McCool v. Operative Plasterers and Cement Masons International Association of the United States and Canada, AFL-CIO
Filing
59
OPINION and ORDER Granting In Part and Denying In Part 43 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (Loury, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACK MCCOOL,
Plaintiff,
Civil Case No. 13-13614
Honorable Linda V. Parker
v.
OPERATIVE PLASTERERS
AND CEMENT MASONS
INTERNATIONAL ASSOCIATION
OF THE UNITED STATES AND
CANADA, AFL-CIO,
Defendant.
__________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 43)
I.
This is an employment discrimination case. Plaintiff Jack McCool
(“Plaintiff”) formerly worked for local affiliates of Defendant Operative Plasterers
and Cement Masons International Association of the United States and Canada,
AFL–CIO (“Defendant”). (Compl., ECF No. 1 at Pg. ID 2.) Plaintiff asserts that he
was demoted and ultimately terminated by Defendant due to his age. (Id.) Pending
before the Court is Defendant’s motion for summary judgment, filed pursuant to
Federal Rule of Civil Procedure 56. (Def.’s Mot., ECF No. 43.) A motion hearing
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was held on January 7, 2015. For the reasons that follow, the Court GRANTS in
part and DENIES in part Defendant’s motion.
II.
On March 11, 2001, Plaintiff was hired by Defendant as a Business Agent
for its affiliated Local 67. (Compl., ECF No. 1 at Pg. ID 2.) Thereafter, Plaintiff
was promoted to Business Manager. (Id.) On June 27, 2012, Defendant’s Vice
President, Dan Rauch, advised Plaintiff that Local 67 would be merging with
another of Defendant’s locals, Local 514, and that Plaintiff “would be demoted to a
Business Agent position effective November 1, 2012.” (Id.) Rauch also informed
Plaintiff that Joel Santos, the then Business Manager of Local 514, would become
the Business Manager of the merged entity. (Id.) When Plaintiff questioned Rauch
as to why he was not chosen to be the Business Manager of the post-merger Local
514, Rauch allegedly told Plaintiff that “it was because of his age and that he was
too old, or words to that affect.” (Id.) Subsequently, Plaintiff complained to the
General President, Patrick Finley about the selection and the discriminatory reason
for the decision, to which Finley told Plaintiff that “he ha[d] to go by [Vice
President Rauch’s] decision.” (EEOC Charge of Discrimination, ECF No. 43-9 at
Pg. ID 1114.)
On October 16, 2012, Plaintiff filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC), asserting that he had been
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demoted because of his age (59 years old at the time of demotion), in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et
seq. (Id.) Further, on October 25, 2012, Plaintiff notified Defendant via a letter
from his attorney that Defendant should not take “any further actions of age
discrimination against him.” (Compl., ECF No. 1 at Pg. ID 2.) Plaintiff received a
right-to-sue letter from the EEOC on May 22, 2013. (ECF No. 43-10.)
On November 1, 2012, Defendant assigned Plaintiff to the Business Agent
position of Local 514, and on July 22, 2013, Defendant terminated Plaintiff.
Shortly afterwards, Plaintiff filed this lawsuit, (ECF No. 1.) Thereafter, Defendant
filed its motion for summary judgment. (ECF No. 43.)
III.
Summary judgment must be granted if the pleadings and evidence “show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute over a
material fact is only a “genuine issue” if a reasonable jury could find for the
nonmoving party on that issue. Cockrel v. Shelby County Sch. Dist., 270 F.3d
1036, 1048 (6th Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). “In deciding a summary judgment motion, the evidence ‘must be
viewed in the light most favorable to the party opposing the motion.’” Snyder v.
Kohl's Dep't Stores, Inc., 580 F. App'x 458, 461 (6th Cir. 2014) (quoting
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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Likewise, the burden of establishing the nonexistence of a material factual dispute
always rests with the movant. Id. (citing Smith v. Hudson, 600 F.2d 60, 65 (6th
Cir.1979)) (quotations omitted).
IV.
Plaintiff’s first claim (Claim 1) is that Defendant discriminated against him
on the basis of age by: (a) demoting him; and (b) discharging him, in violation of
both the ADEA, 29 U.S.C. § 621 et seq., and the Michigan state law corollary, the
Elliot Larsen Civil Rights Act, MCL § 37.2201 et seq. (Compl., ECF No. 1 at Pg.
