Provenzano v. LCI Holdings, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0311p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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REGINA PROVENZANO,
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Plaintiff-Appellant,
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No. 10-1639
v.
,
>
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Defendant-Appellee. -
LCI HOLDINGS, INC.,
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Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 08-15295—Thomas L. Ludington, District Judge.
Argued: October 4, 2011
Decided and Filed: December 15, 2011
Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.

_________________

COUNSEL
ARGUED: Russell C. Babcock, THE MASTROMARCO FIRM, Saginaw, Michigan,
for Appellant. Marlo J. Roebuck, JACKSON LEWIS, LLP, Southfield, Michigan, for
Appellee. ON BRIEF: Russell C. Babcock, Victor J. Mastromarco, Jr., THE
MASTROMARCO FIRM, Saginaw, Michigan, for Appellant. Marlo J. Roebuck,
Maurice G. Jenkins, JACKSON LEWIS, LLP, Southfield, Michigan, for Appellee.
_________________

OPINION
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JANE B. STRANCH, Circuit Judge. Plaintiff Regina Provenzano seeks reversal
of the district court’s grant of summary judgment in favor of Defendant LCI Holdings,
Inc. Provenzano contends LCI discriminated against her based on her age in violation
of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and
the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws. § 37.2101

1
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 2

et seq. Although the district court misapplied the prima facie analysis for a failure to
promote discrimination claim, the district court’s grant of summary judgment is
AFFIRMED because Provenzano has not proven pretext.

I. BACKGROUND

Regina Provenzano was born on September 24, 1958 and has a high school
diploma and an associate’s degree in retail management. In 1997, at age thirty-nine,
Provenzano started working for LCI as a sales associate in its Liz Claiborne Outlet store
in Birch Run, Michigan, in LCI’s Midwest District. Approximately two years later,
Provenzano was promoted to a full-time supervisor position by then-assistant manager
Erica Hall. Provenzano also occasionally traveled to assist other stores that were just
opening.

On April 13, 2008, Judy Babcock (age thirty-three) was promoted to assistant
manager at the Birch Run store. The store manager, Connie Romanetto (age sixty-one),
recommended Babcock for the promotion and then-district manager Erica Hall approved
the recommendation. The open position was not publicized to any employees and
Provenzano was not asked to, nor did she, apply for the position. Provenzano alleges she
was more qualified than Babcock for the promotion because she had worked at the store
longer and had a high school diploma and an associate’s degree, whereas Babcock had
neither. Hall testified that Babcock was a superior candidate because she met more of
the performance qualifications on the job description than did Provenzano.

Throughout 2007 and 2008, due to economic conditions, LCI underwent
company-wide restructuring, directed at reducing costs by aligning each store’s
projected sales volume with a template-based mix of non-supervisory and supervisory
positions. The plan was executed in two phases: one in February 2007 and one in June
2008. In the Birch Run store in 2007, two full-time associates in their twenties were
reduced to part-time associates; Provenzano was not impacted during this phase. In June
2008, LCI eliminated the full-time supervisor position in the Midwest District and
reduced many employees holding such position to part-time supervisors. Five of those
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 3

eleven full-time supervisors were under the age of forty. While the other supervisors
transitioned in June, Hall permitted Provenzano to postpone her reduction to part-time
supervisor until July in order to utilize the medical benefits for an additional month.

Hall testified that in late July 2008 she told store manager Romanetto that she
could improve her performance and remain store manager or step down from the
position. When Romanetto elected to assume an assistant manager position, twenty-
eight-year-old Summer Kennard transferred into the store manager position, leaving the
Birch Run store with six management-level employees. Hall testified that because LCI’s
restructuring mandate permitted only four, in August 2008 she offered Sanburn and
Provenzano the option to step down as part-time supervisors and accept positions as
part-time sales associates or leave the company. Both chose to step down. Provenzano
testified that her reduced hours and pay compelled her to resign her position with LCI
as of November 10, 2008.

