NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0159n.06
No. 12-6458
FILED
UNITED STATES COURT OF APPEALS Feb 27, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
)
ELAINE SCOLA,
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Plaintiff-Appellant,
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v. ON APPEAL FROM THE UNITED
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STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF TENNESSEE
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PUBLIX SUPERMARKETS, INC.,
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Defendant-Appellee.
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Before: BOGGS, CLAY, and GILMAN, Circuit Judges.
BOGGS, Circuit Judge. Plaintiff Elaine Scola (“Scola” or “Plaintiff”), a cashier at the
Publix supermarket in Ooltewah, Tennessee, filed a complaint on April 20, 2011, alleging that
Publix Supermarkets, Inc. (“Defendant”) discriminated against her on the basis of her age by not
promoting her from her position as cashier to the position of either administrative coordinator or
customer-service staff (“CSS”), in violation of Title VII of the Civil Rights Act of 1964, as
amended at 42 U.S.C. § 2000e; the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 623; the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101; and
42 U.S.C. § 1981. Plaintiff also asserted a “hostile work environment” claim and claims for
intentional and negligent infliction of emotional distress. Following discovery, Defendant
1
moved for summary judgment. The district court dismissed Plaintiff’s § 1981 and Title VII
claims, and Plaintiff does not appeal their dismissal. The district court also granted summary
judgment on the age-discrimination claims with respect to the administrative-coordinator
position, which Plaintiff does not contest on appeal. Finally, the district court granted summary
judgment on the age-discrimination claims with respect to the CSS position, granted summary
judgment on Plaintiff’s hostile-work-environment claims, and dismissed Plaintiff’s remaining
state-law claims, declining to exercise jurisdiction over those claims, which decisions Plaintiff
now appeals. We affirm the judgment of the district court.
I
Plaintiff Elaine Scola was hired as a part-time cashier at the Publix supermarket in
Ooltewah, Tennessee on November 15, 2008. At the time she was hired, Plaintiff was 56 years
old. Prior to working at Publix, Plaintiff was owner and manager of a family-run business from
1985 to 2003. Plaintiff’s cashier duties included making correct change, ringing up customers,
bagging groceries, and assisting customers in finding groceries. Cashiers also had some “front
office” duties such as making refunds and giving customers money orders.
In December 2008, Plaintiff submitted a Registration of Interest (“ROI”) form indicating
that she was interested in a CSS or administrative-coordinator position. She submitted a new
form approximately every six months after submitting her initial request. The cashier,
administrative-coordinator, and CSS positions are all hourly, non-management positions.
The CSS position involves some work at the front office, including handling customer
questions, ringing up and scanning groceries, and selling lottery tickets. A CSS employee may
also act as a “front end coordinator.” According to Plaintiff, the front-end coordinator
coordinates breaks, assigns registers to incoming employees, ensures that the shopping carts are
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brought inside, ensures that associates get their breaks, and assigns nightly tasks to associates.
CSS employees can also perform certain cash-handling tasks that cashiers cannot perform.
Although Plaintiff has had opportunities to perform some of the front-office and front-end-
coordinator tasks, a number of those tasks are not part of the cashier job description.
Since Plaintiff submitted her first ROI form, Rachel Barnes, Gina Saches, Heather
Borges, and Kelly Simpson were placed in the CSS position at the Ooltewah store. Rachel
Barnes, Gina Saches, and Heather Borges changed positions from cashier to CSS during or
slightly after June 2009. Kelly Simpson changed positions from cashier to CSS near the end of
2009.
Other individuals who worked at the Ooltewah store in the CSS position since Plaintiff
submitted her ROI form included Marcia Trumbull, Nicole Pendergrass, Angela Anderson, and
James Cordell. Marcia Trumbull previously worked for Publix as a CSS and was rehired into the
CSS position in November 2009. Nicole Pendergrass returned to the CSS position in March
2009, after having previously worked as a CSS when the store opened in 2008. Finally, James
Cordell and Angela Anderson transferred from Publix stores in Georgia and Florida to the
Ooltewah store, in June and July 2010, respectively. Both worked in the CSS position prior to
their transfer.
According to Plaintiff, the administrative coordinator helps train new associates and
monitors a computer-training program. The Ooltewah store has only one administrative
coordinator, Ginger Teems, who held this position from the time that the store opened to the time
that Plaintiff filed her complaint.
The parties dispute Plaintiff’s work-performance record. Plaintiff received regular
evaluations as an employee at Publix. Her evaluation scores show that she met store
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expectations. Defendant contends that a score of “meets expectations” is an “average” rating. In
the written comments section of Plaintiff’s evaluations, management highlighted her strengths as
well as areas where she needed improvement. Plaintiff received a few awards from management
for her customer service, though Defendant also claims that it had some problems with Plaintiff’s
interactions with customers and fellow employees. According to Defendant, Plaintiff’s
availability to work changed often while she worked at the Ooltewah store. Plaintiff offers
evidence showing that all of her “time away from work” requests were granted.
