                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0162n.06

                                            No. 16-1559


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Mar 15, 2017
GERARD HOWLEY,
                                                                           DEBORAH S. HUNT, Clerk
          Plaintiff-Appellant,
v.
                                                     ON APPEAL FROM THE UNITED
FEDERAL EXPRESS                                      STATES DISTRICT COURT FOR THE
CORPORATION,                                         EASTERN DISTRICT OF MICHIGAN

          Defendant-Appellee.




BEFORE:          MERRITT, CLAY, and DONALD, Circuit Judges.

          CLAY, Circuit Judge. Plaintiff Gerard Howley sued Defendant Federal Express

Corporation (“FedEx”) pursuant to Michigan’s Elliot-Larsen Civil Rights Act, Mich. Comp.

Laws § 37.2101, et seq., alleging that Howley was the victim of unlawful age discrimination.

The district court granted summary judgment on behalf of FedEx and Howley now appeals. For

the reasons set forth below, we REVERSE the district court’s decision and remand for

proceedings consistent with this opinion.

                                       BACKGROUND

     I.   Factual background

          The Federal Express Corporation (“FedEx”) is an express transportation and package

delivery company based in Memphis, Tennessee. It maintains an Acceptable Conduct Policy,

which is outlined in an employee handbook. The policy states, in pertinent part, that the receipt
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of three letters of deficiency within a twelve month period may result in termination.

Additionally, the handbook outlines policies and procedures, violations of which serve as

potential grounds for disciplinary actions—including “leadership failure” and the use of abusive

language.

       Howley was employed at FedEx for twenty-one years, beginning in 1992 until his

termination on November 13, 2013. At the time of his termination, FedEx employed Howley as a

Dispatch Manager at its Great Lakes District Office in Novi, Michigan. Howley’s responsibilities

included supervising FedEx’s dispatchers and performing various administrative and managerial

tasks. From 2010 until his termination, Senior Manager of Dispatch Operations, Jaime Haboush

was Howley’s supervisor. Following Howley’s termination, Haboush selected James Person, age

57, to replace Howley.

       FedEx terminated Howley’s employment after he received three disciplinary letters in a

twelve month period. Prior to receipt of the disciplinary letters, Haboush counseled Howley on

several occasions relating to his conduct and performance. In March 2013, Haboush formally

disciplined Howley with a warning letter—his first offense. The discipline arose because an

employee, Debra Wagner, complained to Haboush that Howley used inappropriate language

towards her, including telling her that she was “pissing him off.” Haboush decided to discipline

Howley for his abusive language towards a subordinate because it contravened FedEx’s

Acceptable Conduct Policy.

       Howley received a second disciplinary warning in October 2013 for his failure to respond

to a subordinate employee’s e-mail regarding her request for time off pursuant to the Family

Medical Leave Act (“FMLA”), 29 U.S.C.A. § 2601, et seq. FedEx employee Karen Robert sent

Howley an e-mail informing him that she needed to take time off in order to accompany her



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father to an FMLA-approved medical appointment. When Howley failed to respond, Robert

independently sought cover for her shift from a co-worker. Other dispatchers complained to

Haboush about the coverage. Upon examining the matter, Haboush decided to issue Howley a

performance reminder to reaffirm his responsibilities as a supervisor.

       The third disciplinary letter was issued to Howley on November 13, 2013 for leadership

failure, and resulted in his termination. On November 1, 2013, one of Howley’s subordinates, Jo

Thomas, was speaking to an upset customer who demanded to see a manager about a missing

package. When Thomas could not reach the local manager, she asked Howley to speak with the

customer. Howley refused. Thomas complained to Haboush, who investigated the matter and

made the decision to issue a warning letter for leadership failure. Because this was Howley’s

third formal letter of deficiency within a year, Haboush terminated Howley’s employment in

accordance with the company’s Acceptable Conduct Policy. Howley appealed his termination,

and it was independently reviewed by various senior personnel in the company, all of whom

upheld Haboush’s decision.

