NOT RECOMMENDED FOR PUBLICATION File Name: 18a0220n.06
No. 17-1473
UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 30, 2018 JOANNE ALBERTY, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT COLUMBUS TOWNSHIP, ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN Defendant-Appellee. ) ) )
BEFORE: CLAY, GIBBONS, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Joanne Alberty brought suit against her
former employer, Columbus Township, alleging that she was terminated from her position as
Assistant to the Columbus Township Assessor in violation of the Age Discrimination in
Employment Act (“ADEA”). The district court granted summary judgment for the Township
and Alberty appealed. For the reasons that follow, we affirm the district court’s judgment.
I. A.
Joanne Alberty, age 76 at the initiation of this suit, resides in St. Clair, Michigan. The
defendant, Columbus Township, is a municipal corporation in St. Clair County. The Township,
encompassing a rural area with only five elected officials, has annual revenues of approximately
$800,000.00 that largely come from property taxes and state revenue sharing. Alberty was first No. 17-1473, Alberty v. Columbus Township
hired by the Township as a Deputy Clerk in December 1997. From 2002 until 2013, she was the
Assistant to the Township Assessor, Susan Hansman. While employed by the Township,
Alberty worked 20 hours per week at a pay rate of $13.50 per hour. She did not receive any pay
raises while she was employed by the Township.
In 2012, Bruce Christy was elected Township Supervisor. The other Board members at
the time were Clerk Patricia Iseler, Trustee Stan Dudek, Treasurer Phoebe Duncan, and Trustee
Dennis Eisenhardt. As Township Supervisor, Christy’s primary focus was balancing the
Township budget, which had experienced shortfalls from falling property values between 2008
and 2012. At the Township’s March 2013 meeting, Christy announced a projected shortfall of
$31,191.92 for the 2013-2014 budget. Pointing out that the previous year’s budget had not
balanced, Christy stated that the Township needed to evaluate its income and expenses and
raised concerns about the cost of the assessing department. Stan Dudek agreed, noting that
Hansman, the Assessor, worked for five different townships and might not be able to provide
Columbus Township with the level of service it needed. The Board ultimately decided to
advertise the assessor position in the newspaper so that it could get other, possibly cheaper,
offers. At that meeting, Christy also recognized that “[i]f the Board decides to replace the
assessor they would have to decide what to do with Joanne [Alberty] at that point.” DE 14-8,
Defendant’s Ex. G: 3/12/13 Board Meeting Mins., Page ID 191.
Meanwhile, Alberty was seeking a pay raise based on her belief that the Township
“compensated new hires lacking any experience and employed in the same or comparable
positions” as Alberty at the same rate of pay Alberty still received. DE 1, Compl., Page ID 3.
She first made an oral request to the Township Board in February 2013, and in April 2013 she
submitted a written request. At the April meeting, the Board decided to “table the Joanne raise
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issue” until May. DE 14-10, Defendant’s Ex. I: 4/9/13 Board Meeting Mins., Page ID 199.
At the May 2013 meeting, Patricia Iseler moved to deny Alberty’s request for a raise, supported
by Stan Dudek. Assessor Hansman then offered to take $0.50 from each parcel of her pay to
give Alberty a $1.00 per hour raise. With this new information, Iseler withdrew her original
motion and the Board agreed to postpone the decision until the June meeting.
At the June meeting, Phoebe Duncan, supported by Dennis Eisenhardt, moved for a $2.00
per hour pay raise for Alberty, which failed. There followed a discussion about potential ways to
increase Alberty’s pay, such as a $1.00 per hour raise or a quarterly bonus. With Alberty’s pay
issue unresolved, Iseler moved to terminate Assessor Hansman’s employment because of the
Township’s budget concerns. The motion passed 3-2. In the same meeting, after the motion to
fire Hansman passed, Iseler moved to terminate Alberty’s employment, again for budgetary
reasons. That motion also passed 3-2. At the time she was terminated, Alberty was 74 years old
and an at-will employee. The Board then passed a motion to set the pay rate for deputies and
clerical positions to $12.00 per hour for new hires, with a weekly hour limitation of 15 hours per
week.
The Board convened a special meeting on June 25, 2013 to discuss proposals for the
Assessor’s position. The Board considered proposals from three applicants: Peggy Chambers
proposed $11.80 per parcel two days per week; Hansman, the previous Assessor, proposed
$13.50 per parcel two days per week; and Lisa Griffin proposed $16.53 per parcel one day per
week. The Board voted to accept Chambers’ proposal. Chambers, who was present at the
meeting, stated that she had her own assistant, Carly Kimmen, who would work for the hours
and rate previously approved by the Board. Kimmen was 30 years old at the time.
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Hansman stated in her affidavit that Chambers had approached her at a continuing
education class for assessors and told her that Bruce Christy had spoken with her about bidding
on the Assessor’s position in Columbus Township. Christy allegedly told Chambers how much
Hansman charged and instructed her to bid less so she would get the position. Chambers also
told Hansman that she had been looking for a job to get her step-daughter, Carly Kimmen, into
assessing, and that Kimmen planned to be Chambers’ apprentice in the new assessing position.