Plaintiff presents evidence that various managers either ignored her when she sought help
on the job or treated her disrespectfully. She also notes that Isaiah Hall, an assistant manager at
the store, referred to her as an “old lady” on a few occasions. Plaintiff complained to Steve
McConnell in human resources at Publix on February 1, 2010, and again on later dates,
expressing her frustrations with the job. Plaintiff received front-office training in March 2010
but never received a promotion. No employee was put in the CSS position or transferred into the
position of CSS at the Ooltewah store from July 2010 until the time Plaintiff filed her complaint.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission and the Tennessee Human Rights Commission on approximately July 30, 2010. On
April 20, 2011, Plaintiff filed her complaint against Defendant in district court. Following
discovery, the district court granted Defendant’s motion for summary judgment.
II
Plaintiff raises four issues on appeal. First, Plaintiff argues that the district court applied
the wrong summary-judgment standard to Plaintiff’s claims under the THRA. In particular,
Plaintiff asserts that the court should not have applied the McDonnell Douglas burden-shifting
framework to Plaintiff’s state-law discrimination claims. Second, Plaintiff argues that the district
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court erred in granting summary judgment with respect to Plaintiff’s ADEA and THRA claims.
In particular, Plaintiff argues that the court erred in finding a) that a seven-year age difference
between Plaintiff and another employee was not significant under the circumstances, b) that
Plaintiff did not have qualifications similar to those of the employees promoted in her stead, and
c) that Plaintiff failed to offer evidence indicating that Defendant’s proffered reasons for its
employment decisions were pretextual. Third, Plaintiff argues that the district court erred in
granting summary judgment with respect to her hostile-work-environment claims, arguing that
Plaintiff was not given notice and an opportunity to be heard on those claims. And fourth,
Plaintiff claims that the district court erred in dismissing Plaintiff’s remaining state-law claims.
III
We review the district court’s legal conclusions de novo, including its grant of summary
judgment. Frazier v. Honda of Am. Mfg., Inc., 431 F.3d 563, 565 (6th Cir. 2005). We review its
decision not to exercise supplemental jurisdiction for an abuse of discretion. Gamel v. City of
Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010).
Summary judgment is appropriate where “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). The question is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). When sitting in
summary judgment, a court must draw all justifiable inferences from the evidence in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
5
A
Plaintiff’s first point of error is that the district court incorrectly applied the McDonnell
Douglas burden-shifting framework to Plaintiff’s state-law discrimination claims at summary
judgment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As explained more
fully below, under that framework, a plaintiff must first make out a prima facie case of
discrimination. If she does so, the burden of production shifts to the employer to offer
legitimate, non-discriminatory reasons for its actions. If the employer meets this burden, the
burden then shifts back to the Plaintiff to show that the reasons proffered by the employer were
pretextual. Plaintiff argues that, in view of a 2010 Tennessee Supreme Court decision, applying
the McDonnell Douglas framework to Plaintiff’s age-discrimination claims at the summary-
judgment stage is inconsistent with Tennessee state law. See Gossett v. Tractor Supply Co., Inc.,
320 S.W.3d 777, 779 (Tenn. 2010) (holding “that the McDonnell Douglas framework is
inapplicable at the summary judgment stage because it is incompatible with Tennessee summary
judgment jurisprudence”).
Defendant correctly notes that Gossett has been abrogated by statute in relevant part.
See, e.g., Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 758 (6th Cir. 2012) (noting that “an
amendment to Tenn. Code Ann. § 4–21–311(e) . . . appears to abrogate Gossett . . . and require
the continued application of the McDonnell Douglas framework in THRA cases.”); Tenn. Code
Ann. § 4–21–311(e); see also Johnson v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn.,
502 F. App’x 523, 543 (6th Cir. 2012) (observing that “the Tennessee legislature abrogated
Gossett by statute”). But the amendment abrogating Gossett did not take effect until June 10,
2011. See Tenn. Code Ann. § 4–21–311(e). The question therefore arises as to which standard
applies to Plaintiff’s case, which was filed before the statutory amendment’s effective date, but
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decided afterward. By its terms, the statutory amendment “shall take effect upon becoming a
law, the public welfare requiring it and shall apply to all causes of action accruing on or after
such effective date.” Act of June 10, 2011, ch. 461, 2011 Tenn. Laws 107 (enacting a burden-
shifting framework for evaluating discrimination and retaliatory-discharge claims, including at
the summary-judgment stage); see also Skaan v. Fed. Exp. Corp., W2011-01807-COA-R3CV,
2012 WL 6212891 at *4 n.4 (Tenn. Ct. App. Dec. 13, 2012) (observing that the new standard
“only appl[ies] to cases filed [sic] on or after June 10, 2011”). Since Plaintiff’s cause of action in
this case accrued (and was filed) before the statutory amendment took effect, the amendment
does not apply to Plaintiff’s claims.
