                               RECOMMENDED FOR PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 20a0280p.06

                     UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 KENNETH JAMES LOWE,                                        ┐
                                  Plaintiff-Appellant,      │
                                                            │
                                                             >        No. 19-2386
       v.                                                   │
                                                            │
                                                            │
 WALBRO LLC,                                                │
                                 Defendant-Appellee.        │
                                                            ┘

                        Appeal from the United States District Court
                      for the Eastern District of Michigan at Bay City.
                 No. 1:18-cv-12835—Thomas L. Ludington, District Judge.

                                   Argued: August 5, 2020

                             Decided and Filed: August 26, 2020

                      Before: GILMAN, BUSH, and READLER, Circuit Judges.

                                     _________________

                                           COUNSEL

ARGUED: Matthew D. Klakulak, GIROUX AMBURN PC, Southfield, Michigan, for
Appellant. David M. Cessante, CLARK HILL PLC, Detroit, Michigan, for Appellee. ON
BRIEF: Matthew D. Klakulak, GIROUX AMBURN PC, Southfield, Michigan, for Appellant.
David M. Cessante, Brian D. Shekell, CLARK HILL PLC, Detroit, Michigan, for Appellee.
                                     _________________

                                            OPINION
                                     _________________

      RONALD LEE GILMAN, Circuit Judge. In June 2018, Kenneth Lowe was fired from
his job at Walbro LLC. Lowe was 60 years old at the time and had worked at Walbro for more
than four decades.    He responded by filing this lawsuit against Walbro, alleging that the
 No. 19-2386                        Lowe v. Walbro LLC                                   Page 2


company had violated Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws
§ 37.2101 et seq., by discharging him because of his age. The district court granted summary
judgment in favor of Walbro. For the reasons set forth below, we REVERSE the judgment of
the district court and REMAND the case for further proceedings consistent with this Opinion.

                                     I. BACKGROUND

        Lowe, who was born in 1958, began working for Walbro as a stock handler at the age of
18. Over the course of his 41-year career with the company, he was promoted on several
occasions. At the time that he was fired, he held the title of Area Manager, a position that he
assumed in 2014.

        Walbro describes itself as “a global market leader in engine management and fuel
systems for the outdoor power equipment, recreational, marine, and personal transportation
markets.” It is headquartered in Arizona, but has offices in Cass City, Michigan (where Lowe
worked throughout his career with Walbro) as well as in various other countries.

        As Area Manager, Lowe was responsible for managing the maintenance of the entire
Cass City facility. His responsibilities included maintaining blow-molding machines, assembly-
line machines, and robotics equipment, as well as overseeing the janitorial staff and maintaining
other areas of the plant.

        According to Walbro, the work of the Cass City facility began to change significantly
around 2009 or 2010. Previously, the plant had largely been used to produce carburetors, but
later it evolved to focus primarily on blow molding (a process used to manufacture hollow
plastic products) and robotics.

        In June 2016, Walbro hired 35-year-old Tom Davidson as General Manager of the Cass
City facility. Davidson testified that, soon after he assumed this role, he noticed that Lowe’s
understanding of robotics and blow molding was limited. According to Davidson, Lowe relied
heavily on two subordinates—Rick Osterbeck and Nate Windsor—for the maintenance of the
blow-molding machines and robotics equipment, and Lowe did not attempt to improve his own
abilities in these areas.
 No. 19-2386                         Lowe v. Walbro LLC                                 Page 3


       Approximately six months later, Davidson removed Osterbeck and Windsor from
reporting to Lowe.        Davidson said that he did so because he believed that Lowe was
“overwhelmed.” Osterbeck and Windsor instead reported directly to Davidson after this change
was made. Lowe was left managing only one portion of the building as well as conducting
general facility maintenance. Davidson testified that Lowe’s performance did not improve
following this reorganization.

