DiOrio v. TMI Hospitality
Memorandum Opinion: For all of the foregoing reasons, defendant's motion for summary judgment is granted. (Related Doc. No. #50 ). Judge Sara Lioi on 10/25/2017. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
TMI HOSPITALITY, L.P.,
CASE NO. 4:15-cv-1710
JUDGE SARA LIOI
Before the Court is the motion of defendant TMI Hospitality, L.P. (“defendant” or “TMI”)
for summary judgment pursuant to Fed. R. Civ. P. 56. (Doc. No. 50 [“Mot.”].) Plaintiff Jeanne
DiOrio (“plaintiff” or “DiOrio”) opposed the motion (Doc. No. 561 [“Opp’n”]), and defendant
replied. (Doc. No. 57 [“Reply”]). For the reasons that follow, defendant’s motion is granted.
Plaintiff was employed by defendant from March 2007 until February 6, 2015 as the
director of sales at the Youngstown/Boardman (Ohio) Residence Inn, Fairfield Inn, and Hampton
Inn. (Doc. No. 1 (Complaint [“Compl.”]) ¶ 7.) Plaintiff alleges that in 2014, defendant’s sales
performance plan and goals for her sales territory were unreasonable based on business conditions
in the area, but plaintiff performed as well as younger colleagues. (Id. ¶¶ 9, 14.) On December 22,
2014,2 plaintiff filed a charge of age discrimination against defendant with the Equal Employment
Plaintiff’s exhibits in support of her opposition to the motion are filed at Doc. No. 55.
Plaintiff alleges that she filed the EEOC charge on December 22, 2015, but this appears to be a typographical error
because the document shows that she signed the charge on December 22, 2014. (Doc. No. 50-4 at 944-46 (all
references to page numbers are to the page identification numbers generated by the Court’s electronic filing system).)
Opportunity Commission (“EEOC”). (Id. ¶ 15.) On January 12, 2015, plaintiff was placed on a
second sales performance plan, and she was required to meet the criteria set forth therein or face
termination. (Id. ¶ 16.)
Plaintiff claims that defendant terminated her on February 6, 2015 for the pretextual reason
that she failed to meet her performance goals, but the real reason was age discrimination and
retaliation in violation of the Age Discrimination in Employment Act (“ADEA”), 9 U.S.C. §§ 623
(a)(1), et seq. (counts I (id. ¶¶ 23-28) and II (id. ¶¶ 29-34), respectively).3 Defendant moves for
summary judgment on both counts, arguing that the undisputed facts show that plaintiff was
terminated due to poor performance, and not because of her age or in retaliation for filing an EEOC
A. Summary Judgment Standard of Review
Summary judgment is appropriate where “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 if its resolution affects the outcome of the lawsuit under the governing law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute is
genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If a reasonable jury could return a verdict for the nonmoving party, then summary
judgment is not appropriate. Id.
The moving party must provide evidence to the court which demonstrates the absence of a
genuine dispute as to any material fact. Once the moving party meets this initial burden, the
Plaintiff voluntarily withdrew her state law claim for age discrimination (count III). (See Doc. Nos. 11, 12.)
opposing party must come forward with specific evidence showing that there is a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986);
Anderson, 477 U.S. at 250. It is the nonmoving party’s duty to point out specific facts in the record
that create a genuine issue of material fact; the trial court does not have a duty to search the record
“to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886
F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034
(D.C. Cir. 1988)); Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992) (citation
The nonmoving party may oppose a summary judgment motion “by any of the kinds of
evidentiary material listed in Rule 56(c), except the mere pleadings themselves[.]” Celotex, 477
U.S. at 324. The Court must view all facts and evidence, and inferences that may be reasonably
drawn therefrom, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654,
655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). General averments or conclusory allegations of an
affidavit do not create specific fact disputes for summary judgment purposes. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888-89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990).
“Summary judgment requires that a plaintiff present more than a scintilla of evidence to
demonstrate each element of a prima facie case.” Garza v. Norfolk S. Ry. Co., 536 F. App’x. 517,
519 (6th Cir. 2013) (citing Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 268 (6th Cir. 2007)).
“‘The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will
be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving
party].’” Street, 886 F.2d at 1477 (quoting Anderson, 477 U.S. at 252).
The district court's review on summary judgment is a threshold inquiry to determine
whether there is the need for a trial due to genuine factual issues that must be resolved by a finder
of fact because those issues may reasonably be resolved in favor of either party. Anderson, 477
U.S. at 250. Put another way, this Court must determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251-52; see also Wexler v. White’s Fine Furniture, Inc., 317 F.3d
564, 578 (6th Cir. 2003).
