                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0797n.06

                                         No. 13-3382


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

DONALD P. SNYDER,                              )                              FILED
                                               )                          Oct 22, 2014
       Plaintiff-Appellant,                    )                     DEBORAH S. HUNT, Clerk
                                               )
v.                                             )
                                                    ON APPEAL FROM THE UNITED
                                               )
                                                    STATES DISTRICT COURT FOR THE
PIERRE’S FRENCH ICE CREAM CO.,                 )
                                                    NORTHERN DISTRICT OF OHIO
                                               )
       Defendant-Appellee.                     )
                                               )
                                               )



BEFORE:       DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. At the time the controversy in this

case arose in the summer of 2010, plaintiff Donald Snyder was a 59-year-old former union

employee of defendant Pierre’s French Ice Cream Company. In October 2011, Snyder brought

two claims against Pierre’s under the Age Discrimination in Employment Act (ADEA),

29 U.S.C. § 623(a)(1): a disparate-treatment claim and a hostile-work-environment claim. In his

disparate-treatment claim, Snyder challenged the company’s recall decisions following a set of

layoffs, alleging that Pierre’s decision to depart from its practice of recalling laid-off union

employees to part-time and temporary positions only when Snyder was next-in-line for recall

constituted age-based discrimination in violation of the ADEA. In his hostile-work-environment

claim, Snyder alleged that numerous comments by his direct manager, John Bittinger, constituted

persistent and severe harassment in violation of the ADEA.       Pierre’s moved for summary
No. 13-3382
Snyder v. Pierre’s French Ice Cream Co.

judgment on both counts.      Ultimately, the district court granted both motions and entered

summary judgment in favor of Pierre’s. We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

Disparate-Treatment Claim

       Pierre’s is an Ohio corporation that manufactures and distributes ice cream products. In

January 2010, the company laid off 11 employees, including seven union members—among

them, Snyder. In conducting the layoffs, Pierre’s followed the seniority list for the Teamsters

Local 336 union, to which Snyder belonged, and thus laid off the least senior union member first.

Beginning in May 2010, due to the seasonal uptick in ice cream sales, Pierre’s was able to recall

some of the union employees that it had laid off, including James Crowder, Roberto Cruz, and

Chris Pogozelski, each of whom was more than ten years younger than Snyder. It conducted the

recalls in order of seniority, recalling the most senior union member first. After Pogozelski was

recalled, Snyder became next-in-line for recall.

       Pogozelski then resigned on July 20, 2010, and the company had to decide whether and

with whom to replace him. The collective bargaining agreement between Pierre’s and the union,

which Snyder helped negotiate, granted Pierre’s the right to hire a limited number of temporary

workers, who then received lower wages than full-time union employees and did not accrue

seniority or earn benefits. Because the summer was ending, Pierre’s president, Shelley Roth, and

David Cillian, Pierre’s manager of operations, “decided that it did not make economic sense to

bring back a full-time employee for the remainder of the season” to replace Pogozelski. Instead,

the company hired a temporary worker, who worked part-time at part-time wages and without

benefits for six weeks. Several other part-time, temporary positions became available at Pierre’s




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Snyder v. Pierre’s French Ice Cream Co.

while Snyder was at the top of the recall list. Pierre’s hired temporary workers to fill each of

those positions.

Hostile-Work-Environment Claim

       In 2007, several years before the lay-offs began, night warehouse manager John

Bittinger, who was Snyder’s direct supervisor and was then 29 years old, began making age-

related derogatory comments toward Snyder, who was 53 at the time. Snyder and another

employee, Andrew “Ken” Ashcraft, testified that Bittinger called them both “old man” and told

them they were “too slow” on a daily basis over the course of three years. Snyder testified that

Bittinger also asked him repeatedly if he needed a walker or a cane and once asked him if he

needed an oxygen tank. Bittinger allegedly told him, “Don, nothing against you personally, but

if I was in charge, I would never have hired you, you’re too old.” One day while Snyder was

loading the truck, Bittinger asked Snyder, “Can you handle that, old man?” And, when a truck

driver came to the warehouse wearing an oxygen mask, Bittinger told Snyder, “That’s going to

be you pretty soon.” Bittinger’s comments grew so frequent, Snyder testified, “It was just

abuse.” Snyder also testified that he liked his job and did it well, and that Pierre’s never

disciplined, suspended, or terminated him.      Still, Bittinger’s comments made Snyder feel

stressed, aggravated, frustrated, and humiliated, he said. His coworkers would stand around

“kind of chuckling” when Bittinger belittled him.

