               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0420n.06

                                         No. 15-6385

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Jul 27, 2016
KAREN MENCARELLI,                    )                                   DEBORAH S. HUNT, Clerk
                                     )
      Plaintiff – Appellant,         )         ON APPEAL FROM THE UNITED
                                     )         STATES DISTRICT COURT FOR THE
v.                                   )         MIDDLE DISTRICT OF TENNESSEE
                                     )
ALFRED WILLIAMS & CO.,               )
                                                       OPINION
                                     )
      Defendant – Appellee.          )
                                     )


Before: GILMAN, WHITE, and STRANCH, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Karen Mencarelli appeals the district court’s

grant of summary judgment to her former employer, Alfred Williams & Company (AWC), on

her claims brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623,

and the Tennessee Human Rights Act (THRA), Tenn. Code Ann. § 4-21-401(a)(1). The issue is

whether Mencarelli presented sufficient evidence of pretext to rebut the legitimate non-

discriminatory reasons AWC proffered for discharging her. We agree with the district court that

she did not, and therefore AFFIRM.

                                              I.

       AWC, a furniture dealership that provides space-design and project-management

services, operates in several markets in the southeast, including Nashville, Tennessee. AWC’s

regional offices are headed by “market presidents,” who oversee design, account (sales)

management, and project-management departments, manage AWC’s brand in the given market,
No. 15-6385
Mencarelli v. Alfred Williams & Co.

and develop business.     Market presidents decide how to allocate accounts among account

managers.

       Ted Limmer, AWC’s Nashville market president since May 2011, hired Mencarelli as an

account manager in June 2012 to take over the Vanderbilt University account. Mencarelli, aged

forty-eight at that time, had more than twenty years of sales experience that included handling

the University of Miami account at her last place of employment.

       AWC operates under a team structure to service its customers. The Vanderbilt account

team1 consisted of account manager Mencarelli, designer Piper Fritsch, a woman in her late 20s

or early 30s, project manager Kim Gardner, a fifty-four year old male, and market president

Limmer, as needed. Account managers act as liaisons between their accounts and the AWC

team, manage accounts assigned to them, and look for new opportunities to grow their base of

business. Account managers are also expected to assist designers and project managers as

needed. Designers work closely with account managers to understand customer needs and to

ensure that furniture selected for a specific project fits within the designated space and is ordered

and installed correctly. Designers are assigned to multiple accounts, so Fritsch worked on

accounts other than Vanderbilt and reported to account managers other than Mencarelli. Project

managers are assigned to assist specific account managers as needed.

       The seventeen employees who worked at AWC’s Nashville office when Mencarelli was

employed included five account managers (Mencarelli being one) and nine designers, all of

whom Limmer oversaw. During that time, Limmer also hired Cecilia Reeves, age fifty-eight, as
       1
          During the first several months of Mencarelli’s employment, other account managers worked
with her on the Vanderbilt University account.

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Mencarelli v. Alfred Williams & Co.

an account manager. Reeves is still employed as an account manager at AWC and has a good

working relationship with Limmer.

        Mencarelli worked at AWC from August 1, 2012 until Limmer discharged her on March

7, 2014, when she was fifty years old. Limmer hired Alicia Cragg, a twenty-nine year old2 who

had five to seven years’ experience working for a competitor of AWC, to replace Mencarelli.

                                                   A.

        Mencarelli brought this age-discrimination3 action, alleging that she was subjected to

different terms and conditions of employment than younger employees.4 AWC filed a motion

for summary judgment, asserting that Limmer discharged Mencarelli because:                   1) he lost

confidence in Mencarelli’s ability to work within AWC’s team structure, i.e., within the

Vanderbilt team because of her interactions with designer Fritsch, and outside that team, due to

her interactions with other account managers; and 2) Limmer believed that Vanderbilt’s

confidence in Mencarelli was diminishing.

