defendant notified Plaintiff that he was
being terminated, effective March 21, 2014.
Defendant states that it terminated Plaintiff for poor performance based on
Plaintiff’s failure to meet the requirements listed in his PIP. Plaintiff, who was 55
years old when he was terminated, believes Defendant terminated him because of
his age. On July 29, 2014, Plaintiff filed the instant cause of action and asserted
two claims against Defendant: (1) Count I - Age Discrimination, in violation of
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 261, et. seq., and
(2) Count II - Intentional Infliction of Emotional Distress (“IIED”).

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II.

STANDARD OF REVIEW
Summary judgment is appropriate in cases where “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.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).

The moving party bears the burden of

demonstrating that summary judgment is appropriate.

Equal Employment

Opportunity Comm’n v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1093
(6th Cir. 1974).

The Court must consider the admissible evidence in the light

most favorable to the nonmoving party. Sagan v. United States of Am., 342 F.3d
493, 497 (6th Cir. 2003).
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added). To create a
genuine issue of material fact, the nonmovant must do more than present “some
evidence” of a disputed fact. Any dispute as to a material fact must be established
by affidavits or other documentary evidence. Fed. R. Civ. P. 56(c). “If the
[nonmovant’s] evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson v. Liberty Lobby Inc., 477 U.S.
242, 249-50 (citations omitted).

Accordingly, a nonmovant “must produce

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evidence that would be sufficient to require submission to the jury of the dispute
over the fact.”

Mathieu v. Chun, 828 F. Supp. 495, 497 (E.D. Mich. 1993)

(citations omitted). “When opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.” Scott, 550 U.S. at 380.
III.

ANALYSIS

A.

ADEA Claim
1. The Law
The ADEA prohibits employers from discharging an employee (or otherwise

discriminating against any employee with respect to his or her compensation,
terms, conditions, or privileges of employment) because of the employee’s age.
See 29 U.S.C. § 623(a)(1). In order for the employer to be liable, Plaintiff’s “age
must have actually played a role in the employer’s decision-making process and
had a determinative influence on the outcome.” Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 141 (2000) (internal quotations omitted). Plaintiff
may prove his discrimination claim by direct or circumstantial evidence. Allen v.
Highlands Hospital Corp., 545 F. 3d 387, 394 (6th Cir. 2008); LeFevers v. GAF
Fiberglass Corp., 667 F.3d 721, 723 (6th Cir. 2012).

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Direct evidence is “that evidence which, if believed, requires the conclusion
that unlawful discrimination was at least a motivating factor in the employer’s
actions.” Lautermilch v. Findlay Schs., 314 F.3d 271, 275-76 (6th Cir. 2003). The
McDonnell Douglas burden-shifting framework is not utilized in direct evidence
cases. Geiger v. Tower Automotive, 579 F.3d 614, 621 (6th Cir. 2009). Instead, the
Court must assess the following four factors in considering whether there is direct
evidence of age discrimination: (1) were the statements made by a decision maker,
(2) were the statements related to the decision-making process, (3) were the
statements more than vague or isolated remarks, and (4) were the statements made
proximate in time to the termination. Peters v. Lincoln Elect. Co., 285 F.3d 456,
478 (6th Cir. 2002).
When a claim is based mainly on circumstantial evidence, courts utilize the
McDonnell Douglas burden-shifting framework. Geiger, 579 F.3d at 622 (citations
omitted). The first step requires that Plaintiff prove a prima facie case of age
discrimination. To establish a prima facie case of age discrimination, Plaintiff
must show that: (1) he is a member of a protected class; (2) he suffered an adverse
employment decision; (3) he was otherwise qualified for the job or promotion; and
(4) he was replaced by someone outside the protected class. See Blair v. Henry
Filters, Inc., 505 F. 3d 517, 528 (6th Cir. 2008); Geiger, 579 F.3d at 622-23
(citations omitted).

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If the plaintiff establishes a prima facie case, the burden is shifted to the
employer to “produce evidence that the plaintiff was rejected, or someone else was
preferred, for a legitimate, nondiscriminatory reason.” Reeves, 530 U.S. at 142.
Once a legitimate, non-discriminatory reason is offered, “the McDonnell Douglas
framework with its presumptions and burdens disappear[s] and the sole remaining
issue is discrimination vel non.” Id. at 142-43 (internal quotations and citations
omitted). In other words, once a defendant offers a legitimate, nondiscriminatory
reason, Plaintiff must be afforded the opportunity to prove by a preponderance of
the evidence that the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for the discrimination.
A plaintiff can prove that the defendant’s legitimate, non-discriminatory
reason is mere pretext by showing that the reason: (1) has no basis in fact, (2) did
not actually motivate the defendant’s challenged conduct, or (3) was insufficient to
warrant the challenged conduct. See Wexler v. White, 317 F. 3d 564, 576 (6th Cir.
2003). “[A] jury may consider the reasonableness, or lack thereof, of an
employer’s business judgment, insofar as it may assist in determining the
employer’s state of mind.” In re Lewis, 845 F. 2d 624, 633 (6th Cir. 1988).
Lastly, “a plaintiff’s prima facie case, combined with sufficient evidence to find
that the employer’s asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 147.