ID 3.) Plaintiff’s second claim (Claim 2) is that Defendant retaliated against him
for filing the charge of discrimination and for sending the letter by: (a) demoting
him; and (b) terminating him, also in violation of the same provisions of law
previously mentioned. (Id.) The same analysis governs Plaintiffs claims under both
the ADEA and the Elliot–Larsen Civil Rights Act. Bondurant v. Air Line Pilots
Ass'n, Int'l, 679 F.3d 386, 394 (6th Cir. 2012) (citing Geiger v. Tower Auto., 579
F.3d 614, 626 (6th Cir.2009)).
Defendant argues in its brief that it is entitled to summary judgment on
various grounds. First, in support of this position, Defendant asserts that Plaintiff’s
charge of discrimination only addresses Claim 1(a), in which Plaintiff asserts
Defendant discriminated against him on the basis of age by demoting him. Thus,
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argues Defendant, Plaintiff has not exhausted his administrative remedies as to his
other claims by filing a charge addressing those claims, noting that the ADEA and
Michigan Civil Rights Act require a plaintiff to exhaust his or her administrative
remedies prior to bringing a civil action. As a result, Defendant argues that Claims
1(b), 2(a), and 2(b) should be discharged. The Court agrees.
V.
It is readily apparent that Claims 1(b) and 2(b) – in which Plaintiff argues
that Defendant discriminated against him on the basis of age by terminating him
and retaliated against him by terminating him – were not raised by Plaintiff in the
charge he filed. It is not possible that Plaintiff could have included any information
about his termination in his charge of discrimination, because his termination had
not occurred at the time he filed the charge, nor had it even occurred by the time he
received his right-to-sue letter.
VI.
The Court now considers whether Defendant is entitled to summary
judgment as to Claim 2(a), in which Plaintiff asserts Defendant retaliated against
him by demoting him. Plaintiff did not check the appropriate box to indicate that
the discrimination he experienced was ongoing. The Sixth Circuit has explained
that a plaintiff's failure to check the appropriate box on an EEOC charge is not
dispositive of whether he or she has satisfied the exhaustion requirement. Dixon v.
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Ashcroft, 392 F.3d 212, 217–18 (6th Cir. 2004). Nevertheless, Plaintiff does not
include language in his charge indicating that Defendant retaliated against him or
that he was terminated, supporting this Court’s determination that Defendant did
not raise Claim 2(a) in the EEOC charge he filed. See id.
In the charge, Plaintiff was required to provide “the particulars” of his claim.
Plaintiff explicitly states, “I believe I have been discriminated against and demoted
because of my age, in violation of the Age Discrimination in Employment Act of
1967, as amended.” (EEOC Charge of Discrimination, ECF No. 43-9 at Pg. ID
1114.) He makes no mention of retaliation. Plaintiff also explains that the
discrimination was an isolated incident, occurring on June 27, 2012, during which
he was told by Vice President Rauch that he was “selected for the demotion...
because of [his] age.” (Id.) Again, he provides no language indicating or even
suggesting that he was retaliated against.
Additionally, Defendant deposed Plaintiff, and during the deposition,
Plaintiff stated that he was told by Deanna Wooten, the EEOC Representative who
investigated his charge, that “if any retaliation was done against [him]” he could
re-file the charges (McCool Dep. 10:08-4:43, April 4, 2014, ECF No. 45-3 at 220),
which suggests that at the time Plaintiff submitted his charge, he had not raised the
issue of retaliation.
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Furthermore, Plaintiff was informed that he would be demoted on June 27,
2013, prior to the May 22, 2013 filing of his EEOC charge. Thus, it would be
impossible for Defendant to retaliate against Plaintiff by demoting him, given that
Defendant’s decision to demote Plaintiff prompted the filing of Plaintiff’s EEOC
charge. For the abovementioned reasons, the Court finds Plaintiff’s charge did not
address Plaintiff’s claim that Defendant retaliated against him by demoting him.
VII.
