                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0652n.06

                                           No. 13-3537


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
DEBORAH ANN DOUGLAS,                                     )                     Aug 20, 2014
                                                         )                 DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                              )
                                                         )
                                                                 ON APPEAL FROM THE
v.                                                       )
                                                                 UNITED STATES DISTRICT
                                                         )
                                                                 COURT FOR THE
EATON CORPORATION,                                       )
                                                                 NORTHERN DISTRICT OF
                                                         )
                                                                 OHIO
       Defendant-Appellee.                               )
                                                         )
                                                         )



BEFORE:        SUHRHEINRICH, GIBBONS, and COOK, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge.                   Deborah Douglas worked for Eaton

Corporation as a controller in both its American and foreign offices. In 2006, Douglas accepted

a three-year international assignment in China, which was extended for an additional year. At

the conclusion of the assignment, Eaton terminated Douglas. Eaton then replaced Douglas with

a younger man from Singapore.          Douglas sued, asserting age, sex, and national-origin

discrimination claims. The district court granted summary judgment for Eaton on all claims.

We agree that no issue of material fact exists and therefore affirm the judgment.

                                                I.

       Douglas is a sixty-year-old female who was born in the United States. She started

working for Eaton, a power-management company, in 1994.               Eaton is headquartered in

Cleveland, Ohio, but has offices all over the world.
No. 13-3537, Douglas v. Eaton Corp.


       Because of its global footprint, Eaton encourages its employees to accept temporary

assignments to other countries, known as “expatriate assignments.” In doing so, Eaton tells its

employees that “[i]t is possible that a suitable job may not exist upon repatriation” and “every

employee . . . should take responsibility for managing his or her career.” If an employee cannot

find an open position in the United States, Eaton promises to work with her “on the applicable

termination or separation from service processes.”

       Douglas worked in Canada for five years as a controller under this policy. After her

assignment ended, she returned to the United States and accepted a position as controller in

Eaton’s Pittsburgh office. Three years later, Eaton promoted Douglas to Division Controller, and

Douglas accepted a three-year expatriate assignment to Shanghai, China.

       While Douglas was in China, Eaton reorganized its business.          As a result of this

reorganization, Eaton raised Douglas’s salary and changed her title to Vice President of Finance

and Planning. Eaton then asked Douglas if she would be willing to extend her assignment for

another year. Douglas agreed.

       Everything was fine until six months before the end of Douglas’s assignment. Then,

Douglas met with Jim Sternweis, her boss, to discuss her job. Douglas says that she told Jim she

would be willing to stay in China until the right position opened up in the United States. Eaton,

however, says that Douglas said she wanted to repatriate within six to nine months. After this

conversation, Eaton decided not to extend Douglas’s assignment and instead started the

repatriation process.

       Two months later—roughly four months before Douglas’s scheduled repatriation—

Sternweis told Douglas about an open position in Pittsburgh, working as Director of Finance in

the Electrical Components Organization. Douglas applied for the position and asked if the salary



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No. 13-3537, Douglas v. Eaton Corp.


could be raised to match her current salary band. Eaton did not raise the salary band, but assured

Douglas that her salary would be grandfathered for two years, which would give her time to find

another position at a higher salary band. Considering the position a demotion, Douglas withdrew

her name from consideration. Eaton then offered Douglas another position, again at a lower

salary band, and Douglas refused for the same reason. Douglas applied for various other

positions in the company, but Eaton ultimately rejected each application.

       While Douglas was trying to find a new position in the United States, the Shanghai office

was searching for her replacement. Sternweis contacted other Eaton executives and finance

professionals to ask for recommendations. A finance leader from Eaton’s Industrial Sector

responded and recommended Kok Meng Tang for the position. Tang, who was forty-six at the

time, is a native of Singapore.       After interviewing Tang and reviewing his performance

evaluations, Sternweis hired him to fill Douglas’s former position. Eaton says that Tang’s ability

to speak Chinese and his experiences living and working in Singapore, Australia, Japan, and

China factored into its decision to hire him.

       Eaton gave Douglas a few months’ extension to ease Tang’s transition and to allow her

more time to find an open position. During this time, Douglas continued to refuse equivalent

positions in a lower salary band. Ultimately, Douglas never found another position at Eaton, and

Eaton sent her a letter confirming the termination of her employment.

       Douglas sued Eaton in state court, bringing an age discrimination claim under the ADEA,

sex and national-original discrimination claims under Title VII, and parallel discrimination

claims under Ohio state law. Eaton removed the case to federal court and filed a motion for

summary judgment.      The district court granted Eaton’s motion on all claims, holding that




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No. 13-3537, Douglas v. Eaton Corp.


