Opinion
Case No. 4:00-CV-67
April 30, 2001
OPINION
Plaintiff, John E. Hill ("Hill"), filed suit against his former employer, Pharmacia Upjohn Company ("PUC" or the "Company"), in the Kalamazoo County Circuit Court alleging that PUC breached Hill's employment contract by terminating him and violated the Michigan Elliott-Larsen Civil Rights Act ("Elliott-Larsen Act"), M.C.L. §§ 37.2101 to .2804, by terminating him based on his age. PUC removed the case to this Court on April 27, 2000, on the basis of diversity jurisdiction. Now before the Court is PUC's motion for summary judgment.
Facts
Hill became employed with PUC on February 1, 1975, as a Sales Representative in the Agricultural Division. Hill remained in that position for approximately 23 years, until December 15, 1999. Until 1985, Hill was responsible for selling over-the-counter products for all animal species (including dairy, swine, beef, and poultry) except companion animals. In 1985, Hill became responsible for selling over-the-counter and prescription products for both farm and companion animals when the two sales forces were combined. In the mid-1990's, the Company formed "Strategic Business Units" ("SBU"), and Hill was assigned to the Pork SBU. Hill's sales territory for that SBU consisted of Michigan, a portion of Northern Indiana, and a few counties in Pennsylvania. During his tenure with PUC, Hill received numerous sales awards and was recognized as an excellent producer. In fact, out of thirteen sales representatives in the Pork SBU, Hill was second in total direct sales. (1999 Sales Allocation Report for Swine SBU, Pl.'s Br. Opp'n Ex. 1.)
At that time, Hill's employer was Upjohn Company. Upjohn subsequently became PUC as a result of the merger between Upjohn and Pharmacia, Inc.
On September 21, 1999, Hill was informed by Wayne Jones ("Jones"), the Director of the Pork SBU, and Jeff Hay ("Hay"), the Pork SBU Training Manager, that management had decided to eliminate Hill's territory due to changes in the market, such as a decrease in the number of swine producers. (Hill Dep. at 76, Def.'s Br. Supp. Ex. A.) At that time, Hill was 53 years old. Hill's territory was reassigned to Larry Willsey and Bill Greve, who were then 60 and 61 years old, respectively. (Pl.'s 2d Br. Opp'n at 10; Hill Dep. at 252-53.) At or about the same time, the Pork SBU management decided to eliminate the territory of Shaun Greiner, another sales representative in the Pork SBU, whose territory covered part of Iowa. (Hill Dep. at 86-87.) Greiner was in his thirties when his territory was eliminated. (Id. at 86.)
In the September 21, 1999, meeting with Hill, Jones and Hay informed Hill that he had the opportunity to take over the Nebraska territory for the Pork SBU. (Id. at 79-80). In that position, Hill would have received the same compensation and benefits, retained the same title, and performed the same duties. (Id. at 84-85.) The only difference was that Hill would have had to relocate to Nebraska. During the meeting Hill raised the issue of availability of the Ohio territory for the Companion Animal SBU, although he stated that "it wouldn't be [his] first choice" because he preferred working with larger animals. (Id. at 93-94.) However, following the meeting, Hill remained interested in the Companion Animal position. In addition to the Nebraska and Ohio positions, a third option of a position as the sales representative in the Dairy SBU Pennsylvania territory became available to Hill. (Id. at 148-50.) Like the Nebraska position, Hill's salary, benefits, job responsibilities, and title in the Pennsylvania position would have been the same as his Pork SBU position. (Id. at 171-72.) Ultimately, Hill decided to accept the Pennsylvania position in the Dairy SBU.
Following the September 21, 1999, meeting, Jones told Hill not to contact his customers regarding the reassignment of Hill's territory until the specifics were determined. (Id. at 266.) However, because Hill had formed close personal relationships with many of his customers over the years and wanted to make sure that they were informed of what was happening to him and who would be taking over for him as PUC's sales and service representative, Hill prepared a draft letter to customers and submitted it to Jones for his review. (Id. at 200-01.) Jones told Hill that the letter was unacceptable. Hill prepared a second draft, which Jones again rejected.
