                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0413n.06

                                   Nos. 16-2262 / 16-2306

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                FILED
                                                                              Jul 17, 2017
HUGH M. ROSENTHAL,                                    )                  DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellant/Cross Appellee,            )
                                                      )
                                                            ON APPEAL FROM THE
v.                                                    )
                                                            UNITED STATES DISTRICT
                                                      )
                                                            COURT FOR THE EASTERN
FAYGO BEVERAGES, INCORPORATED;                        )
                                                            DISTRICT OF MICHIGAN
NATIONAL BEVERAGE CORPORATION,                        )
                                                      )
       Defendants-Appellees/Cross Appellants.         )


BEFORE: KEITH, BATCHELDER and GRIFFIN, Circuit Judges.

       DAMON J. KEITH, Circuit Judge.            Plaintiff Hugh M. Rosenthal (“Rosenthal”)

appeals, and Defendants Faygo Beverages, Inc. (“Faygo”) and National Beverage Corp.

(“NBC”) (collectively “Defendants”) cross appeal, the district court’s order granting summary

judgment in favor of Defendants, with respect to Rosenthal’s claim that he was discriminated

against on the basis of age in violation of the Age Discrimination Employment Act (“ADEA”),

29 U.S.C. §§ 621 et seq., and Michigan’s Elliot-Larsen Civil Rights Act (“ELCRA”), Mich.

Comp. Laws §§ 37.2201 et seq. For the reasons that follow, we AFFIRM.

                                       I.     Background

       Initially, Rosenthal was employed by an outside vendor that Faygo used for its marketing

services; there, Rosenthal managed Faygo’s account. However, in 1992, Faygo terminated its

contract with the outside vendor, having decided they only wanted to work with Rosenthal.

Accordingly, Rosenthal formed Rosenthal & Company Advertising (“RCA”). On October 8,
Nos. 16-2262 / 16-2306, Rosenthal v. National Beverage Corporation et al.


1992, RCA entered into an agreement (“the Agreement”) with Faygo, in which RCA agreed to

provide Faygo with advertising and marketing services. Rather than pay Rosenthal directly,

pursuant to the Agreement, Faygo paid RCA twice a month, which then paid Rosenthal a salary.

       In January 2008, Rosenthal approached Al Chittaro (“Chittaro”), the Executive Vice

President of Faygo, whom Rosenthal directly reported to, about reducing his work schedule from

five to three days a week. Chittaro granted Rosenthal’s request and started paying RCA a

reduced monthly amount thereafter.

       Rosenthal asserts that in 2008 or 2009, Chittaro began asking plaintiff about his

retirement plans approximately two to three times per year. Furthermore, Rosenthal asserts that

from 2004 onward, Joe Caporella (“Caporella”), the president of NBC, began asking him about

retirement annually, following a human resources presentation regarding older workers and early

retirement. Additionally, Rosenthal asserts that in November 2011, Defendants began to send

him articles on urinary incontinence, advanced age macular degeneration, and advanced age

cognitive impairment.

       In November 2011, Rosenthal was told by Chittaro’s assistant, Dawn Burch (“Burch”),

that Faygo had publicly posted a job announcement online for a position at Faygo entitled

“Brand Manager.” Defendants assert that Chittaro created the position because he felt that “a full

time marketing person could improve the quality and quantity of Faygo’s marketing and perform

a wider variety of functions” that Rosenthal “could not have performed.” Chittaro believed that

Rosenthal did not provide sufficient support to Defendants’ marketing teams and internal staff,

he was resistant to efforts to expand marketing beyond traditional markets, his overall conduct

was contrary to professional standards and ethics, and that a new brand manager was needed to

remedy these deficiencies and to respond properly to social media posts by consumers.


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       Thereafter, on July 24, 2012, Chittaro terminated Rosenthal’s services. Rosenthal was 68

years old at the time. Subsequently, Josh Bartlett, 37 years old, was hired for the Brand Manager

position, and was fired after holding the position for under a year. Following his own

termination, Rosenthal filed a charge of unlawful age discrimination with the Equal Employment

Opportunity Commission and received a right to sue letter. Thereafter, he commenced this action

in the United States District Court for the Eastern District of Michigan against Defendants. The

parties filed cross motions for summary judgment, pursuant to Federal Rule of Civil Procedure

56. The district court ruled in favor of Defendants, granting their motion and deeming

Rosenthal’s motion moot. Rosenthal timely appealed and Defendants filed a cross appeal,

asserting alternative bases for affirmance.