Nevertheless, the question remains whether the district court should have applied the
state-law summary-judgment standard, as articulated in Gossett, to Plaintiff’s state-law age-
discrimination claims. “It is a long-recognized principle that federal courts sitting in diversity
‘apply state substantive law and federal procedural law.’” Shady Grove Orthopedic Associates,
P.A. v. Allstate Ins. Co., 559 U.S. 393, 417 (2010) (Stevens, J., concurring) (quoting Hanna v.
Plumer, 380 U.S. 460, 465 (1965)). But “[w]hen both a federal rule and a state law appear to
govern a question before a federal court sitting in diversity,” federal courts apply a “two-step
framework” to determine which law controls. Id. at 421. The framework “requires first,
determining whether the federal and state rules can be reconciled (because they answer different
questions), and second, if they cannot, determining whether the Federal Rule runs afoul of [the
Rules Enabling Act, 28 U.S.C.] § 2072(b).” Id. at 410. Briefly, “[i]n the Rules Enabling Act,
Congress authorized [the Supreme] Court to promulgate rules of procedure subject to its review,
28 U.S.C. § 2072(a), but with the limitation that those rules ‘shall not abridge, enlarge or modify
any substantive right,’ § 2072(b).” Id. at 406–07.
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Shady Grove was a plurality opinion, and Justice Stevens’s concurrence was necessary to
the final judgment. Where the plurality and Justice Stevens differed was in their application of
step two of the aforementioned framework for determining whether state or federal law controls
in a given case. According to the Shady Grove plurality, if there is a valid Federal Rule of Civil
Procedure on point, a federal court sitting in diversity must apply the Federal Rule, “regardless
of its incidental effect upon state-created rights.” Id. at 410. To determine whether a rule
comports with the requirements of the Rules Enabling Act, the plurality focuses on the nature of
the rule itself—whether “it really regulates procedure”—rather than on the case-by-case effects
of its application to state-law claims. Id. at 411. According to Justice Stevens’s concurrence, in
contrast, the question is not whether the federal rule is procedural, but rather, whether “the state
law it displaces is procedural, in the sense that it does not ‘function as a part of the State’s
definition of substantive rights and remedies.’” Id. at 411 (quoting Justice Stevens’s
concurrence, at 416–17).
We hold that, under either approach, the summary-judgment standard articulated in
Gossett has no application in federal court. To arrive at this conclusion, we first ask whether the
federal and state rules conflict. Here, the federal rule on point is Federal Rule of Civil Procedure
56, which governs summary judgment. As stated, summary judgment is appropriate where “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). To determine the meaning and scope of
the federal rule, we look to the precedents of the Supreme Court and our court interpreting and
applying the rule. For discrimination claims, “[o]n a motion for summary judgment, a district
court considers whether there is sufficient evidence to create a genuine dispute at each stage of
the McDonnell Douglas inquiry.” Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th
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Cir. 2000); see also Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 818 (6th Cir. 2011)
(expressly considering evidence at all stages of the McDonnell Douglas inquiry to determine
whether plaintiff had established a genuine issue of material fact in connection with her age-
discrimination claim). The state law is the standard articulated in Gossett, which held “that the
McDonnell Douglas framework is inapplicable at the summary judgment stage because it is
incompatible with Tennessee summary judgment jurisprudence.” Gossett, 320 S.W.3d at 785.
Instead, under Tennessee law, which has “rejected the federal standard set forth in Celotex Corp.
v. Catrett, 477 U.S. 317 (1986),” the moving party must “affirmatively negate” an essential
element of the nonmoving party’s claim. Gossett, 320 S.W.3d at 793 (Clark, J., concurring); id.
at 782. To be clear, the Tennessee Supreme Court did not reject the McDonnell Douglas
framework outright; rather, it held that, because the burden-shifting framework may, in its view,
“result in trial courts disposing of factual questions on summary judgment,” the framework
should not be applied at the summary-judgment stage. Id. at 783, 786. Given the Tennessee
Supreme Court’s express rejection of the federal summary-judgment standard, it is clear that
state and federal law conflict.
The second step of the inquiry is to determine whether the federal rule, or the application
of the federal rule, comports with the requirements of the Rules Enabling Act. There can be no
doubt that Rule 56 of the Federal Rules of Civil Procedure is a procedural rule. As we have
explained, “summary judgment is a procedural device for deciding a case without the necessity
of a full-blown trial. When there is a motion for summary judgment in a diversity case, the
provisions of Rule 56 control its determination.” Shropshire v. Laidlaw Transit, Inc., 550 F.3d
570, 574 (6th Cir. 2008) (citations and internal alteration marks omitted). This rule applies
“even where the federal summary judgment requirements displace state law that would require a
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jury to make a particular determination.” Id. To be sure, whether the McDonnell Douglas
framework is itself purely procedural, and whether it would constitute a “federal rule” under the
Rules Enabling Act, are both difficult questions. But we need not resolve them here, because the
conflict with Tennessee law does not concern the McDonnell Douglas framework itself—i.e. its
content, and whether it should be used to evaluate substantive claims of discrimination; rather,
the conflict arises over timing—i.e. when the framework applies and when the evidence
thereunder may be considered. Under Rule 56 of the Federal Rules, as applied, all evidence
relevant to the McDonnell Douglas inquiry is considered at summary judgment, and a plaintiff
must use that evidence to show that a genuine dispute of material fact exists. Since this rule
“really regulates procedure” (it governs the evidence that may be considered at summary
judgment and the burdens on the parties), it is a valid rule under the Rules Enabling Act. For the
plurality in Shady Grove, then, the inquiry would end here, and application of the McDonnell
Douglas framework to Plaintiff’s claims at summary judgment would be proper.
