NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0339n.06

No. 10-2223

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GARRY SEGEL,

Plaintiff-Appellant,

v.

KIMBERLY-CLARK CORPORATION, a

Delaware Corporation; KIMBERLY-CLARK

GLOBAL SALES, LLC, a Delaware Limited

Liability Company, jointly and severally,

Defendants-Appellees.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

O P I N I O N

BEFORE: COOK, McKEAGUE and ROTH, Circuit Judges.*

McKeague,Circuit Judge. GarrySegel sued Kimberly-Clark, his former employer, alleging

violations of the Age Discrimination in Employment Act and Michigan’s Elliot-Larsen Civil Rights

Act. The district court granted summary judgement in favor of Kimberly-Clark. On appeal, Segel

contends that the district court misconstrued the facts and improperly applied the law. For the

reasons that follow, we AFFIRM the district court.

I. BACKGROUND

Appellant Garry Segel began working for Kimberly-Clark in 1985 as a sales representative. 

Appellant Br. at 6. Segel’s sales record was outstanding, and his annual performance reviews

The Honorable Jane R. Roth, United States Circuit Judge for the United States Court of *

Appeals for the Third Circuit, sitting by designation.
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Segel v. Kimberly-Clark Corp.

consistently indicated that he “meets performance expectations” or “exceeds performance

expectations” for his position. See, e.g., R.76-4, Excerpts from the Personnel File of Garry Segel. 

As early as 2000, however—a year where Segel’s overall performance rating “exceed[ed]

expectations”—Segel was encouraged to work on being more flexible. Id. at 223 (noting that Segel

should “continue to work on his flexibility with regards to changes which occur []at KimberlyClark”). As an example of “observed behavior” relating to this job skill, Segel’s reviewer noted:

“Very flexible in adapting to changes implemented by [customers]; [a]t times, less

flexible/understanding of changes occurring in Kimberly-Clark.” Id. at 222. Segel’s 2002

evaluation again counseled him to be more flexible. Id. at 205. Segel’s 2002 performance reviewer

explained that Segel was “[a] little negative with [Kimberly-Clark] changes, but always effectively

moves forward and accomplishes what needs to be done.” Id. at 204. 

Segel was promoted to Customer Business Manager III (“CBM III”) in 2004. Id. 328.

Segel’s 2004 reviewer gave him an overall rating of “meets expectations” for his new position, but

flexibility and interpersonal skills were rated as “does not meet” expectations. R. 74-6 at 3. The

2004 reviewer described “adaptability/flexibility” as Segel’s “biggest skill opportunity.” Id. The

reviewer continued: “He becomes so focused on his objectives [that he] does not always address the

other person[’]s needs. His style needs to change when he receives push back.” Id.

In 2005, Kimberly-Clark initiated a new performance appraisal system in which employees

received feedback on their “Results” and their “Leadership Qualities.” Appellant Br. at 5. Although

Segel’s overall performance rating for his “Leadership Qualities” was “Effective,” many of the

reviewer’s comments suggested that Segel’s interpersonal skills were lacking. R. 76-7, Segel 2005

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Segel v. Kimberly-Clark Corp.

Review. For example, the reviewer praised Segel as “one of the best CBM’s I work with,” but also

cautioned that “[Segel] needs to keep an eye on his reactions during disagreements or conflict and

try not to let others get under his skin. During customer presentations [Segel] has gotten

confrontational with the customer.” Id. Additionally, the reviewer noted that Segel “tends to

become involved in too many disagreements where he has little to gain. If [Segel] were more

selective in choosing his battles he would have more success . . . . In the future he needs to focus

more on compromise and creating mutually beneficial agreements.” Id.

In 2006, Segel’s “Leadership Qualities” were rated as “improvement required.” R. 76-9,

Segel’s 2006 Review, 141. Among other criticisms, the reviewer noted that Segel “can be inflexible

when presented with new ideas and suggestions. He needs to listen to others, be more objective in

sizing up situations, and be ready to adjust his approach when better ways of doing things come up.” 

Id. Additionally, the reviewer noted that Segel’s “inability to find positions that benefit both [the

customer] and Kimberly Clark has hurt his relationship with [a] key customer.” Segel was again

urged “to become less confrontational with the customer.” Id.

The “key customer” referenced in Segel’s personnel review was Meijer. As of November

2006, Segel’s contact at Meijer was Fiona Hein, a Senior Buyer in the baby department at Meijer. 

