Darlene Brown v. Kelsey-Hayes Company

NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0293n.06

Case No. 19-1040

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

May 26, 2020

) DEBORAH S. HUNT, Clerk

DARLENE BROWN, )

)

Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR

v. ) THE EASTERN DISTRICT OF

) MICHIGAN

KELSEY-HAYES COMPANY; TRW )

AUTOMOTIVE, INC.; ZF TRW ) OPINION

AUTOMOTIVE HOLDINGS CORP. )

)

Defendants-Appellees, )

BEFORE: CLAY, THAPAR, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. When another company acquired Plaintiff Darlene

Brown’s employer, Kelsey-Hayes Company, Brown did not see her prior performance as the

reason she did not receive another job after the company eliminated her position. Instead, she

pointed to the company’s alleged perception of her asthma, her wheelchair usage at work, her age,

and her FMLA leave. So she sued. But because Brown failed to show a genuine issue of material

fact concerning pretext for her discrimination and retaliation claims, we AFFIRM the district

court’s grant of summary judgment to Defendants.1

1

Defendants are Kelsey-Hayes Company, TRW Automotive, Inc., and ZF TRW Automotive Holdings Corp.

No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

I.

Defendant Kelsey-Hayes Company employed Brown from 2003 until her termination at

59-years-old in January 2016. Brown reported to Ann Lipanski, the Vice President of Internal

Audit, from 2006 to 2016. She acted as Lipanski’s Administrative Assistant in 2006 and then

worked as Lipanski’s Senior Executive Secretary for nine years. To name a few tasks, Brown

corresponded for Lipanski, maintained Lipanski’s calendar, set up travel arrangements, and

prepared reports and presentations.

In 2015, German auto supplier ZF Friedrichshafen AG acquired TRW Automotive

Holdings Corporation and its subsidiary, Kelsey-Hayes. Naturally, as the entities combined,

decisionmakers eliminated some positions. Lipanski resigned, anticipating these eliminations, and

left the company in December 2015. As a result, the new company got rid of Lipanski’s position

and a few others in her department, including Brown’s. Removing Brown’s position and not

transferring her to another paved the way for this lawsuit.

Now, Brown used oxygen at work because she has asthma. And she sometimes used a

wheelchair around work when her asthma acted up. Kelsey-Hayes had granted Brown Family and

Medical Leave Act (FMLA) leave a few times because of these asthma problems. And Brown

thought the company’s failure to transfer her had to do with these medical issues.

But the company pointed to another reason. During Brown’s time as Senior Executive

Secretary, Lipanski evaluated Brown each year. And Lipanski always gave Brown mixed reviews.

For these evaluations Lipanski used the company’s “Employee Performance & Development

Process” (EPDP) form. This form from 2006 to 2014 included an overall rating category and at

least a dozen subcategories. Supervisors entered one of four options when rating an employee in

each category: (1) “OC” for outstanding contribution, (2) “SC” for solid contribution, (3) “IR” for

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

improvement required, and (4) “TS” for too soon to evaluate. (R. 24-4, PageID 712–40.) Brown

got an IR overall rating in 2011 and 2013 and a SC overall rating the other years. Lipanski often

wrote both positive and negative notes about Brown’s work in the comment sections on the forms.

This evaluation process changed in 2015. Supervisors then could review employees using

two more performance levels: “SC Plus” and “SC Minus.” (See id.; see also R. 20-6, PageID

214.) Lipanski assigned Brown a SC Minus overall rating in 2015. After submitting Brown’s

evaluation in 2015, Lipanski reentered the system and changed the “T&E Administration,

Reservations and Expense Reporting” subcategory on Brown’s evaluation from a SC to a SC

Minus. This is allegedly because Brown struggled with some travel arrangements in late 2015.

The comment section for the “T&E Administration, Reservations and Expense Reporting”

subcategory read: “Darlene needs to maintain [a] higher level of focus to ensure 1) reservations

are complete and include ground transportation, and 2) the purpose for each meeting, location and

meeting organizer(s) are understood. Darlene is very familiar with the systems used for scheduling

travel and reporting travel expenses.” (R. 24-5, PageID 742.) Lipanski made these changes right

before she left in December 2015.

The company removed Brown’s Senior Executive Secretary position shortly after, since it

did not plan to hire a replacement for Lipanski. In mid-January 2016, Joe Cantie, TRW

Automotive Holdings Corporation’s CFO, and Lisa McGunagle, the Corporate Human Resources

(HR) Manager for the Finance and IT departments, met with Brown. The two told Brown that her

position no longer existed because of the companies combining. Brown asked if she could take an

administrative position working for Jerry Dekker. McGunagle explained that Brown could apply

online for that role.

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

To be sure, McGunagle knew that Brown suffered from asthma, used a wheelchair some

days, and took FMLA leave. In fact, Brown discussed her leave with McGunagle. During one

such conversation, McGunagle told Brown that she was looking at Brown’s documents and

thought “wow, this girl is never here.” (R. 23-5, PageID 501.) Brown said “really?” to which

McGunagle responded, “yeah, I’m just joking.” (Id.)

After this termination meeting with Cantie and McGunagle, Brown applied for, or at least

showed interest in, eleven secretarial positions, including the position working for Dekker.2 She

submitted a Voluntary Self-Identification of Disability form and a U.S. Equal Employment

Opportunity form when applying. And around the time she started applying for these spots, her

attorneys notified McGunagle about Brown’s potential plan to sue because Brown believed that

discrimination caused the company to not transfer her to any open jobs. Brown did not receive

any offers, despite this letter.

To understand Brown’s claims about her lack of offers, it’s important to note how the

company assesses candidates and fills jobs. When a position opens at the company, the HR

Manager for the relevant department creates a requisition in Kenexa, the company’s online job

application and tracking system. Then upper management approves the requisition. Once that

happens, the HR Manager may look to an internal departmental candidate for the role.

If the HR Manager does not find any satisfactory internal candidate for the open position,

Talent Acquisition Center (TAC) steps in to help. TAC Recruiters post the position opening

online, and both internal and external candidates can apply then. The Recruiters assist the

company’s Hiring Managers, who decide who to hire in the end.

2

The parties dispute the exact number of positions to which Brown formally applied.

