Ramona DeBra v. JPMorgan Chase & Co. ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0459n.06
No. 17-1411
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
RAMONA DEBRA ) Sep 05, 2018
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
JPMORGAN CHASE & COMPANY ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
Defendant-Appellee. )
)
)
BEFORE: MOORE, GIBBONS, and ROGERS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. In this appeal, we are asked to determine
whether Ramona DeBra’s age discrimination case should survive summary judgment and go
before a jury. The ultimate issue is whether DeBra has presented sufficient evidence to
demonstrate that the legitimate non-discriminatory reason offered by her employer JPMorgan
Chase & Company (“Chase”) for her termination was in fact pretext for age discrimination.
Because she has failed to do so, we affirm the district court’s grant of summary judgment.
I.
A.
DeBra began working as a part-time teller for Chase1 in 1996 and remained a teller
throughout her employment with the bank. As a teller, her duties included handling cash properly,
1
Technically, DeBra started at NBD Bank, which later became JPMorgan Chase after a succession of mergers and
acquisitions.
No. 17-1411, Ramona DeBra v. JPMorgan Chase & Company
processing transactions accurately, and providing good customer service. Although she started at
the bank’s Northland Drive branch, DeBra was transferred to the Ada branch in 2009, and by 2013,
she was splitting her 32-hour work week between Chase’s Ada branch and its Plainfield branch.
Kyle Clements became the branch manager of Ada in 2012, and Kevin Sexton became first the
interim and then the permanent branch manager of Plainfield in 2013. In 2014, once DeBra began
spending twenty of her thirty-two hours at Plainfield, Sexton became her primary manager.
DeBra was not subject to formal disciplinary action until 2014. However, two of her pre-
2014 performance reviews reveal that her supervisors had singled out her cash handling abilities
as areas for improvement. In her 2007 performance review, DeBra was given an overall “meets
expectations” rating but a “needs improvement” rating for her transaction accuracy. In her 2012
mid-year review, DeBra also received an overall rating of “low meets expectations,” and the “areas
for improvement” section contained the admonition that “Ramona needs to remain focused at all
times to detail and accuracy. Immediate attention to bank assets is a must.” DE 40-5, 2012 Mid-
Year Report, Page ID 188.
Moreover, notes taken by Clements in 2012 and 2013 reveal that DeBra made numerous
cash handling and cash control errors, including depositing funds into the wrong person’s account,
ATM-balancing errors, leaving $100 cash in a drawer, and failing to correctly reverse a transaction,
leading to a $700 shortage. The notes also demonstrate that DeBra was asked to improve her
overall attitude and customer service abilities; for instance, Clements wrote on May 22, 2012 that
DeBra was “[w]orking on nails and [left] nail clippings in window,” and twice documented
instances where DeBra was not sufficiently “attentive” to customers. DE 43-5, Clements’s Notes,
Page ID 436. Despite these errors, DeBra continued to receive passable performance reviews and
did not face any formal disciplinary action.
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DeBra’s situation changed, however, when Sexton took over as manager of the Plainfield
branch. In her affidavit, DeBra claims that shortly after Sexton became the interim branch manager
in December 2013, he told DeBra “that he didn’t want to get close to a person, because it would
be more difficult to fire that person.” DE 43-2, DeBra Affidavit, Page ID 403. DeBra believed
that the statement was “directed at me, and it revealed that he was already planning to fire me.”
Id. Sexton denied making the statement.
“Cash controls” refer to the various procedures Chase uses to ensure that a branch is
correctly securing cash, depositing cash into customer’s accounts, and running transactions. Such
procedures include securing cash lockers, coin vaults, and teller drawers; being careful not to leave
cash exposed; and counting cash three times when conducting a transaction. Clements testified
that cash controls are “vital to [Chase’s] business.” DE 40-8, Clements Dep., Page ID 202. Almost
immediately after he became branch manager, Sexton began documenting cash control errors made
by DeBra. He documented twelve cash handling and cash control errors that spanned December
2013 through March 2014. He could not recall making similar notes for other employees at the
branch. Some of DeBra’s errors were minor—leaving $5.00 in the cash counter on one instance
and failing to unjam a $10.00 bill from the counter on another instance. Some were more
significant, such as failing to return a debit card to a customer at the drive-through window or
failing to recover $194.77 that had erroneously been paid to a client.
