Deyoung v. Lowe's Home Centers, LLC
MEMORANDUM OPINION and ORDER Granting Defendant's 14 Motion for Summary Judgment and Denying Defendant's 18 Motion in Limine as Moot - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-11877
Judith E. Levy
United States District Judge
Lowe’s Home Centers, LLC,
Mag. Judge Anthony P. Patti
OPINION AND ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT  AND DENYING
DEFENDANT’S MOTION IN LIMINE  AS MOOT
Before the Court is defendant’s unopposed motion for summary
For the reasons set forth below, defendant’s
motion is granted.
Plaintiff Christine DeYoung worked for defendant Lowe’s Home
Centers as a Pricing/Signage Coordinator until defendant terminated
her employment in December 2014. (Dkt. 1 at 3-6.) Plaintiff started
work as one of three pricing coordinators in defendant’s Ypsilanti,
Michigan store in 2000. (Dkt. 14-2 at 5, 7.) Defendant eliminated one
of the three pricing coordinator positions around 2011. (Id. at 7.) After
almost eleven years as a pricing coordinator, plaintiff switched to a
customer-service position because she had difficulty keeping up with
the pricing coordinator responsibilities.
While plaintiff was
working in customer service, defendant eliminated another pricing
coordinator position, leaving one coordinator for the store. (Id.)
In 2013, after over a year in customer service, plaintiff decided to
move back to her pricing coordinator position, and knew that she would
be the only coordinator. (Id.) Plaintiff had difficulty keeping up with
the demands of the position, and was issued a warning in May 2014 for
poor performance. (Dkt. 14-4.) In early June 2014, plaintiff received
another warning, again for failure to complete her assignments. (Dkt.
14-5.) Later that month, defendant attempted to help plaintiff learn to
use the computer systems so that she could complete her computerrelated tasks, with which she struggled. (Dkt. 14-7.) And in July 2014,
plaintiff received a “final notice,” citing her poor performance. (Dkt. 146.)
In response to the final warning, plaintiff contacted defendant’s
Employee Relations Department to complain that defendants “[were]
trying to get rid of [plaintiff] because of [her] pay and time with the
The Employee Relations Department
investigated plaintiff’s claims and found that her “allegations [were]
The investigation report noted that of the 162
employees working at the store, 49 were paid at a greater hourly rate
than plaintiff, and that 22 store employees had worked for defendant
for more than ten years. (Id.)
Plaintiff alleges that, at some point before she was fired, Assistant
Store Manager Stacey Lozon and Store Manager Holly Cooper each
made comments to plaintiff about her retirement. (Dkt. 14-2 at 35)
In November 2014, plaintiff failed to complete her assignments for
defendant’s “black Friday” sale. (Id. at 31.) Shortly thereafter, in early
December 2014, defendant terminated plaintiff’s employment because
of her “poor job performance.” (Dkt. 14-9.) Plaintiff was sixty-six years
old when she lost her job. Defendant replaced plaintiff with a forty-year
old woman, Sheila Webb. (Dkt. 14-10.)
Plaintiff then filed this suit, alleging that defendant discriminated
against her based on her age and gender1, and that defendant retaliated
against her for complaining to the Employee Relations department, in
violation of Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”). MICH.
COMP. LAWS 37.2201 et seq.
