                                      No. 03-1823
                                File Name: 04a0100n.06
                               Filed: November 18, 2004

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT

MARK HAELY,                                      )
                                                 )
   Plaintiff-Appellant,                          )
                                                 )   ON APPEAL FROM THE
      v.                                         )   UNITED STATES DISTRICT
                                                 )   COURT FOR THE EASTERN
HAAS CORPORATION,                                )   DISTRICT OF MICHIGAN
                                                 )
   Defendant-Appellee.                           )



Before:       NELSON, SILER, and BATCHELDER, Circuit Judges.


      DAVID A. NELSON, Circuit Judge. Where a court has ordered child support

payments withheld from an employee’s wages, Michigan law protects the employee from

being discharged or otherwise penalized by his employer on the basis of the order. The

question raised on appeal in this case is whether the plaintiff employee has presented

evidence from which a reasonable jury could conclude that the defendant employer fired him

because of a withholding order. In the record before us, we find no evidence that anyone

involved in the decision to terminate the plaintiff’s employment was even aware of the

withholding order. We shall therefore affirm the judgment entered by the district court in

favor of the employer.
No. 03-1823
Page 2

                                              I


       The plaintiff, Mark Haely, began working for the defendant, Haas Corporation, in

June of 2001. He was assigned to a Haas unit within a General Motors assembly plant in

Flint, Michigan. There Mr. Haely was responsible for the water treatment system in the

assembly plant’s paint department. His duties included the repair of pumps and other

equipment.

       On August 20, 2001, a Michigan judge ordered Haas Corporation to withhold $416.75

a week from Mr. Haely’s pay and to remit the money – earmarked as support for Haely’s

children – to an official called the “Friend of the Court.”

       The company did not make its first remittance under the order until September 20,

2001, and Mr. Haely’s ex-wife, Leslie Thumm, telephoned before that time to ask where the

money was. When the remittance was finally made, the amount proved to have been

miscalculated. Ms. Thumm lodged a complaint by telephone with Carlos Humphrey, Haas

Corporation’s human resources manager and general counsel.

       Ms. Leslie Thumm had also telephoned Humphrey’s office in July of 2001, when she

made inquiries about medical insurance covering the couple’s children. (Humphrey asked

Haely whether he should divulge the requested information; Haely responded in the

affirmative.) The calls made by Ms. Thumm prior to September 20 prompted Humphrey to

send Haely an e-mail message, captioned “Confidential Information,” that read as follows:
No. 03-1823
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        “Mark: Your ex-wife has been calling our offices asking for various types of
       information. Please advise her that all questions should be handled through
       you. Thanks, Charlie.”

       The e-mail was sent on September 13, 2001.

       On September 11, 2001, two days before Humphrey’s e-mail, Mr. Haely’s immediate

supervisor, project manager Lisa Perkette, met with Haas Corporation’s chief operating

officer, Anthony Bull, to tell him about purported problems with Haely’s performance on the

job.1 Mr. Haely, she reported, had failed to respond to an emergency page from a General

Motors employee; had fallen asleep on the job and had “disappeared” from the work site for

as much as two hours; and had used a company computer for unauthorized sexually oriented

purposes. Moreover, according to Ms. Perkette, Haely had proved unable to master some of

the most basic duties of his job, e.g. pump repair.

       Mr. Bull and Ms. Perkette decided to give Mr. Haely a performance review that would

highlight these issues. They also decided to place Haely under a different supervisor, Mike

Dunlop, to receive additional training. Mr. Bull suggested that they take another look at

Haely’s performance in 30 days.

       The September performance review, which was prepared by Ms. Perkette, discussed

the missed page, the misuse of company computers, and, in very general terms, Haely’s

allegedly sub-par job performance. The review was dated September 20, 2001. Sometime


       1
        The record reflects that Ms. Perkette, not Mr. Bull, initiated the discussion of Mr.
Haely’s alleged shortcomings. There is no evidentiary basis for the suggestion in Haely’s
brief that Bull directed Perkette to “cook up” reasons to fire Haely.
No. 03-1823
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after that date Mr. Dunlop, the new supervisor, is said to have told Bull that Haely “just isn’t

getting it, he’s not capable of doing this job.”

       During the first part of September, 2001, Haas Corporation’s chief executive officer,

Thaddeus Fortin, visited the facility at which Mr. Haely worked. According to Mr. Haely,

Fortin told him and Ms. Perkette about a man whose “problems with being married and child

support from several different ex-wives” caused “administrative nightmares” for the

company. Mr. Haely believed that this story was prompted by his own support order. But

Mr. Fortin (who denies having had such a conversation) testified unequivocally that he had

not been aware of Mr. Haely’s child support obligation until after Haely brought suit. Mr.

Humphrey’s testimony was consistent with Mr. Fortin’s lack of knowledge on this score.

