663 F.3d 806 (6th Cir. 2011), 10-1639, Provenzano v. LCI Holdings, Inc.

Docket Nº:10-1639.
Citation:663 F.3d 806
Opinion Judge:JANE B. STRANCH, Circuit Judge.
Party Name:Regina PROVENZANO, Plaintiff-Appellant, v. LCI HOLDINGS, INC., Defendant-Appellee.
Attorney:Russell C. Babcock, the Mastromarco Firm, Saginaw, Michigan, for Appellant. Marlo J. Roebuck, Jackson Lewis, LLP, Southfield, Michigan, for Appellee. Russell C. Babcock, Victor J. Mastromarco, Jr., the Mastromarco Firm, Saginaw, Michigan, for Appellant. Marlo J. Roebuck, Maurice G. Jenkins, Jacks...
Judge Panel:Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.
Case Date:December 15, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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663 F.3d 806 (6th Cir. 2011)

Regina PROVENZANO, Plaintiff-Appellant,

v.

LCI HOLDINGS, INC., Defendant-Appellee.

No. 10-1639.

United States Court of Appeals, Sixth Circuit.

December 15, 2011

Argued: Oct. 4, 2011.

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ARGUED:

Russell C. Babcock, the Mastromarco Firm, Saginaw, Michigan, for Appellant.

Marlo J. Roebuck, Jackson Lewis, LLP, Southfield, Michigan, for Appellee.

ON BRIEF:

Russell C. Babcock, Victor J. Mastromarco, Jr., the Mastromarco Firm, Saginaw, Michigan, for Appellant.

Marlo J. Roebuck, Maurice G. Jenkins, Jackson Lewis, LLP, Southfield, Michigan, for Appellee.

Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

Plaintiff Regina Provenzano seeks reversal of the district court's grant of summary judgment in favor of Defendant LCI Holdings, Inc. Provenzano contends LCI discriminated against her based on her age in violation of the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621 et seq., and the Michigan Elliott-Larsen Civil Rights Act (" ELCRA" ), Mich. Comp. Laws § 37.2101 et seq. Although the district court misapplied the prima facie analysis for a failure to promote discrimination claim, the district court's grant

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of summary judgment is AFFIRMED because Provenzano has not proven pretext.

I. BACKGROUND

Regina Provenzano was born on September 24, 1958 and has a high school diploma and an associate's degree in retail management. In 1997, at age thirty-nine, Provenzano started working for LCI as a sales associate in its Liz Claiborne Outlet store in Birch Run, Michigan, in LCI's Midwest District. Approximately two years later, Provenzano was promoted to a full-time supervisor position by then-assistant manager Erica Hall. Provenzano also occasionally traveled to assist other stores that were just opening.

On April 13, 2008, Judy Babcock (age thirty-three) was promoted to assistant manager at the Birch Run store. The store manager, Connie Romanetto (age sixty-one), recommended Babcock for the promotion and then-district manager Erica Hall approved the recommendation. The open position was not publicized to any employees and Provenzano was not asked to, nor did she, apply for the position. Provenzano alleges she was more qualified than Babcock for the promotion because she had worked at the store longer and had a high school diploma and an associate's degree, whereas Babcock had neither. Hall testified that Babcock was a superior candidate because she met more of the performance qualifications on the job description than did Provenzano.

Throughout 2007 and 2008, due to economic conditions, LCI underwent company-wide restructuring, directed at reducing costs by aligning each store's projected sales volume with a template-based mix of non-supervisory and supervisory positions. The plan was executed in two phases: one in February 2007 and one in June 2008. In the Birch Run store in 2007, two full-time associates in their twenties were reduced to part-time associates; Provenzano was not impacted during this phase. In June 2008, LCI eliminated the full-time supervisor position in the Midwest District and reduced many employees holding such position to part-time supervisors. Five of those eleven full-time supervisors were under the age of forty. While the other supervisors transitioned in June, Hall permitted Provenzano to postpone her reduction to part-time supervisor until July in order to utilize the medical benefits for an additional month.