 II.   Procedural History

       Howley filed a complaint in the United States District Court for the Eastern District of

Michigan under Michigan’s Elliot-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101, et

seq., alleging unlawful age discrimination. The district court exercised jurisdiction on the basis

of diversity. At the close of discovery, FedEx moved for summary judgment. Howley then

requested additional time to depose witnesses, which the district court granted, and allowed both

parties to file supplemental briefs. On December 10, 2015, the district court heard oral arguments

on both parties’ summary judgment motions, and on March 29, 2016, issued its opinion granting

FedEx’s motion. Howley filed a timely notice of appeal.



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                                          DISCUSSION

  I.   Standard of Review

       This Court reviews de novo a district court’s decision to grant a motion for summary

judgment. Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 535–36 (6th Cir. 2014).

Summary judgment is appropriate when the moving party can “show[ ] that 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). This Court views the facts and all reasonable inferences drawn therefrom in the

light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). The central issue is whether the evidence presents a material factual

dispute sufficient to require submission of a plaintiff’s claims to a jury or whether the evidence is

so lacking in plaintiff’s favor as to entitle a defendant to prevail as a matter of law. Ondricko v.

MGM Grand Detroit, LLC, 689 F.3d 642, 648 (6th Cir. 2012) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251 (1986)).

 II.   Analysis

       Under the Elliot-Larson Civil Rights Act, an employer shall not:

       Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an
       individual with respect to employment, compensation, or a term, condition, or
       privilege of employment, because of religion, race, color, national origin, age,
       sex, height, weight, or marital status.

M.C.L. § 37.2202(1)(a) (emphasis added). A plaintiff may prove discrimination through either

direct evidence of bias, or otherwise, when no direct evidence of impermissible bias can be

located, by satisfying the framework set forth in the Supreme Court case of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Hazle v. Ford Motor Co., 628 N.W.2d 515, 520

(2001). Howley argues that the district court erred in granting summary judgment to FedEx

because he put forward sufficient evidence of direct discrimination on the basis of age and

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because he satisfied the McDonnell Douglas test. We agree, finding Howley has provided

sufficient evidence of discrimination to defeat a motion for summary judgment.

       A. Direct evidence

       Under the Elliot-Larson Civil Rights Act, a plaintiff may produce direct evidence of

unlawful bias, and thus prove unlawful discrimination in the same manner as a plaintiff in any

other civil rights case. See, e.g., DeBrow v. Century 21 Great Lakes, Inc., 620 N.W.2d 836

(2001); Matras v. Amoco Oil Co., 385 N.W.2d 586 (1986). In its interpretation of the Elliot-

Larson Civil Rights Act, the Michigan Supreme Court has endorsed the Sixth Circuit’s definition

of “direct” evidence in the analogous federal Civil Rights Act and appropriated the analysis

accordingly. See Hazle, 628 N.W.2d at 520; see also Sniecinksi v. Blue Cross & Blue Shield, 666

N.W.2d 186, 192 (2003) (“[this Court] ha[s] previously cited with approval the United States

Court of Appeals for the Sixth Circuit’s definition of ‘direct evidence’ as ‘evidence which, if

believed, requires the conclusion that unlawful discrimination was at least a motivating factor in

the employer's actions.’”).

       Howley contends that he submitted evidence of “multiple statements that are direct

evidence of age-based discriminatory animus, and that those statements were made in temporal

proximity to, and tied to the decision to, both discipline and terminate [Howley].” Specifically,

Howley points to the following three remarks from deposition testimony as direct evidence of

discrimination: (1) Haboush inquired about how much money Howley made and expressed

surprise at the length of his employment with FedEx; (2) Haboush asked employees in the work

group about their retirement plans and “why they were still working”; and (3) Haboush

expressed concern that employees were “being old and not keeping up with technology, the fact

that they were . . . still around and should have retired.” (Appellant Br. at pg. 16). According to



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Howley’s deposition, Haboush made these comments throughout Haboush’s tenure as a

manager. Howley believes that these three statements are sufficient to show direct evidence of

discriminatory animus.1 While under some circumstances, this Court might be disinclined to find

that these statements, by themselves, are sufficient to constitute direct evidence of age-related

bias, under the circumstances presented in the instant case, we believe that an inference can be

drawn that Howley was terminated based on his age.

