David Payne v. Benteler Auto. Corp. ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0207n.06
No. 21-1238
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 25, 2022
)
DAVID PAYNE, an individual, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
BENTELER AUTOMOTIVE CORP., a ) DISTRICT OF MICHIGAN
corporation, )
Defendant-Appellee. )
OPINION
)
)
Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.
CLAY, Circuit Judge. Plaintiff David Payne appeals the district court’s grant of summary
judgment on all claims in favor of his employer, Benteler Automotive Corporation (“Benteler”),
alleging his termination during a reduction in force constituted age discrimination in violation of
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and Michigan’s
Elliott-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2101, et seq., as well as
alleged reverse race discrimination in violation of the Civil Rights Act, 42 U.S.C. § 1981, and the
ELCRA. For the reasons set forth below, we AFFIRM.
I. BACKGROUND
Benteler manufactures metal automotive products in its plants in Goshen, Indiana; Grand
Rapids, Galesburg, and Holland, Michigan; and Duncan, South Carolina. In February 2000,
Benteler’s Galesburg, Michigan plant hired Plaintiff David Payne as a welder, and later employed
No. 21-1238, Payne v. Benteler Auto. Corp.
him as a machine operator. Payne “identifies as a white, American man.” (Joint Statement of
Material Facts, R. 47, Page ID #165.)
The Galesburg plant had employed hundreds of workers; but in early 2018, two major
projects were scheduled to end. Benteler had been manufacturing parts for the Ford Focus and
GM Sonic, which were both being discontinued. It had secured new projects to replace the lost
work, but the new projects were not slated to begin until the summer of 2019. Anticipating that
the prosperous times at Benteler were coming into a rough patch, Galesburg Plant Manager Guido
Paffhausen directed Human Resources Manager Jennifer Piotrowicz to prepare for a reduction in
force (“RIF”). Although Paffhausen did not know specifically how many of Galesburg’s 320
employees would be terminated, it was clear positions needed to be eliminated.
Piotrowicz, Production Unit Leaders Joan Talbot and Larry Jackson, and Human Resources
Generalist Casondra Meerschaert began the process of reviewing the plant’s employees to make
the difficult decision of deciding who to let go. In evaluating the employees, Paffhousen directed
Piotrowicz to consider the employees’ “quality counselings, . . . attendance, safety counselings,
[and] attitude.” (Piotrowicz Dep., R. 48-7, Page ID #419.) Piotrowicz admits that she did not
consider all historical employee records.
A review of Payne’s job performance provided a mixed picture. Although as of May 4,
2018, he had no issues with attendence, his 2017 performance review indicated that “David only
does what he is instructed to. David needs to apply himself more with work. . . . David needs to
work on meeting cycle times on the cells that he is running. Also when his cell is down he needs
to notify his Team leader in a timely manner. . . . David needs to work on his Team work
[sic]. When his cell is down he will only help others if he is instructed to do
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so.” (Payne Performance Appraisal, R. 48-4, Page ID #351.) Payne was consistently rated as an
average employee.
Piotrowicz finalized a list of employees she believed should be terminated and presented
the names to a management team. On May 4, 2018, Benteler notified Payne he was terminated as
part of the RIF. Benteler gave each employee terminated as part of the RIF, including Payne, an
opportunity to consult with HR representatives from other Benteler plants to discuss
transferring. But because Payne did not drive, he refused to entertain the possibility of working
elsewhere. Payne concedes that no one at Benteler ever spoke to him concerning his age, race, or
national origin in the context of his termination.
In November 2018, Payne commenced this action alleging age discrimination in violation
of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and Michigan’s
Elliott-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws § 37.2101, et seq. Payne further
alleged discrimination on the basis of his race and national origin in violation of the Civil Rights
Act, 42 U.S.C. § 1981, and the ELCRA.
Benteler moved for summary judgment. It argued Payne had failed to present evidence
establishing a prima facie case of discrimination on the basis of age, race, or national origin. It
further argued that even if Payne had succeeded in proving a prima facie case, he failed to establish
that Benteler’s reason for terminating him was pretextual. Payne offered in opposition to summary
judgment an affidavit by his attorney, William Piper, analyzing data related to the terminated and
retained employees in connection with the RIF. His attorney calculated that the average age of the
retained employees was 7.09 years younger than that of the terminated employees. Regarding his
race and national origin claim, his attorney compared the percent of Burmese employees
terminated with the percent of non-Burmese employees terminated.
