Spengler v. Worthington Cylinders

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0221p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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JON SPENGLER,
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Plaintiff-Appellee,
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No. 08-3110
v.
,
>
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Defendant-Appellant. -
WORTHINGTON CYLINDERS,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 05-00977—Algenon L. Marbley, District Judge.
Argued: January 19, 2010
Decided and Filed: July 27, 2010
Before: SILER, MOORE, and CLAY, Circuit Judges.

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COUNSEL
ARGUED: David A. Campbell, III, VORYS, SATER, SEYMOUR AND PEASE LLP,
Cleveland, Ohio, for Appellant. Gary A. Reeve, LAW OFFICES OF GARY A. REEVE,
LLC, Columbus, Ohio, for Appellee. ON BRIEF: David A. Campbell, III, VORYS,
SATER, SEYMOUR AND PEASE LLP, Cleveland, Ohio, Daniel J. Clark, VORYS,
SATER, SEYMOUR AND PEASE LLP, Columbus, Ohio, for Appellant. Gary A. Reeve,
LAW OFFICES OF GARY A. REEVE, LLC, Columbus, Ohio, for Appellee.
_________________

OPINION
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CLAY, Circuit Judge. Defendant Worthington Cylinders appeals the district court’s
denial of its Rule 50(b) motion and the jury verdict rendered in favor of Plaintiff Jon
Spengler, who sued Defendant alleging age discrimination, in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and Ohio’s anti-discrimination

1
No. 08-3110 Spengler v. Worthington Cylinders Page 2

statute, Ohio Rev. Code § 4112.02. For the reasons set forth below, we AFFIRM the district
court’s denial of Defendant’s Rule 50(b) motion and the jury’s damages awards.

I. BACKGROUND

A. Factual Background

Defendant Worthington Cylinders manufactures pressure cylinders that are used to
hold propane, refrigerant, and industrial gases. Defendant employs both regular, full-time
(“RFT”) employees and temporary or seasonal employees. During its busiest periods,
Defendant employs about 120 seasonal employees.

In January 2004, Defendant hired Plaintiff Jon Spengler as a seasonal employee. At
the time, Plaintiff was fifty-three years old. Plaintiff began his tenure with Defendant
manning a spraywash, and based on his good performance, he was reassigned to operate the
presses. From February 2004 to August 2004, Defendant conducted three employee
evaluations of Plaintiff. Plaintiff earned the second-highest rating, “definitely above
average,” on his first two evaluations and the third-highest rating, “doing an average job,”
on his third evaluation.

On several occasions throughout the year, Defendant selects seasonal employees to
be elevated to RFT status, the goal being to select the “best of the best” among its seasonal
workforce. (Appellant’s Br. 14.) Despite the drop in Plaintiff’s evaluation rating, in
November 2004, Dennis Huggins, the pressroom supervisor, recommended Plaintiff for
consideration for RFT status.

Defendant’s RFT review process involves many steps. First, John Hoffman, the
plant manager, asks supervisors to identify RFT candidates. Next, the management team
interviews and investigates the candidates, ultimately ranking all of them. From those
rankings, the top candidates are recommended for RFT status and those recommendations
are presented to Defendant’s Employee Council. The Employee Council solicits feedback
from all RFT employees and then reports back to management. If current RFT employees
oppose a candidate’s elevation to RFT status based on a legitimate reason, then that seasonal
employee is not elevated to RFT status.
No. 08-3110 Spengler v. Worthington Cylinders Page 3

In November 2004, Plaintiff was one of thirteen candidates considered for RFT
employment. Plaintiff was ranked eighth and only the top six candidates’ names were
submitted to the Employee Council. Consequently, Plaintiff was not elevated to RFT status.

In December 2004, Huggins approached Plaintiff and offered to recommend Plaintiff
for employment at Defendant’s Steel Division. According to Plaintiff, Huggins told Plaintiff
he thought Plaintiff would be “a good fit” and said “besides, you would probably have
trouble keeping up with the younger guys . . . here [in the cylinder division].” (Appellee’s
Br. 6.) Plaintiff asked whether Huggins would still recommend him for RFT status at the
cylinder division and Huggins said that he would, but stated that Plaintiff only had about a
fifty-fifty chance of attaining RFT status there. Huggins kept his word and, in December
2004, submitted Plaintiff’s name as an RFT candidate.

