               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 10a0250n.06

                                           No. 08-3626

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                     Apr 23, 2010
BRIAN J. VIERGUTZ,                                                             LEONARD GREEN, Clerk

              Plaintiff-Appellant,
                                                     ON APPEAL FROM THE
v.                                                   UNITED STATES DISTRICT
                                                     COURT FOR THE NORTHERN
LUCENT TECHNOLOGIES, INC.                            DISTRICT OF OHIO

            Defendant-Appellee.
_________________________________/

BEFORE: MARTIN, SUHRHEINRICH, and WHITE, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Plaintiff-Appellant Brian Viergutz (“Viergutz”),

proceeding pro se, appeals from the order and judgment of the district court granting summary

judgment to Defendant-Appellee Lucent Technologies, Inc. (“Lucent”) in this action under the Age

Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). We AFFIRM.

                                         I. Background

       Lucent hired Viergutz in 1997 as an installer. He was forty-three years old. In December

2002, Lucent reduced its workforce, and Viergutz was laid off. While employed at Lucent, Viergutz

had, by his own account, numerous interpersonal conflicts with his peers.

       In 2005, Lucent posted a job listing for installers, and Viergutz applied. His application was

forwarded by human resources personnel to the hiring manager, Melissa Reznick. Reznick

recognized Viergutz’s name because she had briefly supervised him. Reznick decided not to

interview Viergutz because she knew from other managers that he had a poor reputation. Further,
No. 08-3626
Viergutz v. Lucent Technologies, Inc.

his level of experience exceeded what the new position required. Reznick informed the human

resources personnel team that Viergutz “would not be a good candidate for this job,” because he had

“a bad reputation” and that it was “not in Lucent’s best interest to hire Brian for this job.” Lucent

hired Jared Sudy. He had a background in general laborer work and met the skill set necessary for

the position. He was under forty years of age.

       On August 22, 2005, Viergutz filed a charge claiming age discrimination with the Equal

Employment Opportunity Commission (“EEOC”). On January 31, 2006, the EEOC dismissed the

charge and issued a right to sue notice. On March 31, 2006, Viergutz filed suit in federal district

court, but dismissed it on August 3, 2006, with the court’s permission. Thirty-six days later he filed

a similar complaint in state court. The complaint presented two claims. First, Viergutz alleged age

discrimination under the ADEA arising out of Lucent’s decision not to hire him for the installer

position in 2005. Second, he stated a claim of “Harassment/Defamation of Character” based on

various events during his employment at Lucent, specifically “rumors and lies” by various managers

and coworkers which destroyed his reputation as a technician and caused him to have a heart attack

in May 2002. Lucent removed this action to federal district court on both federal question and

diversity grounds.

       After discovery, Lucent moved for summary judgment on both claims. In response to

Lucent’s motion, Viergutz filed a four-page unsworn statement, without any supporting affidavits

or admissible evidence. Viergutz claimed simply that he could “prove, with witnesses and

documents that I was an above average installer, with a good attitude and I worked well with others



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Viergutz v. Lucent Technologies, Inc.

while working at Lucent Technologies.” ROA 144-45. On April 11, 2008, the district court granted

Lucent’s motion and Viergutz then filed this timely appeal.

                                           II. Analysis

       Summary judgment is appropriate only “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). This court

reviews de novo the district court’s grant of summary judgment. Briscoe v. Fine, 444 F.3d 478, 485

(6th Cir. 2006) (citation omitted).

                                         A. ADEA Claim

       The ADEA prohibits an employer from refusing to hire an employee “because of such

individual’s age.”    29 U.S.C. § 623(a)(1).      “‘The ultimate question in every employment

discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim

of intentional discrimination.’” Geiger v. Tower Automotive, 579 F.3d 614, 620 (6th Cir. 2009)

(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)).

       A plaintiff may establish a violation of the ADEA with circumstantial evidence. See Geiger,

579 F.3d at 620 . “ Once a plaintiff satisfies his . . . prima facie burden, the burden of production

shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment

action.” Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008) (internal quotation

marks and citation omitted). If the employer meets this burden, the burden of production shifts back

to the plaintiff to show that the employer’s explanation was a mere pretext for intentional age

discrimination. Id. (citation omitted). The burden of persuasion, however, remains on the ADEA

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Viergutz v. Lucent Technologies, Inc.

plaintiff at all times to demonstrate “‘that age was the “but-for” cause of their employer’s adverse

action.’” Geiger, 579 F.3d at 620 (quoting Gross v. FBL Fin. Servs. Inc., 129 S.Ct. 2343, 2351 n.4

(2009)).1

       It is undisputed here that Viergutz established a prima facie case of discrimination

because (1) he is a member of a protected class (over 40 years of age); (2) he was subjected to an

adverse employment action; (3) he applied for and was qualified to perform the position of

installer; (3) he was considered for and denied the position; and (4) he was rejected in favor of

another person with similar qualifications who was substantially younger. Bush v. Dictaphone

Corp., 161 F.3d 363, 368 (6th Cir. 1998).