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Pamela Hoye worked at the company as the Talent Acquisition Manager when Brown

applied for the eleven jobs. In that position, Hoye had access to confidential self-identification

information, including whether a candidate has a medical condition. Recruiters, on the other hand,

lack access to this information when they review applications and recommend certain candidates

to the company’s Hiring Managers.

But sometimes Hoye acted as a Recruiter, even though she mainly worked as the Talent

Acquisition Manager. And Hoye acted as the Recruiter assisting the Hiring Managers for eight of

the eleven positions to which Brown applied. When Hoye acts as a Recruiter, she does not look

at the confidential, self-identification information that she otherwise has access to in her

managerial role. In fact, Hoye swears she did not look at Brown’s self-identification at all. Instead,

she says she decided not to interview Brown upon reviewing Brown’s evaluations that she got

from McGunagle.

Brown also applied for a role as secretary to Patricia Zazzetti. Zazzetti acted as the Hiring

Manager for that position. She, like Hoye, asked McGunagle about Brown’s prior performance

after a Recruiter recommended Brown to Zazzetti as a potential candidate to interview. After

reviewing the evaluations and speaking with McGunagle on the phone, Zazzetti chose not to

interview Brown, as well. McGunagle told Zazzetti that McGunagle would have concerns about

hiring Brown over Brown’s inattention to detail, software mistakes, scheduling issues, and overall

poor work. The two did not discuss Brown’s FMLA leave. That said, in later interviews Zazzetti

asked interviewees the maximum work each candidate thought an employee should miss.

Of the eleven positions to which Brown applied or expressed interest, the company filled

ten with younger individuals. It paid new employees higher annual salaries. And nine employees

did not have disabilities. We do not know the two others’ disability statuses.

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

Pointing to these facts as support, Brown alleges that Defendants discriminated against her

because of her disability, age, and FMLA leave when they chose not to transfer her to or rehire her

for an available position at the company. Brown arbitrated the issues. Yet the arbitrator denied

her relief on all claims.3 So Brown filed her complaint in the district court, alleging that

Defendants discriminated against her in violation of the (1) Americans with Disabilities Act

(ADA), (2) Michigan Persons with Disabilities Civil Rights Act (PWDCRA),4 (3) Age

Discrimination in Employment Act (ADEA), and (4) Michigan Elliot-Larsen Civil Rights Act

(ELCRA).5 She also sued for retaliation under these four and the FMLA.6

The district court granted summary judgment for Defendants, finding that although Brown

established a prima facie case of discrimination, she did not show a genuine issue of material fact

as to pretext. And without deciding whether Brown showed a prima facie case of retaliation, the

court found that she also failed to establish a genuine issue of material fact as to pretext for the

3

A Problem Resolution Policy required Brown to exhaust her claims through alternative dispute resolution

before filing a complaint. Defendants contend that Brown did not exhaust her retaliation claims before the arbitrator,

so she cannot raise them in federal court. But Brown raised the retaliation arguments in a cursory fashion during

arbitration. And the arbitrator considered Brown’s arguments to include retaliation. So we decline to dismiss on

failure to exhaust grounds.

4

This circuit usually analyzes ADA and PWDCRA claims the same way. See Donald v. Sybra, Inc., 667 F.3d

757, 764 (6th Cir. 2012) (“The PWDCRA substantially mirrors the ADA, and resolution of a plaintiff’s ADA claim

will generally, though not always, resolve the plaintiff’s PWDCRA claim. [The plaintiff] provides no argument as to

why we should treat the claims separately, nor does our review indicate as much.” (internal quotation marks omitted)).

The same is true here. Brown provided no argument on why the two should receive different treatment, so we review

them the same way.

5

This circuit also generally analyzes ADEA and ELCRA claims under the same standards. Geiger v. Tower

Auto., 579 F.3d 614, 626 (6th Cir. 2009). But see Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523 n.2 (6th Cir.

2008) (noting that Michigan requires a higher causation standard for ELCRA retaliation claims); see also Richardson

v. Wal-Mart Stores, Inc., 836 F.3d 698, 703 (6th Cir. 2016) (noting a discrepancy over whether ELCRA requires a

showing that age “was a determining factor in the adverse employment decision[]” or a “but-for” cause of the adverse

employment decision); see also Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 438–39 (6th Cir. 2002) (noting that

Michigan law requires a higher burden on plaintiffs at the pretext stage). For this case, we analyze the ADEA and

ELCRA claims the same, like in Geiger. And we need not apply Hopson here because we do not find a genuine issue

of material fact as to pretext under the general standard anyway.

6

And Brown sued for FMLA interference. The district court found that she abandoned this claim, and Brown

did not appeal that finding.

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

retaliation claims. This appeal followed, in which Brown argued that Defendants’ reason for

failing to transfer or rehire her was a pretext for discrimination and retaliation.

II.

We review grants of summary judgment de novo. Redlin v. Grosse Pointe Pub. Sch. Sys.,

921 F.3d 599, 606 (6th Cir. 2019). Summary judgment is appropriate if “the movant shows that

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). And we view the evidence in the light most favorable to the

nonmoving party. Redlin, 921 F.3d at 606.

III.

Plaintiffs can support discrimination and retaliation claims using either direct or indirect

evidence. Indirect evidence is evidence that requires “a factfinder to draw [] reasonable

inference[s] that discrimination occurred.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564,

570 (6th Cir. 2003) (en banc). By contrast, direct evidence does not require a factfinder to draw

any inferences to conclude that the employer wrongfully discriminated. Rowan v. Lockheed

Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). When a plaintiff relies on indirect

evidence to show discrimination in violation of the ADA, PWDCRA, ADEA, or ELCRA, the

McDonnell Douglas burden-shifting framework applies. See McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802–04 (1973); see also Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir.

2016) (applying McDonnell Douglas in an ADA and PWDCRA situation), abrogated on other

grounds by Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308 (6th Cir. 2019); Geiger v.

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Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009) (applying McDonnell Douglas in the ADEA and

ELCRA context).

Under McDonnell Douglas, (1) a plaintiff must establish a prima facie case of

discrimination; then (2) the burden of production shifts to the defendant to show a legitimate,

nondiscriminatory reason for the way it treated the plaintiff; and (3) if the defendant does so, the

burden of production shifts back to the plaintiff to show that the defendant’s articulated reason was

pretext for the adverse employment action. Morrissey v. Laurel Health Care Co., 946 F.3d 292,

298 (6th Cir. 2019).

For this appeal, we assume Brown has established a prima facie case of discrimination.

