                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0046n.06

                                           No. 18-1350

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                 FILED
                                                                               Jan 29, 2019
 VICKI GIRON,                                             )                DEBORAH S. HUNT, Clerk
                                                          )
        Plaintiff-Appellant,                              )
                                                          )    ON APPEAL FROM THE
 v.                                                       )    UNITED STATES DISTRICT
                                                          )    COURT FOR THE EASTERN
 TYCO ELECTRONICS CORP.,                                  )    DISTRICT OF MICHIGAN
                                                          )
        Defendant-Appellee.                               )
                                                          )

BEFORE: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Vicki Giron sued her former employer, Tyco

Electronics Corp., alleging sex discrimination in violation of Michigan’s Elliot-Larsen Civil

Rights Act (“ELCRA”) and wrongful termination in violation of public policy. Giron established

her prima facie case of discrimination but failed to rebut Tyco’s legitimate, nondiscriminatory

reason for terminating her—Giron’s “below standards” behavior. The McDonnell Douglas

burden-shifting framework separates those employment discrimination claims that merely state a

prima facie case and those that can overcome an employer’s proffered nondiscriminatory

justification by showing pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Giron’s claim falls in the former category and thus fails.

       As for wrongful discharge, Giron alleged that Tyco terminated her employment based on

her refusal to engage in illegal price-fixing. This claim is self-defeating. Because Giron admits
No. 18-1350, Giron v. Tyco Electronics


to acquiescing in her supervisor’s request to set certain prices, Giron did not “refuse” to engage in

the allegedly illegal conduct.

          We find that the district court properly granted summary judgment in favor of Tyco on all

claims. Therefore, we affirm.

                                                  I.

          In October 2012, Tyco hired Giron as a Product Manager in its Troy, Michigan office.

From her initial hire until November 2013, Giron’s direct supervisor was Elizabeth Schroeder.

Schroeder conducted Giron’s first performance review for Tyco’s fiscal year 2013, which included

evaluations of performance and behavior. Schroeder rated Giron as “Meets Expectations” for

results and “At Tyco Electronics Standards” for values (behavior). The review also noted areas in

which Giron needed improvement, specifically in building relationships and interacting with

others.

          Suraj Alva then replaced Schroeder as Giron’s direct supervisor. According to Giron,

problems arose between Alva and herself because Alva treated her differently and imposed rules

specific to her. Giron believed Alva was shutting her out and catering to an all-male group of sales

managers she calls “The Legacies.” According to Tyco, issues with Giron arose because she was

combative and caused conflict with sales team members. Giron claims that Alva directed her to

“drop prices below market value” for a certain product and customer. DE 28, Resp. to Mot. for

Summ. J., Page ID 385. Giron voiced concern but completed the task as Alva instructed.

          Alva conducted Giron’s 2014 review and rated her as “Meets Expectations” for results and

“At Tyco Standards” for behavior. Tyco claims that Alva initially rated both Giron and another

employee at “Below Standards” but was told by his supervisor and others to elevate one of them

to “At Standards” level. Alva then raised Giron up to a satisfactory rating.



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       Alva also conducted Giron’s 2015 review and rated her as “Meets Expectations” for results

and “Below Tyco Standards” for behavior.               Tyco then placed Giron on a performance

improvement plan (“PIP”), beginning November 11, 2015 and scheduled to end on or around

January 8, 2016.

       In December 2015, Alva reached out to sales managers for feedback on Giron. Between

January 5-6, 2016, Alva received emails from five males, each generally describing Giron as

“confrontational,” “difficult to deal with,” and “unresponsive.” DE 23-25, Sales Managers

Feedback, Page ID 345–49. On January 11, 2016—three days after Giron’s PIP was scheduled to

end—Alva received an email from a female sales manager offering negative feedback and

attaching emails from 2014, evidencing aggravated messages Giron sent to others.

       Tyco extended Giron’s PIP an additional two weeks. When Giron expressed confusion,

she was told via email that the two-week extension was “due to the holiday” but also “meant for

[Giron] to focus on the specified objectives” of the PIP. DE 23-26, PIP Extension Email, Page ID

361. Tyco terminated Giron on January 22, 2016.

       Giron sued Tyco in district court. The district court granted summary judgment in favor

of Tyco, disposing of Giron’s discrimination and wrongful discharge claims. Giron timely

appealed.

