Rutherford v. Country Fresh, LLC

Filing 19

OPINION AND ORDER granting in part and denying in part 15 Motion for Summary Judgment. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RANDY RUTHERFORD,
Plaintiff,
Case No. 15-11700
v.
Hon. John Corbett O’Meara
COUNTRY FRESH, L.L.C.,
Defendant.
_____________________________/

OPINION AND ORDER GRANTING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the court is Defendant’s motion for summary judgment, which has
been fully briefed. The court heard oral argument on May 19, 2016, and took the
matter under advisement. For the reasons set forth below, Defendant’s motion is
granted in part and denied in part.
BACKGROUND FACTS
Plaintiff Randy Rutherford alleges that his former employer, Country Fresh
L.L.C., discriminated against him based upon his age, disability, and medical leave
under the Family and Medical Leave Act. Rutherford was employed as a Territory
Sales Representative (“TSR”), selling milk and ice cream to stores in Michigan.
As of February 2013, Country Fresh had six sales territories in Michigan, each

covered by a TSR. Rutherford’s direct supervisor was Paul Karins, who was
supervised by Craig MacMillan.
Rutherford had several knee surgeries and two knee replacements beginning
in 2011. After a knee surgery in January 2013, Rutherford returned to work with
light duty restrictions. In May 2013, Rutherford again went on medical leave for
knee surgery. On July 22, 2013, he obtained a release to return to work with
restrictions, including no extensive walking or bending. Country Fresh did not
allow Rutherford to return to work because it did not believe he could perform the
essential functions of his job. Rutherford returned to work, without medical
restrictions, on August 26, 2013.
On that date, Country Fresh informed Rutherford that his position had been
eliminated as a result of a decline in the company’s business. Over the past several
months, MacMillan had worked on a plan to reduce the number of TSRs in
Michigan from six to three. Initially, MacMillan eliminated two positions in
March 2013. These positions were held by Al Pugliese (age 65) and Gary
Protsman (age 60). Rutherford’s southeastern Michigan territory was then
expanded to include the territory once covered by Pugliese.1

1

Pugliese filed suit against Country Fresh, alleging age discrimination. See Pl.’s
Ex. 7, Pugliese v. Country Fresh, LLC, Case No. 13-14257 (E.D. Mich.) (Berg, J.)
(Docket No. 18). There, the court denied Country Fresh’s motion for summary judgment.
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When Rutherford’s position was eliminated in August 2013, he was 59 years
old. The three remaining TSRs were Ann Kensa (age 52), Bruce Hartman (age
53), and Ralph Garver (age 41). Bruce Hartman’s territory was expanded to
include the territory once covered by Rutherford. MacMillan testified that he
chose which positions to eliminate based on geography, the business needs in each
territory, and where the TSR lived in relationship to the potential customers in the
newly created territories. See Def.’s Ex. 3 at 30-36. The decision to terminate
Rutherford’s position was made by MacMillan, with “input” from Paul Karins, Bill
Reilly (MacMillan’s supervisor), and Kay Bowen (human resources).
Rutherford states that a TSR position (Northern Ohio ice cream) became
available within six months of his termination, but the company did not offer it to
him. Rutherford contends that he should have been offered the position based
upon a provision in the company handbook, which provides that “[f]or a period of
six months after a layoff, if an opening exists for which a laid-off employee is
qualified, the laid off employee will be offered the position.” Pl.’s Ex. 17. It is
Country Fresh’s position that this policy does not apply, because Rutherford was
not “laid off” (temporarily out of work), but terminated. Def.’s Ex. 66, 68. In

Although Plaintiff suggests that this court should follow the Pugliese opinion, the
Pugliese case involves a different time period and sufficiently different facts to offer little
guidance here.
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January 2014, the Northern Ohio ice cream TSR position was filled by James
Gaertner, who was 38. Rutherford contends that he was “replaced” by Gaertner.
Rutherford filed his complaint on May 12, 2015, alleging the following
causes of action: Count I, failure to accommodate and discrimination pursuant to
the Americans with Disabilities Act; Count II, discrimination under the Persons
with Disabilities Civil Rights Act; Count III, discrimination and retaliation under
the Family and Medical Leave Act; Count IV, discrimination in violation of the
Age Discrimination in Employment Act; and Count V, age discrimination in
violation of the Elliott-Larsen Civil Rights Act. Defendant seeks summary
judgment on all of Plaintiff’s claims.
LAW AND ANALYSIS
Rutherford argues that he was terminated because of his disability, age, and
medical leave. Rutherford further argues that Country Fresh failed to
accommodate his disability when he attempted to return to work with restrictions
in July 2013.
I.

