holding that "notwithstanding the evidence of dissatisfaction with [Appellant’s job] performance and the concurrent need to respond to the budget crisis” a reasonable juror could find that Appellant’s "age was the but-for cause of [his employer’s] decision not to renew the contract for his services”
How later courts described this case
- holding that "notwithstanding the evidence of dissatisfaction with [Appellant’s job] performance and the concurrent need to respond to the budget crisis” a reasonable juror could find that Appellant’s "age was the but-for cause of [his employer’s] decision not to renew the contract for his services”
- finding direct evidence that age discrimination was the but-for reason for -6- No. 22-1069, Gray v. AutoZoners, LLC, et al. termination where a board member told an employee that the board wanted “someone younger” instead
- noting that even though the burden in an ADEA claim does not shift to an employer “even when a plaintiff has produced some evidence that age was one motivating factor, . . . McDonnell Douglas evidentiary framework to prove ADEA claims . . . remains consistent with Gross”
- finding that one decisionmaker’s comment about wanting “someone younger” is direct evidence of age discrimination
Written by the judges who cited it.
The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0218p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROBERT SCHEICK, ┐
Plaintiff-Appellant, │
│
│ No. 13-1558
v. │
>
│
TECUMSEH PUBLIC SCHOOLS; PROFESSIONAL │
EDUCATIONAL SERVICES GROUP, LLC, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:11-cv-10493—Nancy G. Edmunds, District Judge.
Argued: May 1, 2014
Decided and Filed: September 2, 2014
Before: GUY, GIBBONS, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: James M. Tucker, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus Curiae. Jeffrey S. Burg, LAW OFFICES OF ,
JEFFREY S. BURG, Southfield, Michigan, for Appellant. Kenneth B. Chapie, GIARMARCO,
MULLINS & HORTON, P.C., Troy, Michigan, for Appellee Tecumseh Public. Mark R. Smith,
RHOADES MCKEE PC, Grand Rapids, Michigan, for Appellee Professional Educational
Services. ON BRIEF: James M. Tucker, UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae. Jeffrey S. Burg, LAW
OFFICES OF , JEFFREY S. BURG, Southfield, Michigan, for Appellant. Kenneth B. Chapie,
Timothy J. Mullins, GIARMARCO, MULLINS & HORTON, P.C., Troy, Michigan, for
Appellee Tecumseh Public. Mark R. Smith, RHOADES MCKEE PC, Grand Rapids, Michigan,
for Appellee Professional Educational Services.
1
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 2
_________________
OPINION
_________________
RALPH B. GUY, JR, Circuit Judge. Plaintiff Robert Scheick appeals from the judgment
entered against him with respect to the claim that his contract was not renewed because of his
age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1),
and Michigan’s Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws Ann.
§ 37.2202(1)(a). Scheick argues that summary judgment should not have been granted in favor
of defendant Tecumseh Public Schools (TPS) and third-party defendant Professional Educational
Services Group, LLC (PESG). The EEOC has filed a brief as amicus curiae agreeing in part
with Scheick’s contentions. See FED. R. APP. P. 29(a). Finding that the evidence, viewed in the
light most favorable to Scheick, was sufficient to create a genuine issue of material fact for trial,
we reverse and remand for further proceedings consistent with this opinion.
I.
Plaintiff Robert Scheick was hired as Principal of Tecumseh High School in July 2004,
when he was 51 years of age, and continued in that position until July 2010. For the first three
years, Scheick was employed directly by TPS. Then, by agreement, the 54-year-old Scheick
formally retired from TPS and was hired by the staffing firm PESG to continue working as
principal under a three-year contract between TPS and PESG through June 30, 2010. Under that
arrangement, Scheick began receiving pension and health care benefits from the retirement
system, and TPS avoided more than $29,000 in payroll and benefit costs per year. In fact, the
next year, several other TPS employees entered into similar arrangements as cost-saving
measures.
In early 2010, when Scheick was 56 (almost 57) years of age, TPS decided not to renew
the contract for his services. Although PESG’s contract was terminable upon 30-days written
notice, there is no dispute that the nonrenewal was an adverse employment action with respect to
Scheick. Scheick continued to be employed as principal until the contract expired at the end of
June 2010, after which he was eligible for but did not seek another assignment through PESG.
