UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KEITH SHORT, 

 Plaintiff, 

 Case No. 14-12678 

v. 

 HON. DENISE PAGE HOOD 

GERDAU MACSTEEL, INC., 

 

 Defendant. 

_________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART 

MOTION FOR SUMMARY JUDGMENT [Docket No. 17] 

 This matter is before the Court on Defendant Gerdau Macsteel, Inc.’s 

(“Defendant”) Motion for Summary Judgment [Docket No. 17, filed April 16, 

2015]. Plaintiff Keith Short (“Plaintiff”) filed a response opposing the motion 

[Docket No. 19, filed May 7, 2015]. Defendant filed a reply to the response 

[Docket No. 20, filed May 15, 2015]. A hearing on Defendant’s Motion was held 

on June 24, 2015. 

I. BACKGROUND

 Plaintiff was employed by Defendant’s predecessor from March 16, 1990 

until 2008, when Defendant purchased the steel manufacturing facility. Defendant 

continued to employ Plaintiff as a Mechanical Project Engineer until it laid off 

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Plaintiff for five months in 2009. Defendant brought Plaintiff back in December 

2009 as a Maintenance Shift Supervisor and, beginning in 2010, he was the 

supervisor for two areas of the facility (the “Rolling Mill” and the “Machine 

Shop”). Plaintiff received merit raises in at least 2010 and 2011. In 2012, 

Defendant hired David Bussell (“Bussell”) as Plaintiff’s supervisor. 

 In Plaintiff’s 2012 and 2013 performance reviews, he was given the rating of 

“below expectations.” Other maintenance supervisors received the same rating and 

in July 2013, all the maintenance supervisors were rated “below expectations.” On 

January 29, 2014, Bussell placed Plaintiff on a Performance Improvement Plan 

(“PIP”). Plaintiff’s PIP was to “run for just more than 60 days Beginning on 

January 29, 2014] and ending on March 7, 2014. Immediate and continuous 

improvement is required throughout this time period.”1

 [Docket No. 17-10, PgID 

121 (emphasis in original)] The PIP lists four areas of concern and three 

performance issues, but it does not specify tasks or goals for Plaintiff. Id. The PIP 

states that “[f]ailure to [complete the items detailed above and maintain that 

improvement] will result in further discipline, up to and including the termination 

of your employment.” Id. Plaintiff testified at his deposition that he disputed all of 

the concerns and performance issues regarding the PIP during a meeting with 

 

1

 According to Bussell, March 7, 2014 was a typo. [Docket No. 17, PgID 347 

(“That’s a typo. That should have been the end of March.”)] Plaintiff agreed that 

the PIP was to last for 60 days. [Docket No. 19-2, PgID 436] 

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Bussell on or about February 14, 2014, and that he previously had disputed 

Defendant’s complaints regarding his performance in meetings on November 6, 

2013 and January 29, 2014. [Docket No. 19, PgID 382-85; Ex. 1, at 139, 150-51, 

156, 158-62] 

At Plaintiff’s request, Plaintiff and Bussell met regarding the PIP and 

Plaintiff’s satisfaction of PIP goals on March 18, 2014, even though the PIP was to 

remain in effect for at least 11⁄2 weeks longer. At that meeting, Plaintiff requested 

to know what Defendant was going to decide when the PIP was over. Bussell 

maintains that Plaintiff demanded to know Plaintiff’s status vis a vis satisfaction of 

the PIP at that meeting and, because Plaintiff insisted, Bussell informed Plaintiff 

that if Bussell had to make a decision on that day, his decision would be to 

terminate Plaintiff. On March 19, 2014, Defendant notified Plaintiff that he was 

being terminated, effective March 21, 2014. 

Defendant states that it terminated Plaintiff for poor performance based on 

Plaintiff’s failure to meet the requirements listed in his PIP. Plaintiff, who was 55 

years old when he was terminated, believes Defendant terminated him because of 

his age. On July 29, 2014, Plaintiff filed the instant cause of action and asserted 

two claims against Defendant: (1) Count I - Age Discrimination, in violation of 

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 261, et. seq., and 

(2) Count II - Intentional Infliction of Emotional Distress (“IIED”). 