[Summary judgment is required] against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial. In such a situation, there
can be no genuine issue as to any material fact, since a complete failure of proof
concerning an essential element of the nonmoving party's case necessarily renders
all other facts immaterial. The moving party is entitled to judgment as a matter of
law because the nonmoving party has failed to make a sufficient showing of an
essential element of [his] case with respect to which [he] has the burden of proof.
Celotex, 477 U.S. at 322-23 (internal quotation marks and citation omitted).
B. ADEA Claim (Count I)
1. Direct evidence
An ADEA plaintiff will survive summary judgment if she presents direct evidence that the
adverse employment action was taken because of her age. Manzer v. Diamond Shamrock Chems.
Co., 29 F.3d 1078, 1081 (6th Cir. 1994), overruled on other grounds by Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009). Direct evidence of discrimination
is evidence that, if believed, proves a fact at issue without an inference or presumption. Rowan v.
Lockheed Martin Energy Sys. Inc., 360 F.3d 544, 548 (6th Cir. 2004) (citations omitted).
In opposition to defendant’s motion, plaintiff cites two statements made by one of her
supervisors, Ashley LaCourse (“LaCourse”),4 that plaintiff claims constitute direct evidence of age
LaCourse denies being a “supervisor,” but the Court will assume for the purpose of this analysis that LaCourse was
one of plaintiff’s supervisors.
discrimination. (Opp’n at 1409.) The first occurred during a four hour meeting with LaCourse on
December 15, 2014 regarding plaintiff’s first sales action plan and “writeup.” Plaintiff states that
at the meeting, LaCourse told plaintiff that “we were bought out by Starwood, and those people
are really, really young, like 25, 26. I know I’m young. I’m 32. But you, you, Jeanne, better be all
about youthfulness and energy.” (Doc. No. 50-2 (Deposition of Jeanne DiOrio [“DiOrio Dep.”])
at 684-85 (289-91)5; Doc. No. 55-5 at 1346-47.) With respect to the second statement, LaCourse
told plaintiff over drinks after a grand opening in late 2012 or early 2013, and “numerous times,”
that plaintiff reminded her of her grandmother. (DiOrio Dep. at 685-86 (292-95).)
LaCourse does not recall telling DiOrio that she should be youthful and energetic,6 but
does recall telling plaintiff that plaintiff reminded LaCourse of her grandmother. (Doc. No. 55-1
(Deposition of Ashley LaCourse [“LaCourse Dep.”]) at 1311-12.) LaCourse explained that DiOrio
“has the most beautiful jewelry. My [grandmother] has the best jewelry. So I said it reminded me
of my nanny because my nanny has fabulous jewelry. I always admired Jeanne’s jewelry.” (Id. at
Neither statement constitutes direct evidence of age discrimination because neither
necessarily supports an inference that age was the reason for plaintiff’s termination. Rowan, 360
F.3d at 548. “Only the most blatant remarks, whose intent could be nothing other than to
discriminate on the basis of age […] constitute direct evidence of discrimination.” Suslovic v.
Black & Decker, Inc., No. 1:06CV116, 2007 WL 2153277 at *6 (N.D. Ohio July 23, 2007)
(quoting Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989)). Moreover, “[i]f
Some deposition transcript are filed in a format wherein four transcript pages appear on a single page. For those
filings, the parenthetical page numbers refer to the transcript page number.
The Court will assume for the purpose of this analysis that LaCourse made the statement to plaintiff regarding
youthfulness and energy.
discriminatory statements are offered as direct evidence of discrimination, those statements ‘must
come from [the] decisionmakers’ responsible for the adverse employment decision. ‘Statements
by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself
cannot suffice to satisfy the plaintiff's burden[.]’” Richardson v. Wal-Mart Stores, Inc., 836 F.3d
698, 703 (6th Cir. 2016) (quoting Geiger v. Tower Automotive, 579 F.3d 614, 620-21 (6th Cir.
Dave Mangus (“Mangus”) was regional manager/director of operations and plaintiff’s
supervisor. (Doc. No. 55-2 (Deposition of Dave Mangus [“Mangus Dep.”]) at 1320 (6-8).) Magnus
testified that he made the decision to terminate plaintiff after consulting LaCourse,8 Steve
Martodam (“Martodam”) (defendant’s regional vice president at the time), and human resources.
(Doc. No. 55-2 (Deposition of Dave Mangus [“Mangus Dep.”]) at 1323 (19-20).) Plaintiff testified
that she believed Martodam made the decision to terminate her with input from LaCourse. (DiOrio
Dep. at 689-90 (307-10).) Plaintiff does not contend that Mangus or Martodam made age-related
statements. Even if LaCourse could be characterized as a “decisionmaker” because she was
consulted by Mangus and/or Martodam regarding plaintiff’s termination, neither of LaCourse’s
statements relate to the decisional process to terminate plaintiff and, thus, are insufficient to
establish direct evidence of age discrimination. Richardson, 836 F.3d at 703.
