* The Honorable Louis F. Oberdorfer, United States District Court for the District of Columbia, sitting by designation. NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0075n.06 Filed: January 31, 2005 No. 03-5599 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CAROL McDANIEL , Plaintiff-Appellant,

v. TRANSCENDER, LLC, and ANEEL PANDEY, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION

BEFORE: KEITH and CLAY, Circuit Judg es; OBERDORFER, District Judge * DAMON J. KEITH, Circuit Judge . Plaintiff-Appellant Carol McDaniel (“McDaniel”) appeals the district court’s grant of a summary judgment in favor of Defendants-Appellees Transcender, LLC (“Transcender”), and Aneel Pandey (“Pandey”) in this employment discrimination action. McDaniel alleges claims of retaliatory discharge under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215, and of age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 626(b). McDaniel also challenges the district court’s refusal to grant her a default judgment or to im pose sanctions upon Transcender and Pandey for their allegedly willful spoliation of relevant evidence. For the reasons set forth below, we reverse the district court’s grant of summary judgment with respect to McDaniel’s FLSA and ADEA claims, and affirm the decision of the district court on the spoliation of evidence claim.No. 03-5599 McDaniel v. Transcender Page 2 I. BACKGROUND Founded by Pandey in September 1992, Transcender develops and sells computer software. In 1994, Pandey hired John Rose (“Rose”) to serve as Transcender’s President. After recruiting Rose, Pandey focused on developing software and managing employees in the development department, while Rose concentrated on supervising employees in the marketing, sales, fulfillment, and administration departments. Two years afte r Rose joined the company, Transcender hired Ed Acerno (“Acerno”) and Richard Zhu (“Zhu”) as Ch ief Technical Officer and Chief Information Officer, respectively. In 1998, Transcender hired a human resources manager. Only one year after joining the company, the human resources manager, who had beenhired at the age of sixty-eight, notified the company, to its surprise, of his intent to retire. In the fall of 1999, as Transcender began conduc ting interviews for a new human resources manager, Rose recommended that the company hireMcDaniel to fill that position. At the time of her interview, McDaniel was fifty years of age and did not have experience in the computer or software development business. Despite Rose’s recommendation to hire McDaniel, Pandey voiced concerns about her being hired. Specifically, Pandey asked Rose how l ong he thought she would stay with the company, given the f acts that (1) this potential new hire was “later in her career,” and (2) the previous human resources manager, whom Transcender also hired later in his career, retired from the company shortly after he was hired. Notwithstanding these concerns, Pandey agreed to hire McDaniel, who commenced her work at the company on December 27, 1999.No. 03-5599 McDaniel v. Transcender Page 3 At the time of McDaniel’s hire, Transce nder was experiencing difficulty finding enough qualified employees to meet its customers’ demands and its growing business needs. McDaniel concedes that “[i]t was made very clear” to her that recruiting new employees for software development was Pandey’s chief concern and was to be her “number one priority.” Transcender, however, did not provide McDaniel with any speci fic recruitment guidelines nor with a numerical goal for recruiting new employees. Rather, Pandey to ld her, “[w]e need to hire a lot of good people, and I’ll let you know when to stop.” Pandey, Acerno, and Zhu made the final hiring decisions for the software development department. After McDaniel screened applicants for positions in that department, she would forward those executives the resumes of applicants who she thought were qualified. In turn, they would interview and hire applicants from that pool. Du ring the first month of her employment, Acerno and Zhu took McDaniel to lunch to explain the qualif ications that they were seeking in software developers. Pandey, Acerno, and Z hu also discussed recruiting matters continually with McDaniel in “an ongoing dialogue” about Tran scender’s “recruiting needs,” during which they made “attempts to be more specific on what experience [applican ts] needed to have and that sort of thing.” According to McDaniel, she and Pandey had “a lot of discussions about recruiting” software developers. In early June 2000, McDaniel completed an empl oyee self-appraisal. In it, she stated that her “recruiting efforts have been viewed by some as inadequate.” In particular, McDaniel believed that Pandey held that view because he wanted de velopment positions to be filled more quickly. InNo. 03-5599 McDaniel v. Transcender Page 4 addition, McDaniel gleaned that Pandey, Acerno, and Zhu may have been “unhappy with the candidates [she sent them] because they would not even interview them” in many cases. As her immediate supervisor, Rose conducted McDaniel’s work evaluations throughout her employment at Transcender. In an employee appraisal on July 6, 2000, Rose