                                                 II.

       This court reviews a district court’s order granting summary judgment de novo. Tysinger

v. Police Dep’t of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). “Summary judgment is proper

‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). We view



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the evidence in the light most favorable to the nonmovant, drawing all reasonable inferences in its

favor. Id.

       To defeat summary judgment, the party opposing summary judgment “must simply show

‘sufficient evidence to create a genuine issue of material fact.’” Johnson v. Karnes, 398 F.3d 868,

873 (6th Cir. 2005) (quoting McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000)).

A fact is “material” if “proof of that fact would have [the] effect of establishing or refuting one of

[the] essential elements of a cause of action or defense asserted by the parties.” Kendall v. Hoover

Co., 751 F.2d 171, 174 (6th Cir. 1984) (citation omitted). A dispute as to a material fact is

“genuine” when “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

                                                 III.

       “Michigan courts utilize the federal McDonnell Douglas burden-shifting framework for

evaluating discrimination claims founded upon circumstantial evidence.” In re Rodriguez, 487

F.3d 1001, 1008 (6th Cir. 2007) (citing Hazle v. Ford Motor Co., 628 N.W.2d 515, 520–21 (Mich.

2001)). See Tilley v. Kalamazoo Cnty. Road Comm’n, 777 F.3d 303, 308 (6th Cir. 2015) (applying

the McDonnell Douglas analysis to plaintiff’s discrimination claim arising under the ELCRA).

       As Giron’s claim against Tyco relies on circumstantial evidence, we evaluate the merits of

her ELCRA claim under the McDonnell Douglas analysis. Further, as this is an appeal from the

grant of summary judgment, we must ask whether there is sufficient evidence to create a genuine

issue of material fact at each stage of the McDonnell Douglas analysis. See Cline v. Catholic

Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000).

       In the first stage, the plaintiff must establish a prima facie case of discrimination.

McDonnell Douglas Corp., 411 U.S. at 802. In the second stage, the burden shifts to the defendant



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to offer a legitimate, nondiscriminatory reason for the adverse employment action. Id. The burden

shifts back to the plaintiff in the third stage, in which the plaintiff must show that the defendant’s

stated reason for such adverse action is, in fact, pretext. Id. at 804.

                                                        A.

        Prima Facie Case. To establish a prima facie case of an ELCRA violation, the plaintiff

must show: (1) membership in a protected class, (2) adverse employment action, (3) qualification

for the position, and (4) discharge “under circumstances that give rise to an inference of unlawful

discrimination.” Lytle v. Malady, 579 N.W.2d 906, 914 (Mich. 1998). By establishing a prima

facie case, the plaintiff creates a presumption of discrimination. Id. at 914–15. Because Tyco

concedes Giron’s membership in a protected class, our inquiry begins with the second prong.

        The evidence demonstrates that Giron suffered two adverse employment actions: the PIP

and termination. Tyco’s termination of Giron is clearly an adverse employment action. See Kocsis

v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996) (including “termination of

employment” in a list of actions qualifying as adverse employment actions). While PIPs do not

constitute adverse employment actions alone,1 a PIP that results in termination may constitute an

adverse employment action. See Kyle-Eiland v. Neff, 408 F. App’x 933, 941 (6th Cir. 2011)

(finding the adverse employment action element satisfied when “the PIP may have led directly to

[the employee’s] dismissal”). Because Giron’s placement on a PIP preceded her termination, we

therefore also consider her PIP an adverse employment action at this stage of the analysis.

        The evidence clearly demonstrates Giron was well qualified for her position. As the district

court noted, “Giron brought 25 years of experience to her role as a Global Product Manager at



1
 See, e.g., Bacon v. Honda of America Mfg., Inc., 192 Fed. App’x 337, 343 (6th Cir. 2006) (noting that PIPs “do not,
on their own, generally qualify as adverse employment actions”) (citing Agnew v. BASF Corp., 286 F.3d 307, 310 (6th
Cir. 2002); Primes v. Reno, 190 F.3d 765, 767 (6th Cir. 1999)).