And Defendants have articulated a legitimate, nondiscriminatory reason for the company not

transferring or rehiring Brown: Brown’s job performance.7 Harper v. City of Cleveland, 781 F.

App’x 389, 396 (6th Cir. 2019) (noting that “poor performance [is a] legitimate reason[] for an

adverse-employment action”); Akers v. Alvey, 338 F.3d 491, 499 (6th Cir. 2003) (rehire context).

So we only analyze the last burden-shifting prong—whether Brown presented a genuine dispute

about whether Defendants’ stated reason for not transferring or rehiring Brown was pretextual.

A plaintiff can establish pretext by showing that the proffered reason: “(1) ha[d] no basis

in fact; (2) did not actually motivate the [adverse employment] action; or (3) [was] insufficient to

warrant the [adverse employment] action.” Hostettler v. Coll. of Wooster, 895 F.3d 844, 858 (6th

Cir. 2018) (quoting Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 431 (6th

Cir. 2014)). Parties need not follow the categories rigidly. The categories simply provide a

7

The dissent claims that Defendants’ articulated reason for the alleged failure to transfer is that “they just

‘didn’t think about it.’” Yet in their brief, Defendants never pointed to that comment from one of the many employees

at the company as the reason they failed to transfer Brown. Even worse, Brown herself never makes the dissent’s

argument that Defendants’ reason was because “they just ‘didn’t think about it.’” Rather Brown clearly admits the

fact that Defendants’ proffered reason for not transferring or rehiring her was performance deficiencies (though she

of course disputes whether her performance was poor). (See Appellant’s Br. at 20.)

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“convenient way of marshaling evidence and focusing it on the ultimate inquiry: ‘did the employer

[take the employment action] for the stated reason or not?’” Tingle v. Arbors at Hilliard, 692 F.3d

523, 530 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009)).

Ultimately the plaintiff must produce “sufficient evidence from which a jury could reasonably

reject [the employer’s] explanation of why it fired [or failed to rehire] her.” Chen, 580 F.3d at

400.8 She must meet this evidentiary burden by a preponderance of the evidence. Redlin, 921

F.3d at 607. We look first at the traditional categories and then to Brown’s general arguments.

A.

Brown fails under the first category of establishing pretext because Defendants’ proposed

reason for not transferring or rehiring Brown—poor performance reviews—has a basis in fact.9

8

Although Brown cites the above categories, she does not articulate which of her arguments fall under which

categories. Nor does she separate out the discrimination pretext arguments from the retaliation pretext arguments.

We thus analyze her proffered pretext arguments as applying to both.

Brown makes three pretext arguments in her brief’s Argument section but incorporates the facts from her Statement

of the Case into her Argument section. So we analyze all facts she mentions in the brief to see if a genuine issue exists

over pretext.

9

The dissent faults us for “fail[ing] to address the fact that Defendants have not offered . . . a legitimate

justification for their termination of Brown.” We don’t analyze this because Brown never argued it. In the Argument

section of her brief, Brown does not claim that Defendants’ decision to terminate her was discriminatory or

retaliatory—just their decisions to not transfer or rehire her. (See Appellant’s Br. at 19–23.) And Brown does not

argue discriminatory or retaliatory termination probably because Defendants said they terminated her to reduce the

workforce and she knows she would have had to meet a heightened standard for her prima facie case then. See Pierson

v. Quad/Graphics Printing Corp., 749 F.3d 530, 536–37 (6th Cir. 2014) (“When an employee is terminated as part of

a reduction in force, the employee must meet a heightened standard to prove his prima facie case: He must present

additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled him out for

discharge for impermissible reasons.” (cleaned up) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.

1990))). Brown has not presented such evidence.

What’s more, the dissent frames the failure to transfer inquiry incorrectly by saying “no reduction in force was

necessary,” since there were “open secretarial positions.” “[A] true work force reduction case” is not defined by

whether there are other jobs open at a company. Barnes, 896 F.2d at 1465. Rather, the correct inquiry is whether an

employee’s position was eliminated at the company. Id. And “[t]his Circuit has clearly established that an employer

has no duty . . . to permit an employee to transfer to another position . . . when the employee’s position is eliminated

as part of a work force reduction.” Id. at 1469. So reducing a workforce is distinct from failing to transfer, yet the

dissent equates the two.

And the dissent accuses us of not separating out the failure to transfer versus failure to rehire claims. But the dissent

ignores the fact that all of Brown’s arguments lump the two together. She does not independently distinguish

arguments between failure to transfer and failure to rehire, instead implying that the failure to transfer after her

termination was much like the decision not to rehire her after her termination. So that’s why we analyze the claims

as one.

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To succeed, a plaintiff must show that the employer’s proffered reasons never occurred or were

factually false. Peters v. Lincoln Elec. Co., 285 F.3d 456, 470 (6th Cir. 2002). Brown never

received an OC overall rating in all her years working for Lipanski. And she received worse

ratings in the second half of her time with the company than in the first half; in two of the last five

years at the company, she received IR ratings, not even SC ratings. Brown contends that she “had

historically good performance ratings.” (Appellant’s Br. at 20.) But disagreeing with an

employer’s “assessment of [] performance . . . does not render [the employer’s] reasons

pretextual.” Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 725–26 (6th Cir. 2012) (ellipsis in

original) (quoting McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990)). Brown

has not shown evidence that IRs and SC (what she received) were average or above-average ratings

for secretaries at the company—i.e., historically good.

And Brown’s evaluations undeniably contained criticism. For example, Brown received

the lowest possible score in the communication subcategory three years in a row. Her performance

evaluations across several years noted that Brown tended to be defensive and abrupt. In addition,

Brown struggled to perform critical job responsibilities. Lipanski repeatedly admonished her that

she needed to improve in booking hotel and travel arrangements. On top of that, Brown had a

problem with consistency. She received the lowest possible score for consistency back in 2013.

Ever since then, Brown’s other performance evaluations flagged her inconsistent work product.

Finally, she had a history of making careless mistakes that would often affect the rest of her team.

Those mistakes included mismanaging Lipanski’s schedule. And Brown’s performance

evaluations consistently criticized her for making easily correctable errors. All in all, Defendants

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

assessed these evaluations as not good enough for rehire. Brown has not produced evidence

showing why the company gave a factually false assessment of her ratings.

