UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

CRISTIE CISNEROS, 

 Plaintiff, Case No. 14-cv-14893 

v. Honorable Thomas L. Ludington 

FIRSTMERIT CORPORATION and 

LPL FINANCIAL, LLC, 

 Defendants. 

_______________________________________/ 

OPINION AND ORDER GRANTING MOTION FOR RECONSIDERATION, 

VACATING JUDGMENT, AMENDING OPINION AND ORDER, AND DENYING 

MOTIONS FOR SUMMARY JUDGMENT 

 On February 8, 2016 a Judgment in favor of Defendants FirstMerit Corporation and LPL 

Financial, LLC, was entered against Plaintiff Cristie Cisneros. Judgment was entered pursuant to 

the Court’s February 8, 2016 Opinion and Order granting Defendants motions for summary 

judgment. The February 8 Opinion concluded that there was no genuine dispute of material fact 

that Cisneros was not terminated because she took leave under the Family and Medical Leave 

Act (“FMLA”). 

 On February 22, 2016, Cisneros timely moved for reconsideration. She argues that the 

Court erred in determining that certain actions by FirstMerit and LPL were not adverse 

employment actions. She also argues that the Court erred by not considering additional evidence 

of causation beyond mere temporal proximity. Defendants were directed to respond to Cisneros’s 

motion. Her motion will be granted. 

I. 

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 Cisneros does not dispute the facts as conveyed in the Court’s February 8, 2016 Opinion 

and Order. Those facts will be adopted as though fully recited herein. See Feb. 8, 2016 Op. & 

Order, ECF No. 38. 

II. 

A motion for reconsideration will be granted if the moving party shows: “(1) a palpable 

defect, (2) the defect misled the court and the parties, and (3) that correcting the defect will result 

in a different disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F. Supp. 2d 

731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable defect” is 

“obvious, clear, unmistakable, manifest, or plain.” Id. at 734 (citing Marketing Displays, Inc. v. 

Traffix Devices, Inc., 971 F. Supp. 2d 262, 278 (E.D. Mich. 1997). 

III. 

 Cisneros makes two primary claims in her motion for reconsideration. First, she argues 

that the Court did not properly consider certain actions taken by LPL and FirstMerit to be 

adverse employment actions. Second, she argues that the Court did not properly assess additional 

evidence of causation beyond mere temporal proximity. 

A. 

 Cisneros first argues that a number of actions taken by LPL and FirstMerit 

(predominantly FirstMerit) were adverse employment actions. These are: the required 

amendment of Cisneros’s FINRA U4 disclosure form; the increase in her 2014 sales goals; the 

fact that she was not assigned a support assistant; and the fact that she was not assigned a 

replacement branch when one of her assigned branches closed. These will be addressed in turn. 

1. 

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 First, as explained in the February 8, 2016 Opinion, there is no evidence that the 

amendment to the FINRA U4 disclosure form was in any way retaliatory. Cisneros has adduced 

no evidence concerning FINRA’s disclosure requirements or produced any evidence that her 

credit compromise was not properly disclosed. She argued in her response to Defendants’ 

motions for summary judgment and now argues in her motion for reconsideration that the 

amendment to the disclosure form was retaliatory. She does so without any support. Nothing in 

the record suggests that the amendment was made at the discretion of LPL or FirstMerit. Rather, 

LPL produced evidence in support of its motion for summary judgment that FINRA does in fact 

require the disclosure of credit compromises. See FINRA Advisor Impact Alert, Ex. 4, Def.’s 

Mot. Summ. J., ECF No. 28-5. 

 Cisneros attempts to create an inference of retaliation by explaining that “by focusing on 

the ‘balance / as of’ date and not the actual date of the compromise, this guaranteed that FINRA 

would find the disclosure untimely.” Pl.’s Mot. Recons. 11, ECF No. 44. But the evidence in the 

record demonstrates that Cisneros had the opportunity to correct the U4 form to include the 

actual date of the compromise rather than the date included by LPL’s compliance specialist. 