After his meeting with Huggins, Plaintiff became concerned about their conversation
and thought that Huggins seemed to have an age-related bias against him. Consequently,
Plaintiff emailed Hoffman to determine whether he had previously been denied RFT status
because of his age. On January 16, 2005, Hoffman met with Plaintiff. Thereafter, according
to Hoffman, he told Plaintiff that he took Plaintiff’s age discrimination allegations “very
seriously” and that he “would never tolerate that.” Hoffman then explained that Defendant’s
Steel Division was regarded as the company’s most prestigious division and told Plaintiff
that he should feel honored to have such an opportunity.

After speaking with Plaintiff, Hoffman approached Huggins about Plaintiff’s age
discrimination concerns. Thereafter, according to Plaintiff, Huggins’ attitude toward him
changed. Specifically, Plaintiff stated that Huggins kept his distance and refused to make
eye contact with Plaintiff. On February 9, 2005, Huggins called Plaintiff into his office and
terminated his employment, telling Plaintiff that he was being fired because of negative
comments from Plaintiff’s co-workers about his attitude and interpersonal skills. Plaintiff
asked about the transfer to the Steel Division, to which Huggins replied that Plaintiff would
not be recommended for a Steel Division position. Huggins also informed Plaintiff that
Plaintiff would not be rehired in the future.
No. 08-3110 Spengler v. Worthington Cylinders Page 4

B. Procedural History

On May 9, 2005, Plaintiff filed a complaint alleging age discrimination with the
Equal Employment Opportunity Commission (“EEOC”). The EEOC issued a right-to-sue
letter on September 8, 2005. On October 26, 2005, Plaintiff filed this action, asserting two
statutory bases for relief: (1) violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., and (2) violation of Ohio’s anti-discrimination statute,
Ohio Revised Code (“R.C.”) § 4112.02. Defendant filed an unopposed motion to dismiss
Plaintiff’s state law claim, which was granted on June 16, 2006.

Defendant subsequently moved for summary judgment on Plaintiff’s ADEA claim
as well, arguing that it did not improperly consider Plaintiff’s age when refusing to elevate
him to RFT status or in deciding to terminate his employment and that Plaintiff had no direct
or circumstantial evidence demonstrating otherwise. Instead, Defendant argued, the
evidence showed that its decisions were the result of complaints from Plaintiff’s co-workers
about his poor attitude and inability to work cooperatively. Plaintiff did not oppose
summary judgment for Defendant on his age discrimination claim, and instead argued that
summary judgment was improper insofar as he alleged an ADEA claim for retaliatory
discharge.

Defendant responded by arguing that Plaintiff failed to plead a retaliatory discharge
claim in his complaint and thus could not revise his theory to defeat summary judgment.
Plaintiff’s retaliation claim, argued Defendant, was barred because Plaintiff had failed to
exhaust his administrative remedies since he did not assert a retaliation claim in his EEOC
charge. Defendant moved to strike from Plaintiff’s motion opposing summary judgment any
reference to his retaliation claim. Defendant also moved for leave to file a second dispositive
motion challenging Plaintiff’s retaliation claim. Plaintiff moved for leave to file a surreply
to Defendant’s summary judgment motion.

On September 24, 2007, the district court: (1) granted Defendant’s motion for
1
summary judgment on Plaintiff’s ADEA claim , (2) denied Defendant’s motion to strike,
(3) denied Defendant’s motion for leave to file a second summary judgment motion

1
Plaintiff conceded his age discrimination claim, acknowledging that he was lawfully denied RFT
status.
No. 08-3110 Spengler v. Worthington Cylinders Page 5

regarding Plaintiff’s retaliation claim, (4) denied Defendant summary judgment on
Plaintiff’s retaliation claim, and (5) granted Plaintiff’s motion for leave to file a surreply
to Defendant’s summary judgment motion. The case proceeded to trial and on
December 20, 2007, a jury returned a verdict in favor of Plaintiff in the amount of
$21,944 for lost wages and the same amount in liquidated damages. Defendant moved
for a directed verdict pursuant to Federal Rule of Civil Procedure 50 at the conclusion
of Plaintiff’s case and again at the end of the trial. Both requests were denied.
Defendant’s motion for judgment notwithstanding the verdict was also denied. On
January 22, 2008, Defendant commenced this appeal, arguing that: (1) the district court
lacked subject matter jurisdiction over Plaintiff’s retaliation claim due to Plaintiff’s
failure to exhaust his claim, (2) Plaintiff failed to plead a retaliation claim, (3) Plaintiff’s
retaliation claim failed as a matter of law, and (4) the damages awarded to Plaintiff were
not supported by the evidence.2