Under the view advanced by Justice Stevens in his concurrence, however, we must focus
on the nature of the state law, not on the nature of the federal rule, to determine whether
displacing that law would effectively “abridge, enlarge, or modify” a substantive right under
state law. If so, applying the federal rule would not comport with the dictates of the Act. Here,
however, it is clear that the standard articulated in Gossett is procedural in nature. First, just as
with the federal rule, the standard articulated in Gossett “allocate[s] decision-making authority
between the judge and jury, a quintessentially procedural determination.” See Shropshire,
550 F.3d at 573. Second, the fact that its express aim was to displace the federal summary-
judgment standard also indicates that it is procedural. See id. And finally, Gossett did not alter
any of the elements of an age-discrimination claim under state law. See Webb v. ServiceMaster
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BSC LLC, 438 F. App’x 451, 453 n.2 (6th Cir. 2011) (noting that “Gossett did not alter the
elements required to prove employment discrimination.”). In fact, the Gossett court appears to
have expected federal courts to continue to apply the McDonnell Douglas framework to state-
law discrimination claims on summary judgment just as it had done in the past. See Gossett,
320 S.W.3d at 794 n.4 (Clark, J., concurring) (noting that “[d]efendants will . . . continue to be
able to obtain summary judgment in federal court on grounds that are foreclosed by the majority
opinion). Since Gossett announces a procedural standard, the application of the federal
summary-judgment standard would not “abridge, enlarge or modify” substantive rights under
state law. Therefore, the federal summary-judgment standard would also supersede Gossett
under Justice Stevens’s approach.
Since the conflicting federal rule comports with the requirements of the Rules Enabling
Act under either approach, the district court was correct to apply the federal summary-judgment
standard when evaluating Plaintiff’s state-law claims.
B
Plaintiff’s second argument is that the district court erred in finding that Defendant was
entitled to summary judgment on Plaintiff’s age-discrimination claims under the ADEA and
THRA. Again, we review the district court’s decision de novo.
The requirements for establishing an age-discrimination claim under the THRA are the
same as under the ADEA. See Jones v. Memphis Light, Gas, & Water Div., 346 F. App’x 38, 43
(6th Cir. 2009); Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 620 (6th Cir. 2006) (“We apply
the same analysis to age-discrimination claims brought under the THRA as those brought under
the ADEA.”). To prove age discrimination, a plaintiff must establish a violation by either direct
evidence or circumstantial evidence. Geiger v. Tower Automotive, 579 F.3d 614, 620 (6th Cir.
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2009). Direct evidence is “that evidence which, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer’s action.” Id. (quoting
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc)). By
contrast, circumstantial evidence “is proof that does not on its face establish discriminatory
animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.”
Id. Whether by direct or indirect evidence, a plaintiff must prove “age was the ‘but-for’ cause of
the challenged employer decision.” Gross v. FBL Fin. Servs., 557 U.S. 167, 177–78 (2009).
To advance a discrimination claim using circumstantial evidence, a plaintiff must satisfy
the requirements of the burden-shifting framework set forth in McDonnell Douglas. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The plaintiff must first make out a
prima facie case by showing: “(1) she is a member of the protected class; (2) she applied for and
was qualified for a promotion; (3) she was considered for and was denied the promotion; and
(4) other employees of similar qualifications who were not members of the protected class
received promotions at the time the plaintiff’s request for promotion was denied.” Provenzano,
663 F.3d at 812–13. The plaintiff’s burden at the prima facie stage is not onerous. Id. at 813
(citations and internal quotation marks omitted). Once the plaintiff establishes a prima facie
case, the burden of production shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for not promoting the plaintiff. Id. at 814. Finally, after the defendant
offers its explanation, the burden of production shifts back to the plaintiff to demonstrate that
“the employer’s proffered nondiscriminatory reason was not the true reason for the employment
decision, but rather a pretext for discrimination.” Id. at 815. Whereas “the burden of production
shifts between litigants as the analysis advances,” “the ultimate burden of persuasion remains on
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the plaintiff to demonstrate that age was the ‘but-for’ cause of their employer's adverse action.”
Id at 812 (emphasis in original).