rated McDaniel as exceptional. He further indicated that McDaniel needed to “[r]aise standards in recruiting - we’re looking for best & brightest - people like you.” At the time of her evaluation, McDaniel received an increase is her salary, which was approved by Pandey. Despite these positive performance indicators, in the late summer or early fall of 2000, Pandey informed McDaniel that he had decided to absolve her of her development recruiting duties. To this end, the company hired Nancy McCarthy (“McCarthy”) in December 2000. In addition to recruiting employees, McDaniel’s other human resources responsibilities included ensuring that the company complied with all employment laws. In early January 2000, shortly after her start date, McDaniel discovered th at all of Transcender’s employees were classified as exempt under the FLSA overtime provisions. McDaniel explained the FLSA requirements to Rose and advised him that Transcender needed to re-examine its overtime compensation practices. McDaniel later advised Pandey that the potential penalties for a violation of the FLSA included a civil action for damages by employees to recover unpaid overtime wages, attorneys’ fees and court costs, criminal and civil penalties, and possibly individual liability by owners of the company. Rose directed McDaniel to conduct an investigation and re-classify employees where appropriate. He also instructed her to discuss th e project with Jamie Heartfield (“Heartfield”), who served as outside legal counsel for Transcender. On the basis of written employee job descriptions,No. 03-5599 McDaniel v. Transcender Page 5 McDaniel classified Transcender’s employees as either exempt or non-exempt under the FLSA overtime provisions. After completing the project, McDaniel then transmitted her proposed classifications and a draft memorandum to Heartfield, who edited the memorandum but expressed no legal opinion on the classifications. In October 2000, Rose informed McDaniel th at the company wanted to implement her proposed classifications by November 1, 2000. On N ovember 1, McDaniel held a meeting with all of the company’s managers to explain the proposedclassifications. Acerno complained about the re-classification of most of his software develope rs, insisting that most of the employees labeled “technical editors,” whom McDaniel proposed to classify as non-exempt, should have been classified as exempt because they were actually performing the duties of software content developers. In light of those concerns, Acerno a nd Zhu changed the job titles of all but one of the technical editors to content developer. McDaniel also distributed a memorandum to all employees that specified whether their various positions were exempt or non-exempt. S oon thereafter, she received several complaints from employees who were previously classified as exempt but who now were classified as nonexempt. These employees were offended by their perception that Transcender viewed their work as less important than work done by exempt empl oyees. McDaniel later summarized the meeting as hostile and complained to Rose. Given the differences of opinion that resu lted from the reclassifications announced on November 1, 2000, Charles Arnold (“Arnold”), a technical editor and content developer for Transcender who also possesses a law license, interviewed certain employees and submitted aNo. 03-5599 McDaniel v. Transcender Page 6

1 During the same period, Pandey sold Trans cender to Information Holdings. Pandey remained CEO and President. At Information Holding’s insistence, however, Rose left the company. Thus Pandey became McDaniel’s immediate supervisor. Besides Rose, Information Holding retained all of Transcender’s employees. memorandum to Pandey concerning the classification of those employees. Arnold’s memorandum suggested that McDaniel’s classifications were erroneous. Pandey provided McDaniel with a copy of Arnold’s memorandum on November 15, 2000, and asked her to respond to the proposed revisions of her classifications. McDaniel, in turn, forwarded th e memorandum to Heartfield for a legal opinion about the accuracy of the proposed revisions. Heartfield opined that the employees should be classified as exempt if Arnold’s descri ption of their duties was correct, but he refused to render a legal opinion without fi rst conducting his own investiga tion of the employees’s duties. Following additional discussions with McDaniel and Heartfield, Pandey concluded that Arnold’s suggested revisions were correct. 1 Transcender asserts that Pandey and Acerno discussed employee complaints about McDaniel in relation to the FLSA classifications on seve ral occasions in November and December 2000. By the end of December, Pandey consider firing McDaniel and asked Acerno to summarize any concerns about McDaniel’s work or demeanor . In response, on January 2, 2001, Acerno submitted a memorandum, which included copies of written complaints from software development employees. In the memorandum, Acerno stated his belief that McDaniel (1) had embarrassed those employees by reclassifying them, (2) was defensive and condescending when confronted with complaints by them, and (3) had done “irrevocable damage” to her relationship with them. Acerno concluded the memorandum by stating, “I do not think she is a good fit to lead and cultivateNo. 