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Benteler then filed a motion to strike the attorney’s affidavit. It argued that the attorney’s
analysis was inadmissible because (1) Piper was neither an expert witness nor had personal
knowledge of the data analyzed therein, (2) the attorney-witness doctrine bars an attorney from
being his client’s witness in the same matter, and (3) the analysis contained in the affidavit did not
comply with the Federal Rules of Evidence, see Fed. R. Evid. 1006. Piper responded that the
analysis contained in his affidavit was “4th grade math” that “[d]efense counsel, the court, and the
jury” could do.
In a combined order, the district court granted Benteler’s motion for summary judgment
and dismissed Benteler’s motion to strike as moot. The court held that even assuming the affidavit
was proper, Payne had not established a prima facie case of discrimination based on age, race, or
national origin. The court further held that even if his attorney’s statistical evidence was sufficient
for a prima facie case, Payne’s comparator evidence failed to create a genuine question of whether
Benteler’s explanation for terminating Payne was pretextual. Payne timely appealed.
II. ANALYSIS
a. Standard of Review
We review summary judgment rulings de novo. Est. of Romain v. City of Grosse Pointe
Farms, 935 F.3d 485, 490 (6th Cir. 2019). Summary judgment is appropriate only where the
movant has shown “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “factual dispute is genuine if it is based
on evidence that a reasonable jury could use to return a verdict for the nonmoving party.” Est. of
Romain, 935 F.3d at 490 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In
evaluating a summary judgment motion, the court is not “to weigh the evidence and determine the
truth of the matter” but rather must “determine whether there is a genuine issue for
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trial.” Anderson, 477 U.S. at 249. The court must construe the evidence in the record and all
inferences to be drawn from it in the light most favorable to the non-movant. Kraus v. Sobel
Corrugated Containers, Inc., 915 F.2d 227, 229 (6th Cir. 1990). Finally, “we may affirm on any
grounds supported by the record, even if different from the grounds relied on by the district court.”
Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 569 (6th Cir. 2001).
b. Age Discrimination
The ADEA and ELCRA both prohibit an employer from terminating or discriminating
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); see also Mich. Comp.
Laws § 37.2202(1)(a) (“An employer shall not . . . discharge, or otherwise discriminate against an
individual with respect to employment . . . because of . . . age . . . .”). “ELCRA age-discrimination
claims are analyzed under the same framework as [ADEA] discrimination claims.” Tilley v.
Kalamazoo Cnty. Rd. Comm’n, 777 F.3d 303, 307 (6th Cir. 2015).
A plaintiff may establish a claim of age discrimination through direct or circumstantial
evidence. See Flowers v. WestRock Servs., Inc., 979 F.3d 1127, 1130 (6th Cir. 2020). Evidence
of discrimination is direct when, “if believed, [it] requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions. . . . Circumstantial
evidence, on the other hand, is proof that does not on its face establish discriminatory animus but
does allow a factfinder to draw a reasonable inference that discrimination occurred.” Wexler v.
White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc) (citations omitted).
When a plaintiff’s claim of discrimination is based solely on circumstantial evidence,
courts apply the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). Thompson v. Fresh Prods., LLC, 985 F.3d 509, 522 (6th Cir. 2021). Under this
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framework, a plaintiff bears “the initial burden of establishing a prima facie case of
discrimination.” Flowers, 979 F.3d at 1130. If the plaintiff satisfies this initial burden, the
employer then bears the burden of articulating some “legitimate, non-discriminatory reason” for
the alleged discriminatory action. Id. Finally, if the employer can articulate some non-
discriminatory reason, the burden shifts back to the plaintiff, who then must prove that the reason
provided “was not the true reason for the employment decision,” id., and instead the reason “was
pretext designed to mask discrimination,” Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812
(6th Cir. 2011). Only the burden of production shifts; “[a]t all times, the ultimate burden of
persuasion remains on the plaintiff to demonstrate that age was the ‘but-for’ cause of their
employer’s adverse action.” Id.We need not dwell on whether Payne has established a prima facie case of age
discrimination because, even assuming he has, Payne has failed to demonstrate pretext. To
establish pretext, a plaintiff must show the defendant’s reason for termination “(1) has no basis in
fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to
warrant the challenged conduct.” Thompson, 985 F.3d at 522 (citations omitted). Because Payne
is choosing to rely on comparator evidence to make his case for pretext, he must present evidence
showing that either: (1) he was the “plainly superior candidate,” such that no reasonable employer
would have retained other employees; or (2) he “was as qualified as if not better qualified” than
the retained employees and the record contains “other probative evidence of
discrimination.” Provenzano, 663 F.3d at 815 (citation omitted). “If two reasonable
decisionmakers could consider the candidates’ qualifications and arrive at opposite conclusions as
to who is more qualified, then clearly one candidate’s qualifications are not significantly better
than the other’s.” Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 628 (6th Cir. 2006).
