Donald G. Wexler v. White's Fine Furniture, Inc.

GILMAN, Circuit Judge,

dissenting.

The lead opinion’s discussion, affirming the grant of summary judgment to White’s Fine Furniture, Inc., is a convincing argument of why a jury might conclude that the furniture store did not violate the Age Discrimination in Employment Act (ADEA). Indeed, the analysis sets forth reasons that would almost certainly be the same ones that I would use to uphold a jury verdict against Wexler. We are not, however, being asked to review a jury verdict against Wexler. Instead, we are reviewing a grant of summary judgment to White’s, which requires that all factual disputes and reasonable inferences be decided in favor of Wexler, not White’s. Because I believe that the lead opinion fails to apply the standard of review that is mandated by the Federal Rules of Civil Procedure and Supreme Court precedent, and because I disagree with the concurring opinion’s conclusion that Wexler has failed to produce “more than a scintilla of evidence” in his favor, I respectfully dissent.

I. STANDARD OF REVIEW

When faced with a motion for summary judgment, a court is asked to decide whether genuine issues of material fact exist that would allow a rational factfinder to favor either party. See Fed.R.Civ.P. 56. In doing so, we may not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). So long as reasonable minds could disagree as to the correctness of these disputed facts or the inferences to be drawn therefrom, summary judgment must be denied, even if we think that one conclusion is probably the correct one. See id. at 250-51, 106 S.Ct. 2505. This is because it is hot our role to impose our own conclusions on the evidence, unless a single conclusion is the only rational result. Indeed, “[cjredibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505.

Despite the commands of Rule 56, I believe that the lead opinion misapplies this standard of review. The opinion appears to be based more on its agreement with White’s’s characterization of the facts rather than Wexler’s. Such credibility determinations, however, are not within our province to decide. Further, the lead opinion incorrectly draws every inference in favor of White’s as the moving party, and ignores critical inferences that should be drawn in favor of Wexler as the non-moving party.

II. THE “BUSINESS JUDGMENT” DEFENSE

In addition to its mistaken application of Rule 56, the lead opinion bases much of its conclusions on its deference to the “business judgment” of White’s. Despite the lead opinion’s assertions to the contrary, an employer’s business judgment is not an absolute defense to unlawful discrimination. See E.E.O.C. v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 835 (6th Cir.1997) (“Although it is true that a factfinder should refrain from probing an employer’s business judgment, a decision to terminate an employee based upon unlawful considerations does not become legitimate because it can be characterized as a business decision.”). The constant recitation of the *872lead opinion’s newly discovered “business judgment” defense to employment discrimination is nothing less than a shibboleth.

III. WEXLER’S EVIDENTIARY BURDEN

The lead opinion correctly points out that there are two- alternative ways for Wexler to meet his evidentiary burden of proving that he was demoted in violation of the ADEA. First, he may proffer direct evidence to show that the decision of White’s to demote him was motivated, at least in part, by Wexler’s age. See Price Waterhouse v. Hopkins, 490 U.S. 228, 246-47, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (detailing the “mixed-motive” analysis in a Title VII gender-discrimination action). Second, he may proffer circumstantial evidence under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Unlike the lead and concurring opinions, however, I believe that there is sufficient evidence to support a rational jury’s conclusion that White’s violated the ADEA under either evidentiary route.

A. Sufficient direct evidence exists to support a rational trier of fact’s conclusion that White’s demoted Wexler based, at least in part, on his age

Under a mixed-motive analysis, a plaintiff must produce direct evidence that an employer considered both permissible and impermissible factors when it made the adverse employment decision at issue. See Price Waterhouse, 490 U.S. at 246, 109 S.Ct. 1775. In an ADEA ease, once a plaintiff has shown that an unfavorable employment decision was made at least in part because of age, the burden shifts to the employer to prove that it would have taken the same adverse action even if illegal factors had not entered into its decision. See Mills v. First Fed. Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 840-41 (7th Cir.1996) (analyzing direct evidence of discrimination in an ADEA case).

