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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

BEVERLY MICHAJLYSZN, 

 

 Plaintiff, 

 Case No.: 15-11805 

v. Hon. Victoria A. Roberts 

 

CITIZENS BANK N.A., 

 Defendant. 

 / 

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

[ECF No. 25]

 

I. INTRODUCTION 

Beverly Michajlyszn (“Michajlyszn”) filed this action against Citizens Bank N.A. 

(“Citizens”). She alleges that she was terminated from employment because of her age, 

in violation of the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 621 et 

seq. Citizens filed this motion for summary judgment under Federal Rules of Civil 

Procedure 56. It argues there are no genuine issues of material fact regarding the 

legality of Michajlyszn’s termination. Citizens is entitled to judgment as a matter of law. 

II. BACKGROUND 

Citizens’ predecessor hired Michajlyszn in 1984 as a teller. Her employer 

changed ownership several times during Michajlyszn’s thirty-year tenure with the bank, 

and she became an employee of Citizens in 2004, when Citizens acquired Charter One 

Financial, Inc. Michajlyszn worked for Citizens as a teller manager, which carried the 

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responsibility of acting as the vault custodian. She was responsible for maintaining, 

ordering, and disbursing cash. 

Michajlyszn worked at the Woodward/Long Lake branch (“Woodward”) until 

February 27, 2014 when she transferred to the Lathrup Village branch (“Lathrup”). 

Citizens required that Michajlyszn transfer from Woodward because that location no 

longer employed Michajlyszn’s position. In 2014, Citizens changed its business model 

from a teller manager system to a universal banker system. In a universal banker 

system, all employees are responsible for all bank activities, including operating teller 

lines and accepting loan applications. 

On April 1, 2014, Citizens terminated Michajlyszn’s employment. She was 65. 

Michajlyszn claims that Citizens discriminated against her because of her age. 

Michajlyszn bases her claims on the following: 

(A) During Michajlyszn’s employment at Woodward, Michajlyszn alleges that 

Branch Manager Mazen Benham asked her on at least five occasions when she 

planned to retire. He suggested that she clean out her personal items weeks before her 

scheduled transfer, and suggested that she ask management for a buyout. 

(B) Three weeks before Michajlyszn transferred from Woodward, she trained 

Kristen Shaoni, in her 20s, and Shaoni along with other employees assumed 

Michajlyszn’s responsibilities. 

(C) A day after Michajlyszn transferred to Lathrup, Regional Manager Erin 

Vincent informed her that she had three choices: (1) remain at Lathrup; (2) transfer to 

Ferndale; or, (3) resign. Michajlyszn chose to remain even though she knew that the 

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Lathrup branch had triple the business compared to Woodward, and Ferndale was 

closer to her home. 

(D) Lathrup’s branch manager Serina Boyd, consistently monitored and 

documented Michajlyszn’s activities. Boyd kept a daily log a week into Michajlyszn’s 

employment until two weeks after Michajlyszn’s termination. 

(E) In 2011, Citizens gave Michajlyszn a written warning when she left a vault 

unsecured, a cash room open, and a cash box out. However, in 2014, Citizens decided 

to terminate her when she again left a vault unsecured with cash on the floor. On the 

other hand, later that year, Citizens only gave Taryn Kimbrough a final written warning 

when she left a vault unsecured with cash. 

Although Michajlyszn did not tell human resources personnel that she felt 

management treated her differently than younger employees or about Benham’s 

statements, she now believes Citizens treated her differently and Citizens discriminated 

her based on her age. 

Citizens alleges that it based its decision to terminate Michajlyszn on several 

incidences: 

(1) Since 2010, Michajlyszn’s performance declined and she failed to meet her 

sales referral goals. Michajlyszn consistently received a rating of two and three out of 

five on performance reviews. In 2013 and 2014, Michajlyszn received a Performance 

Improvement Plan and a final written warning that any subsequent violations of 

company policy might lead to termination. 

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(2) In 2014, Michajlyszn left a vault unsecured with cash on the floor. After a twoweek review by four managers, Citizens decided to terminate Michajlyszn for poor 

performance and continued violations of company policy. 

Following her termination, Michajlyszn filed a charge of discrimination with the 

Equal Employment Opportunity Commission (“EEOC”), alleging age discrimination in 

violation of the ADEA. The EEOC dismissed Michajlyszn’s claim because of lack of 

evidence. 

Citizens moves for summary judgment. 