       On October 10, 2001, Mr. Haely lost his job at Haas Corporation. Ms. Perkette, who

delivered the bad news, told Haely that Mr. Bull had instructed her to fire him and that she

did not know why. The next day Haely telephoned Mr. Humphrey, who told him that hiring

and firing decisions were initiated by the facility manager (i.e., Ms. Perkette) and not by

upper management (Mr. Bull). Haely confronted Ms. Perkette with this information, but she

insisted that the decision had been made by Bull.

       Haely then tape-recorded a conversation with Ms. Perkette in which she maintained

that she had been trying without success to learn why Haely had been fired. In an affidavit

prepared for this litigation Ms. Perkette stated that she had lied to Haely because she “did not
No. 03-1823
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want to take the blame for Haely’s termination.” Perkette and Bull both testified that at the

time Haely was fired they did not know of the domestic relations withholding order.

       In a statement to Michigan’s unemployment agency, Mr. Humphrey said that Mr.

Haely had been discharged because of “lack of work.” Humphrey testified later that he made

this false statement so as not to contest Haely’s application for unemployment benefits.2

According to Humphrey, Ms. Perkette informed him in advance that Haely would be fired

for sleeping on the job, misuse of the Internet, inability to make pump repairs, and missing

a page. The final approval of the termination, Mr. Humphrey testified, came from Mr. Bull.

       Mr. Haely sued Haas Corporation in a Michigan court, alleging that his employment

had been terminated because of the August 20, 2001, notice of income withholding. Haas

removed the action to federal court on diversity grounds and subsequently filed a motion for

summary judgment.

       The district court granted the summary judgment motion. Applying the burden-

shifting framework developed by the United States Supreme Court for federal employment

discrimination claims, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the

district court assumed that Mr. Haely had presented facts sufficient to raise an inference that

his discharge was improper. The court held, however, that Haas Corporation had offered

lawful reasons for discharging Haely and that there was no genuine issue of fact as to


       2
        Mr. Humphrey’s deposition testimony suggests that he believed a discharge for cause
would disqualify Mr. Haely from receiving unemployment benefits. This belief is not
consistent with Michigan law. See Mich. Comp. Laws § 421.29.
No. 03-1823
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whether those reasons were pretexts for unlawful conduct.                 Mr. Haely moved for

reconsideration, but the motion was denied. This timely appeal followed.


                                                  II


          Mr. Haely sued Haas under Michigan Compiled Laws § 552.623(1), which provides

as follows:

          “A source of income shall not use a notice of income withholding as a basis
          for refusing to employ, discharging, taking disciplinary action against, or
          imposing a penalty against a payer. A source of income who refuses to
          employ, discharges, disciplines, or penalizes a payer in violation of this section
          is guilty of a misdemeanor . . . and shall be required to make full restitution to
          the aggrieved payer, including reinstatement and back pay.”

A “payer” is a person who has been ordered to pay child or spousal support, and a “source

of income” is a payer’s employer or debtor. Mich. Comp. Laws § 552.602(u), (bb). Haas

Corporation thus violated § 552.623(1) if it discharged Haely because of the withholding

order.3


          3
         Haas has not disputed that § 552.623(1) creates a private right of action. Under
Michigan law, a statute may be enforced by private action if “(1) the statute expressly creates
a private cause of action or (2) a cause of action can be inferred from the fact that the statute
provides no adequate means of enforcement of its provisions.” Pitsch v. ESE Michigan, Inc.,
593 N.W.2d 565, 570 (Mich. App.) (internal quotation marks omitted), appeal denied, 595
N.W.2d 844 (Mich. 1999). We think a Michigan court would interpret the language of §
552.623(1) – language providing that a violator of the statute “shall be required to make full
restitution to the aggrieved payer, including reinstatement and back pay” – as expressly
creating a private cause of action. See id. at 571-72, where the Michigan Court of Appeals
held that a private right of action was created by a statute providing that certain persons
“shall be liable for . . . necessary costs of response activity incurred by any other person . .
. .”
No. 03-1823
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       We are aware of no judicial decisions, state or federal, applying § 552.623(1). But

the parties suggest – and the district court agreed – that cases brought under this statute

should be analyzed under the same approach as that used in federal employment

discrimination cases. We see no reason to disagree. Under the particular circumstances

presented here, however, it does not seem to us that the McDonnell Douglas burden-shifting

mechanism comes into play. This is so because, in our view, facts that are not genuinely in

dispute establish that the decision to fire Mr. Haely was made by persons who had no

knowledge of his child support obligation. It follows that Haas Corporation is entitled to

judgment as a matter of law.

       There is a genuine factual dispute as to whether it was Ms. Perkette or Mr. Bull who

was the driving force behind Mr. Haely’s discharge. The dispute is not material, however,

because there is no evidence that either of these individuals knew about the withholding

order at the time Haely was fired. Perkette and Bull both denied having such knowledge, and

their testimony on this point stands uncontradicted.

