               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0392n.06

                                          No. 14-6209

                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                        Jun 01, 2015
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk

STEPHEN P. GELLER,

       Plaintiff-Appellant,
v.
                                                     ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
HENRY COUNTY BOARD OF
                                                     WESTERN DISTRICT OF
EDUCATION,
                                                     TENNESSEE
       Defendant-Appellee.




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

       CLAY, Circuit Judge.       Plaintiff Stephen P. Geller appeals the district court order

granting summary judgment in favor of Defendant Henry County Board of Education (“the

Board”), in this civil suit where Geller alleges that he was demoted from his position as an

assistant principal in violation of the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 621 et seq.1 For the reasons stated below, we AFFIRM the district

court’s grant of summary judgment in favor of the Board.




       1
         Geller also asserted a claim under the Tennessee Human Rights Act (“THRA”), Tenn.
Code Ann. § 4-21-101(a)(1). The relevant THRA provision employs similar language as that
used in the ADEA and the analysis under both statutes is substantially the same. Bundy v. First
Tenn. Bank Nat’l Ass’n, 266 S.W. 3d 410, 416 (Tenn. Ct. App. 2007). This claim is not
addressed separately by either party and, accordingly, this opinion treats the disposition of the
ADEA claim as dispositive of the THRA claim.
                                          No. 14-6209


                                       BACKGROUND

       Stephen P. Geller, born April 24, 1948, began working for Henry County School System

in 1990, as a special education assistant. He was promoted in 1993 to the position of classroom

teacher; and in 2006, he was promoted to the position of an assistant principal at Henry County

High School, after having successfully applied to the Director of Schools2 for that position. He

performed his job well, and received superb reviews annually. But following the 2011–2012

school year, he was removed from the assistant principal position and transferred to a teaching

position at the Alternative School, where his salary would be considerably less. Geller was 64

years of age at the time of this demotion, and he now claims that his removal was based on age

discrimination. The facts of this case are largely undisputed. The principal question is whether

or not Geller was required to have an administrator’s license and, if he was not, whether Henry

County’s demand for Geller to become licensed was merely a pretext for demoting him on

account of his age.

       As a condition of Geller’s promotion to assistant principal in 2006, the then-Director of

Schools asked him to obtain a master’s degree, which he did in 2008 from Bethel University in

McKenzie, Tennessee. He was not, however, required by the then-Director of Schools to obtain

an administrator’s license.    In 2009, the State of Tennessee adopted new rules for the

qualification of administrative positions throughout its public school system. Beginning in

September of that year, “assistant principals, teaching principals, or dual assignment personnel

with more than fifty percent (50%) of their responsibilities involved in instructional leadership”

were required to be licensed administrators or enrolled in the appropriate licensing program.


       2
         The Director of Schools is responsible for, among other things, all teacher assignments,
maintaining licensure records, and ensuring Henry County schools’ compliance with applicable
laws, regulations, and Board of Education rules. See Tenn. Code Ann. § 49-2-301.


                                                2
                                           No. 14-6209


Tenn. Comp. R. & Regs. 0520-02-03-.02(6) (2008). To earn a license, Geller would have to

complete additional coursework and sit for the appropriate Praxis Series examination. Geller

was aware of what needed to be done to earn a license, but chose not to apply because he

remained under the impression that no license was required for him to continue serving as an

assistant principal.

        The State also changed the structure of its licensing program in 2009. Prior to that year, a

professional educator could apply for a Beginning Administrator License (“BAL”), which she

could later upgrade to a Professional Administrator License (“PAL”) after completing a series of

continuing education courses. Anyone who had not already obtained a BAL, or begun the

requisite courses to become licensed by 2009, would be subject to the new regime. The BAL

was replaced by the ILL-B (Instructional Leadership License-Beginner); the ILL-B, similar to

the BAL, could be upgraded to a “professional” grade license, known as “ILL-P.” Geller did not

attempt to attain a BAL prior to the expiration of the old licensing regime; nor did he apply for a

license under the new system.