Second, Brown has not shown that these poor performance reviews did not motivate the

decision to not rehire Brown.10 To succeed here, Brown must provide evidence “which tend[s] to

prove that an illegal motivation was more likely than that offered by the defendant.” Brennan v.

Tractor Supply Co., 237 F. App’x 9, 9 (6th Cir. 2007) (brackets in original) (quoting Manzer v.

Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994), overruled on other grounds

by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)). Simply put, her evaluations stand. Brown

has not shown by a preponderance of the evidence that discrimination or retaliation for disability,

age, or FMLA leave motivated the decision to not rehire more than Brown’s evaluations did.

Third, the company’s reasons warranted the decision not to rehire Brown. Brown argues

that the company did not let her go for performance issues and then pretextually pointed to her

performance issues as grounds for not rehiring her. It is true that letting an employee go for reasons

unrelated to performance and then not rehiring allegedly because of performance can provide

pretext evidence. See Geiger, 579 F.3d at 625. At the same time, this is only the case if a plaintiff

shows the employer acted with discriminatory animus. Id. Brown didn’t. Indeed, she only gave

conclusory statements that pretext overcame the company’s reasons. And that’s not enough for

discriminatory animus. See Corrigan v. U.S. Steel Corp., 478 F.3d 718, 728 (6th Cir. 2007)

(finding that conclusory statements that pretext existed do not provide pretext evidence). Faced

with a chance to hire better performing individuals, the company permissibly chose to take that

risk, without animus.

10

To argue that her prior performance did not actually motivate the decision to not rehire her, Brown

necessarily concedes the factual bases of the company’s decision. See Chattman v. Toho Tenax Am., Inc., 686 F.3d

339, 349 (6th Cir. 2012) (arguing under the second category requires “admit[ting] the factual basis underlying the

employer’s proffered explanation and further admit[ting] that such conduct could motivate dismissal[]”).

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To this argument, Brown adds that the company’s policies mandate her rehire.11 Yet

McGunagle noted that an internal candidate need not automatically fill an open position if no one

fits. And nothing in the TRW Recruitment Process flowchart or Job Posting Policy requires the

company to transfer or rehire internal candidates. The decisionmakers did not discriminate simply

because they hesitated after reading Brown’s evaluations. At bottom, different standards can exist

for firing versus rehiring, if discriminatory animus does not motivate the decision to not rehire.

See Geiger, 579 F.3d at 625.

B.

Brown also argues points that do not noticeably fall under the traditional categories for

showing pretext. She’s allowed to do so. See Miles v. S. Cent. Human Res. Agency, Inc., 946 F.3d

883, 888 (6th Cir. 2020). So we analyze those claims in turn.

Brown claims that the alleged decisionmakers—McGunagle, Hoye, and Zazzetti—knew

about her disability, her FMLA leave, and her attorney’s February 2016 letter threatening legal

action.

First off, Brown has not provided enough evidence showing that McGunagle is a

decisionmaker. Joe Cantie told McGunagle that the company planned to let Brown go. Then the

company’s Talent Acquisition Recruiters and the Hiring Managers, not the HR Managers, decided

who to hire after Brown left.

11

The dissent claims that we fail to analyze Defendants’ alleged, informal “policy of appointing qualified

internal candidates to open positions before posting job openings online.” Again, we analyze this “policy” issue in

the way that we do because, at best Brown only mentions that there existed a policy that “required” and “direct[ed]”

her transfer. (See Appellant’s Br. at 10.) She doesn’t press any argument about an informal transfer policy. Plus, her

only reference to an alleged mandatory policy is found in the Statement of the Case section of her brief, the facts of

which we’ve liberally incorporated as part of her argument, to her benefit, even though she failed to explicitly make

any arguments about the alleged policy in her Argument section.

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What’s more, “[s]tatements by nondecisionmakers, or statements by decisionmakers

unrelated to the decisional process itself [cannot] suffice to satisfy the plaintiff’s burden . . . .”

Geiger, 579 F.3d at 621 (second alteration and ellipsis in original) (quoting Bush v. Dictaphone

Corp., 161 F.3d 363, 369 (6th Cir. 1998)). So McGunagle’s “this girl is never here” comment

lacks relevance. Even if McGunagle were a decisionmaker, her statement does not relate to the

decision to let Brown go. McGunagle said this when talking about categorizing a day off work,

months before Brown left the company.12

As for Hoye, Brown alleges that because she had access to Brown’s disability self-

identification records, Hoye knew Brown had a disability. But Hoye swore under oath that she

did not open Brown’s forms. “[M]ere conjecture that the employer’s explanation is a pretext for

intentional discrimination is an insufficient basis for denial of summary judgment.” Lindsay v.

Yates, 578 F.3d 407, 421 (6th Cir. 2009) (quoting Peters, 285 F.3d at 470); see also E.E.O.C. v.

Ford Motor Co., 782 F.3d 753, 769 (6th Cir. 2015) (en banc) (“Any negative inference from

[plaintiff’s] testimony is unreasonable because it comes unaccompanied by facts in the record,

save [plaintiff’s] own speculation. . . . [S]peculation . . . does not create a genuine dispute of

fact . . . when it is blatantly contradicted by the record.” (internal quotation marks omitted)); Allen

v. Wal-Mart Stores, Inc., 602 F. App’x 617, 621 (6th Cir. 2015) (A plaintiff cannot meet her burden

for pretext by mere “speculation in the face of documentary proof and deposition testimony . . . .”);

Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 620 (6th Cir. 2003) (Allegedly

12

Contrary to the dissent’s implications, whether someone is a decisionmaker is also relevant at the pretext

stage, not merely the prima facie stage. See Rachells v. Cingular Wireless Emp. Servs., LLC, 732 F.3d 652, 665–66

(6th Cir. 2013) (discussing cases that look at statements by decisionmakers versus non-decisionmakers in their pretext

analyses). On top of that, we find it odd that the dissent accuses us of not analyzing Brown’s prima facie case, because

assuming the prima facie case clearly only benefitted her anyway.

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“manipulated” scores—the purported pretextual evidence—“amount[ed] to nothing more than

unsupported speculation.”).

Just because Hoye accessed Brown’s application in Kenexa does not create a genuine issue

over Hoye’s sworn word. Of course Hoye looked at Brown’s Kenexa profile. Her job required it.