Douglas had failed to establish that she suffered any adverse employment action. Douglas

appeals.

                                                 II.

       We review a district court’s grant of summary judgment de novo. Allstate Ins. Co. v.

Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 453 (6th Cir. 2001).           Summary judgment is

appropriate “if 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). The moving party

bears the burden of showing that there is an absence of evidence to support the nonmoving

party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In deciding motions for

summary judgment, we draw all reasonable inferences in favor of the nonmovant. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The ultimate inquiry is

‘whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.’” Phillips v. Roane

Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251–52 (1986)).

                                                III.

       In the absence of direct evidence of discrimination,1 we analyze claims of intentional age,

sex, and national-origin discrimination using the McDonnell Douglas burden-shifting



       1
         Direct evidence is evidence that requires the conclusion, without any inference, that
unlawful discrimination was at least a motivating factor in an employer’s actions. See Johnson
v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003). Douglas argues that she has direct evidence of
national-origin discrimination because Eaton has a stated preference for “local” candidates. We
agree with the district court that this is not direct evidence of national-origin discrimination. The
record shows that Eaton prefers individuals who live or have lived in a particular region, speak
the local language, and are familiar with the local customs, business practices, cultures, and
markets. However, Eaton does not have a preference for people who are born in, or whose
ancestors are from, a particular region. Under Eaton’s policy, an individual born outside a
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No. 13-3537, Douglas v. Eaton Corp.


framework. Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009); Mitchell v. Toledo Hosp.,

964 F.2d 577, 582 (6th Cir. 1992). We do the same for Douglas’s state discrimination claims.

Scott v. FirstMerit Corp., 167 F. App’x 480, 487 (6th Cir. 2006). Under this framework,

Douglas must present evidence that would allow a reasonable jury to conclude that she

established a prima facie case of discrimination. To do so, she must demonstrate that (1) she

was a member of a protected class, (2) she was subjected to an adverse employment action,

(3) she was qualified for the position, and (4) she was replaced by someone outside the protected

class or that Eaton treated similarly situated, nonprotected employees more favorably. See

Geiger, 579 F.3d at 622; Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002). If Douglas

establishes a prima facie case, Eaton must articulate a legitimate, nondiscriminatory reason for

the adverse action. See Yeschick v. Mineta, 675 F.3d 622, 632 (6th Cir. 2012). The burden then

shifts back to Douglas to prove that the reasons offered by Eaton were pretextual. See id.

       We disagree with the district court’s conclusion that this case should be resolved at the

prima facie stage. Instead, we turn to the issue of pretext, which provides a ready path for

resolution of the case. See Dixon v. Clem, 492 F.3d 665, 673 (6th Cir. 2007) (“[W]e ‘may affirm

on any grounds supported by the record even if different from the reasons of the district court.’”

(quoting Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th

Cir. 2002))).

       Eaton says that it ended Douglas’s employment in accordance with the terms of its

international assignment policy. This is a legitimate, nondiscriminatory reason. See Blackshear



particular region may still be considered local if she has lived in the region long enough to
become familiar with it. Therefore, Eaton’s policy is circumstantial evidence because an
inference of discriminatory animus is necessary. See Norbuta v. Loctite Corp., 1 F. App’x 305,
313 (6th Cir. 2001) (holding that employer’s preference for hiring a Canadian manager in its
Canadian operations did not constitute direct evidence of national-origin discrimination).
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No. 13-3537, Douglas v. Eaton Corp.


v. Interstate Brands Corp., 495 F. App’x 613, 618 (6th Cir. 2012) (finding that employer had

presented a legitimate, nondiscriminatory reason when it terminated an employee according to

company policy); Hollins v. Atl. Co., 188 F.3d 652, 661 (6th Cir. 1999).

       Douglas may prove pretext by showing that this reason (1) has no basis in fact, (2) was

not the actual reason, or (3) was insufficient to explain the employer’s action. Imwalle v.

Reliance Med. Prods., Inc., 515 F.3d 531, 545 (6th Cir. 2008). Douglas bears the ultimate

burden of producing sufficient evidence from which a jury could reasonably reject Eaton’s

explanation and infer that it intentionally discriminated against Douglas. See id. (citing Johnson

v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003)). We hold that Douglas fails to meet this

burden as to all of her discrimination claims.

                                                 A.

       Douglas makes similar arguments regarding her claims of age and sex discrimination.