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2. No Direct Evidence of Age Discrimination
Plaintiff contends that he has demonstrated that there is direct evidence of
age discrimination. Plaintiff testified that, at the March 18, 2014 meeting, one day
before Defendant terminated Plaintiff on March 19, 2014, Bussell stated, “As long
as you’ve been here and what your pay is[,] you should know what’s required of
you to hold your position” and “Your pay is up there among the higher ones.”
[Docket No. 19, Ex. 1, at 198, 200-201] Those statements clearly were: (a) made
by a decision maker (Bussell), (b) related to the decision-making process, as they
were made in the March 18, 2014 meeting at which Plaintiff’s PIP evaluation and
Plaintiff’s termination were discussed, and (c) proximate in time to the notification
of his termination, which occurred the following day.
Plaintiff argues that these “are not ‘vague’ statements because they can only
be interpreted to refer to Plaintiff’s age.” [Docket No. 19, PgID 387] Defendant
asserts that the Bussell comments are not discriminatory on their face, and the
Court agrees. The Sixth Circuit has held that comments made by a supervisor that:
(1) an employee had “been in his job too long” and, (2) another employee was
“lazy and didn’t work and wasn’t doing his job and had been there too long” were
“ambiguous because they could just as easily refer to tenure” as opposed to age.
Blizzard v. Marion Technical Coll., 698 F.3d 275, 287 (6th Cir. 2012). See also
Skelton v. Sara Lee Corp., 249 F. App’x 450, 455-56 (6th Cir. 2007) (supervisor’s

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repeated comment that plaintiff “ha[d] been around since Christ was a baby”
referred to plaintiff’s tenure rather than age bias and required an “inferential step . .
. to equate [the] comment about Skelton’s tenure with the department—or his
age—with unlawful discriminatory animus”).
Although the Court finds that the two statements made by Bussell could be
interpreted to be comments regarding Plaintiff’s age, neither statement specifically
references Plaintiff’s age. The statements “could as easily refer to [Plaintiff’s]
tenure” as to his age, and they could be interpreted to mean that Plaintiff has been
around long enough to understand that someone getting paid as much as he is
needs to produce more. Blizzard, 698 F.3d at 287; Skelton, 249 F. App’x at 454-55.
The Court concludes that Bussell’s comments do not require the conclusion that
Defendant discriminated against Plaintiff. See Spengler v. Worthington Cylinders,
615 F.3d 481, 491 (6th Cir. 2010) (in the context of a retaliation claim, the court
concluded there was not sufficient evidence to support a direct discrimination
claim when a supervisor stated “besides, you would probably have trouble keeping
up with the younger guys . . . here [in this division],” when the supervisor offered
to recommend the plaintiff for another division).
For the reasons stated above, the Court: (a) concludes that Plaintiff has not
demonstrated that the comments by Bussell were not vague or isolated, and (b)

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finds that Plaintiff has not established a prima facie case of direct discrimination
on his ADEA claim.
3. Viable Claim of Age Discrimination Based on Circumstantial Evidence
With respect to establishing a prima facie claim based on circumstantial
evidence, Defendant concedes (for purposes of its summary judgment motion) that
Plaintiff is a member of a protected class and that his employment was terminated,
i.e., Plaintiff has satisfied the first two elements of his prima facie case. Defendant
argues, however, that Plaintiff cannot establish that he was qualified for the
position from which he was terminated or that he was replaced by some person(s)
outside the protected class.
Defendant points to several instances prior to the issuance of the PIP where
Plaintiff was notified of his performance deficiencies. Defendant cites Plaintiff’s
2012 and 2013 mid-year and annual reviews, meetings Plaintiff had with his
immediate supervisor in 2012 (Mechanical Supervisor, Donnie Thornsberry).
Defendant asserts that this evidence demonstrates Plaintiff was having
performance problems for years and that Bussell was not the only person who had
concerns regarding Plaintiff’s performance.
The Court is not persuaded by Defendant’s argument.