The district court found that Plaintiff satisfied the first element of her prima facie case—
that is, she was in the protected class because of her age. The court also found that Plaintiff
arguably put forth sufficient evidence to show genuine factual disputes as to the second and third
elements—i.e. that the position she applied for was a promotion for which she was qualified
(element two), and that she was considered for and denied the promotion (element three). But
the court found that Plaintiff failed to show that a genuine dispute existed as to the fourth
element, which requires that another employee with similar qualifications who was not a member
of the protected class receive the promotion at the time that Plaintiff’s request for the promotion
was denied.
On this fourth element, the district court first ruled that Plaintiff’s claims were time-
barred with respect to all but five of the employees allegedly promoted to CSS positions in
Plaintiff’s stead. Scola v. Publix Super Markets, Inc., 902 F. Supp. 2d 1083, 1092 (E.D. Tenn.
2012). The remaining claims were: 1) Plaintiff’s ADEA claim that Plaintiff should have been
promoted in lieu of Marcia Trumbull, Nicole Pendergrass, Angela Anderson, James Cordell, and
Kelly Simpson; and 2) Plaintiff’s THRA claim that Plaintiff should have been promoted in lieu
of Cordell or Anderson. Id.
Of the five remaining employees whose alleged promotions were at issue, two were also
members of the protected class, namely, Trumbull and Simpson. The court concluded that the
seven-year age difference between Trumbull, who was born in 1959 (age 50 at the relevant
time), and Plaintiff, who was born in 1952 (age 57), was “unlikely to be significant,” noting that
Plaintiff “ha[d] not offered direct evidence of age animus.” Id. at 1093. Accordingly, the court
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dismissed Plaintiff’s claim in connection with Trumbull’s promotion. The court then found that
Plaintiff failed to show that she had qualifications similar to those of any of the other four
employees, and that even had she done so, she failed to offer any evidence showing that
Defendant’s reasons for making those employment decisions were pretextual. The court
therefore dismissed what remained of Plaintiff’s ADEA and THRA claims.
On appeal, Plaintiff does not appear to contest the dismissal of the time-barred claims.
Plaintiff does, however, contest the dismissal of her claims with respect to the alleged
promotions of the five employees mentioned above. Plaintiff also argues that the district court
erred in not considering Plaintiff’s claims with respect to three additional employees—Maria
Riojas, Shannon Chisefsky, and Jamey Greene.
Whether the district court’s grant of summary judgment was proper thus depends on
whether a reasonable jury could have found 1) that the seven-year age difference between
Plaintiff and Trumbull was significant under the circumstances, 2) that Plaintiff and the
remaining four employees were similarly qualified, and, if so, that Defendant’s proffered reasons
for its promotion decisions were pretextual, or 3) that Plaintiff had viable claims with respect to
the alleged promotions of the three additional employees that the district court did not consider.
As explained below, we find that Plaintiff cannot show that a genuine dispute of material fact
exists in connection with any of these issues.
1
As the district court observed, “It is well established in this circuit that ‘in the absence of
direct evidence that the employer considered age to be significant, an age difference of six years
or less between an employee and a replacement is not significant.’” Scola, 902 F. Supp. 2d at
1093 (citing Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003)). On the other
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hand, “an age difference of ten or more years is generally considered significant.” Blizzard v.
Marion Technical Coll., 698 F.3d 275, 284 (6th Cir. 2012) (citing Grosjean), cert. denied, 133 S.
Ct. 2359 (2013). As we observed in Blizzard, what remains is essentially a gray area, such that
“replacement of the employee by a person who is six to ten years her junior must be considered
on a case-by-case basis.” Id. The district court concluded that, “taking into account both the
seven-year age difference between Plaintiff and Ms. Trumbull as well as the fact that Plaintiff
has not offered direct evidence of age animus, . . . Plaintiff’s prima facie case fails with respect
to Ms. Trumbull.” Scola, 902 F. Supp. 2d at 1094.
Plaintiff argues that, because an age difference of six years or less is not significant
(absent other evidence), “any difference of more than six years is significant under Grosjean.”
Appellant’s Br. at 23. But that is not what Grosjean says. Rather, as we explained in Blizzard,
an age difference between six and ten years may or may not be significant, depending on the
circumstances of the case.
Here, the district court determined that, aside from the seven-year age difference, the only
evidence of discrimination consisted of comments made by another employee, Isaiah Hall,
calling Plaintiff an “old lady.” As the court observed, “Those statements are insufficient because
Mr. Hall was not a decisionmaker with respect to CSS promotions nor were his statements
related to the decisionmaking process.” Scola, 902 F. Supp. 2d at 1097 n.4. Under the
circumstances, the district court reasonably concluded that the seven-year age difference in this
case, without more, was not significant, and was not enough to give rise to an inference of
discrimination in the eyes of a reasonable factfinder. Therefore, the court’s grant of summary
judgment on the ADEA and THRA claims with respect to Trumbull’s appointment was proper.
