UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

MICHAEL K. BISHOP, 

 Plaintiff, Case No. 14-cv-14150 

v Honorable Thomas L. Ludington 

SPEEDWAY LLC, 

 

 Defendant. 

__________________________________________/ 

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND 

DENYING DEFENDANT’S MOTION TO PRECLUDE EXPERT WITNESS AS MOOT 

 In this age discrimination case, Plaintiff Michael Bishop alleges that Defendant 

Speedway, LLC demoted him from his position of Store Manager in violation of Michigan’s 

Elliot Larsen Civil Rights Act (“ELCRA”). The day after District Manager Ryan Pelletier 

informed Bishop that he was being demoted to the position of Customer Service Representative 

(“CSR”), Bishop resigned from his position with Speedway. Speedway now moves for summary 

judgment, arguing that Bishop has not met his burden of creating a prima facie case of age 

discrimination, or in the alternative, that Bishop has not met his burden of showing pretext. 

Because Bishop has not met his burden of showing pretext, Speedway’s motion for summary 

judgment will be granted. 

I. 

A. 

 Defendant Speedway is a limited liability company that manages and operates 

convenience stores. Compl. ¶ 2. Pursuant to Speedway’s Operations Manual, Speedway is an at1:14-cv-14150-TLL-PTM Doc # 34 Filed 11/16/15 Pg 1 of 24 Pg ID 699
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will employer, reserving the right to discharge or terminate its employees for any reason and at 

any time, with or without notice. Def.’s Reply to Mot. for Summ. J. Ex. 1. 

 Speedway’s disciplinary procedures provide for three levels of disciplinary actions. First, 

employees may receive confidential verbal counseling following any performance problems. Id. 

“The goal of a counseling session is to improve the associate’s performance.” Id. After 

counseling an employee, a supervisor is required to document the counseling session in 

Speedway’s system, but the associate receiving the verbal counseling should not sign or receive 

a copy of the documentation. Id. 

 Second, employees that commit significant infractions or show significant deficiencies 

may receive written warnings. Id. A supervisor giving a written warning must document the 

warning in Speedway’s system, and then print the document for the employee to sign. Id. If an 

associate refuses to sign the form, then the supervisor must sign the form to attest that the 

employee reviewed the written warning. Id. 

 Third, disciplinary termination is used where an employee commits a major infraction or 

shows a major deficiency in his or her job performance. Id. Such an employee may be 

immediately terminated, but should be told the reason for the termination. Id. 

B. 

Plaintiff Michael Bishop, a resident of Bay County, Michigan, was born on July 12, 

1959. Def.’s Mot. Summ. J. Ex. 1 at 8 [Hereinafter “Bishop Deposition”]. Bishop began 

working for Speedway as a full-time Store Manager in December of 1999. Id. at 10. He was 

originally stationed at a large Speedway location on Euclid Avenue in Bay City, Michigan, 

where he remained for around eight years. Id. at 11. Bishop worked 50 hours a week, from 5:30 

AM to 3:30 PM. Id. 

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Bishop was also a participant of Speedway’s Retirement Plan, which was subsequently 

modified in 2012. Pl. Resp. Ex B. Pursuant to the modification, participants’ pay as of 

December 31, 2012 was fixed for the purposes of calculating pension benefits. Consequently, 

participants’ pension benefits became based on the 36-month period immediately preceding 

December 31, 2012. 

i. 

At the Euclid Avenue Speedway location, Bishop initially reported to district manager 

Rodney Duford, and then to his replacement Daniel Longoria. Id. at 13. While at the Euclid 

Avenue location, Bishop received generally favorable reviews. Pl. Resp. to Mot. for Summ. J. 

Ex A. In his Merit Appraisal for the period spanning from October 14, 2007 to October 13, 

2008, Manager Longoria praised Bishop’s work ethic, but noted that he had had issues adapting 

to change. Id. 

On February 10, 2008, Bishop was verbally counseled by Manager Longoria after his 

store failed a Quality Assurance Inspection (“QAI”). Def.’s Mot. Summ. J. Ex. 33. In his report 

Longoria explained the failure resulted from Bishop’s failure to follow up with a co-manager 

who left outdated burritos on display. Id. Longoria stressed that Bishop understood the 

“importance of the Food Mentality at his store,” and that no other such failures would be 

tolerated. Id. In his deposition, Bishop testified that he did not have any reason to doubt the 

accuracy of the report. Bishop Deposition at 31. 

As a store manager, Bishop was never guaranteed that he would be assigned to any one 

store. Id. at 36. In July of 2008 Manager Longoria made the decision to transfer Bishop to a 

Speedway location on Center Avenue in Bay City, where he remained for around seven years. 

Id. at 33. Mr. Longoria testified that he transferred Bishop because Bishop had been having 

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problems at the Euclid Avenue store. Def.’s Mot. Summ. J. Ex. 4. Mr. Longoria emphasized an 

incident in which numerous employees had to be fired for stealing money from the store under 

Bishop’s watch, as well as numerous customer complaints and consistent arguing between 

Bishop and another employee. Id. at 13-17. Bishop claims he was transferred because Manager 

Longoria needed to open up the larger Euclid Avenue store so that Speedway could groom a 

younger manager for the eventual promotion to District Manager. Id. at 34. That manager ended 

up being then 27-year-old Manager Ryan Pelletier. Id. 

ii. 

