                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0492n.06

                                           No. 18-6334


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
 PAMELA HANNON,                                                                  Sep 24, 2019
                                                                             DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,

 v.                                                        ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
 LOUISIANA-PACIFIC CORPORATION,                            COURT FOR THE MIDDLE
                                                           DISTRICT OF TENNESSEE
        Defendant-Appellant.



BEFORE:        COLE, Chief Judge; SILER and CLAY, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff Pamela Hannon appeals the district court’s grant of

summary judgment for Defendant Louisiana-Pacific Corporation. She claims on appeal that the

district court erred because a genuine issue of material fact existed as to her claim that Defendant

discriminated against her in violation of the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 623(a) et seq. For the reasons set forth below, we REVERSE the district court’s grant

of Defendant’s motion for summary judgment and REMAND the case for trial.

                                        BACKGROUND

                                      Factual Background

       Plaintiff worked for Defendant in various roles from 1987 to 2015. (R. 31, Statement of

Undisputed Material Facts, Page ID# 407.) From 1999 until the end of her employment with

Defendant, Plaintiff worked in marketing, and Plaintiff’s job title when her employment ended

was “Manager, Trade Shows.” (R. 31, Page ID# 407–08.)             In February of 2015, Defendant
No. 18-6334, Hannon v. Louisiana-Pacific Corp.


informed Plaintiff that her position would be terminated. (R. 31, Page ID# 408.) That termination

is the subject of this appeal.

        Plaintiff held the position of Manager, Trade Shows on Defendant’s Sales Services Team

from June of 2014 until her firing, although she had been involved in trade shows before June of

2014 as well. (R. 31, Page ID# 408; R. 35, Statement of Undisputed Facts 2, Page ID# 672.) As

Manager, Trade Shows, “[Plaintiff’s] job responsibilities included [managing] trade shows,

[Defendant]’s annual sales meeting as well as other items.” (R. 35, Page ID# 672.) In the two

years before her termination, she participated in between 100 and 120 trade shows per year and

spent over half her working time on trade shows. (R. 31, Page ID# 408.)

        Plaintiff was part of Defendant’s Sales Services Team, which was responsible for sales

services, trade shows, and customer experience. (R. 31, Page ID# 417.) Christine Booker was

also part of the Sales Services Team as Customer Experience Manager, as were sales

administrators Tracy Rusin (in charge of the East region) and Whitney Williams (in charge of the

West region), who “provided sales support to field sales and other sales administrative services”

to their respective regions. (R. 31, Page ID# 418.) Around September of 2014, Juliet Depina

became National Retail and Sales Services Manager, and in this position she managed the Sales

Services Team and supervised employees including Plaintiff and Booker. (R. 31, Page ID# 412,

417.) At some point in the Fall of 2014, Depina began discussing plans to reorganize the Sales

Services Team. (R. 35, Page ID# 676–77.)

        In early February of 2015, Depina terminated the positions held by Plaintiff and Booker.

(R. 31, Page ID# 422–23.) Depina told Plaintiff that this was part of a reorganization of the Sales

Services Team, and that Hannon’s duties would in the future be covered by sales administrators

(also called sales coordinators) “so the work would be done by several people versus just Hannon.”



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(R. 31, Page ID# 422.) Depina claims that she was also concerned that “the specialized functions

that the then members of the Sales Services Team were performing w[ere] not best supporting

[Defendant]’s needs” and should instead be performed by “multi-task oriented generalist[]” sales

administrators. (R. 31, Page ID# 418.) By April of 2015, the Sales Services Team had been

reorganized: Rusin was promoted to a position called “Sales Services Supervisor” reporting to

Depina and overseeing sales administrators Cassie Kolls Warren and Whitney Williams. (R. 31,

Page ID# 425–27.) In June of 2015, Desirae Webb was hired as a third sales administrator. (R.

31, Page ID# 427.) These three sales administrators “were responsible for specific regions in the

United States” with job responsibilities including “executive support, general sales services,

promotional items, travel, customer excursions, trade shows, mill tours, [Builder Appreciation

Program] rebates, and vendor management.” (R. 31, Page ID# 427.)

