Linda Green v. Township of Addison , 612 F. App'x 830 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0378n.06
Case No. 14-1607
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
LINDA GREEN, ) May 27, 2015
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
TOWNSHIP OF ADDISON; JERRY ) MICHIGAN
MORAWSKI )
)
Defendants-Appellees. )
BEFORE: SILER, COOK, and STRANCH, Circuit Judges.
COOK, Circuit Judge. Linda Green, the former office manager for the Addison
Township Fire Department, alleges that the township fired her because of her age. The fire chief
and township (collectively, “the township”) maintain that economic necessity, not unlawful
discrimination, prompted Green’s termination. The district court granted summary judgment to
the defendants, and Green now appeals. We AFFIRM.
I.
In 1999, the township hired Green as a clerk in its fire department. Over the next ten
years, Green received uniformly positive performance reviews, resulting in numerous raises and
two promotions—first to administrative assistant, then to office manager. Throughout this time,
Green served as the fire department’s sole clerical employee.
Case No. 14-1607, Green v. Addison Township, et al.
In early 2010, Addison Township Fire Chief Jerry Morawski, in consultation with the
township’s assessor and treasurer, began budget projections for the coming year. Addison
Township funds its fire department through taxes on the township’s property values, which
dropped over $50 million from 2008 to 2010. In turn, the fire department’s property-tax
revenues fell from $719,899.04 in 2008, to $666,999.27 in 2010, to $629,588.72 in 2011. While
the department’s resources steadily declined, the township’s demand for fire-and-rescue services
increased, resulting in forty more rescue calls in 2010 than in 2008.
To address these concerns, Chief Morawski decided to eliminate Green’s clerical position
and create a hybrid “firefighter/EMT/office manager” position. Chief Morawski expected the
firefighter/EMT/office manager to perform the department’s clerical tasks and to go on daytime
fire-and-rescue runs. As such, the hybrid position required applicants to possess Michigan Fire
Fighter’s Training Council Firefighter II certification and Michigan EMT-B certification.
After the fire and township boards approved the hybrid position, Chief Morawski offered
it to Green, then fifty-five years old. Though Green lacked Firefighter II training and EMT-B
certification, Chief Morawski offered to send Green to the requisite training programs using
township funds. Before underwriting Green’s training, Chief Morawski required successful
completion of the seven-stage North Oakland Agility Test. Chief Morawski required all novice
firefighter candidates—employment candidates who had not received Firefighter I and II training
and EMT-B certification—to pass this test. He believed that a candidate who failed the test
would likewise fail to complete Firefighter I and II training, wasting the township’s tuition
money.
Receiving less than two weeks’ notice of the agility-test requirement, Green spent a few
hours training with Addison Township firefighters. On testing day, she attempted the “simulated
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rescue” exercise, in which test-takers carry a 120-pound dummy up and down a flight of stairs.
Green quit the simulated rescue after two minutes, never reaching the top of the stairs. Because
the agility test requires successful completion of all seven exercises, Green immediately failed.
Chief Morawski terminated her three days later.
Chief Morawski subsequently posted the hybrid firefighter/EMT/office manager position
on the fire department’s job board. He hired twenty-nine-year-old Angela Haines, a Firefighter-
II- and EMT-B-certified firefighter with some clerical experience. Haines, who had worked as a
part-time, on-call firefighter in the township for four years, never took the North Oakland Agility
Test.
Green sued Addison Township and Chief Morawski, alleging age discrimination in
violation of the federal Age Discrimination in Employment Act and the Michigan Elliot-Larsen
Civil Rights Act, as well as a failure-to-train claim under 42 U.S.C. § 1983 and Monell v.
Department of Social Services, 436 U.S. 658 (1978). The district court granted summary
judgment to the defendants, finding that Green did not establish a prima facie case and did not
show that the township’s justification for her termination was pretextual. Green timely appeals.
II.
We review the district court’s grant of summary judgment de novo. Scheick v. Tecumseh
Pub. Sch., 766 F.3d 523, 528 (6th Cir. 2014). We construe all inferences in the nonmoving
party’s favor, Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013), upholding the
grant of summary judgment if there is no genuine dispute as to any material fact such that the
defendants are entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a); Scheick, 766 F.3d at
529.
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III.
On appeal, Green attacks the district court’s determination that she did not establish a
prima facie case for age discrimination. She also asserts that the district court erred in finding
that the township offered a legitimate, non-pretextual reason for eliminating her position and
terminating her. Even if we assume that Green established a prima facie case, she has not shown
that the township’s reason for terminating her—economic necessity—served as a pretext for
discrimination.
Green need only identify a genuine dispute of fact regarding the legitimacy of the
township’s stated justification to withstand summary judgment. See Wheat v. Fifth Third Bank,
__ F.3d __, 2015 WL 2116129, at *9 (6th Cir. May 7, 2015). Green attempts to do this in two
ways: by arguing that the township’s justification—economic necessity—had no basis in fact and
that it did not motivate the township’s conduct. See Pierson v. Quad/Graphics Printing Corp.,
749 F.3d 530, 539 (6th Cir. 2014). To prove the township’s economic-necessity justification had
no basis in fact, Green must show that the township did not honestly believe in it, i.e., that the
township did not believe it needed to reduce payroll and consolidate positions. See Allen v.
