Mickey v. Zeidler Tool and Die Co.

• Decision Date: 31 January 2008
• Docket Number: No. 06-1960.,06-1960.
• Citation: 516 F.3d 516
• Parties: Charles D. MICKEY, Plaintiff-Appellant, v. ZEIDLER TOOL AND DIE COMPANY; Harold DeForge, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

516 F.3d 516

Charles D. MICKEY, Plaintiff-Appellant, v. ZEIDLER TOOL AND DIE COMPANY; Harold DeForge, Defendants-Appellees.

No. 06-1960.

United States Court of Appeals, Sixth Circuit.

Argued: October 30, 2007.

Decided and Filed: January 31, 2008.

ARGUED:

Teresa J. Gorman, Teresa J. Gorman PLLC, Bingham Farms, Michigan, for Appellant. Andrew T. Baran, Cox, Hodgman & Giarmarco, Troy, Michigan, for Appellees.

ON BRIEF:

Teresa J. Gorman, Teresa J. Gorman PLLC, Bingham Farms, Michigan, for Appellant. Andrew T. Baran, Cox, Hodgman & Giarmarco, Troy, Michigan, for Appellees.

Before: BATCHELDER, MOORE, and COLE, Circuit Judges.

COLE, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER, J. (pp. 528-30), delivered a separate concurring opinion.

OPINION

R. GUY COLE, JR., Circuit Judge.

Plaintiff-Appellant Charles D. Mickey appeals the district court's grant of summary judgment on his claims brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and Michigan's Elliott-Larsen Civil Rights Act ("ELCRA"), MICH. COMP. LAWS §§ 3 7.2 101 et seq. Mickey's lawsuit advances two claims: (1) that Zeidler Tool & Die Company ("Zeidler"), his employer, and Harold DeForge, the sole owner of Zeidler, discriminated against him on the basis of age in reducing his salary and benefits, and in terminating him; and (2) that Zeidler terminated him in retaliation for filing a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). The district court held that Mickey failed to establish a prima facie case of age discrimination, finding that Mickey had not shown that he was replaced by a significantly younger person. Although Zeidler terminated Mickey immediately upon receiving notice of his EEOC complaint, the district court also concluded that Mickey failed to establish a prima facie case of retaliation because he was unable to show a causal connection between his protected activity and his termination. Finally, the district court found that, even if Mickey had established a prima facie claim of retaliation, Zeidler offered legitimate, non-discriminatory business reasons for terminating Mickey and that Mickey failed to demonstrate that those reasons were a pretext for discrimination.

For the reasons discussed below, we AFFIRM the district court's grant of summary judgment to Zeidler on Mickey's age discrimination claims; REVERSE the district court's grant of summary judgment to Zeidler on Mickey's retaliation claims; and REMAND the case for further proceedings consistent with this opinion.

I.

Mickey is a sixty-seven year old man, born November 28, 1940, who worked for Zeidler for thirty-three years, from 1971 until his termination on October 19, 2004. Shortly after Mickey began working as a die-maker at Zeidler, Harold DeForge purchased the company, and he remains its sole owner. Around 1972, DeForge promoted Mickey to the position of dieleader, and in 1974 promoted him again to the position of shop supervisor. As a shop supervisor, Mickey supervised some twenty to forty employees.

In 1979, Mickey hired Patrick Rhein, a then-eighteen year old recent high school graduate, born May 19, 1961, as an apprentice at the wage of $4.50 per hour. Mickey trained Rhein, who completed his apprenticeship in 1983 and became a die maker. In the late 1980s, DeForge opened Limberlost Farms, a bed-and-breakfast business in northern Michigan catering to deer hunters. DeForge operated Limberlost during the months of September and October. DeForge began spending four days per week at Limberlost Farms and the remaining three days, Tuesday through Thursday, at Zeidler.

Due to his decreased involvement with Zeidler, in 1992 DeForge created the position of General Manager, moving Mickey to this position, and promoted Rhein to shop supervisor to replace Mickey. By 1995, Mickey was earning a yearly salary of $90,000 and Rhein was earning $70,000. In late 1997, DeForge lowered Mickey's salary to $75,000 per year, explaining that Zeidler's financial condition required cost-cutting, but DeForge did not mention any dissatisfaction with Mickey's performance or reduction in his responsibilities. That same day, DeForge gave Rhein a $20,000 raise, increasing his salary from $80,000 to $100,000. In January 2000, DeForge again raised Rhein's salary to $125,000; Mickey's salary remained at $75,000.