Cisneros was furnished the amended U4 that listed the date of her compromise as “01/04/2013 

. . . EXACT DATE IS NOT KNOWN.” Amended U4, Ex. 6, id., ECF No. 28-7. LPL’s 

compliance specialist, when furnishing the proposed amended U4 to Cisneros, advised her: “If 

you are satisfied with the amendment as it is, I can file this amendment without your manual 

signature if you respond to this email acknowledging that you have received the amendment 

prior to its filing.” Amended U4 Email Exchange, Ex. 5, id., ECF No. 28-6. Instead of 

responding with an exact compromise date that may have affected any possible penalty imposed 

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by FINRA, Cisneros responded: “I have received and reviewed the amendment to my U4 and 

have reviewed the attached disclosures.” Id. 

 Cisneros’s argument that this is an adverse employment action is without merit. She has 

produced no evidence of a different date that should have been used or that the different date 

would have avoided a penalty. Under the FINRA guidelines, any item—such as a credit 

compromise—that is disclosed late is subject to a penalty that reaches a maximum amount after 

sixty days. See FINRA Advisor Impact Alert, Ex. 4, Def.’s Mot. Summ. J., ECF No. 28-5 

(detailing a penalty structure of “$100 for the first day late and $25 for each subsequent day, up 

to a maximum of 60 days and $1,575.”). A disclosure is deemed late if not “filed with FINRA 

within 30 days of the occurrence.” Id. Thus, for Cisneros to have avoided the maximum penalty, 

she would have had to demonstrate that her compromise occurred less than 90 days before the 

date she reported it.1

 The date provided for her compromise was January 4, 2013 and her 

amended U4 was submitted September 23, 2013. That is a 262 day gap. Cisneros did not propose 

an alternative date that should have been used in her amended U4, let alone one that would have 

avoided a FINRA penalty. Her claim is meritless.2 The amended U4 was not retaliatory. 

 1

 That provides for 30 days to disclose and the maximum penalty period of 60 days. 

2

 She also makes reference to the judgment she disclosed. But she does not explain how the disclosure of that 

judgment fits into her argument. She argues that it did not need to be disclosed. And, she argues, Suanne Grayson, 

LPL’s compliance specialist, admitted in her deposition that it did not need to be disclosed. Yet in the amended U4 

disclosure a specific note is made that the judgment was already disclosed. There is no evidence that the judgment 

could have been the basis for a FINRA penalty if the credit compromise was not disclosed. In any event, because the 

credit compromise was disclosed and did form the basis for the FINRA penalty imposed on Cisneros, the 

counterfactual of whether the judgment merited a penalty need not be entertained. 

But to the extent Cisneros argues that the fact the judgment was reported at all was retaliatory, her 

argument is without merit. She cites to the deposition of Ms. Grayson in support of her claim that Ms. Grayson 

conceded the judgment did not need to be reported. But the deposition does not support Cisneros’s claim. Ms. 

Grayson states unequivocally in her deposition that while the judgment lien was pending it needed to be reported. 

She only states that it does not need to be reported when she is asked if an unlicensed individual would need to 

disclose the judgment. She explains that someone who is not licensed would not need to disclose the judgment. That 

is, Cisneros was subject to the judgment prior to being licensed. Otherwise, an individual subject to FINRA’s 

reporting requirements would need to disclose a judgment or lien. See FINRA Advisor Impact Alert, Ex. 4, Def.’s 

Mot. Summ. J., ECF No. 28-5 (requiring a U4 update for “[a]ll judgments or liens.”) 

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2. 

 Next Cisneros claims the Court erred by not concluding that the increase in her sales 

goals was an adverse employment action. She does not explain how this was a palpable defect of 

law. All she offers is a rehashed argument that two financial advisors had their sales goals 

decreased and Cisneros had her sales goals increased. Additionally, she claims the Court 

misrepresented the holding of James v. Metro. Gov’t of Nashville, 243 F. App’x 74 (6th Cir. 

2007), because the February 8, 2016 Opinion explains in a parenthetical that the case concerned 

sales quotas when it actually concerned cataloguing quotas. Cisneros is correct that the February 

8, 2016 Opinion incorrectly states the nature of the quotas in James. But that is not a palpable 

error of law, particularly where Cisneros offers no authority for her claim that her increased sales 

quota (that was still below her actual sales figure from the year before) is an adverse action. 