In December 2013, Sexton contacted Clements about DeBra’s performance issues. Sexton
testified that he wanted to find out whether DeBra’s cash handling mistakes “were isolated
incidents at the Plainfield branch or whether [Clements] had had similar experiences.” DE 43-38,
Sexton Dep., Page ID 628. During his deposition, Sexton was unable to recall whether or not
Clements provided him with documentation of any errors Clements had noticed. Regardless, by
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the end of December 2013 Sexton and Clements decided to put DeBra on a performance
improvement plan (“PIP”). Both Sexton and Clements presented her with the PIP in January 2014;
Clements allegedly delivered the plan while Sexton sat in the room. The PIP identified the
following areas for improvement: “[o]ut of balance frequency which requires additional research
by her and management”; “[l]eaving cash in the currency counters during the balancing process;
“[p]aying clients more money than the transaction required resulting in potential loss”; “[n]ot
following proper procedures during the course of reversing transactions”; and “[p]roper execution
of dual control procedures.” DE 43-9, Performance Improvement Plan, Page ID 448. The PIP
expired on February 3, 2014; at that point, if DeBra had not reached the “expected level of
performance,” the PIP informed her that she could be subject to “corrective action, up to and
including termination.” Id.
DeBra testified that she was “surprised” to receive the PIP, even though she had been
counseled by both Clements and Sexton regarding her December cash control errors. DE 43-37,
DeBra Dep., Page ID 587. She also stated that she told Sexton she thought the PIP was
unnecessary, since she had never before been formally disciplined during her time at Chase.
According to DeBra, Sexton’s response was “well, what if you ended up being terminated and I
had never given you an improvement plan and then I could have never given you a . . . written
notice.” Id. Sexton denies making this statement.
During the PIP period (the month of January), DeBra made two errors: she left her coin
vault unsecured at the end of her shift on January 14, and on January 16 she was $100 short,
meaning that she had $100 less within her control than the teller express system indicated she
should have had. According to the terms of the PIP, DeBra was to receive a “final review to assess
the achievement of expected level of performance.” DE 43-9, Performance Improvement Plan,
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Page ID 448. The date for the final review was set as February 3, 2014. Sexton did not recall
whether he conducted a final review and admitted that he did not tell DeBra that she was no longer
on the PIP when the PIP period ended.
Once the PIP expired, DeBra continued to make cash handling and cash control errors. On
February 14, 2014, while working at the drive-through, DeBra “shorted a client $20.00.” DE 43-
6, Sexton’s Notes, Page ID 441. The client came back to get the $20 and “was visibly upset.” Id.
Apparently, DeBra had put the cash through the cash counter and a $20 bill had stuck in the
counter, which DeBra did not notice. Sexton testified that unless a large amount of cash is
involved, the cash counter “shouldn’t be used for everyday random transactions.” DE 43-38,
Sexton Dep., Page ID 640.2 Ten days later, on February 24, DeBra was given a Written Warning
“due to unsatisfactory performance specifically around cash controls.” DE 43-10, Written
Warning, Page ID 451. The Written Warning listed the two errors DeBra made while on the PIP
as well as the February 14 incident.
Sexton documented three additional errors in March 2014: (1) on March 7, DeBra did not
properly track her hours during the week and failed to correctly complete her balancing procedures,
(2) on March 17, DeBra was $20 short at the end of the day because she had dropped a $20 bill on
the floor without realizing it was there, and (3) on March 28, DeBra did not return a debit card to
client in the drive-through and the client had to return to the branch for the card. Finally, on April
1, 2014, Clements noted that DeBra “[d]id not involve LTOS [lead teller] or MOD [manager]
before telling a customer that a check could not be cashed.” DE 43-5, Clements’s Notes, Page ID
2
Clements did, however, acknowledge that the reason DeBra ran the cash through the counter was because “[s]he
was trying to improve” and was attempting to be extra thorough by running it through the counter. DE 43-38,
Sexton Dep., Page ID 640.
