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DiOrio v. TMI Hospitality, L.P.

United States District Court, N.D. Ohio, Eastern Division

October 25, 2017




         Before 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[1] [“Opp'n”]), and defendant replied. (Doc. No. 57 [“Reply”]). For the reasons that follow, defendant's motion is granted.

         I. BACKGROUND

         Plaintiff 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, [2] 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.)

         Plaintiff 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).[3] 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 charge.


         A. Summary Judgment Standard of Review

         Summary 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.

         The 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 omitted).

         The 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).

         “Summary 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).

         The 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).

         B. ADEA Claim (Count I)

         1. Direct evidence

         An ADEA 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).

         In opposition to defendant's motion, plaintiff cites two statements made by one of her supervisors, Ashley LaCourse (“LaCourse”), [4] 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)[5]; 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 (292-95).)

         LaCourse does not recall telling DiOrio that she should be youthful and energetic, [6] 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.)

         Neither 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)).[7]

         Dave 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, [8] 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.

         2. Circumstantial evidence

         Direct 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).

         Under 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).

         In 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 omitted).

         Prima facie case

         To set 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. at 609-10.)

         Plaintiff 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 ...

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