While not constituting direct evidence of discrimination, discriminatory remarks by non-decision makers may, under
circumstances not present here, be probative of pretext. See Risch v. Royal Oak Police Dep't, 581 F.3d 383, 392-93
(6th Cir. 2009).
LaCourse testified that she did not play a role in the decision to terminate plaintiff, but agreed with the decision
“[b]ecause [DiOrio] was not producing.” (LaCourse Dep. at 1311.)
2. Circumstantial evidence
Direct evidence is not required to prove age discrimination. Plaintiff “may establish a
violation of the ADEA by either direct or circumstantial evidence.” Geiger, 579 F.3d at 620
(citation omitted). Plaintiff will survive summary judgment if she can show a genuine issue of
material fact regarding circumstantial evidence of age discrimination under the familiar three-step
burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct.
1089, 67 L. Ed. 2d 207 (1981). See Chappell v. GTE Prods. Corp., 803 F.2d 261, 265 (6th Cir.
1986) (“The evidentiary guidelines governing proof in discrimination cases were first set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)
(construing Title VII), and the same analysis is generally applied in ADEA cases.”) (citing Coburn
v. Pan Am. World Airways, Inc., 711 F.2d 339, 342 (D.C. Cir. 1983)); Geiger, 579 F.3d at 622
(applying McDonnell Douglas to circumstantial evidence claims in ADEA cases).
Under the McDonnell Douglas analysis, the “burden of production rests first on the
plaintiff to establish [a] prima facie case, then on the defendant to articulate some legitimate nondiscriminatory reason for the employee’s [termination], and finally again on the plaintiff to show
that the defendant’s reasons were pretextual.” Chappell, 803 F.2d at 265 (quotation marks,
citations and italics omitted). Although the burden of production shifts between plaintiff and
defendant, the burden of persuasion remains at all times with the plaintiff. Id. (citing Burdine, 450
U.S. at 254-55).
In order to satisfy that burden, plaintiff must show that her age was the “but for” cause of
the defendant’s adverse employment action. Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283
(6th Cir. 2012) (citing Gross, 557 U.S. at 177). “[I]t is not sufficient for the plaintiff to show that
age was a motivating factor in the adverse action; rather, the ADEA’s ‘because of’ language
requires that a plaintiff ‘prove by a preponderance of the evidence (which may be direct or
circumstantial) that age was the ‘but for’ cause of the challenged employer decision.’” Scheick v.
Tecumseh Pub. Schs., 766 F.3d 523, 529 (6th Cir. 2014) (quoting Gross, 557 U.S. at 177-78)
(further citation omitted).
Prima facie case
To set forth a prima facie case of age discrimination, plaintiff must establish four wellknown elements: 1) that she was a member of a protected class; 2) that she was discharged; 3) that
she was qualified for the position held; and 4) that she was replaced by someone outside of the
protected class. Geiger, 579 F.3d at 622 (citations omitted). Defendant does not contest elements
1, 2 and 4. Plaintiff was 61 years old when she was terminated by defendant on February 6, 2015,
and was replaced by Sheree Moore (“Moore”), who was 38 years old at the time. (Doc. No. 55-4
(Deposition of Sheree Moore [“Moore Dep.”]) at 1342 (4).) Defendant does contend, however,
that plaintiff was not qualified for the position of director of sales because she was performing
poorly, and qualifications are measured at the time of termination. (Mot. at 609-10.)
Plaintiff argues in opposition that plaintiff has a bachelor’s degree and prior sales
experience, and was hired by a competitor after she was terminated by defendant. (Opp’n at 1410;
DiOrio Dep. at 679-80 (269-70).) Plaintiff’s qualifications appear to exceed the requirements listed
in the job description for director of sales: “One-year certificate from college or technical school;
or three to six months related experience and/or training; or equivalent combination of education
or experience.” (Doc. No. 50-3 at 755-56.) Viewing the evidence in a light most favorable to the
plaintiff, the Court will assume for the purpose of this analysis that plaintiff was qualified for the
position of director of sales, and has satisfied her burden to establish a prima facie case of age
discrimination. Thus, the burden shifts to defendant to articulate a legitimate, non-discriminatory
reason for plaintiff’s termination.
Legitimate non-discriminatory reason for termination
Defendant states that plaintiff was terminated as director of sales in 2015 for poor
performance. (Mangus Dep. at 1323 (20) (“Poor performance within the market, not meeting her
regular goals or her financial goals that are set forth.”).) Because defendant has articulated a
legitimate, non-discriminatory reason for plaintiff’s termination, the burden shifts back to plaintiff
to demonstrate pretext. See Chappell, 803 F.2d at 265.
