Trapani v. 19 Mile Senior Housing, LLC

Filing 19

ORDER Denying 16 Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KIM M. TRAPANI,
Plaintiff,
v.
19 MILE SENIOR HOUSING, LLC,
d/b/a VILLA BELLA OF CLINTON,

Case No. 16-12714

Defendant.
________________________________/
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION
Kim Trapani (“Trapani”) filed suit against her employer 19 Mile Senior Housing,

LLC, d/b/a/ Villa Bella of Clinton. (“Villa Bella”). She alleges that Villa Bella terminated
her because of her age, in violation of the Age Discrimination and Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq. Villa Bella seeks summary judgment under Fed. R.
Civ. P. 56. It argues there are no genuine issues of material fact regarding the legality of
Trapani’s termination.
II.

STATEMENT OF FACTS
Villa Bella hired Trapani in 2010 as a receptionist and subsequently promoted

her to Community Liaison. She was responsible for leasing apartment units, giving tours
of Villa Bella, maintaining the marketing budget, and conducting other marketing
activities.
In 2013, the bank that financed Villa Bella expressed concerns to Villa Bella
management about decreasing revenues and occupancy rates, and increasing
expenses. In 2014, the bank hired a consultant to perform an operations assessment
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through review of Villa Bella’s revenue and expenses. The consultant recommended
that Villa Bella could increase revenues and decrease expenses, by increasing its sales
and marketing budget, and by paying Trapani bonuses and commissions for securing
new residents. Villa Bella also reduced expenses by lowering cable, electricity, alarm
system, and service management expenses. The bank then gave Villa Bella an
extension until May 2014, to reach a 90% occupancy rate and lower its debt service
ratio, to avoid default on its loan obligations.
In 2014, Trapani sent emails and text messages to Jennifer Kuczmarski
(“Kuczmarski”), Villa Bella’s Senior Property Manager, complaining that Julie Wilson
(“Wilson”), Villa Bella’s General Manager, and Karen Moreland (“Moreland”), Villa
Bella’s Assistant General Manager, were making it difficult for her to do her job and
were “bull[y]ing” her. Wilson testified that there was tension between Moreland and
Trapani because Moreland could not manipulate Trapani because of her maturity.
Wilson testified that Moreland could, however, manipulate two receptionist, Honey
Reynolds (“Reynolds”) and Kristina Afram (“Afram”), because of their youth.
In late 2014, Kuczmarski met with Villa Bella owners and discussed financial
issues. She suggested that the owners eliminate Trapani’s Community Liaison position to
reduce payroll expenses. In addition, she told the owners that the marketing department
was the only one that could “absorb… a reduction because existing employees were
available to perform the necessary job duties.” (Doc. 15-1; Pg ID 80-1). Kuczmarski
testified that the consultant did not recommend that Villa Bella cut the marketing and
sales budget.

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On January 3, 2015, Wilson fired Trapani, even though there was no issue with
her performance, and occupancy increased during the last few months of 2014. Villa
Bella argues that Melissa Ferlito, Owner and Managing Member of Villa Bella, made the
decision to terminate with input from Kuzmarski. Wilson, Ferlito and Kuzmarski
exchanged emails discussing Trapani’s termination before the actual termination. Trapani
says Wilson was involved in the decision to terminate as well.
Ferlito believed, based on Kuczmarski’s information, that staff could absorb
Trapani’s job duties. Specifically, she believed Moreland, Wilson, and Afram and
Reynolds, – both in their twenties – could give tours and provide marketing and sales
support. After Villa Bella fired Trapani, it promoted Afram and Reynolds from part-time to
full-time positions. They continued their receptionist duties and absorbed some of
Trapani’s duties, such as giving tours and entering information into “REPS” – a tracking
system used to maintain information on prospective residents. Neither Reynolds nor
Afram had marketing or sales experience.
Wilson and Moreland also absorbed some of Trapani’s responsibilities, including:
planning and overseeing advertising and promotional activities; public relations;
maintaining department expenses within the budget; maintaining familiarity with Villa
Bella’s competitors, including their pricing, strengths and weaknesses; and, managing
Villa Bella’s involvement in trade shows, expositions, and outside events.
Following her termination, Trapani filed suit against Villa Bella, alleging age
discrimination in violation of the ADEA. Villa Bella moves for summary judgment.

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III.