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2
The district court dismissed Plaintiff’s claims with respect to the four other employees
whose promotions are at issue (Pendergrass, Anderson, Cordell, and Simpson) on the ground that
Plaintiff failed to show that she and the four other employees were similarly qualified. In
particular, the district court held that there was no genuine issue as to whether Plaintiff lacked
the experience that the others possessed:
Mr. Simpson not only was in the protected class but he also possessed additional
“front office” training and experience—a key part of the CSS position—that
Plaintiff had not received at the time the position was filled. Mr. Cordell and Ms.
Anderson had previously worked in the CSS position—the position that Plaintiff
was seeking—before being transferred to the Ooltewah store. Finally, Ms.
Pendergrass was a customer service team lead, another position at Publix that has
greater responsibilities than the cashier position, and had previously worked as a
CSS when the store first opened. Thus, although Plaintiff satisfied the minimum
qualifications for the CSS position and offers evidence of satisfactory
performance evaluations as cashier, she has not sufficiently demonstrated she was
similarly qualified to the other individuals who were promoted to the CSS
position at the time those positions became available.
Scola, 902 F. Supp. 2d at 1094. Given Plaintiff’s relative lack of experience, the district court
held that Plaintiff had failed to meet the fourth element of her prima facie case with respect to
these four employees.
Plaintiff argues that the court erred in finding that she did not satisfy this fourth element.
In particular, Plaintiff argues that she was “only required to show that she was qualified for the
position and that Defendant selected a younger person for the position.” Appellant’s Br. at 26–
27. Plaintiff emphasizes that “the fact that another applicant was more qualified or overly
qualified for the position is not relevant in determining whether Plaintiff was qualified for the
position for purposes of meeting the requirements of a prima facie case of discrimination.” Id. at
27.
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Plaintiff misstates the law. Perhaps Plaintiff is conflating the requirement for the fourth
element in a discharge case (which this case is not) with that in a failure-to-promote case (which
this case is): in a failure-to-promote case, Plaintiff must show not only that she was qualified, but
that she was similarly qualified to the employees who were promoted in her stead. See, e.g.,
Provenzano, 663 F.3d at 814 (“In a failure to promote claim, the emphasis in the fourth element
is on the relative qualifications of the plaintiff and the employee who actually received the
promotion.”). Plaintiff emphasizes that she met the minimum qualifications for the position;
namely, that she was above the age of eighteen and had cashiering experience. But Plaintiff’s
burden, though not “onerous” at the prima facie stage, is still to show that she was similarly
qualified. We impose this requirement for good reason: if a plaintiff in a failure-to-promote case
could make out a claim despite being less qualified than the candidate chosen, we would be
setting the bar too low, and a statute meant to prevent discrimination against older persons would
end up encouraging discrimination in their favor. Therefore, to allow a factfinder to reasonably
infer that discrimination was afoot, we require Plaintiff to show that she was at least as qualified
as the candidate chosen in her place.
The district court found, and Plaintiff does not dispute, that all four of the employees at
issue either had prior experience in the position she sought or had experience critical to that
position, whereas Plaintiff had none at the relevant time. Plaintiff does not argue that the prior
experience of these other employees did not help them do their jobs better. Nor does Plaintiff
argue that she had other qualifications, such as superior performance reviews or other
experience, that made her similarly qualified. Instead, Plaintiff argues that these other
employees’ additional experience is irrelevant because the decisionmaker, Mr. Walker, “never
claimed that this was the reason the Plaintiff was not promoted.” Appellant’s Br. at 27.
17
Plaintiff’s claim that relative experience played no role in the decisionmaking process—
and therefore did not render her less qualified—is not supported by the record. Plaintiff claims
that “Walker stated that the reason he has not given Plaintiff a CSS position is primarily a matter
of availability.” Id. at 25. First, a candidate’s “availability” can reasonably be considered part of
her qualifications for the position, particularly here, where, as Walker testified, Plaintiff “[didn’t]
seem to like to work holidays, which is [Publix’s] busiest times [sic],” and previously “didn’t
want to work weekends.” Second, Walker did not testify that that was the only reason she was
not promoted. For example, Walker testified that he chose Ms. Trumbull because “[s]he had
previous experience as customer service staff with Publix.” When asked why he chose a
different employee, Heather Borges, over Plaintiff, Walker responded that Borges “already had
1
prior office experience from [the] Florida [store].” Thus, Plaintiff’s claim that her relative
inexperience did not render her less qualified is unfounded.
Like the district court, we are skeptical that a fair-minded jury could find that Plaintiff
and these other four employees had similar qualifications.2 But even giving Plaintiff the benefit
of the doubt as to the value of prior CSS or related experience (which Plaintiff lacked), we agree
with the district court that Plaintiff could not show that Defendant’s proffered reasons for its
promotion decisions were pretextual. Accordingly, we affirm the district court’s dismissal with
respect to these four employees’ appointments on that basis.
1
Plaintiff’s claim with respect to Borges is time-barred, but Walker’s testimony makes clear that experience played
a role in his evaluation of candidates.