At the Center Avenue location, Bishop continued to work the same shift and hours he had 

worked at the Euclid Avenue location. Id. at 11. In Bishop’s Merit Appraisal covering the time 

from October 14, 2008 to October 13, 2009, Manager Longoria noted that Bishop did a good job 

with customer service and always appeared professional. Pl. Resp. to Mot. for Summ. J. Ex C. 

The appraisal also noted that Mike could work on both store organization and employee training 

and development. Id. The next Merit Appraisal for the period beginning October 14, 2009 was 

issued by Manager Longoria, who again commended Mike on his customer service. Pl. Resp. to 

Mot. for Summ. J. Ex D. The appraisal again noted that Bishop struggled with store organization 

and team management. Id. The appraisal also explained that the store ran well when Bishop 

himself was working, but that Mike needed to continue working with his shift leaders to perform 

better. Id. 

iii.

 In 2010, Ryan Pelletier replaced Dan Longoria as Bishop’s District Manager. Bishop 

Deposition at 36. The first Merit Appraisal Pelletier gave of Bishop spanned the period from 

October 14, 2010 to October 13, 2011. Pl. Resp. to Mot. for Summ. J. Ex E. In that appraisal, 

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Pelletier noted that Bishop always appeared professional and was a dedicated employee and 

hands-on manager. Id. Mr. Pelletier stated that Bishop needed to remain more positive in the 

area of customer service and needed to work on training and developing his team. Id. Mr. 

Pelletier also stated that Bishop should work on his strategic thinking to improve performance 

and ensure that his store met their monthly goals. Id. Bishop signed the document to 

acknowledge that he received the appraisal on October 26, 2011 when he and Mr. Pelletier met 

to discuss it. Id. 

 During that appraisal period, Mr. Pelletier also documented a number of instances in 

which he had to counsel Bishop about falling below company standards. The first occurred on 

March 10, 2011, in which Mr. Pelletier gave Bishop a written warning for insubordination. 

Def.’s Mot. Summ. J. Ex. 11. In the written warning, Mr. Pelletier explained that the storage 

garage attached to the store contained unacceptable clutter, and that a pallet left outside of the 

building for some time could cause a safety issue. Id. Pelletier further noted that the hot cart in 

the store was missing products and contained several expired food items, despite the fact that 

Bishop had been warned earlier in the week that the roller grill needed to be up to company 

standards. Id. Finally Mr. Pelletier noted that these issues had previously been addressed with 

Bishop, and that any further issues would result in additional discipline, “up to and including 

termination.” Id. In his deposition, Bishop testified that he had never received a copy of the 

“written warning” until he requested his work history file after he resigned, but that he did have a 

vague memory of the event. Bishop Dep. 37-38. Bishop also testified that he remembered 

having many conversations with Mr. Pelletier about things like the roller grill not being up to 

company standards. Id. at 40. 

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 In a May 3, 2011 report of a verbal counseling session, Mr. Pelletier noted that the roller 

grill contained minimal options, and no hotdogs, and that the “bullpen,” where hot products are 

made in advance, was completely empty as well. Def.’s Mot. Summ. J. Ex. 12. Noting that this 

was the third time he had addressed this issue with Bishop, Pelletier explained, “[Bishop] needs 

to get better at following our food program and executing up to standards and expectations. I 

have talked with [Bishop] about this and let him know that his lack of awareness to our food 

program is hurting his store sales as well as his customer service.” Id. Bishop had no memory of 

the event, and testified that he had not viewed the report until requesting his work history file. 

Bishop Dep. 54-56. 

 On June 15, 2011 Mr. Pelletier verbally counseled Bishop for failing to timely complete 

three of his employee reviews. Def.’s Mot. Summ. J. Ex. 13. Bishop testified that he 

remembered being late on the employee reviews and remembered having a conversation with 

Mr. Pelletier about it. Bishop Dep. 57. Pelletier again verbally counseled Bishop on October 4, 

2011 for failing the previous two REA inspections for having holes in product displays. Def.’s 

Mot. Summ. J. Ex. 14. Bishop testified that he had seen the report in his file and had no reason to 

doubt its accuracy. Bishop Dep. 63-65. 

 Additionally, during the October 14, 2010 to October 13, 2011 appraisal period Bishop 

received two customer complaints for rude behavior. Def.’s Mot. Summ. J. Ex. 16. Pelletier 

documented that he had verbally counseled Bishop regarding these complaints. Def.’s Mot. 

Summ. J. Ex. 17. In his deposition, Bishop testified that he had no memory of the incidents 

leading to the customer complaints themselves, but that he recalled speaking with Mr. Pelletier 

about them. Bishop Dep. At 44. He also testified that he had not received a copy of the first 

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customer complaint until he requested his work history file, and had never seen a copy of the 

second customer complaint. Id at 46, 48. 

iv. 