In order to avoid summary judgment on this prong of the McDonnell Douglas analysis,
plaintiff must show that there is a genuine dispute of material fact from which a jury could
reasonably find that defendant’s stated reasons for her termination are false, and that the real “but
for” reason is unlawful age discrimination. In the Sixth Circuit, “a plaintiff can show pretext in
three interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate the employer’s action, or (3) that they were insufficient to
motivate the employer’s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)
(footnote and citation omitted). These three categories are not rigid or limiting factors for
determining pretext, but rather guidelines for focusing on the ultimate inquiry: did defendant
terminate plaintiff for the stated reasons, or did defendant make up those reasons to conceal
unlawful age discrimination. Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir. 2012) (citing
Chen, 580 F.3d at 400, n.4); Spellman v. Ohio Dep’t of Transp., 244 F. Supp. 3d 686, 704 (S.D.
Ohio 2017) (same) (quoting Tingle, 692 F.3d at 530).
Plaintiff contends that, on the record viewed in her favor, a reasonable jury could find that
defendant’s stated reasons for terminating plaintiff are false based on all three categories
recognized by the Sixth Circuit to establish pretext, and the real reason is age discrimination.
(Opp’n at 1408.) Defendant maintains that plaintiff cannot establish pretext in any of the three
categories on the undisputed record in this case. The Court agrees.
Plaintiff’s 2014 performance
Plaintiff, who was 53 years old at the time, was hired by defendant as director of sales in
March 2007 as an at-will employee for three hotels in Youngstown, Ohio: the Residence Inn,
Fairfield Inn, and Hampton Inn. (DiOrio Dep. at 618 (10), 688 (304).) It is undisputed that
plaintiff’s job as sales director was to foster and promote patronage at each of her three hotels. In
order to perform the job successfully, her job duties included the essential functions of developing
marketing plans, scheduling sales appointments, making cold calls, tracking sales data, working
with other management personnel, and providing sales training to staff. (Id. at 618-19 (13-15);
Doc. No. 50-3 at 755-56).)
Defendant does not dispute that plaintiff met her performance goals between 2007 and
2013. The parties also do not dispute that a decline in business was anticipated in 2014 due to the
oil and gas industry leaving the area, but the goal was to stay above the competition: “[I]f the
[competition] is outperforming us, that means they have business that we don’t have. So it’s our
job to go out and acquire or, you know, obtain that business.” (Mangus Dep. at 1321 (11).)
Plaintiff’s financial performance goals for her three hotels were based on revenue, market
performance9 and, for the Residence Inn, also based on extended stay occupancy. (DiOrio Dep. at
Market performance is measured by the STAR report, which measures market sales performance against competitors.
(DiOrio Dep. at 620 (21).)
622 (26-27).) Performance goals are established through a process that includes the regional
director (Mangus), regional vice president, and on up the defendant’s management chain. (Mangus
Dep. at 1321 (9-12).) Plaintiff “[has] no idea” how performance goals are determined, except that
the goals for 2014 were set in December 2013, and the goals for 2015 were set in December 2014.
(DiOrio Dep. at 624-25 (37-38).)
Plaintiff believed that some of the 2014 goals for her three hotels were unrealistic, but she
did not communicate her opinion to Mangus or anyone else. (Id. at 625 (40).) Plaintiff admits that
she did not achieve her performance goals for all three of her hotels in 2014, even though budgeted
revenue goals in 2014 were lower than in 2013, and the overall decline in performance for her
hotels was greater than those of competitive hotels. (Id. at 626 (44), 630-33 (58-73); Doc. No. 51
at 1150-52 (85-101).)
Plaintiff recognized early in 2014—around February—that her three hotels were not doing
well. (DiOrio Dep. at 640 (111).) So did defendant, whose management raised the issue with
plaintiff in the first quarter and continued to raise performance concerns throughout the year. For
example, in March 2014, LaCourse provided plaintiff with specific sales activities to increase
business, some of which plaintiff pursued and some of which she admittedly did not. (Id. at 64445 (127-30); Doc. No. 50-3 at 875-77.) In May of 2014, LaCourse asked plaintiff to focus on the
Hampton Inn and Fairfield Inn to meet revenue goals, but plaintiff did not meet those goals.
(DiOrio Dep. at 650-51 (153-54); 50-4 at 883-84.) At least by August 2014, plaintiff was aware
that management was concerned about declining sales performance and expected her to increase
revenues at her hotels. (DiOrio Dep. at 638-39 (105, 107), 641 (114-15); Doc. No. 50-4 at 885.)
