United States District Court, N.D. Ohio, Eastern Division
SARA LIOI, UNITED STATES DISTRICT JUDGE
the Court is the motion of defendant TMI Hospitality, L.P.
(“defendant” or “TMI”) for summary
judgment pursuant to Fed.R.Civ.P. 56. (Doc. No. 50
[“Mot.”].) Plaintiff Jeanne DiOrio
(“plaintiff” or “DiOrio”) opposed the
motion (Doc. No. 56 [“Opp'n”]), and defendant
replied. (Doc. No. 57 [“Reply”]). For the reasons
that follow, defendant's motion is granted.
was employed by defendant from March 2007 until February 6,
2015 as the director of sales at the Youngstown/Boardman
(Ohio) Residence Inn, Fairfield Inn, and Hampton Inn. (Doc.
No. 1 (Complaint [“Compl.”]) ¶ 7.) Plaintiff
alleges that in 2014, defendant's sales performance plan
and goals for her sales territory were unreasonable based on
business conditions in the area, but plaintiff performed as
well as younger colleagues. (Id. ¶¶ 9,
14.) On December 22, 2014,  plaintiff filed a charge of age
discrimination against defendant with the Equal Employment
Opportunity Commission (“EEOC”). (Id.
¶ 15.) On January 12, 2015, plaintiff was placed on a
second sales performance plan, and she was required to meet
the criteria set forth therein or face termination.
(Id. ¶ 16.)
claims that defendant terminated her on February 6, 2015 for
the pretextual reason that she failed to meet her performance
goals, but the real reason was age discrimination and
retaliation in violation of the Age Discrimination in
Employment Act (“ADEA”), 9 U.S.C. §§
623 (a)(1), et seq. (counts I (id.
¶¶ 23-28) and II (id. ¶¶ 29-34),
respectively). Defendant moves for summary judgment on
both counts, arguing that the undisputed facts show that
plaintiff was terminated due to poor performance, and not
because of her age or in retaliation for filing an EEOC
Summary Judgment Standard of Review
judgment is appropriate where “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). A
fact is material if its resolution affects the outcome of the
lawsuit under the governing law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. If a
reasonable jury could return a verdict for the nonmoving
party, then summary judgment is not appropriate. Id.
moving party must provide evidence to the court which
demonstrates the absence of a genuine dispute as to any
material fact. Once the moving party meets this initial
burden, the opposing party must come forward with specific
evidence showing that there is a genuine issue for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477
U.S. at 250. It is the nonmoving party's duty to point
out specific facts in the record that create a genuine issue
of material fact; the trial court does not have a duty to
search the record “to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989) (citing Frito-Lay, Inc. v. Willoughby, 863
F.2d 1029, 1034 (D.C. Cir. 1988)); Fulson v. City of
Columbus, 801 F.Supp. 1, 4 (S.D. Ohio 1992) (citation
nonmoving party may oppose a summary judgment motion
“by any of the kinds of evidentiary material listed in
Rule 56(c), except the mere pleadings
themselves[.]” Celotex, 477 U.S. at 324. The
Court must view all facts and evidence, and inferences that
may be reasonably drawn therefrom, in favor of the non-moving
party. United States v. Diebold, Inc., 369 U.S. 654,
655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). General averments or
conclusory allegations of an affidavit do not create specific
fact disputes for summary judgment purposes. See
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,
888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
judgment requires that a plaintiff present more than a
scintilla of evidence to demonstrate each element of a prima
facie case.” Garza v. Norfolk S. Ry. Co., 536
F. App'x. 517, 519 (6th Cir. 2013) (citing Van Gorder
v. Grand Trunk W. R.R., 509 F.3d 265, 268 (6th Cir.
2007)). “‘The mere existence of a scintilla of
evidence in support of the [nonmoving party's] position
will be insufficient; there must be evidence on which the
jury could reasonably find for the [nonmoving
party].'” Street, 886 F.2d at 1477
(quoting Anderson, 477 U.S. at 252).
district court's review on summary judgment is a
threshold inquiry to determine whether there is the need for
a trial due to genuine factual issues that must be resolved
by a finder of fact because those issues may reasonably be
resolved in favor of either party. Anderson, 477
U.S. at 250. Put another way, this Court must determine
“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.” Id. at 251-52; see also
Wexler v. White's Fine Furniture, Inc., 317 F.3d
564, 578 (6th Cir. 2003).