       In the years following Plaintiff’s termination, Rusin covered a number of the trade shows

Plaintiff formerly covered, and the sales administrators covered a smaller percentage of these trade

shows. (R. 31, Page ID# 428–32.) Rusin’s other job responsibilities as Sales Services Supervisor

included “supervis[ing] and guid[ing]” members of the Sales Services Team in various sales-

related functions. (R. 25-2, Sales Service Supervisor Job Description, Page ID# 216.) Rusin still

serves as Sales Services Supervisor and the Sales Services Team still comprises three sales

administrators who report to Rusin. (R. 31, Page ID# 435.)

       Plaintiff was 58 years old at the time her employment with Defendant ended. (R. 31,

Statement of Undisputed Facts, Page ID# 407.) Depina was 52 years old at that time (Id., Page

ID# 424); Rusin was 51 years old; Booker was 43 years old; Kolls Warren was 23 years old;

Williams was 24 years old (R. 35, Statement of Undisputed Facts 2, Page ID# 680); and Webb

was 25 years old (Id., Page ID# 682).



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No. 18-6334, Hannon v. Louisiana-Pacific Corp.


         Plaintiff claims that Depina made several comments about Plaintiff’s age in the roughly

five months between September of 2014 (when Depina became Plaintiff’s supervisor) and

February of 2015 (when Plaintiff’s position was terminated). These statements are discussed

below.

                                        Procedural History

         Plaintiff filed a charge of discrimination on the basis of sex and age with the Equal

Employment Opportunity Commission (“EEOC”) on October 9, 2015 (R. 1, Complaint, Page ID#

1; R. 1-1, EEOC Charge, Page ID# 8), and the EEOC issued a Notice of Suit Rights to Plaintiff on

or about March 31, 2017. (R. 1, Page ID# 1; R. 1-2, EEOC Notice, Page ID# 10.) Plaintiff filed

suit against Defendant in the Middle District of Tennessee on June 6, 2017, alleging that Defendant

1) discriminated against Plaintiff due to her gender in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq.; and 2) discriminated against Plaintiff due to her age in violation

of the ADEA, 29 U.S.C. § 623(a) et seq. (R. 1, Page ID# 1–6.)

         After discovery, Defendant moved for summary judgment on all claims. (R. 25, Motion

for Summary Judgment, Page ID# 77–80.) Plaintiff conceded that her gender discrimination

lacked support but argued she had created a genuine issue of material fact as to her age

discrimination claim. (R. 33, Response, Page ID# 459.) The district court granted Defendant’s

motion (R. 41, Order, Page ID# 744), and a judgment was entered in favor of Defendant. (R. 42,

Judgment, Page ID# 745.) Plaintiff timely appealed. (R. 43, Notice of Appeal, Page ID# 746–

47.)

                                           DISCUSSION

         We review de novo a district court’s grant of summary judgment. Holloway v. Brush, 220

F.3d 767, 772 (6th Cir. 2000) (en banc). To be entitled to summary judgment, “the movant [must]



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No. 18-6334, Hannon v. Louisiana-Pacific Corp.


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); Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). Whether a fact is “material” depends on whether its resolution might affect the outcome

of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a summary

judgment motion, this Court must “consider the evidence in the light most favorable to the non-

moving parties, drawing all justifiable inferences in their favor.”             Payne v. Novartis

Pharmaceuticals Corp., 767 F.3d 526, 530 (6th Cir. 2014) (citing Anderson, 477 U.S. at 251–52).

“The ultimate question is whether the evidence presents a sufficient factual disagreement to require

submission of the case to the jury, or whether the evidence is so one-sided that the moving parties

should prevail as a matter of law.” Id. (citing Anderson, 477 U.S. at 255).

