DANNY C. REEVES, District Judge.
This case arises from Appellant Peggy Blizzard's termination from her employment with Appellee Marion Technical College. Blizzard filed suit against her supervisor and the college asserting claims for age discrimination and retaliation, as well as intentional infliction of emotional distress and breach of public policy. The district court granted summary judgment in favor of the defendants on all claims. Blizzard now appeals the dismissal of her age discrimination and retaliation claims. For the reasons described below, we affirm the judgment of the district court.
Blizzard was born on January 18, 1951. In 1992, she was hired as a part-time Associate Accounts Payable Clerk in the Business Office at Marion Technical College ("MTC"). Blizzard was promoted to Accounts Payable Clerk 1 in 1996. She was terminated from that position in April 2008, at 57 years of age.
Blizzard's supervisor, Jeffrey Nutter, began as MTC's Controller on April 29, 2001. In this position, he oversaw the MTC business office and its staff: Blizzard, Betty MacNail, and Jean Thomas (who was born on July 14, 1964). Nutter's superiors at MTC were Dr. Richard Bryson, President, and Doug Boyer, Vice President of Financial and Administrative Services.
MTC asserts that Blizzard was resistant to the new software and fell behind in learning to use it. According to MTC, Blizzard's subsequent issues at work arose from her difficulties adapting to the new technology. Blizzard, on the other hand, contends that her problems stemmed from Nutter's treatment of her. She alleges that Nutter gave Thomas special treatment. Specifically, Blizzard maintains that Nutter was more lenient with Thomas regarding infractions such as taking long breaks, talking on her cell phone, and socializing in the office. In addition, Blizzard alleges that Nutter gave Thomas more opportunities for training on the new software programs and sometimes required Blizzard to work extra hours so that Thomas could attend training sessions.
In 2006 and 2007, Blizzard made several oral complaints to various persons at MTC. Blizzard complained to Parker on May 25, 2006 that she was working longer hours than Thomas. Several days later, she told Hauenstein that she was treated differently than younger employees because they were getting away with bad behavior at work. Blizzard also told Hauenstein that she felt Nutter treated her in an emotionally abusive and intimidating manner, while younger employees were treated with respect and kindness. In December 2007, Blizzard told King that she was considering filing a written grievance.
After Blizzard's dismissal, Thomas was assigned to perform the majority of Blizzard's job responsibilities in addition to her own. In August 2008, MTC hired 28-year-old Kristina Walters as a cashier. Three months later, MTC hired Janice Teeter to perform the Accounts Payable Clerk duties. Teeter was 51 years old when she accepted the position. Although she began in a temporary capacity, Teeter was hired as a full-time employee on July 20, 2009.
Blizzard filed a charge with the Equal Employment Opportunity Commission ("EEOC") on June 30, 2008, claiming retaliation, age discrimination, and sex discrimination. On July 16, 2009, she filed a complaint against MTC and Nutter
This court reviews a district court's grant of summary judgment de novo. ACLU of Ky. v. Grayson Cnty., 591 F.3d 837, 843 (6th Cir.2010); Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th Cir. 2001). Summary judgment is required when the moving party shows, using evidence in the record, "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); see Fed.R.Civ.P. 56(c)(1). The party moving for summary judgment bears the burden of showing conclusively that no genuine issue of material fact exists. CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir.2008). Once a moving party has met its burden of production, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Reviewing the facts in the light most favorable to the nonmoving party, the court must ultimately 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.'" Vill. of Oakwood v. State Bank & Trust Co., 539 F.3d 373, 377 (6th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.
The ADEA prohibits an employer from discharging an individual "because of such individual's age." 29 U.S.C.
The burden of persuasion is on the plaintiff to show that "age was the `but-for' cause of the employer's adverse action." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). A plaintiff "may establish a violation of the ADEA by either direct or circumstantial evidence." Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.2009). Where, as here, the plaintiff fails to present direct evidence of age discrimination, the claim is analyzed using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas and its progeny, once the plaintiff succeeds in making out a prima facie case of age discrimination, the defendant must "articulate some legitimate, nondiscriminatory reason" for the termination. Id. at 802, 93 S.Ct. 1817. "If the defendant meets this burden, then the burden of production shifts back to the plaintiff to demonstrate that the proffered reason is a pretext." Sutherland v. Mich. Dep't of Treasury, 344 F.3d 603, 615 (6th Cir.2003).
To establish a prima facie case of age discrimination, a plaintiff must show: "(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). An allegation that the plaintiff was replaced by a younger individual supports an inference of discrimination only if the difference in age is significant. See Grosjean v. First Energy Corp., 349 F.3d 332, 336 (6th Cir.2003) (explaining that an inference of discriminatory intent cannot be "drawn from the replacement of one worker with another worker insignificantly younger" (internal quotation marks omitted)).
