Pelcha v. MW Bancorp, Inc., 021921 FED6, 20-3511

Docket Nº:20-3511
Opinion Judge:MCKEAGUE, CIRCUIT JUDGE
Party Name:MELANIE PELCHA, Plaintiff-Appellant, v. MW BANCORP, INC.; WATCH HILL BANK, Defendants-Appellees.
Attorney:Donald B. Hordes, RITTER & RANDOLPH, LLC, Cincinnati, Ohio, Paul Plotsker, THE PLOTSKER LAW FIRM, INC., Cincinnati, Ohio, Morris E. Fischer, MORRIS E. FISCHER, LLC, Silver Spring, Maryland, for Appellant. Robin D. Miller, ULMER & BERNE LLP, Cincinnati, Ohio, for Appellees.
Judge Panel:Before: SUHRHEINRICH, McKEAGUE, and READLER, Circuit Judges.
Case Date:February 19, 2021
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

MELANIE PELCHA, Plaintiff-Appellant,

v.

MW BANCORP, INC.; WATCH HILL BANK, Defendants-Appellees.

No. 20-3511

United States Court of Appeals, Sixth Circuit

February 19, 2021

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:17-cv-00497-Douglas Russell Cole, District Judge.

ON BRIEF:

Donald B. Hordes, RITTER & RANDOLPH, LLC, Cincinnati, Ohio, Paul Plotsker, THE PLOTSKER LAW FIRM, INC., Cincinnati, Ohio, Morris E. Fischer, MORRIS E. FISCHER, LLC, Silver Spring, Maryland, for Appellant.

Robin D. Miller, ULMER & BERNE LLP, Cincinnati, Ohio, for Appellees.

Before: SUHRHEINRICH, McKEAGUE, and READLER, Circuit Judges.

OPINION

MCKEAGUE, CIRCUIT JUDGE

Melanie Pelcha was an employee of Watch Hill Bank ("Watch Hill") and its holding company MW Bancorp Inc.1 until she was terminated for refusing to turn in a time-off request form. Pelcha alleges that she was terminated on the basis of her age in violation of the Age Discrimination in Employment Act ("ADEA"). The district court dismissed her claims on summary judgment. We see no error in the district court's decision and AFFIRM.

I

Melanie Pelcha began working as a bank teller for Watch Hill in August 2005. A new supervisor, Brenda Sonderman, began overseeing Pelcha in May 2016 and started to implement policy changes for employees. In particular, Sonderman required her direct reports to submit written requests for any time out of the office instead of sending an email as had been done in the past. These written requests had to be submitted by the middle of the month before the month of the requested time off. In early July 2016, Pelcha planned to take a few hours off from work but decided not to fill out the written request form. Instead, she orally obtained permission from Sonderman. Pelcha "bridled at the notion of having to fill out a written request," reviewed the employee handbook, and told Sonderman that she was "not filling [the request out] because [she didn't] have to." Despite her complaints, Pelcha completed the form and placed it in Sonderman's office on July 7, 2016, the day before her time off.

The next day, on July 8, 2016, Sonderman spoke with Greg Niesen, then-President and CEO of Watch Hill, at a regularly scheduled senior management meeting. Sonderman told Niesen about Pelcha's failure to turn in the form as well as other workplace issues, such as her negative attitude and failure to timely complete tasks. Niesen stated that he had zero tolerance for insubordination and told everyone present he intended to fire Pelcha. Additionally, Niesen asked Sonderman to memorialize the chain of events in a memo. Shortly thereafter, Niesen terminated Pelcha's employment on July 12, 2016, and informed her that it was because of her insubordination.

Following her termination, Pelcha sued under the ADEA for age discrimination. Pelcha was 47 years old at the time of her termination. After discovery, Watch Hill moved for summary judgment arguing that Pelcha could not establish a prima facie case of age discrimination under the ADEA. The district court granted summary judgment on the ADEA claim on April 17, 2020. This appeal followed.

II

A. Legal Standards

We review a district court's grant of summary judgment de novo in determining whether there is a genuine dispute of material fact. Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 887 (6th Cir. 2020). The ADEA prohibits employers from terminating employees "because of such individual's age." 29 U.S.C. § 623(a)(1). Meeting this "because of" requirement is no simple task. Plaintiffs must "prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the 'but-for' cause of the challenged employer decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). This requires showing that age was the determinative reason they were terminated; that is, they must show "that age was the 'reason' that the employer decided to act." Scheick v. Tecumseh Pub. Schs., 766 F.3d 523, 529 (6th Cir. 2014) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 350-51 (2013)). Under Gross, satisfying but-for cause requires plaintiffs to show that age "had a determinative influence on the outcome" of the employer's decision-making process. Gross, 557 U.S. at 176 (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). So, to defeat summary judgment, Pelcha must show a genuine dispute of material fact that, if resolved in her favor, could persuade a reasonable juror that age was the but-for cause of her termination.

