Sommerville v. Schenker, Inc.
Filing
28
OPINION and ORDER Granting Defendant's 21 Motion for Summary Judgment. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEPHEN D. SOMMERVILLE,
Plaintiff,
Case No. 2:16-cv-10765
v.
SCHENKER, INC.,
HONORABLE STEPHEN J. MURPHY, III
Defendant.
/
OPINION AND ORDER
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [21]
Plaintiff Stephen Sommerville filed a complaint alleging that his former employer,
Defendant Schenker, Inc. ("Schenker"), violated the Age Discrimination in Employment
Act ("ADEA"), the Michigan Elliot Larsen Civil Rights Act ("ELCRA"), and the Family and
Medical Leave Act ("FMLA"). ECF 1. On May 12, 2017, Schenker filed a motion for
summary judgment. ECF 21. The Court reviewed the briefs and finds that a hearing is
unnecessary. E.D. Mich. LR 7.1(f). For the reasons below, the Court will grant
Schenker's motion.
BACKGROUND
Stephen Sommerville worked for Schenker, and its predecessors, for more than
thirty-five years. In January 2013, Schenker offered Sommerville the position as a
Global Account Manager ("GAM"). ECF 21-2, PgID 126; ECF 21-4, PgID 190. For
several months, Sommerville fulfilled his responsibilities in his old role as an
International Services Manager and for his new role as a GAM, until he assumed full
1
responsibility of his role as a GAM in April 2013. ECF 21-2, PgID 126. For about one
year as a GAM, Sommerville reported to Rhonda Janzewski. Id. In May of 2014,
Schenker hired Randall Creel. Creel's responsibilities included supervision of
Sommerville and Schenker's other GAMs: G.K. Girish and Tim Horton.
On July 3, 2014, Sommerville notified Schenker that he required a medical leave
of absence after a scheduled hernia surgery. On July 7, 2014, Schenker's leave of
absence administrator confirmed Sommerville's leave for July 8–16, 2014 and
subsequently extended his leave until July 21, 2014. Sommerville returned to work on
July 22, 2014.1
In October 2014, Schenker tasked Daniel Bergman—Senior Vice President, Key
Account Management and Sales for the Region Americas—with reducing the number of
positions in the company. ECF 21-16, PgID 289. Schenker terminated Sommerville's
position on November 7, 2014 citing the company's reduction in workforce. ECF 21-9,
PgID 207.2 Bergman testified that he relied upon data from the Key Account
Management database and the GAM's future sales opportunities, in particular the "best
and few" data from Schenker's salesforce.com database. The database generates "best
and few" data based on the GAM's inputs of future business opportunities with the
highest potential to materialize into future business for Schenker. After the termination
1 There was no direct evidence of negative comments about Sommerville’s leave when
he returned to work. ECF 21, PgID 90.
2 Sommerville extensively argues about Schenker's delay in providing and the
perceived insufficiency of Schenker's Old Workers Benefit Protection Act ("OWBPA")
paperwork. ECF 24, PgID 340. But the OWBPA does not create a cause of action and
non-compliance with it does not establish an age discrimination claim. An employee's
relief from OWBPA non-compliance is to file a lawsuit for age discrimination. See
Williams v. Gen. Motors Corp., 901 F. Supp. 252, 254–55 (E.D. Mich. 1995).
2
of Schenker's GAM position, Schenker transferred the Lear account to Creel. Later,
Horton assumed the responsibilities of the Lear account.
STANDARD OF REVIEW
The Court may grant summary judgment "if the movant shows 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 fact is "material" for purposes of summary
judgment if proof of that fact would establish or refute an essential element of the cause
of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A
dispute over material facts is “genuine” "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, 248 (1986). In order to show that a fact is, or is not, genuinely disputed, both
parties are required to either "cite[] to particular parts of materials in the record" or
"show[] 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." Fed. R. Civ. P. 56(c)(1). In considering a motion for summary judgment, the Court
must view the facts and draw all reasonable inferences in the light most favorable to the
nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
DISCUSSION
Somemerville's complaint alleges age discrimination in violation of the ADEA, 29
U.S.C. § 621 et seq., and the ELCRA, Mich. Comp. Laws § 37.2101, and retaliatory
termination in violation of the FMLA, 29 U.S.C. § 2601 et seq.
