Rosenthal v. Nat'l Beverage Corp.

• Decision Date: 10 August 2016
• Docket Number: Civil Action No. 14-CV-12384
• Citation: 202 F.Supp.3d 700
• Parties: Hugh M. ROSENTHAL, Plaintiff, v. NATIONAL BEVERAGE CORP., et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

202 F.Supp.3d 700

Hugh M. ROSENTHAL, Plaintiff,

v.NATIONAL BEVERAGE CORP., et al., Defendants.

Civil Action No. 14-CV-12384

United States District Court, E.D. Michigan, Southern Division.

Signed August 10, 2016

Joseph A. Golden, Syeda F. Davidson, Burgess Sharp & Golden, PLLC, Clinton Township, MI, for Plaintiff.

Claudia D. Orr, Plunkett Cooney, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Dkt. 54) AND DENYING, AS MOOT, PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (Dkt. 55)

MARK A. GOLDSMITH, United States District Judge

Plaintiff Hugh Matthew Rosenthal first began providing marketing services to Faygo Beverages, Inc. ("Faygo"), a subsidiary of National Beverage Corporation ("NBC"), in 1992. He did so continuously, although on a part-time basis in later years, until Faygo terminated its relationship with him in July 2012. Following his termination, Plaintiff filed a complaint in this Court alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq. , and Michigan's Elliot-Larsen Civil Rights Act ("ELCRA"), Mich. Comp. Laws §§ 37.2201, et seq.

Upon completion of discovery, the parties filed cross-motions for summary judgment—Defendants seeking judgment on all claims, and Plaintiff seeking a ruling that he was an employee and not an independent contractor. While the parties' briefs raise several issues, the Court concludes that the answers to all those issues are irrelevant for disposition of the case, except for the following: Whether Defendants have offered legitimate and non-discriminatory reasons for terminating Plaintiff's services, and whether Plaintiff has demonstrated that those reasons were mere pretext. The Court concludes that Plaintiff has failed to shoulder his ultimate burden to prove a genuine issue of material fact that his age was either a "but-for" cause or a motivating factor in the adverse decision. Accordingly, the Court grants Defendants' motion and denies Plaintiff's motion, as moot.

I. BACKGROUND

In 1992, Faygo was using an outside vendor for its marketing services; Plaintiff was employed by that vendor and managed Faygo's account. Defs. Mot. at 2 (Dkt. 54); Pl. Resp. at 1 (Dkt. 58). Faygo then terminated its contract with the vendor, in favor of using just Plaintiff's services. Defs. Mot. at 2; Pl. Resp. at 1. To that end, Plaintiff formed a company called "Rosenthal & Company Advertising" ("RCA"), which then entered into an agreement with Faygo under which RCA would provide Faygo with certain advertising and marketing services. Defs. Mot. at 2-3; Pl. Resp. at 1, 6. See also Agreement, Ex. B to Defs. Mot. (Dkt. 54-3). Plaintiff was not paid directly by Faygo; rather, Faygo paid RCA twice a month, and RCA in turn paid Plaintiff a salary. Pl. Resp. at 6; Defs. Reply at 1 (Dkt. 61).

In January 2008, Plaintiff approached Al Chittaro, Executive Vice-President of Faygo, about reducing his work schedule from five to three days a week. Defs. Mot. at 3; Pl. Resp. at 1. Chittaro agreed, and Faygo began paying RCA a reduced monthly amount. Defs. Mot. at 3; Pl. Resp. at 1.

In July 2011, Chittaro worked with NBC's Human Resources Department to create a job description for a position entitled "Brand Manager," which was publicly posted in November 2011. Defs. Mot. at 10; Pl. Resp. at 11; Defs. Reply at 6. Plaintiff learned of the posting around that same time. Pl. Resp. at 11. The parties dispute the nature of the posting and the position. Defendants assert that it was an entirely new, internal position. Defs. Mot. at 9, 10; Defs. Reply at 6. Plaintiff argues that he was being replaced. Pl. Resp. at 11. Regardless, less than a year later, on July 24, 2012, Chittaro terminated Plaintiff's services. Defs. Mot. at 10; Pl. Resp. at 12. Plaintiff was 68 years old at the time. Pl. Resp. at 12. Josh Bartlett, 37 years old, was ultimately hired for the position of Brand Manager, and remained in that position for less than a year before he was fired. Defs. Mot. at 10; Pl. Resp. at 13; Defs. Reply at 7. In May 2013, Plaintiff filed a charge of unlawful age discrimination with the Equal Employment Opportunity Commission. Defs. Mot. at 11; Pl. Resp. at 5. This suit followed.