Pelcha contends that this framework has been disrupted by a recent Supreme Court decision interpreting Title VII. In Bostock v. Clayton County, the Supreme Court interpreted Title VII's "because of" language and concluded that it included terminations with multiple motivations, and that plaintiffs need not prove that sex was the only cause of the termination. See 140 S.Ct. 1731, 1739 (2020) (stating that "[s]o long as the plaintiff's sex was one but-for cause of that decision, that is enough to trigger the law"). Pelcha claims that because of similar language in the ADEA and Title VII, the reasoning in Bostock should be extended to change the meaning of "because of" under the ADEA.

Two reasons compel us to disagree. First, the Court in Bostock was clear on the narrow reach of its decision and how it was limited only to Title VII itself. The Court noted that "none of" the many laws that might be touched by their decision were before them and that they "do not prejudge any such question today." Id. at 1753. Thus, the rule in Bostock extends no further than Title VII and does not stretch to the ADEA. Second, even if the Court had not expressly limited their holding to Title VII, it would not change our analysis. "[I]f a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions," we "should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions." EMW Women's Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 436 (6th Cir. 2020) (quoting Agostini v. Felton, 521 U.S. 203, 237 (1997)). As discussed above, Gross provides the meaning of "because of" in the ADEA, and that decision controls our analysis here.

Plaintiffs may show a violation of the ADEA through either direct or circumstantial evidence. See Scheick, 766 F.3d at 529. "Direct evidence is evidence that proves the existence of a fact without requiring any inferences" to be drawn. Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). In other words, direct evidence is "smoking gun" evidence that "explains itself." Gohl v. Livonia Pub. Schs. Sch. Dist., 836 F.3d 672, 683 (6th Cir. 2016) (quotation omitted). Conversely, circumstantial evidence requires the factfinder to draw inferences from the evidence presented to conclude that the plaintiff was terminated based on age. See Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997).

If a plaintiff cannot show age discrimination with direct evidence, plaintiffs may attempt to show age discrimination with circumstantial evidence, which we evaluate using the three-step burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973). This analysis "first requires the plaintiff to establish a prima facie case of discrimination." Miles, 946 F.3d at 887. If the plaintiff succeeds, the burden of production shifts to the employer to identify a legitimate, nondiscriminatory reason for the termination. Id. Once the employer identifies a reason, the burden shifts back to the plaintiff to prove the employer's reason is a mere pretext. Id. If the plaintiff prevails, the factfinder may reasonably infer discrimination. Id.

Regardless of the method, though, the ultimate inquiry remains the same: "the evidence must be sufficiently probative to allow a factfinder to believe that the employer intentionally discriminated against the plaintiff because of age." Barnes v. GenCorp, Inc., 896 F.2d 1457, 1466 (6th Cir. 1990). We begin with direct evidence.

B. Direct Evidence

Pelcha's direct evidence argument focuses on three sets of statements: (1) comments by Niesen that another employee in her eighties had a "limited shelf life" and had reached her "expiration date;"2 (2) Niesen's statement that he intended to reduce that employee's hours until she quit; and (3) Niesen's statement that he would like to "hire younger tellers."

In determining the materiality of allegedly discriminatory statements, we consider four factors, none of which are dispositive: "(1) whether the statements were made by a decision-maker . . .; (2) whether the statements were related to the decision-making process; (3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4) whether they were made proximate in time to the act of termination." Diebel v. L & H Res., LLC, 492 Fed.Appx. 523, 527 (6th Cir. 2012) (quoting Peters v. Lincoln Elec. Co., 285 F.3d 456, 478 (6th Cir. 2002)). This is a high bar. For example, we have rejected the idea that telling someone to "retire and make everybody happy" was direct evidence of age discrimination, as retirement does not necessarily refer to someone's age. See Scott v. Potter, 182 Fed.Appx. 521, 526 (6th Cir. 2006).

Niesen served as the President and CEO of Watch Hill when he made these comments and was the individual who terminated Pelcha. But all the other factors suggest these statements do not create a genuine dispute of material fact. None of the statements were related to Pelcha's termination. In fact, they were not made in relation to any...

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