On November 25, 1999, shortly before Hill was scheduled to begin his new position in the Dairy SBU, Hill sent an e-mail to several individuals, including friends and customers. The e-mail, titled "Survival!" (the "Survival e-mail"), mentioned PUC's decision to reassign Hill's territory and elaborated on his decision to accept the Pennsylvania job. In particular, Hill wrote,
There is a factual dispute regarding whether one of the recipients worked for a competitor of PUC.
Whether or not the decision from "management" makes any sense at all, the decision was to "eliminate" or "reallocate" my sales territory and offer me the "opportunity" to relocate to a sales territory in Nebraska. Once the shock and "why me" wore off, I decided that I would have to deal with this . . .
I just hope and pray that others within the unit are not subjected to the same kind of treatment that had befallen me (although it hasn't been that terrible, compared to what my Haitian friends go through on a daily basis)! In any event, I suspect that I will live in or around the Pittsburgh area. Carol, the cats and the house will remain in Richland.
(E-mail from Hill of 11/25/99, Def.'s Br. Supp. Ex. C.) In his deposition, Hill testified about his reasons for sending the e-mail:
I was extremely frustrated at that point. You know, I felt like I had made — I initiated, I had put together what I felt was a fair and informative letter. You know, I'd always been trained, I'd always been encouraged to be proactive throughout my career. I'd always been asked and encouraged and told by my supervisors that I should take initiative on things. Obviously, in an appropriate manner. I felt this was no different.
(Hill Dep. at 205-06.)
Hill did not inform Jones or other management in the Pork SBU that he had sent the e-mail, in spite of Jones' request that Hill not contact customers. In fact, after Hill sent the Survival e-mail, he submitted a third draft of a letter to management for review. Hill was told that the third draft was unacceptable and that the Company would prepare a letter for Hill to send out. ( Id. at 202-04.) On or about December 3, 1999, after receiving complaints from other sales representatives within the Pork SBU, Jones learned that Hill had sent the Survival e-mail out to other members of the Pork SBU. (E-mail from Jones to Bryant of 12/3/99, Def.'s Br. Supp. Ex. D.) Shortly thereafter, Hill was placed on administrative leave pending an investigation into the matter. (Hill Dep. at 193-94.) On December 15, 1999, PUC terminated Hill's employment for violating PUC's Gross Misconduct Policy contained in PUC's Employee Guide to Human Resources Practices ("Employee Guide"), based on his act of sending the "survival" e-mail to PUC customers.
Motion Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Id. at 248, 106 S.Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. Id. at 251, 106 S.Ct. at 2511 (citing Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867 (1872)).
A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with "concrete evidence" that there is a genuine issue of material fact for trial. Id.; Frank v. D'Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the nonmoving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)).
Discussion
Hill alleges two claims against PUC. First, Hill contends that PUC breached its "just cause" employment contract with Hill when PUC terminated him for sending the "survival" e-mail. Second, Hill alleges that PUC discriminated against him on the basis of age when it (i) eliminated and reassigned his territory to other representatives; (ii) refused to hire him for the Companion Animal position; and (iii) terminated him from the Dairy SBU position.
I. Breach of Contract
The starting point for evaluating a claim of breach of a "just cause" employment contract is the principle that employment contracts for an indefinite duration are presumed to be terminable at the will of either party for any reason or no reason at all. Rood v. Gen. Dynamics Corp., 444 Mich. 107, 116-17, 507 N.W.2d 591, 597 (1993) (citing Lynas v. Maxwell Farms, 279 Mich. 684, 687, 273 N.W. 315, 316 (1937)). The presumption is a rule of construction rather than a substantive limitation. Id. at 117, 507 N.W.2d at 597. A plaintiff may overcome the presumption "with proof of either a contract provision for a definite term of employment, or one that forbids discharge absent just cause." Lytle v. Malady, 458 Mich. 153, 164, 579 N.W.2d 906, 911 (1998). There are two methods by which a plaintiff may show that the employer's ability to discharge at will is contractually limited: (1) by showing an express agreement based upon either explicit promises or implied in fact promises; and (2) through the employer's policies and procedures which instill "legitimate expectations" of job security in the employee. Rood, 444 Mich. at 117-18, 507 N.W.2d at 597-98; Bracco v. Mich. Technological Univ., 231 Mich. App. 578, 589-92, 588 N.W.2d 467, 472-74 (1998) (discussing Toussaint v. Blue Cross Blue Shield of Mich., 408 Mich. 579, 292 N.W.2d 880 (1980)).
