Sarvak v. Developers Diversified Realty Corporation et al
Filing
44
ORDER granting 23 Motion for Summary Judgment; granting 26 Motion for Summary Judgment. Plaintiff shall bear the costs of this action. This case is Dismissed and Terminated on the docket of this Court. Signed by Judge Herman J. Weber on 9/13/12. (do1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CRYSTAL SARVAK,
Plaintiff
v.
Case No. 1:10-cv-942-HJW
DDR CORP., F/K/A DEVELOPERS
DIVERSIFIED REALTY CORP., et al,
Defendants
ORDER
This matter is before the Court upon the “Motion for Summary
Judgment” (doc. no. 23) by defendant Developers Diversified Realty
Corporation (“DDR”). Also pending is the joint “Motion for Summary
Judgment” (doc. no. 26) by defendant Urban Retail Properties, LLC
(“Urban”)
and
defendant
Coventry
Real
Estate
Advisors,
LLC
(“Coventry”). Crystal Sarvak (“plaintiff”) has filed a single brief in
opposition (doc. no. 30), and defendants have replied (doc. nos. 37,
38). The defendants have filed two sets of proposed findings of fact
and conclusions of law, which plaintiff has highlighted as true, false,
or irrelevant (doc. nos. 31, 32). Having considered the record, including
the pleadings, briefs, exhibits, proposed findings, and applicable
authority, the Court will grant both motions for the following reasons:
1
I. Background
The relevant facts are largely undisputed. To the extent the
parties disagree as to the characterization of certain facts or their
legal significance, such disputes will be noted herein.
Defendant
Coventry
owns
the
Tri-County
Mall
located
in
Cincinnati, Ohio, and defendant DDR managed this property until
December 10, 2009. During the time that DDR managed the mall,
Michael Lyons was General Manager for DDR at this location. In June
of 2007, he hired Crystal Sarvak (age 44) for the full-time property
accountant position at the mall. In this position, Sarvak assisted or
otherwise supported various functions of the central accounting
department of DDR’s corporate office (doc. no. 25-7 at 20-21, listing
central office accounting functions and onsite support functions).
By all accounts, plaintiff was a good employee. Lyons gave her
favorable performance reviews and at least one raise. During her
employment with DDR, plaintiff made several requests for schedule
changes and leave, all of which Lyons granted (doc. no. 31 at ¶¶ 4-5).
On September 2, 2009, Lyons sent a group email to DDR employees,
including Sarvak, setting forth the company’s policies on work
2
schedules as provided in the Employee Handbook (doc. no. 25-7, Lyon
Dep., Ex. J). The next day, Sarvak requested to take a later lunch hour
and to reduce her hours to part-time, “perhaps 32.5 to 35 hours per
week” (Id., Ex. J, CS 518). Lyons indicates that after checking with his
own supervisor, he denied the request for part-time hours because
“the position required full-time duties” (Id., Lyons Dep. at 22). He
indicates he told Sarvak that DDR “would help her with flex time” but
that the position had to remain full time. (Id.) Plaintiff alleges that she
got no response but “made arrangements so that she would not need a
different schedule” (doc. no. 1 at ¶ 21).
Plaintiff “disputes” that she requested part-time hours and
contends that she was merely asking for full-time that was less than
“50-55 hours” (doc. no. 30 at 16, 23). Plaintiff’s own written request
does not support her characterization. She specifically requested to
work “part time,” suggested “perhaps approx. 32.5 to 35 hours,” and
indicated that she would be “available to resume full-time status of
working 40 hours per week” in the summer (doc. no. 25-7 at 4). Given
plaintiff’s own words, Lyons reasonably understood that plaintiff was
requesting part-time hours (Lyons Dep. 16-22).
3
On November 11, 2009, Coventry informed DDR that a different
company (Urban) would be taking over the management of the Tri-City
Mall as of December 11, 2009 (doc. no. 23-2 at 2, “Stipulation of
Facts”). Due to this change in management, DDR eliminated all its
employee positions at Tri County Mall (including plaintiff’s position),
effective December 10, 2009.
Prior to the date Urban was scheduled to assume management,
Brian Alper, Senior Vice President of Human Resources for Urban,
contacted DDR’s General Manager (Michael Lyons) to begin arranging
the transfer of management. Urban was interested in hiring the current
employees at the mall, and Alper asked Lyons if there was anyone on
the current DDR staff whose responsibilities would not fit into the
Urban system. Lyons had previously worked for Urban for several
years as the Assistant General Manager at Kenwood Mall in Cincinnati,
Ohio, and was familiar with Urban’s practices and its accounting
system (doc. no. 31 at 3, ¶¶ 10-12). Lyon indicated that DDR and
Urban used different accounting systems and that the responsibilities
of DDR’s on-site accountant were substantially different from the
responsibilities of Urban’s on-site accountant (Lyons Dep. at 88).