On November 26, 2008, Provenzano filed a complaint alleging age
discrimination under the ELCRA against LCI in Saginaw County Circuit Court. On
January 2, 2009, LCI removed the case to federal court, and Provenzano amended her
complaint to include a cause of action under the ADEA. After discovery, LCI moved
for summary judgment.1 On April 12, 2010, the district court granted LCI’s motion.
Specifically, the court applied the McDonnell Douglas burden-shifting framework to
Provenzano’s claims and found she had failed to satisfy the fourth prong of her prima
facie case, and had failed to prove pretext in the face of LCI’s nondiscriminatory reasons
for the promotional decision. Provenzano appeals both determinations.

1
In her response, Provenzano clarified that her age discrimination claim is based on LCI’s
decision to promote Judy Babcock to the position of assistant manager instead of Provenzano and that all
“other acts of discrimination alluded to in [LCI’s] brief and discussed in more detail in [Provenzano’s]
response are meant to place the decision to deny the promotion to [Provenzano] into context.”
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 4

II. DISCUSSION

A. Standard of Review

This Court reviews a district court’s grant of summary judgment de novo. Geiger
v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is appropriate
if there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a) (2010). The moving party has the burden of
proving the absence of a genuine issue of material fact and its entitlement to summary
judgment as a matter of law. Celtex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All
facts, including inferences, are viewed in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The central issue 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.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en
banc) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). LCI moved
for summary judgment, therefore this Court must view the evidence in the light most
favorable to Provenzano and draw all reasonable inferences in her favor in determining
whether there exists a dispute of material fact for submittal to a jury.

B. ADEA Claim

The ADEA prohibits an employer from failing or refusing to hire, discharging,
or discriminating “against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). A plaintiff may establish a violation of the ADEA by either direct or
circumstantial evidence. Gieger, 579 F.3d at 620. “Direct evidence of discrimination
is that evidence which, if believed, requires the conclusion that unlawful discrimination
was at least a motivating factor in the employer’s actions.” Wexler, 317 F.3d at 570
(citation and internal quotation marks omitted). “Circumstantial evidence, on the other
hand, 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.
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 5

Regardless of the type of evidence submitted, the burden of persuasion remains on
ADEA plaintiffs to demonstrate “that age was the ‘but-for’ cause of their employer’s
adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 n.4 (2009).

Provenzano relied entirely on circumstantial evidence. The three-step framework
developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and modified
by Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981), guides the
analysis of age discrimination claims based upon circumstantial evidence. Ercegovich
v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998). In the first step, the
employee carries the initial burden of establishing a prima facie case of age
discrimination; if the employee meets this burden, the second step requires the employer
to respond by articulating some legitimate, nondiscriminatory reason for the adverse
employment action at issue. McDonnell Douglas, 411 U.S. at 802. Third, assuming
such a response is made, the employee then bears the burden of rebutting this proffered
reason by proving that it was pretext designed to mask discrimination. Id. at 804.

This “three-part inquiry provides ‘an allocation of the burden of production and
an order for the presentation of proof in [employment discrimination] cases.’” Cline v.
Catholic Diocese of Toledo, 206 F.3d 651, 659 (6th Cir. 2000) (citing St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). At all times, the ultimate burden of persuasion
remains on the plaintiff to demonstrate that age was the “but-for” cause of their
employer’s adverse action. See Burdine, 450 U.S. at 253. At no time does the defendant
carry the burden of persuasion. In contrast, the burden of production shifts between
litigants as the analysis advances.

This Court has explained the relevant burdens at the summary judgment stage:

On 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 Cir. 2000). Thus, the plaintiff must first submit
evidence from which a reasonable jury could conclude that a prima facie
case of discrimination has been established. Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1186 (6th Cir. 1996). The defendant must then
offer sufficient evidence of a legitimate, nondiscriminatory reason for its
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 6

action. Id. If the defendant does so, the plaintiff must identify evidence
from which a reasonable jury could conclude that the proffered reason is
actually a pretext for unlawful discrimination. Id.

Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 364 (6th Cir. 2007). The
plaintiff’s burden to demonstrate pretext in the final step then “merges with the ultimate
burden of persuading the court that she has been the victim of intentional
discrimination.” Burdine, 450 U.S. at 256. In evaluating pretext and the plaintiff’s
ultimate burden, the court should consider all evidence in the light most favorable to the
plaintiff, including the evidence presented in the prima facie stage. See Peck v. Elyria
Foundry Co., 347 F. App’x 139, 145 (6th Cir. 2009) (citing Hicks, 509 U.S. at 511).

The district court first held that Provenzano did not establish a prima facie case
of age discrimination under McDonnell Douglas. Provenzano disputes this finding.

1. Prima Facie Stage

In the first stage of the McDonnell Douglas analysis, Provenzano must establish
a prima facie case of discrimination. To make out a prima facie case of age
discrimination based on LCI’s failure to promote her, Provenzano must show that (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. White v. Columbus Metro.
Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005) (citing Nguyen v. City of Cleveland, 229
F.3d 559, 562-63 (6th Cir. 2000)); cf. Brennan v. Tractor Supply Co., 237 F. App’x 9,
16 (6th Cir. 2007).2 Provenzano’s burden at the prima facie stage is “not onerous” and
“poses a burden easily met.” Cline, 206 F.3d at 660 (citing Burdine, 450 U.S. at 253).

2
The fourth element in Brennan differs slightly from that in White by requiring a plaintiff in a
failure to promote claim to show that similarly-situated employees not in the plaintiff’s protected class
received promotions. Although Brennan is an ADEA case and White is a Title VII case, this Court has
clearly rejected the “similarly situated” language in a failure to promote claim in favor of the language
established in Nguyen. White, 429 F.3d at 241. Nguyen places the proper emphasis on the relative
qualifications of the plaintiff and the promoted individual. Id. at 240-41.
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 7

The prima facie case is meant simply to force a defendant to proceed with its case. Id.
at 660 (citation omitted).

We would do well to pause here and admit that while the burden-shifting analysis
of McDonnell Douglas was created to assist in the presentation of a discrimination case,
it often fails to fulfill its purpose. That failure is particularly pronounced in the context
of summary judgment where the burden-shifting analysis can obfuscate the appropriate
question—whether there exists a genuine issue of material fact. Even if that over-
arching question is given its due, opportunities abound for confusion in applying the
three stage formula to the evidence in a case. “While the discrete stages are meant to
facilitate litigants and courts in reaching and resolving that ultimate question of
discrimination, when misapplied, they tend to distract courts from the central issue.”
Cline, 206 F.3d at 660. One common misapplication is the tendency to push all of the
evidence into the prima facie stage and ignore the purpose for and application of the
three stages. Such was the problem here.

The district court merged its analysis of the second (nondiscriminatory
justification) and third (pretext) stages of the McDonnell Douglas test into its evaluation
of Provenzano’s prima facie case.3 This is clear from the one-sentence analysis of the
latter two stages: “For the same reasons that Plaintiff cannot establish the fourth element
of a prima facie case of age discrimination, Plaintiff cannot establish pretext.”
Provenzano v. LCI Holdings, Inc., No. 08-15295-BC, 2010 WL 1462937 at *7 (E.D.
Mich. Apr. 12, 2010). This was error.

We now turn to analysis of the evidence appropriate to the prima facie stage of
this failure to promote case. We begin by examining Provenzano’s qualifications in both
the second (qualification) and fourth (comparison to promoted employee) prongs. White,
429 F.3d at 242–43. However, this evaluation must be conducted independently of
LCI’s proffered nondiscriminatory reason and must not conflate the prima facie and