Hill relies only on the legitimate expectations theory enunciated inToussaint v. Blue Cross Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980). The legitimate expectations theory is not rooted in traditional contract analysis, but rather finds support in the notion that employer policies and procedures relating to employee discharge should be judicially enforced because they "tend to enhance the employment relationship and encourage an `orderly, cooperative and loyal work force' for the ultimate benefit of the employer." Rood, 444 Mich. at 137-38, 507 N.W.2d at 606 (quoting Toussaint, 408 Mich. at 613, 292 N.W.2d at 892).
Analyzing a claim under the legitimate expectations theory involves a two-step inquiry. First, a court must ask "what, if anything, the employer has promised." Id. at 138, 507 N.W.2d at 606 (italics in original). To be enforceable as a promise, a policy statement must be "clear and specific" and must relate to "employee discharge." Id. at 140, 507 N.W.2d at 607. In addition, the policy must amount to a promise. "For instance, an employer's policy to act or refrain from acting in a specified way if the employer chooses is not a promise at all." Id. at 139, 507 N.W.2d at 607 (italics in original). Second, if the court determines that a promise has been made, it must then ask "whether the promise is reasonably capable of instilling a legitimate expectation of just-cause employment in the employer's employees." Id.
It is clear from cases applying the legitimate expectations theory of wrongful discharge law that each case depends on the specific language of the policy at issue. However, the Court notes that a few generalizations may be drawn from the cases addressing the legitimate expectations theory. First, a statement in an employee manual expressly disclaiming any contractual relationship or reaffirming the employee's at-will status or the employer's right to discharge the employee for any reason is generally sufficient to defeat any claim of a legitimate expectation of just cause employment. See Lytle, 458 Mich. at 166, 579 N.W.2d at 911;Rowe v. Montgomery Ward Co., 437 Mich. 627, 649-50, 473 N.W.2d 268, 277 (1991); Biggs v. Hilton Hotel Corp., 194 Mich. App. 239, 241, 486 N.W.2d 61, 63 (1992) (per curiam). The reverse is not necessarily true. In other words, the absence of a statement in an employee manual that employment is at-will or that an employee may be discharged for reasons other than those set forth in the manual is not, without more, sufficient to rebut the presumption of at-will employment. See Cole v. Knoll, Inc., 984 F. Supp. 1117, 1130-31 (W.D.Mich. 1997); Biggs, 194 Mich. App. at 241, 486 N.W.2d at 63. Second, a mere promise of fairness to employees is insufficient to create a promise of just cause employment by the employer. Rood, 444 Mich. at 141, 507 N.W.2d at 607-08. Third, an employer's adoption of employee discipline procedures or disciplinary guidelines does not transform at-will employment into a just cause relationship. Dolan v. Continental Airlines, 454 Mich. 373, 388 388 n. 29, 563 N.W.2d 23, 30, 30 n. 29 (1997). Finally, "[a] nonexclusive list [in the employee manual] of common-sense rules of behavior that can lead to disciplinary action or discharge, clearly reserves the right of an employer to discharge an employee at will." Rood, 444 Mich. at 142, 507 N.W.2d at 608 (citing Bauer v. Am. Freight Sys., Inc., 422 N.W.2d 435, 438 (S.D. 1988)) (italics in original).
The policy statements at issue in this case fall somewhere between the extremes of affirming PUC employees' at-will status and promising just-cause employment. Nothing in the Employee Guide states that PUC employees remain at-will or that PUC can discharge employees for any reason. At the same time, there is no explicit statement that PUC employees will only be terminated for just cause. Hill relies on the following provisions from the Employee Guide as establishing a just cause relationship:
This Employee Guide will help you understand the Human Resource programs and practices that impact you as a United States based Pharmacia Upjohn employee.
Read this Guide in its entirety and keep it available for reference . . .
This is a resource to help you . . .
The company will treat employees with respect and fairness in its employee plans, activities, and operations . . . In directing the work of others, [management] will be fair, seek to understand employee issues and concerns, communicate well, and lead by example.
(Employee Guide at D010-11, Def.'s Br. Supp. Ex. E.) Hill also relies on the following provisions from PUC's Business Ethics Policy:
In conducting our business, we will:
• Deal honestly and in good faith with those within and outside the company who are affected by our actions;
• Respect the dignity and privacy of our fellow employees;
. . .