Kimmen’s salary was subsequently raised from $12.00 per hour to $13.50 per hour less
than a year after she started working for the Township, and was further raised to $18.00 per hour
after she was certified as an assessor. Chambers was later terminated by the Township after
losing her certification to assess properties.
B.
Alberty filed suit against the Township, claiming that it had violated the ADEA,
29 U.S.C. §§ 621–634. The Township moved for summary judgment, arguing that Alberty
failed to produce direct or circumstantial evidence of discrimination and that she failed to prove
that the Township’s non-discriminatory reason for her termination was pretextual. The district
court granted the Township’s motion for summary judgment. It found that Alberty had failed to
produce direct evidence of age discrimination and rejected Alberty’s argument that the
Township’s proffered budgetary rationale for her termination was pretextual, noting that the
record contained evidence that the Township was trying to cut costs. It reasoned that “[r]ather
than raising an inference of age discrimination, the evidence suggests that Plaintiff was a
casualty of the Township’s desire to terminate Hansman.” DE 24, Op. and Order, Page ID 1064.
The court thus held that Alberty failed to prove that age was the “but-for” cause of her
termination.
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After the district court granted the Township’s motion for summary judgment, Alberty
filed this timely appeal.
II.
When reviewing a district court’s decision to grant summary judgment, this court applies
the de novo standard of review. Simpson v. Ernst & Young, 100 F.3d 436, 440 (6th Cir. 1996).
Summary judgment is warranted when “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). A dispute is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether
there is a genuine dispute of material fact, this court must view the facts “in the light most
favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655
(1962) (per curiam).
The ADEA makes it unlawful for an employer “to discharge any individual or otherwise
discriminate 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).
A plaintiff bringing an ADEA claim “must prove that age was a determining factor in the
adverse action that the employer took against him or her.” Phelps v. Yale Sec., Inc., 986 F.2d
1020, 1023 (6th Cir. 1993) (citing Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227,
299–30 (6th Cir. 1990)). The Supreme Court has held that the ADEA does not permit “a mixed-
motives” claim; instead, a plaintiff alleging a violation of § 623(a) must prove by a
preponderance of the evidence that “age was the ‘but-for’ cause of the employer’s adverse
action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175, 177 (2009). The plaintiff may do so
using either direct or circumstantial evidence. Id. at 177–78.
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III.
“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.” Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008) (quoting Wexler v.
White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc)). Alberty argues that
she has produced two pieces of direct evidence sufficient to support the conclusion that age was
the “but-for” cause of her termination. We find, however, that Alberty’s proffered evidence fails
to “require” the conclusion that her termination was motivated by her age.
A.
As her first piece of direct evidence, Alberty proffers the following statement made by
Iseler in her deposition about Carly Kimmen:
Q: So you voted to terminate Ms. Alberty, knowing you were satisfied with the services she was providing in her position, and to hire a new person that you had no knowledge of, whatsoever, at all?
A: The knowledge we have was from Peggy [Chambers] that this young lady was working with her as her assistant. And we took it at face value.
DE 18-9: Plaintiff’s Ex: Deposition of Patricia Iseler, Page ID 830 (emphasis added). Alberty
points to Iseler’s use of the phrase “young lady” to describe Kimmen and reasons that, “[s]ince
the Defendant[s] admittedly did not know the replacement’s education, skills or abilities,
according to Iseler the only thing that [mattered and] that they had to go on was her age.”
CA6 R. 16, Appellant Br., at 26.
Iseler’s reference to Kimmen as a “young lady” is not direct evidence of age
discrimination. “[G]eneral, vague, or ambiguous comments do not constitute direct evidence of
discrimination because such remarks require a factfinder to draw further inferences to support a
finding of discriminatory animus.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 708 (6th Cir.
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2008). Finding intent to discriminate from Iseler’s words, however, requires several inferential
leaps. One could postulate that Iseler’s use of the phrase “young lady” was intended to
underscore the age difference between Alberty and Kimmen. But it is far more likely that
Iseler’s words were a completely innocuous description of Kimmen. As the district court
pointed out in its opinion, Iseler was in her early eighties when she called the 30-year-old
Kimmen a “young lady.”
This court has only found sufficient direct evidence of age discrimination where intent to
discriminate is neither vague nor ambiguous, but is clear on the face of the evidence. For
example, in Scheick v. Tecumseh Public Schools, we found that two statements about the Board
“want[ing] someone younger” was sufficient direct evidence of age discrimination to survive a
summary judgment motion. 766 F.3d 523, 530–31 (6th Cir. 2014) (emphasis added).
In contrast, there was no comparative language used here—Iseler did not refer to Kimmen as a
“younger lady.” Even if Iseler was making some sort of commentary about Kimmen’s age
(which is doubtful), nothing from her statement indicates that Kimmen was hired because she
was younger than Alberty. Finding such meaning in Iseler’s words would require us “to draw
further inferences to support a finding of discriminatory animus,” see Daugherty, 544 F.3d at
708, which we will not do when evaluating direct evidence.