       Lowe alleges that, throughout the roughly two-year period of time that he and Davidson
overlapped at Walbro, Davidson made a series of disparaging statements about Lowe’s age. For
example, in October 2016, Lowe received an award recognizing his 40 years of employment
with Walbro. According to Lowe, after he received the award and sat back down, Davidson said,
at a volume where others in the room could hear him: “Old man, you been here longer than I am
old. Aren’t you ready to retire?” Lowe further testified that Davidson made “at least a dozen”
statements about Lowe’s age over the time period when both men were employed at the
company. These included comments such as referring to Lowe as an “[o]ld man” and saying that
he was “losing a step.”

       In March 2018, Walbro hired Debby Rard to serve as the Senior Human Resources
Manager at the Cass City facility. Rard testified that, soon after she began working for Walbro,
she was reviewing the company’s organizational charts when she noticed that Lowe was serving
as the Area Manager but had only a few janitors reporting directly to him. She concluded that
the retention of this position did not make good business sense for Walbro and recommended to
the company’s leadership that Lowe’s position be eliminated.

       Rard also testified that, around this time, she began to receive complaints that Lowe had
engaged in inappropriate behavior, such as bullying, vulgarity, and sexual innuendoes. She
created a spreadsheet titled “Observed Behavior - Ken Lowe, Facilities Manager CAS” that
catalogued six incidents of alleged inappropriate behavior regarding Lowe, which spanned from
2015 to 2018. The final incident listed on the spreadsheet took place on June 19, 2018 and was
reported by Osterbeck. Osterbeck stated that, at a meeting involving Lowe, Osterbeck, and
another employee, Lowe had said: “Rick, you suck Bill raw” and made an “inappropriate
gesture.”
 No. 19-2386                         Lowe v. Walbro LLC                                   Page 4


       Around this time—although the exact date is not clear from the record—Walbro made
the final decision to terminate Lowe. According to Adam Arkells, Walbro’s Vice President of
Human Resources, this was a group decision, made by Arkells, Davidson, Rard, and two other
people. Arkells testified that Lowe was fired because of a “culmination of a series of things,”
including Lowe’s lack of ability to perform his position, the perception that his role was
unnecessary, and the alleged harassing statements.

       Davidson characterizes the situation somewhat differently. According to him, by the
time of the June 19, 2018 incident with Osterbeck, the decision to eliminate Lowe’s position had
already been made, and any behavioral issues with Lowe did not factor into that decision.
Walbro contends that this difference in testimony between Arkells and Davidson is immaterial
because the key reason for Lowe’s termination was simply that the Area Manager position was
no longer needed, and that the other issues were “peripheral” ones that would have been
addressed only if the position were retained.

       Lowe was fired on June 28, 2018. On that date, Davidson asked Lowe to come to
Davidson’s office, where Rard was also present.         Davidson read from a prepared script,
informing Lowe that his position was being eliminated. Lowe later testified that, at this meeting,
the following exchange took place:

       I did ask Tom [Davidson] about why—why was I terminated? Was it my job?
       Was I not doing the job? . . . And he just—basically he didn’t answer me. He just
       said, well, you’re kind of getting up there in years, you’re at retirement age, you
       go one way and the company’s going the other.

Rard denies that this exchange happened or that Davidson said anything to that effect. Davidson
likewise denies that Lowe ever asked why he was being terminated.

       Lowe filed this lawsuit in September 2018. He raised the single claim that his firing
violated the ELCRA. After Walbro moved for summary judgment, the district court granted the
motion. This timely appeal followed.
 No. 19-2386                        Lowe v. Walbro LLC                                    Page 5


                                         II. ANALYSIS

A.     Standard of review

       We review the district court’s grant of summary judgment de novo. Keith v. County of
Oakland, 703 F.3d 918, 923 (6th Cir. 2013). “The court shall grant summary judgment 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). A genuine dispute of material fact exists
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

B.     Elliott-Larsen Civil Rights Act

       The ELCRA provides, in relevant part, that an employer shall not “[f]ail or refuse to hire
or recruit, discharge, or otherwise discriminate against an individual with respect to employment,
compensation, or a term, condition, or privilege of employment, because of religion, race, color,
national origin, age, sex, height, weight, or marital status.” Mich. Comp. Laws § 37.2202(1)(a).
Lowe claims that Walbro violated the ELCRA by firing him on the basis of his age.