[Summary judgment is required] against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial. In such a
situation, there can be no genuine issue as to any material
fact, since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial. The moving
party is entitled to judgment as a matter of law because the
nonmoving party has failed to make a sufficient showing of an
essential element of [his] case with respect to which [he]
has the burden of proof.
Celotex, 477 U.S. at 322-23 (internal quotation
marks and citation omitted).
ADEA Claim (Count I)
plaintiff will survive summary judgment if she presents
direct evidence that the adverse employment action was taken
because of her age. Manzer v. Diamond Shamrock Chems.
Co., 29 F.3d 1078, 1081 (6th Cir. 1994), overruled
on other grounds by Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Direct
evidence of discrimination is evidence that, if believed,
proves a fact at issue without an inference or presumption.
Rowan v. Lockheed Martin Energy Sys. Inc., 360 F.3d
544, 548 (6th Cir. 2004) (citations omitted).
opposition to defendant's motion, plaintiff cites two
statements made by one of her supervisors, Ashley LaCourse
(“LaCourse”),  that plaintiff claims constitute direct
evidence of age discrimination. (Opp'n at 1409.) The
first occurred during a four hour meeting with LaCourse on
December 15, 2014 regarding plaintiff's first sales
action plan and “writeup.” Plaintiff states that
at the meeting, LaCourse told plaintiff that “we were
bought out by Starwood, and those people are really, really
young, like 25, 26. I know I'm young. I'm 32. But
you, you, Jeanne, better be all about youthfulness and
energy.” (Doc. No. 50-2 (Deposition of Jeanne DiOrio
[“DiOrio Dep.”]) at 684-85 (289-91); Doc. No. 55-5 at
1346-47.) With respect to the second statement, LaCourse told
plaintiff over drinks after a grand opening in late 2012 or
early 2013, and “numerous times, ” that plaintiff
reminded her of her grandmother. (DiOrio Dep. at 685-86
does not recall telling DiOrio that she should be youthful
and energetic,  but does recall telling plaintiff that
plaintiff reminded LaCourse of her grandmother. (Doc. No.
55-1 (Deposition of Ashley LaCourse [“LaCourse
Dep.”]) at 1311-12.) LaCourse explained that DiOrio
“has the most beautiful jewelry. My [grandmother] has
the best jewelry. So I said it reminded me of my nanny
because my nanny has fabulous jewelry. I always admired
Jeanne's jewelry.” (Id. at 1312.)
statement constitutes direct evidence of age discrimination
because neither necessarily supports an inference that age
was the reason for plaintiff's termination.
Rowan, 360 F.3d at 548. “Only the most blatant
remarks, whose intent could be nothing other than to
discriminate on the basis of age […] constitute direct
evidence of discrimination.” Suslovic v. Black
& Decker, Inc., No. 1:06CV116, 2007 WL 2153277 at *6
(N.D. Ohio July 23, 2007) (quoting Carter v. City of
Miami, 870 F.2d 578, 581-82 (11th Cir. 1989)). Moreover,
“[i]f discriminatory statements are offered as direct
evidence of discrimination, those statements ‘must come
from [the] decisionmakers' responsible for the adverse
employment decision. ‘Statements by nondecisionmakers,
or statements by decisionmakers unrelated to the decisional
process itself cannot suffice to satisfy the plaintiff's
burden[.]'” Richardson v. Wal-Mart Stores,
Inc., 836 F.3d 698, 703 (6th Cir. 2016) (quoting
Geiger v. Tower Automotive, 579 F.3d 614, 620-21
(6th Cir. 2009)).
Mangus (“Mangus”) was regional manager/director
of operations and plaintiff's supervisor. (Doc. No. 55-2
(Deposition of Dave Mangus [“Mangus Dep.”]) at
1320 (6-8).) Magnus testified that he made the decision to
terminate plaintiff after consulting LaCourse,  Steve Martodam
(“Martodam”) (defendant's regional vice
president at the time), and human resources. (Doc. No. 55-2
(Deposition of Dave Mangus [“Mangus Dep.”]) at
1323 (19-20).) Plaintiff testified that she believed Martodam
made the decision to terminate her with input from LaCourse.