         As a threshold matter, there is some ambiguity over the standard that the Michigan courts

use to evaluate direct evidence of age-related bias claims. Prior to the Supreme Court’s decision

in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), this Court defined direct evidence as that

evidence “which, if believed, requires the conclusion that unlawful discrimination was at least a

motivating factor in the employer’s actions.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d

564, 570 (6th Cir. 2003) (en banc). In Gross, however, the Supreme Court specifically held that

the inquiry is whether the plaintiff has proven “by a preponderance of the evidence . . . that age

was the ‘but-for’ cause of the challenged employer decision.” Geiger v. Tower Auto., 579 F.3d

614, 621 (6th Cir. 2009) (explaining the Supreme Court decision in Gross). Subsequently, this

Court has held that direct evidence of bias is evidence that, if believed, “requires the conclusion

that age was the ‘but for’ cause of the employment decision.” Scheick v. Tecumseh Pub. Sch.,

766 F.3d 523, 530 (6th Cir. 2014). Although the Michigan courts purport to follow the federal




         1
            FedEx contends that Howley forfeited his argument regarding the existence of direct evidence of age
discrimination on appeal by failing to present the issue before the district court. Having reviewed the briefing before
the district court, we do not agree. While Howley did not explicitly state that his argument was one of direct
evidence of discrimination, he properly raised the factual circumstances giving rise to a direct evidence claim;
accordingly, we find that he did not waive his argument.

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standard under the Age Discrimination in Employment Act (“ADEA”), they have not explicitly

endorsed the post-Gross standard.2

         Under normal circumstances, the alleged remarks made by Haboush might be viewed as

simply too attenuated from the termination process to constitute direct evidence of

discrimination. And we generally recognize that statements about the impending retirement of

employees are not, by themselves, sufficient to constitute direct evidence of discrimination. See

Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 724 (6th Cir. 2012). We similarly recognize

that “statements by decision makers unrelated to the decisional process itself [cannot] suffice to

satisfy the plaintiff’s burden of demonstrating animus.” Geiger, 579 F.3d at 621. However, in

this case, it is not just the statements themselves that suggest a discriminatory intent on the part

of FedEx.

         Most significantly, there are the suspicious circumstances surrounding Howley’s

termination that give rise to a negative inference of age discrimination. FedEx contends that it

had legitimate reasons for issuing a warning to Howley on all three occasions for which he was

disciplined. However, this Court is struck by the relatively minor nature of Howley’s offenses

and wonders whether any of them merited termination. In the first instant, Howley allegedly

directed the term “pissed off” at a subordinate. As an initial matter, Howley disputes this

account, asserting that although he used the phrase in question, he never directed the language at

his subordinate. This already suggests a disputed issue of material fact. But more importantly,

evidence in the record exists to show that much more egregious language than that used by

Howley was regularly used in the workplace, including by Haboush himself. The infraction

posed by the use of the term “pissed off,” especially in light of the evidence showing that much

         2
            In the most recent Michigan Supreme Court opinion analyzing discrimination, the court noted in passing
that “the best general definition of direct evidence is that it is evidence that proves impermissible discriminatory bias
without additional inference or presumption.” Hecht v. Nat’l Heritage Acads., Inc., 886 N.W.2d 135, 147 (2016).

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more derogatory language was used in the workplace, appears to this Court to be rather mild, and

therefore, probably not warranting discipline. The second disciplinary action also seems

unjustified. Allegedly, Howley failed to respond to one subordinate’s e-mail requesting time off,

which purportedly led to an employee complaint. However, there is evidence in the record

stating that no other employee has been subject to disciplinary action for failing to promptly

respond to a single e-mail. A supervisor in Howley’s position receives dozens of e-mails in a

given day, and the failure to respond to one, especially one that resulted in no tangible harm to

FedEx’s operation, hardly merited formal disciplinary action, and eventually termination.

Finally, the third disciplinary action also resulted from behavior that appears fairly innocuous.

Howley allegedly failed to speak to a customer, in the absence of the responsible manager, in

order to help the customer deal with a missing package that both parties concede Howley had no

knowledge about or any responsibility for. Perhaps Howley could have conducted himself in a

manner more befitting of a supervisor and attempted to pitch in and pacify the customer, but

again there does not appear to be any significant dereliction of duty.

       The innocuous nature of the conduct giving rise to Howley’s termination is all the more

apparent when contrasted with Howley’s previous twenty-one years of employment at FedEx.

