505 F.3d 517 (6th Cir. 2007), 05-2437, Blair v. Henry Filters, Inc.

Docket Nº:05-2437.
Citation:505 F.3d 517
Party Name:Richard D. BLAIR, Plaintiff-Appellant, v. HENRY FILTERS, INC., Defendant-Appellee.
Case Date:October 15, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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505 F.3d 517 (6th Cir. 2007)

Richard D. BLAIR, Plaintiff-Appellant,

v.

HENRY FILTERS, INC., Defendant-Appellee.

No. 05-2437.

United States Court of Appeals, Sixth Circuit.

October 15, 2007

Argued: March 6, 2007.

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 04-70411-Nancy G. Edmunds, District Judge.

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ARGUED:

Edward D. Plato, Johnson, Rosati, LaBarge, Aseltyne & Field, Farmington Hills, Michigan, for Appellant.

Thomas H. Williams, Jaffe, Raitt, Heuer & Weiss, Southfield, Michigan, for Appellee.

ON BRIEF:

Edward D. Plato, Marcelyn A. Stepanski, Johnson, Rosati, LaBarge, Aseltyne & Field, Farmington Hills, Michigan, for Appellant.

Thomas H. Williams, Jaffe, Raitt, Heuer & Weiss, Southfield, Michigan, for Appellee.

Before: BATCHELDER and MOORE, Circuit Judges; MILLS, District Judge.[*]

OPINION

KAREN NELSON MOORE, Circuit Judge.

When a fifty-seven-year-old's direct supervisor taunts him as "the old man on the sales force," removes him from a profitable account because he is "too old," and tells another employee he "needs to set up a younger sales force" before terminating the employee, can the employee's age-discrimination claim survive summary judgment? We believe it can. Accordingly, we REVERSE the district court's judgment for the employer and REMAND this case for further proceedings.

I. FACTS AND PROCEDURE

A. Factual Background1

Richard D.Blair was born in October 1945 and began working at Henry Filters, Inc. ("Henry Filters") as a sales engineer in 1986. At its sole facility in Bowling Green, Ohio, Henry Filters manufactures and markets "industrial liquid filtration systems primarily for the machine cutting industry." Joint Appendix ("J.A.") at 74 (¶ 5). In 1998, Durr Ecoclean, a holding company, purchased all of Henry Filters's stock and became its parent company. Durr Ecoclean is also the parent company of Durr Automation and H.R. Black.

In 2000, John Tsolis became Henry Filters's Vice President of Sales and thus Blair's direct supervisor. Tsolis reported to Mark Jackson, the Vice President of Sales for Durr Ecoclean who was responsible for the sales activities at all three companies under the Durr Ecoclean umbrella. Jackson, in turn, reported to Daniel Zinger, the president and CEO of Durr Ecoclean.2

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Zinger, Jackson, and Tsolis set out to restructure the sales teams of all three companies under the Durr Ecoclean umbrella. In 2001, they decided to consolidate the sales activities of all three companies. As part of this consolidation, management reassigned some employees. On April 4, 2001, Blair met with Tsolis and Brian Mahas, a thirty-three-year-old Henry Filters salesperson, in Tsolis's office. During this meeting, Tsolis said that Mahas would take over the Ford account from Blair, and Blair would take over the GM account from Mahas. Blair was unhappy with this change, as the Ford account had been profitable and he had enjoyed notable success working on it. The GM account, by contrast, had not been productive.

According to Blair, Tsolis said during this meeting that Blair was "too old" to work the Ford account because the Ford buyers were younger and engaged in youthful activities like mountain biking, and that because Mahas was younger and was a mountain biker, he would be a better fit.3 J. A. at 176 (Blair Aff. ¶ 11). Blair further claims that Tsolis threatened him with termination if Blair told anyone the reason for this reassignment.4

Blair also claims that in the years leading up to his separation from Henry Filters, Tsolis repeatedly made derogatory comments regarding Blair's age. For instance, Blair contends that Tsolis regularly referred to him as "the old man" at sales meetings. J. A. at 117 (Blair Dep. at 46);175 (Blair Aff. ¶ 9). Similarly, at a meeting at the GM Purchasing Department, Tsolis once asked others in jest, "do you think the old guy can make it up the stairs?" J. A. at 177 (Blair Aff. ¶ 12).