        2
          Mencarelli testified on deposition that Cragg was twenty-nine years old when Limmer hired her.
Limmer testified that he did not know Cragg’s age but estimated that she was in her early 30s when he
hired her.
       Mencarelli’s complaint also alleged retaliation, but she abandoned that claim in response to
        3

AWC’s motion for summary judgment.
        4
          The complaint alleged that Mencarelli complained to her supervisor about the lucrative accounts
being given to a younger, less experienced employee; that her work was subjected to a higher level of
scrutiny than younger employees’ work; that she was never told her performance was lacking and was
discharged on March 7, 2014 with no reason stated; and that she was replaced by a younger employee.
        Mencarelli’s deposition testimony, however, contradicted many of the allegations in her
complaint. She testified that she did not complain to Limmer that she was being treated differently than
younger employees and told only one colleague that she and Limmer had personality conflicts and that
Limmer did not like her. Mencarelli also testified that when she told Limmer she was interested in
assuming some accounts of an account manager who had resigned, Limmer had already assigned those to
other account managers. Mencarelli acknowledged that Limmer had counseled her repeatedly about her
job performance as well.

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Mencarelli v. Alfred Williams & Co.

       AWC submitted Limmer’s deposition testimony in support of its motion for summary

judgment. Limmer testified that he had lost confidence in Mencarelli’s ability to operate within

AWC’s team structure for several reasons, including that Mencarelli interacted with Fritsch as

though Fritsch were her dedicated designer, and that he had to counsel Mencarelli several times

about monopolizing and over-utilizing Fritsch’s time. Limmer also testified that, during an

important kick-off meeting at Vanderbilt for a large 1.5 million dollar dormitory project (the

Kassam project), which he attended, Mencarelli was the only AWC employee not taking notes,

and that after that meeting he counseled Mencarelli that her failure to take notes sent the wrong

message to Vanderbilt and to her AWC team. Limmer also testified that one of Mencarelli’s

main contacts at Vanderbilt, Stephanie Sieve, approached him and told him that she sensed

tension between Mencarelli and Fritsch and thought Limmer should be aware of it. Limmer

deduced from this that if Vanderbilt had had confidence in Mencarelli, Sieve would have raised

the matter directly with Mencarelli rather than approaching Limmer.

       Limmer further testified that Vanderbilt’s procurement department staff, including Sieve,

had recommended that the Kassam project be put out for bids and that it was only because a

senior project manager at Vanderbilt intervened that the project was not put out for bid:

       The fact that that was going to go to bid, in my opinion, from Stephanie [Sieve]
       … is the one that suggested that, if our [AWC’s] relationship was what it was,
       why would they [Vanderbilt] have chose [sic] to bid it out? Wherein the past, if it
       was a high-profile project, it was given to Alfred Williams and Company, because
       they knew we could handle it. So I was starting to recognize that somethings [sic]
       were suffering. So the account was still maintaining, but . . . were we losing some
       opportunities, I felt like we were. I felt like we weren’t being considered for
       somethings [sic] where we should have been.



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Mencarelli v. Alfred Williams & Co.

PID 234-35.

       Limmer additionally testified that he counseled Mencarelli that she should take her laptop

home rather than leave it on her desk at work when she left the office, which usually was at 5:00

p.m., because her team members and other account managers often worked later and observed

that Mencarelli would leave her laptop at work. Limmer testified that Mencarelli did take her

laptop home for a short time after he counseled her, but then reverted to leaving it at the office.

                                                  B.

       Mencarelli testified on deposition that Limmer “picked on” her, giving as examples that

he counseled her regarding her failure to take notes at the meeting regarding the Vanderbilt

Kassam dormitory project and not taking her laptop home. She could think of no other examples

of Limmer picking on her.        Mencarelli also testified that she believed the issues Limmer

counseled her on were “irrelevant” to how she did her job. When asked to state everything “that

makes you think [Limmer] fired you because you were 50 years old at the time,” Mencarelli

responded, “I can’t think of anything offhand.”

