Donald P. SNYDER, Plaintiff-Appellant, v. PIERRE‘S FRENCH ICE CREAM CO., Defendant-Appellee.
No. 13-3382.
United States Court of Appeals, Sixth Circuit.
Oct. 22, 2014.
III.
For the foregoing reasons, the judgment of the district court is affirmed.
BEFORE: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge.
At the time the controversy in this case arose in the summer of 2010, plaintiff Donald Snyder was a 59-year-old former union employee of defendant Pierre‘s French Ice Cream Company. In October 2011, Snyder brought two claims against Pierre‘s under the Age Discrimination in Employment Act (ADEA),
FACTUAL AND PROCEDURAL BACKGROUND
Disparate-Treatment Claim
Pierre‘s is an Ohio corporation that manufactures and distributes ice cream products. In January 2010, the company laid off 11 employees, including seven union members—among them, Snyder. In con-
Pogozelski then resigned on July 20, 2010, and the company had to decide whether and with whom to replace him. The collective bargaining agreement between Pierre‘s and the union, which Snyder helped negotiate, granted Pierre‘s the right to hire a limited number of temporary workers, who then received lower wages than full-time union employees and did not accrue seniority or earn benefits. Because the summer was ending, Pierre‘s president, Shelley Roth, and David Cillian, Pierre‘s manager of operations, “decided that it did not make economic sense to bring back a full-time employeе for the remainder of the season” to replace Pogozelski. Instead, the company hired a temporary worker, who worked part-time at part-time wages and without benefits for six weeks. Several other part-time, temporary positions became available at Pierre‘s while Snyder was at the top of the recall list. Pierre‘s hired temporary workers to fill each of those positions.
Hostile-Work-Environment Claim
In 2007, several years before the lay-offs began, night warehouse manager John Bittinger, who was Snyder‘s direct supervisor and was then 29 years old, began making age-related derogatory comments toward Snyder, who was 53 at the time. Snyder and another employee, Andrew “Ken” Ashcraft, testified that Bittinger called them bоth “old man” and told them they were “too slow” on a daily basis over the course of three years. Snyder testified that Bittinger also asked him repeatedly if he needed a walker or a cane and once asked him if he needed an oxygen tank. Bittinger allegedly told him, “Don, nothing against you personally, but if I was in charge, I would never have hired you, you‘re too old.” One day while Snyder was loading the truck, Bittinger asked Snyder, “Can you handle that, old man?” And, when a truck driver came to the warehouse wearing an oxygen mask, Bittinger told Snyder, “That‘s going to be you pretty soon.” Bittinger‘s comments grew so frequent, Snyder testified, “It was just abuse.” Snyder also testified that he liked his job and did it well, and that Pierre‘s never disciplined, suspended, or terminated him. Still, Bittinger‘s commеnts made Snyder feel stressed, aggravated, frustrated, and humiliated, he said. His coworkers would stand around “kind of chuckling” when Bittinger belittled him.
Snyder approached Cillian several times to inform him of Bittinger‘s harassment. Cillian said he would look into the situation and tell Bittinger to stop making derogatory, age-related comments to Snyder.
Grievance Process
Snyder never filed a grievance while he wоrked at Pierre‘s, saying later that he feared he would be fired, but he did initiate the grievance process after he was laid off. An arbitrator denied his grievance following a hearing. Snyder subsequently filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC), complaining about Pierre‘s use of temporary workers and claiming that Bittinger‘s harassment subjected him to a hostile work environment. The EEOC issued a dismissal and a right-
ANALYSIS
Disparate-Treatment Claim
We review a district court‘s grant of summary judgment de novo. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Snyder claims that Pierre‘s discriminated against him on the basis of his agе when it failed to recall him to his job. The ADEA prohibits employers from discriminating against older employees with respect to compensation, terms and conditions of employment, or privileges of employment because of their age.
Snyder offered no direct evidence of disparate treatment—“that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer‘s actions.” Wexler v. White‘s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (en banc) (internal citation and quotation marks omitted). Direct evidence may “take the form, for example, of an employer telling an employee, ‘I fired you because you are disabled [or elderly].‘” Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir.1998). Thus, in order to prove a disparate-treatment claim using direct evidence, Snyder must tie Pierre‘s adverse еmployment decision—here, a failure to recall to the decision-maker‘s age-based bias. Given the facts in this record, he cannot do so.
Snyder also argues that comments by Sullivan provide direct evidence that the company‘s failure to recall him was based on age discrimination. Although a reasonable jury might find that Sullivan participated in Pierre‘s recall decisions, no reasonable jury could conclude that she discriminated against Snyder based on his age. Snyder must offer sufficient evidence that a reasonable jury could “find by a preponderance of the evidence that age discrimination was a determining factor in the employer‘s decision.” Chappell v. GTE Prods. Corp., 803 F.2d 261, 268 (6th Cir.1986). However, an employee‘s “personal beliefs, conjecture and speculаtion [regarding his employer‘s bias] are insufficient to support an inference of age discrimination.” Id. Snyder identifies only one discriminatory comment that Sullivan allegedly made to him. According to Snyder‘s deposition testimony, Sullivan interviewed Snyder about his discrimination complaints and asked him if the manager before Bittinger made any discriminatory comments against him. Snyder testified that he told Sullivan that his prior manager had not made any discriminatory comments. According to Snyder, Sullivan then said, “[Y]ou was much younger back then, Don ... we was all much younger back then.” No reasonable jury could conclude that Sullivan‘s isolated comment during her investigation of Snyder‘s allegations constituted age discrimination. See id. Snyder was therefore unable to tiе the company‘s recall decision to age discrimination using direct evidence.
