                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0184n.06

                                       No. 14-3619

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                             FILED
                                                                           Mar 09, 2015
THEODORE J. SLOBAN,                                  )                 DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )
                                                         ON APPEAL FROM THE
v.                                                   )
                                                         UNITED STATES DISTRICT
                                                     )
                                                         COURT FOR THE NORTHERN
MAHONING YOUNGSTOWN COMMUNITY                        )
                                                         DISTRICT OF OHIO
ACTION PARTNERSHIP,                                  )
                                                     )
       Defendant-Appellee.                           )
                                                     )

BEFORE: BATCHELDER and WHITE, Circuit Judges; and COX, District Judge.*

       HELENE N. WHITE, Circuit Judge. Theodore J. Sloban appeals the district court’s

grant of summary judgment to his former employer, Mahoning Youngstown Community Action

Partnership (MYCAP), on his Age Discrimination in Employment Act (ADEA) and analogous

state-law claims. We AFFIRM.

                                            I.

       MYCAP is a nonprofit community agency that provides a variety of services to low-

income families in the Mahoning and Youngstown County, Ohio, area.       Its Home Energy

Services (HES) program provides home weatherization and utility-payment assistance to low-

income homeowners. MYCAP hired Sloban in 1980 as a field supervisor in the HES program,

and in 1996, Sloban became the program’s director. During his tenure as director, MYCAP

documented several instances in which it believed Sloban behaved inappropriately as a
       *
        The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 14-3619
Sloban v. Mahoning Youngstown Community Action Partnership

supervisor or mismanaged the program. MYCAP considered HES to be in a “crisis state” in

mid-2001 due in part to Sloban’s management of the program. In August 2002, MYCAP

reassigned HES’s compliance obligations to Vesna Vukasinovich after Sloban failed to respond

to an Ohio Department of Development request within the required time period. The next year,

Vukasinovich was named interim director of HES and Sloban was demoted to interim assistant

director due to “[l]ack of effective management in the program.” In 2003, Sloban was relieved

of all management responsibilities; he returned to the position of field supervisor the following

year. Even in that capacity, Sloban was warned that his “inability to follow specific instructions

in [his] job duties [was] completely unsatisfactory.” Sloban was demoted further to furnace

technician in 2005.

       MYCAP came under increased scrutiny in 2009 by the State of Ohio to ensure proper use

of public money it received from the American Recovery and Reinvestment Act. Consequently,

all technical staff—including Sloban—were placed on a performance improvement plan.

Around the same time, MYCAP replaced its executive director with John Wilson, and

transferred Sloban to an assessor position. In that role, Sloban performed furnace inspections

and overall home assessments.

       In September 2010, HES Director Vukasinovich and Assistant HES Director Jamira Ellis

sent Sloban a written memorandum advising him that the “majority of your assessments require

corrections and many are given back to you [multiple] times to be corrected and are not

completed and returned in a timely manner,” and warning that if they did not “see improvement

in your assessments, disciplinary action will be taken.” A few months later, Sloban’s direct

supervisor, William Rowbotham, issued Sloban an employee warning notice for attendance

issues, inappropriate behavior, unsatisfactory performance, and insubordination, asserting that


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Sloban v. Mahoning Youngstown Community Action Partnership

Sloban had failed to timely complete required paperwork, used his personal computer to process

homeowners’ information in violation of MYCAP policy, arrived at work late, left work early,

and logged more absences than MYCAP’s policy authorized. Rowbotham placed Sloban on

probation and warned him that he would be suspended if the violations occurred again.

Rowbotham suspended Sloban the following month, after Sloban’s company-owned vehicle was

seen parked in front of a bar, which was located outside of Sloban’s authorized lunch area and

the designated lunch period.

       MYCAP executive director Wilson met with Sloban, Rowbotham, and Vukasinovich in

January 2011 to discuss management’s expectations of Sloban. Following the meeting, Sloban’s

behavior and productivity did not improve to management’s satisfaction. Wilson suspended

Sloban for five days without pay because of insubordination and gross negligence, failure to

cooperate with coworkers, and misconduct related to work hours.            The suspension letter

informed Sloban that a failure to improve could lead to additional suspension or termination. In

April, Sloban was demoted to crew person, the lowest position in HES. Approximately one

week later, Wilson discharged Sloban. Wilson stated in a discharge letter that a “review of your

personnel records over the past 6 months, documents that your performance, attitude and

production output has [sic] not been consistent with meeting” increased production and quality

goals due to greater government scrutiny. Sloban was fifty-eight years old.