The parties point to no other disciplinary action that was taken against Howley throughout his

twenty-one year tenure. However, upon the appointment of Haboush as Howley’s supervisor,

Howley managed to accumulate three warning letters within a nine month span. Given the

insubstantial nature of the incidents giving rise to the disciplinary actions, when coupled with

Haboush’s statements concerning age and his purported attempt to reassign Howley to an

alternative position requiring Howley to take a fifty percent pay cut, this Court cannot help but




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come away with the conclusion that there are disputed issues of material fact regarding Howley’s

termination.

       Accordingly, notwithstanding the evidence that Howley may have violated certain

company policies, the evidence taken as a whole, and in the light most favorable to Howley, is

sufficient to permit a reasonable juror to conclude that age was the but-for cause of FedEx’s

decision to terminate Howley’s employment. Although the fact finder may ultimately determine

otherwise, Howley has met his burden to avoid summary judgment and to present his case to a

jury. Alternatively, we also find that Howley has made out his prima facie case under the

McDonnell Douglas.

       B. Prima facie case

       Under the framework established in McDonnell Douglas, if a plaintiff cannot prove

discriminatory intent by direct evidence, he may do so by making out a prima facie case of age

discrimination through indirect or circumstantial evidence. See Martin v. Toledo Cardiology

Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008); Hazle, 628 N.W.2d at 520. Once a prima

facie case has been made, the burden shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the adverse employment action. Lefevers, 667 F.3d at 725. If a

defendant comes forward with appropriate reasons for termination, “‘the plaintiff must produce

sufficient evidence from which the jury may reasonably reject the employer’s explanation’ as

pretextual.” Martin, 548 F.3d at 410–11 (quoting Manzer v. Diamond Shamrock Chems. Co., 29

F.3d 1078, 1083 (6th Cir. 1994)).

       To establish a prima facie case of discrimination under the Elliot-Larson Civil Rights

Act, a plaintiff must prove four things: “(1) [he] belonged to a protected class, (2) [he] suffered

an adverse employment action, (3) [he] was qualified for the position, and (4) [the adverse



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employment action] occurred under circumstances giving rise to an inference of unlawful

discrimination.” Sniecinski, 666 N.W.2d at 193. The standard used to establish a prima face case

under the Elliot-Larson Civil Rights Act is the same as the standard used by this Circuit in cases

involving the ADEA. See Town v. Michigan Bell Tel. Co., 568 N.W.2d 64 (1997). FedEx does

not dispute that Howley can satisfy the first three elements of his prima facie case, and instead

argues that Haboush’s actions do not give rise to an inference of discrimination.

       A plaintiff can satisfy the fourth prong of the prima facie test by showing that he was

“treated differently from similarly situated employees outside the protected class.” Mitchell v.

Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004). Howley argues that he has submitted

substantial evidence that similarly situated persons regularly violated FedEx policies without

being terminated. This Court agrees.

       As a threshold matter, FedEx contends that any inference of age discrimination is

rebutted by the fact that Howley was replaced by an older employee. While this certainly is

probative evidence that Howley suffered no age-discrimination, it is not dispositive. This Court

has stated that one way an employee can make out a prima facie case is by showing that she was

replaced by someone outside the protected class. See Martin, 548 F.3d at 410. However, another

avenue available to the employee is to show that “she received different treatment than a

similarly situated non-protected employee.” Oliver v. St. Luke's Dialysis LLC, 491 F. App’x 586,

587 (6th Cir. 2012); see also, Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 347–48 (6th Cir.

2012) (identifying that the fourth prong can be satisfied by showing that “either a person outside

the protected class replaced [the employee] or [the employee] received different treatment than a

similarly situated non-protected employee.”) (emphasis added). Accordingly, Howley is still

entitled to make out his prima facie case if he can show that his treatment differed from that of



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similarly situated younger employees with respect to the individual disciplinary actions that were

taken against him.

       The crux of this inquiry turns on the term “similarly situated.” To satisfy the similarly

situated requirement, a plaintiff must demonstrate that the comparable employee is similar “in all

of the relevant aspects.” Martin, 548 F.3d at 412. We have made clear that this does not mean

that the plaintiff must demonstrate an exact correlation. See Ercegovich v. Goodyear Tire &

Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). This Court looks “at those factors relevant to the

factual context” in order to determine whether an employee is similarly situated. Jackson v.