Brown speculates that Hoye read the disability information. But such conjectures fail to prevent

summary judgment. See Ferrari, 826 F.3d at 897–98 (finding that a plaintiff must present evidence

of both access to a file and review of it, not simply an opportunity for review, for the plaintiff to

show pretext).

Even assuming she did read the disability information, mere knowledge of a disability is

not enough to show pretext. See Christopher v. Adam’s Mark Hotels, 137 F.3d 1069, 1073 (8th

Cir. 1998). In Christopher, the plaintiff’s supervisor allegedly discovered the plaintiff’s disability

when looking at her file. Id. The court found no pretext because knowledge only satisfies the

prima facie case. Id. (“Mere knowledge of a disability cannot be sufficient to show pretext.”)

Finally, Brown provides no evidence that Hoye knew about Brown’s FMLA leave or her

attorney’s letter. Brown claiming that Hoye and McGunagle must have spoken about the

disability, leave, or letter when McGunagle walked Brown’s evaluations to Hoye is simply

speculation.

Now Zazzetti. She said under oath that she did not know about Brown’s disability or her

age. And Zazzetti did not discuss FMLA leave with McGunagle. Brown asserts that Zazzetti and

McGunagle must have discussed these, because they spoke on the phone about Brown’s prior

performance. In effect, Brown tries to create a factual question by saying no one should believe

Zazzetti’s testimony. But again, speculation and conjecture do not get Brown over her evidentiary

hurdle. See Lindsay, 578 F.3d at 421; Sutherland, 344 F.3d at 620. With no other proof, Brown

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has not shown a genuine issue about the motivation behind Zazzetti’s choice. And like Hoye,

Brown gave no evidence showing that Zazzetti knew about Brown’s FMLA leave or her attorney’s

letter.13

Brown does note that Zazzetti asked candidates about the appropriate amount of work to

miss. That’s not enough. Although Zazzetti was a decisionmaker for one position, her questions

in interviews were also unrelated to Brown’s desired transfer. See Geiger, 579 F.3d at 621.

Brown also argues that the Recruiters entering “ZF Not Interested” in Kenexa evidences

pretext since the Recruiters did not instead enter “Applicant Not Qualified.” This doesn’t matter.

“ZF Not Interested” does not contradict the idea that her prior performance motivated the decision.

In essence, the company lacked interest because of that prior work.

Next, we see no significance over Lipanski changing Brown’s rating right before Lipanski

left. No one saw Lipanski as a decisionmaker for the positions Brown wanted. Lipanski walked

away before the company let Brown go and well before Brown applied to other jobs. Besides,

Lipanski did not edit Brown’s overall rating from a SC to a SC Minus. She changed one of the

fourteen subcategories from a SC to a SC Minus. This alteration is negligible, especially when

Brown had ten years’ worth of other subcategories that Zazzetti and Hoye could review. We

decline to inflate such a minor edit to the level of creating a dispute over pretext.14

13

The positions for which Hoye acted as the Recruiter and the job for which Zazzetti acted as the Hiring

Manager only accounted for nine of the eleven jobs to which Brown applied. That leaves two more positions. The

company hired another individual for one of those positions before the company let Brown go. So Brown had no time

to even apply. And again, nothing required a transfer. As for the second position, there appears to be a fact dispute

on whether Brown applied. But regardless, Brown failed to show that the decisionmakers for that position even knew

about her disability, age, or FMLA. Moreover, she’s failed to show that those decisionmakers refused to hire her for

that position because discrimination or retaliation motivated them more than her prior performance. So no genuine

issue of material fact exists over these two positions either.

14

We also see nothing relevant about no one reviewing the 2015 evaluation with Brown before she left.

Brown admitted that supervisors and employees usually review evaluations together in February during the next year.

But Brown no longer worked for the company in February 2016. So this argument lacks relevance.

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

Finally, for age only, Brown points to the same statistical evidence that she used to show

her prima facie case. Although a plaintiff need not always “produce additional evidence to support

a finding of pretext[,]” if the plaintiff points to evidence that she already presented, it must

specifically rebut the employer’s proffered legitimate, nondiscriminatory reason. Blair v. Henry

Filters, Inc., 505 F.3d 517, 533 (6th Cir. 2007), overruled on other grounds by Gross, 557 U.S. at

177 n.4. And again, Brown must show that the “illegal motivation was more likely the reason for

the adverse employment action.” Id. at 533 n.15. She has not shown us any evidence that age

more likely motivated the decision not to rehire her. Unlike in Blair, where the evidence of many

age-related comments and derogatory statements almost amounted to direct evidence, see id. at

524–28, Brown simply gives statistical evidence. That prima facie evidence is not enough to show

pretext too.

* * *

For these reasons, we find that Brown failed to show a genuine issue of material fact as to

pretext for her age and disability discrimination claims and age, disability, and FMLA leave

retaliation claims. We AFFIRM.

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CLAY, Circuit Judge, dissenting. Plaintiff Darlene Brown has demonstrated a genuine

dispute of material fact at each stage of the McDonnell Douglas inquiry. Therefore, I cannot agree

with the majority’s conclusion that ZF TRW is entitled to judgment as a matter of law. On a motion

for summary judgment, this Court’s function is not “to weigh the evidence and determine the truth

of the matter” itself. Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 775 (6th Cir.

2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Rather, the only

question presented in this case is whether a reasonable juror could find that ZF TRW discriminated

against Brown on the basis of her disability and age. Because a reasonable juror in this case could

easily find in Brown’s favor, I respectfully dissent.

I. Statement of Facts

Darlene Brown is disabled within the meaning of the relevant statutes. She suffers from

recurring asthmatic and respiratory problems that require her to use portable oxygen therapy, a

wheelchair, and at times to take medical leave from work. Unfortunately, her respiratory symptoms

cannot be controlled through the use of an inhaler. Sometimes Brown’s oxygen levels drop so low

that her body’s core functioning begins to fail, and she has to go to the emergency room. Once

there, she is placed on heavy duty steroids and undergoes oxygen therapy and breathing treatments

every three or four hours. Every time that Brown took FMLA leave during Defendants’ employ,

she was in the hospital as a result of her medical condition. She would usually stay in the hospital

for approximately five days and then would return home to recover, continuing her breathing and

steroid treatments. As soon as she received a doctor’s approval, she would return to work.