Meijer was Segel’s primary customer. Additionally, because Hein was the buyer for millions of

dollars of products, R. 89 at 109, keeping Hein happy was of significant importance to KimberlyClark. 

By Segel’s own account, he did not enjoy a good relationship with Hein. For her part, Hein

complained to Kimberly-Clark about Segel on multiple occasions. Hein found Segel “difficult to

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Segel v. Kimberly-Clark Corp.

work with” in a variety of contexts, and she registered her concerns with multiple layers of

management at Kimberly-Clark. Ultimately, Hein informed Kimberly-Clark management that she

would prefer to work with someone other than Segel.

On April 10, 2007, Kimberly-Clark placed Segel on a 90-day “Performance Improvement

Plan” (“PIP”) to improve his leadership skills. The PIP cited a decline in Segel’s leadership skills

and a “negative and confrontational style which has an adverse effect on the [Kimberly-Clark]

Team.” R. 76-10, Performance Improvement Plan for Segel. The PIP also referenced comments

from Segel’s customers “who have expressed an unwillingness to have [Segel] contact them”

because “he is hard to work with.” Id. Notably, the PIP referenced Segel’s problematic relationship

with Hein, and attributed the following comments to her: “[Segel] doesn’t get it, I can’t work with

him, He can’t figure it out, your competition figures it out, he asks too many questions and delays.” 

Id.

The PIP identified eight areas for Segel to improve, including the need for Segel “to become

more flexible in his dealings with the Customer and his Team.” Id. Finally, the PIP warned that

“[f]ailure to complete this Plan successfully and maintain acceptable performance may result in

employment action up to and including termination of employment.” Id.

Segel did not successfully complete his PIP because he continued to demonstrate

inflexibility. R. 76, Ex. 16, Segel’s Last Chance Agreement. Instead of being terminated, however,

Kimberly-Clark and Segel agreed to a 30-day Last Chance Agreement (“Agreement”) on July 10,

2007. Id. The Agreement allowed Segel 30 days to “become more flexible in his dealings with the

Customer and his Team.” Id. The Agreement concluded:

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Segel v. Kimberly-Clark Corp.

[Segel] is fully aware and agrees that continuation of employment is dependent upon

successful completion of the above described plan and his continuing to sustain

improvement if this plan is completed. [Segel] understands that if he does not meet

this Action Item or later fails to sustain his performance, he will be terminated from

employment with the Company. This Agreement does not alter the otherwise at-will

relationship between . . . Segel and Kimberly-Clark.

Id. Segel failed to satisfactorily complete the Agreement, and on or about August 13, 2007, Segel

was terminated. R. 15, Defendant’s Answer, at 7. 

Segel filed a timelycharge with the Equal Employment OpportunityCommission (“EEOC”). 

R. 111 at 2. Segel also sued Kimberly-Clark for violating the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 623(a)(1) (2006), and Michigan’s Elliot-Larsen Civil Rights Act, Mich.

Comp. Laws § 37.2202 (LexisNexis 2011). R. 11, Am. Compl. Segel alleged that, because he was

53 years old, Kimberly-Clark (i) unfairly evaluated his performance, (ii) placed him on a PIP, and

(iii) terminated his employment. Id. In support of his claim, Segel argued that the existence of other

age discrimination cases pending against Kimberly-Clark constituted relevant pattern-or-practice

evidence. Id. 

At the close of discovery, Kimberly-Clark moved for summary judgment. The district court

heard oral argument and requested supplemental briefs regardingSegel’s argument that the existence

of several other age discrimination cases pending against Kimberly-Clark was relevant pattern-orpractice evidence. The district court granted Kimberly-Clark’s motion for summary judgment on

August 31, 2010. This timely appeal followed.

On appeal, Segel contends: (1) the district court erred in finding the only facts establishing

Segel’s age discrimination claim were those surrounding his replacement; (2) the district court erred

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Segel v. Kimberly-Clark Corp.

in finding Segel’s rebuttal of Kimberly-Clark’s legitimate business reasons for his treatment and

termination insufficient to establish pretext; (3) the district court erred in determining Segel failed

to show circumstances tending to prove age discrimination was more likely than not the reason for

his treatment and termination; and (4) the district court misconstrued Sixth Circuit law by holding

Segel to an improperly high proof requirement. 