 Indeed, James did not deal with sales quotas. But the case does involve the imposition of 

performance quotas in excess of the performance output of an employee that engaged in 

protected action. The Sixth Circuit concluded that the imposition of such a quota was not an 

adverse employment action because it did not “significantly affect[] her professional 

advancement.” Id. at 79. The only case to the contrary located by the Court (and which was not 

cited by Cisneros) is Ross v. Campbell Soup Co., 237 F.3d 701, 708 (6th Cir. 2001). In Ross, the 

Sixth Circuit concluded that a host of actions by plaintiff’s employer, including a “dramatic 

increase in his sales quotas,” was evidence that the employer’s reason for discharging the 

plaintiff was pretextual. The Ross court did not conclude that an increase in sales quotas was an 

 To the extent there is any ambiguity, it must be interpreted in favor of Cisneros. As explained above, 

however, there is no evidence that the penalty assessed for the credit compromise was improper. The only way 

disclosing the judgment lien would have any adverse impact on Cisneros is if the credit compromise did not result in 

a penalty. Under FINRA, an untimely amended disclosure cannot result in multiple penalties. Thus, Cisneros was 

not penalized for reporting the judgment lien separate from the penalty that was imposed for her reporting the credit 

compromise. 

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adverse employment action. Cisneros has furnished no authority in support of that conclusion. 

The only relevant authority, James, is to the contrary. Cisneros’s argument that the increase was 

adverse is meritless. 

 Cisneros makes an additional argument that her increased sales goals demonstrate a 

causal relationship between her adverse employment action and her protected activity because 

she was treated differently than other employees. This argument is addressed below. 

3. 

 Lastly, Cisneros argues that the Court erred by not considering as adverse the decision 

not to assign her a support assistant and not assign her a replacement branch after one of her 

branches closed. Cisneros objects that the February 8, 2016 Opinion “ignores the evidence that 

[she] was the only person who qualified for an independent service coordinator and did not 

receive one.” Pl.’s Mot. Recons. 14, ECF No. 44. Similarly, Cisneros claims that “the Court 

ignores the evidence that the other financial advisor that had a branch close, Emily Rush, had an 

additional branch location assigned to her.” Id. 

 Cisneros does not explain how these actions are adverse employment actions. It is her 

burden of production in establishing her prima facie case to demonstrate that these actions were 

adverse. Newman v. Fed. Exp. Corp., 266 F.3d 401, 405 (6th Cir. 2001). “A materially adverse 

employment action in the retaliation context consists of any action that ‘well might have 

dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Michael 

v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007) (quoting Burlington N. & 

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Not receiving a support assistant when the 

company was moving to pooled support does not meet this standard. Nor does not receiving a 

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replacement branch when multiple branches, some which were not assigned to Cisneros, have 

closed. 

What may elevate these incidents to adverse employment actions is Cisneros’s claim that 

she was being singled out in each instance. First, she was denied a support assistant despite being 

qualified for individual support based on her sales total. No other financial advisor received less 

support than they otherwise would have gotten under the modified support guidelines. Second, at 

least one other financial advisor in Cisneros’s region did, according to Cisneros, receive a 

replacement branch after a number of branch closures in Michigan. This disparate treatment 

could rise to the level of dissuading Cisneros from making or supporting a charge of 

discrimination. But, like the other adverse employment actions Cisneros avers, these two 

incidents take place many months after she takes FMLA leave. Thus, Cisneros would need to 

furnish some additional evidence of causation to support her prima facie case of retaliation. 

Indeed, she argues in her motion for reconsideration that she has. 

B. 

 Cisneros next argues that the February 8, 2016 Opinion erred by not properly evaluating 

her arguments concerning causation. The February 8, 2016 Opinion stated that “Cisneros 

concedes that she has no evidence of a connection other than mere temporal proximity.” Feb. 8 

Op. 23, ECF No. 38. This was in error. Cisneros made two additional claims of causation: that 

FirstMerit attempted to “build a file” against Cisneros and that she was treated differently from 

other employees. 

1. 