(DiOrio Dep. at 689-90 (307-10).) Plaintiff does not contend
that Mangus or Martodam made age-related statements. Even if
LaCourse could be characterized as a
“decisionmaker” because she was consulted by
Mangus and/or Martodam regarding plaintiff's termination,
neither of LaCourse's statements relate to the decisional
process to terminate plaintiff and, thus, are insufficient to
establish direct evidence of age discrimination.
Richardson, 836 F.3d at 703.
evidence is not required to prove age discrimination.
Plaintiff “may establish a violation of the ADEA by
either direct or circumstantial evidence.”
Geiger, 579 F.3d at 620 (citation omitted).
Plaintiff will survive summary judgment if she can show a
genuine issue of material fact regarding circumstantial
evidence of age discrimination under the familiar three-step
burden shifting analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973) and Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981). See Chappell v. GTE Prods. Corp., 803 F.2d
261, 265 (6th Cir. 1986) (“The evidentiary guidelines
governing proof in discrimination cases were first set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973) (construing Title VII), and
the same analysis is generally applied in ADEA cases.”)
(citing Coburn v. Pan Am. World Airways, Inc., 711
F.2d 339, 342 (D.C. Cir. 1983)); Geiger, 579 F.3d at
622 (applying McDonnell Douglas to circumstantial
evidence claims in ADEA cases).
the McDonnell Douglas analysis, the “burden of
production rests first on the plaintiff to establish [a]
prima facie case, then on the defendant to articulate some
legitimate non-discriminatory reason for the employee's
[termination], and finally again on the plaintiff to show
that the defendant's reasons were pretextual.”
Chappell, 803 F.2d at 265 (quotation marks,
citations and italics omitted). Although the burden of
production shifts between plaintiff and defendant, the burden
of persuasion remains at all times with the plaintiff.
Id. (citing Burdine, 450 U.S. at 254-55).
order to satisfy that burden, plaintiff must show that her
age was the “but for” cause of the
defendant's adverse employment action. Blizzard v.
Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012)
(citing Gross, 557 U.S. at 177). “[I]t is not
sufficient for the plaintiff to show that age was a
motivating factor in the adverse action; rather, the
ADEA's ‘because of' language requires that a
plaintiff ‘prove by a preponderance of the evidence
(which may be direct or circumstantial) that age was the
‘but for' cause of the challenged employer
decision.'” Scheick v. Tecumseh Pub.
Schs., 766 F.3d 523, 529 (6th Cir. 2014) (quoting
Gross, 557 U.S. at 177-78) (further citation
forth a prima facie case of age discrimination, plaintiff
must establish four well-known elements: 1) that she was a
member of a protected class; 2) that she was discharged; 3)
that she was qualified for the position held; and 4) that she
was replaced by someone outside of the protected class.
Geiger, 579 F.3d at 622 (citations omitted).
Defendant does not contest elements 1, 2 and 4. Plaintiff was
61 years old when she was terminated by defendant on February
6, 2015, and was replaced by Sheree Moore
(“Moore”), who was 38 years old at the time.
(Doc. No. 55-4 (Deposition of Sheree Moore [“Moore
Dep.”]) at 1342 (4).) Defendant does contend, however,
that plaintiff was not qualified for the position of director
of sales because she was performing poorly, and
qualifications are measured at the time of termination. (Mot.
argues in opposition that plaintiff has a bachelor's
degree and prior sales experience, and was hired by a
competitor after she was terminated by defendant. (Opp'n
at 1410; DiOrio Dep. at 679-80 (269-70).) Plaintiff's
qualifications appear to exceed the requirements listed in
the job description for director of sales: “One-year
certificate from college or technical school; or three to six
months related experience and/or training; or equivalent
combination of education or experience.” (Doc. No. 50-3
at 755-56.) Viewing the evidence in a light most favorable to
the plaintiff, the Court will assume for the purpose of this
analysis that plaintiff was qualified for the position of
director of sales, and has ...