       Viewed in the light most favorable to Plaintiff, the evidence in this case demonstrates that

Plaintiff’s supervisor made numerous offensive statements invoking Plaintiff’s advanced age

during a period of roughly five months. At the end of this short period, the supervisor terminated

Plaintiff despite her job performance being effective and satisfactory.         The result of this

termination was that the individuals primarily responsible for trade shows would not be Plaintiff

but would instead be employees who were substantially younger than Plaintiff.             Although

Defendant claims its reason for terminating Plaintiff was a business reorganization, the evidence

is sufficient to permit a jury to reject this explanation as pretext and to find instead that animus

toward Plaintiff due to her age motivated Defendant to terminate her. Defendant would contest

some of this evidence and these conclusions; however, the existence of such factual disputes makes

it evident that a jury—not a judge—should decide what actually happened between Plaintiff and

Defendant and why she was terminated. The district court thus erred in dismissing her claim, and

we reverse and remand to allow the jury to play its proper role in this case.



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No. 18-6334, Hannon v. Louisiana-Pacific Corp.


       In age discrimination cases, our “guiding principle is that the evidence must be sufficiently

probative to allow a factfinder to believe that the employer intentionally discriminated against the

plaintiff because of age.” Barnes v. GenCorp, 896 F.2d 1457, 1466 (6th Cir. 1990); Ortiz v.

Werner Enterprises, Inc., 834 F.3d 760, 764 (7th Cir. 2016) (“[T]he sole question that matters [in

employment discrimination cases is] [w]hether a reasonable juror could conclude that [the

plaintiff] would have kept his job if he [was not in the protected class], and everything else had

remained the same.”). We therefore begin with the evidence of Defendant’s ageist animus.

According to Plaintiff, Depina—the supervisor who oversaw Plaintiff and ultimately terminated

her—made at least six comments to Plaintiff regarding her age in the short time she was Plaintiff’s

supervisor. Depina referred to Plaintiff as “grandma” on three different occasions, and each time

the comment was made in front of the other members of Plaintiff’s team. (R. 25-1, Plaintiff Depo.,

Page ID# 150–55; R. 35, Page ID# 674–75.) Plaintiff claims that Depina also addressed her as

“little old lady.” (R. 25-1, Plaintiff Depo. Page ID# 162.) More egregiously, Depina once made

a comment to Plaintiff that Plaintiff interpreted to be a teasing reference to post-menopausal issues.

(R. 31, Page ID# 416; R. 35, Page ID# 674.) These comments belittling and singling Plaintiff out

for her age in front of her colleagues “made [her] feel very uncomfortable.” (R. 25-1, Plaintiff

Depo., Page ID# 151.) Plaintiff also testified that Depina once asked her about her retirement

plans. (R. 25-1, Page ID# 124.) Depina disputes that these incidents occurred as Plaintiff describes

them. (R. 35, Page ID# 674–75.) We emphasize that it is not our role to decide such factual

disputes; rather, a jury should decide such disputes—provided that they concern material facts.

       To determine how material statements like Depina’s are in age discrimination cases, we

consider “(1) whether the statements were made by a decision-maker or by an agent within the

scope of his employment; (2) whether the statements were related to the decision-making process;



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No. 18-6334, Hannon v. Louisiana-Pacific Corp.


(3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4)

whether they were made proximate in time to the act of termination.” Diebel v. L & H Res., LLC,

492 F. App’x 523, 527 (6th Cir. 2012) (quoting Peters v. Lincoln Elec. Co., 285 F.3d 456, 478 (6th

Cir. 2002). These statements were indisputably made by a decisionmaker: Depina was Plaintiff’s

supervisor and did eventually terminate her. On their face, the statements may not have related to

the decision-making process, but Depina’s six comments, which unambiguously referred to

Plaintiff’s age and were made in a short span of time, constitute more than vague, isolated remarks.

See Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1249 n.2 (6th Cir. 1995), overruled on

other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). Finally, the statements were

temporally close to the termination, as Depina was only Plaintiff’s supervisor for about five

months. See Diebel, 492 F. App’x at 528 (“[D]iscriminatory remarks made a few months before

an adverse employment decision [are] temporally proximate[.]”).