       The burden of production therefore shifted to Lucent. As the district court held, Lucent

stated a legitimate, nondiscriminatory reason for not hiring Viergutz–his poor reputation. In her

affidavit, Reznick averred that Viergutz’s supervisors indicated that he did not work well with others

and needed constant supervision. See, e.g., Stein v. Kent State Univ., No. 98-3278, 1999 WL

357752, at *9 (6th Cir. May 11, 1999) (defendants offered the plaintiff’s non-collegiality and

unwillingness to cooperate with others as nondiscriminatory reason); McShane v. U.S. Att’y Gen.,

144 F. App’x 779, 792-93 (11th Cir. 2005) (holding that employer offered a legitimate

nondiscriminatory reason for terminating the plaintiff because she could not get along well with

others).


       1
        In Gross v. FBL Fin. Servs. Inc., 129 S.Ct. 2343, 2349 & n.2 (2009), the Supreme Court
expressly declined to decide whether the McDonnell Douglas test applies to the ADEA. This Court
recently held that the McDonnell Douglas framework may still be used to analyze ADEA claims
based on circumstantial evidence. Geiger, 579 F.3d at 622.

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Viergutz v. Lucent Technologies, Inc.

       After Lucent met its burden of production, the burden shifted back to Viergutz to show

pretext. Again, as the district court also found, Viergutz failed to demonstrate that Lucent’s

proffered reason had no basis in fact, did not actually motivate the defendant’s challenged conduct,

or was insufficient to motivate the defendant’s challenged conduct. See Manzer v. Diamond

Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994).

       Lucent’s decision not to hire Viergutz had a basis in fact. As the job posting stated, the

position performed “321 level Installation Work, to free up higher skilled installers for higher skilled

jobs.” Viergutz’s superior skills did not make him more qualified than the other applicant because

his superior abilities were not needed for the installer position. Reznick’s focus on Viergutz’s poor

reputation also had a basis in fact. Viergutz does not dispute that he was referred for a psychiatric

evaluation after an incident with a coworker in 2000. Tom Gavel, who also supervised Viergutz,

described Viergutz as “ready to snap” and stated coworkers were afraid “he’ll explode.” And

Viergutz’s own deposition testimony chronicles numerous disputes with coworkers. While he may

dispute the characterizations of these disputes, there is no doubt that they occurred. Thus, even if

Viergutz’s unsupported assertions were ultimately the correct view, they do not dispel Lucent’s

belief that Viergutz would be a troublesome employee. See Smith v. Chrysler Corp., 155 F.3d 799,

807 (6th Cir. 1998) (holding that “[i]n deciding whether an employer reasonably relied on the

particularized facts then before it,” this court “do[es] not require that the decisional process used by

the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the

employer made a reasonably informed and considered decision before taking an adverse employment

action”).

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Viergutz v. Lucent Technologies, Inc.

       Reznick’s affidavit as well and her email to the human resources personnel establish that

Viergutz’s poor reputation actually motivated the decision. Finally, as noted above, the inability to

get along with co-workers is a sufficient basis to take adverse employment action. In short, Viergutz

failed to show that Lucent’s reasons for failing to hire him were pretextual.

       Viergutz alleges that he would present documents and witnesses to support his claim at trial.

However, he was obligated at the summary judgment phase to “identify specific facts that can be

established by admissible evidence, which demonstrate a genuine issue for trial.” Amini v. Oberlin

College, 440 F.3d 350, 357 (6th Cir. 2006) (citations omitted). Indeed, Federal Rule of Civil

Procedure 56(e)(2) requires that “[w]hen a motion for summary judgment is properly made and

supported, an opposing party may not rely merely on allegations or denials in its own pleading;

rather, its response must–by affidavits or as otherwise provided in this rule–set out specific facts

showing a genuine issue for trial.” Viergutz’s status as a pro se litigant does not alter his duty on a

summary judgment motion. See United States v. Ninety Three Firearms, 330 F.3d 414, 427-28 (6th

Cir. 2003) (holding that in this circuit there is no rule providing “special assistance” to nonprisoner

pro se litigants responding to summary judgment motions). Viergutz’s opinion of his performance,

which he suggests would establish that his bad reputation is baseless, is insufficient to refute

Lucent’s honestly held belief. See, e.g., Briggs v. Potter, 463 F.3d 507, 516 (6th Cir. 2006) (stating

that the employee’s “subjective view of [his] qualifications in relation to those of other applicants,

without more, cannot sustain a claim of discrimination”) (internal quotation marks and citation

omitted).