 First, Cisneros claims that she demonstrated causation because FirstMerit was attempting 

to “build a file” against her. In support of this claim she cites Oldham v. Merrill, Lynch, Pierce, 

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Fenner & Smith, Inc., 124 F.3d 198 (6th Cir. 1997). But Oldham does not support the conclusion 

that Cisneros’s proposes. In fact, Oldham does not at all address how “building a file” relates to 

the causation prong in establishing a prima facie case of discrimination because that was not an 

issue before the court in that case. Oldham was addressing whether “building a file” can be 

evidence of pretext. Cisneros has not produced any authority for the claim that “building a file” 

is evidence of causation. Her claim is without merit. 

 But putting to one side Oldham’s inappositeness, it still does not aid Cisneros. In 

Oldham, the Sixth Circuit narrowly construed a prior holding to mean that “the deliberate 

building of an adverse file on an employee can, on the right set of facts, constitute evidence of 

pretext.” Id. at *4 (discussing Few v. Yellow Freight System, Inc., 845 F.2d 123 (6th Cir. 1988)). 

The Sixth Circuit distinguished Oldham from its prior holding because in the prior case, Few, 

. . . a supervisor was instructed to “start documenting the plaintiffs [sic] personnel 

file whenever a mistake was made by her . . . in order to eventually terminate her 

employment,” and that the plaintiff had previously had only eight write-ups in her 

personnel file during four and one-half years on the job, but accumulated sixteen 

write-ups during the four months following the decision to create an adverse file. 

Id. (quoting Few, 845 F.2d at 124). The Sixth Circuit then rejected Oldham’s argument that her 

employer’s reason for termination was pretextual because it “built a file” against her. The Sixth 

Circuit explained that she had “presented no evidence that a deliberate decision was made to 

‘build up a file’ against her—the only testimony that would even begin to support such a 

conclusion is her testimony that [a supervisor] convinced [her coworkers] to lower their ratings 

of her.” Id. The court then concluded that “[t]his alone, especially given the evidence that [her 

coworkers] and at least one client had, of their own volition, complained about Oldham, amounts 

to a ‘mere scintilla’ of evidence of pretext and is insufficient to withstand summary judgment.” 

Id. 

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 Applying the reasoning of Oldham to Cisneros’s case does not lead to the conclusion that 

FirstMerit was building a file against her. In the period leading up to her termination, Cisneros 

accumulated two client complaints about being sold an improper product—an annuity. These 

two complaints were consistent with two other complaints made long before Cisneros took 

FMLA leave. Those prior client complaints alleged dissatisfaction with a product sold by 

Cisneros—an annuity. 

There is also no evidence of a deliberate attempt to build a file other than Cisneros’s 

allegation that James Deloney, FirstMerit’s compliance officer, told her one thing about her 

product mix during an internal audit but then recorded something different in his write-up of the 

meeting. But the Cisneros’s account of the meeting and the notes prepared by Mr. Deloney are 

not contradictory. Mr. Deloney notes that he discussed product mix with Cisneros, something she 

concedes occurred. Cisneros claims that Mr. Deloney stated “Of course, your annuities are 

extremely high, but if we exclude Dr. Godiali from this, you’re right in line with where you 

should be.” Cisneros Dep. 49, ECF No. 28-13. Mr. Deloney wrote in his notes of the meeting: 

We had a long discussion on product mix. Her numbers are skewed because of the 

very large client she captured in 2012. Because of that client’s profile and 

investments, Cristie’s fixed annuity numbers are extremely high. Outside of that 

client, however, she has a significant amount in equity-indexed annuities which 

are highly scrutinized investments. 

Deloney Meeting Notes, ECF No. 32-11. 

Nothing between Cisneros’s recollection of the meeting and Mr. Deloney’s notes is 

inherently contradictory. Mr. Deloney notes that outside of the one client purchasing significant 

annuities “she has a significant amount in equity-indexed annuities.” But this does not 

necessarily imply that her product mix, excluding Dr. Godiali, is out of line from expectations. 

Even if the conclusion could be drawn that Mr. Deloney was documenting concerns that were 

not voiced to Cisneros, that alone is insufficient to demonstrate that FirstMerit was “building a 

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file” against her. Here, like in Oldham, there are independent client complaints that allege 

improper annuity sales by Cisneros. Additionally, there is no other evidence of concern with 

Cisneros’s product mix or other internal complaint consistent with Mr. Deloney’s concerns until 

after customer complaints in late 2013 and early 2014. This argument does not establish 

causation. 