       Snyder approached Cillian several times to inform him of Bittinger’s harassment. Cillian

said he would look into the situation and tell Bittinger to stop making derogatory, age-related

comments to Snyder.




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Snyder v. Pierre’s French Ice Cream Co.

Grievance Process

       Snyder never filed a grievance while he worked at Pierre’s, saying later that he feared he

would be fired, but he did initiate the grievance process after he was laid off. An arbitrator

denied his grievance following a hearing.        Snyder subsequently filed a charge of age

discrimination with the Equal Employment Opportunity Commission (EEOC), complaining

about Pierre’s use of temporary workers and claiming that Bittinger’s harassment subjected him

to a hostile work environment. The EEOC issued a dismissal and a right-to-sue letter. Snyder

then filed this action in federal district court, alleging two claims under the ADEA. Pierre’s

moved for summary judgment on both counts. The district court granted Pierre’s motion for

summary judgment as to Snyder’s hostile-work-environment claim and denied it as to Snyder’s

disparate-treatment claim, finding with respect to the disparate-treatment claim that Snyder

offered sufficient evidence to proceed to trial. Pierre’s then filed a motion asking the district

court to reconsider its decision to deny summary judgment as to the disparate-treatment claim.

The district court granted the motion for reconsideration and, upon reconsideration, granted

summary judgment to Pierre’s on the disparate-treatment claim as well. Snyder now appeals the

district court’s decisions granting Pierre’s motion to reconsider and its motion for summary

judgment on both counts.

                                          ANALYSIS

Disparate-Treatment Claim

       We review a district court’s grant of summary judgment de novo. Geiger v. Tower Auto.,

579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is proper when “the movant shows 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); Martello v. Santana, 713 F.3d 309, 313 (6th Cir. 2013).


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The court must view “the evidence in the light most favorable to the nonmoving party and draw

all reasonable inferences in that party’s favor.” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 679

(6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “The

ultimate question 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.’”

Id. (quoting Anderson, 477 U.S. at 251-52).


       Snyder claims that Pierre’s discriminated against him on the basis of his age when it

failed to recall him to his job. The ADEA prohibits employers from discriminating against older

employees with respect to compensation, terms and conditions of employment, or privileges of

employment because of their age. 29 U.S.C. § 623(a)(1). A failure to rehire an individual after a

reduction in force can provide the basis of an ADEA claim. See Wanger v. G.A. Gray Co.,

872 F.2d 142, 145 (6th Cir. 1989). In establishing a claim, an ADEA plaintiff may prove age

discrimination through direct or circumstantial evidence. Geiger, 579 F.3d at 620. If the

plaintiff lacks direct evidence of discrimination, we apply the McDonnell Douglas burden-

shifting framework. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th

Cir. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).


       Snyder offered no direct evidence of disparate treatment—“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) (internal citation and quotation marks omitted). Direct evidence may “take the

form, for example, of an employer telling an employee, ‘I fired you because you are disabled [or

elderly].’” Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998). Thus, in order to prove a

disparate-treatment claim using direct evidence, Snyder must tie Pierre’s adverse employment
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Snyder v. Pierre’s French Ice Cream Co.

decision—here, a failure to recall—to the decision-maker’s age-based bias. Given the facts in

this record, he cannot do so.


       Snyder first attempts to support his disparate-treatment claim with evidence of Bittinger’s

age-related animus toward Snyder but, in the district court, he failed to offer evidence sufficient

to persuade a reasonable jury that Bittinger participated in the decision not to recall Snyder.