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No. 18-1350, Giron v. Tyco Electronics


Tyco. Giron worked as a Senior Project Engineer at General Motors and . . . Senior Program

Manager at TRW Automotive.” DE 35, Op. & Order, Page ID 951. Tyco argued below that

Giron’s behavioral concerns render her unqualified, but this confuses the McDonnell Douglas

analysis by conflating two distinct stages.2 Thus, Giron has presented sufficient evidence to satisfy

the third prong.

        Giron satisfied the fourth prong, in part, by demonstrating that she “was replaced by

someone outside of the protected class.” Tilley, 777 F.3d at 308. Indeed, Tyco replaced Giron

with a male.3 Regarding her PIP, Giron asserts that discrimination can be inferred—and thus the

fourth prong satisfied—because Tyco treated her differently than similarly-situated individuals

outside of her protected class. She argues that, because Tyco failed to place three male employees

with similar or worse reviews4 on a PIP, her placement on a PIP creates an inference of

discrimination and meets the fourth element of her prima facie case. We are not persuaded that

Giron’s proposed comparators are “similar in ‘all relevant aspects.’” Ondricko v. MGM Grand

Detroit, LLC, 689 F.3d 642, 654 (6th Cir. 2012) (quoting Ercegovich v. Goodyear Tire & Rubber

Co., 154 F.3d 344, 352 (6th Cir. 1998)). As the district court also noted, Giron’s three proposed

comparators reported to different supervisors than Giron and worked in different departments or

at different levels. While these differences are not always dispositive, they are relevant factors in

our analysis. We find that Giron has failed to satisfy the fourth prong regarding her PIP.



2
 See Cline, 206 F.3d at 660–61 (finding the district court “improperly imported the later stages of the McDonnell
Douglas inquiry into the initial prima facie stage” when it considered the defendant-employer’s proffered
nondiscriminatory reason as a predicate for finding a lack of qualification for the position).
3
  Alva acknowledged in his deposition that Benjamin Ervin (hired by Tyco after Giron’s termination) assumed
responsibilities formerly tasked to Giron. In fact, Ervin took over Giron’s main product line. No one else assumed
any of Giron’s former responsibilities.
4
  Mike Aiello, one of Giron’s proposed comparators received a “Below for Results” and “At TE Standards for
Behavior” in his review. Ken Mleczek and John Hall, Giron’s other two proposed comparators, allegedly received
“bottom rating[s]” and “were both very concerned they were going to be PIPed.” DE 29-4, Giron Dep., Page ID 783.)

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Therefore, she has established a prima facie case only on the basis of her termination as an adverse

employment action.

                                                B.

          Legitimate, Nondiscriminatory Reason. By Giron establishing her prima facie case, and

thus raising a presumption of discrimination, the burden then shifts to Tyco to offer a legitimate,

nondiscriminatory reason for terminating her. McDonnell Douglas Corp., 411 U.S. at 802. We

have held that an employee’s “failure to correct on-going performance deficiencies” and “failure

to meet reasonable expectations” under a PIP suffice to satisfy an employer’s burden to proffer a

nondiscriminatory justification for termination. Tennial v. United Parcel Serv., Inc., 840 F.3d 292,

303 (6th Cir. 2016).

          In its motion for summary judgment, Tyco offered as its nondiscriminatory justification

for terminating Giron “her failure to meet [Tyco]’s performance expectations.” DE 23, Mot. for

Summ. J., Page ID 191. On appeal, Tyco’s proffered reason for terminating Giron is “her failure

to meet [Tyco]’s behavioral expectations.” CA6 R. 18, Appellee Br. at 33. Tyco supports this

proffer by citing Giron’s annual performance reviews, the feedback emails received during her

PIP, and her supervisors’ testimony and declarations. As such, Tyco has met its burden to come

forward with evidence of a legitimate, nondiscriminatory reason for the adverse employment

action.

                                                C.