II. DISCUSSION

A. Standard of Review

We review de novo a district court’s denial of a motion for judgment as a matter
of law. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 543 (6th Cir. 2008). A
motion for judgment as a matter of law requires the district court to determine “whether
there was sufficient evidence presented to raise a material issue of fact for the jury.”
Monette v. AM-7-7 Baking Co., 929 F.2d 276, 280 (6th Cir. 1991). The district court
should decline to submit a matter to the jury “when viewed in the light of those

2
In its brief, Defendant indicates that it is appealing the district court’s partial denial of its motion
for summary judgment as well as the district court’s denial of its Rule 50(b) motion and the jury verdict.
However, “where summary judgment is denied and the movant subsequently loses after a full trial on the
merits, the denial of summary judgment may not be appealed.” Jarrett v. Epperly, 896 F.2d 1013, 1016
(6th Cir. 1990). This rule recognizes that it would be “unjust to deprive a party of a jury verdict after the
evidence was fully presented, on the basis of an appellate court’s review of whether the pleadings and
affidavits at the time of the summary judgment motion demonstrated the need for a trial.” Id. at 1016 n.1.
There is an exception to this rule where the denial involves a pure question of law. “[W]here the denial
of summary judgment was based on a question of law rather than the presence of material disputed facts,
the interests underlying the [general] rule are not implicated.” Barber v. Louisville & Jefferson County
Metro. Sewer Dist., 295 F. App’x 786, 789 (6th Cir. 2008) (first alteration in original). The district court’s
denial of summary judgment in the instant case was not based on a pure question of law. Therefore, we
conclude that Defendant may not appeal the district court’s denial of its motion for summary judgment.
Consequently, we only review Defendant’s appeal of the denial of his Rule 50(b) motion and his claim that
the jury’s verdict for Plaintiff was against the weight of the evidence.
No. 08-3110 Spengler v. Worthington Cylinders Page 6

inferences most favorable to the nonmovant, there is either complete absence of proof
on the issues or no controverted issues of fact upon which reasonable persons could
differ.” Id. A motion for judgment as a matter of law should be granted only when
“reasonable minds could come to but one conclusion in favor of the moving party.”
Tisdale v. Fed. Express Corp., 415 F.3d 516, 527 (6th Cir. 2005) (internal quotation
marks omitted). In reviewing the district court’s decision, we may not “weigh the
evidence, pass on the credibility of witnesses, or substitute [our] judgment for that of the
jury.” Imwalle, 515 F.3d at 543 (quoting Toth v. Yoder Co., 749 F.2d 1190, 1194 (6th
Cir. 1984)) (alteration in original) (internal quotation marks omitted). This Court
reviews de novo a district court’s ruling on the question of liquidated damages in an
ADEA action. Carberry v. Monarch Marking Sys., Inc., 30 F. App’x 389, 394 (6th Cir.
2002).

B. Administrative Exhaustion

Defendant argues that the district court lacked subject matter jurisdiction to hear
Plaintiff’s retaliation claim because Plaintiff failed to file a claim of retaliation in his
EEOC charge. Specifically, Defendant contends that Plaintiff failed to present his
retaliation claim to the EEOC because he failed to check the “Retaliation” box and that
because Plaintiff was represented by counsel at the time he filed his charge, he is not
entitled to a liberal construction of his charge.