The Court must now determine whether Claims 1(b), 2(a), and 2(b) must be
dismissed for failure to exhaust administrative remedies. Failure to timely exhaust
administrative remedies is an appropriate basis for dismissal of an ADEA action.
Hoover v. Timken Co., 30 F. App'x 511, 512-13 (6th Cir. 2002). To exhaust
administrative remedies under the ADEA, a plaintiff must file an EEOC charge
within 180 days of the unlawful practice (or with the state agency within 300
days). See 29 U.S.C. § 626(d). Once the EEOC dismisses the charge and issues a
right-to-sue letter, the plaintiff has ninety days to file a civil action. (Id.)
It is clear that Plaintiff failed to exhaust his administrative remedies as to
Claims 1(b), 2(a), and 2(b). He did not timely file EEOC charges for these claims,
because far more than 180 days have passed since the alleged discrimination.
Further, because Plaintiff never filed a charge as to these claims, he obviously
never received a right-to-sue letter for any of these claims.
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The exhaustion requirement “is not meant to be overly rigid,” and the
“EEOC complaint should be liberally construed to encompass all claims
reasonably expected to grow out of the charge of discrimination,” Randolph v.
Ohio Dep't of Youth Servs., 453 F.3d 724, 732 (6th Cir. 2006) (citing Haithcock v.
Frank, 958 F.2d 671, 675 (6th Cir.1992)) (internal quotation marks omitted)
(emphasis added). As such, it is critical to note that the instant claims have discrete
temporal boundaries, and are separate from Plaintiff’s Claim 1(a). See id. The
concept of retaliation is very different from the concept of discrimination on the
basis of age, and is not reasonably expected to grow from the latter concept.
Additionally, Defendant’s termination was a separate happening from his
demotion, and had not occurred at the time of the filing of his EEOC charge – nor
had it occurred by the date of receipt of the right-to-sue letter – and thus, his
termination could not have been expected to grow from his allegations in the
charge. The charge solely addresses his claim that Defendant discriminated against
him on the basis of age by demoting him. Therefore, because Plaintiff has failed to
exhaust his administrative remedies as to Claims 1(b), 2(a), and 2(b), these claims
cannot stand against Defendant.
VIII.
The Court notes that while the summary judgment motion was pending,
Plaintiff filed a subsequent charge with the EEOC alleging retaliation in violation
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of the ADEA. The Court also notes that Plaintiff asserts that his ADEA Claims
1(b), 2(a), and 2(b) should not be dismissed for failure to exhaust administrative
remedies because the Sixth Circuit in Parry v. Mohawk Motors of Michigan, 236
F.3d 299, held that “a plaintiff’s failure to obtain a Right-to-Sue letter is not a
jurisdictional defect but a condition precedent,” and that “the defendant did not
suffer any prejudice.” (Pl.’s Supp. Br., ECF No. 58 at Pg. ID at 1689.)
Plaintiff’s argument fails, given that the Parry holding is not relevant to the
case at hand. Again, a plaintiff must file an EEOC charge within 180 days of the
alleged unlawful practice. See 29 U.S.C. § 626(d). Plaintiff’s subsequent EEOC
charge is untimely. Plaintiff asserts that he was retaliated against by being
terminated and demoted. Both of these happenings occurred more than 180 days
prior to the filing of the subsequent charge. As previously mentioned, failure to
timely exhaust administrative remedies is an appropriate basis for dismissal of an
ADEA action. Hoover, 30 F. App'x at 512-13. Because the filing of the charge was
not timely, it matters not whether the failure to obtain a right-to-sue letter is a
jurisdictional defect or a condition precedent. Accordingly, the filing of this charge
does not cure Plaintiff’s failure to exhaust for purposes of this lawsuit.
IX.
The Court now turns to Claim 1(a), in which Plaintiff asserts that Defendant
discriminated against him on the basis of age by demoting him, and considers
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whether Defendant is entitled to summary judgment as to this claim. Under the
ADEA, the plaintiff bears the ultimate burden of persuading the fact-finder that the
defendant discriminated against him, and may carry the burden for summary
judgment by introducing either direct evidence that shows that the defendant was
motivated by discriminatory intent in treating the plaintiff adversely, or by
introducing indirect evidence that supports an inference of discrimination. Brewer
v. New Era, Inc., 564 F. App'x 834, 838 (6th Cir. 2014) (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Logan v. Denny's,
Inc., 259 F.3d 558, 566–67 (6th Cir. 2001)).