 The next appraisal period began on October 14, 2011. Mr. Pelletier was gone for six to 

nine months of that period, since he was on a special assignment concerning the opening of 

newly acquired Speedway locations in Indiana. Bishop Deposition at 14. During that time, 

Bishop reported to temporary Manager Adam McKenzie Roberts. Id. 

Bishop continued to receive lackluster feedback during the October 14, 2011 to October 

13, 2012 appraisal period. On February 21, 2012 Bishop received a customer complaint for 

refusing to sell a woman lottery tickets and for yelling at an employee. Def.’s Mot. Summ. J. 

Ex.19. Bishop testified that he did not recall the incident. Bishop Dep. at 70-71. On August 10, 

2012, temporary Manager Roberts documented that he verbally counseled Bishop after the 

Center Avenue Speedway failed Food Quality Inspections (“FQI”s) four months in a row. Def.’s 

Mot. Summ. J. Ex. 18. Bishop testified that he probably had a conversation with Mr. Roberts 

about the events. Bishop Dep. at 73. Bishop received another customer complaint on September 

27, 2012 for opining that a former employee’s wife “shouldn’t be sticking her nose in other 

people’s business” after the former employee asked after an absent store employee who had been 

ill. Def.’s Mot. Summ. J. Ex.19. Bishop testified that he knew the complainant and remembered 

the events leading to the complaint. Bishop Dep. at 76-77. 

In Bishop’s Merit Appraisal for that period, Temporary Manager Roberts stated that 

Bishop did not do a good job with customer interactions and that he had received a number of 

customer complaints. Def.’s Mot. Summ. J. Ex. 20. The appraisal noted that Bishop had passed 

only 2 of his last 6 FQIs and 3 of his last 6 Relentless Execution Audits (“REA”s). Id. The 

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appraisal explained that Bishop was a trustworthy and responsible manager that optimized his 

schedule and shift coverage, but that he needed to hold himself and his employees accountable 

more often. Id. Mr. Roberts emphasized that Bishop needed to get better at driving results in his 

store and that he needed to understand that “no matter what, the success and failure of the store is 

on him.” Id. Bishop signed the appraisal to acknowledge that he received it, and did not have any 

disagreement with the content of the appraisal. Bishop Dep. At 78-79. 

v. 

During the following appraisal period, on March 11, 2013, an employee filed a complaint 

with Speedway management alleging that on March 6, 2013, after Bishop found a safety razor 

knife improperly left on the counter in the store cooking station, he threw the blade near an 

employee. Def.’s Mot. Summ. J. Ex. 22. The employee alleged that Bishop stated he was “sick 

and tired of finding these things all over the place” and then “the blade was flying in my 

direction and passed about six inches in front of me.” Id. The employee further alleged that 

Bishop said he would find out who was talking to Mr. Pelletier about the incident, and then 

“write up that person for every little thing and they would be fired.” Id. 

In the form of a written warning, Mr. Pelletier documented that he and a human resources 

representative, Rich Farran, met with Bishop on March 12, 2013 to discuss the safety razor 

incident. Def.’s Mot. Summ. J. Ex. 21. The warning explained that the type of behavior Bishop 

exhibited on March 6 is not tolerated by Speedway regardless of the issue. Id. During the 

meeting, Bishop admitted to throwing the safety razor and acknowledged that he did not handle 

the situation in the proper way. Id. The report noted that Mr. Pelletier would be visiting the store 

“a couple times a week” to follow up with Bishop and his employees. Id. It further stated that 

Bishop had been told he could not retaliate against any employee that filed a complaint against 

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him. Id. Finally, the report stated that Bishop would be terminated if Speedway received “[a]ny 

additional complaints or acts of anger that could danger or threaten our employees or 

customers....” Id. Bishop signed the written warning on March 13, 2013. Id. He also testified in 

his deposition that the incident had taken place and that he had received the written warning. 

Bishop Deposition at 80-85. 

On July 31, 2013, Mr. Pelletier filed a request that Bishop be transferred to a new work 

location. Def.’s Mot. Summ. J. Ex. 24. Consequently, Bishop was transferred from the Center 

Avenue location to a Speedway location on M-15 in Vassar in August of 2013. Bishop 

Deposition at 85-86. Mr. Pelletier testified that he transferred Bishop because his employees no 

longer felt safe working with him after the box cutter incident, and that he wanted to give Bishop 

a change with a new team. Def.’s Mot. for Summ. J. Ex. 2 at 36. Bishop testified that he did not 

know why he was transferred, and that Mr. Pelletier had only told him that a change had to be 

made. Id. at 86-87. Bishop claimed that by transferring him, Speedway was essentially telling 

him he would never receive another raise because he already made too much money for the 

Vassar location. Bishop Dep. at 135-37. 