Additionally, the Scheick statements were made in a completely different context from
Iseler’s statement here. In Sheick, one of the statements was made during the plaintiff’s
performance review, and the other two were made during subsequent follow-up conversations in
which the plaintiff was pressured to retire. Scheick, 766 F.3d at 530–31. However, Iseler
referred to Kimmen as a “young lady” during her deposition, long after the decision to terminate
Alberty had occurred, in response to a question about the Board’s decision to hire a new person.
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Alberty has produced nothing that shows any causal connection between Kimmen’s being a
“young lady” and the Board’s decision to terminate Alberty.
Alberty further argues that because Iseler was the one who made the motion to terminate
Alberty and had a decision-making role, her statement is probative of age discrimination.
Alberty is correct to the extent that direct evidence of discrimination is more probative when it
comes from those “in a position to influence the alleged [adverse employment] decision.”
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998)). However, the
decision-maker’s statements must still demonstrate bias. In Ercegovich, such statements were
clearly biased: the vice president overseeing the company sales division allegedly said “[t]his
company is being run by white haired old men waiting to retire, and this has to change” and told
a personnel manager “that he did not want any employee over 50 years old on his staff.”
Ercegovich, 154 F.3d at 354 (alteration in original). As stated above, Iseler’s use of phrase
“young lady” does not suggest any discriminatory motive or intent, and her statement was made
during her deposition, outside of the employment decision-making context. The sole fact that
Iseler influenced the decision to terminate Alberty does not help Alberty’s argument.
As her second piece of direct evidence, Alberty proffers Hansman’s statement in her
affidavit that Chambers told her she had been approached by Christy about applying for the
Assessor’s position, and that Chambers had been seeking a position for her step-daughter to get
into assessing.1 She claims that Hansman’s statement creates an issue of material fact because it
1 The Township argues in its brief that Hansman’s statements about what Chambers told her are hearsay and thus cannot be offered for the truth of the matter asserted. Even if the statements are presented for their underlying truth, there is no way that they constitute direct evidence of age discrimination. Thus, we do not find it necessary to reach the hearsay issue.
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proves false Christy’s testimony that the Board did not know who would replace Alberty when it
terminated her.
Though it may cast doubt on one of the Township’s defenses, this second piece of
evidence still does not provide any direct evidence of age discrimination. In fact, its relation to
age discrimination is even more attenuated than Iseler’s “young lady” comment. Nothing in
Hansman’s affidavit suggests that Chambers told her that Christy made discriminatory remarks,
or any remarks at all about Alberty’s age. The statements Alberty references contain no direct
support for “the conclusion that unlawful discrimination was at least a motivating factor in the
employer’s actions.” Allen, 545 F.3d at 394. The district court thus did not err when it found
that Alberty failed to produce direct evidence of age discrimination sufficient to survive a
summary judgment motion.
IV.
A plaintiff may also prove age discrimination using circumstantial evidence. Gross,
557 U.S. at 177–78. Circumstantial evidence “is proof that does not on its face establish
discriminatory animus, but does allow a factfinder to draw a reasonable inference that
discrimination occurred.” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). This
Circuit uses the McDonnell Douglas framework to analyze ADEA claims based on
circumstantial evidence. Id. at 622; see generally McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Under that framework, a plaintiff must prove four elements to establish a prima
facie case of age discrimination: “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, 579 F.3d at 622; see also Barnett v. Dep’t of
Veterans Affairs, 153 F.3d 338, 341 (6th Cir. 1998). Once a plaintiff sets forth a prima facie case
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of age discrimination, “the burden of production shifts to the defendant to articulate a non-
discriminatory reason for its action.” Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001).
If a defendant has articulated a legitimate non-discriminatory reason for its action, the burden
shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the
defendant’s stated reason was a pretext for age discrimination. Id.
At this stage in the analysis, the parties dispute the scope of Alberty’s burden of proof.
Alberty argues that to reach a jury, she need show only that the Township’s reason for the
employment action was pretextual because that showing, coupled with her prima facie case,
suffices. The Township argues that at every stage of the lawsuit, Alberty has the ultimate burden
of presenting sufficient evidence for a jury to find that age discrimination was the “but-for”
cause of her termination. The Township is correct.
During argument, Alberty’s counsel repeatedly cited Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000) to support her client’s position, and the dissent also relies
heavily on this case. In Reeves, the Supreme Court held that a plaintiff’s prima facie case plus
falsity of the employer’s proffered reason may be sufficient to reach the jury. Id. at 147. “In
appropriate circumstances, the trier of fact can reasonably infer from the falsity of the
explanation that the employer is dissembling to cover up a discriminatory purpose.” Id. But this
quote from Reeves does not tell the whole story. The Reeves Court went on to explain that
“[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a
jury’s finding of liability.” Id. at 148. As the Supreme Court explained:
Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a
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matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.
Id. Our sister circuits have recognized and applied this exception to the general rule in Reeves.
