Stefanski v. W.W. Grainger, Inc. , 155 F. App'x 177 ( 2005 )

No. 04-3485
File Name: 05a0843n.06
Filed: October 12, 2005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANTHONY M. STEFANSKI, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
W.W. GRAINGER, INC., and ) COURT FOR THE NORTHERN
GREGORY EMMERICK, ) DISTRICT OF OHIO
)
Defendants-Appellees. )
Before: NELSON and MOORE, Circuit Judges, and RESTANI, Judge.*
DAVID A. NELSON, Circuit Judge. The plaintiff in this employment case asserted
claims of retaliation under the Family and Medical Leave Act, employment discrimination
based on age, failure to make reasonable accommodations under the Americans with
Disabilities Act, and breach of contract. The district court granted a defense motion for
summary judgment as to all claims, and the plaintiff has appealed.
Upon de novo review, we conclude that no reasonable jury could find that the adverse
employment actions complained of were motivated by the plaintiff’s age or by his taking of
medical leave. Nor could a reasonable jury find, on this record, that the plaintiff was
*
The Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
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disabled or that his employer owes him money under an employment contract. We shall
therefore affirm the judgment entered by the district court.
I
The plaintiff, Anthony Stefanski, became an employee of the defendant, W.W.
Grainger, Inc., when that company bought his previous employer in 1990. In 1995, or
thereabouts, Mr. Stefanski was assigned to a sales position that carried the title of “national
accounts manager.” In this capacity Stefanski reported to a director of national accounts.
He was also supervised by a regional sales manager. Stefanski’s assignment entailed travel
throughout the country, and as a national accounts manager he was expected to work more
than 40 hours per week on a regular basis.
Under the present posture of the case, we must take it as true that regional sales
manager Mike Haskins, one of Stefanski’s supervisors, made several remarks evincing an
“ageist” attitude toward him. In 2001 and earlier Haskins said that Stefanski was “as old as
dirt.” Haskins also told Stefanski, while the two were golfing together, that Stefanski
“sweated like an old man.” Stefanski was born in 1951, and Haskins is “a couple years
younger,” Stefanski judged.
When Mr. Stefanski began reporting to a new director of national accounts, Al
Naramore, Haskins told Naramore that Stefanski underperformed and had a poor work ethic.
Naramore, who had worked with Stefanski previously, told Stefanski of Haskins’ comments
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but said that as far as he (Naramore) was concerned, Stefanski “was still working under a
clean slate.” Nevertheless, according to Stefanski, Naramore became hostile toward him and
began assigning him “impossible” tasks.
In February of 2001 Naramore began documenting several problems with Stefanski’s
performance, including failure to meet sales goals, missed deadlines and assignments, and
lack of follow-through on commitments to customers. In July of 2001 Naramore initiated
a disciplinary process by asking Stefanski to prepare a 90-day business plan.
Stefanski did not submit the requested plan. Instead, in August of 2001, he went on
medical leave for major depression and generalized anxiety disorder. Shortly before the
leave began, one of W.W. Grainger’s customers, Corporate United, asked that its account be
reassigned. Another W.W. Grainger customer, Owens Corning, made a similar request while
Stefanski was on leave. Both customers complained that Stefanski had been insufficiently
responsive to their inquiries. These customers’ accounts were “transitioned” to other national
accounts managers during Stefanski’s leave.
By the time Mr. Stefanski returned to work, which was in November of 2001, Paul
Keyser had replaced Al Naramore as director of national accounts. Keyser immediately gave
Stefanski a written “counseling statement” based on information he had received from
Naramore, Haskins, and George Emmerick, a human resources manager. The counseling
statement assigned specific steps to be taken to improve Stefanski’s performance and warned
that “[f]ailure to complete these tasks . . . may place employment with Grainger at risk.”
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In March of 2002 Keyser gave Stefanski another counseling statement. This one
noted some progress but also noted Stefanski’s failure to meet certain “plan milestones.”