Standard of Review
Summary judgment is appropriate if “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). When reviewing a motion for summary judgment, the facts
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and any reasonable inferences drawn from the facts must be viewed in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The party opposing summary judgment,
however, must present more than a “mere scintilla” of evidence; the evidence must
be such that a reasonable jury could find in favor of the plaintiff. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
II.

Age Discrimination
The analysis of Plaintiff’s age discrimination claims is essentially the same

under both the ADEA and ELCRA. See Bondurant v. Air Line Pilots Ass’n Int’l,
679 F.3d 386, 394 (6th Cir. 2012). “To set forth a prima facie case of age
discrimination using circumstantial evidence, a plaintiff must establish the four
elements of the well-known McDonnell Douglas test: 1) that he was a member of a
protected class; 2) that he was discharged; 3) that he was qualified for the position
held; and 4) that he was replaced by someone outside of the protected class.”
Geiger v. Tower Automotive, 579 F.3d 614, 633 (6th Cir. 2009). When the plaintiff
is terminated in a reduction in force, the fourth element is modified to require
“additional direct, circumstantial, or statistical evidence tending to indicate that the
employer singled out the plaintiff for discharge for impermissible reasons.” Id.
(citing Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)).
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Once the plaintiff establishes a prima facie case, the burden shifts to the
defendant to articulate a legitimate, non-discriminatory reason for the employment
action. See Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 725 (6th Cir. 2012).
Then “the plaintiff must produce sufficient evidence from which the jury may
reasonably reject the employer’s explanation as pretextual.” Id. (citation omitted).
The plaintiff may show pretext by demonstrating that the employer’s explanation
“had no basis in fact, did not actually motivate the defendant’s challenged conduct,
or was insufficient to motivate the defendant’s challenged conduct.” Id. at 725.
The parties do not dispute that the first three elements of Plaintiff’s prima
facie case are met. As for the fourth element, Rutherford argues that he was
replaced by James Gaertner and, therefore, he need not present additional evidence
showing that he was singled out for impermissible reasons in a reduction in force.
To the contrary, the undisputed evidence demonstrates that Rutherford’s
position was terminated as a result of a bona fide reduction in force. Further,
Rutherford was not replaced by Gaertner, who was hired approximately six months
after Rutherford was terminated. Although Gaertner’s territory overlapped that of
Rutherford’s former territory, Gaertner did not assume Rutherford’s job duties or
his sales territory. Barnes, 896 F.2d at 1465 (“[A] person is not replaced when
another employee is assigned to perform the plaintiff’s duties in addition to other
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duties, or when the work is redistributed among other existing employees already
performing related work. A person is replaced only when another employee is
hired or reassigned to perform the plaintiff’s duties.”) Therefore, Rutherford was
not replaced by Gaertner and he must present “additional direct, circumstantial, or
statistical evidence tending to indicate that the employer singled out the plaintiff
for discharge for impermissible reasons.” Id.
Rutherford has not presented evidence that he was singled out for discharge
based upon his age. He contends that Karins made comments to his customers like
“I can’t believe you still have this old – old dog or old –old man as our sales rep.”
Def.’s Ex. 4 at 82-91. Rutherford has not shown, however, that Craig MacMillian,
as the decisionmaker, was influenced by Karins’ comments or that they played a
role in MacMillan’s decision to terminate him. See Lefevers, 667 F.3d at 724
(“[S]tatements by nondecisionmakers, or statements by decisionmakers unrelated
to the decisional process itself [can not] suffice to satisfy the plaintiff’s burden of
demonstrating animus.”). Moreover, the alleged comments are ambiguous and not
clearly indicative of age-related bias. Cf. Sharp v. Aker Plant Servs. Grp., Inc.,
726 F.3d 789, 798 (6th Cir. 2013) (“[G]eneral, vague, or ambiguous comments do
not constitute direct evidence of discrimination because such remarks require a
factfinder to draw further inferences to support a finding of discriminatory
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animus.”).
In addition, Rutherford has not presented evidence that Country Fresh’s
explanation for his termination was a pretext for discrimination. Rutherford argues
that he was not actually terminated in a reduction in force because he was replaced
by Gaertner and, therefore, Country Fresh’s reason is false. As discussed above,
however, Rutherford has not raised a question of fact regarding whether he was
replaced. Rutherford also suggests that Country Fresh provided “shifting” reasons
for his termination because Kay Bowen testified that it was because of
“restructuring of territory as well as reviewing performance,” whereas Craig
MacMillan testified that he considered only geography, not performance. Pl.’s Ex.
3 at 20; Pl.’s Ex. 12 at 50. The evidence is consistent, however, that Rutherford
was terminated as part of a reduction in force, and he has not presented evidence
that would raise an inference that the reduction in force was not bona fide or that it
did not actually motivate his termination. Nor has Rutherford presented evidence
that would raise an inference that age played a role in the decision making process.
For these reasons, the court will grant Defendant’s motion for summary judgment
on Plaintiff’s age discrimination claims.