                                     II.      Standard of Review

        “We review a district court order granting summary judgment de novo.” Coble v. City of

White House, Tenn., 634 F.3d 865, 867 (6th Cir. 2011) (citation omitted). “Summary judgment

is proper if the evidence, taken in the light most favorable to the nonmoving party, shows that

there are no genuine issues of material fact and that the moving party is entitled to a judgment as

a matter of law.” Id. at 867–68 (quoting Schreiber v. Moe, 596 F.3d 323, 329 (6th Cir. 2010)).

On appeal from a grant of summary judgment, the appropriate inquiry is “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251–52 (1986). Further, when reviewing the trial court’s grant of a summary judgment motion,

the moving party's evidence “must be viewed in the light most favorable to the [nonmoving]

party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations

and internal quotations omitted). However, if the nonmoving party has failed to make a sufficient


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showing on an essential element of the case with respect to which it has the burden of proof, the

moving party is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986).

                               III.   Applicable Law and Analysis

       Rosenthal alleges that Defendants terminated him because of his age in violation of the

ADEA and the Elliot–Larsen Civil Rights Act (“ELCRA”). The same analysis governs both

claims. See Geiger v. Tower Auto., 579 F.3d 614, 626 (6th Cir. 2009). The ADEA prohibits

employers from making adverse employment decisions because of an individual’s age. 29 U.S.C.

§ 623(a)(1). Similarly, the ELCRA prohibits an employer from discharging an employee

“because of” age. Mich. Comp. Laws 37.2022(a). “The ultimate question in every employment

discrimination case involving a claim of disparate treatment is whether the plaintiff was the

victim of intentional discrimination.” Geiger, 579 F.3d at 622 (internal citation omitted). Age

discrimination claims brought under the ADEA and ELCRA are analyzed under the same

framework, and a plaintiff may establish a violation of both through either direct or

circumstantial evidence. Tiley v. Kalamazoo Cty. Road Comm’n, 777 F.3d 303, 307 (6th Cir.

2015). Rosenthal presents his case using circumstantial evidence. Circumstantial evidence is

analyzed under the McDonnell Douglass burden-shifting framework. Id. at 308. Under the

McDonnell Douglas burden-shifting framework, the plaintiff must establish a prima facie case of

discrimination. Geiger, 579 F.3d at 620. The plaintiff may make such a showing by establishing

that: (1) he was a member of a protected class; (2) he was qualified for the position held; (3) he

was discharged; and (4) he was replaced by someone outside of the protected class. Id. at 622–23

(citations omitted).




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        If the plaintiff establishes his prima facie burden, the burden of production shifts to the

employer to articulate a legitimate nondiscriminatory reason for the adverse employment action;

if the employer meets this burden, the burden of production shifts back to the plaintiff to show

that the employer’s explanation was a mere pretext for intentional age discrimination. Allen v.

Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008). The burden of persuasion is at all

times on the plaintiff to demonstrate “that age was the ‘but-for’ cause of their employer’s

adverse action.” 1 Geiger, 579 F.3d at 620 (internal citation omitted). “On a motion for summary

judgment, a district court considers whether there is sufficient evidence to create a genuine

dispute at each stage of the McDonnell Douglas inquiry.” Provenzano v. LCI Holdings, Inc.,

663 F.3d 806, 812 (6th Cir. 2011) (quoting Macy v. Hopkins Cty. Sch. Bd. of Educ., 484 F.3d

357, 364 (6th Cir. 2007)).

        The district court determined that Chittaro’s decision to terminate Rosenthal for

unsatisfactory performance was not pretext for age discrimination in violation of the ADEA or

ELCRA, notwithstanding evidence that Chittaro and Caporella asked Rosenthal about his

retirement plans and that Rosenthal was sent articles on advanced-age related health topics. The

district court considered evidence that Chittaro believed that Rosenthal did not provide sufficient

support to his colleagues, resisted market expansion efforts, lacked professionalism, and that a

new brand manager was needed to remedy these deficiencies and to respond appropriately to

social media posts by consumers.