In Bishop’s appraisal for that period, Mr. Pelletier wrote that Bishop was doing okay with 

FQIs, but continued to struggle with REAs. Def.’s Mot. Summ. J. Ex. 25. Mr. Pelletier noted that 

he had trouble trusting Bishop in high-stress situations due to recent incidents, but that Bishop 

had done well adapting to the new store. Id. Like previous appraisals, the October 14, 2012 to 

October 14, 2013 appraisal emphasized that Bishop needed to do a better job of training his team 

members, and that he needed to hold himself and others accountable when necessary. Id. Bishop 

signed the appraisal on October 16, 2013, acknowledging that he had received it. Id 

vi. 

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 The next appraisal period would be Bishop’s last. Bishop went on medical leave for a 

hernia surgery in December of 2013. Bishop Dep. at 138-41. After his return to work, Bishop 

received a written warning from Mr. Pelletier on March 11, 2014 for failing again FQIs and for 

leaving expired products on the sales floor for customers to purchase. Def.’s Mot. Summ. J. Ex. 

26. The report admonished Bishop for not following up with the employees at his store to ensure 

that they were actually doing the tasks they claimed to be doing. Id. Bishop signed the written 

warning on March 17, 2014 to acknowledge that he had received it. Id. Bishop also testified at 

his deposition that he had in fact received it. Bishop Dep. 101-02. 

 Sometime after receiving the written warning, Bishop contacted a human resources 

representative, Rick Farran, to inform him that he was being harassed by Mr. Pelletier. Bishop 

Dep. at 87-93. Bishop explained that Mr. Pelletier was coming to the store for hours at a time to 

dig for items that were out of compliance. Id. Mr. Pelletier was also sending other managers to 

dig through the store almost every other day. Id. 

 Bishop received his final written notice ten days later on March 27, 2014. Def.’s Mot. 

Summ. J. Ex. 27. On that date, Mr. Pelletier reported that he had again found numerous expired 

food products in Bishop’s store. Id. The notice explained that it was Bishop’s final notice on 

keeping expired food products on the sales floor. Id. Bishop signed the written notice on March 

28, 2014. 

 As a result of this final written noticed, Bishop was placed on a Performance 

Improvement plan. Def.’s Mot. Summ. J. Ex. 28. Citing Bishop’s repeated FQI failures, the plan 

explained that Bishop needed to focus on the continued training of his staff and improving his 

leadership. Id. It advised that Bishop needed to “demonstrate the ability to delegate tasks to all 

employees and follow up to ensure work completion.” Id. It also advised that Bishop needed to 

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set expectations for employees and maintain a positive work environment. Id. Finally, pursuant 

to the plan, Mr. Pelletier would be visiting the store periodically to ensure compliance with the 

plan. Id. Bishop refused to sign a written copy of the plan because he disputed allegations that 

he and his staff were falsifying company documents and he disputed an assumption that sales 

were down because of food quality. Bishop Dep. at 120. He did not dispute any of the other 

statements in the performance improvement plan. Id. 

 On April 17, 2014, after finding more expired food products on the shelf at Bishop’s 

store, Mr. Pelletier determined that Bishop had not properly followed the Performance 

Improvement Plan. Def.’s Mot. Summ. J. Ex. 29. For this reason, Mr. Pelletier demoted Bishop 

to a Customer Service Representative (“CSR”) position, effective the following day. Id. Bishop 

testified that he believed the demotion was inappropriate because his store had been improving 

over the last month. Bishop Dep. at 122-124. He also testified that Mr. Pelletier said he was 

demoting him because Bishop “seemed to be burned out” from doing the job for so long. Id. at 

123. 

 That same day, April 17, 2014, Bishop informed human resources representative Jo 

Smead that he wanted to take the following day off work to decide whether to accept the 

demotion or to resign from the company. Def.’s Mot. Summ. J. Ex. 31. Bishop inquired about 

the effect either choice would have on his vacation pay rate. Id. After conferring with Ryan 

Pelletier, Rich Farran and Robin Opp, Mr. Smead informed Bishop that if he chose to resign the 

next day, his remaining vacation time would be paid out at the Store Manager rate, but that if he 

chose to accept the CSR position, his remaining vacation time would be paid out at the CSR rate. 

Id. 

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Bishop ultimately chose to resign, effective April 18, 2014. Id. Bishop testified that he 

decided to resign because accepting the demotion would result in less pay, less benefits, and 

lower pension, as well as the huge embarrassment of working as a CSR after 29 years of doing 

his job. Bishop Dep. 133. He also testified that be believed Speedway was attempting to make 

him quit because of his age by transferring him to smaller locations, and then replacing him with 

younger workers who were paid less. Id. At the time of his demotion and resignation, Bishop 

was making just under $50,000 a year. Id. at 161. 

vii.

Following his resignation from Speedway, Bishop began working for Auto Zone on June 

22, 2014. Id. at 25. Bishop also received unemployment benefits for 20 weeks. Id. at 144. At 

the time of his deposition on April 21, 2015, Bishop was a full-time store manager at Auto 

Zone’s Saginaw location. Id. He testified that he was working forty hours per week at a pay rate 

of $11.77 per hour. Id. at 26. Although that amount is less than what he would have made if he 

had remained a store manager at Speedway, Bishop testified that he was not looking for other 

work because he could eventually be promoted at AutoZone after his training period. Id. at 145-

46. 