The lead opinion defines direct evidence as that “which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Slip Op. at 11 (quoting Weberg v. Franks, 229 F.3d 514, 522 (6th Cir.2000) (emphasis added)). When summary judgment is sought by the employer, that is precisely what we are supposed to do-believe the employee’s direct evidence and all favorable inferences that flow from it. Summary judgment is appropriate only if no rational trier of fact could find for the plaintiff, even if this direct evidence is believed. In this case, Wexler has proffered statements by the officers of White’s that, if believed, suggest that age was a motivating factor in their adverse employment decision. Nevertheless, the lead opinion inappropriately adopts White’s’s explanation of these statements, while ignoring the inferences in favor of Wexler that can be drawn from the evidence produced.

In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), Hopkins was denied a partnership position after a long review process in which the partners’ input on each candidate was solicited. The remarks of some partners, when considered in the context of common stereotypes about women, indicated that at least some of the voting partners’ actions were motivated by her gender. For example, she was criticized for “unfeminine” characteristics such as her clothing, the use of profanity, and her abrasive style. See id. at 234-36, 109 S.Ct. 1775. Athough the factual bases of these criticisms were not challenged by Hopkins, it was the veiled connection between these perceived character traits and her gender *873that led a majority of the Court to conclude that there was sufficient evidence that gender was a motivating factor in her being denied a partnership. See id. at 251, 109 S.Ct. 1775.

Thus, criticisms of an employee’s performance, even if true, which are linked to stereotypes associated with a plaintiffs membership in a protected class, fit squarely within the rubric of a mixed-motive analysis. In Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325 (6th Cir.1994), this court “expressly spelled out the[se] considerations as a formal standard” that must be applied when analyzing direct evidence of an illegal discriminatory motive:

In age discrimination cases, this court has examined statements allegedly showing employer bias by considering whether the comments were made by a decision maker or by an agent within the scope of his employment; whether they were related to the decisionmaking process; whether they were more than merely vague, ambiguous, or isolated remarks; and-whether they were proximate in time to the act of termination.

Id. at 1330; see also Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir.2000) (holding that a supervisor’s inclusion of a reference to the race of a plaintiff in a discipline report created a genuine issue of material fact regarding the employer’s intent, even though the supervisor also stated in his deposition that he would have made the same employment decision irrespective of her race).

The lead opinion fails to recognize this precedent, and makes the contrary and legally unsupported statement that “[t]he mere recognition, by an employer, of the universally known truth that certain individuals (as opposed to every individual in the protected age-defined category) may experience declining personal capabilities as they approach the traditional age of retirement is not illegal.” Slip Op. at 14. In other words, according to the lead opinion,. the stereotype that peoples’ capabilities decline with age is simply a “universally known truth,” and, if mentioned in the context of an adverse employment decision, does not indicate a motivation that violates the ADEA. This assertion is contrary to the last quarter-century of antidis-crimination law. Notably, the Supreme Court has disagreed with the lead opinion’s characterization of the aforementioned “universally known truth” when it declared that

Congress’ promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes. Although age discrimination rarely was based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsupported by objective fact.... Moreover, the available empirical evidence demonstrated that arbitrary age lines were in fact generally unfounded and that, as an overall matter, the performance of older workers was at least as good as that of younger workers.

Hazen Paper Co. v. Biggins, 507 U.S. 604, 610-11, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (citations and internal quotations omitted). Furthermore, the association of these stigmatizing beliefs with an adverse employment decision serves to create an issue of fact as to whether the employer was motivated, at least in part, by discriminatory intent based on those stereotypes.