2
The district court held that a reasonable factfinder would be “unlikely” to conclude Plaintiff was similarly
qualified. Scola, 902 F. Supp. 2d at 1094. As the district court observed at the outset, however, the standard for
granting summary judgment is whether a reasonable jury could find for the non-movant. Id. at 1090. This appears
to be what the district court intended. Regardless, we do not decide whether a reasonable jury could so find because
we affirm on other grounds.
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Even if a reasonable jury could conclude that Plaintiff made out a prima facie case of
discrimination, it would also have to conclude that Defendant’s proffered reasons for its
promotion decisions were pretextual. “A plaintiff can refute the legitimate, nondiscriminatory
reason that an employer offers to justify an adverse employment action by showing that the
proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged
conduct, or (3) was insufficient to warrant the challenged conduct.” Provenzano, 663 F.3d at
815 (citations and internal quotation marks omitted). “Relative qualifications establish triable
issues of fact as to pretext where the evidence shows that either (1) the plaintiff was a plainly
superior candidate, such that no reasonable employer would have chosen the latter applicant over
the former, or (2) plaintiff was as qualified as if not better qualified than the successful applicant,
and the record contains other probative evidence of discrimination.” Id.
Here, Defendant offered numerous legitimate, non-discriminatory reasons for its
employment decisions. Again, the four employees whose promotions remain at issue are
Anderson, Cordell, Simpson, and Pendergrass. Defendant explained that both Cordell and
Anderson were already working in CSS positions in stores in other states when they were
allowed to transfer to the Ooltewah store for personal reasons, despite the absence of an opening
or a need in the Ooltewah store. The decisionmaker, Mr. Walker, did not seek out these
employees, and did not appear to have a role in their transfer to the store. Plaintiff cannot be said
to have been “considered for” and “denied” these positions, which were not promotions at all,
but rather, were transfers that allowed these employees to “maintain[ ] their status.” Moreover,
Plaintiff points to no evidence casting doubt on Defendant’s explanations for these transfers.
Defendant explained that Simpson was promoted because of Simpson’s superior job
performance and better availability. Walker testified: “Kelly [Simpson] was outstanding. Kelly
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would work in any department I needed Kelly to work in. . . . He was available to work any time.
. . . [Plaintiff] was not available to work any time.” Plaintiff offers no basis for questioning
Defendant’s explanation for deciding to promote Simpson instead of Plaintiff. Plaintiff cannot
show that she was “a plainly superior candidate.” And, even assuming that she was as qualified
as Simpson, Plaintiff cannot point to any probative evidence of discrimination in the record
besides the stray “old lady” comments of an employee, Isaiah Hall, who, as mentioned, played
no role in the decisionmaking process. Plaintiff offers nothing that would permit a reasonable
jury to conclude that Defendant’s proffered reasons for promoting Simpson over Scola were
pretextual.
Finally, Defendant explained that Pendergrass was hired into a CSS position when the
store first opened. Prior to working for Publix, she was the store manager at Food Lion, another
supermarket. Pendergrass was promoted to Customer Service Team Leader and stepped back
down at her own request. Again, it is doubtful whether Plaintiff can reasonably claim to have
been considered for and denied a promotion on these facts, but even were she able to do so,
Plaintiff has offered no reason to doubt Defendant’s explanations.
Since Defendant offered legitimate, non-discriminatory reasons for its decisions, Plaintiff
had the burden of showing that these reasons were pretextual. Plaintiff failed to discharge her
burden with respect to Simpson’s promotion, and similarly failed to discharge her burden with
respect to the other three employees’ alleged promotions.
3
Plaintiff claims that the district court also erred in not considering three additional
employees in connection with Plaintiff’s age-discrimination claims: Riojas, Chisefsky, and
Greene. The district court did not err. Plaintiff does not allege or point to evidence showing that
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Riojas was actually promoted to the CSS position; on the contrary, Plaintiff admitted that Riojas,
like Plaintiff, remained a cashier. Plaintiff thus cannot satisfy the fourth element of her prima
facie case with respect to Riojas. Plaintiff also admits that Chisefsky and Greene did not actually
work in her store, and Plaintiff identifies no basis from which to conclude that Plaintiff was
considered for and denied the promotions they received. Plaintiff thus cannot satisfy the fourth
element of her prima facie case with respect to these employees, either. Accordingly, Plaintiff’s
claims with respect to these three employees provide no basis for reconsidering the district
court’s grant of summary judgment.
C
Plaintiff also argues that the district court erred in granting summary judgment on
Plaintiff’s hostile-work-environment claims. According to Plaintiff, Defendant did not seek to
dismiss these claims in its motion for summary judgment, so Plaintiff was not on notice that she
needed to respond with a defense of these claims and, therefore, Plaintiff did not have an
opportunity to be heard on these claims.
First, Defendant correctly notes that it moved for summary judgment with respect to all
of Plaintiff’s claims, not just the age-discrimination claims under the ADEA and THRA.
