Tinker v. Sears, Roebuck & Co.

• Citation: 127 F.3d 519
• Decision Date: 14 October 1997
• Docket Number: No. 96-1418,96-1418
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 380, 72 Empl. Prac. Dec. P 45,050 Robert TINKER, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 519

127 F.3d 519

75 Fair Empl.Prac.Cas. (BNA) 380,

72 Empl. Prac. Dec. P 45,050

Robert TINKER, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.

No. 96-1418.

United States Court of Appeals Sixth Circuit.

Argued June 9, 1997.

Decided Oct. 14, 1997.

E. Michael Morris (argued and briefed), Morris & Doherty, Birmingham, MI, for Appellant.

Brian B. Smith (argued and briefed), Charles C. DeWitt, Jr. (briefed), Dewitt, Balke & Vincent, Detroit, MI, for Appellee.

Before: KEITH, KENNEDY, and MOORE, Circuit Judges.

KEITH, Circuit Judge.

Plaintiff-Appellant Robert Tinker ("Tinker") appeals from the district court's order granting summary judgment for the defendant in this age discrimination action. The district court found that Tinker had failed to prove a prima facie case of age discrimination. The court below also found that Tinker had failed to prove that Defendant-Appellee Sears, Roebuck & Co.'s ("Sears") proffered reason for terminating Tinker's employment was a pretext for age discrimination. For the reasons below, we REVERSE in part, AFFIRM in part ¹, and REMAND this case for further proceedings consistent with this opinion.

I.

Tinker began working in the automotive repair department at the Sears auto center in Livonia, Michigan in June, 1965. He continued to work in that department for 29 years as a technician specializing in brake repair. It is uncontested that Tinker's work was excellent. Tinker was fired on April 25, 1994, which was two days before his fifty-second birthday.

Tinker testified that he understood the correct procedure for brake repair to be as follows. When a mechanic was in need of a project, he would pick up the next work order from the dispatch desk. This order contained the customer's name and address, and stated the problem the customer was experiencing with the vehicle. The mechanic would then obtain an inspection sheet, and inspect the customer's car. He would note the required repairs on the inspection sheet and put it in the envelope containing the work order. The envelope was either placed in a tray marked "for approval," or handed to a salesperson. After the salesperson had discussed the repairs and costs with the customer, and obtained the customer's approval to proceed with the work, he would complete the work order by filling in the required parts and the labor charges. The completed order would either be returned to the mechanic or placed on the dispatch board. After the mechanic completed the work, he was required to write his name or mechanic number on the work order.

On March 9, 1994, Anthony Green, a Sears employee, brought his car into the auto department for a brake inspection. Tinker testified that a salesperson, Kevin Martin, partially filled out a work order. Tinker then inspected Green's vehicle and returned the work order to Martin. Martin asked Tinker what the labor charge would be, and Tinker replied that he thought it was about $ 60.00. Green stated that that was a lot of money. Martin instructed Tinker to perform the repair work, and told him that he would complete the work order. Tinker made the repair, gave Martin the car keys, and left for the day.

About one month after this incident, Martin was fired for theft of tires. While investigating this incident, Martin told Sears about the incident with Anthony Green's car. Martin stated that Green paid for the part, and that Tinker did the work for free. Martin stated that he wrote up the work order. At this point, Tinker learned that there was no completed work order for Anthony Green's repairs. He then went to Roger Ramesbottom, the auto center manager, to inform him of the problem with the work order. Tinker turned in a written statement of his version of the Green incident, and categorically denied agreeing to do the repair work for free. Not long after these discussions, Tinker was terminated. Ramesbottom, who fired Tinker, told him that the termination was the result of Tinker's violation of company policy with respect to work orders.

II.

A. Standard of Review

The court of appeals reviews a decision to grant summary judgment de novo. Curto v. City of Harper Woods, 954 F.2d 1237, 1241 (6th Cir.1992). The evidence is viewed in the light most favorable to the non-movant. Bender v. Southland Corp., 749 F.2d 1205, 1210-1211 (6th Cir.1984).

B. The Prima Facie Case

Tinker alleged that his termination was the result of age discrimination in violation of Michigan's Elliott-Larsen Civil Rights Act ("ELCRA"). His case consisted of circumstantial evidence of age discrimination. A plaintiff who lacks direct evidence of discrimination may still establish a prima facie case of discrimination by proving the elements of their cause of action as set out in federal discrimination jurisprudence. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081 (6th Cir.1994).