Bishop testified that he continues to struggle with anxiety from the pressures of working 

at Speedway, and that he has resorted to breathing exercises to control that anxiety. Id. at 151-

152. He also attributes his high blood pressure to his experience, and he continues to take blood 

pressure medication. Id. at 153. 

II. 

A motion for summary judgment should be granted if 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 

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law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of identifying where to look 

in the record for evidence “which it believes demonstrate the absence of a genuine issue of 

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the 

opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). 

The Court must view the evidence and draw all reasonable inferences in favor of the nonmovant and determine “whether the evidence presents a sufficient disagreement to require 

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” 

Id. at 251-52. The party opposing summary judgment “must do more than simply show that there 

is some metaphysical doubt as to the material facts.... Where the record taken as a whole could 

not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for 

trial.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). 

A. 

 In its relevant part, ELCRA provides that an employer shall not “[f]ail or refuse to hire or 

recruit, discharge, or otherwise discriminate against an individual with respect to employment, 

compensation, or a term, condition, or privilege of employment, because of ... age....” M.C.L. § 

37.2202(1)(a). 

For claims of employment discrimination lacking direct evidence, the Michigan Supreme 

Court has adopted a burden shifting test. See Lytle v. Malady, 579 N.W.2d 906, 914-15 (Mich. 

1998). A plaintiff claiming employment discrimination has the initial burden of establishing a 

prima facie case. Id. To do this, he must prove by a preponderance of the evidence that (1) he 

was a member of the protected class; (2) he suffered an adverse employment action; (3) he was 

qualified for the position; and (4) he was replaced by a younger person. Id. at 915-16. If a 

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plaintiff satisfies this burden, then a presumption of discrimination arises, and the burden shifts 

to the defendant to articulate a “legitimate, nondiscriminatory reason” for the adverse 

employment action. Id. If the defendant satisfies this burden of production, “the presumption 

drops away, and the burden of proof shifts back to [the] plaintiff.” Id. at 915. To survive 

summary judgment, a plaintiff must then show, “by a preponderance of admissible direct or 

circumstantial evidence, that there was a triable issue that the employer’s proffered reasons were 

not true reasons, but were a mere pretext for discrimination.” Id. 

B.

 In its motion for summary judgment, Defendant Speedway first argues that Plaintiff 

Bishop has not made out a prima facie case of discrimination. Def.’s Mot. for Summ. J. 16. 

Speedway argues that Bishop cannot show either that he was the subject of an adverse 

employment action or that he remained qualified for the position of store manager. Id. For this 

motion only, Defendant has conceded that Plaintiff was within the protected class because of his 

age and that he was replaced with someone outside of the protected class. Id. 

i.

 Defendant Speedway first argues that Bishop was not the subject of an adverse 

employment action under ELCRA because he voluntarily chose to resign. This argument ignores 

the fact that a demotion in and of itself may be an adverse employment action in violation of 

ELCRA. See, e.g. Chen v. Wayne State Univ., 771 N.W.2d 820, 839 (Mich. Ct. App. 2009) 

(noting that a “demotion evidenced by a decrease in wage or salary, a less distinguished title, a 

material loss of benefits, significantly diminished material responsibilities, or other indices” may 

constitute a materially adverse employment action); Richards v. Detroit Free Press, 433 N.W.2d 

320, 322 (“A demotion from one job to a lesser job is a discharge from the first job, and a 

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demotion will support a wrongful discharge claim”). Speedway does not dispute that Bishop 

was demoted to a CSR position, and that the demotion would result in decreased pay, benefits, 

and job responsibilities. See Def.’s Mot. for Summ. J. 17. Accordingly, Bishop has satisfied his 

burden of showing that he was the subject of an adverse employment action. 

ii.

Defendant Speedway also claims that Bishop cannot make out a prima facie case of age 

discrimination because he did not remain qualified for the store manager position. Id. at 18-19. 

To show that he was qualified for his position at the time of the demotion, Bishop must show 

that he “was performing at a level which met defendant’s legitimate expectations.” Jacklyn v. 

Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921 (6th Cir. 1999). “[W]hen 

assessing whether a plaintiff has met her employer’s legitimate expectations at the prima facie 

stage of a termination case, a court must examine plaintiff’s evidence independent of the 

nondiscriminatory reason ‘produced’ by the defense as its reason for terminating plaintiff.” Cline 

v. Catholic Dioceses of Toledo, 206 F.3d 651, 660-61 (6th Cir. 2000): 

The prima facie burden of showing that a plaintiff is qualified can therefore be 

met by presenting credible evidence that his or her qualifications are at least 

equivalent to the minimum objective criteria required for employment in the 

relevant field. Although the specific qualifications will vary depending on the job 

in question, the inquiry should focus on criteria such as the plaintiff’s education, 

experience in the relevant industry, and demonstrated possession of the required 

general skills.” 

Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003). 

Here, Bishop disputes Speedway’s allegation that he was no longer qualified for the 

position of store manager. He emphasizes his 29 years of experience in the position and the 

positive reviews he received before Mr. Pelletier became his district manager. Pl.’s Resp. 15. 