03-5599 McDaniel v. Transcender Page 7 Transcender’s HR department for the future.” Mc Daniel contests the veracity of this memorandum because Acerno has admitted that he does not recall preparing or submitting this document. On January 5, 2001, Pandey and Zhu met with McDaniel. At that meeting, Pandey told McDaniel that she was being terminated as a result of her inefficiency in recruiting, mistakes in the FLSA employee classifications, and problems with software development employees. McDaniel filed this action on May 25, 2001, alleging retaliatory discharge under § 215 of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Transcender moved for summary judgment on the FLSA claim on the basis that McDa niel did not engage in activity protected under § 215(a)(3) of the Act. In response, McDaniel asserted that she engaged in protected activity when she opposed Transcender’s assertion that the five employees in the development department were exempt from overtime under the FLSA. McDaniel moved to amend her complaint to add (1) other defendants, (2) a sex discrimination claim under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000 et seq. , and (3) an age discrimination claim under the ADEA, 29 U.S.C. § 626(b). On March 21, 2002, the district court denied Transcender’s motion for summary judgment and granted McDaniel’s motion to amend the comp laint. Following discovery, Transcender filed a motion for summary judgment on the Title VII and ADEA claims and a renewed motion on the FLSA claims. The district c ourt granted Transcender’s motion for summary judgment on all three claims. McDaniel timely appealed the district court’s grant of summary judgment on the ADEA and FLSA claims.
II. ANALYSIS A. Standard of ReviewNo. 03-5599 McDaniel v. Transcender Page 8 This court conducts a de novo review of a district court’s grant of summary judgment. Holloway v. Brush , 220 F.3d 767, 772 (6th Cir. 2000). Summary judgment is proper only where no genuine issue of material fact exists and the m oving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In consid ering such a motion, the court view s the evidence in the light most favorable to the non-moving party and draws all r easonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). To defeat a properly supported motion for summary judgment, anadverse party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). B. FLSA Claim McDaniel alleged in her complaint that she was fired in retaliation for her efforts to have certain software development employees classified as non-exempt. The FLSA makes it unlawful for an employer to fire an employee who, among other things, engages in any of the following protected acts: (1) filing a complaint against employer; (2) instituting a procedure against an employer under the FLSA; and (3) testifying in any proceeding brought under the FLSA. 29 U.S.C. § 215(a)(3). This court has previously held that to satisfy the “complaint” requirement, the plaintiff need not file a formal complaint with the Equal Employment Opportunity Commission; the lodging of a complaint with the employer is sufficient. EEOC v. Romeo Community Schools , 976 F.2d 985, 989 (6th Cir. 1992). The district court found that by undertaking to classify Transcender’s employees under the FLSA and then disputing the classifications determined by Arnold and Pandey, McDaniel had engaged in protected activity under the FLSA.No. 03-5599 McDaniel v. Transcender Page 9 In the absence of direct evidence that Tr anscender retaliated against McDaniel, the appropriate framework for analyzing McDaniel’s claim of unlawful reta liation under the FLSA is the familiar burden-shifting framework articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Conner v. Schnuck Markets, Inc. , 121 F.3d 1390, 1394 (10th Cir. 1997) (applying the burden-shifting test to a FLSA retaliation claim) . Thus, McDaniel must first make out a prima facie case of retaliatory discharge by Transcender. Then, if Transcender advances legitimate reasons for firing her, McDaniel must show that the company’s proffered reasons are pretextual. To establish a prima facie case of reprisal in violation of the FLSA, McDaniel must show not only that she engaged in protected activity and that Transcender subsequently engaged in an adverse action, which she has done, but also a causal conn ection between her action and the firing. See Williams v. General Motors Corp. , 187 F.3d 553, 568 (6th Cir. 1999) (analyzing retaliation claim under Title VII). Where a plaintiff makes that showing and the employer then proffers a legitimate reason for firing her, the plaintiff then must “show that, but for the defendants’ animus toward [her],” the firing would not have occurred. Kearnery v. Town of Wareham , 316 F.3d 18, 23 (1st Cir. 2002). McDaniel argues that the district court erred when it ruled that she had failed to produce evidence that she was terminated in violation of the FLSA. The district court ruled that McDaniel had not established a causal connection between her FLSA activity and her firing, and that Transcender had presented legitimate business reasons to support its decision to discharge her. McDaniel’s argument is based on the temporal proximity between her protected activity and her firing. Transcender’s firing of McDaniel closel y followed her FLSA activity, giving the impression of retaliation. See Moon v. Transp. Drivers, Inc. , 836 F.2d 226, 230 (6th Cir .1987) (finding that theNo. 