Although statements of anyone who is “meaningfully involved” in an adverse employment

decision may constitute direct evidence, even if that person lacks final decision-making

authority, Wells v. New Cherokee Corp., 58 F.3d 233, 238 (6th Cir. 1995), “comments made by

individuals who are not involved in the decision-making process regarding the plaintiff’s

employment do not constitute direct evidence of discrimination.” Carter v. Univ. of Toledo,

349 F.3d 269, 273 (6th Cir. 2003). Snyder argues that Bittinger was involved in the recall

decision because: Bittinger complained to Snyder and Cillian that the older employees Pierre’s

hired from temporary staffing agencies were too slow and less productive than younger workers,

which, Snyder claims, showed that Bittinger “consulted with Cillian about personnel decisions”;

Bittinger’s performance review by Cillian stated that “John [Bittinger] always does his best to

respond to changes in personnel, inventory and equipment.           He consistently assesses his

personnel needs based upon who may have called-off and reacts accordingly,” which, Snyder

claims, provides evidence that Bittinger was involved in and influenced Pierre’s hiring decisions;

Cillian copied Bittinger and Sullivan on the recall letters sent to Cruz and Pogozelski; and,

finally, Bittinger “rode” employees he wanted out of the warehouse, though Snyder identifies

only two employees, both of whom were “young guys,” as the employees whom Bittinger

“rode.” No reasonable jury could find, based on this evidence, that Bittinger was involved in

Pierre’s decisions about whom to recall following the company’s layoffs.

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       Snyder also argues that comments by Sullivan provide direct evidence that the company’s

failure to recall him was based on age discrimination. Although a reasonable jury might find that

Sullivan participated in Pierre’s recall decisions, no reasonable jury could conclude that she

discriminated against Snyder based on his age. Snyder must offer sufficient evidence that a

reasonable jury could “find by a preponderance of the evidence that age discrimination was a

determining factor in the employer’s decision.” Chappell v. GTE Prods. Corp., 803 F.2d 261,

268 (6th Cir. 1986). However, an employee’s “personal beliefs, conjecture and speculation

[regarding his employer’s bias] are insufficient to support an inference of age discrimination.”

Id. Snyder identifies only one discriminatory comment that Sullivan allegedly made to him.

According to Snyder’s deposition testimony, Sullivan interviewed Snyder about his

discrimination complaints and asked him if the manager before Bittinger made any

discriminatory comments against him. Snyder testified that he told Sullivan that his prior

manager had not made any discriminatory comments. According to Snyder, Sullivan then said,

“[Y]ou was much younger back then, Don . . . we was all much younger back then.” No

reasonable jury could conclude that Sullivan’s isolated comment during her investigation of

Snyder’s allegations constituted age discrimination. See id. Snyder was therefore unable to tie

the company’s recall decision to age discrimination using direct evidence.


       Because Snyder failed to offer direct evidence of discrimination, we next address

circumstantial evidence of discrimination by applying the McDonnell Douglas framework.

Ercegovich, 154 F.3d at 350 (citing McDonnell Douglas Corp., 411 U.S. at 792). Under that

framework, the plaintiff must first “present evidence sufficient to establish a prima facie case of

age discrimination,” id., which, if established, “raises a rebuttable presumption of

discrimination.” Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1390 (6th Cir.

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Snyder v. Pierre’s French Ice Cream Co.

1993) (per curiam). If the plaintiff succeeds at this first step, “the burden of production then

shifts to the defendant employer to provide a legitimate non-discriminatory reason for the

[adverse employment] action.” Id. If the defendant carries its burden, the burden of production

shifts back to the plaintiff. Id. At the final stage, the plaintiff must “show that the employer’s

nondiscriminatory explanation is a mere pretext for intentional age discrimination.” Ercegovich,

154 F.3d at 350. Here, Snyder’s claim failed at the first step, when he was unable to offer

evidence sufficient to establish the fourth element of a prima facie case.


       To establish a prima facie case of age discrimination, a plaintiff must demonstrate “by a

preponderance of the evidence that: (1) he was a member of the protected class (age forty to

seventy); (2) he was subjected to an adverse employment action; (3) he was qualified for the

position; and (4) he was treated worse than a younger person.” Barnhart, 12 F.3d at 1390.

Pierre’s concedes that Snyder satisfied the first three elements of a prima facie case. To satisfy

the fourth element, Snyder must show that Pierre’s “replaced him with a younger worker or . . .

treated similarly situated, non-protected employees more favorably.” Mickey v. Zeidler Tool &

Die Co., 516 F.3d 516, 521-22 (6th Cir. 2008).


       Snyder cannot show that Pierre’s replaced him with a younger worker. An allegation that

“the employer assigned the former employee’s work to an independent contractor that decided to

employ younger persons to do the plaintiff’s work is, without more, insufficient to establish a

prima facie case.” Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 786 (6th Cir. 2007).