4
Specifically, DDR had a centralized accounting department
whose functions plaintiff administratively assisted, whereas Urban had
field-based
accounting
that
required
more
in-depth
accounting
knowledge and skills under a different program (doc. no. 31 at ¶ 13).
Although plaintiff “disputes” that the positions were substantially
different, she acknowledges that Urban used a different accounting
program (“CTI”) than DDR and that she had not used it. The salient
point
here
is
whether
Lyons
brought
Alper’s
attention
to
the
differences between the two accounting positions. The evidence is
undisputed that he did (doc. no. 32 at ¶ 15).
On November 23, 2009, Alper emailed Patrick Dunne, Vice
President, Regional Accounting Manager for Urban, to ask him to
speak with Sarvak “to get a feel for what she would be capable of
doing by discussing the role that an onsite accountant plays with
Urban” (doc. no. 25-7 at 18). Dunne’s role in the hiring process was “to
interview accountants and then make recommendations whether we
should hire them” (doc. no. 25-9 at 3, Dunne Dep. at 9).
The following day, Dunne spoke with Sarvak to determine
whether she was capable of handling the responsibilities of Urban’s
5
accounting position (doc. no. 32 at ¶¶ 14-15). During this telephone
conversation, Dunne learned from Sarvak that she did not “post cash
receipts, she did not enter accounts payable, she did not do the rent
roll billing, she did not do reconciliation billings and she did not
prepare the budget . . . she had not worked with CTI” (doc. no. 25-9 at
7, Dunne Dep. at 25). After interviewing Sarvak, Dunne concluded that
Sarvak lacked the necessary experience and skills for Urban’s fieldbased accounting position (Id., Dunne Dep. at 28 “Crystal did not do
the duties . . . that the property accountant would have to do”). He
recommended that Urban look for another candidate. Joe McCarthy,
Senior
Vice
President
of
Accounting
for
Urban,
approved
the
recommendation. Dunne did not speak with Lyons, and Lyons was
unaware of Urban’s hiring decision until later.
On November 24, 2009, Alper emailed DDR, advising that Urban
would not be hiring Sarvak because “DDR does accounting centrally
and her capabilities do not seem to be in-line with what we require
from our on-site accounting staff.” On November 30, 2009, Lyons
informed employees, including Sarvak, that their DDR positions were
6
being eliminated as of December 10, 2009. He also advised Sarvak of
Urban’s email indicating that Urban would not be hiring her.
Urban posted its accounting position on the Career Builder
website. Plaintiff was aware of this, but did not apply because she had
already learned that Urban did not intend to hire her for its accounting
position.
On
December
28,
2009,
after
reviewing
dozens
of
applications, Urban hired Patricia Staley, a 57-year old woman, for the
position (doc. no. 27 at 3, ¶20). Staley had previously worked for
Urban as a property accountant and had experience with Urban’s CTI
accounting system (¶ 21).
On
May
12,
2010,
Sarvak
filed
charges
with
the
Equal
Employment Opportunity Commission (“EEOC”) against DDR, Urban,
and Coventry, alleging that she was terminated by DDR/Coventry and
was not hired by Urban, due to her age, sex, or association with her
disabled children. In her charge, she alleged (inaccurately) that DDR
and Coventry were “co-owners” of the mall, that she worked for both
companies, and that she was replaced a younger employee (doc. no.
25-2
at
88).
The
EEOC
found
that
her
allegations
were
not
substantiated by the evidence and did not warrant further processing.
7
On September 29, 2010, the EEOC dismissed the charges and sent
plaintiff a notice of suit rights (doc. nos. 25-2 at 45-49; 32 at ¶¶ 26-27).
On December 28, 2010, Sarvak filed a six-count complaint
against DDR, Coventry, and Urban, alleging discrimination under
federal and state law based on her age, sex, and association with her
disabled children. For each count, plaintiff recites that the three
defendants discriminated against her by “treating her differently than
similarly-situated
employees,
terminating
her
employment,
and
refusing to hire her.” After discovery concluded, the defendants filed
two separate motions for summary judgment, which plaintiff opposes.
These matters are fully briefed and ripe for consideration.
II. Issues Presented
In the first motion, the main issue is whether defendant DDR is
entitled to summary judgment on plaintiff’s claims of age, sex, and
associational
disability
discrimination
because
plaintiff
has
not
established a prima facie case of discriminatory discharge, and
additionally because plaintiff has not shown that DDR’s stated reason
for its decision to terminate all of its positions was pretextual.