The Court will analyze the claims primarily under a burden-shifting framework.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see, e.g., Donald v. Sybra,
3
Inc., 667 F.3d 757, 762 (6th Cir. 2012) (recognizing application of McDonnell Douglas to
FMLA claims). First, the plaintiff must make a prima facie showing. Once that is
established, the defendant must offer a legitimate, non-discriminatory reason for the
adverse employment action. If a reason is shown, the plaintiff then carries the burden of
showing by a preponderance of the evidence that the defendant's proffered reason is
merely a pretext. At each stage, the Court must consider whether there is sufficient
evidence to create a genuine dispute of material fact. Jackson v. VHS Detroit Receiving
Hosp., Inc., 814 F.3d 769, 776 (6th Cir. 2016).
I.
Age Discrimination Claims
Age-discrimination prevention statutes bar employers from discharging or
discriminating against employees based on age. 29 U.S.C. § 623; Mich. Comp. Laws.
§ 37.2202. Discrimination may be shown by either direct or indirect evidence. Direct
evidence is evidence that, "if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer's actions." Lautermilch v.
Findlay City Schs., 314 F.3d 271, 275–76 (6th Cir. 2003). Because there is no direct
evidence, the Court must apply the McDonnell Douglas burden-shifting framework.3
Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009). And Sommerville relies upon
circumstantial evidence to support his age discrimination claims. Therefore, the Court
will analyze both federal and state law claims under McDonnell Douglas's burdenshifting approach.4
3
The Court considers four factors to determine whether direct evidence exists. Peters v.
Lincoln Elec. Co., 285 F.3d 456, 478 (6th Cir. 2002). No evidence supports the factors
here.
4
Sommerville presents two events as evidence of age discrimination: the
termination of his GAM position and Schenker's failure to provide him an opportunity to
transfer to a different position within the company.
A. Sommerville fails to establish the prima facie case of age discrimination as it
relates to the Global Account Manager position.
To make a prima facie showing, Plaintiff must show: (1) he was at least 40 years
old at the time of the alleged discrimination, (2) he was subject to an adverse
employment action, (3) he was qualified for the position, and (4) he was replaced by a
younger person. Lilley, 958 F.2d at 752; Phelps, 986 F.2d at 1023. The parties dispute
only the fourth element.
Several nuances exist if the plaintiff's termination arose during a reduction in
workforce ("RIF"). First, during a RIF, a person is not replaced "when another employee
is assigned to perform the plaintiff's duties in addition to other duties, or when the work
is redistributed among existing employees already performing related work." Barnes v.
GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). Replacement occurs "only when
another employee is hired or reassigned to perform the plaintiff's duties." Id. (emphasis
added).
4
The Michigan Supreme Court held that the McDonnell Douglas standard may be
applied to an age-discrimination suit brought under state law. Matras v. Amoco Oil Co.,
424 Mich. 675, 683–85 (1986).
Sommerville's age discrimination claims under the ADEA and ELCRA utilize the
McDonnell Douglas analytical framework. Geiger v. Tower Auto., 579 F.3d 614, 621–22,
626 (6th Cir. 2009). Under the ADEA, Plaintiff has the burden of persuading the jury that
he would not have been terminated but for his age. Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 176 (2009). Plaintiff's ELCRA claim requires a lesser showing that his age
was a motivating factor behind defendant's decision not to hire him. Block-Victor v.
CITG Promotions, LLC, 665 F. Supp. 2d. 797, 805, 817 (E.D. Mich. 2009).
5
Second, if a plaintiff alleges age discrimination during a RIF, then he carries a
greater evidentiary burden in demonstrating the prima facie case. Ridenour, 791 F.2d at
57. The plaintiff must additionally present direct, circumstantial, or statistical evidence
tending to demonstrate that an employer discharged him for impermissible reasons.
Campbell, 509 F.3d at 785.
Here, Schenker did not replace Sommerville. Upon Sommerville's termination,
Creel took immediate control over the Lear account, but within one or two months
Horton assumed responsibility for the account. ECF 21-13, PgID 254; ECF 24-7, PgID
461. Creel was "assigned to perform the plaintiff's duties in addition" to his other duties
and then the work was "redistributed" to Horton, an "existing employee[] already
performing related work." Barnes, 896 F.2d at 1465.
Plaintiff contends that Creel's adoption of Sommerville's duties amounted to a
"fundamental change in [his] duties" that constituted replacement. ECF 24, PgID 349.