III.

Discrimination under the ADA, PWDCRA, and FMLA
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Like Plaintiff’s age discrimination claims, his disability discrimination
claims under the ADA and PWDCRA and retaliation claim under the FMLA are
analyzed under the McDonell Douglas burden shifting framework. See Whitfield
v. Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011) (ADA); Donald v. Sybra, Inc.,
667 F.3d 757, 762 (6th Cir. 2012) (FMLA). The Michigan PWDCRA
“substantially mirrors the ADA, and resolution of a plaintiff’s ADA claim will
generally, though not always, resolve the plaintiff’s PWDCRA claim.” Donald,
667 F.3d at 764.
Rutherford has presented no evidence suggesting that his termination had
anything to do with his disability or his medical leave. Although he was
discharged on the day he returned from leave, he has not shown that his leave was
a motivating factor in the decision. Indeed, temporal proximity between the time
Plaintiff took leave and his discharge, although probative, its insufficient to
establish pretext. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th
Cir. 2001) (“But such temporal proximity is insufficient in and of itself to establish
that the employer's nondiscriminatory reason for discharging an employee was in
fact pretextual.”). Assuming Plaintiff could present a prima facie case of disability
discrimination or FMLA retaliation, he has not shown that Country Fresh’s
explanation for terminating him was pretextual. The court will grant summary
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judgment on Plaintiff’s ADA, PWDCRA, and FMLA claims.
IV.

ADA Failure to Accommodate
In order to establish a prima facie case for failure to accommodate under the

ADA, a plaintiff must show that: (1) the individual is disabled within the meaning
of the Act; (2) she is otherwise qualified for the position, with or without
reasonable accommodation; (3) her employer knew or had reason to know about
her disability; (4) she requested an accommodation; and (5) the employer failed to
provide the necessary accommodation. DiCarlo v. Potter, 358 F.3d 408, 419 (6th
Cir. 2004) (analyzing claim under Rehabilitation Act); Johnson v. Cleveland City
Sch. Dist., 443 Fed. Appx. 974, 982-83 (6th Cir. 2011) (citing DiCarlo for elements
of prima facie ADA case).
Rutherford argues that Country Fresh failed to accommodate his disability
when it refused to allow him to return to work with light duty restrictions in May
2013, after having done so in January 2013. According to Rutherford, Country
Fresh’s human resources representative told him that it was the company’s policy
that no one could return to work with restrictions. Rutherford felt that he could do
his job despite his restrictions on extensive walking, lifting, or bending. Country
Fresh has not shown that Rutherford could not have done the essential functions of
his job with those restrictions, and previously accommodated him by allowing him
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to work with another individual when bending was required. In light of these facts,
Defendant has not demonstrated that it is entitled to summary judgment on
Plaintiff’s failure to accommodate claim.
ORDER
IT IS HEREBY ORDERED that Defendant’s motion for summary judgment
is GRANTED IN PART and DENIED IN PART, consistent with this opinion and
order.
s/John Corbett O’Meara
United States District Judge
Date: May 25, 2016

I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, May 25, 2016, using the ECF system.

s/William Barkholz
Case Manager

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