• Treat each other with mutual trust and respect, and provide an environment where individuals may question a company practice without suffering any disadvantage.
(Business Ethics Policy at D067, Def.'s Br. Supp. Ex. F.)
These statements amount to nothing more than general promises by PUC to treat its employees and others with respect and fairness. Rood holds that such promises, "without more, [are] too vague to judicially enforce."Rood, 444 Mich. at 141, 507 N.W.2d at 608. Nothing in these statements could reasonably be interpreted as a promise to discharge only for cause.
Hill also relies on PUC's performance management policy set forth in the Employee Guide. That provision states:
The performance management process provides you and your management a forum to regularly discuss expectations, your performance, and any issues or problems that need to be resolved for success. The discussions provide the opportunity for both positive and constructive feedback.
Performance is an important variable in determining your pay increases and in considering you for other jobs.
It is important to improve performance that does not meet expectations. Management will work with employees to clarify expectations and provide feedback and coaching to assist employees in improving performance; however, it is the employee's responsibility to improve.
Early discussions about improvement may or may not be formally documented. However, if performance does not improve following these discussions, the employee will be placed on formal warning status. Management will issue a formal, written document detailing the performance improvement needed and timelines for improvement. Warning status may last up to 6 months, but can be shorter. If performance has not improved during the warning period or the Company determines that satisfactory progress is not being made, the employee may be terminated
If improvement is made and the employee is removed from warning, but later performance reverts to below expectations, the process does not start over. The employee may be returned to the previous warning status or immediately discharged.
A warning remains in the employee's personnel file for three years from the expiration date.
(Employee Guide at D044.) The performance management policy arguably provides some support for Hill's claim because it sets forth a graduated procedure for addressing issues relating to unsatisfactory performance. According to the policy, performance review meetings are regularly conducted between management and employees. If performance problems are identified and do not improve following the informal meetings, the employee will be placed on formal warning status, which may last up to six months. A formal document outlining the improvement that must occur to improve performance will be prepared. If the employee's performance does not improve or if management determines that progress is not being made, the employee may be terminated.
PUC argues that the policy relates to performance issues rather than discipline. The Court disagrees because the language of the policy indicates that discipline in the form of warning status and, ultimately, termination, may be imposed for substandard performance. The policy does not define "performance" but does indicate that the policy covers "any issues or problems that need to be resolved for success." Thus, the policy could reasonably extend to purely "disciplinary" issues. In fact, in Renny v. Port Huron Hospital, 427 Mich. 415, 398 N.W.2d 327 (1987), the list of disciplinary violations and penalties in the employee handbook, which the court relied on in part as support for its conclusion that handbook created a legitimate expectation of just cause employment, stated: "The purpose of the program is to aid you in improving your performance." Renny, 427 Mich. at 430-31 n. 9, 398 N.W.2d at 335-36, n. 9. Nonetheless, the policy in this case is less detailed and formal than the disciplinary policy in Renny, which listed specific violations by categories based on the severity of the offense and assigned penalties to each class of violations. See id. Similarly, the policy at issue is far less formal and mandatory than the disciplinary procedure in Toussaint.See Toussaint, 408 Mich. at 651-62, 292 N.W.2d at 909-15.
In Dolan v. Continental Airlines, the Michigan Supreme Court found that the employer's policy manual did not give rise to a legitimate expectation of just cause employment, even though the manual contained a progressive disciplinary action policy. There is no indication in the opinion that the policy contained a statement affirming the employees' at-will status or reserving to the employer the right to terminate at-will. The policy in that case stated that its purpose was to "`allow an employee the opportunity to make necessary corrections in their performance.'" Dolan, 454 Mich. at 387, 563 N.W.2d at 30. The policy also stated that "discipline `should be used only when other efforts have failed or if the violation in question precludes other alternatives'" and that "`[t]he supervisor must investigate early and thoroughly to be fair as well as to prepare for possible testimony that just cause existed for disciplinary action.'" Id. (alteration in original). The employer's policies on involuntary termination stated that "`[e]very effort will be made to improve employee performance and correct deficiencies to avoid termination of employment'" and "`[w]ith the exception of serious infractions, an employee will be given the opportunity to correct deficiencies.'" Id. at 388, 563 N.W.2d at 30. The policy manual listed infractions serious enough to require automatic termination and infractions that could warrant termination on the first offense. The manual stated that the infractions warranting possible first offense termination were only "`examples of common offenses for which employees may be terminated.'" Id. Quoting Rood, the court concluded that there was no basis for a claim of just cause employment because "`[a] nonexclusive list of common-sense rules of behavior that can lead to disciplinary action or discharge, clearly reserves the right of an employer to discharge an employee at will.'" Id. (quoting Rood, 444 Mich. at 142, 507 N.W.2d at 608). Moreover, the court noted Biggs and other cases holding that an employer does not convert at will employment to just cause employment solely by establishing a disciplinary system for employees).Id. at 388 n. 29, 563 N.W.2d at 30 n. 29.