The argument is without merit. First, Plaintiff points to Bonfiglio v. Michigan
Underground Specialists, No. 09-13534, 2010 WL 3190829 (E.D. Mich. Aug. 12, 2010).
Bonfiglio cited Tinker v. Sears, Roebuck & Co., 127 F.3d 519 (6th Cir. 1997), for the
proposition that elevating a part-time employee to full-time status to assume the
responsibilities of an employee terminated as part of a RIF constituted replacement.
2010 WL 3190829, at *6. Tinker analogized that kind of replacement to a reassignment.
127 F.3d at 522. But Bonfiglio does not apply here because the employer replaced the
plaintiff-employee with a new hire six months after his termination. Similarly, Tinker's
carve-out is inapplicable here because both Creel and Horton were full-time employees
at the time of Sommerville's termination.
6
Second, even if Bonfiglio were applicable to Sommerville, the redistribution of
work from Sommerville's terminated position to Creel did not "fundamentally change[]
the nature of the employment" even if the reassigned duties differed from those
normally held by Creel. Bonfiglio, 2010 WL 3190829, at *6. Schenker's redistribution of
work duties to pre-existing employees does not qualify as "replacement" of Sommerville
for purposes of the prima facie case of age discrimination.
B. Sommerville fails to establish the prima facie case of age discrimination as it
relates to his non-transfer to a different position within Schenker.5
In workforce reduction cases, an employer violates the ADEA if the employer (1)
terminates numerous positions, (2) allows younger employees to transfer to other
available positions, but (3) does not allow employees in the protected class to transfer
to available positions for which they are qualified. Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 351 (6th Cir. 1998). An employer is under no obligation to
transfer employees whose positions are eliminated during a RIF, but the employer may
not transfer some displaced employees and not others based on age. Id.; see also
Hawley v. Drusser Indus., Inc., 958 F.2d 720, 723 (6th Cir. 1992).
The McDonnell Douglas framework guides the Court's analysis. A prima facie
case in age-discrimination-for-failure-to-transfer cases has four elements. The plaintiff
must show: (1) membership in a protected class, (2) plaintiff was qualified for positions
available at the time of the elimination of her position, (3) the employer did not offer the
5
Defendant notes that Plaintiff did not raise the non-transfer theory in either his EEOC
charge or his complaint. If Defendant transferred younger employees and did not
transfer older employees, however, that action would amount to a violation of the ADEA
and fall within the broad scope of Sommerville's pleading.
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position to plaintiff, and (4) a similarly situated employee who is not a member of the
protected class was offered the opportunity to transfer to an available position. Id. Only
the second and fourth elements are in dispute in the present case.
Schenker did not transfer any employees to new positions during the 2014 RIF.
Sommerville testified that, during previous RIFs, he would consider which employees to
"move to other positions" or terminate. ECF 24-2, PgID 375–76. Janzweski testified
that, after 2008, RIFs became "very regular", ECF 24-3, PgID 412, and that she had
indirect knowledge of Schenker transferring employees during previous RIFs, id. at
PgID 416–17. There is no evidence in the record, however, that Schenker transferred
any employees—let alone younger employees—during the 2014 RIF of which
Sommerville's termination was a part or in any subsequent RIFs. Evidence of the fourth
prong of Sommerville's age-discrimination-for-failure-to-transfer claim is absent.
II.
FMLA Claim
The Sixth Circuit recognizes two theories for recovery under the FMLA. Hoge v.
Honda of Amer. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). The first theory, of
"entitlement" or "interference", involves an employer's unlawful interference with any
right provided by the FMLA. 29 U.S.C. § 2615(a)(1). The second theory, of "retaliation"
or "discrimination", involves an employer's discrimination against an individual for
opposing an employer's violation of the FMLA. Id. at § 2615(a)(2). Plaintiff's claim falls
under only the retaliation theory. If the plaintiff makes a prima facie showing, then the
McDonnel Douglas burden-shifting framework applies and a defendant must articulate a
legitimate, non-discriminatory reason for the adverse action. Provenzano v. LCI
Holdings, Inc., 663 F.3d 806, 812 (6th Cir. 2011). After that showing, a plaintiff can
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refute the reason "by showing that the proffered 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." Dewis v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.
2000).