2. 

 Next, Cisneros argues that her disparate treatment by supervisors is evidence of 

causation. Cisneros argues that she was treated differently from other similarly situated 

employees on four different occasions: when her sales goals were increased and other financial 

advisor’s sales goals were decreased; when another financial advisor received a replacement 

branch and Cisneros did not; when Cisneros was denied a support assistant and others were 

provided an assistant; and when another financial advisor was permitted to take two incentive 

trips in one year and Cisneros was not. 

“Evidence that the defendant treated the plaintiff differently from similarly situated 

employees . . . is relevant to causation.” Flones v. Beaumont Health Sys., 567 F. App’x 399, 408 

(6th Cir. 2014). “[T]o be considered ‘similarly-situated’ . . . , the plaintiff and the employee with 

whom the plaintiff seeks to compare himself or herself must be similar in all of the relevant

aspects.” Mann v. Navicor Grp., LLC, 488 F. App’x 994, 999 (6th Cir. 2012) (quoting 

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998)) (internal 

quotation marks omitted) (emendation in original). A court assessing whether employees are 

similarly situated “will assess certain factors in making this determination, such as whether the 

other employees have dealt with the same supervisor, have been subject to the same standards, 

and have engaged in the same conduct without such differentiating circumstances that would 

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distinguish their conduct or the employer’s response.” Parks v. UPS Supply Chain Sols., Inc., 

607 F. App’x 508, 515 (6th Cir. 2015). 

i. 

 First, Cisneros claims that she had her sales goals increased while other top performing 

financial advisors had their sales goals decreased. The record does not support this assertion and 

Cisneros has not demonstrated that she and the relevant financial advisors who had their sales 

goals decreased were similarly situated in all relevant respects. Cisneros cites to one financial 

advisor in particular, Dave Jackson, who was the second highest performing financial advisor 

during 2013. She points out that his 2014 sales goal was actually decreased from his 2013 goal, 

despite having exceeded his 2013 target. But Cisneros does not explain anything else about Mr. 

Jackson. 

 FirstMerit, in its reply brief, explains that Mr. Jackson is actually located in a different 

state and has a different supervisor than Cisneros. Without offering particulars, FirstMerit further 

explains that a number of factors could have affected Mr. Jackson’s lower target. 

 Also, when reviewing the two sales spreadsheets furnished by Cisneros, there is no 

evidence of a pattern whereby Cisneros was unfairly targeted for different treatment. A number 

of financial advisors saw their sales goals increase in 2014 after meeting their goals in 2013. 

Some financial advisors even saw their sales goals for 2014 increase to a level that exceeded 

their actual sales in 2013. 

 No evidence supports the conclusion that Cisneros suffered treatment different from a 

similarly situated employee when her sales goals were increased. 

ii. 

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 Next, Cisneros claims that another financial advisor, Emily Rush, was assigned a new 

branch to offset branches assigned to her that had closed. Cisneros also had a branch close and 

when she requested a replacement branch, that request was denied. 

 The record on this point is not entirely clear. First, Cisneros explains in her deposition 

that she was temporarily covering the Bay-Shattuck branch because FirstMerit was low on 

advisors. Her temporary coverage ended in February of 2014 and the branch was given to Emily 

Rush, presumably a new financial advisor. Cisneros goes on to explain that in February of 2014 

“three or four [branches] in . . . the surrounding area” closed. Cisneros Dep. 91–92. One of those 

branches was assigned to Cisneros. She acknowledged in her deposition that the other branches 

that closed had a financial advisor assigned to them. Id. at 93. She then stated in her deposition 

that Emily Rush “had the rest of the branches” that closed. Id. But she then explained that Emily 

Rush did not suffer the loss of a branch the way that she did. She explained this by claiming that 

Emily Rush received offsetting branches: “She received Bay/Shattuck. I don’t know what else 

she was going to receive, but I know she was receiving additional branches.” Id. 