II. ANALYSIS

Standard of Review

This Court reviews de novo a district court’s grant of summary judgment. Geiger v. Tower

Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is proper when the moving party

shows “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 court must view the facts and construe inferences in the

light most favorable to the nonmoving party. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 811

(6th Cir. 2011).

Relevant Law

The Age Discrimination in Employment Act of 1967 (the “ADEA”) makes it “unlawful for

an employer . . . to discharge any individual . . . because of such individual’s age.” 29 U.S.C. §

623(a)(1). Subject to exceptions not applicable here, ADEA protection applies to “individuals at

least 40 years of age.” Id. at § 631(a). “An employee may establish a claim under the ADEA by

offering either direct or circumstantial evidence of age discrimination.” Wexler v. White’s Fine

Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (citing Kline v. Tenn. Valley Auth., 128 F.3d 337,

348 (6th Cir. 1997). 

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Segel v. Kimberly-Clark Corp.

“McDonnell Douglas and subsequent decisions have ‘established an allocation of the burden

of production and an order for the presentation of proof in . . . discriminatory-treatment cases.’”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)(omission in original)(quoting

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). The McDonnell Douglas framework

proceeds in three stages: First, the plaintiff must establish a prima facie case of discrimination. 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the plaintiff succeeds in

establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate

nondiscriminatory reason for the challenged action. Id. Third, if the defendant satisfies its burden,

the plaintiff is then “afforded a fair opportunity to show that [defendant’s] stated reason . . . was in

fact pretext.” Id. at 804.

The parties agree for the purposes of this appeal that Segel established a prima facie case of

age discrimination. Plaintiff-Appellant Br. at 29; Defendant-AppelleeBr. at 25 n.9. Kimberly-Clark

addressed the second McDonnell Douglas prong by explaining that it terminated Segel because “an

important part of his position as a CBM was to develop and maintain strong relationships with

Kimberly-Clark’s customers,” and Segel’s “confrontational style adverselyimpacted his relationship

with his customer.” Defendant-AppelleeBr. at 26. In response, Segel argues that Kimberly-Clark’s

stated reasons for his termination are pretext for age discrimination. Plaintiff-Appellant Br. at 31.

Segel has not alleged any direct evidence of age discrimination. Accordingly, Segel must

establish pretext through circumstantial evidence. Geiger, 579 F.3d at 620. Circumstantial evidence

“is proof that does not on its face establish discriminatory animus, but does allow a factfinder to

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Segel v. Kimberly-Clark Corp.

draw a reasonable inference that discrimination occurred.” Id. Segel has the burden of

demonstrating that age was the “but-for” cause of Kimberly-Clark’s adverse action. Id.

To establish pretext, Segel must prove that: (1) Kimberly-Clark’s reasons for his termination

had no basis in fact; (2) Kimberly-Clark’s proffered reasons did not actually motivate Segel’s

discharge; or (3) Kimberly-Clark’s reasons were insufficient to motivate Segel’s discharge. Manzer

v. Diamond Shamrock, 29 F.3d 1078, 1084 (6th Cir. 1994). 

Segel’s brief addresses the Manzer factors by arguing that “[t]here is a plethora of evidence

which indicates that the proffered basis for Segel’s termination is not based in fact, is not worthy of

credence or was insufficient to justify termination.” Plaintiff-Appellant Br. at 33. Rather than

analyze each factor in turn, Segel offers a five-page long list of allegations and leaves it to this Court

to sift through his laundry list and ascertain which fact is meant to apply to each factor. See id. at

33-38. Below, we identify the most salient points from both Segel’s brief and the record that best

support Segel’s ADEA action. 

Factor One

First, Kimberly-Clark’s reasons for Segel’s termination are richly supported by the record. 

Segel’s annual performance reviews persistently expressed concern regarding Segel’s inflexibility

toward his colleagues and his clients as early as 2000. When Segel’s 2006 performance review

indicated a heightened level of dissatisfaction with Segel’s inflexibility, Kimberly-Clark provided

Segel with both a 90-day PIP and a 30-day Last Chance Agreement to improve his behavior. Both

documents highlighted Segel’s inflexibility as the reason for Segel’s probationary status with

Kimberly-Clark and made clear that Segel’s failure to improve would result in termination.

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Segel v. Kimberly-Clark Corp.

Segel does not dispute this record. Rather, he emphasizes his track record as an exemplary

salesman. See Plaintiff-Appellant Br. at 33-38. This effort, however, does not undermine the wellsupported factual basis that Kimberly-Clark provided as a foundation for Segel’s termination. As

such, Segel’s efforts to establish the first Manzer prong are unavailing. 

