               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0378n.06

                                       Case No. 14-1607

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


                                                                       FILED
LINDA GREEN,                                       )                May 27, 2015
                                                   )            DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                        )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE EASTERN DISTRICT OF
TOWNSHIP OF ADDISON; JERRY                         )       MICHIGAN
MORAWSKI                                           )
                                                   )
       Defendants-Appellees.                       )




       BEFORE: SILER, COOK, and STRANCH, Circuit Judges.

       COOK, Circuit Judge.       Linda Green, the former office manager for the Addison

Township Fire Department, alleges that the township fired her because of her age. The fire chief

and township (collectively, “the township”) maintain that economic necessity, not unlawful

discrimination, prompted Green’s termination. The district court granted summary judgment to

the defendants, and Green now appeals. We AFFIRM.

                                              I.

       In 1999, the township hired Green as a clerk in its fire department. Over the next ten

years, Green received uniformly positive performance reviews, resulting in numerous raises and

two promotions—first to administrative assistant, then to office manager. Throughout this time,

Green served as the fire department’s sole clerical employee.
Case No. 14-1607, Green v. Addison Township, et al.


         In early 2010, Addison Township Fire Chief Jerry Morawski, in consultation with the

township’s assessor and treasurer, began budget projections for the coming year. Addison

Township funds its fire department through taxes on the township’s property values, which

dropped over $50 million from 2008 to 2010.          In turn, the fire department’s property-tax

revenues fell from $719,899.04 in 2008, to $666,999.27 in 2010, to $629,588.72 in 2011. While

the department’s resources steadily declined, the township’s demand for fire-and-rescue services

increased, resulting in forty more rescue calls in 2010 than in 2008.

         To address these concerns, Chief Morawski decided to eliminate Green’s clerical position

and create a hybrid “firefighter/EMT/office manager” position. Chief Morawski expected the

firefighter/EMT/office manager to perform the department’s clerical tasks and to go on daytime

fire-and-rescue runs. As such, the hybrid position required applicants to possess Michigan Fire

Fighter’s Training Council Firefighter II certification and Michigan EMT-B certification.

         After the fire and township boards approved the hybrid position, Chief Morawski offered

it to Green, then fifty-five years old. Though Green lacked Firefighter II training and EMT-B

certification, Chief Morawski offered to send Green to the requisite training programs using

township funds. Before underwriting Green’s training, Chief Morawski required successful

completion of the seven-stage North Oakland Agility Test. Chief Morawski required all novice

firefighter candidates—employment candidates who had not received Firefighter I and II training

and EMT-B certification—to pass this test. He believed that a candidate who failed the test

would likewise fail to complete Firefighter I and II training, wasting the township’s tuition

money.

         Receiving less than two weeks’ notice of the agility-test requirement, Green spent a few

hours training with Addison Township firefighters. On testing day, she attempted the “simulated


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Case No. 14-1607, Green v. Addison Township, et al.


rescue” exercise, in which test-takers carry a 120-pound dummy up and down a flight of stairs.

Green quit the simulated rescue after two minutes, never reaching the top of the stairs. Because

the agility test requires successful completion of all seven exercises, Green immediately failed.

Chief Morawski terminated her three days later.

        Chief Morawski subsequently posted the hybrid firefighter/EMT/office manager position

on the fire department’s job board. He hired twenty-nine-year-old Angela Haines, a Firefighter-

II- and EMT-B-certified firefighter with some clerical experience. Haines, who had worked as a

part-time, on-call firefighter in the township for four years, never took the North Oakland Agility

Test.

        Green sued Addison Township and Chief Morawski, alleging age discrimination in

violation of the federal Age Discrimination in Employment Act and the Michigan Elliot-Larsen

Civil Rights Act, as well as a failure-to-train claim under 42 U.S.C. § 1983 and Monell v.

Department of Social Services, 436 U.S. 658 (1978). The district court granted summary

judgment to the defendants, finding that Green did not establish a prima facie case and did not

show that the township’s justification for her termination was pretextual. Green timely appeals.

                                               II.

        We review the district court’s grant of summary judgment de novo. Scheick v. Tecumseh

Pub. Sch., 766 F.3d 523, 528 (6th Cir. 2014). We construe all inferences in the nonmoving

party’s favor, Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013), upholding the

grant of summary judgment if there is no genuine dispute as to any material fact such that the

defendants are entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a); Scheick, 766 F.3d at

529.




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Case No. 14-1607, Green v. Addison Township, et al.


                                               III.

       On appeal, Green attacks the district court’s determination that she did not establish a

prima facie case for age discrimination. She also asserts that the district court erred in finding

that the township offered a legitimate, non-pretextual reason for eliminating her position and

terminating her. Even if we assume that Green established a prima facie case, she has not shown

that the township’s reason for terminating her—economic necessity—served as a pretext for

discrimination.

       Green need only identify a genuine dispute of fact regarding the legitimacy of the

township’s stated justification to withstand summary judgment. See Wheat v. Fifth Third Bank,

__ F.3d __, 2015 WL 2116129, at *9 (6th Cir. May 7, 2015). Green attempts to do this in two

ways: by arguing that the township’s justification—economic necessity—had no basis in fact and

that it did not motivate the township’s conduct. See Pierson v. Quad/Graphics Printing Corp.,

749 F.3d 530, 539 (6th Cir. 2014). To prove the township’s economic-necessity justification had

no basis in fact, Green must show that the township did not honestly believe in it, i.e., that the

township did not believe it needed to reduce payroll and consolidate positions. See Allen v.

