UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RANDY RUTHERFORD,

Plaintiff,

Case No. 15-11700

v.

Hon. John Corbett O’Meara

COUNTRY FRESH, L.L.C.,

Defendant.

_____________________________/

OPINION AND ORDER GRANTING IN PART

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Before the court is Defendant’s motion for summary judgment, which has

been fully briefed. The court heard oral argument on May 19, 2016, and took the

matter under advisement. For the reasons set forth below, Defendant’s motion is

granted in part and denied in part.

BACKGROUND FACTS

Plaintiff Randy Rutherford alleges that his former employer, Country Fresh

L.L.C., discriminated against him based upon his age, disability, and medical leave

under the Family and Medical Leave Act. Rutherford was employed as a Territory

Sales Representative (“TSR”), selling milk and ice cream to stores in Michigan. 

As of February 2013, Country Fresh had six sales territories in Michigan, each

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covered by a TSR. Rutherford’s direct supervisor was Paul Karins, who was

supervised by Craig MacMillan.

Rutherford had several knee surgeries and two knee replacements beginning

in 2011. After a knee surgery in January 2013, Rutherford returned to work with

light duty restrictions. In May 2013, Rutherford again went on medical leave for

knee surgery. On July 22, 2013, he obtained a release to return to work with

restrictions, including no extensive walking or bending. Country Fresh did not

allow Rutherford to return to work because it did not believe he could perform the

essential functions of his job. Rutherford returned to work, without medical

restrictions, on August 26, 2013.

On that date, Country Fresh informed Rutherford that his position had been

eliminated as a result of a decline in the company’s business. Over the past several

months, MacMillan had worked on a plan to reduce the number of TSRs in

Michigan from six to three. Initially, MacMillan eliminated two positions in

March 2013. These positions were held by Al Pugliese (age 65) and Gary

Protsman (age 60). Rutherford’s southeastern Michigan territory was then

expanded to include the territory once covered by Pugliese.1

 

1

 Pugliese filed suit against Country Fresh, alleging age discrimination. See Pl.’s

Ex. 7, Pugliese v. Country Fresh, LLC, Case No. 13-14257 (E.D. Mich.) (Berg, J.)

(Docket No. 18). There, the court denied Country Fresh’s motion for summary judgment. 

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When Rutherford’s position was eliminated in August 2013, he was 59 years

old. The three remaining TSRs were Ann Kensa (age 52), Bruce Hartman (age

53), and Ralph Garver (age 41). Bruce Hartman’s territory was expanded to

include the territory once covered by Rutherford. MacMillan testified that he

chose which positions to eliminate based on geography, the business needs in each

territory, and where the TSR lived in relationship to the potential customers in the

newly created territories. See Def.’s Ex. 3 at 30-36. The decision to terminate

Rutherford’s position was made by MacMillan, with “input” from Paul Karins, Bill

Reilly (MacMillan’s supervisor), and Kay Bowen (human resources). 

Rutherford states that a TSR position (Northern Ohio ice cream) became

available within six months of his termination, but the company did not offer it to

him. Rutherford contends that he should have been offered the position based

upon a provision in the company handbook, which provides that “[f]or a period of

six months after a layoff, if an opening exists for which a laid-off employee is

qualified, the laid off employee will be offered the position.” Pl.’s Ex. 17. It is

Country Fresh’s position that this policy does not apply, because Rutherford was

not “laid off” (temporarily out of work), but terminated. Def.’s Ex. 66, 68. In

Although Plaintiff suggests that this court should follow the Pugliese opinion, the

Pugliese case involves a different time period and sufficiently different facts to offer little

guidance here.

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January 2014, the Northern Ohio ice cream TSR position was filled by James

Gaertner, who was 38. Rutherford contends that he was “replaced” by Gaertner.

Rutherford filed his complaint on May 12, 2015, alleging the following

causes of action: Count I, failure to accommodate and discrimination pursuant to

the Americans with Disabilities Act; Count II, discrimination under the Persons

with Disabilities Civil Rights Act; Count III, discrimination and retaliation under

the Family and Medical Leave Act; Count IV, discrimination in violation of the

Age Discrimination in Employment Act; and Count V, age discrimination in

violation of the Elliott-Larsen Civil Rights Act. Defendant seeks summary

judgment on all of Plaintiff’s claims.