        By the 2010–2011 school year, the Director of Schools who had hired Geller was no

longer serving in that position. His replacement, Sam Miles, was unaware that Geller lacked an

administrator’s license, which remained the case for the next two years.

        In the spring of 2012, Geller was encouraged by the Henry County School Board to

attend the Tennessee Academy for School Leaders’ Principal’s Academy.                This seminar

provided an administrator with the opportunity to earn continuing education credits, a

requirement of maintaining an administrator’s license. Earning a designated number of credits

would enable an administrator to advance (or upgrade) her license to the next highest level (i.e.,

beginner to professional). This particular seminar in the spring of 2012 happened to be Geller’s



                                                 3
                                           No. 14-6209


fourth weekend-long event over a period of two years. At the end of the event, Geller and all of

the other administrator-attendees were encouraged to apply for an upgrade to their respective

licenses based on the credits they had earned. Geller submitted his application for an upgrade to

a PAL, despite the fact that he had never earned a BAL.

        The State’s licensing authority notified Geller in a letter dated May 26, 2012, that his

application for advancement to the professional license was being denied. Director of Schools

Miles was copied on this letter. Geller was informed that the “reason for the denial” was his lack

of a qualifying beginning license and his failure to ever attempt the appropriate Praxis Series

examination. The letter went on to advise Geller of the changes that took effect in 2009,

whereby “educators serving as an assistant principal with more than 50% time of instructional

leadership responsibilities” were required “to hold an administrator license.” (R. 29-2, Geller

Dep., PageID # 327). It further stated that he could no longer submit an application for a BAL

because that license had since been replaced by the ILL-B. Geller was advised that he could

apply for an “aspiring” administrator license, known as the “ILL-A,” which would allow him to

work towards earning an ILL-B while simultaneously continuing to serve in an administrative

post.

        One month later, on June 28, 2012, Miles met with Geller to discuss the letter and

Geller’s lack of an administrator’s license.3       Miles asked at this meeting whether Geller

understood what requirements remained to be completed for him to become licensed. Geller

responded affirmatively, noting that he was aware of the requirements, but that he believed it to

be “physically impossible” for him to both complete his coursework and take the appropriate

        3
         Miles claimed that he was unaware that Geller lacked an administrator’s license until
the receipt of this letter, though Geller believes that he had informed Miles of this fact prior to
applying for the upgrade.


                                                4
                                          No. 14-6209


Praxis examination prior to the August 6 commencement of the new school year. (R. 29-2,

Geller Dep., PageID # 296). Geller also asserted his belief that he was not required to have a

license because less than 50% of his time was spent on instructional leadership.4 It was Miles’

view, however, that every assistant principal was required to obtain an administrator’s license

and that, in any event, all of Geller’s duties as an assistant principal constituted instructional

leadership. At the time, Geller was the only assistant principal in the Henry County School

System that did not have a license. Miller suggested that Geller was a “liability,” and dismissed

out of hand the notion that Geller might be able to continue as an assistant principal without

obtaining a license.

       Geller was not tenured and therefore worried about the prospect that he might have no

job in the coming school year.5 Because Geller was only one year away from turning 65, the age

at which he planned to retire, he hoped that Miles might waive the license requirement. Upon

learning of Geller’s intention to retire, Miles sought to find Geller a suitable position that he

could fill for the coming year. At a later date, Miles apologized to Geller for having to remove

him from his post and stated, “We probably wouldn’t be having this conversation if you hadn’t

got that letter from [the licensing administrator] and I hadn’t gotten a copy of it.” (R. 29-2,

Geller Dep., PageID # 305). Miles also commented on Geller’s plans for retirement by noting

that it was a good thing not to wait too late in life to enjoy oneself, as Miles’ own father had

done, in Miles’ estimation. Neither Geller nor Miles discussed whether Geller would apply for



       4
          He estimated that 40% of his time was spent doing teacher evaluations, 25% managing
the lunch room, 15% was dedicated to building safety and security, 15% was occupied by
collaborative teaching, another 15% was devoted to discipline, and the rest was dedicated to
miscellaneous tasks, such as handling bank deposits.
        5
          Geller’s employment contract also acknowledged that he could be transferred to any
post throughout the Henry County School System.