To put forth a prima facie case of age discrimination, Tinker had to show that "1) he was a member of the protected class; 2) he was discharged; 3) he was qualified for the position; and 4) he was replaced by a younger person." Matras v. Amoco Oil Co., 424 Mich. 675, 683, 385 N.W.2d 586 (1986). Neither party disputes that Tinker has proven elements one through three.

Tinker contends that he has also met the fourth element by presenting evidence that he was replaced by a younger person. Tinker relies on the fact that Larry Jordan, a part-time employee who was thirty-one years old at the time of Tinker's termination, was promoted to full-time status after Tinker was fired. Sears responds that Tinker's duties were assumed by the three remaining employees in the department, and that no new employee was hired to replace Tinker. Sears relies on this Court's decision in Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878, 111 S.Ct. 211, 112 L.Ed.2d 171 (1990), in which we held that a person is not replaced when another current employee assumes the duties of the terminated employee, or where the terminated employee's work is redistributed among employees already performing related tasks. Barnes stated that a person is replaced only when another employee is hired, or reassigned to take on the duties of the terminated employee. Id.

Tinker relies on this Court's decision in Wilkins v. Eaton Corp., 790 F.2d 515, 521 (6th Cir.1986), for the proposition that the promotion of Larry Jordan to full-time status constitutes reassignment sufficient to meet the replacement requirement. In Wilkins, the plaintiff held the title "Captain Pilot" while employed with the defendant. He was discharged at the age of fifty-one, and sued for age discrimination. This Court held that the plaintiff had proven replacement where he showed that shortly after he was fired, a twenty-seven year old co-pilot was promoted to the rank of "Captain Pilot." We determined that though the younger pilot was not a new hire, his promotion constituted a reassignment because it presumably required him to perform duties for which he had not been responsible in his prior position.

Tinker also calls this Court's attention to the decision in EEOC v. Regency Windsor Management, Co., 862 F.Supp. 189 (W.D.Mich.1994). In Regency Windsor, the plaintiff was sixty-two years old when terminated. On the day the plaintiff was discharged, a twenty-three year old employee was promoted from part-time to full-time status. The district court concluded that this promotion was "sufficiently analogous to replacement by a new younger hire to satisfy the fourth element." Id. at 194.

We believe that the district court's analysis in Regency Windsor is a logical extension of this Court's opinion in Wilkins. That analysis is directly applicable to Tinker's case. By promoting Larry Jordan from part-time to full-time status, Sears effectively replaced Tinker by reassigning another employee to assume Tinker's duties. This type of reassignment is analogous to hiring a new employee to cover the terminated employee's duties. Larry Jordan did not assume Tinker's duties in addition to his own part-time duties. Rather, Sears had to fundamentally change the nature of his employment, by promoting him to full-time status, in order to have him assume Tinker's duties in addition to his own. For that reason, we hold that the district court below erred in determining that Tinker had not proven the fourth element of his prima facie case. We find that Tinker has proven all of the elements of his prima facie case, and the district court's decision to grant summary judgment based on failure to do so is therefore reversed.

C. Proof of Pretext

As Tinker has proven his prima facie case, a presumption has been created that Sears unlawfully discriminated against him on the basis of age. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981). Thus, the burden shifts to Sears to offer a legitimate, nondiscriminatory reason for its actions. Id. Sears has met this burden by alleging that Tinker's termination was the result of his violation of company policy on the preparation of work orders. The articulation of this legitimate reason for his firing shifts the burden back to Tinker, who must prove that the reason proffered by Sears is not the real basis for the termination, but is merely a pretext for discrimination. Manzer, 29 F.3d at 1082.

In Manzer, the Sixth Circuit set forth the three methods by which a plaintiff may meet this burden:

To make a submissible case on the credibility of his employer's explanation, the plaintiff is 'required to show by a preponderance of the evidence either 1) that the proffered reasons had no basis in fact; 2) that the proffered reasons did not actually motivate his discharge; or 3) that they were insufficient to motivate discharge.'

Id. at 1084 (quoting McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir.1993)). Tinker has conceded that he cannot utilize the first method because he...