In early 2002, DeForge, citing Zeidler's financial condition, reduced Mickey's pay from $75,000 to $70,000, and he reduced Rhein's salary from $125,000 to $100,000. Mickey claims that in 2002 and 2003, De-Forge began inquiring into Mickey's plans for retirement. After their discussion in late 2003, Mickey presented a list of reasons to DeForge explaining his decision not to retire. At that point, DeForge significantly altered Mickey's terms of employment: effective January 1, 2004, he reassigned Mickey from an exempt salary status (at $70,000 per year) to a nonexempt $25.00 per hour status ($52,000 per year), rescinded all vacation and holiday pay benefits, and limited Mickey to a forty-hour workweek. DeForge claims that he told Mickey he was "part time," but Mickey does not recall any such statements. DeForge stated that he changed Mickey's status because the company was not doing well; at this same time in January 2004, DeForge raised Rhein's salary to $110,000 from $100,000.

Over the next several months in 2004, Mickey's pay stubs document that he continued regularly working a full forty-hour workweek. Mickey testified that his wife had a heart attack early in 2004 and underwent emergency surgery. After she returned to health, he decided to file a charge of discrimination with the EEOC. EEOC records show that Mickey filed his charge on October 7, 2004, and that the EEOC sent a notice of Mickey's charge to Zeidler a week later on, October 14, 2004. DeForge spent the days of October 15 to 18, 2004, at Limberlost Farms.

DeForge terminated Mickey's employment on the morning of Tuesday, October 19, 2004. Mickey testified that when he arrived for work at 7:30 a.m. that morning, DeForge followed him into his office, told him that he was laid off, and that he should pack up his belongings. When asked at his deposition whether he had seen Mickey's EEOC charge at that time, DeForge first responded that "I don't remember" before admitting that "I did see it." (Joint Appendix ("JA") 259.) De-Forge claimed that the EEOC charge was not a factor in his decision to terminate Mickey, and that he "had made the decision over that [prior] weekend" while in northern Michigan. (JA 254.-55.) The very day that he terminated Mickey, De-Forge had his attorneys reply to Mickey's charges in a letter to the EEOC, which stated the company was not interested in mediating the case.

DeForge offered several reasons for his decision to terminate Mickey. Specifically, he stated that the condition of the business, Mickey's performance, and the lack of available work for Mickey motivated his decision. The financial documents De-Forge claimed to have reviewed that weekend showed that Zeidler made a profit of nearly 8330,000 over the first nine months of 2004, compared with a loss of approximately $410,000 in the same period of 2003. DeForge also admitted that Zeidler was running help-wanted advertisements for various positions up to and after October 2004. The advertised positions included jobs and duties that Mickey had performed earlier in his career, such as die maker or die leader, but DeForge testified that during Mickey's tenure as a supervisor he at some point lost these various skills, although DeForge could not pinpoint when this occurred.

On December 13, 2004, Mickey filed a charge of retaliation with the EEOC and filed his complaint in the Eastern District of Michigan on January 31, 2005, within ninety days of receiving a right-to-sue letter. On June 12, 2006, the district court entered an opinion and order granting Zeidler's motion for summary judgment, and on July 10, 2006, Mickey filed a notice of appeal.

II.

This Court reviews a district court's grant of summary judgment de novo. Spencer v. Bouchard, 449 F.3d 721, 727 (6th Cir.2006). Summary judgment is appropriate where the evidence shows "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In deciding an appeal of a grant of summary judgment, we view the evidence and draw all reasonable inferences in favor of [Mickey], the non-moving party." Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 560 (6th Cir.2004) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

A.

The ADEA provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Absent direct evidence of discrimination; a plaintiff claiming that he was unlawfully terminated in violation of the ADEA must establish a prima facie case of age discrimination by showing: (1) he was at least 40 years old at the time of the alleged discrimination; (2) he was subjected to an adverse employment action; (3) he was otherwise qualified for the position; and (4) he was replaced by a younger worker. Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 317 (6th Cir. 2007).¹ If Mickey meets his prima facie burden, the burden then shifts to Zeidler to articulate a legitimate, nondiscriminatory reason for the termination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If Zeidler articulates such a reason, the burden shifts back to Mickey to show that this reason is pretextual....