Standard of Review
Summary judgment is proper when “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). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the
evidence, all facts, and any inferences that may be drawn from the facts
This claim was brought as “gender discrimination.” Although plaintiff did not
respond to defendant’s motion for summary judgment, it appears to the Court that
it may be a garden-variety sex discrimination claim, although issues related to
gender may also be involved. In the interest of clarity “’Sex’ refers to the
classification of individuals as male or female at birth, based on biological factors”
whereas “”Gender’” refers to the socially-constructed norms associated with a
person’s sex.” Yvette K. W. Bourcicot & Daniel Hirotsu Woofter, Prudent Policy:
Accommodating Prisoners with Gender Dysphoria, 12 STAN. J. C.R. & C.L. 283, 288
in the light most favorable to the nonmoving party.” Pure Tech Sys.,
Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
A. Sex Discrimination
“An employment discrimination plaintiff can establish [her] claim
of unlawful discrimination under Michigan’s Elliot-Larsen Civil Rights
Act either (1) by producing direct evidence of discrimination or (2) by
presenting a prima facie case of discrimination in accordance with the
McDonnell Douglas/Burdine framework.” Millner v. DTE Energy Co.,
285 F. Supp. 2d 950, 965 (E.D. Mich. 2003) (collecting cases). Michigan
courts use the McDonnell Douglas framework in age and sex
discrimination cases. Hazle v. Ford Motor Co., 464 Mich. 456, 462-63
Direct evidence is that, “which, if believed, requires the conclusion
that unlawful discrimination was at least a motivating factor in the
employer’s actions.” Sniecinski v. Blue Cross & Blue Shield of Mich.,
469 Mich. 124, 132 (2003).
Plaintiff has not produced any direct
evidence of sex discrimination. Thus, plaintiff must establish a prima
facie case. Id. at 134.
To establish a prima facie case, plaintiff must show that “(1) she
belongs to a protected class, (2) she suffered an adverse employment
action, (3) she was qualified for the position, and (4) the job was given to
another person under circumstances giving rise to an inference of
unlawful discrimination. Hazle, 464 Mich. at 463.
The parties do not dispute that plaintiff belongs to a protected
class, that she suffered an adverse employment action, or that she was
qualified for her position. But plaintiff has not established a prima
facie case of sex discrimination because she has not shown that “she
was replaced by a person outside the protected class, or similarly
situated non-protected employees were treated more favorably.” Regan
v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 481 (6th Cir. 2012).
First, plaintiff cannot establish a prima facie case of sex
discrimination because she was replaced by a female, which she set
forth in her deposition. (Dkt. 14-2 at 34.) Defendant also submitted
Store Human Resources Manager Sara Lamparksi’s affidavit, which
states that plaintiff was replaced by a female over forty-years old. (Dkt.
14-10.) Second, plaintiff has not identified any similarly-situated male
employees who were treated more favorably.
Accordingly, the Court grants summary judgment to defendant on
plaintiff’s ELCRA sex-discrimination claim.
B. Age Discrimination
Plaintiff may rely on direct or circumstantial evidence to
establish age discrimination in violation of ELCRA.
Marsh v. E.
Associated Estates Realty, 521 F. App’x 460, 466 (6th Cir. 2013).
Plaintiff claims that store managers asked her about her retirement
plans “on multiple occasions.” (Dkt. 1 at 4.) During her deposition,
plaintiff identified the two individuals who allegedly ask her about
retirement: Stacey Lozon and Holly Cooper. (Dkt. 14-2 at 34-35.) Both
Stacey Lozon and Holly Cooper submitted affidavits stating that they
never asked plaintiff about her retirement. (Dkts. 14-11, 14-12.)
But even if Lozon and Cooper did ask plaintiff when she was
going to retire, such remarks would not be sufficient direct evidence of
discriminatory remarks are evaluated by considering four factors: ‘(1)
whether the statements were made by a decision-maker or by an agent
within the scope of his employment; (2) whether the statements were
related to the decision-making process; (3) whether the statements were
more than merely vague, ambiguous or isolated remarks; and (4)
whether they were made proximate in time to the act of termination.’”
Diebel v. L & H Res., LLC, 492 Fed. App’x 523, 527 (6th Cir. 2002)
(quoting Peters v. Lincoln Elec. Co., 285 F.3d 456, 478 (6th Cir. 2002)).
“No single factor is dispositive; they must be evaluated as a whole.” Id.
Here, even assuming Lozon and Cooper were decision-makers,
plaintiff has not shown that asking about her retirement was at all
related to the termination of her employment; nor has plaintiff shown
that the remarks were anything more than “vague, ambiguous[,] or
isolated.” Id. Thus, plaintiff has not produced direct evidence of age
discrimination, she must rely on the McDonnell Douglas framework.