        On appeal, Rosenthal asserts that the district court erred in: (1) declining to determine

whether Plaintiff established a prima facie case of age discrimination; (2) determining that

1
  Michigan courts have applied a different causation standard to age discrimination claims under the ELCRA
(whether age was a determinative or motivating factor). See Richardson v. Wal-Mart Stores, Inc., 836 F.3d 698,
702–03 (6th Cir. 2016); See also Town v. Mich. Bell Tel. Co., 568 N.W.2d 64, 68–69 (Mich. 1997). Yet, we need not
decide today which causation standard applies to ELCRA age discrimination claims because Rosenthal’s claim fails
under either standard.

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Nos. 16-2262 / 16-2306, Rosenthal v. National Beverage Corporation et al.


Defendants proffered a legitimate business reason for terminating Plaintiff; and (3) finding that

Plaintiff did not introduce additional evidence at the pretext stage of analysis. Defendants, in

response to Rosenthal, argue on cross appeal that even if Rosenthal’s assertions are true, there

are alternative reasons for upholding the district court’s decision, even if the district court never

addressed those arguments. Specifically, Defendants assert: (1) there is no basis for liability

against NBC and (2) Rosenthal is estopped from claiming he was an employee of Faygo because

he consistently assumed the position of an independent contractor and was an employee of RCA.

However, the court does not find it necessary to address Defendants’ alternative arguments

because the district court’s determinations were proper.

        A. Prima facie case of age discrimination

        Regarding whether Rosenthal established a prima facie case of discrimination, the district

court stated that:

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

Rosenthal v. Nat'l Beverage Corp., 202 F. Supp. 3d 700, 704 (E.D. Mich. 2016). Rosenthal takes

issue with the court’s analysis, arguing that it erred in declining to determine whether Plaintiff

established a prima facie case of age discrimination, and deeming such analysis irrelevant. We

disagree with Rosenthal’s contention.

        The district court did not decline to determine whether Rosenthal established a prima

facie case of age discrimination; rather, the district court assumed, in Rosenthal’s favor, that he

had made out a prima facie case. A district court may certainly assume that a plaintiff makes out

a prima facie case, move past this analytical step, and conclude that summary judgment should


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Nos. 16-2262 / 16-2306, Rosenthal v. National Beverage Corporation et al.


be granted to a defendant because the defendant establishes a non-discriminatory reason for its

decision to terminate its employee and the plaintiff fails to demonstrate pretext. See, e.g., Frizzell

v. Sw. Motor Freight, 154 F.3d 641, 646 (6th Cir. 1998). Rosenthal suffered no harm as a result

of the district court’s assumption, since it was accepted in his favor.

       To the extent we are able to discern Rosenthal’s argument, he argues that by assuming he

set forth a prima facie case, the district court deprived him of the “presumption that Defendants

unlawfully discriminated against Plaintiff,” that results from the establishment of a prima facie

case. This argument is unfounded. The district court assumed that the prima facie case was

established, thereby concluding by implication that Rosenthal had demonstrated: (1) membership

in a protected group; (2) qualification for the job in question; (3) an adverse employment action;

and (4) “circumstances that support an inference of discrimination.” Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 510 (2002) (emphasis added). Thus, contrary to Rosenthal’s contention, he

was in fact granted the presumption that Defendants discriminated against him, when the district

court presumed he established a prima facie case for age discrimination.

       B. Defendants’ legitimate nondiscriminatory reasons for Rosenthal’s termination

       Having assumed that Rosenthal established his prima facie case, the district court next

sought to determine whether Defendants articulated a legitimate nondiscriminatory reason for the

adverse employment action. Defendants’ stated reasons for why Chittaro terminated Rosenthal’s

services were that:

       (i) Chittaro “needed someone who would make his job easier, not harder”; (ii)
       “Plaintiff was snarky with other employees and [Chittaro] was tired of cleaning
       up Plaintiff’s messes”; (iii) “Plaintiff would not do that which [Chittaro] asked
       him to do,” namely, provide additional support to outside marketing teams and the
       Faygo sales staff; (iv) Chittaro “wanted to expand the marketing function to
       include the duties on the brand manager job description”; and (v) “with the
       growth of social media, [Chittaro] could not trust Plaintiff to respond
       appropriately to posts by consumers.”

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Nos. 16-2262 / 16-2306, Rosenthal v. National Beverage Corporation et al.



Rosenthal, 202 F. Supp. 3d at 704. The district court reviewed the record, determined that these

reasons were supported by evidence, and concluded that in providing these bases for termination,

Defendants were essentially articulating that Chittaro was dissatisfied with Rosenthal’s services.

The district court then concluded that dissatisfaction is an “appropriate, non-discriminatory

explanation for termination.” Id. at 706.