                                                5
                                               No. 14-6209


an ILL-A, which presumably would have allowed Geller to remain in his position; it is

undisputed that Geller could have obtained the aspiring license prior to the commencement of the

new school year. Geller’s coworkers were of the impression that he simply chose not to get a

license because he would not recoup his investment given his stated plan to retire in the near

future.

          The newly vacant assistant principal position went to Renae Lassiter for the upcoming

school year. Lassiter was recommended for the position by another administrator in the Henry

County School System who was aware that Lassiter had recently attained an ILL-B. The

position was not advertised, but Lassiter only received the appointment after interviewing in

competition with two other candidates. She was 39 years old at the time, and had worked as a

physical education instructor in the School System the previous year.

          Geller was offered a teaching position at the Alternative School. His new base salary was

$10,000 less than he had previously earned as an assistant principal, but he was offered a $1,000

supplement to lessen the financial burden of his transfer.6 Geller signed an employment contract

accepting his new position at the Alternative School, but at the bottom of the page he wrote, “I

believe I was wrongfully removed as Assistant Principal at Henry County High School and am

signing this contract only as a matter of financial necessity.” (R. 29-2, Geller Dep., PageID #

398). Prior to receiving Geller’s executed contract that included this message, the Board was

unaware that Geller believed his reassignment to be at all wrongful. Miles thereafter invited

Geller to meet on two separate occasions in September of 2012 to discuss his objections to the

transfer. On the second occasion, Miles offered Geller an additional $3,000 supplement to ease




          6
              Geller’s retirement benefits would also be negatively impacted.


                                                    6
                                           No. 14-6209


any hardship, but Geller refused.7 At neither of these meetings did Geller suggest that his

removal from the assistant principal position was based on his age.

       Geller submitted a formal complaint to the Board on November 7, 2012, alleging that he

was illegally transferred as the result of his age, in violation of the ADEA, 29 U.S.C. § 621 et

seq., and the THRA, Tenn. Code Ann. 4-21-101 et seq. Geller explained that he had come to

the conclusion that he was being treated in a discriminatory manner because his transfer was

inconsistent with both his years of experience and his favorable job performance history, and

because he was replaced by a woman with very little experience who was 25 years his junior.

He also noted that no discussion was had with his principal as to whether or not he should be

transferred and that, at one point, Miles had referred to him as “flunky.” (R. 29-3, Investigation

Rpt., PageID # 409). The complaint was dismissed, the administrative reviewers having found

no evidence of discrimination and having determined that Geller’s transfer was based entirely on

his failure to maintain a license. Geller unsuccessfully appealed that decision.

       This suit against the Board8 was initiated by Geller on June 21, 2013, in the United States

District Court for the Western District of Tennessee.         Geller’s complaint requested both

compensatory damages and injunctive relief allowing him to be reinstated to his assistant

principal position at the Henry County High School. In addition to the facts detailed above,

Geller offered the following information as further evidence that his demotion was predicated on

age-based animus: Miles admitted that he would have waived the license requirement for up to

one year for a good candidate who was working toward a license; and Miles referred to Lassiter

as “a good, young leader” during the interview process to find Geller’s replacement. The Board

       7
          The additional supplement was conditioned on Geller taking on increased
responsibilities in assisting the principal at Alternative School.
       8
         As the Director of Schools, Miles’ actions are attributable to the Board.