The Court finds that the policy provisions at issue in this case are even less supportive of a legitimate expectations claim than those inDolan because the policy language here contains no reference to "just cause" for disciplinary action and promises no more to employees than the policy in Dolan. Moreover, Dolan and the cases it cites establish that there must be something more than a disciplinary policy or procedure to convert an at-will relationship into a just cause relationship. Hill has pointed to nothing in the Employee Guide beyond the performance management policy as a basis for just cause employment. Hill does cite two opinions by state court judges in Johnson v. Pharmacia Upjohn Company, No. B99-0680-NZ (Mich. Cir. Ct. 2000), and Perry v. The Upjohn Company, No. E90-3493NZ (Mich. Cir. Ct. 1992), in which both judges concluded that genuine issues of material fact remained with regard to whether the plaintiffs had a legitimate expectation of just cause employment under PUC's (and Upjohn's) employment policies. As a federal court sitting in diversity, this Court is not bound to follow those decisions. Rather, it must apply the law as pronounced by Michigan's Supreme Court and, unless this Court believes the Michigan Supreme Court would rule otherwise, decisions of the Michigan Court of Appeals. Dinsmore Instrument Co. v. Bombardier, Inc., 199 F.3d 318, 320 (6th Cir. 1999). Nonetheless, having reviewed those decisions this Court disagrees with their reasoning, as it finds Dolan to be factually similar to this case. Furthermore, the decision in the Perry case was issued prior to more recent decisions of the Michigan Supreme Court clarifying the legitimate expectations theory of wrongful discharge claims.
Hill does cite testimony given by Richard Johnson, the former Human Resources Manager for PUC, in a state court case. According to Hill's summary of Mr. Johnson's testimony, Mr. Johnson testified that the company's practice was to terminate employees only for a sound reason. (Summary of Johnson Testimony, Pl.'s Br. Opp'n Ex. 4.) The Court finds this testimony of no relevance because Mr. Johnson also stated that nothing in PUC's written policies states that employees would be terminated only for just cause, nor was such a policy conveyed orally to employees. (Id.)
II. Age Discrimination
A plaintiff may establish a claim for age discrimination under the Elliot-Larsen act through the burden-shifting circumstantial method of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). See Harrison v. Olde Fin. Corp., 225 Mich. App. 601, 606, 572 N.W.2d 679, 681 (1997). Under the McDonnell Douglas framework, a plaintiff can establish a prima facie case of discrimination by showing that: (1) he was a member of a protected class; (2) he suffered an adverse employment action; (3) he was qualified for the position; and (4) he suffered the adverse employment decision under circumstances giving rise to an inference of unlawful discrimination, in this case, for example, being replaced by a younger employee. See Lytle, 458 Mich. at 172-73, 177, 579 N.W.2d at 914, 916. If the plaintiff establishes a prima facie case, the burden of production then shifts to the defendant to articulate a legitimate nondiscriminatory reason for the action. See id. at 173, 579 N.W.2d at 914-15 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94 (1981)); Meagher v. Wayne State Univ., 222 Mich. App. 700, 711, 565 N.W.2d 401, 410 (1997). If the defendant meets its burden, the presumption of discrimination drops away and the burden shifts back to the plaintiff to show that the employer's reason was a mere pretext. Lytle, 458 Mich. at 174, 579 N.W.2d at 915. A plaintiff may also prove intentional discrimination through direct evidence. Harrison, 225 Mich. App. at 609-10, 572 N.W.2d at 683. "[D]irect evidence is evidence which, if believed, `requires the conclusion that unlawful discrimination was at least a motivating factor.' With direct evidence, the existence of unlawful discrimination is `patent.'" Bartlik v. United States Dept of Labor, 73 F.3d 100, 103 n. 5 (6th Cir. 1996) (citation omitted).
