Howley v. Federal Express Corporation, 031517 FED6, 16-1559

Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
Judge Panel:BEFORE: MERRITT, CLAY, and DONALD, Circuit Judges.
Opinion Judge:CLAY, Circuit Judge.
Party Name:GERARD HOWLEY, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee
Case Date:March 15, 2017
Docket Nº:16-1559

GERARD HOWLEY, Plaintiff-Appellant,



No. 16-1559

United States Court of Appeals, Sixth Circuit

March 15, 2017



          BEFORE: MERRITT, CLAY, and DONALD, Circuit Judges.

          CLAY, Circuit Judge.

         Plaintiff Gerard Howley sued Defendant Federal Express Corporation ("FedEx") pursuant to Michigan's Elliot-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101, et seq., alleging that Howley was the victim of unlawful age discrimination. The district court granted summary judgment on behalf of FedEx and Howley now appeals. For the reasons set forth below, we REVERSE the district court's decision and remand for proceedings consistent with this opinion.


         I. Factual background

         The Federal Express Corporation ("FedEx") is an express transportation and package delivery company based in Memphis, Tennessee. It maintains an Acceptable Conduct Policy, which is outlined in an employee handbook. The policy states, in pertinent part, that the receipt of three letters of deficiency within a twelve month period may result in termination. Additionally, the handbook outlines policies and procedures, violations of which serve as potential grounds for disciplinary actions-including "leadership failure" and the use of abusive language.

         Howley was employed at FedEx for twenty-one years, beginning in 1992 until his termination on November 13, 2013. At the time of his termination, FedEx employed Howley as a Dispatch Manager at its Great Lakes District Office in Novi, Michigan. Howley's responsibilities included supervising FedEx's dispatchers and performing various administrative and managerial tasks. From 2010 until his termination, Senior Manager of Dispatch Operations, Jaime Haboush was Howley's supervisor. Following Howley's termination, Haboush selected James Person, age 57, to replace Howley.

         FedEx terminated Howley's employment after he received three disciplinary letters in a twelve month period. Prior to receipt of the disciplinary letters, Haboush counseled Howley on several occasions relating to his conduct and performance. In March 2013, Haboush formally disciplined Howley with a warning letter-his first offense. The discipline arose because an employee, Debra Wagner, complained to Haboush that Howley used inappropriate language towards her, including telling her that she was "pissing him off." Haboush decided to discipline Howley for his abusive language towards a subordinate because it contravened FedEx's Acceptable Conduct Policy.

         Howley received a second disciplinary warning in October 2013 for his failure to respond to a subordinate employee's e-mail regarding her request for time off pursuant to the Family Medical Leave Act ("FMLA"), 29 U.S.C.A. § 2601, et seq. FedEx employee Karen Robert sent Howley an e-mail informing him that she needed to take time off in order to accompany her father to an FMLA-approved medical appointment. When Howley failed to respond, Robert independently sought cover for her shift from a co-worker. Other dispatchers complained to Haboush about the coverage. Upon examining the matter, Haboush decided to issue Howley a performance reminder to reaffirm his responsibilities as a supervisor.

         The third disciplinary letter was issued to Howley on November 13, 2013 for leadership failure, and resulted in his termination. On November 1, 2013, one of Howley's subordinates, Jo Thomas, was speaking to an upset customer who demanded to see a manager about a missing package. When Thomas could not reach the local manager, she asked Howley to speak with the customer. Howley refused. Thomas complained to Haboush, who investigated the matter and made the decision to issue a warning letter for leadership failure. Because this was Howley's third formal letter of deficiency within a year, Haboush terminated Howley's employment in accordance with the company's Acceptable Conduct Policy. Howley appealed his termination, and it was independently reviewed by various senior personnel in the company, all of whom upheld Haboush's decision.

         II. Procedural History

         Howley filed a complaint in the United States District Court for the Eastern District of Michigan under Michigan's Elliot-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101, et seq., alleging unlawful age discrimination. The district court exercised jurisdiction on the basis of diversity. At the close of discovery, FedEx moved for summary judgment. Howley then requested additional time to depose witnesses, which the district court granted, and allowed both parties to file supplemental briefs. On December 10, 2015, the district court heard oral arguments on both parties' summary judgment motions, and on March 29, 2016, issued its opinion granting FedEx's motion. Howley filed a timely notice of appeal.


         I. Standard of Review

         This Court reviews de novo a district court's decision to grant a motion for summary judgment. Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 535-36 (6th Cir. 2014). Summary judgment is appropriate when the moving party can "show[ ] 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). This Court views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is whether the evidence presents a material factual dispute sufficient to require submission of a plaintiff's claims to a jury or whether the evidence is so lacking in plaintiff's favor as to entitle a defendant to prevail as a matter of law. Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 648 (6th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)).

         II. Analysis

         Under the Elliot-Larson Civil Rights Act, an employer shall not: Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin,...

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