03-5599 McDaniel v. Transcender Page 10 fact that the adverse action was taken shortly afte r the plaintiff’s exercise of protected rights is relevant to causation). While temporal proximity alone is insufficient to show retaliation, see Nguyen v. City of Cleveland , 229 F.3d 559, 566 (6th Cir. 2000) (explaining th at temporal proximity alone generally will not support an inference of discrimination if there is no other compelling evidence), McDaniel has adduced other evidence in support of her clai m of retaliation. Pandey obtained the approved job descriptions from McDaniel on November 13, 2000. Two days later, Pandey received conflicting information from Arnold. Pandey then transmitted Arnold’s memorandum to McDaniel, seeking a response from her. Shortly thereafter, McDaniel advised Pandey that she disagreed with Arnold’s representations in part because they were based upon modified job descriptions that she considered to be exaggerated. On November 28, 2000, Pande y sided with Arnold’s suggested revisions. Twenty-two days later, on the morning of January 5, 2001, Pandey terminated McDaniel. Pandey then instructed McCarthy, McDaniel’s eventu al replacement, to take steps to change five employees’ statuses back to exempt, which wa s completed in mid-January, within days of McDaniel’s termination. Upon the consideration of all of the above facts, a jury could reasonably infer that McDaniel’s failure to implement the change in the FLSA classifications was the reason for her termination. Thus, the district court erred in finding the absence of a genuine issue of material fact. McDaniel also argues that the district court e rred when it ruled that she failed to show that Transcender’s articulated nondiscriminatory reas on for firing her was pretext for retaliation. In opposition to McDaniel’s FLSA claim, Transcende r contended that she was terminated primarilyNo. 03-5599 McDaniel v. Transcender Page 11 as a result of her erroneous classification of employ ees. It is undisputed that McDaniel believed that her FLSA classifications were correct. McDaniel presented evidence that she based her decision to classify the five employees as non-exempt on the employee job descriptions that had been approved by their supervisors and interviews conducted by her assistant. Thereafter, Arnold modified the job descriptions to justify the positi ons as exempt. Viewing this evidence in the light most favorable to McDaniel, a reasonable jury could conclude that Transcender’s purported justification for firing McDaniel was mere pret ext because the company modified employee job descriptions in an apparent effort to change those employees FLSA statuses from non-exempt to exempt. Inasmuch as a genuine issue of material fact remains as to whether Transcender’s reason for firing McDaniel was mere pretext, the distri ct court erred in granting summary judgment for Transcender. C. ADEA Claim In her complaint, McDaniel also alleges that Transcender fired her because of her age, in violation of the ADEA. The ADEA makes it unlaw ful for an employer to fire or otherwise discriminate against a worker with respect to compensation or conditions of employment on the basis of age. 29 U.S.C. § 623(a)(1). The analy tical framework used in Title VII cases applies to claims of age discrimination under the ADEA. Mitchell v. Toledo Hospital , 964 F.2d 577, 582 (6th Cir. 1992). To make out a prima facie case of di scriminatory discharge in the absence of direct evidence of discriminatory intent based on age, McDaniel must prove that: (1) she was a member of the protected class; (2) she was discharged; (3 ) she was qualified for the position; and (4) she was replaced by a person outside the protected class. Mitchell , 964 F.2d at 582 (citing McDonnellNo. 03-5599 McDaniel v. Transcender Page 12 Douglas Corp. v. Green , 411 U.S. 792, 802 (1973); Texas Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 256 (1981)). If McDaniel satisfies th e prima facie burden, the burden of production then shifts to Transcender, who must articulate a legitimate, nondiscriminatory reason for her termination. Mitchell , 964 F.2d at 584, n. 6. If Transcender meets that burden, then the burden shifts back to McDaniel, who must show that the nondiscriminato ry rationale proffered by Transcender is a mere pretext for intentional discrimination based on age. Id. McDaniel must prove “that the asserted reasons have no basis in fact, that the reasons did notmotivate the discharge, or, if they were factors in the decision, that they were jointly insufficient to motivate the discharge.” Burns v. City of Columbus , 91 F.3d 836, 844 (6th Cir. 1996). The district court assumed that McDaniel me t the prima facie case and went on to consider Transcender’s reasons for firing McDaniel. Trans cender contended that it fired