# Cicero v. Borg-Warner Automotive, Inc.

> Court of Appeals for the Sixth Circuit · January 2, 2002 · 280 F.3d 579

URL: https://www.frixlaw.com/law-library/cases/7009085

## Case

- **Full name:** Thomas L. CICERO and Marlene Cicero v. BORG-WARNER AUTOMOTIVE, INC., a Delaware Corporation, and Borg-Warner Automotive Automatic Transmission Systems Corporation, a Delaware Corporation
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 2, 2002
- **Citations:** 280 F.3d 579; 82 Empl. Prac. Dec. (CCH) 40,959
- **Precedential status:** Published
- **Opinion:** Dissent by Batchelder
- **Judges:** Batchelder, Cole, Gwin
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7009085

## How later opinions describe it (automated extraction)

- holding that by showing that defendants’ justification for firing changed over time, plaintiff had shown genuine issue of fact that defendants’ proffered reason was not only false, but that the falsity was a pretext for discrimination.
- stating that “the majority of ... jurisdictions” interpret similar policy language to mean that “[t]he excess carrier’s duty to defend does not arise until the underlying ... insurance coverage has been paid out”
- explaining the employer never mentioned the plaintiff’s poor performance as a reason for his discharge until the lawsuit was filed and then changed its justifications for his termination two additional times over the course of litigation
- explaining that “[s]hifting justifications over time calls the credibility of those justifications into question”
- noting that the fourth element of a prima facie case of age discrimination is replacement by a younger person

## Opinion text

BATCHELDER, Circuit Judge,
dissenting.
I respectfully dissent. The plaintiffs own undisputed evidence in this case demonstrates that the plaintiff deliberately did not do his job in the way in which he was instructed to do it. Plaintiffs own evidence establishes that he recognized that his relationship with Borg-Warner’s corporate management was at best strained, but he made no effort to improve that relationship; he understood that part of his job was to replace the Federal-Mogul pay system with the Borg-Warner pay system, but he did not complete this change; he admitted that he had been repeatedly advised that he was not to utilize outside legal counsel but nonetheless repeatedly did so; and he repeatedly worked against Borg-Warner’s interests with regard to negotiating — ostensibly on behalf of Borg-Warner — with the union on changes to the employee benefit plans. Whether this case is analyzed under Michigan law or under this circuit’s interpretation of federal law as expressed in Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir.2000), it is clear that the plaintiffs own evidence, without regard to Borg-Warner’s articulated reasons for his discharge, demonstrates that he was not, and he knew that he was not, performing his job satisfactorily. Because plaintiff failed to present evidence to meet the second prong of the prima facie case of the McDonnell Douglas test, I would affirm the judgment of the district court. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7009085. Public record. Not legal advice.