Defendant correctly points out that a plaintiff “must file a charge with the EEOC
before filing a complaint alleging age discrimination in federal court.” See Davis v.
Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998). Defendant is
also correct that retaliation claims based on conduct that occurred before a charge is filed
must be included in that charge.3 Tisdale, 415 F.3d at 527. However, in light of

3
Retaliation claims are typically excepted from the filing requirement because they usually arise
after the EEOC charge is filed. Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998).
However, this exception “does not apply to retaliation claims based on conduct that occurred before the
EEOC charge was filed.” Id.; accord Ang v. Procter & Gamble Co., 932 F.2d 540, 547 (6th Cir. 1991)
(“Retaliatory conduct occurring prior to the filing of the EEOC complaint is distinguishable from conduct
occurring afterwards as no unnecessary double filing is required by demanding that plaintiffs allege
retaliation in the original complaint.”). Since the alleged retaliation occurred prior to Plaintiff filing his
EEOC charge, this exception does not apply.
No. 08-3110 Spengler v. Worthington Cylinders Page 7

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), we can no longer conclude that
exhaustion is a jurisdictional prerequisite. In Arbaugh, the Supreme Court adopted the
following rule of construction to determine whether a statutory requirement is
jurisdictional:

If the Legislature clearly states that a threshold limitation on a statute’s
scope shall count as jurisdictional, then courts and litigants will be duly
instructed and will not be left to wrestle with the issue. . . . But when
Congress does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as nonjurisdictional in
character.

Id. at 515-16.

Accordingly, “although administrative exhaustion is still a statutory prerequisite
to maintaining claims brought under the ADEA, the prerequisite does not state a
limitation on federal courts’ subject matter jurisdiction over such claims. To reach this
conclusion, we look to the statute that sets forth the requirement at issue.” Allen v.
Highlands Hosp. Corp., 545 F.3d 387, 401 (6th Cir. 2008) (citing Arbaugh, 546 U.S. at
515-16). Defendant points to no statutory provision nor do we find any statutory
provision indicating that exhaustion is a jurisdictional prerequisite under the ADEA.

We now turn to Defendant’s claim that Plaintiff failed to file a retaliation claim
and thus failed to exhaust his administrative remedies. Defendant contends that
Plaintiff’s charge did not adequately set forth his retaliation claim such that Defendant’s
potential liability for retaliatory discharge could “reasonably be expected to grow out of
the EEOC charge.” Abeita, 159 F.3d at 254. This is known as the “expected scope of
investigation test” and requires a plaintiff to have alleged sufficient facts in his or her
EEOC complaint to put the EEOC on notice of the other claim even though the plaintiff
failed to check the appropriate box on the EEOC’s complaint form. Dixon v. Ashcroft,
392 F.3d 212, 217 (6th Cir. 2004). Accordingly, “where facts related with respect to the
charged claim would prompt the EEOC to investigate a different, uncharged claim, the
plaintiff is not precluded from bringing suit on that claim.” Weigel v. Baptist Hosp. of
No. 08-3110 Spengler v. Worthington Cylinders Page 8

E. Tenn., 302 F.3d 367, 380 (6th Cir. 2002) (quoting Davis, 157 F.3d at 463) (internal
quotation marks omitted).

Plaintiff stated in his EEOC complaint that Huggins’ demeanor toward him was
“noticeably changed” and that Huggins would not “make eye contact or generally speak”
to him after Hoffman met with Huggins to discuss Huggins’ comments to Plaintiff.
(EEOC Charge 3.) Also included in Plaintiff’s EEOC charge was the following
statement:

I believe my termination was all about my last meeting with [Hoffman].
I believe [Huggins] resented having to deny making the comment about
my age. And after that, [Huggins] was clearly not pleased with me. He
alone determined that I should bee [sic] terminated. Typically, when a
seasonal employee has worked 12 months and has not made full-time, he
has to take a 60-day break. He can then be rehired for another 12
months. I was told that I would not be rehired for the pressroom or for
any other area or shift. It was clear this was a personal vendetta that
could be traced to [Huggins’] comment about my age.

(EEOC Charge 3.) We find that this language sets forth sufficient facts to put the EEOC
on notice of Plaintiff’s retaliation claim despite his failure to check the “Retaliation” box
on the charge.

Defendant argues that liberal construction of Plaintiff’s EEOC charge is
inappropriate because Plaintiff was represented by counsel. However, as this Court has
previously stated, the fact that we liberally construe EEOC charges filed by pro se
complainants “does not mean that a broad reading may not, or should not, be given in
cases where a plaintiff has counsel.” Cleveland Branch, NAACP v. City of Parma, 263
F.3d 513, 536 (6th Cir. 2001); see also Johnson v. Cleveland City Sch. Dist., 344 F.
App’x 104, 109 (6th Cir. 2009). In a case such as this where a plaintiff clearly sets forth
a retaliation claim in the narrative of the EEOC charge such that both the defendant and
the EEOC were on notice of the plaintiff’s retaliation claim, a broad reading of the
EEOC charge is appropriate regardless of whether the plaintiff was represented by
No. 08-3110 Spengler v. Worthington Cylinders Page 9

counsel when filing the charge.4 Accordingly, we conclude that the district court did not
err in allowing Plaintiff’s case to proceed to trial.