3
It considered such evidence as LCI’s workforce-reduction justifications (properly to be presented
by LCI at the second stage to show its legitimate, nondiscriminatory purpose) and Provenzano’s failure
to present evidence of motive other than Romanetto’s jealousy (properly a challenge to Provenzano’s
burden to show pretext at the third stage).
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 8

pretext stages of the McDonnell Douglas test. Id. at 242. An important function of the
prima facie test is to eliminate the most common nondiscriminatory reasons for the
employer’s action. See Burdine, 450 U.S. at 253-54. Therefore, a general weighing of
the qualifications of Provenzano and Babcock is necessary at the prima facie stage;
however, this light review must be distinguished from the more rigorous comparison
conducted at the later stages of the McDonnell Douglas analysis. See Burdine, 450 U.S.
at 255 (after the defendant raises a legitimate nondiscriminatory reason, “the factual
inquiry proceeds to a new level of specificity”). As noted in White, this careful
distinction is especially necessary in cases such as this one, where the employer asserts
as its nondiscriminatory reason for failing to promote the plaintiff that it chose to hire
a candidate it considered more qualified. See White, 429 F.3d at 247 (Moore, J.,
concurring).

There is no dispute that Provenzano satisfied the first three elements of the prima
facie stage; only the fourth element is at issue. Provenzano contends that the fourth
element of the prima facie case should be satisfied by showing merely that a younger
person was promoted to a position instead of Provenzano. This Court directly
considered and rejected Provenzano’s argument in White, holding that “it is insufficient
for a plaintiff in a failure to promote [discrimination] case merely to point to [a non-
protected person] who received the job in satisfying the fourth prong.” White, 429 F.3d
at 241. This Court emphasized that “it is incumbent upon the plaintiff to establish that
she and the non-protected person who ultimately was hired for the desired position had
similar qualifications.” Id. at 242.

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.
White, 429 F.3d at 240-41. The prima facie burden is not intended to be onerous, Cline,
206 F.3d at 660 (citing Burdine, 450 U.S. at 253), and Provenzano is not required to
establish that she and Babcock had the exact same qualifications. Requiring a plaintiff
to show identical qualifications to another individual is not realistic from a human
standpoint. We recognized this practical reality in Ercegovich, rejecting an exact
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 9

matching requirement for “similarly-situated” comparators in an ADEA claim. 154 F.3d
at 352-53. Instead, what is required in a failure to promote case is for the plaintiff to
show she possesses “similar qualifications” to the employee who received the
promotion.

A comparison of Provenzano and Babcock reveals that Provenzano presented
sufficient evidence to permit a reasonable trier of fact to conclude that she and Babcock
were similarly qualified for the position of assistant manager. Provenzano had more
experience and education than Babcock; she had been a supervisor longer, had helped
in other stores, and held a high school diploma and associate’s degree. In contrast,
Babcock had a stronger performance record, without any written or verbal warnings in
comparison to Provenzano’s multiple counselings. Although their strengths and
weaknesses were in different areas, Provenzano’s experience and education made her
similarly qualified to Babcock. This is the extent of the inquiry at the prima facie stage
and Provenzano satisfied it.

2. Nondiscriminatory Justification

Once the plaintiff meets her prima facie burden, the burden of production shifts
to the employer to articulate a legitimate nondiscriminatory reason for failing to promote
the plaintiff to the position sought. Burdine, 450 U.S. at 254; White, 429 F.3d at 244.
LCI is not required to persuade the court that it was actually motivated by the proffered
reasons. Burdine, 450 U.S. at 254. Rather, it is sufficient for LCI to raise a genuine
issue of fact as to whether it discriminated against Provenzano. Id. In order to
accomplish this, LCI must clearly set forth, through the introduction of admissible
evidence, the reasons for not promoting Provenzano. Id. at 255.

This stage of the McDonnell Douglas framework is where it is appropriate to
consider district manager Hall’s and former store manager Romanetto’s opinions of
Provenzano as compared with Babcock. LCI has asserted that it chose not to promote
Provenzano because it decided to promote a more qualified candidate and because it felt
that Provenzano’s performance record rendered her unpromotable to assistant manager.
In Hall’s deposition and affidavit, she gave a detailed description of Babcock’s
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 10

performance-related attributes and Provenzano’s performance-related deficiencies. The
district court properly found that LCI met its burden of production at this second stage
of the McDonnell Douglas analysis.