In October, 2014, LaCourse pointed out to plaintiff that business was going to competitors
that plaintiff should be capturing for her hotels, and set certain specific goals. But plaintiff did not
know how to determine which competitor was getting what business. (DiOrio Dep. at 651-52 (15660); Doc. No. 50-4 at 888-89.) Mangus also expressed his concerns to DiOrio in October regarding
declining revenues of 10% (Fairfield Inn) and 18% (Residence Inn), and asked what her plans were
“to turn this around.” (DiOrio Dep. at 655-56 (173-74); Doc. No. 50-4 at 916.) But plaintiff went
on vacation for two weeks at the end of October through the first week of November, and the
performance of her properties continued to decline into December. (DiOrio Dep. at 655 (171-74).)
On December 7, 2014, Mangus’ supervisor, Martodam, instructed him that after six months
of “deep declin[e]” in extended stay performance (which plaintiff does not dispute), Mangus must
“[c]hange the trend or the [director of sales] by year end.” (DiOrio Dep. at 662-63 (200-02); Doc.
No. 50-4 at 933.) Defendant implemented a sales action plan for plaintiff on December 15, 2014.10
(Doc. No. 50-4 at 936-38.) Plaintiff also received a written warning regarding the need to improve
her performance, which included both sales and sales activity planning. (DiOrio Dep. at 659 (18890), 668 (223-25), 670 (230); Doc. No. 50-4 at 939-41). It is undisputed, however, that revenues
for plaintiff’s hotels continued to decline through December 2014. (DiOrio Dep. at 656 (174).)
On January 12, 2015, Mangus issued plaintiff a second action plan, cautioning her that
failure to show improvement in her performance would result in termination on February 6, 2015.11
(Id. at 674-75 (249-50); Doc. No. 50-4 at 951-53.) But plaintiff had planned a vacation to Las
Vegas for the end of January 2015, and proceeded with her plans. (DiOrio Dep. at 672-73 (241-
Plaintiff testified both that the objectives in the action plan to increase occupancy and revenue in her three hotels by
January 6, 2015 were reasonable and obtainable (DiOrio Dep. at 666 (214-16)), and that the objectives were not
reasonable (Id. at 670 (231).)
Mangus noted in his warning that plaintiff’s lack of sales performance resulted in declining revenues and profits for
the company, as well as a reduction in compensation for managers and in working hours for desk staff, housekeepers,
and laundry attendants. (Doc. No. 50-4 at 952.)
43).) Plaintiff admits she did not meet her performance goals for January, and she was terminated.
(Id. at 676-77 (257-58).)
Plaintiff does not claim that her supervisors prevented her in any way from achieving her
goals. (Id. at 626 (44).) Indeed, plaintiff admits that Mangus and others attempted to help her
improve her performance. (Id. at 658 (184-85).) One example is the general manager at the
Residence Inn, Steve Patris, who emailed plaintiff with business leads. Plaintiff responded by
telling Patris to “limit these emails and discuss at our weekly meetings” because “these emails
from at least 5 different people take up a great deal of my time[.]” (Doc. No. 50-4 at 955-56.)
3. Plaintiff’s opposition to the motion
In opposition to defendant’s evidence regarding her admitted poor performance, plaintiff
maintains that defendant’s reasons for terminating her are false, and had no basis in fact, did not
actually motivate defendant’s actions, or were insufficient to motivate defendant. In support
plaintiff focuses on her market share performance and positive comments from defendant
regarding her performance in 2014, and claims that similarly situated younger individuals were
treated more favorably.
Market share performance and positive comments insufficient to show pretext
Plaintiff contends, and defendant does not dispute, that plaintiff achieved some of her
market share goals and received a bonus for that performance. (Opp’n at 1413-17, citing record.)
But plaintiff’s opinion that defendant should have been satisfied with her market share
performance is insufficient to establish pretext in light of her other admitted performance
deficiencies. See Messner v. Lockheed Martin Energy Sys., Inc., 126 F. Supp. 2d 502, 514 (E.D.