STANDARD OF REVIEW
a. Fed. R. Civ. P. 56
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)).
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

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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,
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 Trapani
alleges] … captures the essence of what Congress sought to prohibit in the ADEA. It is

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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 Trapani to show that “age was the ‘but-for’ cause
of [Villa Bella’s] adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129
S.Ct. 2343, 174 L.Ed.2d 119 (2009). Trapani “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 (1973). Blizzard, 698 F.3d at 283. To establish a prima facie case relying upon
indirect evidence of age discrimination, Trapani must establish that: “1) she was a
member of a protected class; 2) she was discharged; 3) she was qualified for the
position held; and 4) she was replaced by someone outside of the protected class.”
Schoonmaker v Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir. 2010).
To overcome a prima facie case of discrimination, Villa Bella 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 Trapani to prove by a

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preponderance of the evidence that Villa Bella’s asserted reasons “were not its true
reasons, but were a pretext for discrimination.” Id. at 1464.
To establish pretext, Trapani 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). “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. Trapani has the burden to produce “sufficient evidence
from which a jury could reasonably reject [Villa Bella’s] explanation of why it fired her.”
Id. at 400.
IV.

DISCUSSION
Villa Bella says that Trapani has no facts to support a claim of differential

treatment based on age and that Villa Bella had legitimate, non-pretextual reasons to
terminate Trapani.
a. Age Discrimination
i. There is a genuine issue of material fact whether Villa Bella
replaced Trapani with someone outside the protected class
There is no dispute that Trapani establishes the first three elements of a prima
facie case for discrimination: she is a member of a protected class, (she was 57 years
old at the time of her termination); she was qualified for her position; and, she was fired.

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However, there is a material dispute as to whether Villa Bella replaced her with
someone outside of her protected class. Schoonmaker, 595 F.3d 261, 264.
Trapani argues that Villa Bella replaced her with Afram and Reynolds, both in
their twenties. Villa Bella argues that it did not replace Trapani; it eliminated the
Community Liaison position. It also argues Moreland and Wilson – who are both within
the protected class – took over some of Trapani duties as well. Villa Bella contends that
Afram and Reynolds performed some of Trapani’s duties before Trapani was fired, and
that receptionist duties took up fifty percent of their time after Trapani’s termination.
Trapani relies on Tinker v. Sears, Roebuck & Co., 127 F.3d 519 (6th Cir. 1997).
In Tinker, the Sixth Circuit held that promoting a younger, part-time employee to fulltime status to assume the discharged employee’s responsibilities was tantamount to
replacement. Id. at 522.
Here, Afram and Reynolds were part-time receptionists before Villa Bella fired
Trapani. Villa Bella promoted them to full-time, and they assumed the marketing and
sales responsibilities described above. Trapani is similar to Tinker. In Tinker, the
employer had to promote an employee to full-time status, so he could handle his
previous duties in addition to Tinker’s duties. The Court held this fundamentally
changed the nature of his employment. Id.
Villa Bella relies on Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)
citing Sahadi v. Reynolds Chem., 636 F.2d 1116, 1117 (6th Cir. 1980), to argue “an
individual 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 other existing
employees already performing related work. A person is replaced only when another

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employee is hired or reassigned to perform the plaintiff's duties.” Sahadi, 636 F.2d at
1117.
Neither Barnes nor Sahadi supports the proposition that Villa Bella did not
replace Trapani with employees outside her protected class. First, Barnes concerned a
reduction in force (“RIF”), where an employer discharges a large number of employees
at one time as opposed to only one employee. Barnes, 896 F.2d at 1468. Villa Bella
only terminated Trapani. Courts apply a different standard of review to RIF cases than it
does to one-person termination cases. In RIF cases, the consideration for the Court is
whether the employee “was treated differently from similarly situated employees outside
the protected class” and whether the employer “singled [the employee] out for discharge
for impermissible reasons.” See Briggs v. Porter, 463 F.3d 507, 514 (6th Cir. 2006).
Second, Barnes relies on Sahadi, which applies a different standard of review. Sahadi
went before a jury and the trial judge issued a directed verdict in the defendant’s favor.
Sahadi, 636 F.2d at 1117.
There are genuine issues of fact in dispute. Among them are: (1) whether Afram
and Reynolds were responsible for some of the same duties as Trapani before Villa
Bella fired her; (2) what Trapani duties they assumed; (3) whether Villa Bella eliminated
Trapani’s position or did other employees replace her; and, (4) which employees
replaced her. The parties also dispute whether Reynolds and Afram were the only
employees who assumed a majority of Trapani’s duties.
These are genuine issues of material fact which prevent the Court from granting
Villa Bella’s motion for summary judgment.