II. STANDARD OF DECISION

Pursuant to Rule 56, a court "shall grant summary judgment if the movant shows 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). When evaluating a summary judgment motion,

credibility judgments and weighing of the evidence are prohibited. Rather, the evidence should be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the facts and any inferences that can be drawn from those facts must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Biegas v. Quickway Carriers, Inc. , 573 F.3d 365, 374 (6th Cir.2009) (brackets omitted).

When a defendant moves for summary judgment, it "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "To withstand summary judgment, the nonmoving party must present sufficient evidence to create a genuine issue of material fact." Humenny v. Genex Corp. , 390 F.3d 901, 904 (6th Cir.2004). The nonmoving party "may not ‘rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact’ but must make an affirmative showing with proper evidence in order to defeat the motion." Alexander v. CareSource , 576 F.3d 551, 558 (6th Cir.2009) (quoting Street v. J.C. Bradford & Co. , 886 F.2d 1472, 1479 (6th Cir.1989) ). A mere scintilla of evidence is insufficient; rather, "there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson , 477 U.S. at 252, 106 S.Ct. 2505.

III. ANALYSIS

Plaintiff brings his claims of age discrimination pursuant to the ADEA and Michigan's ELCRA. The manner of adjudication is similar under both statutes: unlawful discrimination may be shown by way of direct or circumstantial evidence, the latter of which is typically analyzed under the familiar McDonnell Douglas burden-shifting framework. Tilley v. Kalamazoo Cnty. Road Comm'n , 777 F.3d 303, 307–308 (6th Cir.2015). Plaintiff does not purport to offer direct evidence of age discrimination, but, rather, presents his case using the McDonnell Douglas scheme.

Under McDonnell Douglas , a plaintiff must first establish a prima facie case of age discrimination by demonstrating: "1) that he was a member of a protected class; 2) that he was discharged; 3) that he was qualified for the position held; and 4) that he was replaced by someone outside of the protected class." Geiger v. Tower Auto. , 579 F.3d 614, 622 (6th Cir.2009). Once he does this, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. See Provenzano v. LCI Holdings, Inc. , 663 F.3d 806, 814 (6th Cir.2011). If the employer provides one, the presumption of discrimination generated by the plaintiff's prima facie case falls away, and the plaintiff must demonstrate that the given reason was mere pretext for discrimination. Id. at 815. This third stage merges with the plaintiff's ultimate burden to show that he was the victim of intentional and unlawful discrimination. Id. at 812.¹

The parties see this case very differently and agree on very little. For instance, Defendants are adamant that Plaintiff was not an employee, but instead an independent contractor, whose services to Faygo were governed by the 1992 contract between Faygo and RCA. See Defs. Mot. at 13-16; Defs. Reply at 9-10. Plaintiff takes a different stance, contending that he was Faygo's employee once RCA was formed. See Pl. Resp. at 18-23. Defendants also assert that Plaintiff was not replaced by someone outside of the protected class, because the Brand Manager role for which Bartlett was hired "was greatly expanded beyond that which RCA did for Faygo under the Agreement," and further contend that even if Plaintiff was replaced, he was not qualified for this newly expanded role. Defs. Mot. at 17.

However, these disagreements are irrelevant because of a fundamental defect in Plaintiff's case. Even assuming Plaintiff could overcome all of Defendants' other challenges to his claim and establish a prima facie case of discrimination, Defendants have offered legitimate, non-discriminatory reasons for his termination, and Plaintiff has not offered evidence creating a genuine issue of material fact that those reasons are pretext for age discrimination.

Defendants offer the following reasons for why Chittaro terminated Plaintiff's services: (i) Chittaro "needed someone who would make his job easier, not harder"; (ii) "Plaintiff was snarky with other employees and [Chittaro] was tired of cleaning up Plaintiff's messes"; (iii) "Plaintiff would not do that which [Chittaro] asked him to do," namely, provide additional support to outside marketing teams and the Faygo sales staff; (iv) Chittaro "wanted to expand the marketing function to include the duties on the brand manager job description"; and (v) "with the growth of social media, [Chittaro] could not trust Plaintiff to respond appropriately to posts by consumers." Id. at 19. These reasons find evidentiary support within the record.

For instance, Chittaro wanted Plaintiff to be more proactive on the sales front, by assisting sales staff with marketing strategies to drive the brand and providing sales...