Tenn. 2000) (“An employee’s evaluation of his own performance or qualifications is irrelevant as
a matter of law.”) (citing Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987) (employee’s
“perception of his competence, and the incompetence of those competing against him, is
irrelevant”)); Frazier v. Phillip’s Masonry Grp., Inc., No. 1:09-0022, 2010 WL 1882123, at *9
(M.D. Tenn. May 11, 2010) (“Plaintiff’s subjective beliefs and his perception of his own
performance are not relevant.”) (citation omitted). Indeed, it remains undisputed that plaintiff did
not meet her overall revenue goals12 and that her level of sales activity was not adequate.13
Further in support of pretext, plaintiff points to evidence of praise by defendant regarding
her performance in 2014. (Opp’n at 1414-15.) This evidence includes: (1) a March 25, 2014 email
from LaCourse praising plaintiff and others for their sales work “over the past month”;14 (2) the
deposition testimony of LaCourse that as of August 2014, plaintiff was meeting her quarterly
budgeted goals for the Residence Inn;15 (3) an October 1, 2014 e-mail to plaintiff and others
regarding a “[g]reat looking week” regarding occupancy and shifting for the Fairfield Inn;16 (4) a
November 1, 2014 email from LaCourse to plaintiff congratulating plaintiff because although the
“[Residence Inn] fell short with revenue[,]” plaintiff “focused [her] efforts on the revenue at the
[Hampton Inn] and [Fairfield Inn] and for that I am proud. Great job!”;17 (5) the deposition
See DiOrio Dep. at 631-32 (63-69).
Plaintiff agrees with defendant that her sales activity of one email and three planned calls per day was insufficient
and inadequate, especially when business was down, and that plaintiff should have a higher level of planned sales
activity. Plaintiff also agrees with defendant’s expectation that an appropriate level of sales activity for her three hotels
was ten new appointments, ten maintenance appointments, and six tours weekly, but plaintiff did not always comply
with those requirements. (DiOrio Dep. at 659 (188-89), 660 (190, 193).)
Doc. No. 50-12 at 1363.
LaCourse testified that plaintiff was meeting her quarterly budgeted goals for the Residence Inn, but not the Fairfield
inn or Hampton Inn. (LaCourse Dep. at 1261-62.)
Doc. No. 50-3 at 861.
Doc. No. 55-13 at 1365.
testimony of LaCourse that plaintiff “worked hard for quarter 3” and “hit her goals.”;18 and (6) a
November 19, 2014 email from LaCourse to plaintiff that the “[Residence Inn] did an amazing job
But plaintiff’s selective citations of praise are taken out of context and, even viewed
favorably to plaintiff, do not establish that plaintiff’s overall performance deficiencies in 2014 had
no basis in fact or did not actually motivate defendant. For example, in LaCourse’s email cited by
plaintiff regarding her “amazing job last week” at the Residence Inn, the rest of the story
immediately follows: “Jeanne now you just need to hold a solid week at the [Residence Inn] and
increase the business at the [Fairfield Inn]. When one succeeds the other hurts a little…have an
even balance with your properties so we can have a solid market all around.” (Doc. No. 55-14 at
1368.) Plaintiff herself recognized that although her performance sometimes showed improvement
for one property, she did not show overall improvement. (See Doc. No. 50-3 at 860 (“When I do
good at 2 hotels, then the other isn’t doing good.”).)
Plaintiff’s sales activity performance was also sporadic. She admits that she could have
done more and did not always comply with defendant’s requirements regarding sales activities.
LaCourse testified that when plaintiff was “talked to” about specific declining numbers she would
pull through with business in that area. (La Course Dep. at 1300.) But defendant expected plaintiff
to be “self-starting,” not reactive. “[W]e needed consistency; not the constant badgering to say we
need more[.]” (Id. at 1303.) As LaCourse described it, “[i]t’s a constant battle that you have to do
as a director of sales at a hotel. It never stops. You can never sit still. You have to continue building.
LaCourse Dep. at 1275.
Doc. No. 55-14 at 1368.
… [W]e’re always looking for the next quarter. So she might have exceeded in quarter 3. What
are we doing for quarter 4. Quarter 3’s already done. You give your congratulations. What are we
going to [do] to make sure that we’re going to achieve our goals for quarter 4.” (Id. at 1275-76.)
Plaintiff was terminated for not meeting her overall performance goals for all three hotels
in 2014 and January 2015, which she admits. The evidence advanced by plaintiff that she
periodically met some of her goals for some of her properties, and was praised for doing so by her
employer, is insufficient to create a genuine dispute of material fact that defendant’s stated reason
for termination was false, and that a reasonable jury might conclude that defendant’s real “but for”
reason for terminating plaintiff was age discrimination.
No evidence that younger individuals were treated more favorably
Plaintiff can also establish pretext by showing that defendant’s stated reasons were
insufficient to motivate termination. Manzer, 29 F.3d at 1084. This showing “‘consists of evidence
that other employees, particularly employees not in the protected class, were not fired even though
they engaged in substantially identical conduct to that which the employer contends motivated its
discharge of the plaintiff.’” McKinley v. Skyline Chili, Inc., 534 F. App’x 461, 465 (6th Cir. 2013)
(quoting Manzer, 29 F.3d at 1084).