Because Snyder failed to offer direct evidence of discrimination, we next address circumstantial evidence of discrimination by applying the McDonnell Douglas framework. Ercegovich, 154 F.3d at 350 (citing McDonnell Douglas Corp., 411 U.S. at 792). Under that framework, the plaintiff must first “pres-
To establish a prima facie case of age discrimination, a plaintiff must demonstrate “by a preponderance of the evidence that: (1) he was a member of the protected class (age forty to seventy); (2) he was subjected to an adverse employment action; (3) he was qualified for the position; and (4) he was treated worse than a younger person.” Barnhart, 12 F.3d at 1390. Pierre‘s concedes that Snyder satisfied the first three elements of a prima facie case. To satisfy the fourth element, Snyder must show that Pierre‘s “replaced him with a younger worker or ... treated similarly situated, non-protected employees more favorably.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521–22 (6th Cir.2008).
Snyder cannot show that Pierre‘s replaced him with a younger worker. An allegation that “the employer assigned the former employee‘s work to an independent contractor that decided to employ younger persons to do the plaintiff‘s work is, without more, insufficient to establish a prima facie case.” Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 786 (6th Cir.2007). In this case, Pierre‘s requested temporary workers from an outside company to fill certain positions, and Snyder offered no evidence that Pierre‘s requested young workers or рlayed any role in choosing the workers the agency provided. Snyder also failed to offer evidence showing that Pierre‘s hired anyone to continue performing his job. Thus, Snyder cannot prove the fourth element of a prima facie case by demonstrating that he was “replaced with a younger worker.”
Snyder also cannot show that Pierre‘s “treаted similarly situated, non-protected employees more favorably.” Mickey, 516 F.3d at 522. “[I]n analyzing the treatment of similarly[-]situated employees, the question is whether the plaintiff has demonstrate[d] that he or she is similarly-situated to the non-protected employee in all relevant respects.” Id. (internal quotation marks and citation omitted; emphasis in the original). Howеver, the non-protected employee need not “be identically situated to the plaintiff in every single aspect of their employment.” Id. (internal quotation marks and citation omitted). Here, Snyder was not similarly-situated to the union employees who were recalled because he was lower on the seniority list and, at the time the other union emрloyees were recalled, the company had sufficient work to justify recalling full-time union employees. There is no evidence to suggest that Pierre‘s had sufficient work to justify recalling Snyder to his full-time position when he was at the top of the recall list. Nor was Snyder similarly-situated to the temporary workers the company employed instead of recalling Snyder because the temporary workers, who are not entitled to the same pay and benefits as union employees, were hired at substantially lower cost to the company. Pierre‘s
Hostile-Work-Environment Claim
Snyder‘s hostile-work-environment claim also lacks merit. To prove a hostilе-work-environment claim under the ADEA, a plaintiff must demonstrate that (1) he is older than 40 years; (2) he “was subjected to harassment, either through words or actions, based on age“; (3) “[t]he harassment had the effect of unreasonably interfering with the employee‘s work performance and creating an objectively intimidating, hostile, or offensive work environment“; and (4) there is some basis for holding the employer liable. Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834-35 (6th Cir.1996). Snyder, of course, satisfies the first element, and a reasonable jury could find that Bittinger subjected Snyder to harassment based on his age. Snyder, however, cannot satisfy the third element of a hostile-work-environment claim.
We assess the totality of the circumstances to determine whether an ADEA plaintiff was subjected to an objectively hostile work environment. See Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir.2008). Factors we consider include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee‘s performance.” Id. (internal quotation marks and citations omitted). In order to show that the harassment interfered with his work performance, Snyder “need not prove that his ... tangible productivity has declined..... The employee need only show that the harassment made it more difficult to do the job.” Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988).
Considering the totality of the circumstances, no reasonable jury could find that Snyder‘s work environment was objectively hostile. See Williams v. Gen. Motors Corp., 187 F.3d 553, 568 (6th Cir.1999). Language and conduct that are “merely offensive” are insufficient to support a hostile-work-environment claim. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The record shows that there was a culture of “shop talk” in the warehouse, and Snyder himself participated in the banter. Bittinger‘s comments did not interfere with Snyder‘s ability to perform his job; Snyder stated that he liked his job and was good at it. Snyder was never disciplined, nor did he receive nеgative performance reviews. Thus, under the totality of the circumstances, Snyder cannot demonstrate that the harassment he alleges was sufficiently severe or pervasive that it created an objectively hostile work environment. The district court thus properly granted summary judgment to the defendant on Snyder‘s hostile-work-environment claim.
CONCLUSION
For all of the foregoing reasons, we AFFIRM the district court‘s decision granting summary judgment to Pierre‘s on both of Snyder‘s ADEA claims.