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 3
Scheick claimed that the contract was not renewed because of his age, and he filed this action
against TPS after receiving a right-to-sue letter from the EEOC. TPS filed its own third-party
complaint for indemnification against PESG, and PESG brought a counterclaim against TPS.
The claims between TPS and PESG are not before the court—only their common position that
their motions for summary judgment were properly granted with respect to Scheick’s age
discrimination claims.
Scheick reported directly to TPS Superintendent Michael McAran for the last four of his
six years as principal (both before and after the change of employment to PESG). McAran—
who is older than Scheick by about ten years—was the sole employee of TPS’s seven-member
Board of Education, attended meetings with the Board every two weeks, and had a practice of
speaking to the board president every other day. McAran explained that he was responsible for
overseeing the district, managing the budget, and making final personnel decisions.
McAran insisted that he alone made the decision not to renew Scheick’s contract, but also
testified that he discussed the nonrenewal with several board members individually and believed
there was an informal consensus among the board members in support of his decision. Without
specifying when he made that decision, McAran said it was “well before” he met with Scheick to
discuss what would be Scheick’s first formal performance evaluation on February 25, 2010.
McAran admitted that he prepared the performance evaluation with the intention of “lay[ing] the
groundwork” to end Scheick’s relationship with TPS.
There was evidence that McAran received complaints from several parents, staff, and
board members reflecting growing dissatisfaction with Scheick’s performance and a perceived
lack of leadership on his part. Two board members—Jim Rice and Karen Januszek—stated by
way of affidavit that they had been teachers in the high school and were of the opinion that
Scheick was not an effective principal. Scheick countered with favorable opinions of his
performance from Assistant Principal Dennis Niles and Human Resources Director Donna Elser.
The most significant failure identified in the performance evaluation was the fact that the
high school did not meet the state-mandated adequate yearly progress (AYP) for two consecutive
years due to clerical errors (albeit errors not made by Scheick personally). Board Member Jason
Sines was particularly concerned about this failing. It resulted in negative publicity for TPS, as
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 4
did an embarrassing delay of several minutes during the graduation ceremony the previous year
when Scheick left the speeches of the valedictorian and salutatorian in his office. Scheick’s
attendance at school functions was also described as deficient, including an incident when he left
a concert early and two teachers had to handle a predictably volatile parent in his absence.
The review identified other deficiencies that had occurred in recent years including:
failing for a second time to ensure that transcripts of college-bound student athletes made it to
the NCAA’s eligibility center; failing to properly coordinate homebound-student services;
mishandling an issue concerning a special education student’s accommodations; and failing to
notify the parents of a student appearing at an expulsion hearing before the Board. Several of
these issues were raised informally with Scheick, but no further disciplinary action was taken at
the time. Although the evaluation rated two areas in need of slight improvement, McAran
testified that, overall, this was a “good, competent” evaluation. Without denying that these
incidents had occurred, Scheick responded to each of the noted deficiencies in a letter dated
March 8, 2010. On that same date, McAran sent written notice to PESG that Scheick’s contract
would not be renewed.
Scheick claims that McAran made statements to him suggesting age-based animus on
three occasions: namely, (1) in informing Scheick that the Board wanted him to retire during the
performance review on February 25; (2) in telling Scheick that “they just want somebody
younger” in an exchange on February 26; and (3) in explaining to Scheick that “they wanted
someone younger” in reference to both of their positions in a follow-up conversation on March
15. McAran disputed Scheick’s accounts of their conversations, in part, and denied that he said
the decision had anything to do with Scheick’s age. Scheick and the EEOC contend that
testimony concerning these statements constituted direct evidence of age discrimination.
Overlapping the reasons given by McAran, TPS also maintained that the nonrenewal was
the result of budget cuts that were discussed and drafted by the board’s finance committee during
January and February 2010. The evidence included affidavits by two board members—Rice and
Kevin Packard—who explained that newly announced reductions in state funding had
substantially worsened the anticipated budget deficit for the following year. The finance
committee proposed significant cuts—including closing an elementary school, selling the
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 5
administration building, reducing transportation, and eliminating several positions—as part of
the budget that was presented to the Board on March 9, 2010. TPS maintained that this proposed
budget contemplated elimination of the high school principal position (for an annual savings of
more than $100,000).