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437. Clements testified that this failure was “not a policy violation,” but “provides a poor customer
experience.” DE 43-36, Clements Dep., Page ID 552.
At some point in April, Sexton and Clements spoke to Nicolette Mendez, their district
manager, about terminating DeBra. Sexton testified that he was the first to suggest she be
terminated. Clements did not think DeBra’s mistakes at his own branch were enough to justify
termination, but he “agree[d] with the termination” in light of “the totality of the issues . . . at the
Plainfield branch and the Ada branch.” DE 43-36, Clements Dep., Page ID 535. Sexton,
Clements, and Mendez then spoke to Human Resources; Sexton stated that he was the one who
recommended termination, but that both Clements and Mendez “concurred.” DE 43-38, Sexton
Dep., Page ID 646. HR approved the decision to terminate DeBra. The recommendation for
DeBra’s termination, prepared on April 10, 2014, lists as the reason her “consistent unsatisfactory
performance resulting in loss and negative customer impact.” DE 43-11, Recommendation for
Termination, Page ID 454. It also listed two more errors from April 2014, which were not
documented in Clements’s or Sexton’s notes: (1) on April 2, DeBra ran a check for $2804 that
should have been run for $2604, resulting in a $200 loss, and (2) on April 7, she “was completing
a night drop for a client which included over $4,000.00 in cash” and, believing the bag was $1,000
short, “contacted the customer before speaking with her manager or having someone else count
the bag and her drawer”; when her drawer was counted, she was $1,000 over, which explained the
inconsistency. Id. DeBra disputes both of these errors.
DeBra was fired on April 14, 2014. She was 59 years old at the time of her termination.
B.
After unsuccessfully appealing her termination internally, DeBra filed a charge of
discrimination with the Michigan Department of Civil Rights (“MDCR”). The MDCR
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investigated her claim and recommended dismissal, concluding that DeBra “failed to show a causal
connection between her age and the respondent’s action” and had provided “insufficient evidence
of unlawful discrimination.” DE 40-17, MDCR Report, Page ID 257. On April 28, 2015, DeBra
filed suit against Chase in Michigan state court, claiming that her termination violated the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Elliott-Larsen
Civil Rights Act, Mich. Comp. Laws § 37.2101 et. seq. Her complaint alleged that other, younger
employees made mistakes similar to those for which DeBra was fired without facing the same
disciplinary consequences. It further alleged that Chase replaced her with much younger tellers.
Chase subsequently removed the lawsuit to federal court.
Chase moved for summary judgment, which the district court granted. Specifically, the
district court found that DeBra had failed to show that she was treated less favorably than similarly
situated employees, one of the essential elements of her prima facie case, because all of her
comparators were managed by Clements, not Sexton—the person DeBra identified as being
responsible for unfairly targeting her based on age. The court further concluded that even if DeBra
had produced enough evidence for a prima facie case, she failed to rebut Chase’s legitimate
nondiscriminatory reason for the adverse action, i.e., her repeated performance errors.
II.
When reviewing a district court’s decision to grant summary judgment, this court applies
the de novo standard of review. Simpson v. Ernst & Young, 100 F.3d 436, 440 (6th Cir. 1996).
Summary judgment is warranted when “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 dispute is “genuine”
if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there is a
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genuine dispute of material fact, this court must view the facts “in the light most favorable to the
party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
A.
The ADEA makes it unlawful for an employer “to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff
bringing an ADEA claim “must prove that age was a determining factor in the adverse action that
the employer took against him or her.” Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir.
1993) (citing Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 299–30 (6th Cir. 1990)).
The Supreme Court has held that the ADEA does not permit “a mixed-motives” claim; instead, a
plaintiff alleging a violation of § 623(a) must prove by a preponderance of the evidence that “age
was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 175, 177 (2009).
B.
The plaintiff may prove but-for causation using either direct or circumstantial evidence.