 Cisneros’s testimony establishes that at least three branches in her area closed (possibly 

four), one of the branches that closed was assigned to Cisneros and Emily Rush “had the rest of 

the branches.” Id. Thus, Emily Rush had at least two, possibly three branches close. Then, 

according to Cisneros, Rush received new branches to offset the branch closures. Which 

branches these were, Cisneros does not explain. Cisneros states only that Emily Rush received 

the Bay/Shattuck branch and that she did not know “what else [Rush] was going to receive,” just 

that she “know[s Rush] was receiving additional branches.” Id. This conclusory statement does 

not establish that Rush actually received other branches. Indeed, there is no evidence anywhere 

in the record that Rush received specific branches as compensation for some of her branches 

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closing. Taking Cisneros’s contradictory account of the branch closures in a light most favorable 

to her, both Cisneros and Rush suffered an identical net loss of one branch.3

 But the summary judgment standard is easily met, and Cisneros’s testimony, although 

confusing and at times internally inconsistent, does demonstrate disparate treatment. Cisneros’s 

testimony demonstrates that Emily Rush, the only other financial advisor in Cisneros’s area, 

received at least one additional branch and Cisneros received none. This is sufficient to establish 

FMLA causation. 

iii. 

 Next, Cisneros claims she suffered disparate treatment when she was denied an 

individual support assistant and forced to use pooled support staff. Cisneros does not claim that 

she was treated differently from another, similarly situated employee. Rather, she claims that no 

one at FirstMerit was similarly situated to her and she was denied the preferential treatment that 

she deserves. See Cisneros Dep. 101 (explaining that other Financial Advisors had to use pooled 

service assistants but none were improperly denied individual support because they “didn’t 

qualify for it”). This does not amount to a claim of disparate treatment because, by Cisneros’s 

own admission, she has no comparator. 

iv. 

 Lastly, Cisneros argues that another employee, Wendy Mueller, was permitted to take 

two incentive trips in one year but Cisneros was told she could not do so. Cisneros does not 

establish that she and Ms. Mueller were similarly situated in all relevant respects. In fact, she 

admits in her deposition that Ms. Mueller took two incentive trips in one year while Cisneros and 

Ms. Mueller were employed by Citizens Republic Bancorp, prior to its acquisition by FirstMerit. 

There is no evidence that any of the supervisors that dissuaded Cisneros from taking two trips 

 

3

 Rush could have potentially lost more branches if four, rather than three, branches closed. 

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were supervising Ms. Mueller at the time she took two trips. There is also no evidence that the 

management structure of Citizens at that time bore any relation to FirstMerit and LPL’s 

management structure when Cisneros was told not to take two trips. 

C. 

 In light of the above, Cisneros is able to meet the causation prong of her prima facie case 

through the disparate treatment she alleges she suffered when she was denied a replacement 

branch. Defendants answer this claim by asserting that they, particularly FirstMerit, had a 

legitimate, nondiscriminatory reason for reassigning the Bay/Shattuck branch from Cisneros to 

Emily Rush. But that argument is irrelevant under the McDonnell Douglas burden-shifting 

framework, based on the way in which Cisneros has used that incident in her FMLA claim. 

Under the framework, “[o]nce the prima facie case is made, a defendant may offer any 

legitimate, non-discriminatory reason for the employment action, which the plaintiff may rebut 

by evidence of pretext.” Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996). Here, the decision not 

to give Cisneros an additional branch is not the relevant adverse employment action. Her 

termination is. The decision not to assign Cisneros a replacement branch is simply potential 

proof that her FMLA leave was causally related to her termination. It is not itself an adverse 

employment action. Thus, any evidence that it was motivated by nondiscriminatory reasons is 

irrelevant. 

IV. 

A. 

 Having proven her prima facie case, the burden shifts to Defendants “to offer evidence of 

a legitimate, nondiscriminatory reason for [the] adverse action” taken against Cisneros. Philbrick 

v. Holder, 583 F. App’x 478, 482 (6th Cir. 2014). 

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 Defendants proffer as a legitimate business reason for Cisneros’s termination that she 

refused to sign and comply with performance improvement plans proposed by both Defendants. 

Because she refused to sign LPL’s performance improvement plan her trading license was 

terminated. Because Cisneros’s trading license was terminated, she was no longer qualified to be 

a financial advisor and FirstMerit terminated her employment. 