C. Plaintiff’s Retaliation Claim

The Age Discrimination in Employment Act prohibits an employer from
“discriminat[ing] against any of his employees . . . because such individual . . . has made
a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or litigation under [the Act].” 29 U.S.C. § 623(d). An employer will be
strictly liable for a supervisor’s proven discrimination where such discrimination results
in an adverse employment action. Keeton v. Flying J, Inc., 429 F.3d 259, 262 (6th Cir.
2005). An adverse employment action is defined as one that “could well dissuade a
reasonable worker from making or supporting a charge of discrimination.” Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).

“A plaintiff in a Title VII or ADEA action may establish retaliation either by
introducing direct evidence of retaliation or by proffering circumstantial evidence that
would support an inference of retaliation.” Imwalle, 515 F.3d at 543. Direct evidence
is evidence, which if believed, does not require an inference to conclude that unlawful
retaliation motivated an employer’s action. Id. at 543-44. Instead, direct evidence
“requires the conclusion that unlawful retaliation was a motivating factor in the
employer’s action.” Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003)
(emphasis omitted). Here, Plaintiff’s evidence, i.e., Huggins’ comments, is not direct

4
The Court’s recent opinion in Younis v. Pinnacle Airlines, Inc., No. 08-6112, 2010 WL 2595076
(6th Cir. June 30, 2010), does not alter our conclusion. In Younis, the Court stated that “because aggrieved
employees–and not attorneys–usually file charges with the EEOC, their pro se complaints are construed
liberally, so that courts may also consider claims that are reasonably related to or grow out of the factual
allegations in the EEOC charge.” Id. at *2. Even if, arguendo, Younis dictated a different result here, the
Court’s prior opinion in Cleveland Branch, NAACP explicitly allows a broad reading of an EEOC charge
in cases where the plaintiff has counsel. It is well-established that one panel cannot overrule a pre-existing
decision of another panel of this Court. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th
Cir. 1985). Moreover, Younis is distinguishable from the case at bar because in Younis, there was “nothing
in the narrative portion of the EEOC charge that could be interpreted as claiming retaliation, nor [wa]s
there any language that would have put the EEOC or the employer on notice that [the plaintiff] was
alleging retaliation.” Younis, 2010 WL 2595076, at *3. In this case, however, the narrative of Plaintiff’s
EEOC charge clearly and explicitly sets forth his retaliation claim and provides the EEOC and employer
with notice of Plaintiff’s retaliation claim.
No. 08-3110 Spengler v. Worthington Cylinders Page 10

evidence of discrimination because even if believed, it would not require the conclusion
that Defendant unlawfully retaliated against Plaintiff.

When a plaintiff presents only circumstantial evidence of retaliation, we examine
ADEA retaliation claims under the same McDonnell Douglas/Burdine framework used
to assess discrimination claims. Imwalle, 515 F.3d at 544. Accordingly, because
Plaintiff does not proffer any direct evidence regarding retaliation, we examine his
retaliation claim using the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).

Under the McDonnell Douglas/Burdine framework, Plaintiff has the initial
burden to establish a prima facie case of retaliation under the ADEA by establishing
that: (1) he engaged in protected activity when he made his age discrimination
complaint; (2) Defendant knew about his exercise of the protected activity; (3)
Defendant thereafter took adverse employment action against him; and (4) there was a
causal connection between the protected activity and the adverse employment action.
Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007) (citing Weigel, 302 F.3d at
381). If Plaintiff establishes a prima facie case, the burden of production shifts to
Defendant to “articulate some legitimate, nondiscriminatory reason for [its action].”
McDonnell Douglas, 411 U.S. at 802. If Defendant succeeds in doing so, then the
burden shifts back to Plaintiff to demonstrate that Defendant’s “proffered reason was not
the true reason for the employment decision.” Tuttle v. Metro. Gov’t of Nashville, 474
F.3d 307, 320 (6th Cir. 2007) (quoting Morris v. Oldham County Fiscal Court, 201 F.3d
784, 793 (6th Cir. 2007)) (internal quotation marks omitted).