She first argues that Eaton’s reliance on its international assignment policy has no basis in fact

because she told Eaton that she wanted to renew her assignment. Eaton disagrees, contending

that Douglas told the corporation that she wanted to repatriate. Douglas points to the different

accounts of her conversation with Sternweis and argues that her claims should survive summary

judgment based on this dispute of fact. But Douglas must do more than show an issue of fact.

She must also show that the dispute is material. See Fed. R. Civ. P. 56(a). That she cannot do

because the details of Douglas’s conversation with Sternweis are immaterial to the pretext

determination. Douglas’s manager testified that Douglas would have been repatriated regardless

of her wishes. And, more importantly, Douglas’s international assignment letter says that her

assignment was scheduled to end in 2010. Douglas identifies no evidence to refute these facts,




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No. 13-3537, Douglas v. Eaton Corp.


and her subjective wish to extend her assignment is not enough to show that Eaton’s decision had

no basis in fact, much less that it was motivated by discriminatory animus of any kind.

       Next, Douglas argues that company policy was not the actual reason for Eaton’s actions

because it treated similarly situated, younger male employees more favorably. To support her

argument, Douglas identifies five younger males who obtained positions with Eaton after their

international assignments ended. Notably, Douglas fails to offer any evidence that allows us to

meaningfully evaluate Eaton’s treatment of the five employees as compared to Eaton’s treatment

of Douglas. In fact, the slim evidence in the record indicates that Eaton followed its neutral

international assignment policy with respect to each of the five employees. See Goldfaden v.

Wyeth Labs., Inc., 482 F. App’x 44, 49 (6th Cir. 2012) (“None of these incidents show that [the

employer] treated similarly situated male employees differently than [the plaintiff.]”). Even so,

the mere fact that Eaton found new positions for its younger male employees upon the

conclusion of their international assignments could demonstrate that Eaton’s policy rationale was

a pretextual gloss. See Diebel v. L&H Res., LLC, 492 F. App’x 523, 531 (6th Cir. 2012).

However, it is undisputed that Eaton also terminated the employment of several younger male

employees upon the conclusion of their international assignments, just as it did with Douglas.

This fact dispels any possible inference of discrimination created by the comparison.        See

Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 558 (7th Cir. 1987) (finding that evidence of

similarly situated employees outside the protected class who were treated the same as the

plaintiff demonstrated an absence of pretext).

       Douglas also contends that Eaton’s attempts to place her in lower-paid positions are

evidence of discriminatory motive. Even assuming that Douglas is correct that these positions

were demotions, the mere fact that Eaton offered her employment in lesser positions does not



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No. 13-3537, Douglas v. Eaton Corp.


show that it fired her out of discriminatory animus. Rather, Eaton’s offer to move her into

another position, while paying her the same salary, to allow her to continue searching for more

acceptable positions within the company demonstrates a lack of animus. And Douglas does not

offer any evidence showing that discriminatory animus was the reason she was not selected for

the other positions she desired.

       In addition to the above arguments, Douglas offers several comments made about her

abrasive communication style as evidence that Eaton really fired her because she is a woman.

These comments, given during Douglas’s evaluations, range from admonishing Douglas for

lacking patience with her coworkers, to having a confrontational communication style, to over-

working her subordinates.          Significantly, none of these comments inappropriately links

Douglas’s management traits to her sex, nor do they suggest that Douglas’s managers were

stereotyping based on her sex. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989)

(plurality opinion) (discussing descriptions of a woman as “macho,” “overcompensate[ing] for

being a woman,” and being a “lady using foul language”); Lindahl v. Air Fr., 930 F.2d 1434,

1439 (9th Cir. 1991) (finding that evidence could show that a manager made his decision on the

basis of stereotypical images of men and women after comparing his statements about female

candidates to his statements about a male candidate). Therefore, we hold that the comments are

likewise insufficient to establish pretext.


                                                 B.


       Douglas also fails to establish pretext regarding her claim for national-origin

discrimination. Douglas offers evidence that Eaton prefers to hire employees local to the area

surrounding its international locations. But, as Eaton points out, the fact that the company

prefers to hire local candidates who speak the language and are familiar with the local customs

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No. 13-3537, Douglas v. Eaton Corp.


does not mean that it prefers to hire candidates who are born in the country or who have the same

national origin as the home country, nor does it suggest that Eaton fired Douglas because she

was American and not Chinese.         See Norbuta, 1 F. App’x at 311 (“Title VII prohibits

discrimination in employment based on an employee’s national origin. ‘National origin’ refers to

the country of birth, or the country from which a person’s ancestors came.” (internal citation

omitted) (citing Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88–90 (1973))).


                                              IV.

       For the above reasons, we affirm the district court’s grant of summary judgment in favor

of Eaton.




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