       These statements are therefore relatively strong evidence of age discrimination. There is a

question in this case as to whether this evidence constitutes direct evidence of discrimination or

only circumstantial evidence. Such labels are often unhelpful and beside the point in cases like

this, where our “guiding principle is that the evidence must be sufficiently probative to allow a

factfinder to believe that the employer intentionally discriminated against the plaintiff because of

age.” Barnes, 896 F.2d at 1466. Nevertheless, Depina’s statements arguably constitute direct

evidence that her age was a factor in her termination. See Talley, 61 F.3d at 1249 (concluding

racist comments not specifically related to the plaintiff “constitute[d] direct evidence” of

discrimination). But even if these statements are insufficient as direct evidence to overcome

summary judgment, they are sufficient circumstantial evidence—combined with other evidence

discussed below—to permit Plaintiff to present her claim to a jury. See Tuttle v. Metro. Gov’t of



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No. 18-6334, Hannon v. Louisiana-Pacific Corp.


Nashville, 474 F.3d 307, 320 (6th Cir. 2007) (concluding that statements including “I want to

apologize for causing you stress. I wouldn’t want anything to happen to my mother and dad” “may

not rise to direct evidence of age discrimination, [but] could have provided circumstantial evidence

to the jury of such discrimination.”).

       Plaintiff claims this is a typical comparator case that we should analyze under the

framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).

Defendant argues that because this case involves a business reorganization, we must instead use a

modified version of the McDonnell Douglas framework. The first three requirements of Plaintiff’s

prima facie case under the standard and modified frameworks are identical. See Barnes, 896 F.2d

at 1464–65. Plaintiff certainly meets these three requirements, as she was 58 years old at the time

of the adverse employment action and therefore within the protected class, she was undisputedly

qualified for her position, and her employment with Defendant was terminated. See id. at 1465;

29 U.S.C. § 631(a).

       The dispute over which framework to use affects only the fourth requirement of Plaintiff’s

prima facie case. In a typical age discrimination case analyzed under the McDonnell Douglas

framework, a plaintiff must prove that she “was replaced by a younger worker.” Mickey v. Zeidler

Tool & Die Co., 516 F.3d 516, 521 (6th Cir. 2008). We have defined “replaced” narrowly—a

“replacement” must more or less perform all of a plaintiff’s former duties and only the plaintiff’s

former duties. See Barnes, 896 F.2d at 1465. This requirement changes, however, “when business

considerations cause an employer to eliminate one or more positions within the company.” Geiger

v. Tower Auto., 579 F.3d 614, 623 (6th Cir. 2009). This is because in those situations, a plaintiff

will generally be unable to identify a replacement employee to serve as a comparator. In such

cases, the plaintiff must instead “provide ‘additional direct, circumstantial, or statistical evidence



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tending to indicate that the employer singled out the plaintiff for discharge for impermissible

reasons.’” Id. (quoting Barnes, 896 F.2d at 1465).

       Plaintiff’s position was eliminated, so she must provide such additional evidence.1 She has

done so.   An example of “additional direct, circumstantial, or statistical evidence” of age

discrimination that this Court has given is evidence “that the employer made statements indicative

of a discriminatory motive.” Barnes, 896 F.2d at 1466. As discussed in detail above, Depina’s

statements about Plaintiff’s age constitute evidence of ageist animus. Plaintiff thus meets her

prima facie burden.