Rice and Packard explained that consolidation of the principal and superintendent
positions “made sense” since Scheick’s contract was ending, the administrative offices were to
be relocated to the high school building, and McAran had experience as a building principal.
They both specifically denied that Scheick’s age was a factor in those discussions, and
emphasized that the Board had approved several other contracts with PESG for administrators
who were the same age or older than Scheick had been when his contract was not renewed.1
The Board approved the budget sometime in May 2010, and Scheick’s contract expired at
the end of June 2010. McAran, who was in his mid-sixties at the time, assumed the duties of
both positions on July 1, 2010. McAran and TPS Finance Director William Wright testified that
they expected the consolidation of these positions to last for one or two years. The situation
changed unexpectedly, however, when the Board learned just before its July 19 meeting that the
reductions in state funding would likely be smaller than anticipated.
With smaller than expected cuts in state funding (together with greater than expected
enrollment), the Board decided to restore a number of the eliminated positions once the
additional funding was approved. The position of high school principal was posted in advance of
the approval (along with one other position). In August 2010, TPS hired 44-year-old Griff Mills
to be the high school principal. McAran relinquished the principal’s duties and continued to
serve as superintendent. Since Griff was a direct hire, TPS incurred payroll and benefit costs
associated with the position that had previously been avoided by contracting through PESG.
In granting summary judgment to TPS and PESG, the district court found that Scheick
had not presented direct evidence of age discrimination; could not show that he was replaced by
a younger person; and that, even if he could make a prima facie showing of age discrimination,
1
Specifically, TPS approved an extension of the PESG contract for Human Resources Director Donna
Elser, age 57, and entered into contracts with PESG for services of Payroll Specialist Jim Brown, age 67; Secretary
Cheryl Lloyd, age 62; and Director of Finance William Wright, age 59.
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 6
he failed to present sufficient evidence to establish pretext. Summary judgment was entered in
favor of TPS and PESG for the reasons set forth in the opinion and order of March 19, 2013, and
plaintiff’s motion for reconsideration was denied for the reasons stated in the order entered on
April 30, 2013. This timely appeal followed.
II.
The district court’s decision granting summary judgment and its denial of the motion to
reconsider that decision are both reviewed de novo. Geiger v. Tower Auto., 579 F.3d 614, 620
(6th Cir. 2009); Medical Mut. of Ohio v. Amalia Enters., Inc., 548 F.3d 383, 389-90 (6th Cir.
2008). Summary judgment is appropriate if “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). In making this
determination, the court must “view the evidence and draw all reasonable inferences in favor of
the non-moving party.” Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013). For a
genuine dispute to exist, “there must be evidence on which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A. Standards
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge
. . . or otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). To prevail on a claim under the ADEA, it 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.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009) (citing Reeves v. Sanderson Plumbing Prods,
Inc., 530 U.S. 133, 141-43, 147 (2000)). For an employer to take an adverse action “because of
age” means “‘that age was the “reason” that the employer decided to act.’” Univ. of Tex. Sw.
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 7
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2527 (2013) (quoting Gross, 557 U.S. at 176) (extending
Gross to retaliation claims under Title VII).2
Gross clarified that the burden of persuasion does not shift to the employer in an ADEA
case, “even when a plaintiff has produced some evidence that age was one motivating factor in
that decision.” 557 U.S. at 180; see Geiger, 579 F.3d at 621 (recognizing abrogation of prior
precedent in direct evidence cases under the ADEA). But, as this and every other circuit has
held, application of the McDonnell Douglas evidentiary framework to prove ADEA claims based
on circumstantial evidence remains consistent with Gross. See Schoonmaker v. Spartan
Graphics Leasing, LLC, 595 F.3d 261, 264 n.2 (6th Cir. 2010) (citing Geiger, 579 F.3d at 622);
Sims v. MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013) (collecting cases).
Further, nothing in Gross undermines the principle that “[t]he direct evidence and
circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or the
other, not both.” Kline v. TVA, 128 F.3d 337, 348-49 (6th Cir. 1997); see also Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (“McDonnell Douglas test is inapplicable
where the plaintiff presents direct evidence of discrimination”). The district court found that
Scheick had not demonstrated a question of fact under either evidentiary path. Regardless of the
evidentiary route taken, however, “[t]he ultimate question in every employment discrimination
case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination.” Reeves, 530 U.S. at 153.