3. Pretext

In the third and final stage of the McDonnel Douglas analysis, the presumption
of discrimination is gone and the plaintiff must demonstrate that the employer’s
proffered nondiscriminatory reason was not the true reason for the employment decision,
but rather a pretext for discrimination. Burdine, 450 U.S. at 256. 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.” Wexler, 317 F.3d at 576 (quoting Dews v. A.B. Dick
Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).

LCI asserts that Hall based her decision not to promote Provenzano on
Provenzano’s deficient performance record and the existence of a more qualified
candidate. Provenzano offered several reasons in support of finding LCI’s justifications
pretextual: Babcock’s lack of a high school education; Provenzano’s experience
assisting other stores; a history of promotions, transfers, and demotions that Provenzano
alleges evidences a pattern of discriminating against older employees; and a corporate
email referencing the target customer’s age group.

Provenzano’s first two grounds for finding pretext involve the relative
qualifications of Provenzano and Babcock. “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.’” Bartlett v. Gates, 421 F. App’x 485, 490-91 (6th Cir. 2010) (citing
Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 627-28 (6th Cir. 2006)).
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 11

Provenzano claims pretext arguing that Babcock cannot be qualified because she
lacks a high school diploma. The job description for the assistant manager position lists
“High school Diploma and equivalent retail fashion management experience; College
Degree a plus.” Provenzano argues this makes a high school diploma a mandatory
qualification, making her a plainly superior candidate. Hall testified that she mistakenly
believed at the time of the promotion that Babcock possessed a high school diploma.
Provenzano testified that Romanetto suggested otherwise. However, whether Hall or
Romanetto knew of Babcock’s lack of a high school diploma is not decisive because
Babcock was not unqualified for the position merely because she lacked a high school
diploma.

The assistant manager job description lists over forty “Knowledge, Skills and
Abilities.” The job description does not indicate and no evidence, except Provenzano’s
personal belief, suggests that any of the listed qualifications was mandatory or weighed
more heavily in the promotion process. In fact, Hall asserts that Provenzano lacks both
good communication skills and an ability to partner with superiors, which are two of the
other “Knowledge” qualifications listed along with the educational qualification. Under
Provenzano’s analysis, neither she nor Babcock would be qualified. Because no
particular qualification was mandatory, Babcock’s lack of a high school diploma alone
does not establish that “no reasonable employer would have chosen [Babcock] over
[Provenzano].” See Bartlett, 421 F. App’x at 490-91.

Provenzano also argues LCI’s claim that Provenzano was not promotable is
pretextual because LCI chose Provenzano to assist other Liz Claiborne stores.
Provenzano testified:

I went to stores that were in dire need of help that didn’t have a full staff
and I helped them get their stuff—you know, their store back in order
and I could do all this, but yet I couldn’t be an assistant manager. I
didn’t understand it.
I would go to Colorado for a month at a time. They didn’t have a
manager and I would literally run the store, and get it up on its feet and
get—you know, until they hired a manager. They called me a lot to go
to different places, Colorado, all over Utah. And I did a lot for this
company but yet they didn’t promote me and I felt that that was wrong.
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 12

Provenzano alleges she performed many of the responsibilities of an assistant manager
while traveling to those stores and this demonstrated her competency as well as LCI’s
approval of her in that role.

Hall does not contest Provenzano’s qualification to travel to assist other stores.
Instead, Hall asserts that it was Provenzano’s “performance issues” that made her not
promotable. In explaining the promotional decision process, Hall stated

People are rated on their performance on not only a daily basis, a weekly
basis, but a monthly basis, and even though someone may have
performed at one level at one time, if there is not a consistency over a
certain time period or there’s issues that may come up, when decision
time is made, when it’s time to make the decision, the best decision is
going to be made that’s going to be appropriate and it’s going to be based
on performance.

In essence, LCI takes the position that Provenzano was not the most attractive candidate
at the time of promotion, not that she was categorically unqualified for the assistant
manager job. Therefore, Provenzano’s experience assisting other stores does not
conclusively establish that she should have been promoted over another candidate
without that experience and does not establish that “no reasonable employer would have
chosen [Babcock] over [Provenzano].” See Bartlett, 421 F. App’x at 490-91.