       On appeal, Rosenthal argues that the district court erred in finding that Defendants

established legitimate explanations for Rosenthal’s termination by selectively reviewing the

record, ignoring facts that would have been helpful to Plaintiff, “attribute[ing] emotions and

interpretations to statements,’” and wrongfully resolving factual determinations in favor of

Defendants.

       “Under McDonnell Douglas and its progeny, once the plaintiff succeeds in making out a

prima facie case of age discrimination, the defendant must ‘articulate some legitimate,

nondiscriminatory reason’ for the termination.” Blizzard v. Marion Technical Coll., 698 F.3d

275, 283 (6th Cir. 2012) (citation omitted). Defendants assert a legitimate, non-discriminatory

explanation for his termination – namely, that Chittaro was dissatisfied with his services. Having

reviewed the district court’s opinion and the record, it is readily apparent that there was ample

evidence to support the conclusion that Chittaro was dissatisfied with Rosenthal’s services.

“Terminating an employee because he fails to perform satisfactorily is a legitimate and

nondiscriminatory reason to end his employment.” Cicero v. Borg-Warner Auto., Inc., 280 F.3d

579, 588 (6th Cir. 2002). In reaching its conclusion that Chittaro was dissatisfied with

Rosenthal’s work, the district court stated:

       [C]hittaro wanted Plaintiff to be more proactive on the sales front, by assisting
       sales staff with marketing strategies to drive the brand and providing sales staff
       with access to marketing information they would not otherwise have; Chittaro did

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Nos. 16-2262 / 16-2306, Rosenthal v. National Beverage Corporation et al.


       not feel that Plaintiff was delivering on that front. Chittaro Dep. Vol. 2, Ex. 4 to
       Pl. Resp., at 280-281, 285-291, 294 (Dkt. 58-6). Chittaro also asked Plaintiff to
       assist with marketing efforts in the southeastern markets, and to collaborate with
       “another division [to] promote and support [the] brand.” Id. at 248-249.
       Specifically, Chittaro wanted Plaintiff to develop ideas for cross-marketing
       programs, as well as to offer his assistance to individuals within those other
       markets. Id. at 250, 252, 254-255. However, Chittaro received complaints from
       marketing individuals that Plaintiff’s assistance always came with a cost, usually
       in the form of negativity or sarcasm. Id. at 255-256. In addition to sarcasm, other
       common complaints concerned Plaintiff’s unapproachability, his unwillingness to
       help, and not being a team player. Chittaro Dep. Vol. 1, Ex. 6 to Pl. Resp., at 46,
       58-59, 62, 66 (Dkt. 58-8).

       Defendants include with their motion several emails sent by Plaintiff to influential
       employees of NBC and its various subsidiaries, which could be construed as
       disrespectful or disparaging of others. See Ex. J to Defs. Mot. at 7, 9, 13-14, 15
       (cm/ecf pages) (Dkt. 54-11); Ex. M to Defs. Mot. (Dkt. 54-14). For example,
       Vanessa Walker, an NBC employee, asked Plaintiff about his marketing plans for
       Faygo in southeastern markets, noting that the area comprised a large portion of
       Faygo’s sales, to which Plaintiff responded in a sarcastic fashion, and then
       forwarded Walker’s response, which expressed surprise at Plaintiff’s tone, to
       another NBC employee along with a disparaging remark. Ex. J at 13-14 (cm/ecf
       pages). Chittaro testified not only that the email was inappropriate, but that he
       also found it problematic that Plaintiff’s response stated that Plaintiff knew
       nothing about Faygo’s sales in that market. Chittaro Dep. Vol. 2 at 351. Chittaro
       cited this as an example of Plaintiff resisting efforts to expand Faygo marketing
       beyond traditional markets and to collaborate with the broader NBC marketing
       team. Id. at 328-329, 352-353; see also Chittaro Dep. Vol. 1 at 67-69. Other
       emails reflect Plaintiff’s inability to conduct himself with requisite
       professionalism. See Ex. M (rude and sarcastic email to NBC’s in-house legal
       counsel in response to an inquiry over a legal matter); Ex. N to Defs. Mot. (Dkt.
       54-15) (disparaging and condescending email Plaintiff proposed to send to NBC’s
       senior human resources advisor); Ex. O to Defs. Mot. (Dkt. 54-16) (rude and
       unprofessional email to third-party vendor).

