Rosemary Marsh v. Associated Estates Realty Corp.

521 F. App'x 460
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 5, 2013
Docket12-1594
StatusUnpublished
Cited by3 cases

This text of 521 F. App'x 460 (Rosemary Marsh v. Associated Estates Realty Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosemary Marsh v. Associated Estates Realty Corp., 521 F. App'x 460 (6th Cir. 2013).

Opinion

BOGGS, Circuit Judge.

Plaintiff-appellant Rosemary Marsh appeals the district court’s order granting summary judgment in favor of defendant-appellee Associated Estates Realty Corp. (AERC) of Michigan, as well as three other AERC corporate entities. Marsh sued in the district court after AERC of Michigan fired her, alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, and Michigan’s Elliot-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2202. For the reasons that follow, we affirm the district court’s order.

I

Below is a clear and thorough statement of the facts as provided in the district court’s Order Granting Defendants’ Motion for Summary Judgment. No party disputes the following rendition of the events giving rise to this case:

Marsh was hired as a leasing consultant by AERC of Michigan in March 2004. She was interviewed and hired by Pam Carson, a property manager who also served as her supervisor. Approximately one year later, she voluntarily left her position to pursue employment opportunities elsewhere. All of the parties agree that she left the Company on good terms and that Carson told her that she “could always come back” to AERC of Michigan. After Carson contacted Marsh and asked if she would like to return, she resumed her position with AERC of Michigan in May 2005. However, Marsh’s tenure of employment was shortened when her employment was involuntarily terminated in December of 2007. Marsh was sixty years old when she was initially hired, sixty-one years old when she was rehired, and sixty-three years old when she was terminated.
During her tenure at AERC of Michigan, Marsh primarily worked as a leasing consultant at The Oaks at Hampton, where her primary job responsibility was to facilitate the rental of the apartments (i.e., showing apart- *462 merits to prospective tenants, obtaining leases, marketing and promotion, and assisting residents). The evidence reflects — and the Defendants do not contest — that she was effective in this position when performance is measured in terms of the number of apartments leased.
However, AERC of Michigan also uses additional metrics to evaluate the performance of its employees, such as the use of a third-party contractor who conducts anonymous telephone and video evaluations of a leasing consultants’ sales techniques and customer communication skills. The contractor scores these so-called “phone shops” and “video shops” on a one-hundred-point scale, which is broken down into numerous sub-components. Leasing consultants are expected to achieve a score of at least ninety (90) on the “telephone shops” and at least eighty (80) on the “video shops.” This expectation is conveyed to the employees in an “Audio and Video Recording Acknowledgment” form, which advises them that (1) they may be recorded and evaluated, and (2) these evaluations “may be used for rewarding good performance, coaching for improved performance, and for disciplinary purposes, up to and including termination of employment.” Despite acknowledging that she received and signed this form, Marsh insists that she had been repeatedly assured that these “shops” would be used only to assist the employees in improving their job performances and not for such disciplinary measures as demotion or discharge. Marsh’s scores on these evaluations were considerably lower than expectations. Over the course of her employment, she received scores of forty-one and fifty-six on the “video shops,” and eighty-two, forty-five, FN2 forty-one, fifty-seven, thirty-five, eighty-three, eighty, one hundred, fifty, and seventy-six on the “phone shops.” Thus, out of twelve total evaluations, she met expectations only once. In a “video shop” in February 2006, Marsh failed to obtain the identification of an (acting) prospective tenant prior to providing a tour of the apartment. This failure runs counter to AERC of Michigan’s personal safety policy, which provides that government-issued identification must be obtained from each individual of legal age prior to embarking upon a tour of the facilities. The policy also states that “[ejveryone must be treated in a fair, equal manner; therefore, consistency when administering this policy is essential.” On March 16, 2007, Carson and Diane Shimoura (another property manager) sent Marsh a memorandum which indicated that (1) all three of her “phone shop” evaluations (eighty-two, forty-five (disregarded), and forty-one) during the preceding six-month period were unacceptable, and (2) her scores must significantly improve. Several days later (March 20th), she received a “phone shop” score of fifty-seven. During the following week (April 2nd), she received another memorandum advising her that she was required to take several immediate steps to improve her scores. On April 17th, Shimoura sent her a written warning which specified that “future phone shops need to be within acceptable range.” Marsh was also advised that, if she failed satisfy this requirement, “additional corrective action, up to and including termination[,] will occur.” She subsequently received three unacceptable scores (eighty-three, eighty, and fifty) — in addition to her one acceptable score of one hundred — in the next five months.
FN2 This score came around the same time that Marsh had received a diagno *463 sis of kidney cancer and was disregarded by her employer.
Employees of AERC of Michigan are also evaluated through annual performance reviews. In January 2005, Marsh was given an overall score of two out of four (“Meets basic expectations; requires improvement in some areas”), with sub-scores of two in several areas (communication, creativity, customer satisfaction, initiative, and job knowledge) and three in others (dependability, planning and organization, and teamwork). Later that year, she was issued an employee reprimand in which several areas for improvement were highlighted. In 2006, her overall performance review score was three out of four (“Generally satisfies expectations and recognizes areas for improvement”), based on sub-scores of two in several areas (communication, creativity, job knowledge, and planning and organizing), three in others (customer satisfaction, initiative, and teamwork), and a four in one (dependability). Her 2007 review showed improvement, with an overall score of three and only one sub-score of two (creativity).
In October 2007, AERC of Michigan employed Amy Horn to serve as its property manager at The Oaks at Hampton, and Carson was promoted to a position in which she no longer had day-to[-]day responsibilities at that location. In November 2007, Marsh received a “video shop” score of fifty-six and, once again, failed to obtain the requisite identification prior to providing a prospective tenant with a tour through the facilities. According to the affidavits that were submitted by AERC of Michigan, Miria Rabideau (regional vice president of AERC of Michigan) contacted Carol Screngi (human resources generalist for AERC) to express her concerns about Marsh’s work performance, such as her low “phone shop” scores and her violations of the Company’s identification policy.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Untitled Case
M.D. Tennessee, 2026
Killen v. Walgreen Company
E.D. Tennessee, 2019
Amos v. McNairy County
28 F. Supp. 3d 757 (W.D. Tennessee, 2014)
Hansbrough v. Titlemax of Tennessee, Inc.
977 F. Supp. 2d 859 (W.D. Tennessee, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
521 F. App'x 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosemary-marsh-v-associated-estates-realty-corp-ca6-2013.