In order to present a triable issue of fact as to pretext, Provenzano could also
show that she was as qualified as, if not better qualified than, Babcock, along with proof
of “other probative evidence of discrimination.” Id. A more searching evaluation of the
relative qualifications of the two candidates is conducted at this stage than was required
at the fourth prong of the prima facie case. See Burdine, 450 U.S. at 255. Although
Provenzano had been with LCI for only three years longer than Babcock, Provenzano
had six more years of experience in retail sales supervision, as well as experience
assisting other stores. In addition, Provenzano possessed superior educational
credentials, including an associate’s degree in an area relevant to the promotion position.

Babcock, however, had a much stronger performance record during her time with
LCI than did Provenzano. Babcock had no disciplinary warning, while Provenzano had
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 13

several, both written and verbal, in her personnel file. These warnings pertained to
violations of LCI’s security policy, which Hall testified were violations of one of the
“top security rules,” permitting automatic advancement in the disciplinary process to the
final written warning stage, the next stage being termination. Provenzano had also been
counseled on her failure to partner with superiors and her poor communication skills.
In contrast, Babcock received positive feedback from employees and customers and was
praised by Hall as having proper communication skills, being reliable, creating displays
that were visually appealing, providing good results for the store, and having a positive
attitude. Under these facts one could argue that Provenzano may not be as qualified as
Babcock for promotion to a position that required significant interpersonal skills and the
ability not just to follow, but also enforce, company policies and rules. However, even
assuming equal qualifications, Provenzano must also show “other probative evidence of
discrimination.” See Bender, 455 F.3d at 627-28.

As further evidence of discrimination, Provenzano points to LCI’s record of
promotions, transfers, and demotions of other members of management and the contents
of a corporate email received at some point during the summer after Babcock’s
promotion. Provenzano notes that as of January 1, 2008, individuals of the following
ages held management positions at LCI’s Birch Run store: 61, 51, 49, and 41; but, by
August or September 2008, the ages of management were: 61, 41, 34, and 27. While
Romanetto (age 61) was on a leave of absence for medical reasons, 30-year-old Annetta
Kucab filled in as a part-time supervisor while continuing her duties at another store.
When Romanetto died, Sanburn, age 51, filled the position. During this time period,
Provenzano was demoted to a part-time sales associate position before she resigned in
November. Provenzano produces only the fact of this management structure change
without any further proof of age discrimination tied to these specific employment
changes.

LCI explains that its employment decisions resulted from execution of its
restructuring plan, which began in 2007 and continued through the operative period for
this case. LCI provided statistics from the roster of employees in the Midwest District,
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 14

where the Birch Run store is located, one year after Babcock’s promotion and the
management restructuring that Provenzano highlights. At that point, the employees
ranged in age from eighteen to seventy-two with forty-six percent being forty years of
age or older.

Provenzano also testified that she observed an email sent to the Birch Run store
from “corporate” that stated LCI wanted the stores to “go to a 30-something look and
they’re attracting the 30-year-old look instead of the 50-year-old look.” Provenzano
explained that

It said in the email that they’re going to turn the store around to look like
30-something so that the clothes would be geared toward the 30-year-old.
In the email I interpret that they wanted to get rid of the younger [sic]
people and want to get younger people in there.

Sanburn testified that she remembered receiving an email in the Birch Run store “saying
that they wanted to try to sell to a younger crowd,” but the email did not state anything
with respect to the age of LCI’s employees. LCI noted that it partnered with designer
Isaac Mizrahi around this time to create a line of brighter and more vibrant clothes.
During the marketing campaign, LCI identified its new customer base as “the perpetual
35 year old and women 35-54.” Hall testified that at no point did LCI inform her that
the ages of its employees need to match the age of its proposed customer base. As the
district court held, even assuming that Provenzano’s testimony regarding the email is
admissible, Provenzano has not explained why it is probative of age discrimination when
it only describes LCI’s target customers and desired store appearance.