In this case, Pierre’s requested temporary workers from an outside company to fill certain

positions, and Snyder offered no evidence that Pierre’s requested young workers or played any

role in choosing the workers the agency provided. Snyder also failed to offer evidence showing



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that Pierre’s hired anyone to continue performing his job. Thus, Snyder cannot prove the fourth

element of a prima facie case by demonstrating that he was “replaced with a younger worker.”


       Snyder also cannot show that Pierre’s “treated similarly situated, non-protected

employees more favorably.”       Mickey, 516 F.3d at 522.      “[I]n analyzing the treatment of

similarly[-]situated employees, the question is whether the plaintiff has demonstrate[d] that he or

she is similarly-situated to the non-protected employee in all relevant respects.” Id. (internal

quotation marks and citation omitted; emphasis in the original). However, the non-protected

employee need not “be identically situated to the plaintiff in every single aspect of their

employment.”     Id. (internal quotation marks and citation omitted). Here, Snyder was not

similarly-situated to the union employees who were recalled because he was lower on the

seniority list and, at the time the other union employees were recalled, the company had

sufficient work to justify recalling full-time union employees. There is no evidence to suggest

that Pierre’s had sufficient work to justify recalling Snyder to his full-time position when he was

at the top of the recall list. Nor was Snyder similarly-situated to the temporary workers the

company employed instead of recalling Snyder because the temporary workers, who are not

entitled to the same pay and benefits as union employees, were hired at substantially lower cost

to the company. Pierre’s was in financial distress around the time of the recalls and exercised its

business judgment, in accordance with the collective bargaining agreement, to hire temporary

workers in the middle of July to finish out the summer season. Thus, Snyder has failed to show

that any of the employees Pierre’s recalled or hired were similarly-situated to him in all relevant

aspects. Accordingly, we affirm the district court’s grant of summary judgment on Snyder’s

disparate-treatment claim.




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Hostile-Work-Environment Claim

       Snyder’s hostile-work-environment claim also lacks merit. To prove a hostile-work-

environment claim under the ADEA, a plaintiff must demonstrate that (1) he is older than 40

years; (2) he “was subjected to harassment, either through words or actions, based on age”; (3)

“[t]he harassment had the effect of unreasonably interfering with the employee’s work

performance and creating an objectively intimidating, hostile, or offensive work environment”;

and (4) there is some basis for holding the employer liable. Crawford v. Medina Gen. Hosp., 96

F.3d 830, 834-35 (6th Cir. 1996). Snyder, of course, satisfies the first element, and a reasonable

jury could find that Bittinger subjected Snyder to harassment based on his age. Snyder, however,

cannot satisfy the third element of a hostile-work-environment claim.


       We assess the totality of the circumstances to determine whether an ADEA plaintiff was

subjected to an objectively hostile work environment. See Thornton v. Fed. Express Corp.,

530 F.3d 451, 455 (6th Cir. 2008).        Factors we consider include “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s performance.”

Id. (internal quotation marks and citations omitted). In order to show that the harassment

interfered with his work performance, Snyder “need not prove that his . . . tangible productivity

has declined . . . . The employee need only show that the harassment made it more difficult to do

the job.” Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988).


       Considering the totality of the circumstances, no reasonable jury could find that Snyder’s

work environment was objectively hostile. See Williams v. Gen. Motors Corp., 187 F.3d 553,

568 (6th Cir. 1999). Language and conduct that are “merely offensive” are insufficient to

support a hostile-work-environment claim. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
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The record shows that there was a culture of “shop talk” in the warehouse, and Snyder himself

participated in the banter.   Bittinger’s comments did not interfere with Snyder’s ability to

perform his job; Snyder stated that he liked his job and was good at it. Snyder was never

disciplined, nor did he receive negative performance reviews. Thus, under the totality of the

circumstances, Snyder cannot demonstrate that the harassment he alleges was sufficiently severe

or pervasive that it created an objectively hostile work environment. The district court thus

properly granted summary judgment to the defendant on Snyder’s hostile-work-environment

claim.


                                       CONCLUSION


         For all of the foregoing reasons, we AFFIRM the district court’s decision granting

summary judgment to Pierre’s on both of Snyder’s ADEA claims.




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