Additional performance problems were documented in April and May of 2002, and Mike
Kazmerski, who replaced Keyser in April, put Stefanski on a formal disciplinary program in
July of 2002.
When Mr. Stefanski returned from medical leave in November of 2001, his
psychologist had recommended that he work no more than 40 hours per week, that he not
travel by air, and that he not take trips requiring an overnight stay. Kazmerski told Stefanski
in the fall of 2002 that the national accounts manager job could not be performed with these
limitations. Upset by this, Stefanski contemplated suicide. Ultimately, however, Stefanski
took two weeks of vacation time and then began another medical leave. He never returned
to work at W.W. Grainger.
In May of 2002 Mr. Stefanski sued W.W. Grainger and human resources manager
Emmerick in an Ohio court of common pleas. The defendants removed the case to federal
district court. An amended complaint filed in November of 2002 set forth claims of
retaliation under the Family and Medical Leave Act, age discrimination, failure to
accommodate under the Americans with Disabilities Act, and breach of contract. (Two
additional claims, invasion of privacy and defamation, are no longer being pursued.)
The defendants moved for summary judgment, and the district court granted the
motion as to all claims. Mr. Stefanski filed a timely notice of appeal to this court.
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II
A
The Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., prohibits
employers from retaliating against employees for the exercise of rights provided by the Act.
See 29 U.S.C. § 2615(a)(1). To make out a prima facie case of retaliation using indirect
evidence,1 a plaintiff must show that he exercised a right protected by the Act, that he was
adversely affected by an employment decision, and that proximity in time suggests a causal
connection between the exercise of the protected right and the adverse employment decision.
See Skrjanc v. Great Lakes Power Service Co., 272 F.3d 309, 314 (6th Cir. 2001). The
defendant then bears the burden of articulating a legitimate reason for the adverse action.
See Gibson v. City of Louisville, 336 F.3d 511, 513 (6th Cir. 2003). If this burden is carried,
the plaintiff can salvage his prima facie case by demonstrating that there is a jury question
as to whether the defendant’s stated reason is a pretext for unlawful discrimination. See id.
The district court assumed that Mr. Stefanski had made out a prima facie retaliation
case by showing that the Corporate United and Owens Corning accounts were taken from
him during his medical leave and that he was given a “counseling statement” immediately
upon his return to work. The court concluded, however, that there was no genuine issue as
1
Mr. Stefanski does not contend that there is direct evidence of FMLA retaliation here.
No. 04-3485
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to whether W.W. Grainger’s stated reasons for these actions were pretexts for FMLA
retaliation. We agree.
Uncontroverted evidence shows that both of the corporate accounts that were taken
away from Mr. Stefanski were taken away only after the companies requested a new account
manager because of Stefanski’s performance. Notes kept by Mr. Naramore state that
Corporate United’s president asked him on August 1, 2001, to reassign that company’s
account because Stefanski “had scheduled several face to face meeting[s] as well as several
conference calls over the past few months and . . . did not show up on the call or for the
meetings without any notice to reschedule.” A subsequent e-mail to Mr. Naramore from a
Corporate United vice president reiterated that Stefanski “ha[d] missed meetings [and]
conference calls” and had “not followed through at customers where he told us he would.”
Similarly, Mr. Naramore’s notes state that a representative of Owens Corning asked him to
reassign that company’s account because of Mr. Stefanski’s failure to respond to inquiries
beginning in February of 2001.
Mr. Stefanski points to evidence that W.W. Grainger terminated its relationship with
Corporate United after the account was reassigned and that W.W. Grainger had “billing
issues” with the Owens Corning account. There is no evidence, however, that W.W.
Grainger instructed Stefanski to neglect the Corporate United account or that Owens
Corning’s complaints about Stefanski had anything to do with “billing issues.” None of the
evidence identified by Stefanski suggests that W.W. Grainger’s decision to “transition” the
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accounts was not in fact motivated by the customers’ requests. We do not think a reasonable
jury could find that Stefanski’s FMLA leave was the real reason for that decision.