Brown’s transition back to work from FMLA leave was not always easy. At times,

Defendants did not allow Brown to sit at her own desk after she returned from leave. For example,

on one occasion, Defendants allowed a temporary contract worker to sit at Brown’s desk for two

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

weeks upon Brown’s return from leave and required Brown to sit in a separate office organizing

binders for an ongoing litigation. At another point, Brown’s supervisor, Ann Lipanski, chastised

Brown for her time away from work. According to Brown, early on in her role as Executive

Secretary, Lipanski was very upset that Brown took time off for FMLA leave. Lipanski told Brown

that if she wanted to make the job part-time, she could do so, but otherwise Lipanski needed her

to be at work (i.e., not exercising her rights under the FMLA). On another occasion, Brown met

with Human Resources Director, Lisa McGunagle, after an FMLA leave in 2015. During that

meeting, McGunagle remarked to Brown that she had been looking over Brown’s records and

thought “wow, this girl is never here.”

Brown worked for Kelsey-Hayes Company for twelve years. From 2003 through 2006, she

worked as an administrative assistant within the finance department. From 2007 until her

termination, Brown worked as the Senior Executive Secretary for Ann Lipanski, the Vice President

of Internal Audit.

In May 2015, German auto supplier ZF Friedrichshafen AG acquired TRW Automotive

Holdings Corp., including its subsidiary Kelsey-Hayes Company. In November, Brown’s

supervisor, Lipanski, decided to voluntarily leave the company as a result of the merger. Notably,

after Lipanski announced her resignation, Defendants did not consider what would happen to

Brown. For two months, Defendants did not consider whether they should place Brown into

another secretarial position as a result of Lipanski’s resignation, even though there were several

positions available at the time.

Then, on December 4, 2015, Lipanski’s last day of work, Lipanski decided to downgrade

Brown’s 2015 performance review. She changed Brown’s rating in the subcategory for “T&E

Administration, Reservations, and Expense Reporting” from a “Solid Contribution” to a “Solid

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

Contribution Minus.” Contrary to practice over the past ten years, Lipanski never discussed

Brown’s 2015 performance review with her.

Brown presents ample evidence that Lipanski’s resignation provided Defendants with a

convenient excuse to illegally terminate her based on her disability and age. In January 2016, ZF

TRW decided that Lipanski would not be replaced. At that time, neither Joe Cantie, the CFO of

the former TRW Automotive Holdings Corp., or Lisa McGunagle, the Human Resources Manager

for IT and Finance, considered any other secretarial positions to which Brown could be transferred.

According to Cantie, he assumed that it would be HR’s responsibility to look into transferring

Brown. According to McGunagle, she just “didn’t think about it.” 1 (R. 23, Pg. ID 571.)

1

McGunagle’s testimony from the ADR proceeding went as follows:

Q. Did you make that conclusion [that Brown’s position would be eliminated] or did someone tell

you that?

A. Someone told me probably that first week of January.

Q. And who would that have been?

A. Joe Cantie.

Q. So, he says Darlene Brown’s position is going to be eliminated?

A. Correct.

Q. Do you take any steps at that point to try and identify any other positions she might be able to fill?

A. No.

Q. Why not?

A. I didn’t really think about it.

Q. So, wouldn’t that be part of you function in HR to do that?

A. Yeah, but I didn’t think about it, to be honest.

Q. Okay. So, you were told she’s going to be eliminated, so you’re just going to eliminate her. No

thought to any other positions she might be able to fit into?

A. No.

(R. 23-5, Pg. ID 571–72.) McGunagle maintained this response throughout her testimony. At another point she

testified:

Q. So, your testimony is you knew there was [an open] position, but it never crossed your mind to

think about putting Miss Brown into that position.

A. Correct.

Q. Okay. Why not?

A. I didn’t think about it.

Q. Wouldn’t that be part of your function in HR?

A. I did not think about it.

(Id. at Pg. ID 572.)

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

Defendants do not provide any explanation for their failure to consider placing Brown into

open secretarial positions. In fact, they admit that Brown’s performance played no role in their

decision to terminate her. During her testimony, Lipanski stated that she never once considered

terminating Brown as a result of Brown’s job performance. Nevertheless, on January 14, 2016,

Cantie and McGunagle had a meeting with Brown in which they informed her that she was being

terminated due to a reduction in force. At that time, there were three job openings for secretarial

positions available: Administrative Assistant reporting to Mamatha Chamarthi, Senior Executive

Secretary reporting to Gerald Dekker, and Executive Secretary reporting to Sharath Reddy.2 All

of these were positions for which Brown was qualified based on her past years of experience as

Senior Executive Secretary reporting to the Vice President of Internal Audit. During her

termination meeting, Brown inquired into the possibility of being transferred to the available

position reporting to Dekker. McGunagle responded that Brown was welcome to apply online and

did not provide Brown with any other information.

Over the next seven months, Brown applied to eleven available secretarial positions at ZF

TRW, including the Chamarthi position, Dekker position, and Reddy position. ZF TRW did not

interview Brown for any of these positions, and they only hired younger candidates who did not

identify as disabled.3

On February 12, 2016, Plaintiff’s attorney sent a letter to McGunagle notifying her that

Brown intended to sue ZF TRW because Brown believed that the decision to terminate her rather

2

The parties dispute whether the Chamarthi position was available at the time of Brown’s termination

meeting.

3

The only exception was Susan German, who is older than Brown. Defendants had previously employed

German as a temporary contract worker, and she was one of the temporary workers who would sometimes cover for

Brown when Brown was on FMLA leave.

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

than place her into open positions was motivated by age and disability discrimination and in

retaliation for her past use of FMLA leave.

II. Discussion

The majority reaches its desired outcome in this case by artificially siloing Defendant’s

decision to terminate Brown from its decision not to rehire her. The majority fails to analyze the

former decision, which necessarily includes Defendants’ decision not to transfer Brown into open

positions within the company, and takes the evidence in the light most favorable to Defendants in

analyzing the latter. In so doing, the majority downplays the clear possibility (in fact, likelihood)

that both decisions were part of an overarching scheme to get rid of an aging, disabled employee.