 This argument has some legitimacy. Cisneros was aware that if she did not sign the 

performance improvement plan with LPL, she would lose her license. She also knew that she 

needed her license to practice as financial advisor with FirstMerit. 

B. 

 When a Defendant proffers a legitimate nondiscriminatory reason for an adverse 

employment action, “the burden shifts back to the plaintiff to identify evidence from which a 

reasonable jury could find that the stated reason is a pretext for discrimination.” Philbrick, 583 F. 

App’x at 482. “A plaintiff may show pretext by demonstrating: ‘(1) that the proffered reasons 

had no basis in fact, (2) that the proffered reasons did not actually motivate [the adverse 

employment action], or (3) that they were insufficient to motivate [the adverse employment 

action].’” Davis v. Cintas Corp., 717 F.3d 476, 491 (6th Cir. 2013) (quoting Hedrick v. Western 

Reserve Care Sys., 355 F.3d 444, 460 (6th Cir. 2004)) (emendation in original). A plaintiff does 

not need to “‘introduce additional, independent evidence of discrimination’ to survive summary 

judgment.” Id. at 492 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 149, 

(2000)). 

 Cisneros argues that, viewed in a broader context, her failure to sign the performance 

improvement plans were insufficient to warrant her discipline and termination. She was 

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presented with a performance improvement plan on May 9, 2014 as a result of customer 

complaints about the suitability of her sales. 

 According to Cisneros, however, in the lead-up to that meeting, there were attempts made 

to bring her performance into line that were not followed through on by FirstMerit management. 

One attempt occurred during a March 25, 2013 meeting with FirstMerit management. 

Specifically, FirstMerit management informed her that it would no longer be evaluating her 

product mix by excluding her largest client. Cisneros’s largest client purchased exclusively 

annuities and accounted for a significant portion of her sales. Prior to this March 2013 meeting, 

FirstMerit evaluated the suitability of Cisneros’s product mix without considering the outsize 

effect of her largest customer. 

 Additionally, following this meeting, Cisneros and one of her supervisors, Mark 

Kaeckmeister, scheduled meetings to work on the suitability of Cisneros’s product mix and the 

products she presented to customers. According to Cisneros, Mr. Kaeckmeister “set up 

appointments for [them] to meet, and he did not show up for those meetings.” Cisneros Dep. 112. 

 A reasonable jury could conclude that the change in the manner that Cisneros’s sales 

balance was evaluated, and the lack of an effort by Mr. Kaeckmeister to constructively meet with 

Cisneros is evidence that Defendants’ justification for their adverse actions was pretextual. That 

is, a reasonable jury could conclude that if FirstMerit properly performed its coaching function 

following the March 25, 2013 meeting, Cisneros would not have found herself in a position to be 

presented with a more elaborate and consequential performance improvement plan in May of 

2014. Thus, the actions of FirstMerit leading to her termination could demonstrate that FirstMerit 

was not motivated by Cisneros’s improper sales and inappropriate product mix because it did not 

take the remedial steps it had laid out over one year earlier. 

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C. 

LPL offers its own explanation for why the termination of Cisneros’s license was 

motivated by legitimate business reasons. But, since LPL and FirstMerit are joint employers, the 

secondary employer (LPL) shares the liability of the primary employer (FirstMerit). Thus, any 

attempts by LPL at evading liability by casting its actions as separate and distinct from the 

actions of FirstMerit are unavailing. Although a jury may conclude that LPL and FirstMerit are 

not joint employers, a reasonable juror could conclude that they are. Thus, for summary 

judgment standards, the two are tied for purposes of determining liability. 

IV. 

 Accordingly, it is ORDERED that Plaintiff Cristie Cisneros’s motion for 

reconsideration, ECF No. 44, is GRANTED. 

It is further ORDERED that the Judgment of February 8, 2016, ECF No. 39, is 

VACATED. 

 It is further ORDERED that the Opinion and Order of February 8, 2016, ECF No. 38 is 

AMENDED in accordance with this opinion. 

 It is further ORDERED that Defendants FirstMerit Corporation and LPL Financial, 

LLC’s motions for summary judgment, ECF Nos. 28 & 29, are DENIED. 

Dated: April 26, 2016 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

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 April 26, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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