LAW AND ANALYSIS

Rutherford argues that he was terminated because of his disability, age, and

medical leave. Rutherford further argues that Country Fresh failed to

accommodate his disability when he attempted to return to work with restrictions

in July 2013.

I. Standard of Review

Summary judgment is appropriate if “there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). When reviewing a motion for summary judgment, the facts

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and any reasonable inferences drawn from the facts must be viewed in the light

most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). The party opposing summary judgment,

however, must present more than a “mere scintilla” of evidence; the evidence must

be such that a reasonable jury could find in favor of the plaintiff. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

II. Age Discrimination

The analysis of Plaintiff’s age discrimination claims is essentially the same

under both the ADEA and ELCRA. See Bondurant v. Air Line Pilots Ass’n Int’l,

679 F.3d 386, 394 (6th Cir. 2012). “To set forth a prima facie case of age

discrimination using circumstantial evidence, a plaintiff must establish the four

elements of the well-known McDonnell Douglas test: 1) that he was a member of a

protected class; 2) that he was discharged; 3) that he was qualified for the position

held; and 4) that he was replaced by someone outside of the protected class.”

Geiger v. Tower Automotive, 579 F.3d 614, 633 (6th Cir. 2009). When the plaintiff

is terminated in a reduction in force, the fourth element is modified to require

“additional direct, circumstantial, or statistical evidence tending to indicate that the

employer singled out the plaintiff for discharge for impermissible reasons.” Id.

(citing Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)).

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Once the plaintiff establishes a prima facie case, the burden shifts to the

defendant to articulate a legitimate, non-discriminatory reason for the employment

action. See Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 725 (6th Cir. 2012). 

Then “the plaintiff must produce sufficient evidence from which the jury may

reasonably reject the employer’s explanation as pretextual.” Id. (citation omitted). 

The plaintiff may show pretext by demonstrating that the employer’s explanation

“had no basis in fact, did not actually motivate the defendant’s challenged conduct,

or was insufficient to motivate the defendant’s challenged conduct.” Id. at 725. 

The parties do not dispute that the first three elements of Plaintiff’s prima

facie case are met. As for the fourth element, Rutherford argues that he was

replaced by James Gaertner and, therefore, he need not present additional evidence

showing that he was singled out for impermissible reasons in a reduction in force. 

To the contrary, the undisputed evidence demonstrates that Rutherford’s

position was terminated as a result of a bona fide reduction in force. Further,

Rutherford was not replaced by Gaertner, who was hired approximately six months

after Rutherford was terminated. Although Gaertner’s territory overlapped that of

Rutherford’s former territory, Gaertner did not assume Rutherford’s job duties or

his sales territory. Barnes, 896 F.2d at 1465 (“[A] person is not replaced when

another employee is assigned to perform the plaintiff’s duties in addition to other

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duties, or when the work is redistributed among other existing employees already

performing related work. A person is replaced only when another employee is

hired or reassigned to perform the plaintiff’s duties.”) Therefore, Rutherford was

not replaced by Gaertner and he must present “additional direct, circumstantial, or

statistical evidence tending to indicate that the employer singled out the plaintiff

for discharge for impermissible reasons.” Id.

Rutherford has not presented evidence that he was singled out for discharge

based upon his age. He contends that Karins made comments to his customers like

“I can’t believe you still have this old – old dog or old –old man as our sales rep.”

Def.’s Ex. 4 at 82-91. Rutherford has not shown, however, that Craig MacMillian,

as the decisionmaker, was influenced by Karins’ comments or that they played a

role in MacMillan’s decision to terminate him. See Lefevers, 667 F.3d at 724

(“[S]tatements by nondecisionmakers, or statements by decisionmakers unrelated

to the decisional process itself [can not] suffice to satisfy the plaintiff’s burden of

demonstrating animus.”). Moreover, the alleged comments are ambiguous and not

clearly indicative of age-related bias. Cf. Sharp v. Aker Plant Servs. Grp., Inc.,

726 F.3d 789, 798 (6th Cir. 2013) (“[G]eneral, vague, or ambiguous comments do

not constitute direct evidence of discrimination because such remarks require a

factfinder to draw further inferences to support a finding of discriminatory

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animus.”).