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II. STANDARD OF REVIEW 

Summary judgment is appropriate in cases where “the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of 

demonstrating that summary judgment is appropriate. Equal Employment 

Opportunity Comm’n v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1093 

(6th Cir. 1974). The Court must consider the admissible evidence in the light 

most favorable to the nonmoving party. Sagan v. United States of Am., 342 F.3d 

493, 497 (6th Cir. 2003). 

 “At the summary judgment stage, facts must be viewed in the light most 

favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those 

facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added). To create a 

genuine issue of material fact, the nonmovant must do more than present “some 

evidence” of a disputed fact. Any dispute as to a material fact must be established 

by affidavits or other documentary evidence. Fed. R. Civ. P. 56(c). “If the 

[nonmovant’s] evidence is merely colorable, or is not significantly probative, 

summary judgment may be granted.” Anderson v. Liberty Lobby Inc., 477 U.S. 

242, 249-50 (citations omitted). Accordingly, a nonmovant “must produce 

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evidence that would be sufficient to require submission to the jury of the dispute 

over the fact.” Mathieu v. Chun, 828 F. Supp. 495, 497 (E.D. Mich. 1993) 

(citations omitted). “When opposing parties tell two different stories, one of which 

is blatantly contradicted by the record, so that no reasonable jury could believe it, a 

court should not adopt that version of the facts for purposes of ruling on a motion 

for summary judgment.” Scott, 550 U.S. at 380. 

III. ANALYSIS

A. ADEA Claim 

1. The Law 

 The ADEA prohibits employers from discharging an employee (or otherwise 

discriminating against any employee with respect to his or her compensation, 

terms, conditions, or privileges of employment) because of the employee’s age. 

See 29 U.S.C. § 623(a)(1). In order for the employer to be liable, Plaintiff’s “age 

must have actually played a role in the employer’s decision-making process and 

had a determinative influence on the outcome.” Reeves v. Sanderson Plumbing 

Products, Inc., 530 U.S. 133, 141 (2000) (internal quotations omitted). Plaintiff 

may prove his discrimination claim by direct or circumstantial evidence. Allen v. 

Highlands Hospital Corp., 545 F. 3d 387, 394 (6th Cir. 2008); LeFevers v. GAF 

Fiberglass Corp., 667 F.3d 721, 723 (6th Cir. 2012). 

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 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.” Lautermilch v. Findlay Schs., 314 F.3d 271, 275-76 (6th Cir. 2003). The 

McDonnell Douglas burden-shifting framework is not utilized in direct evidence 

cases. Geiger v. Tower Automotive, 579 F.3d 614, 621 (6th Cir. 2009). Instead, the 

Court must assess the following four factors in considering whether there is direct 

evidence of age discrimination: (1) were the statements made by a decision maker, 

(2) were the statements related to the decision-making process, (3) were the 

statements more than vague or isolated remarks, and (4) were the statements made 

proximate in time to the termination. Peters v. Lincoln Elect. Co., 285 F.3d 456, 

478 (6th Cir. 2002). 

When a claim is based mainly on circumstantial evidence, courts utilize the 

McDonnell Douglas burden-shifting framework. Geiger, 579 F.3d at 622 (citations 

omitted). The first step requires that Plaintiff prove a prima facie case of age 

discrimination. To establish a prima facie case of age discrimination, Plaintiff 

must show that: (1) he is a member of a protected class; (2) he suffered an adverse 

employment decision; (3) he was otherwise qualified for the job or promotion; and 

(4) he was replaced by someone outside the protected class. See Blair v. Henry 

Filters, Inc., 505 F. 3d 517, 528 (6th Cir. 2008); Geiger, 579 F.3d at 622-23 

(citations omitted). 