Provenzano’s own testimony about how the promotion decision was made also
provides context. Provenzano testified that she was not aware that Romanetto and Hall
had made the promotional decision; that she never had any complaints about Romanetto
or Hall when they were her supervisors or store manager; and that she never heard either
of them make age-related remarks. Further, Provenzano offered a different rationale for
Babcock’s promotion when she testified that she believed Romanetto may have been
“jealous” of her and afraid Provenzano was trying to take her job.
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 15

Provenzano has not produced sufficient additional probative evidence of
discrimination to establish a triable dispute of material fact regarding pretext. See
Bartlett, 421 F. App’x at 490-91; Bender, 455 F.3d at 627-28. Taking all of the
evidence, including that presented in the prima facie stage, in the light most favorable
to her, Provenzano has not established a genuine dispute of material fact that age
discrimination was the “but-for” cause of LCI’s decision to promote Babcock instead of
Provenzano. Thus, the district court did not err in finding that LCI was entitled to
summary judgment on Provenzano’s ADEA claim.

C. ELCRA Claim

In addition to her discrimination claim under the ADEA, Provenzano also brings
suit under the ELCRA. In contrast to the ADEA’s “but-for” causation burden, under the
ELCRA a plaintiff must ultimately prove that the defendant’s discriminatory animus was
a “substantial” or “motivating” factor in the decision. Sniecinski v. Blue Cross & Blue
Shield of Mich., 666 N.W.2d 186, 192-93 (Mich. 2003) (citing Price Waterhouse v.
Hopkins, 490 U.S. 228, 244 (1989) (plurality opinion)). To determine whether a plaintiff
has met this burden based on circumstantial evidence, Michigan has adopted the
McDonnell Douglas analysis. Cicero, 280 F.3d at 584 (citing Lytle v. Malady, 579
N.W.2d 906, 914-15, 915 n.19 (Mich. 1998)); Hazle v. Ford Motor Co., 628 N.W.2d
515, 521 (Mich. 2001). Therefore, the same three-step framework analyzed above is
applicable to Provenzano’s ELCRA claim.

The district court applied the McDonnell Douglas test as articulated in the
Michigan Supreme Court’s decision in Lytle v. Malady, 579 N.W.2d 906 (Mich. 1998),
and noted that, in age discrimination cases, the fourth element of the prima facie stage
can be established with evidence that the defendant treated the plaintiff differently than
persons of a different age class who engaged in the same or similar conduct. See Town
v. Michigan Bell Telephone Co., 568 N.W.2d 64, 68 (Mich. 1997). Although this test
looks for “same or similar conduct” and the Nguyen test for an ADEA claim looks to
“similar qualifications,” the same evidence applies to both standards. Michigan courts
have held that a comparison of qualifications is not required under the ELCRA, but they
No. 10-1639 Provenzano v. LCI Holdings, Inc. Page 16

have recognized that evidence of relative qualifications satisfies the fourth prong of the
prima facie burden. Hazle, 628 N.W.2d at 524-25. Therefore, Provenzano’s evidence
of similar qualifications also satisfies her prima facie burden under the ELCRA.

However, for the reasons discussed in the ADEA analysis, Provenzano did not
establish that LCI’s proffered nondiscriminatory reason was pretextual. This failure is
fatal to her ELCRA claim. Provenzano has not carried her ultimate burden of showing
a disputed question of material fact existed that LCI’s discriminatory animus was a
“substantial” or “motivating” factor in its decision to promote Babcock instead of
Provenzano. For these reasons, the district court correctly found that Provenzano had
not proven pretext under the ELCRA and properly granted LCI’s summary judgment
motion on Provenzano’s ELCRA claim.

III. CONCLUSION

For the foregoing reasons, the district court erred in holding that Provenzano
failed to prove a prima facie case of age discrimination on her ADEA and ELCRA
claims. However, the district court correctly held Provenzano did not show that LCI’s
proffered legitimate nondiscriminatory reasons for failing to promote her were
pretextual. Therefore, the district court’s grant of summary judgment in favor of LCI
as to Provenzano’s ADEA and ELCRA failure to promote claims is AFFIRMED.