To start, the majority assumes without deciding that Brown has established her prima facie

cases of disability and age discrimination. And she has. Brown has shown that she is disabled

within the meaning of the relevant statutes and that she was 59 years old at the time of her

termination. ZF TRW subjected Brown to as many as two, and perhaps three, adverse employment

decisions. First, Defendants failed to transfer Brown into available secretarial positions at the

company after Lipanski voluntarily resigned. Then, Defendants terminated Brown. Next,

Defendants failed to rehire Brown for any of the eleven positions to which she applied over the

next several months. Brown was qualified for these available secretarial positions as she had

worked as an administrative assistant in the Finance department for three years and as a Senior

Executive Secretary reporting to the Vice President of Internal Audit for nine years. Defendants

do not dispute that Brown’s performance played no role in their decision to terminate her.

Moreover, ZF TRW, including key decisionmaker Lisa McGunagle, knew that Brown was

disabled. Lastly, Brown was replaced by younger employees, with the exception of one, and none

of whom identified as disabled. Therefore, Brown has established her prima facie cases of

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

disability and age discrimination. See Ferrari v. Ford Motor Co., 826 F.3d 885, 891–92 (6th Cir.

2016) (setting forth the elements to prove a prima facie case of disability discrimination); Deleon

v. Kalamazoo Cty. Rd. Comm’n, 739 F.3d 914, 918 (6th Cir. 2014) (setting forth the elements to

prove a prima facie case of age discrimination).

The majority then hastily skips over the second step of the McDonnell Douglas inquiry.

But that step is important here. Defendants offer two justifications for what they allege were two

independent adverse employment decisions in this case: the decision to terminate Brown and the

decision not to rehire her. First, Defendants say that they decided to terminate Brown due to a

reduction in force. Then, they say that they did not rehire Brown for any of the eleven positions to

which she applied due to her prior job performance. Easy enough. However, the majority and

Defendants conspicuously fail to address the fact that Defendants have not offered any justification

for their decision not to transfer Brown into open secretarial positions rather than terminate her.

That is, Defendants have not offered a legitimate justification for their termination of Brown

because no reduction in force was necessary. The majority skips this step of the McDonnell

Douglas inquiry and fails to analyze whether Defendants’ proffered justification for terminating

Brown (purportedly due to a reduction in force) is itself evidence of pretext for their subsequent

decision not to rehire her.4

4

The majority mischaracterizes Brown’s argument on appeal in attempting to account for this gap in its

analysis. To be sure, Brown does not argue that the termination decision itself was discriminatory or retaliatory. But

she argues that her unnecessary termination is evidence of pretext for Defendants’ subsequent decisions not to transfer

or rehire her. In other words, the fact that Defendants terminated her “ostensibly due to a reduction-in-force” and not

for performance issues casts doubt on their proffered justification for failing to rehire her due to that same performance.

(Appellant’s Br. at 3; see also id. at 22 (“The record evidence in this case clearly created a genuine issue of material

fact as to whether Defendant’s reasons were pretextual. As stated above, Defendants admit that they did not terminate

Plaintiff for performance reasons and never even considered disciplining or terminating her for poor performance

during her 12 years of employment. Yet, they now claim that a ‘documented history’ of poor performance motivated

their decisions to not transfer or rehire plaintiff to open, comparable positions for which she was qualified.”).) While

a relatively nuanced argument, it is an important one, given that “[a]n employer’s changing rationale for making an

adverse employment decision can be evidence of pretext.” Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th

Cir. 2002) (quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.), amended on other grounds,

97 F.3d 833 (6th Cir. 1996)).

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

A review of the record shows that Brown has demonstrated a triable issue as to pretext for

one main reason: Defendants did not need to terminate her. Instead, they could have transferred

her into numerous open positions within the company for which she was qualified. Their failure

to do so casts serious doubt on the legitimacy of their assertion that they terminated Brown out of

necessity and failed to rehire her due to performance issues, and creates a genuine dispute of

material fact as to pretext.

Simply put, there is something inherently suspicious about Defendants’ decision to

terminate Brown for non-performance-related reasons when they could have transferred her to

open positions within the company. Based on this questionable decision, a juror could easily reject

Defendants’ argument that they then decided to change course and refuse to rehire Brown for the

eleven positions to which she applied based on her prior performance. See Chen v. Dow Chem.

Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009) (“At the summary judgment stage, the issue is whether

the plaintiff has produced evidence from which a jury could reasonably doubt the employer’s

explanation.”).

Of course, Defendants were not required to transfer Brown to other available positions for

which she was qualified. But Brown has shown that Defendants have a policy of appointing

qualified internal candidates to open positions before posting job openings online and thereby

permitting external candidates to apply. And Defendants do not dispute that Plaintiff was qualified

for these positions (recall that they admit they did not terminate her due to performance issues).

Therefore, the burden is on Defendants to explain why they departed from their own policy and

terminated Brown rather than transferring her. The only justification they even purport to assert is

that they just “didn’t think about it.” (R. 23-5, Pg. ID 571.) Surely, even the majority would agree

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

that this is not enough to overcome the second-prong of the McDonnell Douglas inquiry and shift

the burden back to Plaintiff to establish pretext.5

By conspicuously failing to analyze this issue, the majority accepts ZF TRW’s version of

the facts as true and draws inferences in its favor. But when drawing all inferences in favor of

Brown, as is proper at the summary judgment stage, it becomes clear that Brown has demonstrated

a genuine dispute of material fact as to Defendants’ failure to transfer her into open positions. That

is, Brown has demonstrated the existence of a factual dispute as to whether Defendants’ alleged

justification for her termination was false, and would cause a reasonable juror to conclude that

their purported justification for failing to rehire her is pretextual. Having established her prima

facie case, the extent to which Brown’s disability and age motivated Defendants’ failure to transfer

her (a decision for which they have offered no legitimate justification) or rehire her is a question

for the jury.

In addition, the majority’s discussion of the relevant decisionmakers in this case and their

respective knowledge of Brown’s disability obscures the main issue: whether a jury could

“reasonably reject” Defendants’ explanation for terminating Brown and then failing to rehire her.

Chen, 580 F.3d at 400. Usually this Court analyzes which individuals made certain adverse

employment decisions against a protected employee at the first stage of the McDonnell Douglas

inquiry in order to determine if an employee has made out her prima facie case of discrimination

or retaliation. See, e.g., Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 306 (6th Cir. 2016)

(discrimination); Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501, 512–13 (6th Cir. 2016)

(retaliation). But in this case the majority assumes without deciding that Brown has established

5

The majority says that “Defendants never pointed to that comment from one of the many employees at the

company as the reason they failed to transfer Brown,” and therefore we do not need to analyze it. Ante at 8 n.7. But

the takeaway is that it was Defendants’ burden to provide a legitimate justification for their failure to transfer Brown

instead of terminating her, see Ferrari, 826 F.3d at 892, and they simply failed to do so.