       Proof of discriminatory treatment under the ELCRA “may be established by direct
evidence or by indirect or circumstantial evidence.” Sniecinski v. Blue Cross & Blue Shield of
Mich., 666 N.W.2d 186, 192 (Mich. 2003). Lowe argues that he presented sufficient evidence to
avoid summary judgment under either theory. Because we conclude that Lowe’s direct-evidence
argument has merit, we need not address his second one.

       “In cases involving direct evidence of discrimination, a plaintiff may prove unlawful
discrimination in the same manner as a plaintiff would prove any other civil case.” Id. The
Michigan Supreme Court has adopted this court’s definition of “direct evidence” in this context
as “evidence which, if believed, requires the conclusion that unlawful discrimination was at least
a motivating factor in the employer’s actions.” Hazle v. Ford Motor Co., 628 N.W.2d 515, 520
(Mich. 2001) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921,
926 (6th Cir. 1999)).
 No. 19-2386                         Lowe v. Walbro LLC                                   Page 6


       In a direct-evidence case involving mixed motives—that is, where “the adverse
employment decision could have been based on both legitimate and legally impermissible
reasons”—a plaintiff “must prove that the defendant’s discriminatory animus was more likely
than not a ‘substantial’ or ‘motivating’ factor in the decision.” Sniecinski, 666 N.W.2d at 192–
93 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244 (1989) (plurality)). Put slightly
differently, the plaintiff must show that “the defendant was predisposed to discriminating against
members of the plaintiff’s protected class” and that “the defendant actually acted on that
predisposition in visiting the adverse employment action on the plaintiff.” Wilcoxon v. Minn.
Mining & Mfg. Co., 597 N.W.2d 250, 257 (Mich. Ct. App. 1999). Once a plaintiff meets the
initial burden of proving that the illegal conduct “was more likely than not a substantial or
motivating factor in the defendant’s decision, a defendant has the opportunity to show by a
preponderance of the evidence that it would have reached the same decision without
consideration of the protected status.” Downey v. Charlevoix Cnty. Bd. of Rd. Comm’rs, 576
N.W.2d 712, 718 (Mich. Ct. App. 1998).

       We note that, in some cases, the Michigan Supreme Court has imposed a more stringent
standard of causation, requiring ELCRA plaintiffs to show that there was “but for causation or
causation in fact” rather than simply showing that the animus was a substantial or motivating
factor. Hecht v. Nat’l Heritage Academies, Inc., 886 N.W.2d 135, 146 (Mich. 2016) (quoting
Matras v. Amoco Oil Co., 385 N.W.2d 586, 589 (Mich. 1986)) (internal quotation marks
omitted). The Michigan courts have noted this discrepancy, but they do not appear to have
definitively resolved it. See Hrapkiewicz v. Wayne State Univ. Bd. of Governors, 910 N.W.2d
654, 654 (Mich. 2018) (Markman, C.J., dissenting from the denial of leave to appeal) (“These
interpretations of the [ELCRA] are inconsistent, as Hecht imposes a considerably higher
causation standard than Hazle.”).

       In the present case, both parties have briefed the issue along the lines of the Hazle and
Sniecinski standard; neither side has cited Hecht or otherwise suggested that but-for causation is
required. We will thus follow the same approach in this Opinion. In any event, we would
conclude that Lowe has raised a genuine dispute of material fact under either standard, so the
difference is immaterial for our purposes.
 No. 19-2386                          Lowe v. Walbro LLC                                      Page 7


C.     Direct evidence

       Lowe’s central contention in this case is that the statements that Davidson allegedly made
about Lowe’s age constitute direct evidence of discrimination. The most significant of these was
Davidson’s alleged statement made at the June 2018 meeting when Lowe was fired. Again,
Lowe recalls this statement as follows:

       I did ask Tom about why—why was I terminated? Was it my job? Was I not
       doing the job? . . . And he just—basically he didn’t answer me. He just said,
       well, you’re kind of getting up there in years, you’re at retirement age, you go one
       way and the company’s going the other.

