Michajlyszn v. Citizens Bank N.A.

Filing 35

ORDER granting 25 Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BEVERLY MICHAJLYSZN,
Plaintiff,
Case No.: 15-11805
Hon. Victoria A. Roberts

v.
CITIZENS BANK N.A.,
Defendant.
/

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[ECF No. 25]

I.

INTRODUCTION
Beverly Michajlyszn (“Michajlyszn”) filed this action against Citizens Bank N.A.

(“Citizens”). She alleges that she was terminated from employment because of her age,
in violation of the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq. Citizens filed this motion for summary judgment under Federal Rules of Civil
Procedure 56. It argues there are no genuine issues of material fact regarding the
legality of Michajlyszn’s termination. Citizens is entitled to judgment as a matter of law.
II.

BACKGROUND
Citizens’ predecessor hired Michajlyszn in 1984 as a teller. Her employer

changed ownership several times during Michajlyszn’s thirty-year tenure with the bank,
and she became an employee of Citizens in 2004, when Citizens acquired Charter One
Financial, Inc. Michajlyszn worked for Citizens as a teller manager, which carried the

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responsibility of acting as the vault custodian. She was responsible for maintaining,
ordering, and disbursing cash.
Michajlyszn worked at the Woodward/Long Lake branch (“Woodward”) until
February 27, 2014 when she transferred to the Lathrup Village branch (“Lathrup”).
Citizens required that Michajlyszn transfer from Woodward because that location no
longer employed Michajlyszn’s position. In 2014, Citizens changed its business model
from a teller manager system to a universal banker system. In a universal banker
system, all employees are responsible for all bank activities, including operating teller
lines and accepting loan applications.
On April 1, 2014, Citizens terminated Michajlyszn’s employment. She was 65.
Michajlyszn claims that Citizens discriminated against her because of her age.
Michajlyszn bases her claims on the following:
(A) During Michajlyszn’s employment at Woodward, Michajlyszn alleges that
Branch Manager Mazen Benham asked her on at least five occasions when she
planned to retire. He suggested that she clean out her personal items weeks before her
scheduled transfer, and suggested that she ask management for a buyout.
(B) Three weeks before Michajlyszn transferred from Woodward, she trained
Kristen Shaoni, in her 20s, and Shaoni along with other employees assumed
Michajlyszn’s responsibilities.
(C) A day after Michajlyszn transferred to Lathrup, Regional Manager Erin
Vincent informed her that she had three choices: (1) remain at Lathrup; (2) transfer to
Ferndale; or, (3) resign. Michajlyszn chose to remain even though she knew that the

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Lathrup branch had triple the business compared to Woodward, and Ferndale was
closer to her home.
(D) Lathrup’s branch manager Serina Boyd, consistently monitored and
documented Michajlyszn’s activities. Boyd kept a daily log a week into Michajlyszn’s
employment until two weeks after Michajlyszn’s termination.
(E) In 2011, Citizens gave Michajlyszn a written warning when she left a vault
unsecured, a cash room open, and a cash box out. However, in 2014, Citizens decided
to terminate her when she again left a vault unsecured with cash on the floor. On the
other hand, later that year, Citizens only gave Taryn Kimbrough a final written warning
when she left a vault unsecured with cash.
Although Michajlyszn did not tell human resources personnel that she felt
management treated her differently than younger employees or about Benham’s
statements, she now believes Citizens treated her differently and Citizens discriminated
her based on her age.
Citizens alleges that it based its decision to terminate Michajlyszn on several
incidences:
(1) Since 2010, Michajlyszn’s performance declined and she failed to meet her
sales referral goals. Michajlyszn consistently received a rating of two and three out of
five on performance reviews. In 2013 and 2014, Michajlyszn received a Performance
Improvement Plan and a final written warning that any subsequent violations of
company policy might lead to termination.

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(2) In 2014, Michajlyszn left a vault unsecured with cash on the floor. After a twoweek review by four managers, Citizens decided to terminate Michajlyszn for poor
performance and continued violations of company policy.
Following her termination, Michajlyszn filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”), alleging age discrimination in
violation of the ADEA. The EEOC dismissed Michajlyszn’s claim because of lack of
evidence.
Citizens moves for summary judgment.
III.