       Mr. Humphrey, of course, was aware of the withholding order. And perhaps a

reasonable jury could question Mr. Fortin’s testimony that he lacked awareness of the order,

given Mr. Haely’s averment that Fortin told him a story about “administrative nightmares”

caused by another employee’s child support obligations.

       Nonetheless, as we see it, there is no genuine dispute as to whether Messrs. Humphrey

and Fortin, or either of them, had anything to do with the decision to fire Mr. Haely. Each
No. 03-1823
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of the two men testified that he did not, and we can find no evidence supporting a contrary

conclusion.

       Mr. Haely suggests that if Mr. Bull was the driving force behind the discharge, as Ms.

Perkette asserted in her tape-recorded conversation with Haely, a jury could infer that Bull’s

action was influenced by Mr. Humphrey, Mr. Fortin, or both. We are not persuaded that such

an inference can be justified on this record.

       For one thing, it is doubtful that the evidence can support a finding that Mr. Fortin or

Mr. Humphrey wanted Mr. Haely to be fired. The story that Fortin told Haely was about an

employee who “had been married and divorced from several different women and . . . had

children with several different women.” Unlike this other employee, Mr. Haely had only one

ex-wife and was subject to only one withholding order. It requires a substantial leap of logic,

we believe, to infer from Mr. Fortin’s alleged remark about the other employee’s situation

creating an “administrative nightmare” that Fortin (who testified unequivocally that he was

not even aware of Haely’s support obligation) wanted to rid the company of Mr. Haely.

       As for Mr. Humphrey, he testified without contradiction that he did not personally

handle payroll deductions. Further, he denied that the withholding order placed any

significant burden on his office: “Those deductions, we do it every day. They’re standard.

They’re so low in the clerical work . . . they’re just not something that even concerns the

company.” Except possibly for the September 13 e-mail, there is no evidence to the contrary.
No. 03-1823
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        Mr. Haely contends that the September 13 communication demonstrates Humphrey’s

frustration with having to handle the withholding of support from Haely’s wages. But the

e-mail (which was sent a week before Haas Corporation’s first remittance under the

withholding order) dealt only with Ms. Thumm’s requests for information; the link to any

burden imposed on the company or Mr. Humphrey by the withholding order is tenuous at

best.

        Even if a reasonable jury could conclude that Fortin or Humphrey wanted to get rid

of Haely, there is no evidence that either man communicated such a desire to Bull. It is true

that Fortin, Humphrey, and Bull had offices located in Haas’ Philadelphia headquarters and

that Bull reported directly to Fortin. But these reeds are too flimsy, we believe, to support

a rational jury’s rejection of the evidence that Fortin knew nothing about Haely’s discharge

until after the fact, that Humphrey did not discuss the withholding order with Fortin or Bull,

that Humphrey “was not part of” conversations concerning Haely’s discharge, and that Bull

decided to discharge Haely “based on input from [operations manager] Scott Chapman, Lisa

Perkette, [and technical manager] Mike Dunlop, primarily.”

        Mr. Humphrey’s veracity may be open to question in light of the fact that he

apparently tried to help Mr. Haely by fudging the reason for his discharge when Haely

applied for unemployment benefits. We see no basis, however, for discrediting Mr. Bull’s
No. 03-1823
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testimony that Humphrey had nothing to do with the decision to fire Haely.4 There is simply

no evidence to suggest that Humphrey influenced that decision in any way.

       At the end of the day, the most that can be inferred from Mr. Haely’s evidence is that

Mr. Fortin considered multiple withholding orders an “administrative nightmare,” that Mr.

Humphrey was annoyed by the telephone calls from Haely’s ex-wife, and that Fortin and

Humphrey worked in close physical proximity to Mr. Bull. Given the testimony of Fortin,

Humphrey, and Bull that the first two men played no part in the decision to discharge Haely,

and given Bull’s testimony that he did not know about the withholding order until after the

discharge, we do not think a rational jury could find by a preponderance of the evidence that

the withholding order lay behind Haely’s discharge. Had the case gone to a jury on this

record, and had the jury returned a verdict in favor of Mr. Haely, the defendant company

would have been entitled to a judgment n.o.v.



       4
        Mr. Bull’s deposition transcript includes the following exchange:

       “Q.    Didn’t Charlie Humphrey make a request to you to somehow get
              rid of Mr. Haely?

       A.     No.

       Q.     Didn’t Mr. Humphrey tell you that Mr. Haely was becoming a
              bit of a burden because of his child support withholding changes
              and the fact that he had a wife, an ex-wife, who was very
              persistent and unrelenting in the area of complaining about late
              withholding checks being sent and inaccurate amounts?

       A.     Absolutely not.”
No. 03-1823
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     AFFIRMED.