8
In the second motion, the main issues are 1) whether defendant
Coventry is entitled to summary judgment because plaintiff concedes
there is no evidence that Coventry was involved in any decisions
regarding plaintiff’s employment; and 2) whether defendant Urban is
entitled to summary judgment because plaintiff has not established a
prima facie case of “failure to hire” and additionally because plaintiff
has not shown that Urban’s stated reasons for its hiring decision were
a pretext for discrimination.
III. Standard of Review
Rule 56(a) of the Federal Rules of Civil provides in relevant part:
A party may move for summary judgment,
identifying each claim or defense or the part of
each claim or defense on which summary
judgment is sought. The court shall 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).
Under Rule 56, the moving party bears the burden of proving that no
genuine dispute of material fact exists. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (l986). The court must construe
the evidence and draw all reasonable inferences in favor of the
nonmoving party. Id. at 587. In doing so, the United States Supreme
9
Court has explained that courts must distinguish between evidence of
disputed material facts and mere “disputed matters of professional
judgment,” i.e. disagreement as to legal implications of those facts.
Beard v. Banks, 548 U.S. 521, 529 30 (2006).
The
district
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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). A
genuine dispute exists “only when there is sufficient evidence on
which the jury could reasonably find for the plaintiff.” Id. at 252. On
summary judgment review, the court’s role is not to “weigh the
evidence and determine the truth of the matter,” but rather, to
determine whether there are any genuine disputes of material fact for
trial. Id. at 249.
IV. Relevant Law
The Age Discrimination in Employment Act (“ADEA”) forbids an
employer from discharging an employee “because of such individual's
age.” 29 U.S.C. § 623(a)(1).
10
Title VII of the Civil Rights Act of 1964 provides in relevant part
that an employer may not “discriminate against any individual with
respect to . . . compensation, terms, conditions, or privileges of
employment, because of such individual's . . . sex.” 42 U.S.C. § 2000e
2(a)(1).
Section 102(b)4 of the Americans with Disabilities Act (“ADA”),
prohibits “excluding or otherwise denying equal job benefits to a
qualified individual because of the known disability of an individual
with whom the qualified individual is known to have a relationship or
association.” 42 U.S.C. § 12112(b)(4).
Under Ohio law, R.C. § 4112.02 provides that it shall be an
unlawful discriminatory practice:
(A) For any employer, because of the ... [age,
sex, or disability] ... of any person, to discharge
without just cause, to refuse to hire, or
otherwise to discriminate against that person
with respect to hire, tenure, terms, conditions, or
privileges of employment, or any matter directly
or indirectly related to employment . . .
Given the similarity of the state and federal statutes, courts may
generally apply federal precedent to employment discrimination
claims under Ohio law. See Hampel v. Food Ingredients Specialties,
11
Inc., 729 N.E.2d 726, 731 (Ohio 2000); Hawkins v. Anheuser Busch,
Inc., 517 F.3d 321, 333 (6th Cir. 2009); Genaro v. Cent. Transport, 84
Ohio
St.3d
293,
298
(1999)
(reliance
on
federal
decisions
for
interpretation of Ohio law is appropriate when the terms of the
statutes are consistent or when the Ohio statute has left a term
undefined). In most instances, resolution of the federal claims will
resolve the state claims as well. See Minadeo v. ICI Paints, 398 F.3d
751, 763 (6th Cir. 2005) (age); Gettings v. Bldg. Lab. Local 310 Fringe
Ben. Fund, 349 F.3d 300, 305 (6th Cir. 2003) (sex); Jakubowski v. The
Christ Hospital, 627 F.3d 195, 201 (6th Cir. 2010) (disability).
An employment discrimination case may be based upon direct or
indirect evidence. Direct evidence is “evidence that proves the
existence of a fact without requiring any inferences,” Rowan v.
Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004),
whereas indirect evidence requires the drawing of an inference.
Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003).
For
employment
discrimination
claims
based
on
indirect
evidence, the burden shifting evidentiary framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), as modified by Texas
12
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981),
applies. See Spengler v. Worthington Cylinders, 615 F.3d 481, 491-92
(6th Cir. 2010) (age); Peltier v. United States, 388 F.3d 984, 987 (6th
Cir. 2004) (sex); Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir.
1998) (disability).
The burden-shifting evidentiary framework also applies to Ohio
claims based on indirect evidence. Coryell v. Bank One Trust Co. N.A.,
101 Ohio St.3d 175, 179 (2004); Little Forest Med. Ctr. of Akron v. Ohio
Civ. Rights Comm., 61 Ohio St.3d 607, 610 (1991) (“the requisite
burdens of proof regarding particular evidentiary issues established by
the federal courts are relevant in determining whether there exists
reliable, probative and substantial evidence of discrimination in
violation of R.C. Chapter 4112”).