1. Failure to Plead Retaliation

As an initial matter, we deal with Defendant’s assertion that Plaintiff failed to
plead retaliation in his judicial complaint. Specifically, Defendant argues that Plaintiff’s
complaint contained only an ADEA age discrimination claim. Defendant argues that
Federal Rule of Civil Procedure 8 “requires more from a plaintiff” in order to set forth
a claim. (Appellant’s Br. 27.) Consequently, argues Defendant, adding a retaliation
No. 08-3110 Spengler v. Worthington Cylinders Page 11

claim required an amendment to the complaint which was neither sought nor granted.
We disagree.

Federal Rule of Civil Procedure 8 requires “a short and plain statement of the
claim.” Fed. R. Civ. P. 8(a)(2). As the Supreme Court has stated, “Federal Rule of Civil
Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Bell Atl. v. Twombly, 550 U.S. 544, 555
(2007) (alteration in original).

In Paragraph 11 of Plaintiff’s judicial complaint, Plaintiff set forth Huggins’
remark that Plaintiff would “have trouble keeping up with the younger employees.” In
Paragraph 12, Plaintiff noted his email to and meeting with Hoffman regarding Huggins’
comment as well as Huggins’ denial that he made the comment. Paragraph 13 discussed
how Huggins’ demeanor toward Plaintiff changed after Plaintiff reported Huggins’
comment and Paragraph 14 highlighted the temporal proximity of Plaintiff reporting the
comment and Plaintiff being fired.

We conclude that Plaintiff’s judicial complaint set forth facts establishing a
prima facie case of retaliation under the ADEA. He pled facts showing that he engaged
in a protected activity, that Defendant knew he did so, that he was subsequently fired,
and that there was a causal connection between him engaging in the protected activity
and him being fired. Moreover, Paragraph 19 actually alleged that Plaintiff “was
terminated as a result of his complaints regarding his age being a factor in the decisions
to not promote him” and Paragraph 20 stated that Defendant “willfully discriminated
against [him] due to his age and his complaints regarding age discrimination.” No
meaning can be derived from these two statements other than that Defendant retaliated
against Plaintiff for having complained about Huggins’ ageist remark. Accordingly, we
find that Plaintiff adequately pled a retaliation claim.
No. 08-3110 Spengler v. Worthington Cylinders Page 12

2. The Merits of Plaintiff’s Retaliation Claim

In order to prevail on a retaliation claim where the defendant has articulated a
legitimate, nondiscriminatory reason for the adverse employment action, the plaintiff
must not only establish pretext, but also establish “that the real reason for the employer’s
action was intentional retaliation.” Imwalle, 515 F.3d at 544. However, the Supreme
Court has held that “it is permissible for the trier of fact to infer the ultimate fact of
discrimination from the falsity of the employer’s explanation.” Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 147 (2000) (emphasis omitted). In Reeves, the Supreme
Court stated that

[p]roof that the defendant’s explanation is unworthy of credence is
simply one form of circumstantial evidence that is probative of
intentional discrimination, and it may be quite persuasive. See [St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,] . . . 517 [(1993)] . . .
(“[P]roving the employer’s reason false becomes part of (and often
considerably assists) the greater enterprise of proving that the real reason
was intentional discrimination”) . . . [O]nce the employer’s justification
has been eliminated, discrimination may well be the most likely
alternative explanation, especially since the employer is in the best
position to put forth the actual reason for its decision. . . . Thus, a
plaintiff’s prima facie case, combined with sufficient evidence to find
that the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.

530 U.S. at 147-48 (citation omitted).

A plaintiff can rebut an employer’s legitimate, nondiscriminatory reason and
show pretext by demonstrating that: “(1) the employer’s stated reason for terminating
the employee has no basis in fact, (2) the reason offered for terminating the employee
was not the actual reason for the termination, or (3) the reason offered was insufficient
to explain the employer’s action.” Imwalle, 515 F.3d at 545 (citing Manzer v. Diamond
Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). Plaintiff relies on the
second type of rebuttal evidence and has the ultimate burden of producing “sufficient
evidence from which the jury could reasonably reject [Defendant’s] explanation and
No. 08-3110 Spengler v. Worthington Cylinders Page 13

infer that [Defendant] intentionally discriminated against him.” Id. (quoting Johnson v.
Kroger, 319 F.3d 858, 866 (6th Cir. 2003)) (internal quotation marks omitted).