Here, MTC argues that Blizzard failed to meet her burden of establishing a prima facie case of age discrimination. Although it concedes that she has presented evidence to support the first three elements of her claim, MTC maintains that Blizzard "cannot establish the fourth prong of her prima facie case as her replacement was not significantly younger." Blizzard, on the other hand, asks this court to affirm the district court's conclusion that the age difference between Blizzard and her replacement was significant.
Although Blizzard argues that Thomas replaced her, the district court correctly found that Janice Teeter (born on July 13, 1957) was Blizzard's replacement.
This court established a bright-line rule in Grosjean when it held that "in the absence of direct evidence that the employer considered age to be significant, an age difference of six years or less between an employee and a replacement is not significant." Id. at 340. However, while an age difference of ten or more years is generally considered significant, id. at 336, replacement of the employee by a person who is six to ten years her junior must be considered on a case-by-case basis. Cf. id. at 340 (explaining that bright-line rule "does not encroach on our precedent holding that eight years can be a significant age difference"). Thus, Grosjean essentially created a zone of discretion in age-discrimination cases involving replacement by a person who is between six and ten years younger than the plaintiff. Here, the district court concluded that, although the six-and-a-half year age difference between Blizzard and Teeter "is perhaps not the best evidence to create an inference of age discrimination," it was nonetheless sufficient to create an issue of material fact at the summary judgment stage. The district court's decision was a reasonable exercise of its discretion under Grosjean.
Because Blizzard established a prima facie case of age discrimination, the burden shifted to MTC to articulate a nondiscriminatory reason for dismissing Blizzard. The district court determined that MTC met this burden, and found the following to be legitimate business reasons for the adverse employment decision:
On appeal, Blizzard argues that the legitimate business reasons described by the district court are not the same as those reasons relied upon by MTC. She asserts that her letter of termination is the only proper statement of the reasons behind her termination. However, a formal termination letter is not the only evidence a court may use to determine the reasons for an employee's dismissal. Cf. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350-51 (6th Cir.1998) (looking to employer's memorandum in support of its
When an employer offers nondiscriminatory reasons for an adverse employment action, the burden shifts back to the employee to prove that the stated reason for her termination is pretextual. At this stage, the plaintiff has the burden to produce "sufficient evidence from which a jury could reasonably reject [the employer's] explanation of why it fired her." Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.2009). She can accomplish this by proving "`(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [her discharge], or (3) that they were insufficient to motivate discharge.'" Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir.2012) (emphasis in original) (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994)). The three-part test need not be applied rigidly. Rather, "[p]retext is a commonsense inquiry: did the employer fire the employee for the stated reason or not?" Chen, 580 F.3d at 400 n. 4.
Blizzard argues that MTC's proffered reasons have no basis in fact. She contends that her colleagues, such as Axline, Rodman, and Langdon, "spoke glowingly of her work." However, these opinions were formed from sporadic interactions with Blizzard. For instance, although Axline testified that she "never had any problem" with Blizzard's performance, she also indicated that in their professional capacities, their paths crossed only once or twice per month. Similarly, Rodman's assertion that Blizzard was "conscientious in assisting" her with billing problems was based on monthly communications. That coworkers who interacted with her infrequently found nothing in Blizzard's work to complain about is not enough to show that MTC's proffered reasons have no basis in fact. Moreover, these opinions do not rebut MTC's assertion that Blizzard exhibited a general unwillingness to cooperate and work with other employees in the College's Business Office, because Axline, Rodman, and Langdon all worked in different departments within MTC.
Blizzard also relies on a letter of reference written by Heisel on August 4, 2006, which described Blizzard as "hard working," "dedicated," and "productive." Unlike Axline, Rodman, and Langdon, Heisel did work in the Business Office alongside Blizzard. However, Heisel left the Business Office in 2005, so his recommendation letter was based on an opinion of Blizzard's work formed over a year before the implementation of the new software that precipitated most of her performance issues. In short, this evidence does not establish that MTC's stated reasons were pretext for a discriminatory decision.
Finally, Blizzard argues that Hamilton v. General Electric Co., 556 F.3d 428 (6th Cir.2009), compels us to reverse the district court's decision. In Hamilton, the employee alleged that his employer, GE, waited for a "legal, legitimate reason to fortuitously materialize," and then used that reason to cover up its true motivation for firing him. Id. at 436 (internal quotation marks omitted). The court concluded that the employee had raised a question of fact sufficient to defeat a motion for summary judgment because he "contested the facts underlying his termination" rather
However, even if Blizzard did provide sufficient evidence to create a genuine issue of material fact regarding the falsity of MTC's proffered reasons, MTC would still be entitled to summary judgment. This court has adopted a "modified honest belief" rule, which provides that "`for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.'" Escher v. BWXT Y-12, LLC, 627 F.3d 1020, 1030 (6th Cir.2010) (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006)). The employee, in turn, "must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is `too obvious to be unintentional.'" Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 286 (6th Cir.2012) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998)). To overcome the employer's invocation of the honest belief rule, the employee "must allege more than a dispute over the facts upon which [the] discharge was based. He must put forth evidence which demonstrates that the employer did not `honestly believe' in the proffered non-discriminatory reason for its adverse employment action." Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir.2001).