          Pretext. Under the McDonnell Douglas framework, the burden shifts back to Giron to

present sufficient evidence that Tyco’s proffered reason is pretextual. There are three avenues for

a plaintiff to demonstrate pretext: by showing the stated reason “(1) has no basis in fact, (2) did

not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the



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challenged conduct.” Jackson v. VHS Receiving Hosp., Inc., 814 F.3d 769, 779 (6th Cir. 2016)

(quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)). To satisfy this burden,

Giron must produce “enough evidence to . . . rebut, but not to disprove” Tyco’s stated justification.

Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 651 (6th Cir. 2015) (alteration in

original) (quoting Shazor v. Prof’l Transit Mgmt. Ltd., 744 F.3d 948, 957 (6th Cir. 2014)).

         The first and third of these methods offer Giron no help. First, based on her annual review

reports and her own statements therein, Tyco’s explanation of Giron’s behavior as its reason for

her termination has at least a basis in fact. The third method usually involves a showing that “other

employees, particularly employees not in the protected class, were not fired even though they

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

discharge of the plaintiff.” Jackson, 814 F.3d at 779–80 (quoting Manzer v. Diamond Shamrock

Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). Giron has not shown that Tyco retained male

employees with behavior ratings comparable to hers.

         The second method of showing pretext is a closer call for Giron. Still, there is insufficient

evidence showing that Tyco’s stated reason “did not actually motivate” Tyco’s termination of

Giron.    Giron’s strongest pieces of evidence—(1)Schroeder’s comments contradicting her

affidavit, (2) the Callard-Knight Email, and (3) the Gerelus-Alva Email—fall short of the mark.

We examine each in turn.

                    a. Schroeder’s Comments

         Through her declarations and deposition testimony, Giron claimed Schroeder (i) was

“furious with the sales team, reported their behavior . . . and backed up Giron,” (ii) “directed Giron

not to allow [the sales team to direct pricing],” (iii) told Giron that, “[i]f we were men, we’d be

viewed as go-getters and not hard to work with,” (iv) “chuckled at the suggestion . . . that Giron



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could be intimidating,” (v) “recogniz[ed] that Giron was an experienced professional with global

product management responsibilities,” (vi) “stepped in and shut the criticism [of Giron] down,”

stating, “[l]look, she has done more in one year than the last five Product Managers have in the

last five years,” and (vii) “did not feel [the criticisms she heard about Giron] were justified.” CA6

R. 13, Appellant Br. at 5–8.

        Tyco asserts that Giron’s “own unsupported suppositions about what she thinks Schroeder

thought or felt about Giron’s performance, behavior, office relations, or workplace atmosphere”

are inadmissible and irrelevant. CA6 R. 18, Appellee Br. at 29. Giron argues that Schroeder’s

statements are admissible under Fed. R. Evid. 801(d)(2)(D) as “non-hearsay admissions.” See

Stein v. Atlas Indus., Inc., 730 F. App’x 313, 320 n.2 (6th Cir. 2018) (statements allegedly made

by employer’s H.R. director concerning a matter within the scope of employment “plainly” fall

under 801(d)(2)(D)’s hearsay exclusions). Rule 801(d)(2)(D) provides that a statement offered

against an opposing party and made by the party’s agent or employee on a matter within the scope

of (and during) that employment or agency relationship is not hearsay. The district court declined

to consider Schroeder’s statements, as averred to by Giron, based on the rule against hearsay. We

find, however, that Schroeder’s comments—introduced into the record by Giron’s affidavit—fit

the mold of Rule 801(d)(2)(D) and are admissible as non-hearsay admissions.5

        Even so, Schroeder’s comments do not satisfy Giron’s burden to show that Tyco’s reason

for terminating her was pretextual. These statements may suggest that members of the sales team

held some animus toward Giron, but they do not demonstrate that such animus was driven by sex



5
  Our circuit has held that statements by employees not involved in a termination decision are typically excluded as
hearsay, because the termination decision is outside the scope of their employment. See Jacklyn v. Schering-Plough
Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999). But we have allowed statements by “managerial-
level employees who have the ability to influence a personnel decision.” Johnson v. Kroger Co., 319 F.3d 858, 868
(6th Cir. 2003) (citing Ercegovich, 154 F.3d at 354–55). Tyco admits on appeal that Schroeder “was involved in the
decision to terminate Giron,” (CA6 R. 18, Appellee Br. at 31), so Giron’s statements are admissible against Tyco.