Factor Two

Second, Segel argues that Kimberly-Clark’s proffered reason for termination – Segel’s

inflexibility – did not actually prompt Kimberly-Clark’s adverse employment action. In support of

this point, Segel argues that “flexibility” is an entirely subjective criterion, and that “[s]ubjective

assessments are easily susceptible to manipulation in order to mask the interviewer’s true

motivations.” Id. at 37. Segel cites two cases in support of this proposition: White v. Baxter

Healthcare Corp., 533 F.3d 381 (6th Cir. 2008), and Meacham v. Knolls Atomic Power Lab, 554

U.S. 84 (2008). Neither case is persuasive.

In White, an African-American employee appealed the district court’s grant of summary

judgment in favor of his prior employer. 533 F.3d at 384. The employee in this case had received

stellar performance reviews and was interviewed for an internal promotion; ultimately, however,

another candidate was selected for the job. Id. at 386-87. The employer explained that the other

candidate was selected because the interviewers considered the employee “extremely aggressive”

and “confrontational.” Id. at 387. This Court reversed the district court’s grant of summary

judgment, holding that:

any evaluation of [plaintiff’s] interview performance is an inherently subjective

determination, and thus easily susceptible to manipulation in order to mask the

interviewer’s true reasons for making the promotion decision. Indeed, since the very

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issue in dispute is whether the reasons given by these interviewers for their decision

should be believed, it would be highly inappropriate for us to assume . . . that their

own subjective perceptions of [plaintiff] were accurate.

Id. at 394. Accordingly, this Court found that a jury could reasonably disbelieve the employer’s

proffered explanation and that the employee’s case was entitled to go forward.

The facts in this case are distinguishable from White. The record in this case presents a

longstanding concern with Segel’s flexibility; whereas the adverse employment decision in White

occurred in a vacuum of otherwise glowing reviews, Kimberly-Clark’s decision to terminate Segel

took place after years of documented concerns regarding his flexibility. Further, the plaintiff in

White was interviewed by only four people on one occasion, whereas Segel was evaluated by a

greater number of individuals on multiple occasions over the course of many years. So, even though

a subjective term like “aggressive” was not a sufficiently clear motivating factor in White, we find

that a similarly subjective term—“inflexible”—is adequate where it was repeatedly utilized by

varying people on numerous occasions.

This case is much more similar to Chen v. Dow Chemical Company, 580 F.3d 394 (6th Cir.

2009). In Chen, the employee “struggled to fit in socially,” and “[b]oth coworkers and customers

found her combative . . . .” Id. at 397. After the employer documented these interpersonal problems

in the employee’s performance reviews, the employee was put on a PIP, and ultimately terminated. 

Id. at 398. The employee appealed the district court’s grant of summary judgment by arguing that

the employer’s reason for termination was pretextual. Id. at 401. This Court rejected the employee’s

argument: “When an employer reasonably and honestly relies on particularized facts in making an

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employment decision, it is entitled to summary judgment on pretext even if its conclusion is later

shown to be mistaken, foolish, trivial, or baseless.” Id. 

Like in Chen, Segel’s performance problems were documented in his reviews and his PIP. 

When Kimberly-Clark subsequently terminated Segel, its decision was based on documented

“particularized facts” that Segel consistently failed to be appropriately flexible with his customers

and his colleagues. 

Segel’s reliance on Meacham is also unavailing. In Meacham, an employer laid off 31

employees as a result of an involuntary reduction in force. 554 U.S. at 87. Thirty of these employees

were at least 40 years old, and twenty-eight of them alleged a disparate-impact violation of the

ADEA. Id. at 88. The employer explained that it selected employees for layoff based on their

supervisors’ evaluation of employees’ performance,flexibility, and critical skills, therebyarticulating

a “reasonable factors other than age” (“RFOA”) affirmative defense under § 623(f). Id. at 88. In

response, the employees “relied on a statistical expert’s testimony to the effect that results so skewed

according to age could rarely occur by chance; and that the scores for ‘flexibility’ and ‘criticality,’

over which managers had the most discretionary judgment had the firmest statistical ties to the

outcomes.” Id. at 88-89. A jury found in favor of the plaintiffs, but the Court of Appeals reversed,

finding that the employee had not carried the burden of persuasion with regard to the reasonableness

of the employer’s non-age factors. Ultimately, the Supreme Court vacated and remanded, holding

that an employer defending a disparate impact claim under the ADEA bears both the burden of

production and the burden of persuasion for the RFOA affirmative defense under § 623(f). Id. at

102.