       The district court quoted this language in its recitation of the facts, but failed to
specifically focus on the language’s significance with regard to Lowe’s ELCRA claim. Instead,
the court simply asserted that “[e]ven if Davidson did in fact make the comments regarding
Plaintiff’s age, these are too attenuated to rise to the level of direct evidence of discrimination.”

       At the summary-judgment stage, of course, we must view the record “in the light most
favorable to the nonmoving party,” and we “may not make credibility determinations nor weigh
the evidence when determining whether an issue of fact remains for trial.” Laster v. City of
Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014); see also Harrison v. Olde Fin. Corp.,
572 N.W.2d 679, 681 n.5 (Mich. Ct. App. 1997) (“The defendant’s employees in question deny
making the comments, which, in turn, calls into question plaintiff’s credibility. When credibility
is at issue, summary disposition rarely is appropriate.”). We are therefore required to assume
that Davidson did in fact make the alleged statement for the purposes of deciding this appeal. At
oral argument, Walbro’s counsel noted that Lowe’s testimony was uncorroborated, but conceded
that this is immaterial to our summary-judgment analysis.

       We have no difficulty concluding that the “you’re kind of getting up there in years,
you’re at retirement age” comment constitutes direct evidence of discrimination. The Michigan
Supreme Court’s opinion in DeBrow v. Century 21 Great Lakes, Inc., 620 N.W.2d 836 (Mich.
2001) (per curiam), is squarely on point regarding this issue. In DeBrow, the plaintiff sued his
former employer for age discrimination after being fired.           DeBrow testified that, “in the
conversation in which he was fired, his superior told him that he was ‘getting too old for this
 No. 19-2386                          Lowe v. Walbro LLC                                   Page 8


shit.’” Id. at 838. The Court acknowledged that “this remark may be subject to varying
interpretations.” Id. At the summary-judgment stage, however, the Court noted that it had to
view all evidence in the light most favorable to the plaintiff. Id. It concluded that the remark
“could be taken as a literal statement that the plaintiff was ‘getting too old’ for his job and this
was a factor in the decision to remove him from his position.” Id. The Court thus determined
that the remark constituted “direct evidence of unlawful age discrimination” and reversed the
lower courts’ grant of summary judgment in favor of the employer. Id. at 838–39. Most
strikingly, the DeBrow Court held that this statement alone raised a genuine dispute of material
fact, and it reversed on the basis of that single remark. See id.

       The present case is on all fours with DeBrow. As in DeBrow, the statement in question
was made at the meeting in which Lowe was fired, and it was made by Lowe’s supervisor. The
evidence of discrimination is, if anything, even stronger than in DeBrow because Davidson’s
statement was made in direct response to Lowe’s question about why he was being fired. When
read in the light most favorable to Lowe, Davidson’s remark is a literal statement that Lowe’s
age was the actual reason why he was terminated. That is the textbook definition of what the
ELCRA prohibits: discharging an employee “because of” the employee’s age. See Mich. Comp.
Laws § 37.2202(1)(a). Other Michigan caselaw reinforces the point that statements similar to
Davidson’s—even if not made at the time of firing—may constitute direct evidence of
discrimination. See, e.g., Downey v. Charlevoix Cnty. Bd. of Rd. Comm’rs, 576 N.W.2d 712,
718 (Mich. Ct. App. 1998) (concluding that statements such as “[i]f I have to, I will get rid of the
older guys—you older guys and replace you with younger ones” were direct evidence of
discrimination).

       Walbro attempts to distinguish DeBrow on the ground that the supervisor in DeBrow who
made the discriminatory statement personally terminated the plaintiff, whereas here Davidson
was part of a group of people who decided to fire Lowe, and Lowe does not attribute any animus
to the others involved in that decision. But this misses the critical fact that Davidson’s remark
came in response to Lowe’s question of “why was I terminated?” The most natural reading of
Davidson’s answer is that Lowe’s age was the reason why Walbro as an entity fired him,
 No. 19-2386                         Lowe v. Walbro LLC                                    Page 9


regardless of which specific members of the company’s decision-making team might have had
an animus against him.