As for the counseling statement issued by Mr. Keyser upon Mr. Stefanski’s return to
work in November of 2001, it is undisputed that a disciplinary process had been initiated by
Mr. Naramore before Stefanski went on leave. Naramore’s notes document Stefanski’s
performance problems beginning in February of 2001, and the 90-day business plan that
Naramore asked Stefanski to prepare in July of that year was intended to be a tool for
improving Stefanski’s performance. Given that Stefanski did not submit the requested plan
before taking medical leave, there is nothing suspect about Keyser’s having continued the
disciplinary process upon Stefanski’s return by issuance of the counseling statement
requiring him to take specific steps to improve his performance.2
Mr. Stefanski argues that an improper motive for the counseling statement can be
inferred from the fact that Mr. Keyser relied, in part, on information he received from human
resources manager George Emmerick. There is evidence that Emmerick believed Stefanski
was “faking” his depression and anxiety. But there is no evidence that Emmerick
communicated this belief to Keyser or that Keyser’s decision to counsel Stefanski was based
2
Mr. Stefanski contends that his sales performance was in fact quite good. Be that as
it may, there is no dispute that Naramore documented performance issues and initiated a
disciplinary process before Stefanski took FMLA leave. In these circumstances, we believe,
it cannot be inferred that continuation of the disciplinary process was motivated by
Stefanski’s taking of leave.
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on Emmerick’s belief.3 In sum, we are not persuaded that a reasonable jury could find
Keyser’s issuance of the counseling statement to have been motivated by Stefanski’s taking
medical leave.
B
Mr. Stefanski presented claims of age-based employment discrimination under both
federal and state law. See 29 U.S.C. § 623(a)(1); Ohio Rev. Code § 4112.14(A). Claims
brought under the two statutory schemes are analyzed in the same way. See Little Forest
Medical Center v. Ohio Civil Rights Commission, 575 N.E.2d 1164, 1167 (Ohio 1991), cert.
denied, 503 U.S. 906 (1992).
An employee may prove a claim of age discrimination using either direct or
circumstantial evidence. See Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th
Cir. 2003) (en banc). (The distinction between “direct” and “circumstantial” might puzzle
philosophers, but it does not seem to bother lawyers and judges.) “Direct evidence is that
evidence which, if believed, requires the conclusion that unlawful discrimination was at least
a motivating factor in the employer’s actions.” Id. (internal quotation marks omitted).
Circumstantial evidence allows an inference that unlawful discrimination occurred. See id.
3
Were a jury to find as a fact that Stefanski had been subjected to an adverse action
because the company’s decision-makers believed in good faith that he was faking illness, an
interesting question would be presented as to whether the company could be held liable for
retaliation under the FMLA. Having concluded that there would be no basis for such a jury
finding, however, we have no need to address this question.
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1
Mr. Stefanski argues he has presented direct evidence that his age motivated W.W.
Grainger’s reassignment of the Corporate United and Owens Corning accounts and the
disciplinary actions taken by Messrs. Keyser and Kazmerski in 2001 and 2002. We are not
persuaded that he has done so.
Stefanski relies first on statements made by Rob Rooney, who immediately preceded
Naramore as director of national accounts. But there is no evidence that Rooney’s statements
— references to Stefanski’s experience and status as a “senior person” at W.W. Grainger —
were in any way related to the adverse actions of which Stefanski complains. It is undisputed
that Rooney was no longer Stefanski’s supervisor when the adverse actions were taken, and
Stefanski has not suggested that Rooney influenced Naramore, Keyser, or Kazmerski.