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If the plaintiff establishes a prima facie case, the burden is shifted to the 

employer to “produce evidence that the plaintiff was rejected, or someone else was 

preferred, for a legitimate, nondiscriminatory reason.” Reeves, 530 U.S. at 142. 

Once a legitimate, non-discriminatory reason is offered, “the McDonnell Douglas 

framework with its presumptions and burdens disappear[s] and the sole remaining 

issue is discrimination vel non.” Id. at 142-43 (internal quotations and citations 

omitted). In other words, once a defendant offers a legitimate, nondiscriminatory 

reason, Plaintiff must be afforded the opportunity to prove by a preponderance of 

the evidence that the legitimate reasons offered by the defendant were not its true 

reasons, but were a pretext for the discrimination. 

A plaintiff can prove that the defendant’s legitimate, non-discriminatory 

reason is mere pretext by showing that the reason: (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. See Wexler v. White, 317 F. 3d 564, 576 (6th Cir. 

2003). “[A] jury may consider the reasonableness, or lack thereof, of an 

employer’s business judgment, insofar as it may assist in determining the 

employer’s state of mind.” In re Lewis, 845 F. 2d 624, 633 (6th Cir. 1988). 

Lastly, “a plaintiff’s prima facie case, combined with sufficient evidence to find 

that the employer’s asserted justification is false, may permit the trier of fact to 

conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 147. 

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2. No Direct Evidence of Age Discrimination 

Plaintiff contends that he has demonstrated that there is direct evidence of 

age discrimination. Plaintiff testified that, at the March 18, 2014 meeting, one day 

before Defendant terminated Plaintiff on March 19, 2014, Bussell stated, “As long 

as you’ve been here and what your pay is[,] you should know what’s required of 

you to hold your position” and “Your pay is up there among the higher ones.” 

[Docket No. 19, Ex. 1, at 198, 200-201] Those statements clearly were: (a) made 

by a decision maker (Bussell), (b) related to the decision-making process, as they 

were made in the March 18, 2014 meeting at which Plaintiff’s PIP evaluation and 

Plaintiff’s termination were discussed, and (c) proximate in time to the notification 

of his termination, which occurred the following day. 

Plaintiff argues that these “are not ‘vague’ statements because they can only 

be interpreted to refer to Plaintiff’s age.” [Docket No. 19, PgID 387] Defendant 

asserts that the Bussell comments are not discriminatory on their face, and the 

Court agrees. The Sixth Circuit has held that comments made by a supervisor that: 

(1) an employee had “been in his job too long” and, (2) another employee was 

“lazy and didn’t work and wasn’t doing his job and had been there too long” were 

“ambiguous because they could just as easily refer to tenure” as opposed to age. 

Blizzard v. Marion Technical Coll., 698 F.3d 275, 287 (6th Cir. 2012). See also 

Skelton v. Sara Lee Corp., 249 F. App’x 450, 455-56 (6th Cir. 2007) (supervisor’s 

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repeated comment that plaintiff “ha[d] been around since Christ was a baby” 

referred to plaintiff’s tenure rather than age bias and required an “inferential step . . 

. to equate [the] comment about Skelton’s tenure with the department—or his 

age—with unlawful discriminatory animus”). 

Although the Court finds that the two statements made by Bussell could be 

interpreted to be comments regarding Plaintiff’s age, neither statement specifically 

references Plaintiff’s age. The statements “could as easily refer to [Plaintiff’s] 

tenure” as to his age, and they could be interpreted to mean that Plaintiff has been 

around long enough to understand that someone getting paid as much as he is 

needs to produce more. Blizzard, 698 F.3d at 287; Skelton, 249 F. App’x at 454-55. 

The Court concludes that Bussell’s comments do not require the conclusion that 

Defendant discriminated against Plaintiff. See Spengler v. Worthington Cylinders, 

615 F.3d 481, 491 (6th Cir. 2010) (in the context of a retaliation claim, the court 

concluded there was not sufficient evidence to support a direct discrimination 

claim when a supervisor stated “besides, you would probably have trouble keeping 

up with the younger guys . . . here [in this division],” when the supervisor offered 

to recommend the plaintiff for another division). 