See, e.g., Rowe v. Marley Co., 233 F.3d 825, 830 (4th Cir. 2000) (“Even when a plaintiff
demonstrates a prima facie case and pretext, his claim should not be submitted to a jury if there
is evidence that precludes a finding of discrimination, that is if ‘no rational factfinder could
conclude the action was discriminatory.’” (quoting Reeves, 120 S. Ct. at 2109)); Schnabel v.
Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (“[F]ollowing Reeves, we decline to hold
that no ADEA defendant may succeed on a summary judgment motion as long as the plaintiff
has established a prima facie case and presented evidence of pretext.”); cf. Vadie v. Miss. State
Univ., 218 F.3d 365, 373 n.23 (5th Cir. 2000) (concluding that after Reeves a prima facie case
plus pretext evidence may be enough to permit a finding of discrimination under Title VII, but
will not always be sufficient, with the ultimate issue remaining whether the evidence in the
record as a whole “creates a reasonable inference that age was a determinative factor in the
actions of which plaintiff complains”).
We also implicitly rejected Alberty’s interpretation of Reeves in Brown v. Packaging
Corp. of America, 338 F.3d 586 (6th Cir. 2003). In that case, the plaintiff argued that a jury
instruction including the words “it is not enough for plaintiff simply to prove or claim that the
stated reasons for [the employer’s] actions with regard to plaintiff were not believable or are not
the true reasons for the actions” violated Reeves’s holding. Id. at 593. We indicated that had we
needed to reach the issue, we would have rejected the plaintiff’s argument, explaining that the
instruction accurately stated the law because Reeves required a jury to return a verdict for the
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employer “unless it was prepared to draw the inference from all of [plaintiff’s] evidence that the
[employer] was guilty of intentional age discrimination.” Id. at 593–94.
Finally, Reeves must be read in conjunction with the Supreme Court’s subsequent
decision in Gross holding that because mixed-motive claims are not authorized under the ADEA,
a plaintiff “retains the burden of persuasion to establish that age was the ‘but-for’ cause of the
employer’s adverse action.” Gross, 557 U.S. at 177. Reeves made the point that in some cases,
when there is sufficient evidence that the employer’s stated reason for the adverse action is
pretextual, “discrimination may well be the most likely alternative explanation.” Reeves,
530 U.S. at 147. That is, in some cases, once the defendant’s proffered rationale has been taken
off the table, the most likely reason left standing is a discriminatory one. However, as made
clear in Gross, the plaintiff must still show that age was the “but-for” cause of the adverse action,
and in some cases, a prima facie case coupled with some evidence of pretext is not enough.
In its reliance on Reeves, the dissent does not explain how Alberty’s case conforms to Gross’s
“but-for” requirement. And in fact, the Reeves Court itself noted that a prima facie case plus
evidence of pretext would not survive a motion for summary judgment where “the record
conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the
plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and
there was abundant and uncontroverted independent evidence that no discrimination had
occurred.” Id. at 148. The dissent extends Reeves too far in arguing that it precludes summary
judgment in Alberty’s case.
Therefore, a prima facie case plus some evidence of pretext will not be sufficient for an
age-discrimination suit based on circumstantial evidence to survive a summary judgment motion
in every case. A reasonable jury must still be able to conclude, based on the record, that age was
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the but-for cause of the challenged action. In this case, no reasonable jury could conclude that
age was the but-for cause of Alberty’s termination.
Alberty can establish a prima facie case of age discrimination. At the time she was
terminated, Alberty was 74—well above the requirement that a plaintiff be at least 40 years old
at the time of the adverse employment action. See, e.g., Burzynski, 264 F.3d at 622. It is
undisputed that she was discharged, and the Township does not allege that she was not qualified
for the position. The Township does attempt to argue that Alberty fails to meet the fourth
element because the Board did not actively seek to replace her with a younger person, but merely
honored the new assessor’s wish to bring in her own assistant. But the fourth element of a prima
facie age discrimination claim requires only that the plaintiff be replaced by “a significantly
younger person,” which this court generally defines as someone ten or more years younger than
the plaintiff. Grosjean v. First Energy Corp., 349 F.3d 332, 335–36 (6th Cir. 2003). Generally,
the context of the replacement does not matter.2 Because the Board replaced Alberty with Carly
Kimmen, who was 30 years old when she took over Alberty’s former job, Alberty has
successfully set forth a prima facie age discrimination case using circumstantial evidence.
However, the Township has articulated a legitimate non-discriminatory reason for Alberty’s
termination: she demanded a raise during a time when the Township Board was attempting to
2 This court has decided a line of cases that suggest that the context of an employee’s replacement may matter in certain limited circumstances. For example, we have held that an allegation that “the employer assigned the former employee’s work to an independent contractor that decided to employ younger persons to do the plaintiff’s work is, without more, insufficient to establish a prima facie case.” Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 786 (6th Cir. 2007) (“The Workers fail to allege any facts suggesting that [defendant-employer] had a role in choosing the temporary workers who would be assigned to the Piqua Plant or that it requested younger workers from the temporary employment agency.”); see also Snyder v. Pierre’s French Ice Cream Co., 589 F. App’x 767, 772 (6th Cir. 2014) (holding no replacement occurred where employer requested temporary workers from outside company to fill certain positions, and plaintiff offered no evidence that employer requested young workers or played any role in choosing the workers the agency provided). Given that the Township had direct responsibility for hiring Alberty’s replacement, none of those circumstances are present here.