                                                 7
                                          No. 14-6209


moved for summary judgment, resting primarily on the undisputed facts, and also indicating that

a number of the School System’s administrators, including Miles, were in the same protected age

class as Geller and had not been subject to any adverse employment actions, because each of

them had earned an administrator’s license. The district court granted the Board’s motion. This

timely appeal followed.

                                         DISCUSSION

                                      Standard of Review

       We review de novo an appeal from an order granting summary judgment. Combs v. Int’l

Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004). Summary judgment is appropriate only when a court

can find that “viewed in the light . . . most favorable to the nonmovant, there is either complete

absence of proof on the issues or no controverted issues of fact upon which reasonable persons

could differ.” Spengler v. Worthington Cylinders, 615 F.3d 481, 488–89 (6th Cir. 2010) (internal

quotation marks omitted). Courts look to “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits” when ruling on a summary judgment

motion. Fed. R. Civ. P. 56. All reasonable inferences shall be afforded to facts in favor of the

nonmoving party, Combs, 354 F.3d at 576–77, but a mere “scintilla of evidence” that militates

against the clear weight of the record does not create a genuine issue of material fact. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

                                            Analysis

       The ADEA prohibits employers from “discriminat[ing] against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). To prevail on a claim brought under this provision, a

plaintiff “must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the

challenged adverse employment action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180

                                                8
                                           No. 14-6209


(2009). Either direct or circumstantial evidence of age discrimination can be offered to meet the

plaintiff’s burden of proof. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 723 (6th Cir.

2012). But in either case, the evidence must be probative of showing but-for causation, not

merely that age was a motivating factor. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 818–

19 (6th Cir. 2011). Geller does not argue that he has direct evidence of age discrimination.

Accordingly, his case is reviewed under the standard for circumstantial evidence.

       Circumstantial evidence is analyzed under the McDonnell Douglass burden-shifting

framework. Id. at 811–12. The initial burden, which is relatively light, calls for the plaintiff to

demonstrate a prima facie case for age discrimination. Id. at 812. The burden thereafter shifts to

the defendant, who must offer a legitimate non-discriminatory reason for the adverse

employment action in order to avoid liability. Id. The burden shifts back to the plaintiff once the

defendant has proffered a legitimate non-discriminatory reason. Id. And if the plaintiff is able to

demonstrate that the proffered reason for the adverse action is merely a pretext to hide the real

motivation of the employer—discrimination on the basis of age—the plaintiff will succeed. Id.

       The parties dispute whether Geller can even demonstrate a prima facie case of age

discrimination, which is established by a showing that the plaintiff (1) was at least 40 years of

age at the time of the facts giving rise to the claim, (2) suffered an adverse employment action,

(3) was qualified for the position, and (4) was replaced by a younger worker. Weatherby v. Fed.

Exp., 454 F. App’x 480, 489 (6th Cir. 2012). There is no dispute that Geller has satisfied the

first two elements of a prima facie case. He has also satisfied the fourth.9 But the third is at

issue because Geller cannot claim to be qualified if he was required to maintain an

       9
          The Board disputes that Geller has satisfied the fourth element, but relies only on an
alternative test which allows a plaintiff to show that he was treated differently than a similarly
situated individual.


                                                9
                                           No. 14-6209


administrator’s license and failed to do so.10 But even if Geller has established a prima facie

case, he cannot demonstrate pretext, let alone that age was the but-for cause of the adverse

employment action taken against him.

       Pretext can be established by a preponderance of the evidence in any one of the following

three ways: showing that “(1) the employer’s stated reason for terminating the employee has no

basis in fact, (2) the reason offered for terminating the employee was not the actual reason for the

termination, or (3) the reason offered was insufficient to explain the employer’s action.” Imwalle

v. Reliance Med. Prods., Inc., 515 F.3d 531, 545 (6th Cir. 2008).