       Sloban filed a charge of discrimination with the U.S. Equal Employment Opportunity

Commission (EEOC).       After investigation, the EEOC dismissed the charge based on its

determination that it was “unable to conclude that the information obtained establishes violations

of the statutes.” Sloban then brought an action in the district court. On MYCAP’s motion for

summary judgment, the district court concluded that Sloban did not present direct evidence of


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Sloban v. Mahoning Youngstown Community Action Partnership

discrimination, failed to establish a prima facie circumstantial case of discrimination because he

could not identify similarly situated nonprotected employees who MYCAP treated more

favorably, and also failed to show pretext. The court entered summary judgment for MYCAP on

all claims. Sloban now appeals.

                                               II.

       Sloban raises two issues on appeal: (1) that certain age-related remarks constitute direct

evidence of age discrimination; and (2) that the court erred in its circumstantial-evidence

analysis because it weighed conflicting evidence in MYCAP’s favor.

                                               A.

       We review de novo a district court’s order granting summary judgment. Rudisill v. Ford

Motor Co., 709 F.3d 595, 600 (6th Cir. 2013). An award of 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); Mitchell v. Fankhauser, 375 F.3d

477, 479 (6th Cir. 2004). In determining whether the district court’s grant of summary judgment

was proper, “we must view all evidence in the light most favorable to the nonmoving party.”

Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007) (citing Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “The mere existence of a scintilla

of evidence to support the plaintiff’s position will be insufficient; there must be evidence on

which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476, 479

(6th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

       Under the ADEA, it is unlawful for an employer to discharge an employee who is at least

40 years old because of the employee’s age. 29 U.S.C. §§ 623(a)(1), 631; Mickey v. Zeidler Tool

& Die Co., 516 F.3d 516, 521 (6th Cir. 2008). Similarly, it is an unlawful discriminatory


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Sloban v. Mahoning Youngstown Community Action Partnership

practice in Ohio for an employer to discharge an employee because of the person’s age. Ohio

Rev. Code § 4112.02(A). Age-discrimination claims brought under Ohio law are analyzed under

the same standards as claims brought under the ADEA. Minadeo v. ICI Paints, 398 F.3d 751,

763 (6th Cir. 2005). A plaintiff can prove unlawful age discrimination under the ADEA with

either direct or circumstantial evidence. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564,

570 (6th Cir. 2003). Direct evidence of discrimination is evidence that, “if believed, requires the

conclusion that age was the ‘but for’ cause of the employment decision,” Scheick v. Tecumseh

Pub. Sch., 766 F.3d 523, 530 (6th Cir. 2014), and does not require the factfinder to draw any

inferences to reach that conclusion, Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 798 (6th

Cir. 2013). Circumstantial evidence “is proof that does not on its face establish discriminatory

animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.”

Wexler, 317 F.3d at 570.

                                                B.

       Sloban testified that approximately one year before he was discharged, he overheard a

conversation between Vukasinovich, Jeff Patterson, and Jamira Ellis, during which someone

said: “When they get old, they should get out of here. I don’t know why they would stay. I

don’t know why they won’t retire and just go. I don’t know why they would want to stay.” He

contends this conversation occurred at least three times. These statements, he claims, are direct

evidence of age discrimination. We evaluate statements allegedly showing an employer’s age

bias under the following four factors, taking all of the circumstances into account: “(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;

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


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Sloban v. Mahoning Youngstown Community Action Partnership

(4) whether they were made proximate in time to the act of termination.” Peters v. Lincoln Elec.

Co., 285 F.3d 456, 478 (6th Cir. 2002).

       The district court considered these factors and concluded that Vukasinovich, Patterson,

and Ellis were neither decision makers (because Wilson had the sole authority to discharge

Sloban) nor Wilson’s agents; no evidence connected the year-old remarks to Sloban’s discharge;

and the comments were ambiguous and vague because Sloban could not place the conversation

in context since he was not a participant. In addition, the court noted that the conversation

participants were members of the ADEA protected class at the time of the conversations—

Vukasinovich was 60, Patterson was 54, and Ellis was 49 years old—and thus their ages

“seriously undermine[d]” Sloban’s direct evidence claim. Sloban was 58.