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avoid deficit spending. Thus, the burden shifts back to Alberty to prove by a preponderance of
the evidence that the Township’s stated reason—budgetary concerns—was a pretext for age
discrimination.
C.
We acknowledge that the Township’s “budgetary concerns” rationale seems to have
arisen after Alberty initiated the lawsuit. A review of the record indicates that the Township’s
reasons for firing Alberty may have had more to do with its desire to terminate her boss rather
than with budgetary concerns, but absolutely nothing indicates that age motivated her
termination. Further, there is affirmative evidence in the record that at least some of the Board
members had budgetary concerns. Thus, we hold that Alberty has not produced sufficient
evidence of pretext to survive a summary judgment motion.
This Circuit recognizes three ways for a plaintiff to prove that the employer’s stated
reason is pretextual: (1) the reason has no basis in fact, (2) the reason did not actually motivate
the discharge, or (3) the reason was insufficient to motivate the discharge. Manzer v. Diamond
Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994), overruled on other grounds by
Gross, 557 U.S. 167, as recognized in Geiger, 579 F.3d at 621. “Regardless of which option is
used, the plaintiff retains the ultimate burden of producing ‘sufficient evidence from which the
jury could reasonably reject [the defendants’] explanation and infer that the defendants
intentionally discriminated against him.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.
2003) (quoting Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir. 2001) (alteration in
original) (internal quotation marks omitted)).
Alberty first argues that the financial rationale for her termination has no basis in fact
because “[t]he Township never had an ‘economic’ need to reduce expenses” since it actually
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“had increasing revenue in 2013 . . . .” CA6 R. 16, Appellant Br., at 32. Proving that the
employer’s reasons had no basis in fact requires “evidence that the reasons given by the
employer simply did not happen.” Gray v. Toshiba America Consumer Prods., Inc., 263 F.3d
595, 600 (6th Cir. 2001). Alberty thus cannot merely produce evidence that the Township’s
budgetary concerns were exaggerated—she must show that the Township had no budgetary
concerns and was not trying to cut costs. She fails to make this showing.
As affirmative evidence that the Township’s stated reasons have no basis in fact, Alberty
points to the “Profit and Loss Budget Overview” for April 2013 through March 2014, which
estimates the Township’s net income for that year as $78,808.08. She argues that this figure
from the approved budget does not reflect Christy’s projection that expenses would exceed
revenues for the 2013-2014 fiscal year by $31,000. The estimate from the approved budget,
however, does not raise an issue of material fact as to whether the Township’s budgetary
concerns were nonexistent. Although Alberty devotes several pages in her brief to attempting to
discredit the Township’s allegations about its financial situation, the record does contain
evidence showing that the Township’s budgetary concerns had some basis in fact. Property
values had fallen in the years before Alberty’s termination, and the Board discussed the decline
at its meetings—for instance, in a March 2011 meeting, the Township agreed that based on
budgetary concerns “it is prudent for the Township Board to review all operational costs and
labor costs.” The record also shows that the Township’s Governmental Activities net assets
decreased by $67,941 for the year ending on March 31, 2012. Finally, nothing in the record
suggests that Christy’s projected shortfall, which was based on numbers he had been given, was
made in bad faith, despite Alberty’s allegation that Christy’s estimate was false.
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As additional evidence that the Township’s stated reason for her termination had no basis
in fact, Alberty argues that at the time she was fired, the Board had never asked her if she would
be willing to work for a lower wage or reduced hours. This argument also lacks merit. First, the
record indicates that Alberty requested a raise on more than one occasion, so it would be natural
for the Board to have assumed that she did not want to work for a reduced wage or fewer hours.
Second, Alberty’s argument ignores the fact that she was terminated in large part because the
Board wanted to cut costs by terminating Assessor Hansman, and Alberty was Hansman’s
assistant. The Board was therefore not trying to cut costs solely by getting rid of Alberty.
Instead, she “was a casualty of the Township’s desire to terminate Hansman.” DE 24, Op. and
Order, Page ID 1064. Thus, even viewing the record in the light most favorable to Alberty, it
cannot support her assertion that the Township’s proffered reason has no basis in fact.
Alberty also argues that the Township’s proffered reason did not actually motivate her
discharge. To use the second prong from Manzer, the plaintiff “admits the factual basis
underlying the employer’s proffered explanation and further admits that such conduct could
motivate dismissal.” Manzer, 29 F.3d at 1084. However, the plaintiff indirectly “attempts to
indict the credibility of his employer’s explanation by showing circumstances which tend to
prove that an illegal motivation was more likely than that offered by the defendant.” Id. “[T]he
evidence must be of sufficient significance itself to call into question the honesty of the
employer’s explanation.” Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 627 (6th Cir. 2006).