Plaintiff contends that Patris (42 years old), the general manager of the Residence Inn and
also supervised by Mangus, failed to achieve his financial goals for the Residence Inn, but was not
placed on a performance improvement plan or otherwise disciplined. (See Opp’n at 1417-18.) In
support of this pretext argument, plaintiff advances a February 1, 2015 email from Mangus to
Patris and other general managers of hotels in Canton and Youngstown, which states as follows:
We will never see another month like this. A month in which the six of you showed
declines of more than 15% and didn’t even come close to hitting 90% of your
revenue goals. I think it is past time to get back to basics where [general managers]
are held every bit as accountable for top line revenue as are the [directors of sales].
I come from the days when we did not have Sales people at our properties and
[general managers] were accountable for all sales efforts, and in looking at these
numbers I have to question what the [directors of sales] are doing and if we could
accomplish high numbers with just the [general manager] going out a couple of
days a week, thus savings Sales payroll and driving that amount to the bottom line.
So effective this month I am holding you, the [general managers] every bit as
accountable as your [directors of sales] in achieving positive growth and hitting
targeted numbers. I advise you all [to] clear time to get out of your properties one
to two days per week, and make sales calls. Attending Chamber and CVB events
are no longer optional, and are mandated. . . . Sales is your responsibility, and you
will be held accountable. If you have questions or need training, please let me know.
. . . I will be setting up a simple report that each of you will need to complete
showing your weekly sales efforts and I hope to have that to you tomorrow. As you
need to be out there making calls this week.
(Doc. No. 55-23 at 1389-90 (emphasis added).)
Plaintiff’s pretext argument pointing to Patris is unavailing. Plaintiff is not required to
demonstrate an exact correlation between herself and Patris to establish pretext, but she must show
that the two are similar in “all relevant respects” and “engaged in acts of comparable seriousness.”
McKinley, 534 F. App’x at 466 (quoting Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th
Cir. 2012) (citation omitted)).
Plaintiff’s evidence shows neither. Plaintiff was terminated for failure to achieve her
overall sales performance goals as director of sales for 2014 and January 2015, after repeated
warnings and two performance improvement plans. Mangus’ January 2015 email addresses Patris’
poor performance for a single month—January 2015. Moreover, Mangus’ email shows that Patris
did not have the same sales responsibilities as the director of sales, and that Mangus was imposing
new sales responsibilities upon Patris and other general managers, effective immediately. Thus,
Patris’ January 2015 performance issues are not similar to plaintiff’s performance issues or of
comparable seriousness, and do not create a genuine dispute of fact as to whether plaintiff’s
extended poor performance was insufficient to motivate termination by defendant.20
In order to survive summary judgment, plaintiff must advance evidence from which a
reasonable jury could conclude that defendant’s stated reasons for terminating her are false, and
that age discrimination is the real “but for” reason. Scheick, 766 F.3d at 529 (citations omitted);
see Bender v, Hecht’s Dept. Stores, 455 F.3d 612, 626 (6th Cir. 2006) (citations omitted). Plaintiff
has failed to do so. Plaintiff admits that she did not meet her overall 2014 and January 2015
performance goals. Moreover, plaintiff acknowledges that if she were in her supervisor’s shoes,
she herself would have been concerned about the decline in her performance. (DiOrio Dep. at 638
(105).) There is no dispute that defendant provided plaintiff with an opportunity to address her
performance issues and attempted to assist and encourage her to improve her performance. That
plaintiff may have periodically met some of her performance goals for some of her properties, and
believes that she did her job to the best of her ability, is not evidence from which a reasonable jury
Plaintiff also points as evidence of pretext to a January 12, 2015 email from LaCourse to numerous general managers
and others regarding hotel properties in several geographic locations, including Akron, Canton, and Youngstown.
(Doc. No. 55-24 at 1392.) LaCourse’s email establishes sales activity requirements for all of the recipients, noting that
“as a region, we are struggling with getting those NEW/MAINTENANCE appointments and tours[,]” and closes with
the admonition that “[t]his is a new year and we need to come out of the gates at full speed.” Id. Plaintiff argues that
LaCourse, who was 32 years old at the time, “testified that she did not know if any of the directors of sales that she
supervised were in their 50s and that there were none in their 60s. . . . It is therefore clear that Plaintiff was the oldest
of Ms. LaCourse’s report’s and was almost 30 years older than her supervisor.” (Opp’n at 1418.) Plaintiff also cites
her affidavit, in which she avers that she “believe[s]” she is the oldest director of sales supervised by Mangus and
LaCourse. (See Doc. No. 55-27 ¶ 3.) From this plaintiff concludes that LaCourse favored younger employees.