       On appeal, Sloban contends the comments were related to Wilson’s decision to discharge

him because Wilson acted on Vukasinovich’s discharge recommendation. Sloban also asserts

that the remarks were “painfully blunt” and that the passage of one year between the

conversation and Sloban’s discharge is “ill-described as either ‘proximate’ or ‘remote.’”

       A plaintiff can establish liability under a “cat’s paw” theory where “‘a supervisor

performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause

an adverse employment action, and . . . that act is a proximate cause of the ultimate employment

action.’” Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 351 (6th Cir. 2012) (alteration in

original) (quoting Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011)). The district court

correctly concluded that the comments were not direct evidence of discrimination attributable to

Wilson and that there was no evidence that Vukasinovich’s comments caused or were related to

Sloban’s discharge. That Vukasinovich (who was two years older than Sloban) reported to

Wilson does not demonstrate that her conversations were related to Wilson’s decision-making


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Sloban v. Mahoning Youngstown Community Action Partnership

process or his decision to discharge Sloban one year later. Wilson had himself been involved in

Sloban’s previous discipline and conducted his own review of Sloban’s employment history and

performance before deciding to discharge him.

                                                C.

       A plaintiff without direct evidence of discrimination can establish a prima facie case of

age discrimination by showing: (1) he was at least 40 years old at the time of the alleged

discrimination; (2) he was subjected to an adverse employment action; (3) he was otherwise

qualified for the position; and (4) he was replaced by a younger worker, or there are other

circumstances that support an inference of discrimination, e.g., that similarly situated employees

outside of the protected class were treated more favorably. Mickey, 516 F.3d at 521; Blizzard v.

Marion Technical Coll., 698 F.3d 275, 283 (6th Cir. 2012); Coomer v. Bethesda Hosp., Inc.,

370 F.3d 499, 511 (6th Cir. 2004). Once the plaintiff has satisfied his initial burden, the burden

of production shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the

adverse decision. Mickey, 516 F.3d at 521. If the defendant articulates such a reason, the

plaintiff must show that the reason given is pretext for discrimination. Id.

       The fourth prong is at issue here. Because MYCAP did not replace Sloban with someone

younger, Sloban was required to show that MYCAP treated similarly situated younger

employees more favorably than him. Sloban argues that MYCAP favored substantially younger

assessors by assigning them, but not him, to “easier jobs,” permitting them to attend conferences,

allowing them to report their hours in writing rather than having to clock in, and giving them




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Sloban v. Mahoning Youngstown Community Action Partnership

newer equipment.1 The district court concluded that Sloban’s own testimony refuted these

assertions.

       On appeal, Sloban argues the district court impermissibly weighed conflicting evidence

and resolved disputed facts in MYCAP’s favor. A district court may not weigh evidence at

summary judgment; rather, the court must determine whether there is a genuine issue of fact for

trial. Anderson, 477 U.S. at 249. Sloban proffers the following three examples of the district

court allegedly weighing evidence:

       1. He conceded that the more difficult jobs ultimately given to him were more
          suitable for a worker with more training and experience. Few workers had
          more training and experience than Plaintiff, who was hired in 1980 and at one
          time was the head of HES. The arrangement was sensible management.

       2. Second, Plaintiff confessed that he regularly attended the same conferences as
          the younger employees and MYCAP never denied him the opportunity to
          attend a conference when he asked to go.

       3. In fact, Plaintiff “got a lot of [his] equipment upgraded” when he complained
          to MYCAP about his equipment.

Sloban Br. 15 (quoting Memorandum of Opinion & Order, R. 23 (alteration in original)). Sloban

does not, however, explain how each of these observations by the district court is a result of the

court weighing conflicting evidence.     The court based each statement solely on Sloban’s

testimony. Sloban does not point us to conflicting evidence, contend the court misread his

testimony, or suggest his testimony was not accurate. Indeed, we come to the same conclusions.

Sloban claimed MYCAP assigned him more difficult jobs than younger employees, but admitted



       1
          Sloban argued below MYCAP favored younger employees when it conducted a
reduction in force in 2011 after it exhausted the stimulus funding. The district court observed
that Sloban was not similarly situated to the younger laid-off assessors since he was discharged
and concluded that, in any event, Sloban’s statistical evidence did not support an inference of
discrimination because the sample size was too small for meaningful analysis. Sloban does not
challenge these conclusions on appeal.