In addition, Rutherford has not presented evidence that Country Fresh’s

explanation for his termination was a pretext for discrimination. Rutherford argues

that he was not actually terminated in a reduction in force because he was replaced

by Gaertner and, therefore, Country Fresh’s reason is false. As discussed above,

however, Rutherford has not raised a question of fact regarding whether he was

replaced. Rutherford also suggests that Country Fresh provided “shifting” reasons

for his termination because Kay Bowen testified that it was because of

“restructuring of territory as well as reviewing performance,” whereas Craig

MacMillan testified that he considered only geography, not performance. Pl.’s Ex.

3 at 20; Pl.’s Ex. 12 at 50. The evidence is consistent, however, that Rutherford

was terminated as part of a reduction in force, and he has not presented evidence

that would raise an inference that the reduction in force was not bona fide or that it

did not actually motivate his termination. Nor has Rutherford presented evidence

that would raise an inference that age played a role in the decision making process. 

For these reasons, the court will grant Defendant’s motion for summary judgment

on Plaintiff’s age discrimination claims.

III. Discrimination under the ADA, PWDCRA, and FMLA

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Like Plaintiff’s age discrimination claims, his disability discrimination

claims under the ADA and PWDCRA and retaliation claim under the FMLA are

analyzed under the McDonell Douglas burden shifting framework. See Whitfield

v. Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011) (ADA); Donald v. Sybra, Inc.,

667 F.3d 757, 762 (6th Cir. 2012) (FMLA). The Michigan PWDCRA

“substantially mirrors the ADA, and resolution of a plaintiff’s ADA claim will

generally, though not always, resolve the plaintiff’s PWDCRA claim.” Donald,

667 F.3d at 764.

Rutherford has presented no evidence suggesting that his termination had

anything to do with his disability or his medical leave. Although he was

discharged on the day he returned from leave, he has not shown that his leave was

a motivating factor in the decision. Indeed, temporal proximity between the time

Plaintiff took leave and his discharge, although probative, its insufficient to

establish pretext. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th

Cir. 2001) (“But such temporal proximity is insufficient in and of itself to establish

that the employer's nondiscriminatory reason for discharging an employee was in

fact pretextual.”). Assuming Plaintiff could present a prima facie case of disability

discrimination or FMLA retaliation, he has not shown that Country Fresh’s

explanation for terminating him was pretextual. The court will grant summary

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judgment on Plaintiff’s ADA, PWDCRA, and FMLA claims. 

IV. ADA Failure to Accommodate

In order to establish a prima facie case for failure to accommodate under the

ADA, a plaintiff must show that: (1) the individual is disabled within the meaning

of the Act; (2) she is otherwise qualified for the position, with or without

reasonable accommodation; (3) her employer knew or had reason to know about

her disability; (4) she requested an accommodation; and (5) the employer failed to

provide the necessary accommodation. DiCarlo v. Potter, 358 F.3d 408, 419 (6th

Cir. 2004) (analyzing claim under Rehabilitation Act); Johnson v. Cleveland City

Sch. Dist., 443 Fed. Appx. 974, 982-83 (6th Cir. 2011) (citing DiCarlo for elements

of prima facie ADA case).

Rutherford argues that Country Fresh failed to accommodate his disability

when it refused to allow him to return to work with light duty restrictions in May

2013, after having done so in January 2013. According to Rutherford, Country

Fresh’s human resources representative told him that it was the company’s policy

that no one could return to work with restrictions. Rutherford felt that he could do

his job despite his restrictions on extensive walking, lifting, or bending. Country

Fresh has not shown that Rutherford could not have done the essential functions of

his job with those restrictions, and previously accommodated him by allowing him

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to work with another individual when bending was required. In light of these facts,

Defendant has not demonstrated that it is entitled to summary judgment on

Plaintiff’s failure to accommodate claim.

ORDER

IT IS HEREBY ORDERED that Defendant’s motion for summary judgment

is GRANTED IN PART and DENIED IN PART, consistent with this opinion and

order.

s/John Corbett O’Meara 

United States District Judge

Date: May 25, 2016

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

counsel of record on this date, May 25, 2016, using the ECF system. 

s/William Barkholz 

Case Manager

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