And, even assuming that plaintiff can establish a prima facie case, her
claim of age discrimination fails.
When a plaintiff establishes a prima facie case of discrimination,
“the burden shifts to the employer to articulate some legitimate
nondiscriminatory reason for the employment decision.” Ondricko v.
MGM Grand Detroit, LLC, 689 F.3d 642 (6th Cir. 2012).
employer carries this burden, the burden of production shifts back to
the plaintiff to show that the legitimate reasons offered by the employer
were not its true reasons, but rather were pretext for unlawful
discrimination.” Id. at 654.
Here, defendant satisfied its burden by setting forth its legitimate
nondiscriminatory reasons for terminating plaintiff’s employment.
Defendant produced evidence that plaintiff did not perform her job
duties, that defendant warned her of her poor performance several
times in writing (Dkts. 14-4, 14-5, 14-6, 14-7, 14-8, 14-9), that defendant
provided additional training (Dkt. 14-8), but that plaintiff did not
improve her job performance. (Dkt. 14-9.)
To support a finding of pretext, plaintiff must show that “(1) the
employer’s stated reason for terminating the employee has no basis in
fact, (2) the reason offered for terminating the employee was not the
actual reason for the termination, or (3) the reason offered was
insufficient to explain the employer’s action.” Diebel, 492 F. App’x at
531 (quoting Spengler v. Worthington Cyclinders, 615 F.3d 481, 493 (6th
Cir. 2010)). And “prextext is a commonsense inquiry: did the employer
fire the employee for the stated reason or not? This requires a court to
ask whether the plaintiff has produced evidence that casts doubt on the
employer’s explanation, and, if so, how strong it is.” Id. (quoting Chen
v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009)).
Here, plaintiff simply has not produced any evidence suggesting
that defendant’s stated reasons for terminating her employment were
anything but legitimate and nondiscriminatory.
Accordingly, summary judgment is granted to defendant on
plaintiff’s ELCRA age-discrimination claim.
Plaintiff next claims that defendant “forced her to perform tasks
that were not previously a part of her job” in retaliation for contacting
defendant’s Employee Relations Department after plaintiff received a
final warning. (Dkts. 1 at 8, 14 at 16.)
“A plaintiff alleging retaliation in violation of the ELCRA must
establish the following elements of a prima facie case:
(1) that the
plaintiff engaged in a protected activity, (2) that this was known by the
defendant, (3) that the defendant took an employment action adverse to
the plaintiff, and (4) that there was a causal connection between the
protected activity and the adverse employment action.”
Rodriguez, 487 F.3d 1001, 1011 (6th Cir. 2007).
And “[t]o establish
causation, the plaintiff must show that [her] participation in activity
protected by the ELCRA was a significant factor in the employer’s
adverse employment action, not just that there was a causal link
between the two.” Id. (quoting Barrett v. Kartland Cmty. Coll., 245
Mich. App. 306, 315 (2001)). Here, even assuming plaintiff can satisfy
the first three factors, she has not shown any causal connection between
her complaint to Employee Relations and any additional job duties
assigned to her.
Plaintiff admitted in her deposition that defendant assigned her
additional job duties because one of her co-workers moved to another
department within the store.
(Dkt. 14-2 at 38.) Moreover, defendant
produced the written warnings issued to plaintiff for poor performance,
which reflect additional job duties assigned to plaintiff before she
complained to Employee Relations. (Dkts. 14-5, 14-6.) Thus, plaintiff
failed to produce evidence suggesting a connection between her
protected activity and her termination. In contrast, defendant produced
evidence showing that plaintiff’s additional job duties were unrelated to
her Employee Relations complaint. Plaintiff thus failed to establish a
prima facie case for retaliation.
Accordingly, summary judgment is granted to defendant on
plaintiff’s ELCRA retaliation claim.
For the reasons set forth above, defendant’s motion for summary
judgment (Dkt. 14) is GRANTED and the case is DISMISSED WITH
Defendant’s motion in limine (Dkt. 18) is DENIED as moot.
IT IS SO ORDERED.
Dated: February 3, 2017
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 3, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
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