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Sloban v. Mahoning Youngstown Community Action Partnership

that an employee with his training and experience could better handle more difficult jobs. He

maintained that MYCAP denied him, but not younger workers, training and conference

opportunities, but admitted that when he asked to go to events, MYCAP allowed him.2

Similarly, Sloban alleged MYCAP allowed younger employees to write down their hours rather

than clock in and out of work; however, Sloban admitted he too was permitted to report his hours

in writing. Finally, Sloban contended younger workers received new vehicles and equipment;

yet, in his deposition, he admitted he “got a lot of his equipment upgraded” after he complained.3

       Sloban also challenges the district court’s conclusion that he could not prove pretext. A

plaintiff generally can show pretext by showing (1) that the proffered reasons had no basis in

fact, (2) that the proffered reasons did not actually motivate the adverse employment decision, or

(3) that they were insufficient to motivate discharge. Blizzard, 698 F.3d at 285. To carry his

burden, Sloban must “rebut . . . [MYCAP’s] proffered rationale[s]”; he need not disprove them.

Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th Cir. 2012). However, “[i]f an employer has an

‘honest belief’ in the nondiscriminatory basis upon which it has made its employment decision

(i.e. the adverse action), then the employee will not be able to establish pretext.” Tingle v.

Arbors at Hilliard, 692 F.3d 523, 530–31 (6th Cir. 2012).




       2
          Sloban testified that Vukasinovich allowed him to go to five conferences after 2003 or
2004 on vacation time. The district court noted that Sloban also testified that he did not know
whether the other employees used vacation time to attend conferences. Sloban makes no issue of
this.
        3
          To the extent Sloban asks us to further review the court’s decision for impermissible
factfinding by referring to other unidentified instances of factfinding “littered throughout” the
court’s opinion, we decline to do so. See United States v. Roach, 502 F.3d 425, 442 (6th Cir.
2007) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.” (quoting United States v. Layne, 192 F.3d 556,
566 (6th Cir. 1999)).


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Sloban v. Mahoning Youngstown Community Action Partnership

        Sloban asserts his employment record confirms he was an excellent employee, and thus,

Wilson’s stated reasons for discharging him (i.e., insubordination, failure to cooperate, and

misconduct) were pretext for age discrimination. In particular, he draws attention to his 2009

performance evaluation, which rated him “very good” in three categories, “good” in seventeen,

and “needs improvement” in only one. The generally positive 2009 review does not create a

factual dispute. Wilson discharged Sloban based on a performance review of Sloban’s last six

months. Sloban directs us to an “uncharacteristic dearth” of documentation between his January

2011 suspension and ultimate discharge in April and an allegedly missing 2010 review, as

evidence of a factual dispute.

        Sloban argues Wilson’s stated reasons for discharging him had no basis in fact because

there was no documented evidence of misconduct or poor performance in the months preceding

his discharge. To the contrary, the record includes notes and testimony regarding a January 2011

meeting, in which management met with Sloban to discuss MYCAP’s expectations of him, as

well as Rowbotham’s daily reports of Sloban’s activities and an April 2011 email from

Rowbotham to management documenting a mistake Sloban made that Rowbotham was required

to correct.

        Finally, Sloban argues that because MYCAP did not produce his 2010 performance

evaluation, he is entitled to a presumption that the alleged 2010 report was favorable to him. In

this circuit:

        [A] party seeking an adverse inference instruction based on the destruction of
        evidence must establish (1) that the party having control over the evidence had an
        obligation to preserve it at the time it was destroyed; (2) that the records were
        destroyed “with a culpable state of mind”; and (3) that the destroyed evidence was
        “relevant” to the party’s claim or defense such that a reasonable trier of fact could
        find that it would support that claim or defense.



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Sloban v. Mahoning Youngstown Community Action Partnership

Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (alteration in original)

(quoting Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)).

Although we must construe all reasonable inferences in Sloban’s favor, as the nonmovant,

Sloban has failed to prove the existence of the report so as to create a factual dispute. MYCAP

contends it did not evaluate Sloban in 2010 on the same form it used in 2009; rather, it provided

him ongoing evaluations in the form of memoranda. Sloban, therefore, is not entitled to an

adverse inference for evidence spoliation. We agree with the district court that Sloban failed to

prove pretext, and therefore, do not address the court’s determination that MYCAP was entitled

to the honest-belief defense.

                                              III.

       For these reasons, we AFFIRM the district court’s judgment.




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