       This case is simple because nearly all of the evidence in the record supports the

conclusion that Geller was removed from his post based solely on his failure to apply for and

maintain an administrator’s license. Geller suggests that the proffered reason for his removal has

no basis in fact because less than 50% of his time was dedicated to instructional leadership, and

therefore he was not required to have an administrator’s license. But regardless of whether

Geller did or did not need the license, he cannot demonstrate pretext as a matter of law if Miles

honestly believed that the license was required. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274,

286 (6th Cir. 2012). When an employer has “reasonably relied on particularized facts that were

before it at the time the decision was made . . . the burden is on the plaintiff to demonstrate that

the employer’s belief was not honestly held.” Id. at 285 (internal quotation marks omitted).

Geller has not put forward evidence to controvert the sincerity of Miles’ belief, showing that the

proffered reason has no basis in fact. Nor has Geller shown that if this belief was sincerely held,

       10
          The regulation adopted by the State of Tennessee to take effect at the beginning of the
2009 school year required that the following personnel apply for and maintain an administrator’s
license: “assistant principals, teaching principals, or dual assignment personnel with more than
fifty percent (50%) of their responsibilities involved in instructional leadership.” Tenn. Comp.
R. & Regs. 0520-02-03.02(6) (2008).


                                                10
                                           No. 14-6209


his lack of an administrator’s license constitutes an insufficient basis for his removal from the

assistant principal post.

        Geller attempts to support his claim by noting that Miles testified that as the Director of

Schools, he could have waived the license requirement for at least one year. Geller, even when

viewing the facts in the light most favorable to him, has entirely misread Miles’ testimony.

Miles was clear in noting that the purpose of this waiver was only to allow an otherwise qualified

applicant the opportunity to begin their employment in an administrative role while they were

simultaneously working toward earning a license. Miles’ remark that he might waive the

requirement is simply a reiteration of what Geller was already told in the letter rejecting his

application for an upgraded license: that he could apply for an ILL-A prior to fulfilling the

requirements to be fully licensed. Geller, however, neglected to apply for or obtain his license.

        Geller’s second complaint, that Miles called him a liability, also fails to demonstrate that

Geller was demoted on account of his age. The only evidence that relates to age in this case is

Miles’ commentary on the benefits of retiring before it is too late (made only in response to

Geller stating his intention to retire) and the fact that Miles once referred to Geller’s replacement

as a “good, young leader.” While these comments, read in isolation, could create a triable issue

for the jury, they do not do so in this instance, where the overwhelming evidence precludes any

reasonable jury from inferring that age played any role in Geller’s removal from the assistant

principal post. See Tibbs v. Calvary United Methodist Church, 505 F. App’x 508, 513–14 (6th

Cir. 2012).

        Geller was responsible for keeping apprised of the licensing requirements and for

maintaining the appropriate license. He was aware that the regulations had changed and that

some of his coworkers were seeking to get licensed prior to the new regulations taking effect. It



                                                 11
                                          No. 14-6209


is undisputed that Miles was unaware, for the first two years he was Director of Schools, that

Geller was unlicensed. Once Miles received a letter from the State confirming that Geller was

not appropriately licensed, Miles engaged Geller to see if he could or would become licensed.

Whether or not Geller actually needed the license, if Miles believed that Geller did or if Miles

simply required all of his administrators to have a license to avoid any potential liability, an

employment decision made on that basis is not age discrimination. That Geller was the only

administrator in the County without a license provides more credibility to the non-discriminatory

nature of the adverse action. Miles and the Board appear to have made reasonable attempts to

accommodate Geller by finding him a new position and offering him financial stipends to lessen

the impact of his transfer. Given these facts, even when viewed in the light most favorable to

Geller, no reasonable jury could conclude that Geller was discriminated against on account of his

age, let alone that his age was the but-for cause of the adverse employment action taken against

him.

                                        CONCLUSION

       For the reasons stated in this opinion, we AFFIRM the district court judgment granting

summary judgment in favor of the Henry County Board of Education in this action brought

pursuant to the ADEA.




                                               12