Appellee’s Br. at 39. Thus, even though Defendant’s memorandum in support of that motion
focused only on Plaintiff’s age-discrimination claims, Plaintiff should have been aware that she
needed to point to evidence in support of all of her claims. Indeed, in federal court, Defendant’s
burden at the summary-judgment stage is not to actively disprove Plaintiff’s case. “Instead, as
we have explained, the burden on the moving party”—here, Defendant—“may be discharged by
‘showing’—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.” Celotex, 477 U.S. at 325. The nonmoving party—that is,
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Plaintiff—must then “go beyond the pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing that there is a
genuine issue for trial.” Id. at 324 (citations and internal quotation marks omitted). Plaintiff
failed to discharge her burden with respect to the hostile-work-environment claims and, on
appeal, Plaintiff does not point to any evidence that would suggest that she would have been able
to support her hostile-work-environment claims had she understood that the claims were subject
to dismissal.
Even if we take Plaintiff’s lack-of-notice plea at face value, however, we affirm the
district court’s grant of summary judgment in this case because her claims would fail regardless.
To advance a prima facie hostile-work-environment claim under the ADEA or THRA, an
employee must show that: (1) the employee is 40 years old or older; (2) the employee was
subjected to harassment, either through words or actions, based on age; (3) the harassment had
the effect of unreasonably interfering with the employee’s work performance and creating an
objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis
for liability on the part of the employer. Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834–35
(6th Cir. 1996). In particular, we note that Plaintiff must show that she was harassed on the basis
of her age and that such harassment was “sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working environment.” Id. at 835 (citations
and internal alteration marks omitted).
Plaintiff is correct that her age-discrimination and hostile-work-environment claims have
different elements. But the evidence required to prove each type of claim overlaps in critical
respects. In particular, in advancing her age-discrimination claims, Plaintiff pointed to the “old
lady” comments of Mr. Hall, which, standing alone, cannot reasonably be said to have created
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“an objectively intimidating, hostile, or offensive work environment.” To be sure, harassment is
not the same as discrimination in an employment decision, and evidence of one may not be
evidence of the other. But as her repeated references to Mr. Hall’s comments indicate, Plaintiff
did not limit herself to evidence strictly related to discrimination in advancing her discrimination
claims. As a result, and in light of the fact that Plaintiff continues to point to no other evidence
of harassment on appeal, it is doubtful that any such evidence exists. Accordingly, we affirm the
district court’s grant of summary judgment on Plaintiff’s hostile-work-environment claims.
D
Finally, Plaintiff argues that the district court should not have declined to exercise
jurisdiction over her remaining state-law claims, including her claims of intentional and
negligent infliction of emotional distress. Appellant’s Br. at 52.
A district court’s decision not to exercise supplemental jurisdiction to hear a plaintiff’s
state-law claims is an appealable decision that we review under the abuse-of-discretion standard.
Gamel v. City of Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010). “An abuse of discretion exists
only when the court has the definite and firm conviction that the district court made a clear error
of judgment in its conclusion upon weighing relevant factors.” Packard v. Farmers Ins. Co. of
Columbus Inc., 423 F. App’x 580, 584 (6th Cir. 2011). “In determining whether to exercise
supplemental jurisdiction, federal courts balance the values of judicial economy, convenience to
parties, fairness, and comity to state courts.” Id.
“When all federal claims are dismissed before trial, the balance of considerations usually
will point to dismissing the state law claims, or remanding them to state court if the action was
removed.” Gamel, 625 F.3d at 952. Although “[t]here are . . . circumstances where a district
court should retain supplemental jurisdiction even if all of the underlying federal claims have
23
been dismissed,” see id, mere inconvenience to the plaintiff is, by itself, generally insufficient.
See Packard, 426 F. App’x. at 585.
We disagree with Plaintiff’s claim that the relevant factors weigh in favor of jurisdiction
in this case. Judicial economy does not favor exercising jurisdiction over the state-law claims.
As in Packard, “the parties ha[ve] not exerted substantial time or effort in briefing the merits of
the state law causes of action”; rather, their briefing has focused exclusively on the federal cause
of action—Plaintiff’s ADEA claim—and its state counterpart under the THRA. Had the district
court declined to exercise jurisdiction over the THRA claim, for example, such a decision might
have been erroneous, since the state and federal age-discrimination causes of action are virtually
identical. But the district court properly disposed of the THRA claim. To be sure, permitting the
remaining state-law claims to go forward in state court instead of keeping them in the district
court might increase costs and proceedings and require a new judge to become familiar with the
facts. But Plaintiff does not point to any unusual additional costs that she will incur or difficult
circumstances that she will face as a result of dismissal that would distinguish her situation from
that of the typical plaintiff whose state-law claims are dismissed following the disposition of her
federal claims. Accordingly, after balancing these factors, we cannot say that we have a firm
conviction that the district court erred in declining to exercise supplemental jurisdiction over
Plaintiff’s state-law claims.
IV
For the foregoing reasons, we AFFIRM the judgment of the district court.
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