Demonstrating a factual dispute as to whether the Township’s proffered reason did not
actually motivate Alberty’s discharge is an admittedly easier task than demonstrating a factual
dispute as to whether the reason had no basis in fact. We recognize that facts in the record, such
as the positive fund balance for the 2012-2013 fiscal year and the Township’s approved 2013-
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2014 budget estimating the year’s net income to be $78,808.08,3 cast some doubt on the
Township’s stated reason for Alberty’s termination. Nevertheless, we hold that Alberty cannot
show a genuine issue of material fact regarding the second Manzer prong because she has not
raised any facts that would show that an illegal motivation was the more likely reason for the
Township’s decision.
Records from the monthly Board meetings imply that Alberty may have been terminated
because the Board wanted to fire Hansman, her boss. The Board appears to have simply deferred
to the replacement’s desire to bring on her own assistant. However, even if the Township
terminated Alberty because it wanted to bring on a new assessor and chose to defer to her
judgment regarding her assistant, that is still not an illegal basis for which to terminate an at-will
employee. We thus find that Alberty has not proven “that an illegal motivation was more likely
than that offered by the defendant.” Manzer, 29 F.3d at 1084.4
As we have established, the Reeves Court clarified that a plaintiff’s prima facie case plus
some evidence of pretext is not always sufficient to reach a jury; for instance, “if the plaintiff
created only a weak issue of fact as to whether the employer’s reason was untrue and there was
abundant and uncontroverted independent evidence that no discrimination had occurred.”
3 Alberty notes that Kimmen received a raise eight months after she started working for the Township, from $12.00 per hour to $13.50 per hour, and argues that this further casts doubt on the Township’s budgetary rationale. We disagree. Alberty was actually making $13.50 per hour at the time she sought a raise and was terminated. She was terminated only after she sought a raise exceeding her pay of $13.50 per hour. Kimmen’s initial raise thus did not surpass what the Township had been willing to pay Alberty for the same position. 4 Although Alberty does not make an argument based on the final prong in Manzer—that the evidence was insufficient to motivate the discharge—she would be unable to establish pretext under that prong as well. See Manzer, 29 F.3d at 1084. Evidence that the employer’s proffered reason was insufficient to motivate discharge “ordinarily consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated the discharge of the plaintiff.” Gray, 263 F.3d at 600 (citation omitted). The Township’s rationale for terminating Alberty is fairly specific—her requests for a raise in combination with the Township’s budgetary concerns—which limits the applicability of a sufficiency argument because it is difficult to produce evidence of other employees engaged in “substantially identical conduct.” It is worth noting, though, that the Assessor, Susan Hansman, was also terminated for budgetary reasons. Alberty was, in fact, let go partly because the Board terminated Hansman. The fact that both the Assessor and the Assistant Assessor were terminated further undercuts Alberty’s charge of age discrimination.
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Reeves, 530 U.S. at 148. That statement describes Alberty’s case perfectly. As discussed
previously, even if Alberty has created a fact issue as to pretext, it is a weak issue. More
importantly, the record contains “abundant” evidence that no discrimination occurred. Not a
single member of the Township Board indicated that Alberty’s age was a problem in any of the
meeting minutes. Alberty has not alleged that anyone made age-based comments or jokes—or
that anyone mentioned her age at all. At the time Alberty’s replacement was hired, no one
mentioned her youth or compared her age to Alberty’s. Throughout the entire process of firing
Alberty and hiring her replacement, no one ever mentioned age.
In all the post-Reeves age-discrimination cases Alberty relies on in her brief, the plaintiffs
also made some allegations of age-biased statements or conduct. See, e.g., Wexler, 317 F.3d at
570 (Among other instances of age-biased conduct, the company president asked if plaintiff was
60 years old and, on hearing that he was 59, said “[W]e both have been in the business 117 years.
You don’t need the aggravation, stress of management problems, customer problems . . . .”);
Scheick, 766 F.3d at 527 (The Superintendent told plaintiff that the School Board “just want[ed]
somebody younger.”) Even in Reeves, the plaintiff alleged that a supervisor “had demonstrated
age-based animus in his dealings with [plaintiff].” Reeves, 530 U.S. at 138. In contrast, Alberty
has only Iseler’s one reference to Carly Kimmen as a “young lady” in her deposition—and as
explained earlier, this statement did not demonstrate discriminatory animus. There is simply
nothing from which a reasonable jury could conclude that Alberty was fired because of her age.
Alberty was an at-will employee. While we speculate that her termination may have had
more to do with the Township’s desire to get rid of her boss, Assessor Hansman, than with its
budgetary concerns, no rational jury could view the evidence in this case and conclude that age
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was the but-for cause of Alberty’s termination. Although it may seem unfair, the Township’s
decision did not violate the ADEA.
V.
Before concluding, a word about the difference between direct and circumstantial
evidence: the dissent argues that our decision requires Alberty to submit direct evidence of age
discrimination in order to survive summary judgment. The dissent is correct that this court has
never before required a plaintiff to provide direct evidence of age discrimination to survive a
summary judgment motion. But we have not created a new rule requiring direct evidence here.