Bishop also objects to any argument that the declining sales at his store were caused by a decline 

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in food quality, and objects to any allegation that he or his staff falsified company documents. 

Bishop Dep. at 120. See also Wexler, 317 F.3d at 575 (finding the plaintiff had satisfied his 

initial burden of showing he was qualified for a position by disputing the contention he was 

unqualified and arguing that a drop in sales was due to factors other than his performance). 

Bishop also claims that his store’s performance had been improving in the month leading up to 

his demotion. Bishop Dep. at 122-24. Construing the facts in a light most favorable to Bishop, 

he has met his burden of showing that he met the minimum objective criteria required for the 

store manager position. Accordingly, Bishop has sufficiently made out a prima facie case of 

employment discrimination. 

B. 

 Because Bishop has satisfied his burden of establishing a prima facie case, the burden 

shifts to Speedway to articulate a legitimate, nondiscriminatory reason for demoting Bishop. See 

Lytle, 579 N.W.2d at 915. Poor performance, as alleged by Speedway, is a legitimate, nonretaliatory reason for terminating an employee. Stockman v. Oakcrest Dental Ctr., 480 F.3d 791, 

801 (6th Cir. 2007). 

C.

 Because Defendant has met its burden of articulating a legitimate, non-discriminatory 

reason for the adverse employment action, the burden shifts back to Bishop to establish that 

Defendant’s stated reason is mere pretext for discrimination. Lytle, 579 N.W.2d at 915. A 

plaintiff generally shows pretext by showing that the proffered reason: (1) had no basis in fact; 

(2) was insufficient motivation for the employment action; or (3) did not actually motivate the 

adverse employment action. See Wexler, 317 F.3d at 576. As noted by the Sixth Circuit, “[t]he 

three-part test need not be applied rigidly. Rather, [p]retext is a commonsense inquiry: did the 

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employer fire the employee for the stated reason or not?” Blizzard v. Marion Technical College, 

698 F.3d 275, 287 n.6 (6th Cir. 2012). 

i. 

 Plaintiff Bishop cannot satisfy his burden under the first method of proving pretext. In 

his deposition, Bishop admitted that he had numerous conversations with Mr. Pelletier about his 

failure to meet Defendant Speedway’s food safety and quality standards at the stores he 

managed, and admitted that he had failed numerous FQIs and REAs. Bishop also acknowledged 

the incident in which he threw a safety razor near an employee. Furthermore, although Bishop 

objected to two of the reasons given for his placement on a performance improvement plan, he 

had no objection to any of the other basis of the disciplinary action, or to the plan itself. 

Therefore, as a matter of law Bishop cannot argue that Speedway’s proffered reason for 

demoting him had no basis in fact. 

ii. 

Plaintiff Bishop also has not carried his burden of proving pretext under the second 

method — that Speedway’s proffered reason for demoting him was insufficient motivation for 

the employment action. Bishop appears to argue that his poor performance was not sufficient 

motivation to demote him because customer complaints are common and generally do not give 

rise to disciplinary proceedings. See Pl. Resp. 23. While that may be true, Speedway’s proffered 

reason to terminate Bishop was not based solely on customer complaints. Instead, Speedway’s 

proffered reason for terminating Bishop was based on three years of declining performance that 

included failing FQIs and REAs, poor employee training and management, poor store 

organization, inappropriate responses to stressful situations, as well as the multiple customer 

complaints. Accordingly, Bishop has not carried his burden of showing that the proffered 

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motivating factors “were jointly insufficient to justify the decision.” Meagher v. Wayne State 

Univ., 565 N.W.2d 401, 411 (Mich. Ct. App. 1997) (quoting Dubey v. Stroh Brewery Co.,462 

N.W.2d 758 (Mich. Ct. App. 1990). 

iii. 

 Under the third method of proving pretext, it is Plaintiff’s burden to show not only that 

Defendant’s proffered reason did not actually motivate the adverse employment action, but that 

age discrimination did motivate the decision. Throughout the case, the plaintiff bears the 

ultimate burden of proving that age was the “but for” reason for the adverse employment action. 

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, (2009). “[U]nfairness will not afford a 

plaintiff a remedy unless the unfair treatment was because of age discrimination.” Meagher, 565 

N.W.2d at 411. “Courts have repeatedly held that the plaintiff’s denial of the defendant’s 

articulated legitimate reason without producing substantiation for the denial is insufficient for a 

discrimination claim to withstand a motion for summary judgment.” Mitchell v. Toledo Hosp., 

964 F.2d 577, 585 (6th Cir.1992). As stated by the Supreme Court, “[i]t is not enough to 

disbelieve the employer, the factfinder must believe the plaintiff’s explanation of intentional 

discrimination.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146–47 (2000). 

a. 

 A number of Bishop’s attempts to show that age discrimination was the true motivation 

for his demotion are completely without merit. First, Bishop argues that Speedway did not 

follow its own progressive discipline policy and that it did not provide Bishop notice of the 

disciplinary write-ups he received. This argument fails because Speedway did in fact follow its 

progressive disciplinary policy, as set forth in its operation’s manual. See Def.’s Reply to Mot. 

for Summ. J. Ex. 1. Speedway’s progressive disciplinary policy specifically provides that, where 

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a supervisor gives an employee a confidential verbal warning, the employee should not sign or 

receive a copy of the disciplinary report. Id. It is only when an employee receives a written 

warning that the employee must review and sign a written document. Id. 