Defendant argues that it is entitled to judgment as a matter of law because
Plaintiff failed to establish a prima facie case, specifically a causal connection between
Spengler’s discharge and the protected activity. However, this Court has previously
noted that in an appeal where there has already been a jury trial on the merits, our duty
is to determine whether Plaintiff produced sufficient evidence to support the jury’s
finding that Defendant terminated his employment in retaliation for his complaints of
age discrimination. Accordingly, we “cannot simply hold that [Plaintiff’s] failure to
provide evidence of an essential element of [his] prima facie case is dispositive.” See
Tisdale, 415 F.3d at 529. Moreover, as discussed below, we conclude that Plaintiff
produced evidence of a causal connection.

Defendant contends that Plaintiff’s discharge was undeniably caused by his
failure to attain RFT status, as evidenced, argues Defendant, by the uniform enforcement
of and testimony about the company’s 12-month rule. To establish a causal connection,
Plaintiff must “proffer evidence sufficient to raise the inference that [his] protected
activity was the likely reason for the adverse action.” Upshaw v. Ford Motor Co.,
576 F.3d 576, 588 (6th Cir. 2009) (quoting EEOC v. Avery Dennison Corp., 104 F.3d
858, 861 (6th Cir. 1997)) (internal quotation marks omitted). Closeness in time is one
indicator of a causal connection, see Little v. BP Exploration & Oil Co., 265 F.3d 357,
364-65 (6th Cir. 2001), but temporal proximity, standing alone, is not enough to
establish a causal connection for a retaliation claim. Tuttle, 474 F.3d at 321.
Nonetheless, there are circumstances in which temporal proximity, when combined with
other evidence of retaliatory conduct, is enough to establish a causal connection, such
as when the plaintiff can “show[] that he was treated differently from other employees.”
Id. (quoting Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999))
(internal quotation marks omitted).

In evaluating Plaintiff’s rebuttal evidence, we must decide whether, when
viewing the facts in the light most favorable to Plaintiff, Plaintiff produced sufficient
No. 08-3110 Spengler v. Worthington Cylinders Page 14

evidence for a reasonable jury to find that Defendant’s explanation for terminating
Plaintiff’s employment was pretextual, and that he was actually terminated because of
his complaint of age discrimination. This involves a two-part showing, requiring a
reasonable disbelief of Defendant’s proffered reason and circumstantial evidence that
retaliation more likely than not motivated Defendant to terminate Plaintiff’s
employment. See Imwalle, 515 F.3d at 547.

Defendant claims that pursuant to its 12-month rule, any seasonal employee who
failed to make RFT status would be discharged after 12 months of seasonal employment.
In setting forth its position, Defendant relies on employee testimony that it contends
established that the 12-month rule was consistently applied. Since Plaintiff failed to
make RFT status after 12 months of seasonal employment, argues Defendant, he was
discharged in accordance with the 12-month rule. Defendant also contends that Plaintiff
was treated just as well as, if not better than, other employees as he was considered for
RFT status twice and was even retained beyond 12 months to allow for the completion
of the second RFT process. Defendant claims that once the second RFT process
revealed concerns from Plaintiff’s RFT co-workers, Plaintiff was denied RFT status and
as a result, discharged.5

However, Plaintiff produced evidence that the 12-month rule was selectively
enforced, pointing to Hoffman’s deposition testimony in which Hoffman stated: (1) the
12-month rule was only applied if there was a slowdown in production; and (2) there had
not been a slowdown in production between the time Plaintiff was hired and the time of
trial. Moreover, there was evidence that other seasonal employees had remained
employed longer than twelve consecutive months. Yet, Plaintiff met with Hoffman to
discuss Huggins’ comments on January 16, 2005 and was subsequently terminated a few
weeks later on February 9, 2005. Plaintiff also produced evidence that Huggins’ attitude
towards him noticeably changed after Plaintiff’s conversation with Hoffman.
Specifically, Plaintiff stated that Huggins kept his distance and refused to make eye

5
Plaintiff does not dispute that he was lawfully denied RFT status, but rather contends that he was
entitled to continued seasonal employment after the denial of RFT status.
No. 08-3110 Spengler v. Worthington Cylinders Page 15

contact with him. Hoffman told Huggins that Plaintiff perceived his comments to be
ageist and even instructed Huggins to meet with Plaintiff to “clear it up.” Huggins failed
to comply with Hoffman’s instruction. In fact, Huggins made no effort whatsoever to
correct Plaintiff’s impression or reassure Plaintiff that his age was not a factor with
respect to his chance to obtain RFT status. Huggins also failed to follow through on his
promise to refer Plaintiff to the Steel Division.