       Chittaro further explained that “the way [Plaintiff] worked with the marketing
       team in Fort Lauderdale ... made [Chittaro’s] job tougher,” because Chittaro
       would have to “take the calls” and “fix and soften however [Plaintiff] responded.”
       Chittaro Dep. Vol. 1 at 95–96.

       Finally, Chittaro testified that “[y]ears of knowing [Plaintiff],” to be “sarcastic in
       nature,” made him concerned about how Plaintiff might respond to consumer
       posts via social media, although Chittaro could not recall a specific instance
       where Plaintiff was inappropriate to a consumer on a social media platform in the
       past. Id. at 43–45.


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Nos. 16-2262 / 16-2306, Rosenthal v. National Beverage Corporation et al.


Rosenthal, 202 F. Supp. 3d at 704–06. As this excerpt shows, the district court did not selectively

review the record or ignore facts that would have been helpful to Rosenthal; rather, the district

court set out to determine whether the record allowed Defendants to articulate some

nondiscriminatory reason for termination. Having reviewed the record in its entirety, we agree

with the district court’s determination and conclude there was ample evidence demonstrating that

Chittaro was dissatisfied with Rosenthal’s performance. Any assertion to the contrary is

unsubstantiated. 2

         C. Requiring Rosenthal to introduce additional evidence at the pretext stage of
            analysis

         After the district court determined that Defendants met their burden of articulating some

legitimate, nondiscriminatory reason for the termination, the district court shifted the burden

back to Rosenthal to demonstrate that the proffered explanation for termination was pretextual. A

plaintiff is able to establish pretext by demonstrating that: (1) the offered justifications had no

basis in fact; (2) the proffered reasons did not actually motivate the discharge; or (3) the reasons

were insufficient to motivate the action. Blizzard, 698 F.3d at 285 (citations and internal

quotations omitted). The district court recounted the particulars of Rosenthal’s argument in

detail, stating the following:

         Plaintiff does not expressly frame his argument on pretext using these well-known
         categories. Rather, he argues that while Chittaro claims that Plaintiff was difficult
         to get along with, and did point to Plaintiff’s “sarcasm [sic] ‘tone’ ” as an area of
         concern, Chittaro also testified that Plaintiff had been this way for a long time, yet
         he waited eight years before terminating the contract. Plaintiff also argues that
         many of the allegedly inappropriate comments Defendants now cite in support of

2
  Additionally, we note that Rosenthal also asserts that adjectives used by the district court - such as: rude,
disrespectful, disparaging, and unprofessional – in a couple of explanatory parenthetical sentences immediately
preceding citations to the parties’ exhibits were “impermissible at the summary judgment stage.” (First Br., ECF No.
27 at Pg. 24.) This assertion is of insignificant importance and Rosenthal’s reliance on Yazdian v. ConMed
Endoscopic Techs., Inc., 793 F.3d 634 (6th Cir. 2015) is unfounded. The district court did not make any improper
subjective determinations in its parentheticals. The court merely sought to direct its readers to particular portions of
the record.

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Nos. 16-2262 / 16-2306, Rosenthal v. National Beverage Corporation et al.


       their non-discriminatory rationale were sent to Chittaro and Alan Domzalski,
       whom Plaintiff counted among his friends. Plaintiff also points to certain remarks
       addressing Plaintiff’s work product as circumstantial evidence of age
       discrimination, because those comments invoked language indicative of age bias,
       such as “traditional” and “set in his ways,” and are not supported by any evidence
       that Plaintiff’s methods were actually problematic. Finally, Plaintiff claims that
       his preference to work part-time could not have formed a legitimate basis for
       termination, because Plaintiff offered to return to full-time work, and Chittaro
       waved that offer aside.

Rosenthal, 202 F. Supp. 3d at 706 (internal citations and footnote omitted).

       While Rosenthal did not expressly frame his argument using any of the three

abovementioned categories, the district court gathered that Rosenthal was attempting to assert

evidence that Defendant’s proffered reasons for Rosenthal’s termination did not actually

motivate his firing. The district court then rejected this argument, reasoning as follows:

        “[T]to [sic] make this type of rebuttal showing, the plaintiff may not rely simply
       upon his prima facie evidence but must, instead, introduce additional evidence of
       age discrimination.” Manzer [v. Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th
       Cir. 1994)]. Importantly, “a reason cannot be proved to be ‘a pretext for
       discrimination’ unless it is shown both that the reason was false, and that
       discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
       515 (1993) (emphasis in original).