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No. 18-1350, Giron v. Tyco Electronics


discrimination. This evidence does not cast doubt on Tyco’s justification for Giron’s termination

(below-Tyco-standards behavior), which finds support throughout the record.

                   b. The Callard-Knight Email

       On October 21, 2015, before the Tyco instituted Giron’s PIP, Mary Beth Knight (Human

Resources Representative) sent an email to Timothy Callard (Alva’s supervisor) stating in part:

“We had planned to exit [Giron] for performance . . .” DE 28-7, Knight Email, Page ID 459. The

parties dispute the email’s context and the statement’s meaning. Tyco argues that it is irrelevant

because the “sole alleged discriminator and decision-maker, Mr. Alva, is not involved in this email

. . .” DE 23, Mot. Summ. J., Page ID 179, n.4. Giron argues that the email and its timing indicate

that her “termination was a foregone conclusion” and her placement on a PIP was a “sham.” CA6

R. 13, Appellant Br. at 18.

       The district court found that the Callard-Knight email was insufficient to show pretext and

suggested its references to creating an open position and supplementing Tyco’s “sensors business”

actually bolstered Tyco’s proffered nondiscriminatory reason. The email fails to demonstrate that

Giron’s below-Tyco-standards behavior did not actually motivate Tyco’s termination of her. We

find no indication of pretext in the language of this email.

                   c. The Gerelus-Alva Email

       On December 15, 2015, during Giron’s PIP, Leanne Gerelus (Human Resources

Representative) sent an email to Alva and copied Knight. Among other things, the email stated “I

wanted to follow up on several things regarding Vicki [Giron]: . . . We need to gather specific

examples of complaints (Documentation and/or emails).” DE 28-9, Gerelus Email, Page ID 467.

Giron argues that this email is evidence of pretext because it shows Tyco intentionally seeking




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negative feedback. Tyco argues that it suggests Alva had already received concerns about Giron

during her PIP. The district court agreed with Tyco and found that this email failed to show pretext.

       While the phrasing in this email may be read in different ways, no discernable meaning

suggests that Giron’s below-standards behavior did not actually motivate Tyco to terminate her

employment. This email presents no alternative explanation for her termination and fails to show

pretext. Like her other proffered evidence, the Gerelus-Alva email falls short.

       Even if the district court failed to credit some admissible circumstantial evidence

(Schroeder’s comments), as explained above, such evidence does not create a genuine issue as to

whether “an illegal motivation was more likely than that offered by the defendant.” Johnson,

319 F.3d at 866 (emphasis omitted). Giron failed to establish pretext. Therefore, we affirm the

district court’s grant of summary judgment on Giron’s sex discrimination claim.

                                                IV.

       Giron argues that the district court erred in granting summary judgment to Tyco on her

wrongful discharge claim. Despite Giron’s exposition of the controlling law—that price-fixing is

contrary to public policy and violative of Section 2(a) of the Clayton Act—her claim has no

evidentiary or legal basis. This is made clear in Suchodolski v. Michigan Consol. Gas Co.,

316 N.W.2d 710 (Mich. 1982). As the district court correctly noted, the Suchodolski court

described this cause of action as arising from “the failure or refusal to violate a law in the course

of employment.” Id. at 711. In Pratt v. Brown, the Sixth Circuit applied the Suchodolski holding

and explained that the plaintiff asserting this cause of action must prove that he refused his

employer’s request to violate the law and that his refusal was causally connected to his termination.

855 F.2d 1225, 1236–37 (6th Cir. 1988).




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       When Alva instructed Giron to enter a certain price into Tyco’s database, Giron complied.

Giron’s initial resistance and concern over the legality of the practice do not equate to refusal. As

the district court found, “[a]n ephemeral objection such as Giron’s is insufficient to constitute a

‘refusal’ under the Suchodolski standard for public policy torts.” DE 35, Op. & Order, Page ID

963. Giron did not “fail or refuse” to violate a law at the behest of her employer, so this claim

must fail. Thus, the district court did not err in granting summary judgment on Giron’s wrongful

discharge claim.

                                                 V.

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

judgment in favor of Tyco.




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