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Viergutz v. Lucent Technologies, Inc.

                                        B. Harassment Claim

        A hostile work environment occurs “when the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993) (internal quotations and citations omitted). The only evidence Viergutz has

produced is his self-described personality conflicts with former managers and coworkers. However,

to advance a hostile work environment claim under the ADEA, Viergutz must show that he was

“subjected to harassment . . . based on age.” Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th

Cir. 1996). In any event, Viergutz failed to timely submit a charge to the EEOC. The ADEA applies

to acts that occurred within 300 days of when the EEOC charge was filed. See Amini, 259 F.3d at

498 (noting that Ohio is a deferral state and therefore a plaintiff has 300 days from alleged unlawful

employment practice to file a charge with the EEOC). Viergutz’s challenge to events that occurred

when he worked at Lucent his claim is time-barred.

                                        C. Defamation Claim

        Viergutz’s defamation claim is also time-barred. The alleged defamation occurred during

his employment at Lucent between 1997 and 2002. He did not file this action until 2006, long past

Ohio’s one-year statute of limitations period. See Ohio Rev. Code § 2305.11(A). See also Friedler

v. Equitable Life Assur. Soc’y of U.S., 86 F. App’x 50, 53 (6th Cir. 2003) (noting that the statute of

limitations begins to run when the allegedly defamatory statements are made, regardless of victim’s

knowledge of them). Viergutz has not alleged that any defamatory statements were made within the

one year prior to the time he brought this suit.

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Viergutz v. Lucent Technologies, Inc.

                                          III. Conclusion

       For the foregoing reasons, as well as those articulated by the district court in its opinion dated

April 11, 2008, the judgment of the district court is AFFIRMED.




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Viergutz v. Lucent Technologies, Inc.


        BOYCE F. MARTIN, Jr., Circuit Judge, with whom WHITE, Circuit Judge, joins,

concurring. I concur fully in the lead opinion. I write separately to make two comments.

        First, Mr. Viergutz’s pro se brief makes it clear that he feels wronged. I do not doubt that

his feelings are genuine. It is equally clear that this feeling is compounded by what he perceives as

a system stacked against him. He states numerous times that all he seeks is his day in court. He

comments, candidly and poetically, that he “must have failed to properly present my case. In my

formal complaint I thought I sincerely explained it properly. I truly believe that justice should not

be only for the individuals who can afford it.” I could not agree more. For that reason, I have

devoted significant effort to ensure that dismissing Mr. Viergutz’s claims is the right result under

the law and not merely the product of a legal mismatch. I am convinced that the result would have

been the same even had Mr. Viergutz had the services of a lawyer, the only difference being that Mr.

Viergutz has saved himself substantial expense in attorney’s fees. In these kinds of cases, it is all

too common that pro se litigants perceive our affirmance of the dismissal of their claims as just

another example of a rigged, self-protecting system. It is my sincere hope that Mr. Viergutz walks

away knowing that he did receive his day in court and that nothing he or anyone else could have done

would have changed the outcome.

        Second, I feel compelled to compliment counsel for Lucent on his presentation of the issues

in his brief to this Court. It is not uncommon that we see briefs, especially in civil cases, replete with

counterproductive hostility towards the opposing party and counsel, and to a heightened degree in

cases involving pro se litigants. Lawyers often view pro se litigants as a nuisance not worth the time


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Viergutz v. Lucent Technologies, Inc.


required to draft a proper brief, and so they instead vent their frustrations by writing briefs heavy on

scorn and condescension but light on utility. Counsel for Lucent, on the other hand, dispassionately

set forth the relevant facts and issues, even those that were not helpful to his case. Counsel’s brief

struck the proper balance between objectively describing the record and relevant law and zealously

advocating his client’s position. This approach is very helpful to judges when the opposing brief,

submitted by a pro se litigant, understandably does not present a clear picture of the facts and the

applicant law. This approach is also tactically advantageous as it establishes credibility with the

reader. I therefore applaud counsel’s efforts and encourage other attorneys to follow suit.




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