APPLICABLE LAW
a. Summary Judgment
The Court will grant summary judgment if “the movant shows 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). A genuine issue of material fact exists "if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2507, 91 L. Ed. 2d 202
(1986). The movant has the initial burden to demonstrate the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
2553, 91 L. Ed. 2d 265 (1986). The burden then shifts to the nonmovant, who “must set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at
256, 106 S. Ct. at 2514 (discussing FED. R. CIV. P. 56(e)). “The court must view the
evidence in the light most favorable to the non-moving party, drawing all reasonable
inferences in that party's favor.” Sagan v. U.S., 342 F.3d 493, 497 (6th Cir.2003) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348,
89 L. Ed. 2d 538 (1986)).
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Both parties must support their assertions “that a fact cannot be or is genuinely
disputed” by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A). Alternatively, either party may
carry its burden by “showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Id. 56(c)(1)(B).
It is not enough for the nonmovant to “simply show that there is some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S. Ct. at
1356, 89 L. Ed. 2d 538 (1986). Rather, the nonmovant must sufficiently allege a fact
that, if proven, “would have [the] effect of establishing or refuting one of essential
elements of a cause of action or defense asserted by the parties.” Midwest Media Prop.,
L.L.C. v. Symmes Twp., Ohio, 503 F.3d 456, 469 (6th Cir.2007) (alteration in original)
(quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)) (internal quotation
marks omitted). The non-movant cannot rely upon bare assertions, conclusory
allegations, or suspicions to substantiate his claims. Columbia Natural Res., Inc. v.
Tatum, 58 F.3d 1101, 1109 (6th Cir.1995). If the nonmoving party does not respond with
specific facts showing a genuine issue for trial, summary judgment is appropriate.
Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989).
b. AGE DISCRIMINATION AND EMPLOYMENT ACT
Under the ADEA, it is unlawful for an employer “to discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms,

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conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). “The purpose of the ADEA… is to protect older workers from being ‘deprived
of employment on the basis of inaccurate and stigmatizing stereotypes,’ and to ensure
that employers evaluate their employees on the basis on their merits, and not their age.”
Allen v. Diebold, 33 F.3d 674, 676-77 (6th Cir.1994). “Disparate treatment [as
Michajlyszn alleges]… captures the essence of what Congress sought to prohibit in the
ADEA. It is the very essence of age discrimination for an older employee to be fired
because the employer believes that productivity and competence decline[] with old age.”
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993).
The burden of persuasion is on Michajlyszn to show that “age was the ‘but-for’
cause of [Citizens’] adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177,
129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Michajlyszn “may establish a violation of the
ADEA by either direct or circumstantial evidence.” Blizzard v. Marion Technical Coll.,
698 F.3d 275, 283 (6th Cir.2012) (quoting Geiger v. Tower Auto., 579 F.3d 614, 620
(6th Cir.2009)). “Direct evidence of discrimination is that evidence which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor in
the employer’s action.” Gieger, 579 F.3d at 620 (quoting Wexler v. White’s Fine
Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003)).
When there is no direct evidence of age discrimination, the claim is analyzed
using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Blizzard, 698 F.3d at 283. To establish a
prima facie case relying upon indirect evidence of age discrimination, Michajlyszn must

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establish that: (1) she is a member of a protected class; (2) she was subject to an
adverse employment action; (3) she was qualified for the position; and, (4) [Citizens]
treated her differently from similarly situated employees outside the protected class.
Briggs v. Potter, 463 F.3d 507, 514 (6th Cir.2006).
To overcome a prima facie case of discrimination, an employer must “articulate a
legitimate nondiscriminatory reason” for its action. See Barnes v. GenCorp Inc., 896
F.3d 1457, 1465 (6th Cir. 1990)(citing Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 252-53 (1981)). Afterwards, the burden shifts to Michajlyszn to prove by a
preponderance of the evidence that Citizens’ asserted reasons “were not its true
reasons, but were a pretext for discrimination.” Id. at 1464.
To establish pretext, Michajlyszn must show “(1) that the proffered reasons had
no basis in fact, (2) that the proffered reasons did not actually motivate [her discharge],
or (3) that they were insufficient to motivate discharge.” Chattman v. Toho Tenax Am.,
Inc., 686 F.3d 339, 349 (6th Cir.2012) (emphasis in original) (internal quotation marks
omitted). The three-part test need not be applied rigidly. Blizzard, 695 F.3d at 285.
“Pretext is a commonsense inquiry: did the employer fire the employee for the stated
reasons or not?” Chen v. Dow Chem. Co., 580 F.3d 394,400 n.4. (6th Cir.2009). It is not
enough for a plaintiff to simply disprove the employer’s purported nondiscriminatory
reasons; plaintiff must present evidence that age was a motivating factor in defendant’s
decision. Michajlyszn has the burden to produce “sufficient evidence from which a jury
could reasonably reject [Citizens’] explanation of why it fired her.” Id. at 400.