A plaintiff must first establish a prima facie case of employment
discrimination. Upon doing so, the burden shifts to the employer to
“articulate a nondiscriminatory reason for its action.” Harris v. Metro.
Gov. of Nashville & Davidson Cty., Tenn., 594 F.3d 476, 485 (6th Cir.
2010). If the employer does so, the plaintiff must then rebut the
proffered reason by pointing to sufficient evidence from which the jury
13
may reasonably reject the employer's explanation as pretextual.
Schoonmaker v. Spartan G. L., LLC, 594 F.3d 476, 264 (6th Cir. 2010).
A plaintiff can rebut the employer’s legitimate, nondiscriminatory
reason by showing that it: (1) had no basis in fact, (2) did not actually
motivate the termination, or (3) was insufficient to motivate the
adverse action. Chen v. Dow Chemical Co., 580 F.3d 394, 400 (6th Cir.
2009). The ultimate question in every employment discrimination case
is whether the plaintiff was the victim of intentional discrimination.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000).
Although the burden of production shifts, plaintiff retains the
ultimate burden of persuasion at all times to demonstrate “that age
was
the
‘but-for’
cause
of
[the]
employer's
adverse
action.”
Schoonmaker, 595 F.3d at 264 (quoting Gross, 129 S.Ct. at 2351 fn. 4);
Yeschick v. Mineta, 675 F.3d 622, 632 (6th Cir. 2012) (same). Similarly,
in ADA cases, plaintiff bears the burden of demonstrating that
disability was a “but for” cause of the employer’s adverse action.
Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 315 (6th Cir.
2012) (en banc).
V. Discussion
14
A. Plaintiff’s Age and Sex Discrimination Claims Against DDR
To establish a prima facie case of age or sex discrimination
based on indirect evidence, the plaintiff must show that (1) she was a
member of a protected class (i.e. over forty, female); (2) she suffered
an adverse employment action; (3) she was qualified for the position;
and (4) she was replaced by someone substantially younger and/or
male, or was treated differently than similarly situated, nonprotected
employees. Peltier, 388 F.3d at 987 (sex); Geiger v. Tower Automotive,
579 F.3d 614, 622 (6th Cir. 2009) (age). DDR’s elimination of all jobs at
the mall was essentially a workforce reduction. Geiger, 579 F.3d at
623
(“A
work
force
reduction
situation
occurs
when
business
considerations cause an employer to eliminate one or more positions
within the company.”). When an employee is discharged as part of a
workforce reduction, 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)); Metz v. Titanium Metals Corp., 2012 WL
1034653, *2 (6th Cir. (Ohio)) (same).
15
The record reflects that: 1) plaintiff was female and over forty; 2)
she was subject to an adverse action when DDR eliminated her
position (thereby terminating her employment with DDR); and 3) she
was qualified for her DDR position. The first three prongs of plaintiff’s
prima facie case against DDR are met.
At the fourth prong, DDR asserts that plaintiff has not shown that
she was “replaced” by someone male or substantially younger, nor has
she shown that she was “treated differently” than any similarly
situated employees. Plaintiff was not replaced by anyone in her former
DDR position, as that job was eliminated and no longer existed. She
was not treated differently than any other DDR employee, as all DDR
employees at the Tri-City Mall – regardless of their age or sex -- were
terminated from DDR. The terminated DDR employees included nine
women and five men. Five were younger than plaintiff and eight were
older than plaintiff. All were terminated from their DDR positions. At
the fourth prong, plaintiff has failed to put forth any evidence tending
to indicate that the employer singled out the plaintiff for discharge for
impermissible
reasons.
Plaintiff
has
not
shown
any
disparate
treatment by DDR and has failed to set forth a prima facie case. See,
16
e.g., Sperber v. Nicholson, 342 Fed. Appx. 131, 132 (6th Cir. 2009)
(observing that employee failed to establish prima facie case of
discrimination, absent evidence that similarly-situated non-protected
employees were treated differently).
Moreover, DDR has advanced a legitimate non-discriminatory
reason for plaintiff’s termination, namely, that DDR lost the contract to
manage the mall, and thus, had to eliminate all the employee positions
at that location. See Bell v. Prefix, Inc., 321 Fed. Appx. 423, 428 n. 1
(6th Cir. 2009) (explaining that ARIFs are legitimate, nondiscriminatory
reasons for adverse employment decisions@); Gambill v. Duke Energy
Corp., 456 Fed. Appx. 578, 588 (6th Cir. 2012) (same). Plaintiff has not
rebutted DDR’s stated reason by pointing to any evidence that her
employer’s stated reason had no basis in fact, did not actually
motivate
her
termination,
or
was
insufficient
to
motivate
the
employer's action. Chen, 580 F.3d at 400.