Second, Stefanski relies on remarks by Haskins. In addition to the “old as dirt” and
“old man” comments recounted above, Stefanski says that Haskins called him “old news”
in a meeting with other supervisors. And in a 1998 performance evaluation, Haskins wrote
that Stefanski was “[o]ld Bossert baggage” — a reference, we gather, to Stefanski’s previous
employment with Bossert Industrial Supply, now a division of W.W. Grainger. Again, there
is no evidence that any of Haskins’ animadversions was made in connection with W.W.
Grainger’s decisions to take adverse actions against Stefanski. Some of the remarks
substantially predated the adverse actions, and none of them has been shown to have
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influenced W.W. Grainger’s decision-making. (Keyser testified that he based the November
2001 counseling statement on information received from Haskins, among others, but he did
not testify that Haskins’ input had anything to do with Mr. Stefanski’s age.)
There is no evidence that Naramore, Keyser, or Kazmerski ever made comments about
Stefanski’s age or otherwise exhibited hostility toward older workers. The case at bar is thus
distinguishable from Wexler, where there was evidence that the decision-makers had made
“statements evinc[ing] a discriminatory intent” at “the very time” of the adverse action.
Wexler, 317 F.3d at 572.
2
Absent direct evidence of discrimination, Mr. Stefanski has the burden of establishing
a prima facie case by showing (1) that he was at least 40 years old at the time of the alleged
discrimination, (2) that he was subjected to an adverse employment action, (3) that he was
qualified for his position, and (4) that similarly-situated younger workers received better
treatment than he did. See Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 539 (6th Cir.
2002); Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001). If such a showing is made, the
company must then state a non-discriminatory reason for its actions. If that is done,
Stefanski must show the stated reason to be a pretext for unlawful discrimination. See
Burzynski, 264 F.3d at 622.
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Mr. Stefanski has failed to show that similarly situated younger workers received
better treatment from W.W. Grainger than he did. First, Stefanski presented no evidence that
W.W. Grainger allowed younger account managers to retain accounts that the customers
themselves had asked to have reassigned. Second, although there is evidence that W.W.
Grainger did not discipline two younger account managers whose sales growth numbers were
inferior to Stefanski’s in 2001,4 those employees have not been shown to be similarly
situated. As we have said, Stefanski was not disciplined because of his sales results alone,
but also because of his failure to follow through on customer commitments, his failure to
complete assigned reports, and his failure to meet deadlines. There is no evidence that any
other account manager had similar problems.5
Even if Mr. Stefanski’s indirect evidence established a prima facie case, submission
of the age discrimination claim to a jury would still be unjustified. W.W. Grainger’s
unrebutted evidence shows that the reassignment of Stefanski’s Corporate United and Owens
Corning accounts was precipitated by the customers’ own requests. Those requests were
expressly grounded on Stefanski’s unresponsiveness, not on any actions attributable to W.W.
4
Stefanski contends that three underperforming account managers were not
disciplined, but the record reflects that Keyser verbally counseled one of the employees in
question.
5
Mr. Stefanski argues that he established the fourth element of his prima facie case by
showing that the Corporate United account was given to a younger account manager. We
find this argument unpersuasive. The Corporate United account was cancelled following its
reassignment, and the other reassigned account, Owens Corning, was given to an employee
in her early 50s.
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Grainger. We do not think a reasonable jury could find that the stated reason for the
reassignment of accounts was a pretext or that Stefanski’s age motivated the reassignment.
The disciplinary actions against Mr. Stefanski present a somewhat closer question,
given Mr. Keyser’s testimony that the initial counseling statement was based, in part, on
information he received from Mr. Haskins. But, to repeat, there is no evidence linking
Haskins’ age-related comments to any of the counseling statements issued by Keyser and
Kazmerski. This court has said that
“statements allegedly showing an employer’s age bias are to be evaluated by
considering four factors: (1) whether the statements were made by a decision-
maker or an agent within the scope of his employment; (2) whether the
statements were related to the decision-making process; (3) whether the
statements were more than merely vague, ambiguous or isolated remarks; and
(4) whether they were made proximate in time to the [adverse action].” Peters
v. Lincoln Electric Co., 285 F.3d 456, 477-78 (6th Cir. 2002).