       AWC’s motion for summary judgment argued that Mencarelli could not show that

AWC’s legitimate, non-discriminatory reasons for discharging her were a pretext to mask age

discrimination. AWC further argued that, under the “same-actor” inference, no reasonable juror

would believe that AWC discriminated against Mencarelli because of her age given that Limmer

hired her at age forty-eight and discharged her less than two years later, at age fifty.

       The district court concluded that Mencarelli presented insufficient evidence of pretext

and granted AWC summary judgment.


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Mencarelli v. Alfred Williams & Co.

                                                 II.

       This court reviews the district court’s grant of summary judgment de novo, construing the

evidence and drawing all inferences in the nonmoving party’s favor to determine “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Hawkins v. Anheuser-Busch, Inc., 517

F.3d 321, 332 (6th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52

(1986)).

       The ADEA prohibits an employer from discharging an employee who is at least forty

years old “because of such individual’s age.” 29 U.S.C. §§ 623(a)(1), 631. Under § 623(a)(1),

“[a] plaintiff 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).           The plaintiff retains the burden of

persuasion, id. at 177; “[t]he burden of persuasion does not shift to the employer to show that it

would have taken the action regardless of age, even when a plaintiff has produced some evidence

that age was one motivating factor in that decision[,]” id. at 180.

       The THRA provides that one of its purposes is to “[p]rovide for execution within

Tennessee of the policies embodied in . . . the Age Discrimination in Employment Act of 1967,

as amended.” Dennis v. White Way Cleaners, L.P., 119 S.W.3d 688, 693 (Tenn. Ct. App. 2003)

(alteration in original) (quoting Tenn. Code Ann. § 4-21-101(a)). Thus, Tennessee courts apply

the same general analytical framework in THRA age-discrimination cases as under the ADEA.

Id. at 693–94; see also Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 620 (6th Cir. 2006).


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Mencarelli v. Alfred Williams & Co.

A plaintiff establishes a prima facie case of age discrimination by showing that she was: 1) at

least forty years old at the time of the alleged discrimination, 2) subjected to an adverse

employment action, 3) qualified for the position, and 4) replaced by a substantially younger

person or otherwise disparately treated. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521

(6th Cir. 2008); see also Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012). If a

plaintiff establishes a prima facie case, the defendant employer must articulate some legitimate,

non-discriminatory reason for the challenged conduct. If the employer meets this burden, the

burden then shifts back to the employee “to demonstrate that the proffered reason is a pretext.”

Blizzard, 698 F.3d at 283 (citation omitted).

                                            A. Pretext

       We proceed directly to the issue of pretext because AWC concedes that Mencarelli

established a prima facie age-discrimination case, and Mencarelli acknowledges that AWC

proffered legitimate nondiscriminatory reasons for her discharge. Mencarelli may establish

pretext by demonstrating that AWC’s proffered reasons for discharging her 1) had no basis in

fact, 2) did not actually motivate her discharge, or 3) were insufficient to warrant her discharge.

See Blizzard, 698 F.3d at 283.

       Mencarelli argues that the district court erred in two ways with respect to pretext. First,

by determining that she failed to show that AWC’s proffered reasons for discharging her were

insufficient to motivate her discharge because Fritsch engaged in conduct substantially identical

to Mencarelli’s but was not disciplined or discharged. Second, by ignoring her argument that

AWC’s changing reasons for discharging her raised an inference of pretext and determining that


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Mencarelli v. Alfred Williams & Co.

she presented insufficient evidence that AWC’s proffered reasons for discharging her had no

basis in fact.

                                                 1.

        The third category of pretext, that the employer’s proffered reasons for discharging the

plaintiff were insufficient to motivate the adverse employment action, can consist of “evidence

that other employees, particularly employees outside the protected class, were not disciplined

even though they engaged in substantially identical conduct to that which the employer contends

motivated its discipline of the plaintiff.” Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349

(6th Cir. 2012) (citing 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 v. Tower

Auto., 579 F.3d 614, 621 (6th Cir. 2009)); see also Rhoades v. Std. Parking Corp., 559 F. App’x

500, 505 (6th Cir. 2014).