“At the summary judgment stage, the issue is whether the
plaintiff has produced evidence from which a jury could reasonably
doubt the employer's explanation.” Chen, 580 F.3d at 400 n. 4; Grizzell
v. City of Columbus Div. of Police, 461 F.3d 711, 719 (6th Cir. 2006).
17
Plaintiff
has
not
presented
evidence
from
which
a
jury
could
reasonably infer that the elimination of the DDR positions, including
plaintiff’s position, was merely a pretext for any discrimination.
B. Plaintiff’s “Associational Disability” ADA Claim Against DDR
Plaintiff claims that her discharge from DDR was discriminatory
because she has two disabled children. A plaintiff may establish a
prima facie claim of associational disability under the ADA by showing
that “(1) she was qualified for the position; (2) she was subject to an
adverse employment action; (3) she was known to have a relative with
a disability; and (4) the adverse employment action occurred under a
circumstance that raises a reasonable inference that the disability of
the relative was a determining factor in the decision.” Stansberry v. Air
Wis. Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011); Overly v.
Covenant Transport, Inc., 178 Fed. Appx. 488, 493 (6th Cir. 2006).
A plaintiff “must offer some evidence to suggest that the adverse
employment action . . . she suffered was due in some measure to
discriminatory animus.” Stansberry, 651 F.3d at 488. Plaintiff has
failed to do so. As already discussed, all the DDR employees at that
location were terminated from DDR on the same day when their
18
positions were eliminated. This raises no reasonable inference of
discriminatory animus against plaintiff. See, e.g., Sturgeon v. Southern
Ohio Med. Ctr., 2011 WL 5878387, *12 (S.D. Ohio) (J. DLott) ("[plaintiff]
has not identified any specific evidence which raises a reasonable
inference that [defendant] harbored discriminatory animus towards her
based on her husband's disability"). DDR is entitled to summary
judgment on plaintiff’s “disability association” claim under the ADA.
To the extent plaintiff is attempting to assert an “associational”
claim under Ohio law (doc. no. 1 at ¶¶ 50-56), courts have repeatedly
held that no such claim exists in the disability context under Ohio law.
Smith v. Hinkle Mfg. Inc., 36 Fed. Appx. 825, 830-31 (6th Cir. 2002)
(pointing out that, unlike the ADA, the Ohio statute “contains no
comparable prohibition against associational discrimination”); Berry v.
Frank's
Auto
Body
Carstar,
Inc.,
817
F.Supp.2d
1037,
1047–48
(S.D.Ohio 2011) (“This Court has followed the holding of Smith, as has
the Northern District of Ohio.”); Winkelmann v. Big Lots Stores, Inc.,
2009 WL 3788673, at *1 (S.D.Ohio) (“the Ohio discrimination statute,
unlike federal law, contains no prohibition against associational
discrimination”); Sturgeon, 2011 WL 5878387, *1 (S.D.Ohio) (holding
19
that plaintiff's claim failed as a matter of law because there “is no
associational disability claim under Ohio law”); Baker v. City of Toledo,
Ohio, 2007 WL 1101254, at *6 (N.D.Ohio 2007) (“there is no such claim
under state law”); Anthony v. United Tel. Co. of Ohio, 277 F.Supp.2d
763, 776 (N.D.Ohio 2002) (“Ohio law does not recognize such a claim”).
Additionally, although it is unclear whether plaintiff is asserting a
“failure to accommodate” claim against DDR, such claim would also be
subject to summary judgment. In her complaint, plaintiff alleges that
she “made a request to her boss, Michael Lyons, General Manager, for
a revised work schedule due to providing care for her disabled
children” (doc. no. 1 at ¶ 21). The ADA defines discrimination to
include “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with
a disability.” 42 U.S.C. §12112(b)(5)(A). The evidence does not reflect
that plaintiff was disabled, and the federal regulations provide that
employers are not required to provide reasonable accommodation to
non-disabled workers under the ADA. See 29 C.F.R. §1630.8 App. at
379 (2007); Stansberry, 651 F.3d at 489 (“[plaintiff] was not entitled to
a reasonable accommodation on account of his wife's disability”);
20
Overly, 178 Fed. Appx. at 493 (“Unlike a claim brought by a disabled
person, an employer is not required to reasonably accommodate an
employee based on her association with a disabled person.”).