Hall testified that in late July 2008 she told store manager Romanetto that she could improve her performance and remain store manager or step down from the position. When Romanetto elected to assume an assistant manager position, twenty-eight-year-old Summer Kennard transferred into the store manager position, leaving the Birch Run store with six management-level employees. Hall testified that because LCI's restructuring mandate permitted only four, in August 2008 she offered Sanburn and Provenzano the option to step down as part-time supervisors and accept positions as part-time sales associates or leave the company. Both chose to step down. Provenzano testified that her reduced hours and pay compelled her to resign her position with LCI as of November 10, 2008.

On November 26, 2008, Provenzano filed a complaint alleging age discrimination under the ELCRA against LCI in Saginaw County Circuit Court. On January 2, 2009, LCI removed the case to federal court, and Provenzano amended her complaint to include a cause of action under the ADEA. After discovery, LCI moved for summary judgment.1 On April 12,

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2010, the district court granted LCI's motion. Specifically, the court applied the McDonnell Douglas burden-shifting framework to Provenzano's claims and found she had failed to satisfy the fourth prong of her prima facie case, and had failed to prove pretext in the face of LCI's nondiscriminatory reasons for the promotional decision. Provenzano appeals both determinations.

II. DISCUSSION

A. Standard of Review

This Court reviews a district court's grant of summary judgment de novo. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.2009). Summary judgment is appropriate if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (2010). The moving party has the burden of proving the absence of a genuine issue of material fact and its entitlement to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All facts, including inferences, are viewed 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). The central issue is " 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." Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (en banc) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). LCI moved for summary judgment, therefore this Court must view the evidence in the light most favorable to Provenzano and draw all reasonable inferences in her favor in determining whether there exists a dispute of material fact for submittal to a jury.

B. ADEA Claim

The ADEA prohibits an employer from failing or refusing to hire, discharging, or discriminating " 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). A plaintiff may establish a violation of the ADEA by either direct or circumstantial evidence. Geiger, 579 F.3d at 620. " Direct evidence of discrimination is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Wexler, 317 F.3d at 570 (citation and internal quotation marks omitted). " Circumstantial evidence, on the other hand, is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred." Id. Regardless of the type of evidence submitted, the burden of persuasion remains on ADEA plaintiffs to demonstrate " that age was the ‘ but-for’ cause of their employer's adverse action." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351 n. 4, 174 L.Ed.2d 119 (2009).

Provenzano relied entirely on circumstantial evidence. The three-step framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and modified by

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Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), guides the analysis of age discrimination claims based upon circumstantial evidence. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir.1998). In the first step, the employee carries the initial burden of establishing a prima facie case of age discrimination; if the employee meets this burden, the second step requires the employer to respond by articulating some legitimate, nondiscriminatory reason for the adverse employment action at issue. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Third, assuming such a response is made, the employee then bears the burden of rebutting this proffered reason by proving that it was pretext designed to mask discrimination. Id. at 804, 93 S.Ct. 1817.

This " three-part inquiry provides ‘ an allocation of the burden of production and an order for the presentation of proof in [employment discrimination] cases.’ " Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 659 (6th Cir.2000) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). At all times, the ultimate burden of persuasion remains on the plaintiff to demonstrate that age was the " but-for" cause of their employer's adverse action. See Burdine, 450 U.S. at 253, 101 S.Ct. 1089. At no time does the defendant carry the burden of persuasion. In contrast, the burden of production shifts between litigants as the analysis advances.

This Court has explained the relevant burdens at the summary judgment stage:

" On a motion for summary judgment, a district court considers whether there is sufficient evidence to create a genuine dispute at each stage of the McDonnell Douglas inquiry." Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir.2000). Thus, the plaintiff must first submit evidence from which a reasonable jury could conclude that a prima facie case of discrimination has been established. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.1996). The defendant must...

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