       Because Defendant has pointed to a legitimate, non-discriminatory reason for her

termination (i.e., the reorganization), Plaintiff next bears the burden to prove by a preponderance

of the evidence that the stated reason was pretextual. Redlin v. Grosse Pointe Pub. Sch. Sys.,

921 F.3d 599, 607 (6th Cir. 2019). The evidence of Depina’s ageist statements is also relevant

here. See Vincent v. Brewer Co., 514 F.3d 489, 498 (6th Cir. 2007) (“This court has held that

discriminatory remarks may serve as evidence of pretext because they indicate the presence of

animus toward a protected group.”). And there is more specific evidence that Defendant’s stated

business-reorganization rationale for Plaintiff’s termination was pretextual. Defendant claims that

it reorganized the Sales Services Team in order to do away with “the specialized functions that the

then members of the Sales Services Team were performing” and instead assign their duties to

“multi-task oriented generalist[]” sales administrators. (R. 31, Page ID# 418.) However, Plaintiff

has submitted evidence that calls into question whether this was Defendant’s real rationale.


       1
         Plaintiff argues that her position was not eliminated because she was replaced by Rusin.
However, it is undisputed that Rusin’s position included many duties that Plaintiff never
performed, and did not include some duties that Plaintiff had performed. Rusin therefore did not
“replace” Plaintiff under this Court’s precedent, which requires a closer fit between the duties
performed by a plaintiff and the duties performed by a “replacement.” See, e.g., Barnes, 896 F.2d
at 1465.

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No. 18-6334, Hannon v. Louisiana-Pacific Corp.


Specifically, it appears that relatively few of the duties Plaintiff performed were performed by

generalist sales administrators after the reorganization; instead, more of her duties were performed

by Rusin, who has a specialized managerial role (as Plaintiff did before her termination).2 We

have held that a plaintiff can demonstrate pretext by showing “that the proffered reasons had no

basis in fact [or] did not actually motivate the employer’s action.” Redlin, 921 F.3d at 612 (quoting

Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)). Defendant argues that Plaintiff

misinterprets the trade-show arrangement Defendant had after the reorganization; because this is

a factual dispute material to the question of pretext, a jury should be the one to decide it.

       Based on the evidence that Defendant’s business-reorganization may have been pretextual,

as well as the evidence of Depina’s statements to Plaintiff and the fact that Plaintiff’s job duties

were taken over by younger employees, we hold that “a reasonable juror could conclude that [the

plaintiff] would have kept [her] job if [s]he [was] a different [age], and everything else had

remained the same.” Ortiz, 834 F.3d at 764. It was thus error to grant Defendant summary

judgment in this case.

                                          CONCLUSION

       For the reasons stated above, the judgment of the district court is REVERSED and the

case is REMANDED to the district court with instructions to permit Plaintiff to present her age

discrimination claim to a jury.




       2
          For instance, in 2016, Defendant participated in about 80 trade shows. Rusin participated
in at least 25% of these trade shows, including three out of five large trade shows that members of
the Sales Services Team attended. By contrast, the sales administrators, Williams, Kolls Warren,
and Webb, only attended one of the large trade shows (which Rusin also attended). (R. 31, SUMF,
Page ID# 428–29.) Based on Defendant’s Statement of Undisputed Material Facts, participating
in this one large trade show was the only trade-show experience Kolls Warren and Williams had
in 2016. Webb participated in three other trade shows, (R. 31, Page ID# 433), but this pales in
comparison to Rusin’s twenty trade shows.

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No. 18-6334, Hannon v. Louisiana-Pacific Corp.


        SILER, Circuit Judge, dissenting. The majority sets out the facts of this case well, so

I will not recite them again. I dissent from the conclusion of the majority that Hannon sufficiently

presented a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03

(1973). I agree that the issue is whether plaintiff has met the fourth requirement of the prima facie

case. Here, there was no replacement, but there was a reorganization of the office involved. There

is no question that Rusin took over some of Hannon’s former duties, but Rusin also was designated

for other duties that Hannon never performed. Thus, as the majority indicates, Rusin was not a

replacement for Hannon. The only evidence to show that there was a discriminatory reason for

the termination of Hannon are the remarks made by Depina, calling Hannon “grandma” at team

events outside of work hours and once at a meeting, plus calling her a “little old lady” once in a

hotel during a trade show. That does not seem to be sufficient evidence to show pretext, especially

when the speaker, Depina, was only six years younger than Hannon. Therefore, I would affirm

the decision of the district court.




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