Rosenthal, 202 F. Supp. 3d at 707 (internal footnote omitted). Plaintiff asserts that it was error

for the district court to rely on Manzer to conclude “that Plaintiff was required to introduce

additional evidence of age discrimination beyond his prima facie case at the pretext stage of the

McDonnell Douglas analysis.”

       In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme

Court rejected our holding in Manzer, in which we determined that a plaintiff must introduce

additional evidence of discrimination beyond his prima facie evidence. See Reeves, 530 U.S. at

149. “We have clarified that, after Reeves, the Manzer ‘additional evidence’ requirement is

limited to the production of evidence rebutting the defendant's proffered legitimate,


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nondiscriminatory reason for taking the challenged action.” Blair v. Henry Filters, Inc., 505 F.3d

517, 533 (6th Cir. 2007) (citing Cicero v. Borg-Warner Auto., Inc., 280 F.3d at 589), overruled

on other grounds, Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 n. 4 (2009).

        Upon de novo review, we conclude that notwithstanding the district court’s improper

citation to Manzer, Rosenthal is still unable to raise a genuine dispute of material fact regarding

pretext, and the lower court’s error is therefore not reversible. At this stage, “‘[t]he burden of

producing evidence of ‘pretext’ essentially merges with the burden of persuasion, which always

lies with the plaintiff.’” Gragg v. Somerset Technical Coll., 373 F.3d 763, 768 (6th Cir. 2004)

(quoting Wilkins v. Eaton Corp., 790 F.2d 515, 522 (6th Cir. 1986)). Here, Rosenthal has not

demonstrated that Defendants’ proffered legitimate, non-discriminatory reason for terminating

him was pretext for illegal discrimination on the basis of age.

        As properly summarized by the district court, the record is abundantly supplied with

evidence that Chittaro was dissatisfied with Rosenthal’s services. Rosenthal’s efforts to establish

that this legitimate explanation was just pretext for a decision actually motivated by an unlawful

bias against age simply fall flat.

        First, Rosenthal’s assertion that Chittaro and Caporella’s inquiry into his retirement plans

demonstrates pretext is unavailing. He does not assert that either Chittaro or Caporella ever

suggested that he retire or pressured him to retire, and thus, the district court correctly found that

mere inquiries alone are insufficient to establish an inference of discrimination. See Woythal v.

Tex–Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997) (distinguishing questions that amounted to

pressure or suggestions to retire from mere inquiries).

        Rosenthal also claims he was sent “articles on age-related health topics via e-mail.” With

respect to this claim, the district court properly concluded the following:


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       Plaintiff acknowledged that “part of the intent [of the articles was to cover various
       health topics], but the fact at that point, [he] took them to be more than that.”
       Plaintiff did not know whether the emails were distributed to all NBC employees,
       but he had no reason to believe it was pinpointed strictly to him, other than “it felt
       like it.”

Rosenthal, 202 F. Supp. 3d at 709 (internal citations omitted). The district court properly

concluded that a plaintiff’s subjective interpretations or feelings are insufficient to establish

pretext. See Hein v. All Am. Plywood Co., Inc., 232 F.3d 482, 490 (6th Cir. 2000).

       Next, Rosenthal takes issue with the fact that during her deposition, Burch stated that

Rosenthal’s methods were “traditional”; he was “set in his ways”; and he demonstrated an

inability to “evolve.” The district court properly stated that these comments did not originate

from a decision maker, could not be attributed to a decision maker, and were made well after the

termination decision. Thus, even if taken as true, these statements could not support a jury

finding that Defendant’s proffered reasons for termination were intended to mask unlawful

discrimination. “Statements by non-decision makers, or statements by decision makers unrelated

to the decisional process itself can not suffice to satisfy the plaintiff's burden of demonstrating

animus.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir. 2004)

(internal quotation marks and citations omitted).

       Having reviewed the record in its entirety, we conclude that Defendants provide ample

evidence that Rosenthal resisted efforts to expand marketing beyond traditional markets, lacked

professionalism, and essentially was not team player. The proffered evidence demonstrates that

Chittaro believed a new brand manager was needed to expand marketing functions and to

respond appropriately to social media posts by consumers. Consistent with these findings, we

hold that Rosenthal fails to raise any genuine dispute of material fact that Chittaro’s reasons for

terminating his employment were pretextual.


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                                       IV.    Conclusion

       Accordingly, for the abovementioned reasons we AFFIRM.




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