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The Sixth Circuit has created a high standard for satisfying the burden of proving a plaintiff
is the plainly superior candidate. For example, in Bartlett v. Gates, 421 F. App’x 485, 488–91.
(6th Cir. 2010), which was a failure-to-hire case, the plaintiff challenged his employer’s hiring of
another candidate, Lucas, claiming plaintiff-Bartlett was the plainly superior candidate. We found
that:
Plaintiff had 24 years of experience as a contract administrator, compared to
Lucas’s eight years of experience. In addition, Plaintiff possessed superior
educational credentials, including a bachelor’s degree and advanced course work
in areas relevant to the job, whereas Lucas had not graduated from college. Record
evidence also suggests that Plaintiff’s communication skills . . . were satisfactory if
not superior to Lucas’s own. . . . Plaintiff also had substantially more experience
and familiarity in the area of contract negotiations, which was said to be a “critical
function” of the position.
Id. at 491. Despite these disparities, we “[found] that while Plaintiff may not have been a ‘plainly
superior candidate’ . . . , Plaintiff was as qualified if not more qualified than Lucas.” Id. Thus, to
survive a motion for summary judgment on the basis of being “plainly superior,” Payne must
proffer a significant amount of evidence demonstrating his superior qualifications. Simply being
“more qualified” is not sufficient to prove that he is the plainly superior candidate.
Payne cannot be said to be the plainly superior employee. He complains that no court has
yet considered his comparator evidence on an individual-comparator basis. But we need not trudge
through numerous comparators to resolve this RIF case. By his own admission, Payne was an
average employee. This characterization is consistent with his performance reviews. At the same
time, “[i]n a work force reduction case, unlike a hiring case, we can assume that all of the
employees are qualified to perform their job since they were actually performing it at the time of
their discharge.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1469 n.18 (6th Cir. 1990). Therefore,
Payne asks us to compare an “average employee” against fifteen qualified employees. Under the
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Sixth Circuit’s standard, Payne simply has not proffered enough evidence to convince a reasonable
jury he was the plainly superior employee.
Nor can Payne’s case be saved by arguing that he was as qualified as the retained
employees and that the record contains other probative evidence of discrimination. Even if we
assume that Payne’s comparator evidence proves he was as qualified as any of the fifteen
employees against whom he compares himself, he has not proffered any “other probative evidence
of [age] discrimination.” Bender, 455 F.3d at 626–27. Besides the fifteen comparators, the only
evidence Payne offers is the statistical evidence provided in his attorney’s affidavit. This statistical
evidence calculates the average age of the terminated employees (50.36 years old) and the
averaged of the retained employees (43.27 years old). According to Payne, this 7.09-year
difference suggests that he was terminated because of his age. While he is correct that the average
age at Benteler decreased after the RIF, there is no evidence that Payne was “singled out” because
of his age. Thompson, 985 F.3d at 522. In fact, he even admitted that no one at Benteler ever
commented on his age, race, or national origin.
“[T]he law does not require employers to make perfect decisions, nor forbid them from
making decisions that others may disagree with.” Browning v. Dep’t of Army, 436 F.3d 692, 698
(6th Cir. 2006) (quoting Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996)). Viewing the record in
a light most favorable to Payne, as we must, we find he has not proffered enough evidence to allow
a reasonable jury to infer that Benteler’s stated reason for terminating him had no basis in
fact. Accordingly, the district court properly granted summary judgment on Payne’s age
discrimination claims.
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c. Reverse Race Discrimination
We turn, now, to Payne’s claim of reverse race discrimination. The Civil Rights Act,
42 U.S.C. § 1981, prohibits intentional race discrimination and provides a cause of action for race-
based employment discrimination. The ELCRA similarly prohibits “discriminat[ion] against an
individual with respect to employment, compensation, or a term, condition, or privilege of
employment, because of . . . race.” Mich. Comp. Laws § 37.2202(1)(a).