The prima facie case for FMLA retaliation claims requires proof of four elements.
Donald, 667 F.3d at 761. The parties dispute only the fourth element—whether there
was a causal connection between the protected FMLA activity and the adverse
employment action. The Sixth Circuit has acknowledged that the temporal proximity
between a request for leave and an employee's termination may give rise to a
presumption of a causal connection. Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d
274, 283–84 (6th Cir. 2012) (collecting cases).6 Close temporal proximity may create a
presumption of causality because, if an employer swiftly terminates employment after
learning of protected activity, the employee would not have enough time to gather "any
such other evidence of retaliation." Mickey v. Zeidler Tool and Die Co., 516 F.3d 516,
525 (6th Cir. 2008).
If, however, "some time elapses between when the employer learns of a
protected activity and the subsequent adverse employment action, the employee must
couple temporal proximity with other evidence of retaliatory conduct to establish
causality." Id.; see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)
(collecting cases and noting that "temporal proximity must be 'very close'").
6
Plaintiff avers that Bergman began pulling data in September 2014 "only weeks after
Sommerville returned from his FMLA leave." ECF 24, PgID 357. But the Sixth Circuit's
treatment of temporal proximity consider the dates of either the request to leave or the
actual leave and the date of the adverse employment action.
9
Sommerville went on FMLA leave from July 8 to July 21, 2014. Bergman began
considering positions for the RIF in October 2014 and terminated Sommerville's GAM
position on November 7, 2014. The nearly four months between Sommerville's return
from FMLA leave and the adverse employment action is not sufficient, in itself, to create
a presumption of causality. See Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999)
(finding two to five months insufficient time to establish temporal proximity).
When temporal proximity is insufficient, a plaintiff must couple the timing with
other evidence of retaliation. See, e.g. Randolph v. Ohio Dep't of Youth Servs., 453
F.3d 724, 737 (6th Cir. 2006) (finding six months sufficient for causal connection when
accompanied by other evidence). Sommerville does not provide additional evidence that
his exercise of his FMLA rights caused Schenker to eliminate his position.
Even if the Court were to find that the temporal proximity between Sommerville's
FMLA leave and termination sufficiently demonstrated a causal connection, Schenker
provided a legitimate, non-discriminatory reason for Sommerville's termination. Namely,
Bergman relied upon the "best and few data" in making his determination.
And Plaintiff fails to refute Schenker's legitimate, non-discriminatory reason. First,
Sommerville does not dispute that the sales data Bergman relied upon was grounded in
fact. Second, Sommerville does not argue that the "best and few" sales data did not
support Bergman's decision. Third, Sommerville does not challenge the data's
sufficiency to warrant the adverse employment decision. Rather, Sommerville argues
that the "best and few" data created a misleading picture of his sales performance.
Sommerville contends that Bergman would utilize the "best and few" data only to target
Sommerville. The argument fails.
10
The Sixth Circuit uses the "honest belief" rule to evaluate an employer's proffered
reason for discharging an employee. Smith v. Chrysler Corp., 155 F.3d 799, 806–07
(6th Cir. 1998). If an employer honestly believes its reason for terminating an employee,
the employee “cannot establish that the reason was pretextual simply because it is
ultimately shown to be incorrect." Majewski v. Automatic Data Processing, Inc., 274
F.3d 1106, 1117 (6th Cir. 2001). An honest belief exists if the employer made its
decision based on particularized facts before the employer at the time the decision was
made. Id. Even a subjective reason come to through a "haphazard" evaluation process
does not create an inference of discrimination. Schoonmaker v. Spartan Graphics
Leasing, LLC, 595 F.3d 261, 270 (6th Cir. 2010) (quoting Skelton v. Sara Lee Corp.,
249 F. App'x 450, 462 (6th Cir. 2007)).
Bergman honestly believed the proffered reason for terminating Sommerville
because he relied upon particularized facts in making the decision. Moreover,
Bergman's decision-making process was objective. Sommerville may dispute the
efficacy of the "best and few" data, but that alone is insufficient to show that the
proffered reason is pretextual.
ORDER
WHEREFORE it is hereby ORDERED that Defendant's motion for summary
judgment [21] is GRANTED.
SO ORDERED.
Dated: December 28, 2017
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Court Judge
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on December 28, 2017, by electronic and/or ordinary mail.
s/ David Parker
Case Manager
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