In its initial brief, PUC argued that Hill's age discrimination claim must fail because Hill could not establish the second and fourth elements of a prima facie case of age discrimination in connection with the reassignment of Hill's territory. Specifically, PUC argued that the reassignment of Hill's territory and his transfer to another position did not constitute adverse employment actions and Hill's territory was reassigned to employees who were both older than Hill. PUC's motion focused only upon the elimination of Hill's territory as the basis of his claim because Hill stated in his deposition that his claim did not encompass termination of his employment. (Hill Dep. at 260.) In his response brief, in spite of his statement in his deposition, Hill argued that PUC discriminated against him with regard to the elimination of his sales territory and with regard to its decision to terminate his employment. Hill also asserted a basis for discrimination not alleged in the complaint, namely, PUC's failure to hire Hill for the Companion Animal SBU position. Further, Hill asserted that he had direct evidence of discrimination to support his claim regardless of his ability to establish a prima facie case under the McDonnell Douglas framework. Following the completion of discovery, PUC filed a supplementary brief arguing that it is also entitled to summary judgment because Hill cannot show that PUC's decisions to eliminate and reassign Hill's territory and to discharge Hill for insubordination were pretextual. The Court will first analyze Hill's claim under the McDonnell Douglas framework.
PUC does not argue that Hill cannot meet the first and third elements of a prima facie case of discrimination. Thus, the question with regard to each circumstance at issue is whether Hill suffered an adverse employment action and whether the adverse employment action occurred under circumstances giving rise to an inference of age discrimination.
The first circumstance is the elimination of Hill's territory. Hill contends that the elimination and reassignment of his territory was an adverse employment action. The court in Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999), described materially adverse action as follows:
[A] materially adverse change in the terms and conditions of employment must be more disruptive than mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.Id. at 662 (quoting Crady v. Liberty Nat'l Bank Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)). Hill cites no authority for the proposition that elimination of or reassignment of an employee's sales territory, by itself, constitutes adverse employment action, nor has the Court found such a case on its own. If Hill had lost his employment because of the elimination of his territory there would be no question that Hill suffered an adverse employment action if Hill actually lost his job, but that is not the case. As stated above, Hill had three other employment positions available, the Nebraska territory for the Pork SBU, the Ohio territory for the Companion Animal SBU, and the Pennsylvania territory for the Dairy SBU. Hill ultimately decided to assume the Pennsylvania territory for the Dairy SBU. A transfer or reassignment to a different position of employment may constitute materially adverse employment action if the plaintiff can demonstrate that the transfer resulted a reduction in pay, benefits, job duties, or loss of employment privileges. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996); Danas v. Chapman Ford Sales, Inc., 120 F. Supp.2d 478, 484-85 (E.D.Pa. 2000); Nichols v. Comcast Cablevision of Md., 84 F. Supp.2d 642, 654 (D.Md. 2000); Wilcoxon v. Minn. Mining Mfg. Co., 235 Mich. App. 347, 364-65, 597 N.W.2d 250, 258-59 (1999). However, Hill does not contend that the transfer to the Pennsylvania Dairy SBU position constituted an adverse action, and Hill's own testimony indicates that the Pennsylvania position was equal in all respects to the position that was eliminated. (Hill Dep. at 171-72.) Thus, Hill has failed to show that he suffered an adverse employment action as a result of the elimination of his territory.
Hill testified in his deposition that the Nebraska job was less desirable than his Michigan-based position because he had several personal reasons for remaining in Michigan. (Hill Dep. at 93.) The same was not true for the Pennsylvania position because Hill would not have moved to Pennsylvania. However, even if Hill had asserted those reasons as a basis for claiming adverse action, they would not suffice as they are based on Hill's own subjective views rather than on objective differences. See Wilcoxon, 235 Mich. App. at 364-65, 597 N.W.2d at 258-59.