Direct evidence is a narrow category—it is “evidence which, if believed, requires the conclusion
that unlawful discrimination was at least a motivating factor in the employer’s actions.” Allen v.
Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008) (emphasis added) (citation 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.” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009).
Under those definitions, direct evidence would be only that evidence where the employer
explicitly says something like, “You are too old for this job.” However, a comment such as,
“This job seems to tire you out more than the other employees,” would be circumstantial
evidence, because it does not require the fact-finder to conclude that age discrimination was a
motivating factor. Nonetheless, that kind of comment still raises the specter of age-based animus
and makes it more probable that the employer took the adverse action because of age. The
problem with Alberty’s case is that the record is devoid of either kind of evidence. There is
nothing that would “allow a factfinder to draw a reasonable inference that discrimination
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occurred,” see id., because based on the record before the court a discriminatory motive is no
more likely than any other motive.
Reeves held that “[i]n appropriate circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer is dissembling to cover up a discriminatory
purpose.” 530 U.S. 133, 147 (2000). The key word, we believe, is “reasonably.” That is, based
on the record, a fact-finder must be able to draw a reasonable inference that the employer is
trying to cover up discrimination. The record in this case would not allow such an inference.
VI.
Alberty has failed to produce evidence that would allow a reasonable juror to find that
her age was the but-for reason for her termination. See Anderson, 477 U.S. at 248; Gross,
557 U.S. 176–77. In fact, the record is devoid of references to Alberty’s age. In the absence of
any genuine dispute of material fact, the district court properly granted summary judgment for
the Township. We therefore affirm the district court.
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CLAY, Circuit Judge, dissenting. This case should proceed to trial for a jury to
determine whether the Township terminated Alberty because of her age. Alberty has provided
abundant circumstantial evidence in support of her claim that the Township violated the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Even so, the majority
faults Alberty for developing a record that lacks any direct admission by the Township that its
termination decision was discriminatory. This Court has never before required a plaintiff to
submit direct evidence of discrimination in order to survive summary judgment. Because a
reasonable jury could find that Alberty was terminated because of her age, I respectfully dissent.
Alberty’s case begins, as it must, with prima facie evidence of age discrimination. See
Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001) (applying burden-shifting evidentiary
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973)). Alberty was
74 years old when the Township terminated her in 2013, following sixteen successful years of
working for the Township. (R. 24 at Page ID #1061.) Alberty had served the Township in
several capacities over her sixteen-year tenure, spending five years as the deputy clerk followed
by eleven years as the assistant to the Township’s assessor. (Id. at 1059–60.) During this time,
Alberty maintained an impeccable performance record. (R. 18-9 at PageID #823–24.) In fact,
the former assessor, Susan Hansman, so valued Alberty’s assistance that she petitioned the
Township to give Alberty a raise. (R. 14-11 at PageID #212.) Hansman even suggested that her
own compensation should be reduced so that Alberty’s could be increased by $1.00 per hour.
(Id.)
Inexplicably, the Township terminated Alberty on June 11, 2013. (R. 14-12 at PageID
#221.) Within days, the Township hired a new employee to fill Alberty’s shoes: Carly Kimmen.
(R. 24 at PageID #1062.) Kimmen, age 30, was 44 years younger than Alberty. (Id.) Kimmen
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was also the stepdaughter of Peggy Chambers, a new assessor who had just been hired to replace
Hansman. (R. 18-15 at PageID #860.) Notwithstanding Kimmen’s complete lack of relevant
work experience, the Township treated Kimmen dramatically more favorably than it had treated
Alberty. Whereas the Township never offered Alberty a raise—and terminated her shortly after
she requested one—the Township raised Kimmen’s wage on two separate occasions shortly after
hiring her. (R. 18-3 at PageID #127–28.) The Township also provided Kimmen with training,
grooming her as the new assessor’s apprentice. (R. 18-2 at PageID #500; R. 18-15 at PageID
#860.) And once Chambers put Kimmen on the path to certification as an assessor, Chambers
allowed her own certification to expire. (R. 18-3 at PageID #661.) On this record, Alberty
presents a strong case that the Township terminated her for the purpose of replacing her with a
younger employee, in violation of the ADEA.
The Township asserts that it terminated Alberty due to budgetary concerns and not due to
discriminatory animus. But based on the record below, a jury could reasonably reject this
explanation. Indeed, a jury could find the Township’s explanation so unsatisfactory and lacking
in credibility that it can only be explained as an excuse that the Township concocted to cover up
its discriminatory action. The Township’s 2013–14 budget projected a surplus of $78,808.08.