Although Bishop did not receive written notice of the verbal counseling sessions, he was 

in fact verbally counseled, as required by Speedway’s disciplinary policy. Bishop testified that 

he had no reason to object to the content of most of the documented verbal counseling sessions. 

He also testified as to remembering numerous conversations he had with Mr. Pelletier about 

things like expired food products, adequate number of food products, and properly displaying 

food products. Bishop Dep. at 40-41. Bishop’s signature appears on all of the written warnings 

he received, except for the performance improvement plan, and Bishop testified that he 

remembered reviewing the written warnings. Bishop Dep. at 80-85, 101-02, 105. Accordingly, 

Bishop’s arguments that Speedway did not follow company policy in disciplining him and that 

Speedway did not provide him with sufficient notice of the disciplinary actions taken against him 

are without merit. 

Bishop next argues Speedway’s creation of a “paper trail” supports an inference that 

Speedway did not really demote him for poor performance, but for age animus. The Sixth Circuit 

has stated in dicta that an employee would prevail on a claim of age discrimination if the 

employee proved that her employer deliberately began creating a false paper trail of poor 

performance only after deciding to terminate her because of age. Danielson v. City of Lorain, 

938 F.2d 681, 683 (6th Cir. 1991). The Danielson Court concluded that a directed verdict for the 

employer was appropriate “because a reasonable fact finder could not find that all of [the 

employee’s] supervisors created a false paper trail for the purpose of dismissing her because of 

her age.” Id. at 685. 

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Like the plaintiff in Danielson, Bishop has not presented sufficient evidence for a 

reasonable fact finder to conclude that all of Bishop’s supervisors were creating a false paper 

trail in order to dismiss him because of his age. First, Plaintiff only disputes a fraction of the 

information contained in the “paper trail.” He specifically admitted to leaving expired food 

products on the floor for sale, failing FQIs and REAs, and throwing a box cutter near an 

employee. Second, the “paper trail” demonstrating Bishop’s declining performance was over 

three years in the making. During those three years, Bishop’s supervisors had ample 

opportunities to dismiss Bishop, had that been their goal. Specifically, they could have 

dismissed him after a number of his staff members were found stealing from the cash register at 

the Euclid location, or after he threw a safety razor in frustration near staff members at the 

Center Avenue location. Third, even if Bishop could show that the “paper trail” was false, he 

has not presented any evidence that it was created in response to his supervisors’ age animus. As 

explained above, “unfairness will not afford a plaintiff a remedy unless the unfair treatment was 

because of age discrimination.” Meagher, 565 N.W.2d at 411. Bishop’s argument that Mr. 

Longoria, Mr. Pelletier, and Mr. Roberts created a false paper trail for the purpose of dismissing 

him because of his age is therefore without merit. 

Bishop also argues that Speedway has provided inconsistent explanation for why Bishop 

was demoted. Bishop argues that initially he was not told that he had failed his performance 

improvement plan, and that Mr. Pelletier told him he was being demoted because he seemed 

“burned out.” Bishop Dep. at 125. Plaintiff claims that only in this lawsuit has Speedway 

claimed Bishop was demoted for failing his performance improvement plan. It is true that 

changing, inconsistent explanations for an adverse employment action may establish pretext. See 

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 351 (6th Cir. 1998). However, here 

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Speedway’s explanations for demoting Bishop are not inconsistent. Instead, Speedway’s 

assertions “revolve around a single idea:” Plaintiff’s consistently declining job performance. Id. 

Finally, Bishop suggests that Speedway demoted him because they wanted to pay him 

lower pension benefits. This argument is also completely without merit, since Bishop’s pay as of 

December 31, 2012 was locked in for the purpose of calculating his pension benefits. See Pl.’s 

Resp. Ex. B. Because Bishop’s pension was based on the 36-month period immediately 

preceding December 31, 2012, any subsequent demotion would not have had no effect on his 

pension benefits. 

In conclusion, Bishop’s arguments that Speedway did not follow its own disciplinary 

procedures, created a false paper trail, gave inconsistent reasons for his termination, and sought 

to pay him lower pension benefits are unsupported by the facts. 

b.

Bishop’s only remaining evidence of age discrimination is the following: (1) Mr. Pelletier 

told Bishop he was being demoted because he appeared to be “burned out”; (2) Bishop was 

replaced by younger workers after his transfers and demotion; and (3) Mr. Longoria refused 

Bishop’s request to transfer out of Mr. Pelletier’s district. 