Tsolis was, by virtually all accounts, a rather unpleasant character. He referred to himself as "The Terminator," a role that he appeared to relish. J. A. at 219 (Jill Ciszewski Aff. ¶ 5). Also, he frequently threatened to fire employees. Although these threats displeased Jackson, he never told employees that Tsolis lacked authority to carry them out.

At some point between 2001 and 2003, Henry Filters began to experience financial hardship and began to reduce its workforce in response. In total, between 2001 and 2003, sixty-seven employees were terminated and twenty-four more were not replaced, shrinking Henry Filters's payroll from 143 employees to fifty-two employees.5 The record reflects neither a defined

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beginning date for, nor a clear plan for the execution of, this reduction-in-force.

In early August 2003, when Blair was on vacation, Tsolis called to tell him that Henry Filters was terminating Blair's employment.6 Blair asked for an explanation, but Tsolis refused to provide one. Henry Filters sent Blair a letter outlining the terms of the separation, which became complete on August 31, 2003. The letter was dated August 1, 2003 and signed by Tsolis. Blair was fifty-seven years old when he lost his job. Around the time Henry Filters terminated Blair, it also terminated Roger Brodeur, a thirty-seven-year-old salesman, and Jill Ciszewski, Jackson's thirty-nine-year-old secretary.

After Blair's departure from Henry Filters, forty-two-year-old Buzz Benschoter took over Blair's accounts, but Henry Filters did not hire anyone to replace Blair immediately. Henry Filters, however, hired a man in his twenties to work in sales within four months of Blair's departure. The record does not indicate whether Henry Filters assigned this salesperson to any of Blair's former accounts.

Blair later learned that Richard Duncum, an employee at the Durr Ecoclean headquarters in Wixom, Michigan, had overheard a conversation between Tsolis and Jackson a few months prior to Blair's termination. At the end of that conversation, Tsolis emerged from Jackson's office and "made comments that he needed to set up a younger sales force ...." J. A. at 194 (Duncum Dep. at 28:16-18). Although Duncum is now confident that the remark referred to Blair, he did not hear Tsolis specifically mention Blair's name.

B. Procedural Background

Blair filed his complaint on February 4, 2004, and filed an Amended Complaint (the operative complaint in this case) on August 27, 2004. Blair seeks recovery on five claims: age discrimination under Michigan's Elliott-Larsen Civil Rights Act ("ELCRA") (Count 1); age discrimination under the Age Discrimination in Employment Act (" ADEA") (Count 2); defamation (Count 3); invasion of privacy (Count 4); and declaratory judgment (Count 5). Each of the age-discrimination claims asserts discrimination based on two separate theories: discriminatory discharge and harassment.

On July 6, 2005, Henry Filters moved for summary judgment. On September 26, 2005, the district court granted this motion and issued a separate judgment. The district court noted that Blair had voluntarily dismissed his claims for invasion of privacy and declaratory relief. Addressing his age-discrimination claims, the district court concluded that Tsolis did not have authority to terminate Blair and accordingly did not terminate him. On this basis, the district court concluded that Tsolis's statements were not evidence that the decision to terminate Blair was motivated by discrimination. Accordingly, it held that Blair had failed to set forth any direct or circumstantial evidence that he was fired because of his age, rather than for legitimate business reasons arising out of the reduction-in-force. The district court determined that Blair had failed to present any evidence that Tsolis's age-based communications created a hostile work environment. The district court also held that Blair's defamation claim was meritless.

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Blair timely filed his notice of appeal. In his appellate brief, he challenges only the district court's conclusions regarding his age-discrimination claims, thereby abandoning his defamation claim.

II. JURISDICTION

The district court had federal-question jurisdiction over Blair's ADEA claim, 28 U.S.C. § 1331, and supplemental jurisdiction over his state-law claims, id. § 1367(a). We have appellate jurisdiction over Blair's appeal from the district court's final judgment. Id. § 1291.

III. ANALYSIS

A. Standard of Review

We review de novo a district court's order granting summary judgment, DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004), and will affirm a grant of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law," FED.R.CIV.P. 56(c). In reviewing the district court's decision to grant summary judgment, we must view all evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Discriminatory Discharge

Under the ADEA, it is "unlawful for an employer... [to] discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Similarly, Michigan's ELCRA prohibits "discriminat[ing] against an individual with respect to employment, compensation, or a...

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