Moreover, DDR could properly decline to allow plaintiff to work
part-time in a full-time position. For example, in Overley, 178 Fed.
Appx. at 493, the Sixth Circuit affirmed summary judgment for the
employer, explaining:
“[Plaintiff] cannot claim that [her employer]
discriminated against her by not . . . allowing her
to modify her schedule so that she could care for
her daughter. An employee who cannot meet the
attendance requirements of her job is not
protected by 12112(b)(4).”
Although plaintiff argues that she requested “reduced full-time hours,”
her own written request indicates that she requested part-time hours.
A district court need not view the alleged facts in the light most
favorable to the nonmoving party if that party’s version of events is
“blatantly contradicted by the record, so that no reasonable jury could
believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007). The record
reflects no genuine disputes of material fact as to any alleged “failure
to accommodate.” Under any theory, DDR is entitled to summary
judgment on plaintiff’s claim under the ADA.
21
B. Plaintiff’s Claims Against Coventry
Defendant Coventry, the owner of the Tri-City Mall, moves for
summary judgment because “there is no evidence that it was involved
in any decision relating to [plaintiff’s] employment.” Coventry points
out that it did not employ plaintiff and had nothing to do with the
employment decisions at issue. Plaintiff appropriately “does not
dispute dismissal of Defendant Coventry Real Estate Advisors from
this suit” (doc. no. 30 at 6, fn.1). Given the lack of any genuine
disputes of material fact as to this defendant, Coventry is entitled to
summary judgment on all of plaintiff’s claims against it.
C. Plaintiff’s “Failure to Hire” Claims Against Urban
Defendant Urban moves for summary judgment on plaintiff’s
claims that Urban discriminated against her on the basis of her age,
sex, and/or disability association when it chose not to hire her for its
accounting position, and instead, chose a better-qualified applicant for
the position.
The Court must first consider whether plaintiff is proceeding with
direct or indirect evidence. Plaintiff argues that she has presented
“direct”
evidence
because
Lyon’s
22
comments
to
Alper
allegedly
“influenced” Urban’s decision (doc. no. 30 at 18-20). Lyons was
employed by DDR at the time and accurately indicated to Alper that
the two companies had different accounting systems and that the
onsite positions involved substantially different duties and skill levels.
Plaintiff urges that Lyons’ statements to Alper were rooted in
discriminatory animus. In the first place, Lyons’ comments were
objective, factually accurate, and do not reflect any discriminatory
animus on their face. A statement of concern by a supervisor that an
employee cannot perform the job in question in response to a valid
inquiry is not direct evidence of bias. Hedrick v. W. Reserve Care Sys.,
355 F.3d 444, 455 (6th Cir.), cert. denied, 543 U.S. 817 (2004). Although
plaintiff urges that these factually accurate comments should be
construed as discriminatory, this would require an inference regarding
Lyons’ purported motivation. “Evidence is not considered direct
evidence unless a[n improper] motivation is explicitly expressed.”
Grubb v. YSK Corp., 401 Fed. Appx. 104, 109 (6th Cir. 2010). Plaintiff’s
case therefore depends on circumstantial evidence. Grizzell, 461 F.3d
at 719 (the inference prevents the evidence from being direct
evidence).
23
Moreover, the evidence reflects that Lyons, as a DDR employee,
had no authority over any hiring decision at Urban. “Comments made
by individuals who are not involved in the decision making process
regarding the plaintiff's employment do not constitute direct evidence
of discrimination.” Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir.
2003). Although plaintiff makes much of the fact that Lyons (and the
rest of the DDR employees at the mall) were later hired by Urban and
argues that Lyons knew he was likely to be hired by Urban, this does
not change the fact that he had no authority to make (and did not
make) the hiring decision at issue for Urban.
Plaintiff’s reliance on the “cat’s paw” theory of liability is
misplaced. 1 This phrase “refers to a situation in which a biased
subordinate,
who
lacks
decisionmaking
power,
influences
the
unbiased decisionmaker to make an adverse [employment] decision,
thereby hiding the subordinate's discriminatory intent.” Horner v.
Klein, 2012 WL 3711556, *6 (6th Cir. (Ohio)) (quoting Cobbins v. Tenn.
1See
Arendale v. City of Memphis, 519 F.3d 587, 604 (6th Cir. 2008) (explaining
that the term “cat’s paw” is taken from a fable where a monkey tricks a cat
into scooping chesnuts from a fire so that the monkey can eat the chesnuts,
leaving none for the cat).
24
Dept. of Transp., 566 F.3d 582, 586 n. 5 (6th Cir. 2009)). As already
noted, Lyons was employed by DDR, not Urban, at the relevant time.