Concerning Mr. Pelletier’s statement that Bishop appeared to be “burned out”, it is true 

that discriminatory comments may be evidence of unlawful age discrimination. There is no 

dispute that Mr. Pelletier, the speaker, had managerial authority over the decision to demote 

Bishop. Accordingly, the inquiry is whether the substance of the statement evidenced 

impermissible age discrimination. Krohn v. Sedgwick James of Michigan, Inc. 624 N.W.2d 212, 

214 (Mich. Ct. App. 2001). Accordingly, under Michigan law we must consider the following 

factors: “(1) Were the disputed remarks isolated or part of a pattern of biased comments? (2) 

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Were the disputed remarks made close in time or remote from the challenged decision? (3) Were 

the disputed remarks ambiguous or clearly reflective of discriminatory bias?” Id. 

 Here, there is no evidence that the remark was part of a pattern of biased comments 

under the first factor. Also, under the second factor, Mr. Pelletier clearly made the remark at the 

time of Bishop’s demotion. Accordingly, the question is whether the isolated remark that Bishop 

seemed burned out, made at the time of his demotion, was ambiguous or clearly reflective of 

discriminatory bias. 

Numerous courts have concluded that a supervisor’s statement that an employee was 

“burned out” is not in itself reflective of age discrimination. See, e.g. Branscomb v. Group USA, 

Inc, 475 Fed.Appx 134 (9th Cir. 2012) (holding that a supervisor’s comment that an employee 

was burned out was not “overtly age-related.”); E.E.O.C. v. Maricopa County, 220 Fed.Appx 

733 (9th Cir. 2007) (holding that burn-out has a separate connotation than age, and was not direct 

evidence of discriminatory intent); Pearson v. City of Manhattan, 33 F.Supp 2d 1306 (D.C. Kan. 

1999) (concluding that a supervisor’s statement that employee was suffering from “burn out” 

could have referred to employer’s state of mind and not his age, and was “certainly not direct 

evidence of age discrimination”); Perry v. Prudential–Bache Sec., Inc., 738 F.Supp. 843, 851 

(D.N.J. 1989) (statements describing plaintiff as “a stupid old bastard” and “burned out and 

forgetful” were insufficient evidence of age discrimination, but instead spoke to the employee’s 

mistake on an important matter), aff'd, 904 F.2d 696 (3d Cir.1990); Chamberlain v. Bissell Inc., 

547 F. Supp. 1067, 1077 (W.D. Mich. 1982) (“Management may legitimately discharge an 

executive employee because he or she has “burned out,” i.e. become complacent and lost 

creativity and initiative...even though the “burn out” may be directly caused by the employee’s 

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age and length of service”). Accordingly, Mr. Pelletier’s statement that Bishop appeared burned 

out is not in itself evidence of age discrimination. 

Bishop also argues that his two involuntary transfers and the fact that he was always 

replaced with younger employees support his contention that age discrimination was the real 

reason for his demotion. In his deposition, Bishop testified that he understood he was never 

guaranteed to be assigned to any one store. Bishop Dep. at 36. Mr. Longoria testified that he 

transferred Bishop because Bishop had been having problems at the Euclid Avenue store, 

emphasizing an incident in which numerous employees had to be fired for stealing money from 

the store under Bishop’s watch, as well as numerous customer complaints and consistent arguing 

between Bishop and another employee. Def.’s Mot. Summ. J. Ex. 4. at 13-17. Mr. Pelletier, for 

his part, testified that he then transferred Bishop to the Vassar store because his employees no 

longer felt safe working with him after the box cutter incident, and that he wanted to give Bishop 

a change with a new team. Def.’s Mot. for Summ. J. Ex. 2 at 36. 

The only evidence Bishop presents that age animus was the true reason for his transfers is 

that he was replaced by younger managers. As the Michigan Court of Appeals has explained, 

however, “Plaintiff’s replacement by a younger employee, without more, is insufficient to 

support a claim of age discrimination.” Barnell v. Taubman Co., 203 512 N.W.2d 13, 19 (Mich. 

Ct. App. 1993). 

Finally, Bishop’s argument that Mr. Longoria’s refusal of his request for a transfer out of 

Mr. Pelletier’s district is evidence of age discrimination is also insufficient. Again, Bishop has 

failed to provide any evidence whatsoever that Mr. Longoria’s refusal to transfer him was 

motivated by age animus. 

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Ultimately, all of these arguments fail for the same reason: plaintiff has not carried his 

ultimate burden of proving that age was the “but for” reason for the adverse employment action. 

Gross, 557 U.S. at 176. Consequently, a reasonable jury could not find that Speedway’s 

proffered reason for terminating Bishop, declining performance, was pretext for age 

discrimination. Defendant Speedway’s motion for summary judgment will be granted, and 

Plaintiff Bishop’s complaint will be dismissed with prejudice. 

III.

 Accordingly, it is ORDERED that Defendant Speedway’s motion for summary 

judgment, ECF No. 23, is GRANTED. 

 It is further ORDERED that Defendant Speedway’s motion to preclude Plaintiff Bishop 

from calling Frank P. Stafford as an expert witness as trial, ECF No. 24, is DENIED as moot. 

 It is further ORDERED that Plaintiff Bishop’s Complaint, ECF No. 1, is DISMISSED

with prejudice. This is a final order and closes the case. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: November 16, 2015 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on November 16, 2015. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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