III. APPLICABLE LAW 

a. Summary Judgment 

The Court will grant summary judgment 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 law.” FED. R. CIV. P. 56(a). A genuine issue of material fact exists "if the 

evidence is such that a reasonable jury could return a verdict for the nonmoving party." 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2507, 91 L. Ed. 2d 202 

(1986). The movant has the initial burden to demonstrate the absence of a genuine 

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 

2553, 91 L. Ed. 2d 265 (1986). The burden then shifts to the nonmovant, who “must set 

forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 

256, 106 S. Ct. at 2514 (discussing FED. R. CIV. P. 56(e)). “The court must view the 

evidence in the light most favorable to the non-moving party, drawing all reasonable 

inferences in that party's favor.” Sagan v. U.S., 342 F.3d 493, 497 (6th Cir.2003) (citing 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 

89 L. Ed. 2d 538 (1986)). 

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Both parties must support their assertions “that a fact cannot be or is genuinely 

disputed” by “citing to particular parts of materials in the record, including depositions, 

documents, electronically stored information, affidavits or declarations, stipulations 

(including those made for purposes of the motion only), admissions, interrogatory 

answers, or other materials.” FED. R. CIV. P. 56(c)(1)(A). Alternatively, either party may 

carry its burden by “showing that the materials cited do not establish the absence or 

presence of a genuine dispute, or that an adverse party cannot produce admissible 

evidence to support the fact.” Id. 56(c)(1)(B). 

It is not enough for the nonmovant to “simply show that there is some 

metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S. Ct. at 

1356, 89 L. Ed. 2d 538 (1986). Rather, the nonmovant must sufficiently allege a fact 

that, if proven, “would have [the] effect of establishing or refuting one of essential 

elements of a cause of action or defense asserted by the parties.” Midwest Media Prop., 

L.L.C. v. Symmes Twp., Ohio, 503 F.3d 456, 469 (6th Cir.2007) (alteration in original) 

(quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)) (internal quotation 

marks omitted). The non-movant cannot rely upon bare assertions, conclusory 

allegations, or suspicions to substantiate his claims. Columbia Natural Res., Inc. v. 

Tatum, 58 F.3d 1101, 1109 (6th Cir.1995). If the nonmoving party does not respond with 

specific facts showing a genuine issue for trial, summary judgment is appropriate. 

Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989). 

b. AGE DISCRIMINATION AND EMPLOYMENT ACT 

Under the ADEA, it is unlawful for an employer “to discharge any individual or 

otherwise discriminate against any individual with respect to his compensation, terms, 

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conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 

623(a)(1). “The purpose of the ADEA... is to protect older workers from being ‘deprived 

of employment on the basis of inaccurate and stigmatizing stereotypes,’ and to ensure 

that employers evaluate their employees on the basis on their merits, and not their age.” 

Allen v. Diebold, 33 F.3d 674, 676-77 (6th Cir.1994). “Disparate treatment [as 

Michajlyszn alleges]... captures the essence of what Congress sought to prohibit in the 

ADEA. It is the very essence of age discrimination for an older employee to be fired 

because the employer believes that productivity and competence decline[] with old age.” 

Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 

(1993).

The burden of persuasion is on Michajlyszn to show that “age was the ‘but-for’ 

cause of [Citizens’] adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 

129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Michajlyszn “may establish a violation of the 

ADEA by either direct or circumstantial evidence.” Blizzard v. Marion Technical Coll., 

698 F.3d 275, 283 (6th Cir.2012) (quoting Geiger v. Tower Auto., 579 F.3d 614, 620 

(6th Cir.2009)). “Direct evidence of discrimination is that evidence which, if believed, 

requires the conclusion that unlawful discrimination was at least a motivating factor in 

the employer’s action.” Gieger, 579 F.3d at 620 (quoting Wexler v. White’s Fine 

Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003)). 

When there is no direct evidence of age discrimination, the claim is analyzed 

using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Blizzard, 698 F.3d at 283. To establish a 

prima facie case relying upon indirect evidence of age discrimination, Michajlyszn must 

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establish that: (1) she is a member of a protected class; (2) she was subject to an 

adverse employment action; (3) she was qualified for the position; and, (4) [Citizens] 

treated her differently from similarly situated employees outside the protected class. 

Briggs v. Potter, 463 F.3d 507, 514 (6th Cir.2006). 

To overcome a prima facie case of discrimination, an employer must “articulate a 

legitimate nondiscriminatory reason” for its action. See Barnes v. GenCorp Inc., 896 

F.3d 1457, 1465 (6th Cir. 1990)(citing Texas Dept. of Community Affairs v. Burdine, 450 

U.S. 248, 252-53 (1981)). Afterwards, the burden shifts to Michajlyszn to prove by a 

preponderance of the evidence that Citizens’ asserted reasons “were not its true 

reasons, but were a pretext for discrimination.” Id. at 1464. 