Gross, 557 U.S. at 177–78. DeBra only offers circumstantial evidence in support of her age
discrimination claim. Circumstantial evidence “is proof that does not on its face establish
discriminatory animus, but does allow a factfinder to draw a reasonable inference that
discrimination occurred.” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (quoting
Wexler v. White’s Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc)). This court uses
the McDonnell Douglas framework to analyze ADEA claims based on circumstantial evidence.
Id. at 622; see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that
framework, a plaintiff must produce enough evidence to establish a prima facie case of age
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discrimination, namely: “(1) membership in a protected group; (2) qualification for the job in
question; (3) an adverse employment action; and (4) circumstances that support an inference of
discrimination.” Blizzard v. Marion Tech. College, 698 F.3d 275, 283 (6th Cir. 2012) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)).
Once a plaintiff sets forth a prima facie case of age discrimination, “the burden of
production shifts to the defendant to articulate a non-discriminatory reason for its action.”
Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001). If a defendant articulates a legitimate non-
discriminatory reason for its action, the burden shifts back to the plaintiff to demonstrate by a
preponderance of the evidence that the defendant’s stated reason was a pretext for age
discrimination. Id. This Circuit recognizes three ways for a plaintiff to prove that the employer’s
stated reason is pretextual: (1) the reason has no basis in fact, (2) the reason did not actually
motivate the discharge, or (3) the reason was insufficient to motivate the discharge. See, e.g.,
Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 725 (6th Cir. 2012). “Regardless of which option
is used, the plaintiff retains the ultimate burden of producing sufficient evidence from which the
jury could reasonably reject [the defendants’] explanation and infer that the defendants
intentionally discriminated against him.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.
2003) (quoting Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir. 2001) (alteration in original)
(internal quotation marks omitted)).
III.
The parties agree that DeBra has sufficiently established a prima facie case of age
discrimination and that Chase has offered a legitimate, non-discriminatory reason for her
termination. Thus, the issue in this case is whether a jury could reasonably infer that Chase’s
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legitimate, non-discriminatory reason—DeBra’s performance errors—was a pretext for age
discrimination.
DeBra’s sole argument is that Chase’s proffered reason “was insufficient to motivate the
defendant’s challenged conduct.” Lefevers, 667 F.3d at 725 (quoting Schoonmaker v. Spartan
Graphics Leasing, LLC, 595 F.3d 261, 268 (6th Cir. 2010)). Showing insufficient motivation
“ordinarily[] consists of evidence that other employees, particularly employees not in the protected
class, were not fired even though they engaged in substantially identical conduct to that which the
employer contends motivated its discharge of the plaintiff.” Manzer v. Diamond Shamrock Chems.
Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (overruled on other grounds, Geiger, 579 F.3d at 621).
DeBra has identified three arguably comparable employees outside the protected class; for
anonymity’s sake, we will refer to them as Teller 1, Teller 2, and Teller 3. We will briefly discuss
each comparator in turn.
A.
Teller 1 was in her late twenties when DeBra was terminated. She was exclusively
managed by Clements. Clements’s testimony and notes indicate that Teller 1 made numerous
errors of comparable magnitude as those made by DeBra, including failure to secure her coin vault,
leaving out customer information at closing, and leaving her cashbox unsecured. Teller 1 also
made two errors that seem more serious than any made by DeBra: on May 2, 2013, she left the
bank branch unlocked overnight, and she received a referral credit for an account on which she
was the secondary owner. She was placed on a formal written warning for leaving the branch
unlocked.
Teller 2, who was also exclusively managed by Clements, was believed to be in her mid-
twenties when DeBra was terminated. In 2014 and 2015, Clements documented numerous errors
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made by Teller 2. Among other mistakes, she forgot her keys several times, left cash unsecured
once, was twice short by almost $500 when balancing, issued a check from the wrong account,
and failed to secure ATM cards and night deposit receipts when closing. The bank also received
three complaints about her attitude, two from customers and one from an employee. In response
to these performance issues, she was given formal coaching sessions.