McDaniel for her failure to recruit an adequate number of new software developers and her handling of the FLSA employee classifications. While these proffered r easons do have some basis in fact, other evidence exists to establish that the proffered reasons were not the motivation for McDaniel’s discharge. One of the reasons that Transcender provides for McDani el’s termination is that she failed to recruit an “adequate number of software developers.” Transcender, however, never provided a definitive number of employees for McDaniel to recruit. Pandey only informed her that Transcender needed to hire “a lot” of people. To support her assertion that this was not a reason that motivated her discharge, McDaniel says that she was never provi ded with performance sta ndards, but rather the recruiting methods that she used, which included screening resumés, were consistent with what Pandey specifically requested. Moreover, McDani el received a high rating of “exceptional” fromNo. 03-5599 McDaniel v. Transcender Page 13 her immediate supervisor during her employment evaluation, and Pandey even authorized her pay increase. In further support of McDaniel’s ADEA claim, the record indicates that Pandey expressed reservations about hiring McDaniel because of he r age. The record suggests that Pandey was upset about the short tenure and early departure of McDaniel’s predecessor, who had joined Transcender at the age of sixty-eight. Thus, at the time of McDaniel’s hire, Pandey sp ecifically inquired of Rose as to how long he thought she would stay with th e company, given the fact that, like her predecessor, McDaniel was also “later in her career.” A jury could infer that recru itment was not a priority at the time that McDaniel was fired. Thus, a question of fact exist concerning whether McDaniel actually fulfilled her recruitment responsibilities. A jury could reasonably conclude that Pandey held reservations about McDaniel throughout her term of employment with the compa ny on the basis of her age. Inasmuch as her failure to recruit was given as a legitimate, nondi scriminatory reason for her firing, and a question of fact exists on that issue, the district c ourt erred in granting summary judgment on McDaniel’s ADEA claim. D. Destruction of Evidence We review the district court’s decision to exclude evidence of spoliation for abuse of discretion. United States v. Copeland , 321 F.3d 582, 597 (6th Cir. 2003). Spoliation is the intentional destruction of evidence that is presumedto be unfavorable to the party responsible for the destruction. Id. The rules that apply to the spoiling of evidence and the range of appropriate sanctions are defined by state law; in this case, the law of Tennessee. Nationwide Mut. Fire Ins. Co.No. 03-5599 McDaniel v. Transcender Page 14 v. Ford Motor Co. , 174 F.3d 801, 804 (6th Cir. 1999). Under Tennessee law, “it is a general rule that the intentional spoliation or destruction of evid ence relevant to a case raises . . . an inference, that the evidence would have been unfavor able to the cause of the spoliator.” Thurman-Bryant Elec. Supply Co., Inc. et al. v. Unisys Corp., Inc. et al. , No. 03A01-CV00152, 1991 WL 222256 (Tenn. Ct. App. March 16, 1992) (citation omitted). This infe rence arises “only where the spoliation . . . was intentional, and indicates fraud and a desireto suppress the truth. . . . Furthermore, any presumption that may arise from the spoliation . . . is not conclusive, but rather is rebuttable.” Id. In this case, McDaniel sought a default judgmen t, or, in the alternative, sanctions, against Transcender for willfully destroying relevant evidence. McDaniel served Transcender with a request for inspection and copying of its computers pursuant to Federal Rule of Civil Procedure 34. McDaniel alleges that Transcender destroyed the external creation date of a memorandum, which the company asserts was prepared by Acerno on January 2, 2001. This document outlined many of the reasons for the company’s dissatisfaction with McDaniel’s work. In her appeal, McDaniel argues that Acerno has testified, among other things, that he (1) did not believe she should have been terminated, (2) never recommended her termination, and (3) did not recall preparing the memorandum, which ostensibly supported her termination. Upon our review of the record inthis case, we conclude that the district court did not abuse its discretion in denying McDaniel a default judgm ent and sanctions. Assuming that the allegedly spoiled evidence would have shown, as McDaniel claims, that Acerno did not write the contested memorandum, that information would not have esta blished a sufficient evidentiary basis upon whichNo. 03-5599 McDaniel v. Transcender Page 15 we could determine that the district court’s deni al of a default judgment or sanctions constituted an abuse of its discretion. III. CONCLUSION For the foregoing reasons, the court REVERSES the district court’s grant of summary judgment in favor of Transcender on McDaniel ’s ADEA and FLSA claims and REMANDS the case to the district court for proceedings consistent with this opinion. The court AFFIRMS the district court’s denial of default judgment or sanctions against Transcender.