Plaintiff relies on Staub v. Proctor Hospital, 131 S.Ct. 1186
(2011), which involved a veteran’s claim of discriminatory discharge
under the Uniform Service Employment and Redeployment Rights Act
(USERRA). Staub’s supervisor was hostile to Staub’s military service
obligations. The decision-maker within the company relied on the
supervisor’s accusations and fired Staub. Under the “cat’s paw”
theory, an employer may be responsible when the employer’s agent
commits an act based on discriminatory animus that was intended to
cause, and did cause, the adverse employment decision. Id. at 1187.
The Staub case is distinguishable on its facts.
There, the
supervisor and decision-maker were employed by the same company.
“The biased supervisor and the ultimate decisionmaker . . . acted as
agents of the entity that the plaintiff seeks to hold liable; each of them
possessed supervisory authority delegated by their employer and
exercised it in the interest of their employer.” Staub, 131 S.Ct. at 1193.
In the present case, it is undisputed that Urban and DDR were
unrelated companies. Lyons possessed no authority over Urban’s
25
hiring decision and was not an “agent” of Urban. Although plaintiff
urges that Lyons subsequently went to work for Urban and should be
deemed an “agent” of Urban retroactively (i.e., before he was hired by
Urban), plaintiff is attempting to stretch the Staub decision well
beyond its holding. The evidence pointed to by plaintiff is inferential at
best and does not amount to “direct” evidence.
Unlike the supervisor in Staub, Lyons did not make any
“unfounded” charges of misconduct. None of Lyons’ comments to
Alper referenced anything to do with plaintiff’s age, sex, or association
with disabled persons. Although Sarvak indicates that she “was told”
that Lyons had told Urban she was a “bad employee” (doc. no. 25-4 at
5), both Lyons and Urban deny this, and in any event, hearsay may not
be considered on summary judgment. See, e.g. Thompson v. City of
Lansing, 410 Fed. Appx. 922, 929 (6th Cir. 2011) (observing that the
person who made the alleged comments was not involved in the
decision to terminate plaintiff, and such comments were inadmissible
hearsay not subject to any exception).
Moreover, the Supreme Court explained in Staub that if the
decisionmaker undertakes an investigation which results in an
26
adverse action for reasons unrelated to the supervisor's original
biased action, the employer will not be liable. Id. at 1193. Dunne
personally spoke with Sarvak and independently determined that she
lacked the requisite skills and experience for Urban’s position.
Plaintiff alleges that Lyons also made other comments that she
characterizes as “discriminatory.” For example, she contends that
Lyons, while he was her DDR supervisor, made comments about the
difficulty of balancing work and home responsibilities and staying
home to care for her children. Lyons denies this. Even supposing that
any such comments were made, it is undisputed that they were not
communicated to Urban and did not affect Urban’s decision. No
evidence suggests that Urban had any knowledge of any prior
conversations between Lyons and Sarvak. While employed at DDR,
plaintiff never complained of any purported discriminatory comments
by her supervisor. In any event, alleged comments by a DDR supervisor
would not be direct evidence of discrimination by Urban.
Under the burden-shifting analysis for claims based on indirect
evidence, a plaintiff may establish a prima facie case of discriminatory
“failure to hire” by showing that: (1) she was a member of a protected
27
class (i.e., female, over forty); (2) she applied and was qualified for the
position; (3) she was not selected for the position; and (4) a
significantly younger (and/or male) person was selected. O'Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996); see
also, e.g., Peck v. Elyria Foundry Co., 347 Fed. Appx. 139, 142 (6th Cir.
2009) (“A prima facie case of sex discrimination, based on Elyria's
failure to hire Peck requires her to demonstrate that men who applied
to Elyria were hired instead of her.”).
Plaintiff (female, age 44) did not formally apply for the Urban
position. Given that Urban had already spoken with Sarvak, considered
her for its position, and decided not to hire her, the “application”
requirement is deemed satisfied. Although plaintiff believes she was
“qualified” for Urban’s position (doc. no. 32 at 4, ¶15), she concedes
that she had not used the CTI accounting program used by Urban.
Urban decided to hire another applicant, Patricia Staley, who was
female and ten years older than plaintiff. Although plaintiff “disputes”
that Urban hired a female for the accounting position (doc. no. 32 at 8,
¶1), she points to no evidence that Patricia Staley was not “female.”
The main purpose of the summary judgment rule is “to isolate and
28
dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477
U.S. 377, 323 33 (1986). Plaintiff has not presented a prima facie case
of age or sex discrimination. Similarly, the alleged “failure to hire”
occurred under circumstances that raise no reasonable inference that
the disability of plaintiff’s children was a determining factor in the
decision. Stansberry, 651 F.3d at 487.