In a mixed-motive case such as this one, then, we are asked to determine whether the officers’ statements, if believed, expose an adherence to a stigmatizing belief about older employees that was a motivating factor in the decision of White’s to demote Wexler. Wexler has produced a series of statements by Schiffman and Lively which, *874if believed, indicate that age, at least in part, motivated their decision to demote him. The most damaging of these statements were those made by Schiffman and Lively on the very day of Wexler’s demotion. On that date, Schiffman was quoted as having asked: “You are 60 years old aren’t you?” After Wexler responded that he was in fact 59, Schiffman continued: ‘Well, we both have been in the business 117 years. You don’t need the aggravation, stress of management problems, taking care of all these sales peoples’ problems that keep calling you to the phone all day everyday.” Schiffman has admitted making these statements, but discounted them as attempts to soften the blow to Wexler. Lively chimed in by telling Wex-ler that “they were going to really be grinding their managers in the future, and if they had to sweep the floors or stay there until 11:00 p.m., they would do so.” According to Wexler, Lively said “it was stuff I don’t think you’d want to be doing.”

These statements made to Wexler at the time he was being demoted permit the inference that both the president and vice-president of White’s adhered to the stereotype that an older manager cannot perform in a high-stress management position where the company would be pushing him to work harder and do more. These are the very stigmatizing beliefs of an under-performing older worker, as detailed in Hazen Paper, that the ADEA was intended to target. Nevertheless, instead of drawing inferences favorable to Wexler from these statements, the lead opinion elects to believe White’s’s explanation of them, and imposes its own credibility assessment on both parties. The widely differing perspectives on what these statements meant illustrate a classic example of a genuine issue of material fact, i.e., did White’s hold stereotypical beliefs about the capabilities of older managers that motivated its decision to demote Wexler?

Instead of viewing the evidence most favorably for Wexler, the lead opinion simply states that these statements “did not evince prejudice, bigotry, or ill will towards the elderly, nor did they betray any adverse judgment(s) concerning Wexler’s suitability for his managerial assignment which may have germinated from negative stereotypical assumptions against persons of advancing years.” Slip Op. at 13-14. This conclusion not only ignores the fact that Rule 56 requires us to view all evidence in favor of the nonmoving party, but it also is based on an unwarranted deference to the “business judgment” defense.

Furthermore, under the Cooley standard, a factfinder could reasonably conclude that these statements evinced a discriminatory intent. They were made by the decision-maker, indicated a belief that a person’s capabilities as a store manager diminish with age, and were directed at Wexler in the very meeting during which his demotion was announced. Indeed, all of the Cooley factors are satisfied. See Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir.1994) (holding that comments made by a supervisor about putting elderly people in concentration camps and feeling uncomfortable around older people were relevant and admissible to show employer bias).

The lead opinion concludes its application of Rule 56 by emphasizing the “same-actor” inference in favor of White’s, while ignoring any other inferences that could be drawn from the evidence in favor of Wexler. In Buhrmaster v. Overnite Transportation Co., 61 F.3d 461 (6th Cir.1995), this court adopted the same actor inference, “which allows one to infer a lack of discrimination from the fact that the same individual both hired and fired the employee.” Id. at 463. Although it is undisputed that a finder of fact is permitted to draw this inference, it is in no way a mandatory *875one, and it may be weakened by other evidence. See id. at 464 (describing how the length of time between hiring and firing an employee may weaken the same-actor inference). Furthermore, the facts in Bukrmaster did not contain any direct evidence of stereotyping from which an illegal intent could be proven. The evidence against the employer, in fact, was rather weak.

Finally, and most fatal to the lead opinion’s application of the same-actor inference, is the fact that this court in Buhr-master was reviewing a jury verdict and jury instructions. Indeed, rather than weighing the evidence, as the lead opinion does here, this court in Buhrmaster was simply evaluating the rationality of the jury’s verdict, and whether or not the jury could legally apply such an inference.

Anticipating the critique that the same-actor inference is being prematurely applied in the present case, the lead opinion cites a case from the Fourth Circuit, Proud v. Stone, 945 F.2d 796 (4th Cir. 1991), in which that court urged early dismissal of same-actor inference cases. What the lead opinion fails to point out, however, is that in Proud, as in Buhrmas-ter, the evidence against the defendant was much weaker than in the case at bar. Furthermore, the Proud court emphasized that the same-actor inference is applicable to the pretext analysis, and the plaintiff had proffered no other proof to suggest that the employer’s nondiscriminatory reason was a sham. Proud, 945 F.2d at 798. Thus, the same-actor inference in an evi-dentiary vacuum led the court to direct a verdict against Proud at the close of the plaintiffs proof at trial.