       Walbro also points to what it describes as Davidson’s track record of hiring older
employees, asserting that the number and percentage of older workers at the Cass City facility
increased after Davidson was hired. But Walbro has been unable to cite any analogous case in
which similar statistical evidence has been held, at the summary-judgment stage of the case, to
negate what would otherwise be direct evidence of age discrimination. We are likewise unaware
of any such case, and we decline to so hold.

       In short, as in DeBrow, Davidson’s remark by itself could lead a reasonable jury to find
that the company acted on a predisposition to discriminate on the basis of age in taking its
adverse employment action against Lowe. We therefore conclude that Lowe has met his burden
of raising a genuine dispute of material fact as to whether Walbro’s “discriminatory animus was
more likely than not a ‘substantial’ or ‘motivating’ factor in the decision.” See Sniecinski v. Blue
Cross & Blue Shield of Mich., 666 N.W.2d 186, 193 (Mich. 2003). In the alternative, we would
conclude that Lowe has raised a genuine dispute of material fact as to whether the animus was a
but-for cause of his termination as well.

D.     Mixed motives

       As noted above, the Michigan Supreme Court in DeBrow reversed on the basis of the
superior’s comment alone, without conducting a mixed-motives analysis. This, however, is
uncommon. The Michigan courts more often hold that a court must also consider whether the
defendant “would have made the same decision even if the impermissible consideration had not
played a role in the decision.” Id.; see also Downey, 576 N.W.2d at 718; Harrison v. Olde Fin.
Corp., 572 N.W.2d 679, 683–84 (Mich. Ct. App. 1997). We must therefore assess whether
Walbro has made this showing as a matter of law, or whether this is a jury issue to be resolved at
trial. See Downey, 576 N.W.2d at 718. Because the district court concluded that Lowe had not
presented any direct evidence of age discrimination, it did not address the mixed-motives issue.

       Walbro argues that it would have fired Lowe for legitimate reasons even if discriminatory
animus were present. It cites as evidence the facts that, at the time of Lowe’s firing, blow
 No. 19-2386                        Lowe v. Walbro LLC                                 Page 10


molding and robotics constituted the large majority of the plant’s production, that Lowe was not
involved in the blow-molding operations, and that no one reported to Lowe other than the
janitorial staff. As a result, Rard and other Walbro officers—to whom Lowe does not attribute
any discriminatory animus—believed that Lowe’s position was unnecessary.            Walbro thus
contends that Lowe’s position would have been eliminated regardless of his age.

       Lowe counters by reframing his situation in a different light. According to Lowe, what
happened is that he was effectively fired in a two-step, choreographed process where Davidson
first removed the bulk of Lowe’s responsibilities and then used his diminished position as an
excuse to fire him. Thus, Lowe says, one cannot simply look at what his responsibilities were at
the time of his firing, since those responsibilities had already been diminished as a result of
Davidson’s age-related animus.

       Lowe’s argument, however, presumes that there was something illegitimate about the
first of the two steps. Walbro contends that there was not, pointing to Davidson’s testimony that
Lowe’s understanding of blow molding and robotics was limited, and that Lowe relied heavily
on Osterbeck and Windsor for help in these areas. The company’s position is also bolstered by
the fact that, after Lowe was terminated, Walbro did not hire anyone to replace him. Rather,
according to a declaration from Arkells, Lowe’s former job duties were reallocated to Osterbeck
and another existing employee.

       But Lowe has answers to this point as well. Lowe notes that there is no documentary
evidence of deficient performance prior to the time of his discharge. He cites the excellent
performance reviews that he received between 2010 and 2014. Lowe further observes that,
although he had been managing the blow-molding machines since 2009, he never received a
single complaint in this area before Davidson’s arrival.     There is also little evidence that
Davidson ever conveyed any of his alleged concerns with Lowe’s performance to Lowe.
Davidson conceded that he never conveyed any of these concerns to Lowe in writing, and
Davidson appears to have told Lowe only once, verbally, that he believed Lowe “wasn’t
completely engaged with the blow molding side.” Finally, Davidson never completed a formal
performance evaluation of Lowe in the roughly two years that Davidson supervised Lowe
 No. 19-2386                         Lowe v. Walbro LLC                                   Page 11


despite the fact that Walbro’s Employee Handbook suggests that such evaluations should take
place annually.