Even assuming that plaintiff established a prima facie case,
Urban has articulated a legitimate, non-discriminatory reason for its
decision to hire someone else. Urban hired an applicant with
significant prior experience in Urban’s own accounting system. See
Bender v. Hecht's Dept. Stores, 455 F.3d 612, 626–27 (6th Cir. 2006)
(“to survive summary judgment the rejected applicant's qualifications
must be so significantly better than the successful applicant's
qualifications that no reasonable employer would have chosen the
latter applicant over the former”). Essentially, Urban hired a betterqualified applicant for its position. Plaintiff has not shown any
evidence of pretext on such basis. See, e.g., Mitchell v. Vanderbilt
Univ., 389 F.3d 177, 181 (6th Cir. 2004) (affirming summary judgment
for defendant employer on age discrimination claim because plaintiff
29
failed to produce any evidence from which a jury reasonably could find
that the employer's reasons for not selecting plaintiff for the position
were pretextual).
Dunne, on behalf of Urban, directly contacted plaintiff and
inquired about her skills and duties. After confirming that Sarvak was
essentially in a support role for the central accounting office, Dunne
recommended to his boss, Joe McCarthy, that Urban look for another
accountant because Sarvak lacked the requisite skills for Urban’s
accounting position. Urban chose another candidate who was familiar
with Urban’s own system.
To challenge an employer’s business judgment, plaintiff must
produce evidence that could support a finding that the employer's
decision was unreasonable, or, “so ridden with error that defendant
could not honestly have relied upon it.” Wexler, 317 F.3d at 576;
Brooks v. Davey Tree Expert Co., 2012 WL 1293578, *8 (6th Cir.
(Tenn.))
(explaining
that
in
determining
whether
an
employer
"reasonably relied on the particularized facts then before it . . . the key
inquiry is whether the employer made a reasonably informed and
considered decision before taking an adverse employment action").
30
The evidence of record, including the deposition testimony of Dunne
and McCarthy, reflects that after Dunne spoke with Sarvak, Urban
made a reasonably informed and considered decision in choosing
another
candidate
with
substantial
experience
in
Urban’s
own
accounting system. Plaintiff has not shown that Urban’s decision was
an unreasonable exercise of business judgment.
VI. Conclusion
All three defendants are entitled to summary judgment in their
favor. Plaintiff appropriately concedes that Coventry had nothing to do
with the employment decisions at issue here. As for DDR, no evidence
suggests that plaintiff’s age, sex, or association with disabled
dependents had any role in her termination from DDR. It is undisputed
that DDR lost the contract to manage the Tri-City Mall, and therefore,
eliminated all positions at that location. Plaintiff has not pointed to
any evidence that she was “replaced,” as her DDR position no longer
existed. She was not “treated differently,” as all the DDR employees
were terminated. Viewing the evidence in the light most favorable to
plaintiff, she has not presented a prima facie case of age, gender, or
associational disability discrimination. DDR has articulated legitimate,
31
nondiscriminatory reasons for terminating plaintiff’s employment,
which plaintiff has failed to rebut.
As for Urban, the new property management company considered
plaintiff for its accounting position but chose to hire a better-qualified
applicant (female, age 57) with experience in Urban’s own CTI
accounting system. Plaintiff admittedly had not used the CTI system.
Plaintiff has not shown that Urban’s hiring decision was a pretext for
any sort of discrimination.
VII. Oral Argument Not Warranted
Local Rule 7.1(b)(2) provides that courts have discretion whether
to grant requests for oral argument. The parties have extensively
briefed the relevant issues. DDR opposes plaintiff’s request for oral
argument (doc. no. 37 at 4, fn. 3). The Court finds that the pleadings
and exhibits are clear on their face, and that oral argument is not
warranted. Yamaha Corp. of Am. v. Stonecipher’s Baldwin Pianos &
Organs, 975 F.2d 300, 301-02 (6th Cir. 1992); Schentur v. United
States, 4 F.3d 994, 1993 WL 330640 at *15 (6th Cir. (Ohio)) (observing
that district courts may dispense with oral argument on motions for
any number of sound judicial reasons).
32
Accordingly,
The “Motion for Summary Judgment” (doc. no. 23) by defendant
DDR is GRANTED; the joint “Motion for Summary Judgment” (doc. no.
26) by defendants Urban and Coventry is GRANTED; plaintiff shall bear
the costs of this action; this case is DISMISSED and TERMINATED on
the docket of this Court.
IT IS SO ORDERED.
__________s/Herman J. Weber____
Herman J. Weber, Senior Judge
United States District Court
33
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