“In discrimination cases, 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.” Id. (citing Laderach v. U–Haul of Northwestern
Ohio, 207 F.3d 825, 829 (6th Cir. 2000)) (further citations omitted). Direct
evidence proves the existence of a fact without requiring any inferences. Id.
(citations omitted). When a plaintiff establishes a claim of discrimination through
direct evidence, the burden then shifts to the employer to prove by a preponderance
of the evidence that it would have made the same decision absent the
impermissible motive. Id. (citing DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir.
2004)).
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In this case, Plaintiff asserts that there is direct evidence demonstrating that
Defendant discriminated against him by demoting him because of his age. The
Court agrees.
As previously indicated, 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 actions. Id. In considering Defendant’s
motion, the Court must accept Plaintiff’s evidence as true and draw all reasonable
inferences in his favor. Id. (citation omitted). Plaintiff asserts that when he asked
why he was selected for the demotion, he was told by Vice President Rauch that “it
was because of his age and that he was too old, or words to that affect.” (Compl.,
ECF No. 1 at Pg. ID 2; EEOC Charge of Discrimination, ECF No. 43-9 at Pg. ID
1114.) Rauch’s statement makes readily apparent the fact that discrimination was a
motivating factor in the demotion.
Defendant fails to establish by a preponderance of evidence that it would
have made the same decision absent Plaintiff’s age. Defendant asserts that Rauch
made the selection of Joel Santos as opposed to Plaintiff as the post-merger Local
514 Business Manager because: (1) at the time of the merger, Santos was the then
Business Manager of Local 514; (2) Local 67, of which Plaintiff was the Business
Manager, was comprised of all plasterers, and the majority of post-merger Local
514 members would be comprised of cement masons; (3) Plaintiff would have had
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difficulty winning re-election given the cement mason majority; and (4) Plaintiff
lacked familiarity with the various groups with which local 514 leadership
interfaced. (Def.’s Mot., ECF No. 43 at Pg. ID 935.)
Despite Defendant’s assertions, having drawn all reasonable inferences in
Plaintiff’s favor, Rauch’s impermissible statement that Plaintiff was “too old” to be
Business Manager of the post-merger Local 514 nonetheless provides direct
evidence that Plaintiff’s age was at least a motivating factor in the decision to
demote Plaintiff. Such a statement objectively if made could have undoubtedly
influenced Rauch’s decision to select Santos and to demote Plaintiff – even if other
factors in addition to Plaintiff’s age were considered by Rauch in reaching his
decision.
Rauch was closely involved in the decision to demote Plaintiff. Defendant in
its brief concedes that “[Vice President Rauch] recommended, to the International
leadership, that Joel Santos continue to be the [Business Manager] of Local 514, as
opposed to Jack McCool replacing Santos.” (Def.’s Mot., ECF No. 43 at Pg. ID
934.) As mentioned above, Defendant then provides the factors Rauch considered
when he made the selection of Santos as opposed to Plaintiff. When Plaintiff
complained to Defendant’s General President Patrick Finley about the
discriminatory nature of the decision, he was told by Finley that he had to follow
“his V.P.’s decision.” (EEOC Charge of Discrimination, ECF No.43-9 at Pg. ID
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1114.) Defendant asserts he was not the decision maker in the decision to merge
Local 67 into Local 514. (Def.’s Mot., ECF No. 43 at Pg. ID 935.) This is
irrelevant, given that at issue is the decision to demote Plaintiff. Accordingly,
because Plaintiff has produced direct evidence of age discrimination by Defendant,
Defendant is not entitled to summary judgment as to Claim 1(a) in light of the
above record.
Therefore, for the foregoing reasons, summary judgment is GRANTED as
to Claims 1(b), 2(a), and 2(b), and summary judgment is DENIED as to Claim 1(a)
in which Plaintiff asserts that Defendant discriminated against him on the basis of
age by demoting him.
SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: February 3, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, February 3, 2015, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager
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