Finally, Teller 3, who was in her mid to late forties when DeBra was terminated, transferred
to the Ada branch in October 2014 and was managed exclusively by Clements until she was fired
in the spring of 2015. Before her transfer to the Ada branch, Teller 3 had been placed on a PIP
and received two written warnings. She received a Needs Improvement rating on her 2014 year-
end performance review, but continued to have poor performance. Specifically, she made three
errors which stand out as being more serious than those made by DeBra: (1) she failed to properly
secure $20,000 in cash when walking away from the drive-through tube, (2) she incorrectly
processed an $800 deposit for $80, creating a $720 possible loss, and (3) she incorrectly processed
a $100,000 deposit for $10,000, creating a $90,000 possible loss. Clements submitted a
recommendation for her termination on March 17, 2015.
B.
Tellers 1, 2, and 3 all made similar or more egregious mistakes than DeBra but each was
treated with more leniency. Only Teller 3 was fired, but even she was given more chances to
improve than DeBra received before her termination. DeBra was fired four months after being
placed on a PIP, while Teller 3 was not fired until almost ten months after being placed on a PIP;
in the meantime, she had received two written warnings and exposed the bank to a $90,000 loss,
among other errors. This, then, would seem to provide DeBra with sufficient evidence of pretext
to survive summary judgment, were it not for one crucial fact—all of DeBra’s selected
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comparators were managed exclusively by Clements, while DeBra was managed primarily by
Sexton.
Similarly situated comparators must be “similar in all relevant respects.” Bobo v. United
Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012). At one time, we stated that having the same
supervisor was a necessary prerequisite for selecting a similarly situated employee. Mitchell v.
Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). However, we have since clarified that “[w]hether
it is relevant in a particular case that employees dealt with the same supervisor depends on the
facts presented.” Bobo, 665 F.3d at 751 (citing McMillan v. Castro, 405 F.3d 405, 414 (6th Cir.
2005)). This is one such case where the difference in supervisors is highly relevant because here,
the comparators and DeBra were subject to different “ultimate decision-makers.” Barry v. Noble
Metal Processing, Inc., 276 F. App’x 477, 481 (6th Cir. 2008) (citing Smith v. Leggett Wire Co.,
220 F.3d 752, 762–63 (6th Cir. 2000)).
At the time of her termination, DeBra was spending twenty hours of her thirty-two-hour
workweek at the Plainfield branch, managed by Sexton. Sexton was her “primary manager.”
DE 43-36, Clements Dep., Page ID 569. Unfortunately for DeBra, Sexton appears to have been a
much stricter manager than Clements. Sexton initiated the disciplinary process when he contacted
Clements to ask him whether he had noticed any performance issues from DeBra. Sexton was also
the one to suggest that DeBra be terminated; in fact, Clements stated that he did not think her
mistakes at his own branch were enough to justify termination, but he “agreed” with Sexton’s
recommendation based on “the totality of everything that happened.” DE 43-36, Clements Dep.,
Page ID 535. This position appears to be in keeping with Clements’s more yielding nature.
Additionally, in conversation with Human Resources, Sexton recommended termination, while
Clements merely “concurred” in Sexton’s recommendation. DE 43-38, Sexton Dep., Page ID 646.
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In fact, DeBra appears to cast the blame for her termination on Sexton, stating in her brief that
“Mr. Sexton initiated the termination, as Mr. Clements had not seen enough in his branch to justify
it.” CA6 R. 22, Appellant Br., at 20. Thus, Sexton bore ultimate responsibility for DeBra’s
termination while Clements merely deferred to him as DeBra’s primary manager.
Nor was DeBra singled out for scrutiny by Sexton. In his deposition, Sexton stated that he
requested that two other bank employees be terminated in the two years after DeBra was fired.
One, who was in her thirties, worked at the East Grand Rapids branch, and Sexton submitted a
recommendation for termination based on “business account opening errors, just not following
policies and procedures properly.” DE 43-38, Sexton Dep., Page ID 631. He did not place that
employee on a PIP before recommending that she be terminated.3 The other employee, a teller in
his early twenties, was terminated for twice leaving cash unsecured.