The difference between Proud and the case at bar is dramatic. Unlike Proud, in which the same-actor inference was applied to the pretext stage of the McDonnell Douglas burden-shifting analysis, Wexler has presented direct evidence of an impermissible motive, thus obviating his burden of proving pretext. Furthermore, Wexler’s case, on the merits, is much stronger than the facts presented in Proud. The lead opinion .nevertheless suggests that we should turn this permissive inference into a mandatory one to be applied in favor of a summary-judgment movant. Such a misapplication of a permissive inference is wholly contrary to the Supreme Court’s opinion in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Edüd 202 (1986).

Not only does the lead opinion apply inferences in the opposite direction from that required by Anderson, it also ignores crucial inferences in favor of Wexler that can be drawn from the evidence. For example, according to Schiffman, the primary reason for Wexler’s demotion was the flagging profits at the Morse Road location of White’s. Yet Alvie Crank, a subsequent and much younger manager, was retained despite similarly dismal profits. I recognize, as the lead opinion points out, that Crank was not the manager who directly replaced Wexler, and that the intervening replacement was terminated only five months after Wexler was demoted. Nonetheless, the lead opinion dismisses Crank’s retention as the store’s manager, calling it “entirely non-probative.” Although the evidence regarding Crank is not as powerful as it would have been had he directly replaced Wexler, that does not diminish the fact that White’s’s willingness to retain Crank in the face of flagging sales calls into question Schiffman’s veracity when he claimed that he would. have retained Wexler but for the revenue problems. This is an inference that we must, at summary judgment, draw in favor of the nonmovant. Without any supporting authority, however, the lead opinion dismisses this evidence in a footnote. See Slip Op. at 15-16, n. 11.

*876B. Sufficient evidence exists to support a rational trier of fact’s conclusion that Wexler established a prima fa-cie case of age discrimination, and that the nondiscriminatory reason proffered by White’s was pretextual

Although I believe that this case should be analyzed under the Price Waterhouse mixed-motive framework, I also believe that there is sufficient evidence to support a rational trier of fact’s conclusion that Wexler satisfied the McDonnell Douglas burden-shifting analysis. Both the lead and concurring opinions correctly point out the phases of the burden-shifting regime, but they erroneously conclude that Wexler would be unable to establish either a prima facie case or a showing that the nondiscriminatory explanation for the demotion proffered by White’s was pretextual. I believe that neither of these conclusions is compelled by the record, particularly at the summary judgment phase of the case.

1. The prima facie case

Both opinions conclude that Wexler’s case must fail because no rational trier of fact could find that Wexler was qualified for the position as store manager, thus failing the third requirement of a prima facie case. See Kline v. Tenn. Valley Auth., 128 F.3d 337, 349 (6th Cir.1997) (outlining the four factors of a prima facie case). This conclusion is flawed for two reasons.

First, the nondiscriminatory explanation proffered by White’s is the dismal revenues at the Morse Road location during Wexler’s tenure as store manager. The lead and concurring opinions suggest that this is enough to establish that Wexler failed to satisfy his initial burden under McDonnell Douglas. We may not, however, consider White’s’s alleged nondiscriminatory reason for demoting Wexler when analyzing the prima facie case. To do so would short circuit the burden-shifting analysis and deprive Wexler of the opportunity to show that the nondiscriminatory reason was pretextual. See Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660-61 (6th Cir.2000) (“[W]hen assessing whether a plaintiff has met her employer’s legitimate expectations at the prima facie stage of a termination case, a court must examine plaintiffs evidence independent of the nondiscriminatory reason ‘produced’ by the defense as its reason for terminating plaintiff.”).