Even if Hill could demonstrate adverse action with respect to the elimination of his territory, he has failed to present any evidence to show that the adverse action occurred under circumstances giving rise to an inference of age discrimination. A plaintiff in an age discrimination suit will usually prove this element by submitting evidence showing that a person significantly younger than the plaintiff was preferred over the plaintiff. See Meagher, 222 Mich. App. at 712, 565 N.W.2d at 411. Here it is undisputed that Hill's territory was reassigned to two other sales representatives in the Pork SBU who were substantially older than Hill. Under those circumstances, there can be no inference of discrimination based upon age. See Brocklehurst v. PPG Indus., Inc., 123 F.3d 890, 897 (6th Cir. 1997) (stating that the fact that the head of the plaintiff's department "replaced two of the four managers he discharged with even older employees" contradicted the plaintiff's claim of discriminatory animus). Moreover, the fact that the territory of Shaun Greiner, a sales representative substantially younger than Hill, was reassigned at or shortly before the time Hill's territory was reassigned also cuts against any inference that Jones' decision to reassign Hill's territory was based on age.
Hill attempts to circumvent this evidence by pointing out that within a year of the reassignment, Willsey filed an EEOC complaint alleging that "he has not been treated fairly." (Pl.'s 2d Br. Opp'n at 10.) Willsey's circumstances do not help Hill because Hill has not submitted any evidence supporting his allegations about Willsey and there is no indication that Willsey's EEOC complaint about unfair treatment has anything to do with age.
In spite of Hill's failure to establish a prima facie case, PUC has offered a legitimate nondiscriminatory reason for eliminating Hill's territory, namely, changes in market conditions such as consolidation in the industry that rendered sales to producers in Hill's territory less profitable. (Jones Dep. at 33, attached to Def.'s Supplemental Grounds Br. Supp.) Hill attempts to show that PUC's reason is pretext by producing evidence showing that Hill was one of the top sales representatives in the Pork SBU in 1999, and other evidence demonstrating that the elimination of Hill's territory was unnecessary. For example, Hill presents evidence showing that Hill had a number of large accounts in his territory and testimony from the former director of the Pork SBU that Hill's territory was still a viable territory. This evidence cannot be used to establish pretext, however, because "the soundness of an employer's business judgment may not be questioned as a means of showing pretext." Meagher, 222 Mich. App. at 712, 565 N.W.2d at 411. See also Brocklehurst, 123 F.3d at 898. PUC's decision to eliminate Hill's territory was a business decision and, therefore, may not be considered pretextual merely on the wisdom of the decision.
Hill also offers evidence that Jones occasionally made statements expressing concern over the age of his sales force. For example, Hill submitted an affidavit from Shaun Greiner, who states that he had a discussion with Jones in September of 1999 in which Jones stated that the fact that he had more older sales representatives than the other SBU's meant that the Pork SBU had higher salaries. (Greiner Aff. ¶ 3, attached to Pl.'s Addendum to Br. Opp'n.) In addition, Greiner also states that Jones expressed regret that the older sales representatives did not accept the retirement packages previously offered by PUC and that, although he knew he could not ask the older sales representatives about retirement, there was a need to "get rid" of some them because of their high salaries. (Id.) Gary Heinrich, PUC's Director of Training for U.S. Operations, also testified that Jones had indicated his sales representatives were paid more because they were older than the sales representatives in other SBU's and that he wished he could speak with the older sales representatives about retirement but knew he could not legally do so. (Heinrich Dep. at 21, 31, attached to Pl.'s 2d Br. Opp'n.) Hill contends that these statements show that Jones had a predisposition to discriminate on the basis of age. While it is true that Jones' alleged statements focused on older employees, it is quite evident that Jones' concern was the high level of compensation those employees were paid, not the age of the employees. In other words, the high costs of sales in the Pork SBU was directly correlated with the fact that Pork SBU sales representatives were older than those in other SBU's. In Hazen Pier Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701 (1993), the Supreme Court observed that the purpose of the Age Discrimination in Employment Act of 1967 ("ADEA") was to prohibit employment decisions based on the stereotype that older workers are less productive and competent than younger workers. Id. at 610-11, 113 S.Ct. at 1706. However, because age alone is the determinative question in such a suit, the Court concluded that the ADEA does not reach an employer's decision based on factors other than age, even where there is a correlation with age:
When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is. Pension plans typically provide that an employee's accrued benefits will become nonforfeitable, or "vested," once the employee completes a certain number of years of service with the employer. See 1 J. Mamorsky, Employee Benefits Law § 5.03 (1992). On average, an older employee has had more years in the work force than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee's age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, see 29 U.S.C. § 631(a), may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily "age based."Id. at 611, 113 S.Ct. at 1706-07 (italics in original). Conveying a similar point, in Allen v. Diebold, Inc., 33 F.3d 674 (6th Cir. 1994), the Sixth Circuit stated, "In order to state and support a claim [for age discrimination], plaintiffs must allege that Diebold discriminated against them because they were old, not because they were expensive."Id. at 677. The court concluded that the plaintiffs failed to support their claim because the crux of their case, "that defendant replaced them with younger workers because they were too costly," did not prove a violation of the ADEA. Id. at 679; see also Plieth v. St. Raymond Church, 210 Mich. App. 568, 573-74, 534 N.W.2d 164, 167-68 (1995) (per curiam) (stating that "[t]he mere fact that plaintiff was eligible for a pension is not enough for this Court to infer age discrimination" and citing Hazen).