To establish pretext, Michajlyszn must show “(1) that the proffered reasons had 

no basis in fact, (2) that the proffered reasons did not actually motivate [her discharge], 

or (3) that they were insufficient to motivate discharge.” Chattman v. Toho Tenax Am., 

Inc., 686 F.3d 339, 349 (6th Cir.2012) (emphasis in original) (internal quotation marks 

omitted). The three-part test need not be applied rigidly. Blizzard, 695 F.3d at 285. 

“Pretext is a commonsense inquiry: did the employer fire the employee for the stated 

reasons or not?” Chen v. Dow Chem. Co., 580 F.3d 394,400 n.4. (6th Cir.2009). It is not 

enough for a plaintiff to simply disprove the employer’s purported nondiscriminatory 

reasons; plaintiff must present evidence that age was a motivating factor in defendant’s 

decision. Michajlyszn has the burden to produce “sufficient evidence from which a jury 

could reasonably reject [Citizens’] explanation of why it fired her.” Id. at 400. 

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c. Michajlyszn and Citizens’ Legal Authority

Citizens relies on Gross, which holds that Michajlyszn has the burden of 

persuasion to show that her “age was the ‘but-for’ cause of the employers’ adverse 

action.” Citizens also relies on McDonnell-Douglass Corp. to demonstrate the burden 

shift analysis, if Michajlyszn can establish a prima facie case for age discrimination. In 

addition, Citizens relies on Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 724 (6th 

Cir.2012), for the proposition that statements by non-decision makers unrelated to the 

decision to terminate Michajlyszn are insufficient to satisfy Michajlyszn’s burden to 

demonstrate animus. 

In Lefevers, the Sixth Circuit said that asking an employee “when are you going 

to retire?” is merely a general inquiry about age and impending retirement, and this 

statement does not constitute direct evidence of discriminatory intent when the 

statement is made by a non-decision maker, or decision makers unrelated to the 

decisional process to terminate. 

Michajlyszn does not rely on any cases to demonstrate that she met her burden 

for her prima facie case, nor does she directly address Citizens’ arguments in her 

response. Michajlyszn relies on Briggs to demonstrate the elements for pretext, but she 

does not explain what element applies to her case. However, Citizens relies on Chen to 

demonstrate pretext and Plaintiff’s failure to establish the elements. 

IV. DISCUSSION 

Citizens says: (1) Michajlyszn has no facts to support a claim of differential 

treatment based on age and that Citizens had legitimate, non-pretextual reasons to 

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terminate Michajlyszn; and, (2) Michajlyszn is not entitled to economic damages after 

her termination date because she did not sufficiently mitigate them. 

a. Age Discrimination 

Citizens says that Benham’s alleged statements to Michajlyszn to discuss her 

retirement, encourage her to ask for a buyout, and ask her to clean out her personal 

items were not direct evidence of discrimination. Citizens argues that Benham did not 

make his statements in conjunction with any adverse employment action and Benham 

was only indirectly involved in the decision to terminate Michajlyszn. Michajlyszn claims 

that Citizens prompted the statements to force her to retire and it decided to terminate 

her when she refused. 

Michajlyszn’s argument is unavailing. The statements upon which she relies are 

not probative of Citizens’ discriminatory animus. While discriminatory remarks, even by 

a non-decision maker, can be probative evidence of pretext, statements by non-decision 

makers, or statements by decision-makers not made in the context of the decisional 

process itself, are insufficient to satisfy a plaintiff’s burden to demonstrate discriminatory 

animus. Blizzard, 698 F.3d at 287. Michajlyszn presents no evidence to suggest that 

Benham’s questions were related to Citizens’ decision to terminate her, or even that 

Benham was directly involved in that decision. See Geiger, 579 F.3d at 621–22. 

In addition, assuming Benham was involved in the decision to terminate 

Michajlyszn, Michajlyszn conceded in her deposition that she brought up retirement to 

Benham in passing and told him that she intended to retire at age sixty-six. She also 

said that Benham made the statements while they were laughing and joking, so she did 

not take him seriously. Benham’s comments do not relate to the decision to terminate 

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her, and his inquiries were too general to constitute direct evidence of discrimination. 

See Lefevers, 667 F.3d at 724 (Merely general inquiries about age and impending 

retirement do not suffice to satisfy the plaintiff’s burden to demonstrate animus when the 

statement is made by a non-decision maker, or decision makers unrelated to the 

decisional process itself.). 

 When direct evidence of age discrimination is lacking, the court analyzes the 

claim using the McDonnell Douglas burden-shifting framework. Blizzard, 698 F.3d at 

283. 