        Mencarelli asserts that both she and Fritsch engaged in “substantially identical conduct”;

specifically, unprofessional behavior involving Vanderbilt, but that Limmer did not discipline or

discharge Fritsch. In determining whether another employee was not discharged even though

she engaged in substantially identical conduct to that which the employer contends motivated it

to discharge the plaintiff, the individual with whom the plaintiff seeks to compare her treatment

must have been similarly situated. See Smith v. Leggett Wire Co., 220 F.3d 752, 762 (6th Cir.

2000) (discussing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.

1998)); see also Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 676 (6th Cir.

2008); Rutherford v. Britthaven, Inc., 452 F. App’x 667, 671 (6th Cir. 2011).


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Mencarelli v. Alfred Williams & Co.

       To establish that an employee is similarly situated, a plaintiff is simply “required to prove

that all of the relevant aspects of [her] employment situation were nearly identical to those of the

[comparator]”; that is, that the comparator dealt with the same supervisor, was subject to the

same standards and engaged in the same conduct without such differentiating or mitigating

circumstances that would distinguish her conduct or the employer’s treatment of her for it.

Ercegovich, 154 F.3d at 352 (emphasis in original) (citation omitted). “Differences in job title,

responsibilities, experience, and work record can be used to determine whether two employees

are similarly situated.” Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004).

       Assuming that Mencarelli established that she and Fritsch engaged in substantially

similar conduct, she nonetheless presented insufficient evidence that she and Fritsch were

similarly situated to survive summary judgment. Mencarelli established only that she and Fritsch

reported to the same supervisor, Limmer. As the account manager of the Vanderbilt account,

Mencarelli was the head of AWC’s Vanderbilt team; the “quarterback,” as Limmer put it.

Vanderbilt was AWC Nashville’s most important account and Mencarelli’s principal client.

Fritsch, in contrast, worked on various accounts, reported to several account managers, and was

not responsible for managing the account. Mencarelli attempts to sidestep the requirement that

the comparator be subject to the same standards as she was subjected to by asserting, as she did

below, PID 740 n.17, that “it would be impossible to produce such evidence because Mencarelli

was the only account manager within her team.” PID 382; Appellant Br. 32. But, as mentioned,

in addition to Mencarelli, four other account managers at the Nashville office reported to




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Mencarelli v. Alfred Williams & Co.

Limmer. Mencarelli presented no evidence that Limmer treated any younger account managers

more favorably than he treated her.

       We also reject Mencarelli’s argument that the district court “did not consider relevant

comparator evidence” in determining that AWC’s proffered reasons for discharging her had a

basis in fact. Appellant Br. 35. The district court did in fact consider this argument. The district

court determined that even if Mencarelli established that she and Fritsch engaged in substantially

similar conduct, the two “were not similarly situated for purposes of that comparison” because

“it is undisputed that Mencarelli and Fritsch had different job titles, duties, and responsibilities.”

Thus Mencarelli “has not demonstrated that she was similarly situated to Fritsch in all necessary

respects, nor has she established that she and Fritsch could be appropriately judged by the same

standards.” PID 740-41.

       Mencarelli failed to establish pretext in this manner because she presented insufficient

evidence either that AWC’s proffered reasons for discharging her had no basis in fact or that they

did not actually motivate her discharge.

                                                 2.