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ii. There is a genuine issue of material fact whether age was the
“but for” cause for Trapani’s termination.
Assuming that Trapani establishes a prima facie case of discrimination, the
burden shifts to Villa Bella to proffer a legitimate nondiscriminatory reason for Trapani’s
termination. See Barnes, 896 F.3d 1457, 1465. Villa Bella has proffered a reason for its
action: the need to eliminate the Community Liaison position and redistribute those job
duties to existing employees, so Villa Bella could allocate budgeted marketing expenses
to different types of advertising. This sounds like a legitimate business reason to
terminate Trapani and Villa Bella meets its burden to articulate a legitimate reason for
Trapani’s firing.
This articulation shifts the burden to Trapani to offer evidence of pretext. To
establish pretext, Trapani 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, 686 F.3d 339, 349. “A showing
of the third type of pretext is a direct attack on the credibility of [Villa Bella’] proffered
motivation for terminating [Trapani] and, if shown, ‘permits, but does not require, the
factfinder to infer illegal discrimination from [Trapani’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. Chattman, 686 F.3d at 349 (quoting Manzer v. Diamond Shamrock Chems.
Co., 29 F.3d 1078, 1084 (6th Cir.1994)).
Trapani contends that Villa Bella’s proffered reasons for terminating her has no
basis in fact because there was no “economic need” to eliminate the Community Liaison
position. On one hand, there is this evidence: (1) Ferlito testified that she says she
made the decision to eliminate the Community Liaison position, so Villa Bella could
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reach its “bottom line number.” (Doc. #17-6; Pg Id 726); and, (2) Villa Bella argues it
“decided to eliminate the position in January of 2015 because other employees within
the company could absorb Trapani’s job duties, thereby reducing payroll expenses,
which improved Villa Bella’s debt service coverage ratio keeping Villa Bella out of
default.” (Doc. 16; Pg ID 215).
On the other hand, Villa Bella argues it “never suggested that it needed to
eliminate the Community Liaison position and discharge [Trapani]…Ferlito…believed
[Trapani] was expendable because others could absorb her job duties making it
unnecessary to dedicate an individual solely to those duties.” (Doc. 18; Pg ID 1088).
Trapani argues that Ferlito and Kuczmarkski cannot justify how eliminating her
position assisted Villa Bella in receiving bank financing, since Trapani met the bank’s
required occupancy rate, the revenue was increasing because of her marketing
experience, and the bank suggested that Villa Bella incentivize Trapani with
commissions from sales.
Trapani argues that the proffered justifications did not actually motivate the
termination. She relies on Wilson’s testimony. Trapani’s counsel asked Wilson “is there
any other reason that you believe [Karen Moreland] would have selected [Afram and
Reynolds]” and Wilson answered, “Karen put them there because she could manipulate
them, without being questioned. Because [Trapani] would question [because] she had
the knowledge. She knew what was expected of her.” Counsel asked her if “[Trapani’s]
knowledge and experience came from her maturity” and Wilson answered, “I believe
so.” Wilson also said she believed Karen could manipulate Honey and Kristina because
of their youth. Trapani argues that Wilson’s testimony shows that Villa Bella hired Afram

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and Reynolds, both younger employees, to absorb her responsibilities because of their
“youth,” which demonstrates that Villa Bella was motivated by Trapani’s age.
Villa Bella says that the Court should give Wilson’s testimony little weight
because: (1) Wilson has no factual basis for her testimony; (2) she was not part of the
decision-making process to terminate Trapani; and, (3) Wilson repeatedly complained
about Trapani and urged management to terminate her because of her job
performance. (Doc. #18; Pg ID 1091-92).
The record does show that Wilson communicated with Ferlito and Kuczmarksi
about the decision to terminate Trapani: Wilson engaged in email discussions with
Ferlito and Kuczmarski about the reason to terminate Trapani; Wilson is the person who
told Trapani that she was fired; and, Villa Bella admits that Wilson urged management
to terminate Trapani. The reason for the termination is at issue.
There are sufficient inconsistencies in the testimony and other evidence to create
genuine issues of fact concerning pretext. Among them are whether: (1) Wilson was
involved in the decision-making process; (2) age motivated the decisionmakers to
terminate Trapani; and, (3) Villa Bella wanted to hire younger individuals.
Trapani presents sufficient evidence from which a jury could reasonably reject
Villa Bella’s explanation for her termination.
V.

CONCLUSION
The Court to DENIES Villa Bella’s motion for summary judgment. There are

genuine issues of material fact as discussed above.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: August 29, 2017
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The undersigned certifies that a copy of this
document was served on the attorneys of record
by electronic means or U.S. Mail on August 29,
2017.
s/Linda Vertriest
Deputy Clerk

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