Citizens argues that Michajlyszn cannot prove a prima facie case of 

discrimination because she was not qualified for the position and she has no evidence 

that Citizens treated her differently than similarly situated younger employees – two 

whom she alleges left cash in an unsecured vault once and Citizens did not terminate 

them. 

To establish her burden, Michajlyszn alleges that Benham told her that Sean 

Glasgow left a vault open overnight. Michajlyszn has no personal knowledge if this did 

occur. Instead, she speculates that Citizens did not reprimand him since Glasgow 

remains an employee. On the other hand, Benham testified that he did not have 

knowledge of Glasgow leaving the vault open overnight. Second, Michajlyszn points to 

Kimbrough; she only received a final written warning when she failed to secure cash in 

a vault once. 

The Glasgow statement is hearsay. See, e.g., Alpert v. United States, 481 F.3d 

404, 409 (6th Cir.2007) (“‘[E]vidence submitted in opposition to a motion for summary 

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judgment must be admissible. Hearsay evidence ... must be disregarded.’ ” (quoting 

U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir.1997))). 

Even assuming that the record supported Michajlyszn’s claims, these employees 

are not similar situated to her. Michajlyszn left over $100,000 cash in an unsecured 

vault twice and continued to violate Citizens’ policies after she received final written 

warning of termination. 

Michajlyszn also argues that the Citizens Woodward branch replaced her with 

employees in their twenties, all outside the protected class. Michajlyszn’s argument is 

unavailing. The Woodward branch did not terminate Michajlyszn. She decided to 

transfer from the Woodward branch to Lathrup, and the Lathrup branch terminated her 

after she violated company policy. 

In addition, assuming that Michajlyszn established a prima facie case of 

discrimination, her claim would be unavailing because Citizens’ reasons to terminate 

her were not pretextual. 

Citizens proffered several legitimate, nondiscriminatory reasons why it terminated 

Michajlyszn: repeated poor performance and violations of company policy. 

Under pretext, “the first category implicates evidence ‘that the proffered bases for 

[Michajlyszn’s] discharge never happened,’ and the second category requires that 

[Michajlyszn] ‘admit[ ] the factual basis underlying [Citizens’] proffered explanation and 

further admit [ ] that such conduct could motivate dismissal.’ ” Chattman, 686 F.3d at 

349 (alteration in original) (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 

1078, 1084 (6th Cir.1994)). “The third category of pretext consists of evidence that other 

employees, particularly employees outside the protected class, were not disciplined 

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even though they engaged in substantially identical conduct to that which [Citizens] 

contends motivated its discipline of [Michajlyszn].” Id. (citing Manzer, 29 F.3d at 1084). 

“A showing of the third type of pretext is a direct attack on the credibility of [Citizens’] 

proffered motivation for disciplining [Michajlyszn] and, if shown, ‘permits, but does not 

require, the factfinder to infer illegal discrimination from [Michajlyszn’s] prima facie 

case.’ ” Id. (quoting Manzer, 29 F.3d at 1084). “In other words, it creates a genuine, 

triable issue of material fact.” Id. 

Michajlyszn does not present sufficient evidence from which a jury could 

reasonably reject Citizens’ explanation of her termination. 

First, Michajlyszn cannot establish that the proffered reasons had no basis in 

fact. She conceded in her deposition that she left over $100,000 cash in an unsecured 

vault in violation of Citizens’ policy twice. She also said that she understood Citizens’ 

policies and regulations to secure cash. 

Second, Michajlyszn conceded in her deposition that she signed the final written 

warning before leaving the cash unsecured, and was aware that Citizens might 

terminate her if she violated company policy. 

Finally, Michajlyszn cannot establish the insufficiency of Citizens’ proffered 

reasons; she has not presented admissible evidence that Citizens treated other 

employees differently in light of conduct similar to hers. See Blizzard, 698 F.3d at 286-

87. 

 Michajlyszn presents no direct evidence of age discrimination. Nor does she 

even attempt to argue that she makes out a prima facie case of discrimination under the 

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McDonnell Douglas framework or show that Citizens’ proffered reasons for her 

termination were pretextual. 

b. Economic Damages 

Since the court grants summary judgment on the ADEA claim the court need not 

address damages. 

V. CONCLUSION 

Michajlyszn cannot establish a genuine issue of material fact that age was the 

but-for cause for her termination. She cannot successfully establish an age 

discrimination claim. Citizens is entitled to judgment as a matter of law. The court 

GRANTS Citizens’ motion for summary judgment. 

IT IS ORDERED. 

 s/Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Dated: September 22, 2016 

The undersigned certifies that a copy of this 

document was served on the attorneys of record 

by electronic means or U.S. Mail on September 

22, 2016. 

s/Linda Vertriest 

Deputy Clerk 

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