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

her prima facie cases and from there goes on to analyze pretext. Thus, it is unclear what impact, if

any, the majority’s discussion of the relevant decisionmakers has on its ultimate disposition of this

appeal. Regardless, it is clear that Brown has demonstrated a triable issue as to whether the relevant

decisionmakers in this case knew of her disability and FMLA leave.

First consider Lisa McGunagle, the HR Manager for the IT and Finance departments.

McGunagle is the common thread running through all of the adverse decisions made against

Brown. McGunagle was one of two people at the meeting to inform Brown of her termination (the

other was Joe Cantie, the CFO of the former TRW Automotive Holdings Corp.). When Brown

asked at the meeting about being transferred into open positions, McGunagle told her to apply

online and did not give her any further information. As the HR Manager, it was McGunagle’s

responsibility to consider transferring Brown to available positions within the company rather than

terminating her, but again, according to McGunagle herself, she just “didn’t think about it.” As the

majority recognizes, there is no doubt that McGunagle knew Brown’s age and knew that Brown

is disabled and repeatedly took FMLA leave relating to her disability. In fact, McGunagle was

often the employee who approved Brown’s FMLA leave. In one instance, upon reviewing Brown’s

records, McGunagle remarked to Brown that she thought “wow, this girl is never here.” Thus, at

the very least, Brown has demonstrated a triable issue as to whether McGunagle was a

decisionmaker with regards to the decision to terminate Brown rather than transfer her into open

positions within the company. The majority’s failure to so conclude is a direct consequence of its

failure to question Defendants’ proffered justification for Brown’s termination.

Moreover, even if McGunagle herself was not a decisionmaker with regard to Defendants’

next adverse employment decision (the decision not to rehire Brown), Brown has demonstrated a

triable issue as to whether those who made that decision knew of her disability and FMLA leave

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

as well. This is because McGunagle remained involved with all of the decisionmakers who decided

not to rehire Brown.

For example, Pamela Hoye was the recruiter who assisted in filling eight of the eleven

positions to which Brown applied, including the Dekker position. Hoye had access to the self-

identification of disability and equal employment opportunity forms that Brown submitted with

her various applications. On February 16, 2016, Hoye e-mailed McGunagle to request Brown’s

prior performance reviews. McGunagle then delivered the performance reviews to Hoye in person.

After that meeting, Hoye decided not to select Brown to be interviewed. For the next seven

positions to which Brown applied in which Hoye was the respective recruiter, Hoye declined to

advance Brown to the interview stage.

The majority draws inferences in Defendants’ favor and accepts Defendants’ version of the

events as true when it concludes that Hoye did not open Brown’s disability forms based on Hoye’s

testimony. But the relevant question is not whether Hoye opened Brown’s disability forms.

Instead, the relevant question is whether Hoye knew of Brown’s disability. Brown has

demonstrated a triable issue as to that question for two reasons. First, we do not know what

McGunagle said to Hoye when she dropped off the performance reviews in person. However, we

do know that, after this visit, Hoye failed to advance Brown to the interview stage for any of the

eight available positions that were equivalent to Brown’s prior position within the company.

Defendants’ best explanation for this is that Brown’s prior performance reviews were, at worst,

inconsistent. Moreover, Brown’s evidence shows that simply by accessing her Kenexa profile,

Hoye would have known that Brown is disabled. Indeed, the fact that Brown submitted voluntary

self-identification of disability forms is apparent on the face of her Kenexa profile itself, which

was clearly accessed by Hoye. Therefore, a jury should decide whether Hoye knew of Brown’s

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

disability and the extent to which that knowledge motivated her decision not to recommend Brown

for interviews.

Next, consider Patricia Zazzetti. In February 2016, Brown applied for an executive

secretary position reporting to Zazzetti. Katelyn Silkworth, rather than Pamela Hoye, was the

recruiter responsible for assisting Zazzetti in filling the hiring need. After receiving Brown’s

application, Zazzetti called McGunagle to discuss Brown’s reason for leaving, Brown’s prior

performance, and any concerns that McGunagle might raise regarding rehiring Brown as an

executive secretary. Again we do not know exactly what was said, but following their conversation

Zazzetti decided not to interview Brown. In at least one interview with another applicant, Zazzetti

asked the applicant, “[h]ow much time do you think is acceptable to miss work for any reason

except vacation?” (R. 23-4, Pg. ID 457.) At this stage of the proceedings, we must rationally infer

that this question evinces Zazzetti’s concern that her assistant would take time away from work

for medical reasons, such as by exercising her right to FMLA leave. Therefore, we should find that

Zazzetti’s conduct following her conversation with McGunagle is probative of whether

Defendants’ failure to rehire Brown was discriminatory. See, e.g., Rachells v. Cingular Wireless

Employee Servs., LLC, 732 F.3d 652, 665 (6th Cir. 2013) (“[E]ven the conduct of a

nondecisionmaker may be probative of whether an adverse action directed at a plaintiff was

[discriminatorily] motivated.”).

III. Conclusion

For these reasons, Brown has demonstrated a genuine dispute of material fact at each stage

of the McDonnell Douglas inquiry. Brown has established her prima facie cases of discrimination

and retaliation, including demonstrating a genuine dispute of material fact as to whether the

relevant decisionmakers had knowledge of her disability and FMLA leave. Next, Defendants have

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No. 19-1040, Brown v. Kelsey-Hayes Co., et al.

failed to offer a legitimate justification for their failure to transfer Brown into open positions within

the company. Most importantly, a jury could “reasonably reject” Defendants’ proffered

justifications for firing Brown ostensibly due to a reduction in force and then failing to rehire her

ostensibly due to her prior job performance. Chen, 580 F.3d at 400. Brown’s evidence of pretext

is this: Defendants never needed to terminate her in the first place. But they did, and they then

failed to rehire her for eleven positions that were equivalent to the position that she previously

held. Defendants’ statement that they “just didn’t think about” transferring Brown into some of

these open positions before terminating her is insufficient to entitle them to summary judgment.

Instead, this case should proceed to trial for a jury to decide whether Defendants’ adverse

employment decisions were part of an overall scheme to replace an aging, disabled individual with

younger, non-disabled employees.

28