Second, there is insufficient proof in the record for us to conclude that Wexler was unqualified, as a matter of law, because of the store’s low revenues. The district court cites McDonald v. Union Camp Corp., 898 F.2d 1155 (6th Cir.1990), for the rule that a qualified individual must perform “at a level which met his employer’s legitimate expectations.” Id. at 1160 (quotations omitted). In McDonald, however, the plaintiff conceded that he was not performing at this level. See id. In contrast, Wexler disputes the contention that he was unqualified. He argues that the drop in sales was due to factors other than his performance and, further, he proffers evidence challenging the criticisms of his skills that White’s now raises.

In Godfredson v. Hess & Clark, Inc., 173 F.3d 365 (6th Cir.1999), a manager’s employment was terminated when the portion of the business over which he had control was dropped due to low revenue. The employer, Hess & Clark, argued that the decrease in revenue was enough to find that the manager was not “meeting his employer’s legitimate expectations.” Id. at 372. Nevertheless, because the terminated manager had proof that he was not solely responsible for the drop in revenue, this court held that there was sufficient evidence to create a genuine issue of mate*877rial fact on the qualifications prong of the prima facie case. See id. at 372. Godfred-son’s analysis of this issue directly applies to the case at bar:

Whether Godfredson was so qualified at the time of his termination is a close question. Certainly, [the] testimony [of the manager who terminated Godfred-son] and the significant losses suffered by Hess & Clark ... support a finding that Godfredson was not meeting his employer’s legitimate expectations. [The] testimony [of the president of Hess & Clark], however, reveals that Godfredson was not necessarily the sole party at fault for this failure. Moreover, Godfredson worked satisfactorily at Hess & Clark for years prior to the pet food business’s failure, and one can infer that he would not have been given significant responsibility ... if his performance had been unacceptable. For these reasons, we agree with the district court that Godfredson had raised a genuine issue of material fact as to this issue.

Id. Nevertheless, both the lead and concurring opinions ignore this precedent and conclude that Wexler was unqualified as a matter of law.

2. Pretext

The lead and concurring opinions also conclude that, assuming arguendo that the prima facie case was satisfied, Wexler would be unable to prove to any reasonable trier of fact that the nondiscriminatory reason proffered by White’s was pretex-tual. This analysis is also flawed.

To prove pretext, a plaintiff must show that the reason given by the employer had no basis in fact, did not motivate the discharge, or was never used in the past to discharge an employee. See Godfredson v. Hess & Clark, 173 F.3d 365, 373-74 (6th Cir.1999). White’s maintains that the primary reason for demoting Wexler was that the store was experiencing low revenue. Although a rational trier of fact might believe this explanation, there is sufficient contrary evidence that would support the conclusion that this reason was pretextual. The retention of Alvie Crank as Wexler’s replacement-once-removed, for example, severely undermines the explanation that store revenue is critical to a store manager’s job security. Nonetheless, the lead opinion dismisses the evidence regarding Crank as “non-probative” and adopts the explanation of White’s as to why Crank was retained. This conclusion, which is based on the lead opinion’s credibility determination and weighing of the evidence, again ignores the standard of review that we must apply at summary judgment.

Finally, Wexler produced evidence indicating that the decline in revenue was not his fault. He pointed to evidence showing that even the management of White’s knew that their advertising strategy had damaged sales throughout the chain. If believed, a trier of fact could reasonably infer that the justification for the demotion had no basis in fact. This, plus the age-related statements of Sehifftnan and Lively, would permit a reasonable factfinder to infer that impermissible considerations had tainted their assessment of Wexler’s performance as the store manager.

IY. CONCLUSION

Wexler, in my opinion, has proffered sufficient evidence to raise genuine issues of material fact in the case before us. I would therefore reverse the district court’s grant of summary judgment, even if as appellate judges we might think that the weight of the evidence favors White’s. Because I believe that my colleagues have usurped the jury’s function in this case, I respectfully dissent.