Plaintiff also set forth evidence that he was a valuable employee at the time he
was discharged. For example, prior to Plaintiff’s complaint of age discrimination, he
had been recommended twice for RFT status which, given the RFT process, indicates
that he was one of the best seasonal employees. Plaintiff had also earned a referral to
a prestigious division of the company and had received four merit-based raises during
his tenure at Defendant. Although former co-workers testified that they made “kind of
negative” statements about Plaintiff to Huggins prior to Plaintiff’s discharge, some of
them mixed such statements with praise for Plaintiff’s work and recommendations that
he be given RFT status.

We conclude that the totality of the evidence in the record, when viewed in the
light most favorable to Plaintiff, does not lead reasonable minds to but one conclusion
in favor of Defendant. Consequently, granting Defendant’s motion for judgment as a
matter of law would have been inappropriate.

D. Damages

Defendant argues that the jury improperly awarded lost wages damages and
liquidated damages to Plaintiff. First, Defendant argues that Plaintiff’s lost wages
damages were inappropriate because the ADEA does not require preferential treatment.
Damages for lost wages, Defendant argues, would result in preferential treatment for
Plaintiff because Plaintiff would not have earned such wages given the operation of its
12-month rule.

We find Defendant’s argument unconvincing. Defendant is correct that the
ADEA “does not require an employer to accord special treatment to employees over
No. 08-3110 Spengler v. Worthington Cylinders Page 16

forty years of age[, but to treat] an employee’s age . . . in a neutral fashion.” Slenzka v.
Landstar Ranger, Inc., 122 F. App’x 809, 813 (6th Cir. 2004) (quoting Parcinski v.
Outlet Co., 673 F.2d 34, 37 (2d Cir. 1982)) (alterations in original) (internal quotation
marks omitted). However, as we stated above, Plaintiff presented sufficient evidence
such that the jury could conclude Defendant’s assertion of the 12-month rule was merely
pretext. As a result, Plaintiff may have continued work as a seasonal employee despite
his failure to make RFT status within the prescribed period, especially since Hoffman
testified at his deposition that the 12-month rule was enforced when there was a
production slowdown and that no such production slowdown occurred during the course
of Plaintiff’s employment. Accordingly, because Plaintiff established the amount of his
damages6 and Defendant failed to prove by a preponderance of the evidence that
Plaintiff was not entitled to those damages, damages were properly awarded.

Liquidated damages are appropriate so long as “there [is] sufficient evidence to
support the jury’s finding that [Defendant’s] discrimination against [Plaintiff] was
willful.” Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 423 (6th Cir.
1999). An ADEA violation is considered “willful” if “the employer either knew or
showed reckless disregard for the matter of whether its conduct was prohibited by the
ADEA.” Tuttle, 474 F.3d at 322 (quoting Trans World Airlines v. Thurston, 469 U.S.
111, 128-29 (1985)) (internal quotation marks omitted). It is not enough to show that
the employer “knew of the potential applicability of the ADEA.” Carberry, 30 F. App’x
at 395.

Defendant contends that Plaintiff cannot recover liquidated damages because
there is no evidence in the record that suggests Defendant knew its actions were
prohibited by the ADEA. Plaintiff argues that because Huggins testified that he knew
it was unlawful for an employer to retaliate against an employee because that employee
complained of discrimination, liquidated damages were appropriate.

6
Plaintiff presented evidence regarding how many hours per week he worked and his hourly rate.
No. 08-3110 Spengler v. Worthington Cylinders Page 17

The jury found that Huggins retaliated when he fired Plaintiff and there was
ample evidence from which the jury could conclude that Huggins knew he was breaking
the law in doing so. As a result, the jury could have reasonably concluded that Huggins’
conduct was willful and therefore, liquidated damages were warranted.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s decision.