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c. Michajlyszn and Citizens’ Legal Authority
Citizens relies on Gross, which holds that Michajlyszn has the burden of
persuasion to show that her “age was the ‘but-for’ cause of the employers’ adverse
action.” Citizens also relies on McDonnell-Douglass Corp. to demonstrate the burden
shift analysis, if Michajlyszn can establish a prima facie case for age discrimination. In
addition, Citizens relies on Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 724 (6th
Cir.2012), for the proposition that statements by non-decision makers unrelated to the
decision to terminate Michajlyszn are insufficient to satisfy Michajlyszn’s burden to
demonstrate animus.
In Lefevers, the Sixth Circuit said that asking an employee “when are you going
to retire?” is merely a general inquiry about age and impending retirement, and this
statement does not constitute direct evidence of discriminatory intent when the
statement is made by a non-decision maker, or decision makers unrelated to the
decisional process to terminate.
Michajlyszn does not rely on any cases to demonstrate that she met her burden
for her prima facie case, nor does she directly address Citizens’ arguments in her
response. Michajlyszn relies on Briggs to demonstrate the elements for pretext, but she
does not explain what element applies to her case. However, Citizens relies on Chen to
demonstrate pretext and Plaintiff’s failure to establish the elements.
IV.

DISCUSSION
Citizens says: (1) Michajlyszn has no facts to support a claim of differential

treatment based on age and that Citizens had legitimate, non-pretextual reasons to

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terminate Michajlyszn; and, (2) Michajlyszn is not entitled to economic damages after
her termination date because she did not sufficiently mitigate them.
a. Age Discrimination
Citizens says that Benham’s alleged statements to Michajlyszn to discuss her
retirement, encourage her to ask for a buyout, and ask her to clean out her personal
items were not direct evidence of discrimination. Citizens argues that Benham did not
make his statements in conjunction with any adverse employment action and Benham
was only indirectly involved in the decision to terminate Michajlyszn. Michajlyszn claims
that Citizens prompted the statements to force her to retire and it decided to terminate
her when she refused.
Michajlyszn’s argument is unavailing. The statements upon which she relies are
not probative of Citizens’ discriminatory animus. While discriminatory remarks, even by
a non-decision maker, can be probative evidence of pretext, statements by non-decision
makers, or statements by decision-makers not made in the context of the decisional
process itself, are insufficient to satisfy a plaintiff’s burden to demonstrate discriminatory
animus. Blizzard, 698 F.3d at 287. Michajlyszn presents no evidence to suggest that
Benham’s questions were related to Citizens’ decision to terminate her, or even that
Benham was directly involved in that decision. See Geiger, 579 F.3d at 621–22.
In addition, assuming Benham was involved in the decision to terminate
Michajlyszn, Michajlyszn conceded in her deposition that she brought up retirement to
Benham in passing and told him that she intended to retire at age sixty-six. She also
said that Benham made the statements while they were laughing and joking, so she did
not take him seriously. Benham’s comments do not relate to the decision to terminate

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her, and his inquiries were too general to constitute direct evidence of discrimination.
See Lefevers, 667 F.3d at 724 (Merely general inquiries about age and impending
retirement do not suffice to satisfy the plaintiff’s burden to demonstrate animus when the
statement is made by a non-decision maker, or decision makers unrelated to the
decisional process itself.).
When direct evidence of age discrimination is lacking, the court analyzes the
claim using the McDonnell Douglas burden-shifting framework. Blizzard, 698 F.3d at
283.
Citizens argues that Michajlyszn cannot prove a prima facie case of
discrimination because she was not qualified for the position and she has no evidence
that Citizens treated her differently than similarly situated younger employees – two
whom she alleges left cash in an unsecured vault once and Citizens did not terminate
them.
To establish her burden, Michajlyszn alleges that Benham told her that Sean
Glasgow left a vault open overnight. Michajlyszn has no personal knowledge if this did
occur. Instead, she speculates that Citizens did not reprimand him since Glasgow
remains an employee. On the other hand, Benham testified that he did not have
knowledge of Glasgow leaving the vault open overnight. Second, Michajlyszn points to
Kimbrough; she only received a final written warning when she failed to secure cash in
a vault once.
The Glasgow statement is hearsay. See, e.g., Alpert v. United States, 481 F.3d
404, 409 (6th Cir.2007) (“‘[E]vidence submitted in opposition to a motion for summary