For the reasons stated above, the Court: (a) concludes that Plaintiff has not 

demonstrated that the comments by Bussell were not vague or isolated, and (b) 

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finds that Plaintiff has not established a prima facie case of direct discrimination 

on his ADEA claim. 

3. Viable Claim of Age Discrimination Based on Circumstantial Evidence 

With respect to establishing a prima facie claim based on circumstantial 

evidence, Defendant concedes (for purposes of its summary judgment motion) that 

Plaintiff is a member of a protected class and that his employment was terminated, 

i.e., Plaintiff has satisfied the first two elements of his prima facie case. Defendant 

argues, however, that Plaintiff cannot establish that he was qualified for the 

position from which he was terminated or that he was replaced by some person(s) 

outside the protected class. 

Defendant points to several instances prior to the issuance of the PIP where 

Plaintiff was notified of his performance deficiencies. Defendant cites Plaintiff’s 

2012 and 2013 mid-year and annual reviews, meetings Plaintiff had with his 

immediate supervisor in 2012 (Mechanical Supervisor, Donnie Thornsberry). 

Defendant asserts that this evidence demonstrates Plaintiff was having 

performance problems for years and that Bussell was not the only person who had 

concerns regarding Plaintiff’s performance. 

The Court is not persuaded by Defendant’s argument. First, the Sixth 

Circuit has held that the: 

court may not consider the employer’s alleged nondiscriminatory 

reasons for taking an adverse employment action when analyzing the 

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prima facie case. To do so would bypass the burden-shifting analysis 

and deprive the plaintiff of the opportunity to show that the 

nondiscriminatory reason was in actuality a pretext designed to mask 

discrimination. 

Wexler, 317 F.3d at 574 (internal citations omitted). Despite acknowledging that 

the nondiscriminatory reasons for terminating Plaintiff cannot be used to analyze 

whether Plaintiff has satisfied his prima facie case, Defendant’s arguments do 

exactly that. Second, the record demonstrates that, beginning in 2009, Plaintiff 

performed as a Maintenance Shift Supervisor in two facilities for several years. 

Third, it is undisputed that Plaintiff was awarded merit-based bonuses in at least 

2010 and 2011. The Court concludes that the fact that Defendant employed 

Plaintiff for many years, including as the supervisor at the Rolling Mills and the 

Machine Shop areas of Defendant’s facility, demonstrates that Plaintiff was 

qualified to perform the duties he was assigned. The Court further concludes that 

Plaintiff has satisfied the first element of a prima facie case of age discrimination 

based on circumstantial evidence. 

Defendant next argues that Plaintiff cannot satisfy the fourth element 

because: (a) Plaintiff was not replaced, and (b) even if he was replaced, the persons 

who assumed his duties were members of the same protected class. Defendant 

contends that Plaintiff was not replaced because his duties were redistributed 

among the other Maintenance Supervisors. Defendant cites to Blizzard, 698 F.3d 

at 283-84, where the court stated: 

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[A]n employee’s assumption of a terminated co-worker’s job duties 

does not constitute replacement for purposes of an ADEA claim. A 

person is not replaced when . . . the work is redistributed among other 

existing employees already performing related work. Rather, a person 

is replaced only when another employee is hired or reassigned to 

perform the plaintiff’s duties. 

Defendant relies on the testimony of Bussell, who stated that Plaintiff’s 

Rolling Mills duties were taken over by Donnie Thornsberry from March 2014 

until May 2014, then by Kent Gasche until July 2014, when Thornsberry assumed 

those duties again. Defendant states that Paul Newsome took over Plaintiff’s 

Machine Shop duties. Defendant represents—and Plaintiff does not dispute—that 

Thornsberry, Gasche, and Newsome are all over 40 and members of the same 

protected class as Plaintiff. 