FedEx Corp. Servs., Inc., 518 F.3d 388, 396 (6th Cir. 2008). This includes examining whether a

plaintiff’s proposed comparators engaged in acts of comparable seriousness. Bobo v. United

Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012). But we have not required all the factual

circumstances to be identical before we considered a younger employee to be “similarly

situated.”

       In examining each of the incidents at issue, this Court finds that Howley has satisfied the

similarly situated requirement and made out his prima facie case. With respect to the first

disciplinary action taken against him, Howley has come forward with testimony in the record

stating that employees who were considerably younger than him used inappropriate language in

the workplace all the time. Even Haboush allegedly cursed during staff meetings. FedEx argues

that the circumstances surrounding Howley’s use of inappropriate language are different because

Howley targeted his inflammatory language toward a subordinate. However, Howley disputes

this account. On a motion for summary judgment, this Court credits Howley’s version of the

facts. Therefore, we find that sufficient evidence has been presented of similarly situated

individuals who engaged in conduct identical to Howley—cursing in the workplace—and



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escaped punishment. Likewise, for each of the other two disciplinary incidents, Howley has put

forward evidence that no one—including younger employees—had ever been disciplined for

either failing to respond to an e-mail or by declining to speak to a customer concerning a lost

package. In light of this evidence, the Court concludes that Howley has satisfied his prima facie

case of age discrimination.

       According to the framework set forth in McDonnell Douglas, after Howley successfully

establishes his prima facie case, the burden shifts to FedEx to articulate a legitimate, non-

discriminatory reason for the employment action. 411 U.S. at 802. With respect to each

disciplinary action undertaken against Howley, FedEx presented an arguably legitimate and non-

discriminatory reason. A legitimate, non-discriminatory reason is one “which, if believed by the

trier of fact, would support a finding that unlawful discrimination was not the cause of the

employment action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993). This Court

has repeatedly held that violations of company policies, poor managerial skills, or leadership

failures are legitimate, non-discriminatory reasons for disciplining or discharging an employee.

See Idemudia v. J.P. Morgan Chase, 434 F. App’x 495, 502 (6th Cir. 2011) (poor management

of a branch bank office, operation issues, and failure to follow policy and procedures were

legitimate nondiscriminatory reasons for terminating the employee); Clark v. Walgreen Co., 424

F. App’x 467, 473 (6th Cir. 2011) (violation of company policy is a legitimate,

nondiscriminatory reason for firing a plaintiff); Bowie v. Advanced Ceramics Corp., 72 F. App’x

258, 263 (6th Cir. 2003) (lack of leadership skills constitute a non-discriminatory reason for

terminating an employee).

       Once the employer meets its burden under step two of McDonnell Douglas, Howley must

demonstrate that the articulated reason is mere pretext for discrimination. See Blizzard v. Marion



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Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012) (citing Sutherland v. Mich. Dep’t of Treasury, 344

F.3d 603, 615 (6th Cir. 2003). To do so, Howley must “produce sufficient evidence from which

the jury may reasonably reject the employer’s explanation.” Idemudia, 434 F. App’x at 502. This

requires demonstrating that “the employer’s given reason for its conduct ‘had no basis in fact,

did not actually motivate the defendant’s challenged conduct, or was insufficient to motivate the

defendant’s challenged conduct.’” Lefevers, 667 F.3d at 725 (quoting Schoonmaker v. Spartan

Graphics Leasing, LLC, 595 F.3d 261, 269 (6th Cir. 2010)). We believe that there is a sufficient

basis for a jury to conclude that FedEx’s articulated reasons did not actually indicate its

motivation for terminating Howley. Our conclusion rests in part upon the suspicious

circumstances surrounding Howley’s termination, which we have described at sufficient length

in the preceding section. And our conclusion is further buttressed by the age-related comments

made by Haboush toward Howley and other employees. Consequently, we find that the district

court improperly entered judgment against Howley with respect to his age discrimination claim.

                                        CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s decision to grant summary

judgment and remand for proceedings consistent with this opinion.




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