       Next, Mencarelli asserts that the district court ignored her argument that AWC’s

changing rationale for her discharge evidenced pretext. Mencarelli maintained that, in response

to her interrogatory requests, AWC claimed that Vanderbilt University expressed a lack of

confidence in her, but on deposition, Limmer testified that no one at Vanderbilt actually

complained about Mencarelli’s job performance. Mencarelli maintains that, once Limmer was

deposed, AWC’s explanation for discharging her shifted from Vanderbilt expressing a lack of


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Mencarelli v. Alfred Williams & Co.

confidence in Mencarelli to Limmer’s belief that Vanderbilt was losing confidence in her

because a main contact at Vanderbilt mentioned tension between Mencarelli and Fritsch in a

meeting.5

       The district court addressed this argument at some length:

       Mencarelli contends [that AWC’s proffered reasons for discharging her had no
       basis in fact] because no one from Vanderbilt ever expressly stated to Limmer
       that they had lost confidence in Mencarelli. However, Mencarelli has adduced no
       evidence that Limmer, who was used to dealing with Vanderbilt (AWC’s main
       Nashville client) on a regular basis, did not actually believe that Vanderbilt was
       losing confidence in Mencarelli after the (1) meeting in which Mencarelli did not
       take notes and (2) conversation between Limmer and [Vanderbilt’s Stephanie]
       Sieve in which Sieve reported tension between Mencarelli and Fritsch. Rather,
       Mencarelli merely disagrees with Limmer’s assessment of her performance and
       Limmer’s business judgment about what he perceived to be Vanderbilt’s
       developing reaction to it, and calls them both “irrelevant.” This is insufficient to
       show pretext. See, e.g., Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir.
       1992) (holding that the plaintiff’s subjective skepticism regarding the truth of an
       employer’s representation does not raise a triable issue as to pretext); see also
       Hedrick v. W. Reserve Cas. Sys., 355 F.3d 444, 462 (6th Cir. 2004) (noting that
       disagreement with what an employee’s supervisor considers important to an
       employee’s job performance is not enough to show pretext). The court will not sit
       in subjective judgment regarding Limmer’s views on Mencarelli’s job
       performance based solely upon Mencarelli’s bare assertion, bereft of evidentiary
       support, that Limmer did not actually believe that Mencarelli was turning into an
       employee of concern. Moreover, it was for Limmer, the market president
       invested with the discretion to hire, evaluate, and fire account managers–and
       Mencarelli’s direct supervisor–to decide what job performance concerns were
       “relevant,” not for Mencarelli to make that determination. Accordingly,
       Mencarelli has not established that the non-discriminatory reasons proffered by
       AWC have no basis in fact.

PID 735-37.


       5
           We note that AWC’s reply to Mencarelli’s response to the motion for summary judgment
explained that its interrogatory responses were verified by its chief financial officer, not Limmer, and
noted that Mencarelli’s response to its motion did not argue that Limmer’s lack of confidence in her
ability to work within the team structure had no basis in fact.

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Mencarelli v. Alfred Williams & Co.

         Because the district court convincingly addressed Mencarelli’s changing-rationale

argument, this challenge fails.

                                                III.

         Mencarelli’s final argument is that the same-actor inference should not have been a

dispositive factor in the district court’s grant of summary judgment in AWC’s favor. The same-

actor inference “allows one to infer a lack of discrimination from the fact that the same

individual both hired and fired the employee.” Buhrmaster v. Overnite Transp. Co., 61 F.3d 461,

463 (6th Cir. 1995).

         Here, the district court expressly acknowledged that the inference is “not dispositive” and

determined that the inference “is additional evidence that AWC’s reason for Mencarelli’s

termination is not pretextual.” PID 743 (emphasis added); see Wexler v. White’s Fine Furniture,

Inc., 317 F.3d 564, 573–74 (6th Cir. 2003) (holding that where “the factfinder decides to draw

the same-actor inference, it is insufficient to warrant summary judgment for the defendant if the

employee has otherwise raised a genuine issue of material fact”). The inference was not a

dispositive factor in the district court’s grant of summary judgment and we find no error.

                                                IV.

         For these reasons, we AFFIRM the district court’s grant of summary judgment in AWC’s

favor.




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