       We conclude, based on all of this contradictory evidence, that Walbro has not
demonstrated as a matter of law that it would have terminated Lowe regardless of any age-
related animus. To begin with, the fact that there were people other than Davidson involved in
the decision to fire Lowe is not dispositive. “If a person who is improperly motivated gives
significant input into a decision,” a court may not dismiss a plaintiff’s ELCRA discrimination
claim simply because a collective actor such as a board “was the ultimate decision-maker.”
Goodman v. Genesee County, No. 266955, 2006 WL 2270411, at *4 (Mich. Ct. App. Aug. 8,
2006) (per curiam); see also Harrison, 572 N.W.2d at 682 n.7 (concluding that biased comments
made by others participating in the hiring process to the individual who made the final hiring
decision “must be imputed” to the ultimate decision maker at the summary-judgment stage).
And there is certainly enough evidence in the record from which a reasonable jury could
conclude that Davidson possessed age-related animus toward Lowe, as discussed above.

       More broadly, this case presents itself in a different context from most disputes regarding
the reasons for an employer’s actions. Plaintiffs in such cases typically do not have direct
evidence of discrimination, and are thus required to proceed under the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for
evaluating indirect evidence. Under that framework, when an employer articulates a legitimate,
nondiscriminatory reason for its action, the burden is on the plaintiff to show that the articulated
reason is pretextual. In re Rodriguez, 487 F.3d 1001, 1008 (6th Cir. 2007). But here, where
Lowe has put forward direct evidence of discrimination, the burden is on Walbro to show “that it
would have reached the same decision without consideration of [Lowe’s] protected status.” See
Downey v. Charlevoix Cnty. Bd. of Rd. Comm’rs, 576 N.W.2d 712, 718 (Mich. Ct. App. 1998);
see also Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.
1999) (“Once there is credible direct evidence, the burden of persuasion shifts to the defendant to
show that it would have terminated the plaintiff’s employment had it not been motivated by
discrimination.”).
 No. 19-2386                         Lowe v. Walbro LLC                                  Page 12


        Lowe’s burden in this context, by contrast, is not great. In Downey, for example, after an
ELCRA plaintiff put forward direct evidence of age discrimination, the defendant employer
argued that it had in fact discharged the plaintiff’s decedent (Downey) because there was an
altercation in which Downey physically attacked his supervisor.        In response, the plaintiff
presented evidence that the supervisor deliberately provoked Downey into the fight.           The
Michigan Court of Appeals held that there was a genuine dispute of material fact on this issue,
thus letting the plaintiff’s age-discrimination claim proceed to trial. Downey, 576 N.W.2d at
719. Notably, the court did not conduct a detailed analysis regarding which party’s story was
more likely to be true. It simply reasoned that, in light of the “evidence that Downey was
provoked into the altercation so that defendant could discharge him,” the court could not hold as
a matter of law that the altercation was the predominate cause of Downey’s firing. Id.

        The same reasoning applies in the present case. True enough, Walbro’s story about why
it fired Lowe—that it determined in good faith that his position was no longer necessary—is
plausible. But, as in Downey, Lowe’s story is also plausible. A reasonable jury could conclude
that Davidson was biased against Lowe because of Lowe’s age from the beginning of Davidson’s
tenure based on Davidson’s repeated age-based remarks. That same jury could likewise doubt
that Davidson actually had any serious concerns about Lowe’s job performance, reasoning that if
he did, there would have been some documentary evidence of Lowe’s allegedly poor
performance in the record or that Davidson would have clearly communicated his concerns to
Lowe at some point.