B. Direct Evidence
Before Gross, our circuit defined direct evidence as that evidence “which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor in the
employer’s actions.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003)
(en banc); see also DiCarlo v. Potter, 358 F.3d 408, 415-16 (6th Cir. 2004) (overruled on other
2
Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) provides that an employer shall not discriminate
against an individual with respect to employment “because of . . . age.” MICH. COMP. LAWS ANN. § 37.2202(1)(a).
The district court analyzed the age discrimination claims brought under the ELCRA using the same standards we
apply to claims brought under the ADEA. See Geiger, 579 F.3d at 626; Bondurant v. Air Line Pilots Ass’n,
679 F.3d 386, 394 (6th Cir. 2012); see also Howard v. Mich. Dep’t of Corr., No. 344258, 2013 WL 2223133 (Mich.
Ct. App. May 21, 2013). Plaintiff has not argued that this was error, and any claim that the Michigan courts would
analyze the claim differently has been waived.
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 8
grounds by Gross, 557 U.S. at 180, as stated in Geiger, 579 F.3d at 621). Because Wexler’s
definition does not survive in the ADEA context after Gross, we now look to whether evidence,
if believed, requires the conclusion that age was the “but for” cause of the employment decision.
Under either articulation, the inquiry includes both a predisposition to discriminate and that the
employer acted on that predisposition. DiCarlo, 358 F.3d at 415. In other words: “Direct
evidence is evidence that proves the existence of a fact without requiring any inferences.”
Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004) (citing cases);
see also DiCarlo, 358 F.3d at 415. As noted, Scheick testified that McAran made statements to
him on three occasions suggesting that the nonrenewal decision was caused by age-based
animus.
1. Statements by McAran
First, on February 25, McAran allegedly began Scheick’s first formal performance
review by stating: “The Board wants you to retire.” McAran explained that the Board wanted to
have someone as high school principal who would take over as superintendent after a few years,
and then asked Scheick how long he intended to work. Scheick answered that he wanted to work
at least two more years, although he did not “get a chance” to also say that he would possibly
stay longer. They discussed the performance evaluation and whether a “buyout” or a one-year
extension of the contract under a performance improvement plan might be possible. Scheick
testified that when he added, “or the [B]oard could force you to fire me,” McAran agreed with
him.
The following day, February 26, McAran approached Scheick to ask whether he was “all
right” and whether he would be interested in a “buyout.” Then, according to Scheick, McAran
volunteered that “they just want somebody younger.” Finally, on March 15, a week after notice
of the nonrenewal was sent to PESG, Scheick made an appointment and met with McAran to
discuss his options. McAran said he had no options, and explained that “they wanted someone
younger.” Scheick asked what he meant, and McAran said they wanted someone younger for
both the principal and superintendent positions. McAran, on the other hand, claimed that he had
been referring only to himself.
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 9
2. Analysis
TPS and PESG argue that these statements do not constitute direct evidence because they
are ambiguous with respect to who “they” referred to, what position or positions were being
referenced, and whether the statements reflected the intent of the decisionmaker.3
The first statement, made during the performance review, did not constitute direct
evidence of age discrimination. As the district court found, McAran’s statement that the Board
wanted Scheick to retire would require an inference to conclude that retirement was a proxy for
age (as opposed to either years of service or a desire that he leave the position voluntarily). See,
e.g., Scott v. Potter, 182 F. App’x 521, 526 (6th Cir. 2006) (finding the statement “[w]hy don’t
you retire and make everybody happy” did not constitute direct evidence of age discrimination).
In contrast, McAran’s other two statements about wanting “someone younger” are not
ambiguous and, if believed, do not require an inference to conclude that age was the but-for
cause of the decision not to renew Scheick’s contract. First, the statements by McAran to
Scheick on February 26 and March 15, respectively, represent direct references to age. See
Sharp v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 794 (6th Cir. 2013) (involving statement
“we want someone younger”). Moreover, the statements are not ambiguous despite the lack of
an explicit statement that “the Board” wanted someone younger. Cf. Fuhr, 710 F.3d at 674
(finding ambiguities required inferences about what part of the “old boys network” took which
unspecified retaliatory actions). Any suggestion that “they” could have referred to parents or
staff is not credible. Rather, as Scheick and the EEOC argued, McAran could not have been
referring to anyone other than the Board (whether formally or by informal consensus).4
Nor are McAran’s alleged statements made ambiguous because there is uncertainty about
whether McAran was referring only to Scheick’s position as principal or to both the principal
3
There is no dispute that McAran’s alleged statements would be relevant to show age-based bias in
connection with the nonrenewal decision; the only question is whether they constitute direct evidence of age
discrimination. See Peters v. Lincoln Elec. Co., 285 F.3d 456, 478 (6th Cir. 2002) (identifying four factors to be
considered in evaluating statements that allegedly show an employer’s age bias); see also Diebel v. L&H Res., LLC,