First, the Sixth

Circuit has held that the:
court may not consider the employer’s alleged nondiscriminatory
reasons for taking an adverse employment action when analyzing the
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prima facie case. To do so would bypass the burden-shifting analysis
and deprive the plaintiff of the opportunity to show that the
nondiscriminatory reason was in actuality a pretext designed to mask
discrimination.
Wexler, 317 F.3d at 574 (internal citations omitted). Despite acknowledging that
the nondiscriminatory reasons for terminating Plaintiff cannot be used to analyze
whether Plaintiff has satisfied his prima facie case, Defendant’s arguments do
exactly that. Second, the record demonstrates that, beginning in 2009, Plaintiff
performed as a Maintenance Shift Supervisor in two facilities for several years.
Third, it is undisputed that Plaintiff was awarded merit-based bonuses in at least
2010 and 2011.

The Court concludes that the fact that Defendant employed

Plaintiff for many years, including as the supervisor at the Rolling Mills and the
Machine Shop areas of Defendant’s facility, demonstrates that Plaintiff was
qualified to perform the duties he was assigned. The Court further concludes that
Plaintiff has satisfied the first element of a prima facie case of age discrimination
based on circumstantial evidence.
Defendant next argues that Plaintiff cannot satisfy the fourth element
because: (a) Plaintiff was not replaced, and (b) even if he was replaced, the persons
who assumed his duties were members of the same protected class. Defendant
contends that Plaintiff was not replaced because his duties were redistributed
among the other Maintenance Supervisors. Defendant cites to Blizzard, 698 F.3d
at 283-84, where the court stated:
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[A]n employee’s assumption of a terminated co-worker’s job duties
does not constitute replacement for purposes of an ADEA claim. A
person is not replaced when . . . the work is redistributed among other
existing employees already performing related work. Rather, a person
is replaced only when another employee is hired or reassigned to
perform the plaintiff’s duties.
Defendant relies on the testimony of Bussell, who stated that Plaintiff’s
Rolling Mills duties were taken over by Donnie Thornsberry from March 2014
until May 2014, then by Kent Gasche until July 2014, when Thornsberry assumed
those duties again. Defendant states that Paul Newsome took over Plaintiff’s
Machine Shop duties. Defendant represents—and Plaintiff does not dispute—that
Thornsberry, Gasche, and Newsome are all over 40 and members of the same
protected class as Plaintiff.
At his deposition, Plaintiff stated that Thornsberry, Gasche and Joe
Carrabino replaced him. In his response brief, however, Plaintiff argues that,
although Defendant may have initially “redistributed” Plaintiff’s job duties to
Thornsberry, Gasche, and Newsome, Defendant ultimately hired two persons to
work as maintenance supervisors: Todd Benge, age 38, and Michael Wood, age 32.
[Docket No. 19-8, PgID 610] According to Defendant’s interrogatory answers,
Todd Benge was hired on July 28, 2014 as Maintenance Turn Supervisor, and
Michael Wood was hired on September 8, 2014 as Maintenance Shop Supervisor
Mechanical. [Docket No. 19-9, PgID 618]

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Defendant correctly argues that Plaintiff cites no authority for his argument
that Plaintiff must be considered to have been “replaced” by the younger
employees taking over the duties that Plaintiff had that were redistributed to
Thornsberry, Gasche, and Newsome.

Defendant, however, fails to cite any

authority for its argument that if an employer causes other workers to absorb a
terminated employee’s duties in the short-term, the terminated employee’s case is
precluded even when Defendant hires someone outside the terminated employee’s
class to replace the terminated employee on a permanent basis.

As Plaintiff

suggests, if Defendant could simply redistribute Plaintiff’s duties to persons of the
same protected class in the short-term (which likely happens immediately after
most terminations), an employer could avoid ADEA liability simply by engaging
in a short-term “shell game” after terminating an employee.
Defendant argues that the record evidence confirms that Wood did not
ultimately acquire any of Plaintiff’s job duties and Benge was employed with
Defendant for less than one month. Defendant also argues that Plaintiff ignores
that other Maintenance Supervisors who are older than Plaintiff remain employed
with Defendant. Defendant, however, cites no authority that Plaintiff’s claims are
precluded even if its arguments are accurate. The Court finds that these arguments
go to the weight of the evidence—they do not obviate the fact that Plaintiff has