We can find no evidence that Haskins was a decision-maker with respect to the counseling
of Stefanski or that any of Haskins’ age-related comments was made in connection with the
decision-making process. The comments were isolated, and many of them were not
temporally proximate to the disciplinary actions.
Again, there is no evidence whatever that the decision-makers — Messrs. Keyser and
Kazmerski — harbored any bias against older workers. Stefanski presented affidavits of
three salesmen who say that W.W. Grainger fired them because of their age, but those
salesmen were not national accounts managers under the supervision of Keyser and
Kazmerski. Their supervisors were Haskins and district sales manager Sam DiMeo. Perhaps
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Haskins had a bias against older workers, but there is no evidence that any such bias on his
part was a factor in disciplinary actions initiated by Keyser and Kazmerski.
Mr. Stefanski contends that the stated basis for his discipline must have been false
because he did not have any genuine performance problems. But the only evidence he cites
relates to sales growth in 2000 and 2001 and his receipt of a sales-related bonus in 2002.
None of this evidence contradicts W.W. Grainger’s proof that Stefanski missed deadlines,
failed to complete assigned work, and ignored commitments that he had made to customers.
Viewing the record as a whole, we are not persuaded that Stefanski has raised a genuine issue
as to pretext.
C
The Americans with Disabilities Act, 42 U.S.C. §§ 12111 et seq. (“ADA”), prohibits
covered employers from “discriminat[ing] against a qualified individual with a disability
because of the disability of such individual . . . .” 42 U.S.C. § 12112(a). For ADA purposes,
“discrimination” includes “not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability who is an . . .
employee . . . .” Id. § 12112(b)(5)(A).
To prove a failure-to-accommodate claim under the ADA, a plaintiff must show that
he has a disability, that he is otherwise qualified for his position, and that the defendant
refused to make a reasonable accommodation. See Smith v. Ameritech, 129 F.3d 857, 866
No. 04-3485
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(6th Cir. 1997). In the case at bar the district court assumed that Mr. Stefanski was disabled,
but the court held that there was no genuine issue as to whether W.W. Grainger refused to
make accommodations. We do not reach the latter question, because we conclude that
Stefanski failed to meet the threshold requirement of demonstrating that he had a disability.
The ADA defines “disability” as “a physical or mental impairment that substantially
limits one or more . . . major life activities.” 42 U.S.C. § 12102(2). Stefanski has not
identified any “major life activities” that were “substantially limited” by his depression and
anxiety. The only evidence in this regard is a letter from Stefanski’s psychologist to his
lawyer, wherein the psychologist suggested generally that Stefanski’s condition “impacts or
diminishes” his “Activities of Daily Living.” The psychologist did not recommend any
restrictions on Stefanski’s work activities beyond a 40-hour workweek, no air travel, and no
overnight stays when traveling. Those restrictions do not reflect any substantial limitation
of major life activities. Accordingly, summary judgment was proper regardless of whether
W.W. Grainger refused to make a reasonable accommodation.
D
Mr. Stefanski’s breach of contract claim is based on W.W. Grainger’s failure to pay
him approximately $4000 that he says he is owed. Stefanski has not identified the
contractual terms under which the debt allegedly arose. He has shown neither a promise to
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pay nor performance entitling him to payment. On this record, no reasonable jury could find
that W.W. Grainger committed a breach of contract.
AFFIRMED.
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KAREN NELSON MOORE, Circuit Judge, concurring. I concur with the
majority opinion except for part II.B.2. I believe that Mr. Stefanski has established a prima
facie case of age discrimination. Nonetheless, because he has failed to establish a genuine
issue of material fact regarding pretext, the district court properly granted summary judgment
on the age-discrimination claims.