        But Walbro argues that no inference can fairly be drawn from this lack of communication
because formal evaluations were not in practice conducted regularly at the company.
A reasonable jury, however, would not have to simply take Walbro’s word for this, especially in
light of the Employee Handbook’s statement that employees will be “evaluated by [their]
supervisor on a formal basis each year.” To the contrary, a reasonable jury could determine that
the lack of any such evaluation undercuts Walbro’s explanation that Lowe’s allegedly deficient
job performance was the reason why he was stripped of most of his responsibilities. This, in
turn, bolsters Lowe’s “two-step” theory that this initial action was intended to create an excuse
for his later termination.
 No. 19-2386                         Lowe v. Walbro LLC                                  Page 13


       Walbro further contends that Lowe’s positive performance evaluations prior to
Davidson’s arrival are irrelevant, citing Orisek v. American Institute of Aeronautics
& Astronautics, 938 F. Supp. 185 (S.D.N.Y. 1996), for the proposition that a “new manager is
allowed to appraise an employee’s work according to his or her own expectations, even if those
expectations are contrary to a prior manager’s expectations.” Id. at 191 (citation omitted). Even
leaving aside the fact that Orisek is an out-of-circuit, nonprecedential district-court opinion, we
find that case distinguishable. The first distinction is that Orisek involved the McDonnell
Douglas approach for evaluating indirect evidence rather than a mixed-motives analysis for
direct evidence, so Walbro faces a higher burden to show a lack of pretext.

       Second, the district court in Orisek rejected the plaintiff’s argument that the differences
between her previous positive evaluations and the negative evaluation that she received under a
new manager demonstrated pretext. Id. at 190–91. Lowe, on the other hand, has raised a
genuine dispute as to whether Davidson’s assessment of his abilities was actually the reason why
Lowe was fired after most of his responsibilities had been reallocated. And again, the fact that
(unlike in Orisek) there were no formal evaluations in this case adds plausibility to Lowe’s
position.

       The other two cases that Walbro cites with regard to the mixed-motives question are
similarly distinguishable. In the first, Harris v. Giant Eagle Inc., 133 F. App’x 288 (6th Cir.
2005), this court held that the plaintiff had “not set forth sufficient evidence, direct or
circumstantial, from which a reasonable jury could logically infer that race was a motivating
factor in Giant Eagle’s decision to terminate her.” Id. at 297 (citation and internal quotation
marks omitted). Lowe, by contrast, has made such a showing based on Davidson’s statements.
Indeed, an ELCRA plaintiff employing the direct-evidence approach must make this showing
before a court will even address the mixed-motives issue. See Sniecinski v. Blue Cross & Blue
Shield of Mich., 666 N.W.2d 186, 192–93 (Mich. 2003). And in the other case, Vredevelt v.
GEO Group, Inc., 145 F. App’x 122 (6th Cir. 2005), this court concluded that the plaintiff had
not presented any direct evidence and that, even if she had, the company’s stated reason for
taking the adverse employment action that it did was “unrebutted” by any evidence at all. Id. at
129–30. Neither of those circumstances is present in the case before us. As a result, neither case
 No. 19-2386                        Lowe v. Walbro LLC                                  Page 14


is of any assistance in determining how the two sides’ competing arguments should be assessed
here.

        In short, although there is evidence indicating that Walbro might have fired Lowe even in
the absence of any discriminatory animus, the company has not met its burden to establish as a
matter of law that it would have done so. We therefore hold that Lowe has raised a genuine
dispute of material fact as to whether Walbro violated the ELCRA under a direct-evidence
theory. Accordingly, we have no need to address the question whether Lowe has also raised a
genuine dispute of material fact under the McDonnell Douglas framework for evaluating indirect
evidence.   See DeBrow, 620 N.W.2d at 838 (“The shifting burdens of proof described in
McDonnell Douglas are not applicable if a plaintiff can cite direct evidence of unlawful
discrimination.”).

                                      III. CONCLUSION

        For all of the reasons set forth above, we REVERSE the judgment of the district court
and REMAND the case for further proceedings consistent with this Opinion.