It is plaintiff’s burden on summary judgment to show with specific facts in the record that there is genuine
dispute of material fact on the issue of pretext. Plaintiff’s speculation regarding the age of LaCourse’s direct reports
is insufficient to satisfy her burden and survive summary judgment on this issue. See Lewis v. City of Detroit, No. 1413091, 2016 WL 67600, at *9 (E.D. Mich. Jan. 6, 2016), aff’d, No. 16-1132, 2017 WL 2992231 (6th Cir. July 14,
2017) (“In attacking an employer's explanation for the discharge, [Plaintiffs] may not rely upon mere personal beliefs,
conjecture and speculation.” (internal quotation marks omitted) (quoting Chappell, 803 F.2d at 268); Lujan, 497 U.S.
at 888-89. For the same reason, plaintiff’s bald assertioin that LaCourse favored younger employees consists of
nothing more than conjecture and speculation, and is insufficient to support pretext. (See DiOrio Dep. at 688-89 (30507).)
could conclude that defendant’s stated reason for terminating plaintiff is false, and age
discrimination is the real “but for” reason.
Accordingly, defendant is entitled to summary judgment on plaintiff’s ADEA claim.
C. Retaliation (Count II)
Under the ADEA, employers are prohibited from retaliating against an employee for
opposing or reporting age discrimination. Blizzard, 698 F.3d at 288 (citing 29 U.S.C. § 623(d)).
To establish a prima facie case of retaliation, plaintiff must show that: “(1) she engaged in a
protected activity, (2) the defending party was aware that the [plaintiff] had engaged in that
activity, (3) the defending party took an adverse employment action against the employee, and (4)
there is a causal connection between the protected activity and [the] adverse action.” Id. (alterations
in original) (citations omitted).
Once plaintiff establishes a prima facie case of retaliation, the burden shifts to defendant
to articulate a non-retaliatory reason for the adverse employment action, and then shifts back to
plaintiff to demonstrate that the proffered reason is a pretext for retaliation. Id. (citing Ladd v.
Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009)). Plaintiff has the ultimate burden
of persuasion to show that her protected conduct was the “but for” cause of her termination.
Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 504 (6th Cir. 2014) (citation omitted).
Plaintiff admits that she never informed Mangus, LaCourse, or human resources (until
towards the end of December 2014) that she believed she was being treated differently because of
her age. (DiOrio Dep. at 684 (286-88).) Plaintiff’s only evidence of protected activity is the filing
of her EEOC charge of age discrimination on December 22, 2014. (Opp’n at 1419.) Plaintiff
contends that, shortly thereafter on January 9, 2015, she was placed on a second performance
improvement plan and then terminated on February 6, 2015, all in retaliation for filing an EEOC
charge. But plaintiff filed the EEOC charge after defendant implemented her first performance
plan on December 15, 2014, and after Martodam’s instruction to Mangus on December 7, 2014
that Mangus must “[c]hange the trend or the [director of sales] by year end.” (DiOrio Dep. at 66263 (200-02); Doc. No. 50-4 at 933.)
It is well-established that an employee cannot insulate themselves from previously
contemplated adverse employment actions by engaging in protected activity, and then later claim
that there is a causal connection between the two in order to establish a prima facie case. Moore v.
Ohio Edison Co., Inc., No. 4:15-CV-1424, 2016 WL 7097631, at *13 (N.D. Ohio Dec. 6, 2016)
(citing Montell., Inc., 757 F.3d at 507 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, –– U.S. ––,
133 S. Ct. 2517, 2532, 186 L. Ed. 2d 503 (2013))); Montell, 757 F.3d at 507 (“When the employer
‘proceed[s] along lines previously contemplated,’ we must not take the temporal proximity of the
adverse employment action as evidence of causality.”) (quoting Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 272, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) (per curiam)).
Here, defendant had already set in motion a disciplinary process that ultimately led to
plaintiff’s termination before plaintiff filed her EEOC charge, Moreover, after plaintiff filed her
EEOC charge, defendant gave plaintiff another opportunity to improve her performance in January
2015, which plaintiff admittedly did not do. Under these undisputed facts, the temporal proximity
of the filing of plaintiff’s EEOC charge and the culmination of a disciplinary process which ended
in termination in February 2015, is insufficient to support a prima facie case of retaliation. Moore,
2016 WL 7097631, at *13 (citing Van Winkle v. HM Ins. Grp., Inc., 72 F. Supp. 3d 723, 736-37
(E.D. Ky. 2014)).
Accordingly, defendant is entitled to summary judgment plaintiff’s retaliation claim.
For all of the foregoing reasons, defendant’s motion for summary judgment is granted.
IT IS SO ORDERED.
Dated: October 25, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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