Blizzard asserts that MTC failed to investigate the charges against her to determine their veracity. However, it is not necessary "that the decisional process used by the employer be optimal or that it left no stone unturned." Smith, 155 F.3d at 807. Blizzard has failed to produce evidence demonstrating that MTC's reliance on the facts before it at the time of the decision to dismiss her was unreasonable. Lacking such proof, Blizzard's "disagreement with [MTC's] honest business judgment regarding [her] work does not create sufficient evidence of pretext in the face of the substantial evidence that [MTC] had a reasonable basis to be dissatisfied." Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir.2001). MTC is entitled to the protections of the honest belief rule because it has shown that it made a "reasonably informed and considered decision" to terminate Blizzard's employment. Smith, 155 F.3d at 807. Thus, Blizzard has failed to establish pretext on the grounds that MTC's "proffered reasons had no basis in fact." Chattman, 686 F.3d at 349 (emphasis omitted).
Blizzard also argues that MTC's articulated reasons for her dismissal were insufficient to actually motivate her discharge. To establish the insufficiency of MTC's proffered reasons, Blizzard must show by a preponderance of the evidence that "other employees, particularly employees not in the protected class,
Finally, Blizzard asserts that certain age-related comments made by Nutter constitute circumstantial evidence of pretext.
Although Blizzard has established a prima facie case of age discrimination, she has failed to show that MTC's proffered reasons for her termination were pretextual. Therefore, the district court's grant of
The ADEA prohibits employers from retaliating against an employee for opposing or reporting age discrimination. 29 U.S.C. § 623(d). Similarly, Ohio law provides that it is unlawful for "any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice." Ohio Rev.Code Ann. § 4112.02(I). To establish a prima facie case of retaliation under either federal or Ohio law, a 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." Greer-Burger v. Temesi, 116 Ohio St.3d 324, 879 N.E.2d 174, 180 (2007) (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.1990)); Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir.2008). As with age discrimination claims, once the plaintiff has established a prima facie case of retaliation, the burden of production shifts to the defendant to "offer a non-discriminatory reason for the adverse employment action." Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir.2009). If the defendant meets its burden, the plaintiff then has the burden to "demonstrate that the proffered reason was mere pretext." Id.
Blizzard argues that the district court erred when it concluded that she failed to demonstrate that she engaged in protected activity. Because Blizzard does not allege that she was retaliated against for her participation in an EEOC proceeding, her claim must be analyzed under the ADEA's opposition clause, which prohibits discrimination against an employee because she has "opposed any practice made unlawful by this section." 29 U.S.C. § 623(d). A plaintiff asserting such a claim must prove that she took an "`overt stand against suspected illegal discriminatory action'" to establish that she engaged in a protected activity. Coch v. Gem Indus., No. L-04-1357, 2005 WL 1414454, at *5 (Ohio Ct.App. June 17, 2005) (quoting Comiskey v. Auto. Indus. Action Grp., 40 F.Supp.2d 877, 898 (E.D.Mich.1999)). In other words, an employee "`may not invoke the protections of the Act by making a vague charge of discrimination.'" Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir.2007) (quoting Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir.1989) (holding that complaints about "ethnocism" were too vague to constitute protected activity)).
Blizzard asserts that she engaged in protected activity on a number of occasions. However, the district court found that the only incident that constituted protected activity was Blizzard's 2007 complaint to King that she felt she was being discriminated against because of her age. The court correctly concluded that there was no evidence "that Nutter or any other decision-maker was aware of Blizzard's conversation with King." Thus, Blizzard failed to establish the second element of a prima facie case of retaliation — the defendants' knowledge of the protected activity — with regard to that conversation.
The oral complaints Blizzard made to Hauenstein on May 30, 2006 qualify as protected activity. Blizzard told Hauenstein that she was "treated differently than younger employees" and that she "received emotionally abusive and intimidating treatment from Nutter, who treated the younger people in the office
Blizzard has failed, however, to demonstrate the causation element. Her last complaint to Hauenstein occurred more than a year before her April 2008 termination. This timing does not "raise the inference that [the] protected activity was the likely reason for the adverse action." Lindsay v. Yates, 578 F.3d 407, 418 (6th Cir.2009) (internal quotation marks omitted) (explaining that temporal proximity between an assertion of rights and an adverse action is sufficient only when "an adverse employment action occurs very close in time after an employer learns of a protected activity" (internal quotation marks omitted)). Blizzard has presented no extrinsic evidence to support her assertion that the conversation with Hauenstein precipitated MTC's termination decision.
Further, we reject Blizzard's attempt to revive her retaliation claim by arguing that her June 2006 appraisal constitutes
We