DeBra does not argue that Sexton treated younger employees better than she, nor is there
any evidence in the record that he did so. In fact, both employees for whom he recommended
termination after DeBra were significantly younger than she—one was in her thirties, and the other
was in his early twenties. Furthermore, Sexton supervised one teller, Martha Maloney, who was
three years older than DeBra. Sexton characterized Maloney as “an outstanding employee,” and
he never instituted any formal disciplinary actions against her. DE 40-21, Sexton Affidavit, Page
ID 283. While employees with different disciplinary histories are not “similarly situated,” see
Berry v. City of Pontiac, 269 F. App’x 545, 549–50 (6th Cir. 2008), part of DeBra’s theory of the
case is that Sexton immediately began singling her out because of her age. She does not support
3
In fact, Human Resources refused Sexton’s request for termination because they “didn’t feel the case was strong
enough.” This further shows that Sexton had exceedingly high standards for his employees, and sometimes
considered seemingly minor errors as worthy of discipline.
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this theory with any evidence, and in fact Sexton’s assessment and treatment of Maloney suggest
that such age-based animus did not exist.
Finally, DeBra concedes that she committed most of the errors that Sexton relied on to
support her termination, although she attempts to minimize them by calling them “minor, non-
egregious errors” and asserting that “she hadn’t made mistakes that other tellers hadn’t made.”
CA6 R. 22, Appellant Br., at 18. She does dispute the allegation that she did not track her time,
and she also argues that she was not fully responsible for leaving her coin vault unlocked because
Teller 1 was supposed to double-check DeBra’s vault and failed to do so. Disputing two mistakes
but conceding the rest is not the same as “contest[ing] the facts underlying the incident[s] that [led]
to her termination, as the dissent argues. Hamilton v. Gen. Elec. Co., 556 F.3d 428, 437 (6th Cir.
2009). DeBra does not argue that she made no mistakes or was a perfect employee; rather, she
claims that her mistakes were treated differently than those of similarly situated employees. And
as discussed, those employees were not, in fact, similarly situated, since they were all managed by
Clements.
Because Sexton was DeBra’s primary manager and the “ultimate decision-maker” behind
her termination, see McMillan, 405 F.3d at 414, she must show that Sexton treated younger,
similarly situated employees differently. To the contrary, the record reflects that Sexton was an
extremely strict manager, who subsequently recommended for termination two employees who
were younger than DeBra and arguably committed fewer and less egregious errors than she did.
DeBra thus has failed to rebut Chase’s legitimate non-discriminatory reason for her termination.
C.
DeBra also devotes a significant amount of time to arguing that the district court erred by
determining that two statements allegedly made by Sexton were not “material.” These are
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Sexton’s statements that (1) he did not want to get too close to an employee, because then it would
be harder to fire that employee, and (2) he needed to create a paper trail in case he wanted to fire
DeBra later so that he would not get into trouble. Sexton denies making either of these statements.
DeBra argues that Sexton’s denials are lies, and that this “lying about several factual questions
could be interpreted by a jury as a cover up by him of his age bias.” CA6 R. 22, Appellant Br., at
36.
Whether DeBra or Sexton—or perhaps neither or both—are lying about these statements
is not an issue for this court to decide. On review of a grant of summary judgment, we must
assume that DeBra’s version of the facts is true and that Sexton made these statements, but we
need not infer improper animus from his denials. Assuming the statements were said, moreover,
does not make them material. The statements themselves do not indicate that Sexton possessed a
discriminatory animus. Thus, the only way that such statements would be material and suggestive
of a coverup is if DeBra had produced some other evidence that Sexton treated younger, similarly
situated employees differently from DeBra. However, as we have discussed, DeBra has failed to
produce any such evidence. The district court thus did not err in finding these statements to be
immaterial.
IV.
DeBra also raised a claim under Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”).
See Mich. Comp. Laws § 27.2101 et seq. Similar to the ADEA, the ELCRA prohibits an employer
from “discharg[ing], or otherwise discriminat[ing] against an individual with respect to
employment” because of (among other protected characteristics) that individual’s age. Mich.
Comp. Laws § 37.2202(a). ELCRA claims, however, do not require the plaintiff to prove but-for
causation. Instead, a plaintiff suing under the ELCRA must “prove that the defendant’s
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discriminatory animus was a ‘substantial’ or ‘motivating’ factor in the decision.” Provenzano v.