At his deposition, Plaintiff stated that Thornsberry, Gasche and Joe 

Carrabino replaced him. In his response brief, however, Plaintiff argues that, 

although Defendant may have initially “redistributed” Plaintiff’s job duties to 

Thornsberry, Gasche, and Newsome, Defendant ultimately hired two persons to 

work as maintenance supervisors: Todd Benge, age 38, and Michael Wood, age 32. 

[Docket No. 19-8, PgID 610] According to Defendant’s interrogatory answers, 

Todd Benge was hired on July 28, 2014 as Maintenance Turn Supervisor, and 

Michael Wood was hired on September 8, 2014 as Maintenance Shop Supervisor 

Mechanical. [Docket No. 19-9, PgID 618] 

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Defendant correctly argues that Plaintiff cites no authority for his argument 

that Plaintiff must be considered to have been “replaced” by the younger 

employees taking over the duties that Plaintiff had that were redistributed to 

Thornsberry, Gasche, and Newsome. Defendant, however, fails to cite any 

authority for its argument that if an employer causes other workers to absorb a 

terminated employee’s duties in the short-term, the terminated employee’s case is 

precluded even when Defendant hires someone outside the terminated employee’s 

class to replace the terminated employee on a permanent basis. As Plaintiff 

suggests, if Defendant could simply redistribute Plaintiff’s duties to persons of the 

same protected class in the short-term (which likely happens immediately after 

most terminations), an employer could avoid ADEA liability simply by engaging 

in a short-term “shell game” after terminating an employee. 

Defendant argues that the record evidence confirms that Wood did not 

ultimately acquire any of Plaintiff’s job duties and Benge was employed with 

Defendant for less than one month. Defendant also argues that Plaintiff ignores 

that other Maintenance Supervisors who are older than Plaintiff remain employed 

with Defendant. Defendant, however, cites no authority that Plaintiff’s claims are 

precluded even if its arguments are accurate. The Court finds that these arguments 

go to the weight of the evidence—they do not obviate the fact that Plaintiff has 

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presented evidence that persons under 40, i.e., of a different class, were hired to 

perform duties that Plaintiff had performed. 

For the reasons stated above and viewing the facts in a light most favorable 

to Plaintiff (as the Court must for purposes of Defendant’s motion for summary 

judgment), at this stage of the proceedings Plaintiff has established a prima facie

case of age discrimination because he has presented evidence that: (1) he was 55 

years old during the relevant time, (2) he was terminated, (3) he was qualified for 

the job, and (4) Defendant hired two employees younger than 40 to perform his 

duties. 

Defendant argues, and Plaintiff does not dispute, that it has offered a 

legitimate, non-discriminatory reason for Plaintiff’s termination. The Court finds 

that Defendant has met its burden of asserting a legitimate, nondiscriminatory 

reason by: (1) claiming that Plaintiff was terminated for poor performance, and (2) 

offering evidence that Plaintiff failed to satisfy the requirements listed in his PIP. 

Plaintiff contends he has presented sufficient evidence to create a genuine 

issue of material fact as to whether Defendant’s reason was mere pretext. The 

Court agrees. First, as discussed above, the remarks made by Bussell (Plaintiff’s 

supervisor and the person who made the ultimate decision to terminate Plaintiff) at 

the March 18, 2014 meeting could be interpreted as being age-related in a manner 

that supports a finding of age discrimination. Second, the evidence that two 

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younger employees were hired to perform duties Plaintiff had performed supports a 

challenge to Defendant’s legitimate non-discriminatory reason for Plaintiff’s 

termination. Third, although the PIP provided that termination was possible if its 

terms were not met, the PIP did not list any terms or goals that could be met. 