Highlands Hosp. Corp., 545 F.3d 387, 398 (6th Cir. 2008). To show that economic necessity did

not actually motivate the township, Green must identify circumstances that question the veracity

of the economic-necessity justification.    She must establish “that the sheer weight of the

circumstantial evidence of discrimination makes it more likely than not that the employer’s

explanation is a pretext, or coverup.” Id. at 396 (internal quotation marks omitted). Under either

method, Green fails to show pretext.

       Green first argues that the township suffered no economic hardship at the time of her

termination, rendering its economic-necessity justification baseless. The township garnered


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Case No. 14-1607, Green v. Addison Township, et al.


budget surpluses totaling $167,610.85 in the three years following her termination and made

several large purchases in the same timeframe, including a $5,000 fire truck and a $31,116 GMC

Yukon. These signs of economic health, Green maintains, contradict the township’s claimed

economic malaise.

        In fact, the record exhaustively details the township’s deteriorating finances. In early

2010, Chief Morawski projected that the department’s expenditures would exceed revenue if left

unchecked. He concluded that he could reduce payroll, eliminate overtime hours in the day shift,

and meet increased demand by creating a firefighter/EMT/office manager position and

eliminating Green’s job. In short, he “‘made a reasonably informed and considered decision

before taking the complained-of action.’” Allen, 545 F.3d at 398 (quoting Michael v. Caterpillar

Fin. Servs. Corp., 496 F.3d 584, 598–99 (6th Cir. 2007)).          Moreover, Chief Morawski’s

projections all proved correct.   Revenues indeed declined in 2010, but the creation of the

firefighter/EMT/office manager position reduced payroll expenses. (Compare R. 42-4, Budget

Reports, ($421,936.98 in 2009 wages) with id. ($415,542.45 in 2010 wages) and id.

($399,343.43 in 2011 wages).) Further, Haines performed all the department’s clerical tasks

while answering daytime 911 calls and going on daytime runs. The surpluses do not negate the

department’s declining revenue; they merely reflect the department’s response to the changing

financial landscape. Further, the township purchased the fire truck and GMC Yukon with funds

held for capital expenditures, a budget source not available for paying operating expenses like

salaries.

        Green also argues that economic necessity did not actually motivate the township to

eliminate her position, create the hybrid position, and then require her to take the agility test.

She alleges that the township did not believe that she could perform firefighting tasks at age


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Case No. 14-1607, Green v. Addison Township, et al.


fifty-five and therefore forced her to take a test she was sure to fail. The agility test, according to

Green, served as mere pretext—the township terminated her because of her age. See Phuong v.

Nat’l Acad. of Scis., 927 F. Supp. 487, 490 (D.D.C. 1996) (failing to allow an employee to

become proficient in her new duties before terminating her can give rise to an inference of age

discrimination).

       But Green ignores the relationship between the agility test, the firefighter/EMT training,

and the township’s finances. Under Chief Morawski, the fire department required firefighter

candidates who had not completed Firefighter I and II training to take the North Oakland Agility

Test. Candidates who cannot complete the agility test, according to Chief Morawski, “will likely

be unsuccessful in Firefighter I and Firefighter II training and equally unsuccessful as a

Firefighter/EMT.” Because Firefighter I and II are physically demanding courses, “candidate[s]

. . . ha[ve] to pass the agility test so they don’t fail out of fire school and [the township doesn’t]

waste any money” paying for the coursework. Certified firefighters, on the other hand, do not

need to attend township-funded training before beginning work because they have already

successfully completed fire school. The township therefore lacks a financial incentive to pre-

screen them with the agility test.

       Green presents no evidence to contradict the above facts or call them into question. She

admits that Chief Morawski offered to pay for her to attend fire school because the township

wanted another full-time firefighter during the day shift. She does not dispute that Chief

Morawski required all novice firefighter candidates to pass the agility test before the township

paid for their training. While firefighters hired by Chief Morawski’s predecessor took the agility

test after firefighter school, Chief Morawski never permitted this. Green presents some evidence

that she might have passed the agility test after extensive, township-funded training. But she


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Case No. 14-1607, Green v. Addison Township, et al.


presents no evidence that economic necessity did not actually motivate the township to create a

consolidated position that would cut payroll. Nor has she pointed to any evidence that economic

necessity did not motivate the township to require Green to pass the agility test before paying for

fire school. The township treated Green as it treated every other firefighter candidate, and

accordingly, Green’s ADEA and ELCRA claims fail.             See Tilley v. Kalamazoo Cnty. Rd.

Comm’n, 777 F.3d 303, 307 (6th Cir. 2015) (noting that Michigan courts use the ADEA

framework to analyze ELCRA claims). Green’s § 1983 claim also fails because she does not

present a constitutional injury. Scott v. Clay Cnty., Tenn., 205 F.3d 867, 879 (6th Cir. 2000).

                                               IV.

       For these reasons, we AFFIRM the judgment of the district court.




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