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judgment must be admissible. Hearsay evidence ... must be disregarded.’ ” (quoting
U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir.1997))).
Even assuming that the record supported Michajlyszn’s claims, these employees
are not similar situated to her. Michajlyszn left over $100,000 cash in an unsecured
vault twice and continued to violate Citizens’ policies after she received final written
warning of termination.
Michajlyszn also argues that the Citizens Woodward branch replaced her with
employees in their twenties, all outside the protected class. Michajlyszn’s argument is
unavailing. The Woodward branch did not terminate Michajlyszn. She decided to
transfer from the Woodward branch to Lathrup, and the Lathrup branch terminated her
after she violated company policy.
In addition, assuming that Michajlyszn established a prima facie case of
discrimination, her claim would be unavailing because Citizens’ reasons to terminate
her were not pretextual.
Citizens proffered several legitimate, nondiscriminatory reasons why it terminated
Michajlyszn: repeated poor performance and violations of company policy.
Under pretext, “the first category implicates evidence ‘that the proffered bases for
[Michajlyszn’s] discharge never happened,’ and the second category requires that
[Michajlyszn] ‘admit[ ] the factual basis underlying [Citizens’] proffered explanation and
further admit [ ] that such conduct could motivate dismissal.’ ” Chattman, 686 F.3d at
349 (alteration in original) (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d
1078, 1084 (6th Cir.1994)). “The third category of pretext consists of evidence that other
employees, particularly employees outside the protected class, were not disciplined

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even though they engaged in substantially identical conduct to that which [Citizens]
contends motivated its discipline of [Michajlyszn].” Id. (citing Manzer, 29 F.3d at 1084).
“A showing of the third type of pretext is a direct attack on the credibility of [Citizens’]
proffered motivation for disciplining [Michajlyszn] and, if shown, ‘permits, but does not
require, the factfinder to infer illegal discrimination from [Michajlyszn’s] prima facie
case.’ ” Id. (quoting Manzer, 29 F.3d at 1084). “In other words, it creates a genuine,
triable issue of material fact.” Id.
Michajlyszn does not present sufficient evidence from which a jury could
reasonably reject Citizens’ explanation of her termination.
First, Michajlyszn cannot establish that the proffered reasons had no basis in
fact. She conceded in her deposition that she left over $100,000 cash in an unsecured
vault in violation of Citizens’ policy twice. She also said that she understood Citizens’
policies and regulations to secure cash.
Second, Michajlyszn conceded in her deposition that she signed the final written
warning before leaving the cash unsecured, and was aware that Citizens might
terminate her if she violated company policy.
Finally, Michajlyszn cannot establish the insufficiency of Citizens’ proffered
reasons; she has not presented admissible evidence that Citizens treated other
employees differently in light of conduct similar to hers. See Blizzard, 698 F.3d at 28687.
Michajlyszn presents no direct evidence of age discrimination. Nor does she
even attempt to argue that she makes out a prima facie case of discrimination under the

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McDonnell Douglas framework or show that Citizens’ proffered reasons for her
termination were pretextual.
b. Economic Damages
Since the court grants summary judgment on the ADEA claim the court need not
address damages.
V.

CONCLUSION
Michajlyszn cannot establish a genuine issue of material fact that age was the

but-for cause for her termination. She cannot successfully establish an age
discrimination claim. Citizens is entitled to judgment as a matter of law. The court
GRANTS Citizens’ motion for summary judgment.
IT IS ORDERED.

s/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 22, 2016
The undersigned certifies that a copy of this
document was served on the attorneys of record
by electronic means or U.S. Mail on September
22, 2016.
s/Linda Vertriest
Deputy Clerk

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