(R. 18-5 at PageID #686.) The Township had no trouble keeping Alberty on staff in the months
leading up to her termination, and it even considered giving her a raise. The tide shifted,
however, once Hansman left the position of assessor. Although the budget had not changed, the
Township suddenly claimed to be concerned about a projected shortfall of $31,000. (R. 18-6 at
PageID # 706.) Citing this imaginary shortfall, the Township terminated Alberty, making room
for the new assessor to hire her much younger stepdaughter in Alberty’s place. (Id.) Within
days of Alberty’s termination, the Township’s budgetary concerns blinked out of existence. The
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Township hired Kimmen at a starting wage of $12.00 per hour and began to pay for her training
to become certified as an assessor. (R. 18-3 at PageID #664; R. 18-2 at PageID #500.) Between
her wage and training expenses, Kimmen gave the Township negligible relief from the $13.50
per hour that it had been paying Alberty. Within months, and while continuing to invest in
Kimmen’s training, the Township raised Kimmen’s wage to the exact wage of $13.50 per hour
that the Township claims it could not afford to pay Alberty. (R 18-3 at Page ID #664–65.)
Finally, when Kimmen completed the assessor training program, the Township raised Kimmen’s
wage even further to $18.00 per hour, ensuring that Kimmen was a far more expensive employee
than Alberty had ever been. (Id.) The Township insists that its budgetary concerns were
genuine, but pretext is an equally or more credible explanation. A jury should resolve this
factual dispute.
The majority’s decision to resolve the factual dispute against Alberty conflicts with the
general summary judgment standard as well as the Supreme Court’s specific guidance for ADEA
cases, as set forth in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). Where, as
here, the plaintiff states a prima facie case of age discrimination and subsequently rebuts the
employer’s proffered non-discriminatory explanation as having no basis in fact, Reeves prohibits
a grant of summary judgment where “the trier of fact can reasonably infer from the falsity of the
explanation that the employer is dissembling to cover up a discriminatory purpose.” 530 U.S. at
133. A jury could reasonably draw such an inference in this case, where the Township’s
purported budgetary concerns cannot be squared with the Township’s financial reality or with its
differential treatment of Alberty’s replacement.
By rejecting the Township’s proffered non-discriminatory reason as having no basis in
fact, the jury would resolve this case in Alberty’s favor. As the majority acknowledges, once a
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plaintiff establishes a prima facie case, the defendant must be found liable if it fails to proffer
any non-discriminatory explanation whatsoever in rebuttal. That is, absent any other
explanation, the prima facie case describes the but-for cause of the employee’s termination. The
same outcome logically follows if the defendant proffers only a single non-discriminatory
explanation and the jury rejects this explanation as contrived. Indeed, there is no legal
distinction between a defendant who provides no excuse whatsoever and a defendant who
provides an excuse that is found to be a lie. Trial is therefore necessary where, as here, the
plaintiff creates a genuine dispute as to whether the defendant’s only proffered explanation has
no basis in fact.
The majority incorrectly concludes that this case need not be sent to a jury, citing three
reasons. First, the majority states that Alberty has “created only a weak issue of fact as to
whether the employer’s reason was untrue.” But Alberty’s case on this point could not be
stronger, as the record indicates that the Township’s concern about a $31,000 deficit was neither
justified nor genuine. The existence of a deficit is flatly contradicted by the Township’s budget,
which projected a surplus of $78,808.08. Moreover, the Township replaced Alberty with an
employee whose wage outstripped Alberty’s in a matter of months and who, between her wage
and training expenses, may have been a more expensive employee than Alberty from the outset.
Alberty has thus created far more than “a weak issue of fact as to whether the employer’s reason
was untrue;” she has shown that the employer’s reason is no more substantial than the thin air
from which it was apparently plucked.
Second, the majority states that there is “abundant and uncontroverted independent
evidence that no discrimination ha[s] occurred.” Id. at 148. No such evidence can be found in
the record. The only evidence that Alberty’s termination was based on budgetary concerns is the
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Township’s repeated reference to its concerns about a $31,000 shortfall, and Alberty has shown
that such concerns were unjustified. The Township’s repeated invocation of this unsupportable
excuse does not serve as independent evidence of a non-discriminatory purpose; a circular chain
of evidence merely supports circular reasoning. Whether the Township’s unjustified concerns
were genuine is, at best, a credibility question for the jury.
Finally, the majority impugns Alberty’s substantial record of circumstantial evidence
because:
Not a single member of the Township Board indicated that Alberty’s age was a problem in any of the meeting minutes. Alberty has not alleged that anyone made age-based comments or jokes—or that anyone mentioned her age at all. At the time Alberty’s replacement was hired, no one mentioned her youth or compared her age to Alberty’s. Throughout the entire process of firing Alberty and hiring her replacement, no one ever mentioned age.
However, a mere lack of direct evidence does not weaken an otherwise ample record of
circumstantial evidence. Otherwise, an employer could never be held liable for discrimination—
no matter how suspicious the circumstances or how demonstrably false the employer’s proffered
explanation—as long as the employer did not admit to its discriminatory animus. Recognizing
that direct evidence is both uncommon and unnecessary, the Supreme Court has explained that
the evidence in an ADEA case “may be direct or circumstantial.” Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 177–78 (2009).
Alberty has met her burden to proceed to trial. I therefore respectfully dissent.
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