LCI Holdings, Inc., 663 F.3d 806, 818 (6th Cir. 2011). Although ELCRA and the ADEA impose
slightly different burdens of proof on plaintiffs, the same McDonnell Douglas burden-shifting
rubric applies to both claims when they are premised on circumstantial evidence. Id. Since DeBra
has failed to show that any similarly situated employees outside of the protected class were treated
more favorably, her ELCRA claim must also fail. See id. at 819 (holding that plaintiff’s failure to
rebut employer’s legitimate nondiscriminatory reason was “fatal to her ELCRA claim”).
V.
DeBra has not produced any evidence that would allow a jury to conclude that Chase’s
proffered reason for her termination was a pretext for age discrimination. Therefore, she has not
created a jury question as to whether age was the but-for or motivating cause of that termination.
For the foregoing reasons, we affirm the judgment of the district court.
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KAREN NELSON MOORE, Circuit Judge, dissenting. To the majority, this case can
be decided on one purported fact: DeBra was “managed primarily” by Sexton rather than
Clements. Maj. Op. at 11–12. Because this point is neither as settled nor as determinative as the
majority suggests, I respectfully dissent.
The majority is wrong to keep this case from a jury based only on Clements’s slightly more
subsidiary role in supervising DeBra. See Maj. Op. at 11 (agreeing that DeBra has otherwise
presented “sufficient evidence of pretext to survive summary judgment”). As the majority notes,
by the time DeBra was fired, she was “spending twenty hours of her thirty-two-hour workweek at
the Plainfield branch, managed by Sexton.” Id. at 12. But she was undeniably also managed
during this time by Clements, and a reasonable jury could conclude that Clements participated in
the bank’s efforts to discipline and terminate DeBra. Indeed, the record shows that Clements
approved of DeBra’s performance-improvement plan, “coordinated on” the written warning that
he and Sexton foisted on DeBra in March 2014, and agreed with the recommendation to terminate
her employment. R. 43-36 (Clements Dep. at 34–35, 46, 48) (Page ID #535–36); R. 43-38 (Sexton
Dep. at 68–69, 126–27, 134) (Page ID #628, 643, 645). In such circumstances, Clements was as
much one of the “ultimate decision-maker[s]” as Sexton. See McMillan v. Castro, 405 F.3d 405,
414 (6th Cir. 2005). I would therefore hold that DeBra has provided sufficient evidence of
Clements’s preferential treatment of similarly situated younger employees and of his role in her
termination to survive summary judgment.
And even if I were to focus on Sexton, I would not treat Sexton’s non-discriminatory
treatment of another teller who is three years older than DeBra, Martha Maloney, as informative.
DeBra’s claim is that she was treated worse than younger employees who made similar mistakes.
Maloney, whom Sexton describes as “an outstanding employee and high-performing teller,” R.
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40-21 (Sexton Aff. ¶ 8) (Page ID #283), is not a relevant comparator to DeBra, who indisputably
made errors throughout the course of her career with Chase. See Berry v. City of Pontiac, 269 F.
App’x 545, 549 (6th Cir. 2008) (holding that an employee is not a relevant comparator to the
plaintiff when he had a significantly different disciplinary history). The majority acknowledges
this fact but nevertheless suggests that “Sexton’s assessment and treatment of Maloney” undercuts
DeBra’s theory that “Sexton immediately began singling [DeBra] out because of her age.” Maj.
Op. at 14. But the majority should not be testing the strength of DeBra’s “theory of the case,” id.,or weighing the evidence at the summary judgment stage. Sharp v. Aker Plant Servs. Grp., Inc.,
726 F.3d 789, 796 (6th Cir. 2013) (“When ‘reviewing a summary judgment motion, credibility
judgments and weighing of the evidence are prohibited.’” (quoting Biegas v. Quickway Carriers,
Inc., 573 F.3d 365, 374 (6th Cir. 2009))).