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presented evidence that persons under 40, i.e., of a different class, were hired to
perform duties that Plaintiff had performed.
For the reasons stated above and viewing the facts in a light most favorable
to Plaintiff (as the Court must for purposes of Defendant’s motion for summary
judgment), at this stage of the proceedings Plaintiff has established a prima facie
case of age discrimination because he has presented evidence that: (1) he was 55
years old during the relevant time, (2) he was terminated, (3) he was qualified for
the job, and (4) Defendant hired two employees younger than 40 to perform his
duties.
Defendant argues, and Plaintiff does not dispute, that it has offered a
legitimate, non-discriminatory reason for Plaintiff’s termination. The Court finds
that Defendant has met its burden of asserting a legitimate, nondiscriminatory
reason by: (1) claiming that Plaintiff was terminated for poor performance, and (2)
offering evidence that Plaintiff failed to satisfy the requirements listed in his PIP.
Plaintiff contends he has presented sufficient evidence to create a genuine
issue of material fact as to whether Defendant’s reason was mere pretext. The
Court agrees. First, as discussed above, the remarks made by Bussell (Plaintiff’s
supervisor and the person who made the ultimate decision to terminate Plaintiff) at
the March 18, 2014 meeting could be interpreted as being age-related in a manner
that supports a finding of age discrimination. Second, the evidence that two

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younger employees were hired to perform duties Plaintiff had performed supports a
challenge to Defendant’s legitimate non-discriminatory reason for Plaintiff’s
termination. Third, although the PIP provided that termination was possible if its
terms were not met, the PIP did not list any terms or goals that could be met.
Fourth, Plaintiff has offered evidence that the basis for, and Defendant’s evaluation
of his performance pursuant to, the PIP were not warranted. For example, the
record reflects that Plaintiff, like several other Maintenance Supervisors, received a
“below expectations” rating in 2012 and received a “below expectations” rating for
midyear 2013, but none of the other Maintenance Supervisors receiving the “below
expectations” rating in midyear 2013 were terminated. Although Defendant argues
that the comments made in the other Maintenance Supervisors’ evaluations
differentiates them from Plaintiff, the Court finds that Defendant’s argument bears
on how the evidence should be weighed, not whether Plaintiff has created a
genuine dispute of material fact. The Court concludes there is a genuine dispute of
material fact as to whether Defendant’s legitimate business reason was pretext for
age discrimination.
For the reasons stated above, the Court finds that the circumstantial evidence
in the record establishes a genuine dispute of material fact as to whether Defendant
impermissibly terminated Plaintiff on the basis of his age, in violation of the

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ADEA. Defendant’s Motion for Summary Judgment is denied with respect to
Plaintiff’s ADEA claim.
B.

IIED Claim
The Michigan Supreme Court has not explicitly recognized a tort for

intentional infliction of emotional distress, Smith v. Calvary Christian Church,
462 Mich. 679, 686, n.7 (2000), but it has recognized that such a claim can be
made under the standard described in the Second Restatement of Torts. In order to
state an intentional infliction of emotional distress claim pursuant to the Second
Restatement of Torts standard, a plaintiff must show: (1) “extreme and outrageous”
conduct; (2) intent or recklessness; (3) causation; and (4) that he suffered “severe
emotional distress.” Robert v. Auto-Owners Ins. Co., 422 Mich. 594, 602 (1985).
Conduct is sufficiently outrageous only “where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Id. at 603 (quoting Restatement Torts, 2d., § 46, comment d, pp. 7273). “[M]ere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities” are insufficient. Id. “[T]he trial judge [initially] decide[s] whether
defendant’s conduct might reasonably be regarded as so extreme and outrageous as
to allow recovery for intentional infliction of emotional distress.” Sawabini v.
Desenberg, 143 Mich.App. 373, 383 (1985) (citation omitted).

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Defendant contends that the IIED claim fails because Plaintiff’s termination,
even if discriminatory, does not rise to the level of extreme and outrageous conduct
under the facts presented. Plaintiff does not address the issue anywhere in his
response, except in a footnote where he states that he “also has an attendant state
law claim for Intentional Infliction of Emotional Distress.” [Docket No. 19, PgID
381, n.1]. The Court finds that Plaintiff has not provided evidence that would
support an allegation that Defendant’s (Bussell’s) conduct was outrageous or
extreme, nor does the Court find any conduct in the record that would support a
finding that any of Defendant’s conduct “go[es] beyond all possible bounds of
decency, [or could] be regarded as atrocious, and utterly intolerable in a civilized
community.” See Roberts, 422 Mich. at 603 (citation omitted). The Court grants
Defendant’s Motion for Summary Judgment with respect to Plaintiff’s claim for
Intentional Infliction of Emotional Distress.
V.

CONCLUSION
For the reasons stated above,
IT IS ORDERED that Defendant’s Motion for Summary Judgment [Docket

No. 17, filed April 16, 2015] is DENIED as to Plaintiff’s ADEA claim in Count I
and GRANTED with respect to Plaintiff’s IIED claim in Count II.

DATED: March 31, 2016

s/Denise Page Hood
Chief Judge, U. S. District Court

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I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 31, 2016, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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