Fourth, Plaintiff has offered evidence that the basis for, and Defendant’s evaluation 

of his performance pursuant to, the PIP were not warranted. For example, the 

record reflects that Plaintiff, like several other Maintenance Supervisors, received a 

“below expectations” rating in 2012 and received a “below expectations” rating for 

midyear 2013, but none of the other Maintenance Supervisors receiving the “below 

expectations” rating in midyear 2013 were terminated. Although Defendant argues 

that the comments made in the other Maintenance Supervisors’ evaluations 

differentiates them from Plaintiff, the Court finds that Defendant’s argument bears 

on how the evidence should be weighed, not whether Plaintiff has created a 

genuine dispute of material fact. The Court concludes there is a genuine dispute of 

material fact as to whether Defendant’s legitimate business reason was pretext for 

age discrimination. 

For the reasons stated above, the Court finds that the circumstantial evidence 

in the record establishes a genuine dispute of material fact as to whether Defendant 

impermissibly terminated Plaintiff on the basis of his age, in violation of the 

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ADEA. Defendant’s Motion for Summary Judgment is denied with respect to 

Plaintiff’s ADEA claim. 

B. IIED Claim 

The Michigan Supreme Court has not explicitly recognized a tort for 

intentional infliction of emotional distress, Smith v. Calvary Christian Church, 

462 Mich. 679, 686, n.7 (2000), but it has recognized that such a claim can be 

made under the standard described in the Second Restatement of Torts. In order to 

state an intentional infliction of emotional distress claim pursuant to the Second 

Restatement of Torts standard, a plaintiff must show: (1) “extreme and outrageous” 

conduct; (2) intent or recklessness; (3) causation; and (4) that he suffered “severe 

emotional distress.” Robert v. Auto-Owners Ins. Co., 422 Mich. 594, 602 (1985). 

Conduct is sufficiently outrageous only “where the conduct has been so outrageous 

in character, and so extreme in degree, as to go beyond all possible bounds of 

decency, and to be regarded as atrocious, and utterly intolerable in a civilized 

community.” Id. at 603 (quoting Restatement Torts, 2d., § 46, comment d, pp. 72-

73). “[M]ere insults, indignities, threats, annoyances, petty oppressions, or other 

trivialities” are insufficient. Id. “[T]he trial judge [initially] decide[s] whether 

defendant’s conduct might reasonably be regarded as so extreme and outrageous as 

to allow recovery for intentional infliction of emotional distress.” Sawabini v. 

Desenberg, 143 Mich.App. 373, 383 (1985) (citation omitted). 

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 Defendant contends that the IIED claim fails because Plaintiff’s termination, 

even if discriminatory, does not rise to the level of extreme and outrageous conduct 

under the facts presented. Plaintiff does not address the issue anywhere in his 

response, except in a footnote where he states that he “also has an attendant state 

law claim for Intentional Infliction of Emotional Distress.” [Docket No. 19, PgID 

381, n.1]. The Court finds that Plaintiff has not provided evidence that would 

support an allegation that Defendant’s (Bussell’s) conduct was outrageous or 

extreme, nor does the Court find any conduct in the record that would support a 

finding that any of Defendant’s conduct “go[es] beyond all possible bounds of 

decency, [or could] be regarded as atrocious, and utterly intolerable in a civilized 

community.” See Roberts, 422 Mich. at 603 (citation omitted). The Court grants 

Defendant’s Motion for Summary Judgment with respect to Plaintiff’s claim for 

Intentional Infliction of Emotional Distress. 

V. CONCLUSION 

For the reasons stated above, 

IT IS ORDERED that Defendant’s Motion for Summary Judgment [Docket 

No. 17, filed April 16, 2015] is DENIED as to Plaintiff’s ADEA claim in Count I 

and GRANTED with respect to Plaintiff’s IIED claim in Count II. 

s/Denise Page Hood 

DATED: March 31, 2016 Chief Judge, U. S. District Court 

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I hereby certify that a copy of the foregoing document was served upon counsel of record on 

March 31, 2016, by electronic and/or ordinary mail. 

 S/LaShawn R. Saulsberry 

 Case Manager 

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