What is more, DeBra’s evidence of pretext is not limited to examples of differential
treatment. She also disputes facts undergirding some of Chase’s disciplinary decisions, such as
the claim that she was responsible for tracking her time and failed to do so on March 7, 2014, R.
43-2 (DeBra Aff. at 3) (Page ID #404), and the claim that she was primarily responsible for leaving
a coin vault unsecured on January 14, 2014, given that Teller 1 was supposed to check that DeBra’s
cash drawer and coin vault were secured but failed to do so properly, R. 43-37 (DeBra Dep. at
108–09) (Page ID #591–92). We have previously held that summary judgment in an age-
discrimination case is inappropriate where the plaintiff “contests the facts underlying the
incident[s] that led to [her] termination.” Hamilton v. Gen. Elec. Co., 556 F.3d 428, 437 (6th Cir.
2009). That principle applies with equal force in this case.
Last, DeBra adequately calls into question the “credibility of [her] employer’s explanation”
for her various disciplinary actions and ultimate termination, which is another way for a plaintiff
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No. 17-1411, Ramona DeBra v. JPMorgan Chase & Company
to show pretext. See Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.
1994). For example, DeBra claims that Sexton made two comments to her that revealed an early
interest in firing her. First, Sexton purportedly told her, in a manner that “appeared directed at
[her],” that “he didn’t want to get close to a person, because it would be more difficult to fire that
person.” R. 43-2 (DeBra Aff. at 2) (Page ID #403). Later, after placing DeBra on a PIP, Sexton
allegedly explained that he needed to use such formal disciplinary action in case DeBra “end[s] up
being terminated,” R. 43-37 (DeBra Dep. at 91) (Page ID #587), suggesting that Sexton was using
the PIP not as a means to help DeBra improve but instead as a means to set the stage for her
termination. Sexton disputes making these statements, R. 43-38 (Sexton Dep. at 132–33) (Page
ID #644), and the dispute is material to the case in light of other circumstantial evidence that DeBra
offers of Sexton’s and Clements’s unlawful motives. DeBra claims, for instance, that she never
received weekly sit-down meetings after being given a written warning, even though the written
warning guaranteed that she would receive such support. R. 43-37 (DeBra Dep. at 180) (Page ID
#609). She further claims that she was not confronted with all the incidents leading to her
termination ahead of time, id. at 112 (Page ID #592), even though the recommendation for
termination expressly states that all of the issues listed “have been documented and discussed with
[DeBra],” R. 43-11 (Recommendation for Termination) (Page ID #454). And more minutely,
DeBra disputes the way in which a number of the incidents were characterized in the formal write-
ups. For example, DeBra contests Sexton’s statements in his recommendation for termination that
(1) DeBra’s dropping and finding $20 on the floor on March 17, 2017 “delayed branch closing”
and “impacted other employees and branch expenses,” and (2) “[a] customer complained” after
DeBra inadvertently retained the customer’s debit card following a transaction on March 28,
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No. 17-1411, Ramona DeBra v. JPMorgan Chase & Company
2014.1 Id.; R. 43-37 (DeBra Dep. at 111–12) (Page ID #592). Notably, Sexton’s internal records
of the March 17 and March 28 incidents do not include these details (i.e., the delayed branch
closing, negative effects on employees and branch expenses, and a customer complaint). See R.
43-6 (Sexton Notes at 3) (Page ID #441).
Taken all together, a jury could reasonably infer that Sexton targeted DeBra for
termination, failed to provide adequate support and assistance to help DeBra avoid termination,
and exaggerated the nature of the DeBra’s errors when recommending termination in an effort to
make her conduct seem more egregious to Chase’s HR department. Clements, meanwhile, agreed
to go along with Sexton’s efforts to terminate DeBra, even though Clements had treated younger
tellers in the Ada branch with significantly more leniency. Whether these facts, taken as a whole,
indicate that DeBra was fired because of her age is for a jury to decide.
1
Notably, this so-called mistake—finding $20 on the floor while attempting to balance at the end of day—amounts
to behavior that Sexton testified tellers should do when they discover they are short while balancing. R. 43-38
(Sexton Dep. at 92) (Page ID #634).
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