Under the rationale stated in Hazen, Jones' alleged statements do not present any basis for a claim of age discrimination because the focus was on high salaries, not age. Moreover, even if Jones' statements could be considered as evidence of age discrimination, the Court would still conclude that they do not support an inference of discrimination in this case because there is no evidence that Jones considered Hill in the group of highly compensated older workers. In fact, Heinrich testified that Hill was not ever mentioned as a representative who should consider retirement. (Heinrich Dep. at 28.)
Hill also points out that in meetings with Hill after Hill was advised that his territory would be eliminated, Jones brought up retirement and on one occasion told Hill, "If I were you, I would retire." (Hill Dep. at 143, 153-56.) However, Hill fails to acknowledge that it was he who brought up the topic of retirement. (Hill Dep. at 123-127.) In fact, Jones' "If I were you" comment to Hill was made the day after Hill attended a pre-retirement meeting while Jones and Hill were discussing the prospect of a lump sum retirement payment. Under these circumstances, this evidence does not demonstrate that Jones or any other decisionmaker took any action because of Hill's age.
The next circumstance is PUC's alleged failure to hire Hill for the Companion Animal SBU position. The Court also concludes that Hill has failed to prove a prima facie case on this issue. While a refusal to hire is, without question, a material adverse employment action, the evidence in the record shows that Hill was not rejected for that position, but instead made the decision not to seek that position when he decided to accept the Pennsylvania Dairy SBU position. (E-mail from Hill of 11/25/99.) It is obvious from Hill's statements in the survival e-mail that the Companion Animal SBU position was still an open option at that time. In addition, Hill's assertion that PUC hired a twenty-six-year-old for that position is not supported by any evidence in the record.
The final circumstance at issue is Hill's termination. Although the termination constitutes adverse action, Hill again has failed to provide any evidentiary basis for his assertion that he was replaced by a younger employee. Therefore, Hill has failed to establish a prima facie case. Moreover, PUC has articulated a legitimate nondiscriminatory reason for discharging Hill, and Hill has failed to show that the reason was a pretext for discharging Hill on the basis of age. Hill has not shown that his sending the survival e-mail to customers, after being told not to contact customers until the details of the territory reorganization were finalized, was not the real reason for his discharge. Nor has Hill shown that another similarly situated employee outside the protected class was not discharged for insubordination after engaging in the same or similar conduct. Hill's argument is confined to pointing out that the text of the e-mail did not warrant dismissal. However, the Court will not second guess PUC's decision, especially because the text of the e-mail can be interpreted to support PUC's characterization as being critical of PUC and the decision to eliminate Hill's territory.
Hill also asserts that his claim should survive summary judgment because he has presented direct evidence of discrimination. The Court has already considered this evidence in the context of the McDonnell Douglas framework (in considering Hill's evidence of pretext) and concludes that because it is not probative of discriminatory animus under the circumstantial burden-shifting method, it is also not sufficient to support a claim of age discrimination through direct evidence. Therefore, summary judgment will be granted on this claim.
Conclusion
For the foregoing reasons, the Court will grant PUC's motion for summary judgment. An Order consistent with this Opinion will be entered.
ORDER
In accordance with the Opinion filed this date,IT IS HEREBY ORDERED that Defendant's Motion For Summary Judgment (docket no. 22) is GRANTED and Plaintiff's complaint is DISMISSED.
This case is closed.