Under federal and Michigan law, race discrimination, like age discrimination, may be
established by introducing circumstantial evidence using the McDonnell Douglas burden-shifting
approach. Romans v. Mich. Dep’t of Hum. Servs., 668 F.3d 826, 835 (6th Cir. 2012); Hazle v.
Ford Motor Co., 628 N.W.2d 515, 520 (Mich. 2001). Although the elements required to establish
a prima facie case of reverse race discrimination are different under the Civil Rights Act1 and the
ELCRA2, the pretext analysis is the same. Compare Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d
249, 258 (6th Cir. 2002), with Davis v. City of Detroit, No. 351617, 2021 WL 1050170, at *6
(Mich. Ct. App. Mar. 18, 2021) (quoting Debano-Griffin v. Lake Co., 828 N.W.2d 634 (Mich.
2013)). Under both reverse discrimination pretext analyses, Payne bears the burden of proving
Benteler’s reason for terminating him “(1) had no basis in fact, (2) did not actually motivate
defendant’s conduct, or (3) was insufficient to warrant the challenged conduct.” Zambetti,
1
See Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 915 (6th Cir. 2013)
(“In our circuit, to satisfy the first element in a [reverse race dicrimination case], where a member
of a racial majority is claiming discrimination in violation of federal law, the plaintiff must
typically ‘demonstrate background circumstances to support the suspicion that the defendant is
that unusual employer who discriminates against the majority.’” (citation omitted))
2
See Lind v. City of Battle Creek, 681 N.W.2d 334 (Mich. 2004) (holding that under
Michigan’s statute, a reverse discrimination claim does not require a showing of “background
circumstances supporting the suspicion that the defendant is that unusual employer who
discriminates against the majority.”).
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No. 21-1238, Payne v. Benteler Auto. Corp.
314 F.3d at 258.; Davis, 2021 WL 1050170, at *6. For substantially the same reasons as his age
discrimination claims, his race discrimination claims fail as well.
Assuming Payne has established a prima facie case of race discrimination under the federal
and state frameworks, he has not proven pretext. Payne acknowledges that his race discrimination
claim is even weaker than his age discrimination claim, and the district court agreed. Nevertheless,
he argues that Benteler discriminated against white employees by “ha[ving] a clear preference for
Burmese employees, and, therefore, a lack of preference for non Burmese employees.”
(Appellant’s Br. 48.) The only evidence Payne offers in support of his race discrimination claim
is that Benteler terminated a higher percent of non-Burmese employees than Burmese employees,
and that Benteler treated two Burmese employees more favorably than he was treated, even though
he was “significantly better and plainly superior.” (Appellant’s Br. 49.)
This evidence is not sufficient to convince a reasonable juror that Benteler’s reason for
terminating Payne had no basis in fact. His statistics (the percentage of Burmese employees
terminated, and the percentage of non-Burmese employees terminated out of those considered for
termination) suffer from the same shortcomings as those provided in support of his age
discrimination claim, as he has failed to provide any actual analysis of the statistics’ significance.3
See Thompson, 985 F.3d at 527. Additionally, Payne again relies on comparator evidence to argue
that he was the plainly superior employee. He alleges two Burmese employees were treated more
favorably than him “despite their deficient performance.” (Appellant’s Br. 49.) The fact that two
3
Payne seems to conflate being Burmese (a nationality) with being Asian (a race). The
statistics on which Payne also relies do not compare the percent of terminated Burmese employees
against the percent of terminated American employees other than indicate that the percentages
differ, nor do they compare the rate of terminated white employees against the percent of
terminated Asian employees.
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No. 21-1238, Payne v. Benteler Auto. Corp.
Burmese employees (out of 27) are alleged to have been treated better than Payne falls far short of
the quantum of evidence necessary for Payne to be considered the plainly superior employee.
Furthermore, even if we were to assume that he was as qualified as the comparators, he has not
proffered any additional, probative evidence of pretext. In sum, the only evidence Payne proffers
is his attorney’s calculation of the termination rates among Burmese and non-Burmese employees,
and his subjective belief that he was treated worse than two Burmese employees. This is
insufficient.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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