Highlands Hosp. Corp., 545 F.3d 387, 398 (6th Cir. 2008). To show that economic necessity did
not actually motivate the township, Green must identify circumstances that question the veracity
of the economic-necessity justification. She must establish “that the sheer weight of the
circumstantial evidence of discrimination makes it more likely than not that the employer’s
explanation is a pretext, or coverup.” Id. at 396 (internal quotation marks omitted). Under either
method, Green fails to show pretext.
Green first argues that the township suffered no economic hardship at the time of her
termination, rendering its economic-necessity justification baseless. The township garnered
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budget surpluses totaling $167,610.85 in the three years following her termination and made
several large purchases in the same timeframe, including a $5,000 fire truck and a $31,116 GMC
Yukon. These signs of economic health, Green maintains, contradict the township’s claimed
economic malaise.
In fact, the record exhaustively details the township’s deteriorating finances. In early
2010, Chief Morawski projected that the department’s expenditures would exceed revenue if left
unchecked. He concluded that he could reduce payroll, eliminate overtime hours in the day shift,
and meet increased demand by creating a firefighter/EMT/office manager position and
eliminating Green’s job. In short, he “‘made a reasonably informed and considered decision
before taking the complained-of action.’” Allen, 545 F.3d at 398 (quoting Michael v. Caterpillar
Fin. Servs. Corp., 496 F.3d 584, 598–99 (6th Cir. 2007)). Moreover, Chief Morawski’s
projections all proved correct. Revenues indeed declined in 2010, but the creation of the
firefighter/EMT/office manager position reduced payroll expenses. (Compare R. 42-4, Budget
Reports, ($421,936.98 in 2009 wages) with id. ($415,542.45 in 2010 wages) and id.
($399,343.43 in 2011 wages).) Further, Haines performed all the department’s clerical tasks
while answering daytime 911 calls and going on daytime runs. The surpluses do not negate the
department’s declining revenue; they merely reflect the department’s response to the changing
financial landscape. Further, the township purchased the fire truck and GMC Yukon with funds
held for capital expenditures, a budget source not available for paying operating expenses like
salaries.
Green also argues that economic necessity did not actually motivate the township to
eliminate her position, create the hybrid position, and then require her to take the agility test.
She alleges that the township did not believe that she could perform firefighting tasks at age
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fifty-five and therefore forced her to take a test she was sure to fail. The agility test, according to
Green, served as mere pretext—the township terminated her because of her age. See Phuong v.
Nat’l Acad. of Scis., 927 F. Supp. 487, 490 (D.D.C. 1996) (failing to allow an employee to
become proficient in her new duties before terminating her can give rise to an inference of age
discrimination).
But Green ignores the relationship between the agility test, the firefighter/EMT training,
and the township’s finances. Under Chief Morawski, the fire department required firefighter
candidates who had not completed Firefighter I and II training to take the North Oakland Agility
Test. Candidates who cannot complete the agility test, according to Chief Morawski, “will likely
be unsuccessful in Firefighter I and Firefighter II training and equally unsuccessful as a
Firefighter/EMT.” Because Firefighter I and II are physically demanding courses, “candidate[s]
. . . ha[ve] to pass the agility test so they don’t fail out of fire school and [the township doesn’t]
waste any money” paying for the coursework. Certified firefighters, on the other hand, do not
need to attend township-funded training before beginning work because they have already
successfully completed fire school. The township therefore lacks a financial incentive to pre-
screen them with the agility test.
Green presents no evidence to contradict the above facts or call them into question. She
admits that Chief Morawski offered to pay for her to attend fire school because the township
wanted another full-time firefighter during the day shift. She does not dispute that Chief
Morawski required all novice firefighter candidates to pass the agility test before the township
paid for their training. While firefighters hired by Chief Morawski’s predecessor took the agility
test after firefighter school, Chief Morawski never permitted this. Green presents some evidence
that she might have passed the agility test after extensive, township-funded training. But she
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presents no evidence that economic necessity did not actually motivate the township to create a
consolidated position that would cut payroll. Nor has she pointed to any evidence that economic
necessity did not motivate the township to require Green to pass the agility test before paying for
fire school. The township treated Green as it treated every other firefighter candidate, and
accordingly, Green’s ADEA and ELCRA claims fail. See Tilley v. Kalamazoo Cnty. Rd.
Comm’n, 777 F.3d 303, 307 (6th Cir. 2015) (noting that Michigan courts use the ADEA
framework to analyze ELCRA claims). Green’s § 1983 claim also fails because she does not
present a constitutional injury. Scott v. Clay Cnty., Tenn., 205 F.3d 867, 879 (6th Cir. 2000).
IV.
For these reasons, we AFFIRM the judgment of the district court.
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