492 F. App’x 523, 526 (6th Cir. 2012).
4
Scheick and the EEOC also argued that McAran must have been referring to the Board because his first
statement about retirement expressly referenced the Board. However reasonable such an inference might be, it
would require an inference to reach that conclusion.
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 10
and superintendent positions. Either way, McAran was at least referring to Scheick’s position.
Finally, TPS argues that there is ambiguity about whether the statements reflected the intention
of the decisionmaker. However, because there was evidence that both McAran and the Board
were involved in making the decision, it is immaterial whether McAran was acting at the behest
of the Board, or on his own with input from the Board. Cf. Brown v. Packaging Corp. of Am.,
338 F.3d 586, 589-90 (6th Cir. 2003) (statement by supervisor with no involvement in the
decision was not direct evidence of age discrimination). Thus, Scheick presented evidence
which, if believed, would require the conclusion that age was the but-for cause of TPS’s decision
not to renew the contract.
C. But-For Causation
The EEOC asserts that, by definition, the presentation of direct evidence of age
discrimination necessarily precludes entry of summary judgment in favor of the employer.
Although this question has not been squarely addressed in the case law since Gross, the EEOC’s
citation to Geiger does not support its contention that direct evidence will always defeat an
employer’s motion for summary judgment with respect to claims under the ADEA.
In Geiger, after finding that direct evidence of age discrimination had not been presented,
this court also held that, even if the plaintiff had established a link between the allegedly biased
actor and the adverse action, “the record clearly indicates that age was not the ‘but-for’ factor in
[the] decision to choose [another] over Geiger.” Geiger, 579 F.3d at 622 n.3. This conclusion
recognizes that Gross altered the burden of proof on the issue of causation and indicates that
direct evidence of age discrimination may not always be sufficient to create a question of fact for
trial in the ADEA context. See also Hnizdor v. Pyramid Mouldings, Inc., 413 F. App’x 915, 918
(7th Cir. 2011) (holding that despite direct evidence of age-based animus, undisputed evidence
of longstanding plan to move accounting department established that no rational juror could
conclude that age was the but-for cause of the adverse action).5
5
The EEOC’s passing citation to Sharp is also unavailing. There, although direct evidence was presented,
the court considered evidence of other explanations and concluded that the “true reason” for the adverse action could
not be determined as a matter of law. Sharp, 726 F.3d at 802 (applying Gross to claim under Kentucky law).
No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 11
Moreover, it is telling that Gross relied on Reeves, which, in turn, reiterated that “trial
courts should not treat discrimination differently from other ultimate questions of fact.” Reeves,
530 U.S. at 148 (citation and internal quotation marks omitted). The Court explained that the
ultimate question (even under McDonnell Douglas) is whether the evidence taken together “may
permit the trier of fact to conclude that the employer unlawfully discriminated.” Id. Thus, even
when direct evidence of age discrimination has been offered, the question to be asked in deciding
an employer’s motion for summary judgment is whether the evidence, taken as a whole and in
the light most favorable to plaintiff, is sufficient to permit a rational trier of fact to conclude “that
age was the ‘but-for’ cause of the challenged employer decision.” Gross, 557 U.S. at 178.
Here, notwithstanding the evidence of dissatisfaction with Scheick’s performance and the
concurrent need to respond to the budget crisis, the evidence, taken as a whole and in the light
most favorable to Scheick, is sufficient to permit a reasonable juror to conclude that Scheick’s
age was the but-for cause of TPS’s decision not to renew the contract for his services. Although
TPS or PESG may ultimately prove otherwise, Scheick has met his burden to come forward with
evidence sufficient to establish that a genuine issue of material fact exists for trial.
REVERSED and REMANDED for further proceedings consistent with this opinion.