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Like the plaintiffs in Meacham, Segel makes a statistical argument in support of his pretext

argument, arguing that his case represents one of many similar cases against Kimberly-Clark. See

Plaintiff-Appellant Br. at 42. This, however, is where the similarities between the two cases end. 

Segel was not laid off as a result of a reduction in force; he was laid off because of poor work

performance. Additionally, whereas the Meacham case utilized a statistical expert to buttress their

claims, Segel fails to marshal any meaningful statistical evidence. Kimberly-Clark makes the point

well: 

Segel’s identification of 105 unadjudicated EEOC charges filed against KimberlyClark and its various subsidiaries throughout the United States over the past five

years is meaningless. Indeed, Segel fails to set forth any comparative data (such as

the total number of Kimberly-Clark employees, the number of employees under 40

who have been terminated, the number of Kimberly-Clark employees who are over

40 who have not filed charges, the entity which employed the charging party, etc.)

from which the court could determine whether the 105 charges suggest anything,

much less a pattern of age discrimination across the approximately 56,000 employee

organization of a Fortune 150 company. In the absence of any context for these

charges, the mere fact the charges themselves exist is not a ‘statistic’ and has no

probative value with respect to the pretext inquiry.

Defendant-Appellee Br. at 41-42. Kimberly-Clark also correctly noted that “Segel fails to advise

the Court that the EEOC has not found reasonable cause to conclude that Kimberly-Clark violated

the ADEA in any of the 105 charges identified.” Id. at n. 16. As such, Segel’s reliance on Meacham

is unpersuasive. 

Segel also complains that his 2006 performance review was “manipulated” and inaccurate. 

Plaintiff-Appellant Br. at 33. Toward that end, Segel appears to be arguing that discrimination can

be inferred from (1) the fact that his supervisor “manipulated” his rankings; (2) that “Hein had no

complaints about Segel in 2006,” and therefore his 2006 evaluation was inaccurate; and (3) that

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“Hein did not corroborate” his supervisors’ concerns. Id. at 33-38. In addition, Segel claims that

“he was treated differently compared to his counter-part, Mancinelli, who was substantially younger

than him, had fewer responsibilities, and had an overall lower score on the 2006 Performance

Appraisal.” Id. at 29. 

Kimberly-Clark admitsthat Segel’s supervisor “incorrectlytranscribed a numerical ranking,”

Defendant-Appellee Br. at 31. Nonetheless, as Kimberly-Clark points out, “the record is devoid of

anyevidence that the mistake was motivated by a discriminatoryanimus,” and the numerical ranking

had no bearing on the numerous critical comments regarding Segel’s inflexibility. Id. at 31-32. In

this context, even an “undeniably suspicious” alteration is “ultimately irrelevant.” Geiger, 579 F.3d

at 625. 

Second, Segel complains that “Hein testified that she had no complaints about Segel in

2006.” Plaintiff-Appellant Br. at 34. The record confirms that Hein, who had only worked with

Segel for two months at that point, had not complained about Segel in 2006. R. 89 at 105. Because

the Kimberly-Clark supervisor who completed Segel’s review admits that he does not remember

when he started receiving complaints from Hein, this does not raise a genuine dispute over a material

fact. Segel maintains that this “temporal disconnect” is evidence that Kimberly-Clark retroactively

justified its actions and suggests that this provides circumstantial evidence of age discrimination. 

Plaintiff-Appellant Br. at 34. 

The record simply does not support this argument. First, given that Segel’s 2006 evaluation

did not take place until March 31, 2007, R. 76-9 at 141—three full months into 2007—it is possible

that Hein’s complaints from early 2007 seeped into Segel’s 2006 performance review. Second, Hein

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is never mentioned in Segel’s 2006 review – the review only references Segel’s need to improve his

relationship with Meijer, and Hein reported that her predecessorlikewise experienced difficultywith

Segel. Ultimately, however, Segel fails to make a cognizable allegation of circumstantial

discrimination given that Hein’s deposition thoroughly supports the conclusion that she experienced

significant difficulties while working with Segel. As Hein’s testimonymakes clear, she found Segel

“difficult to work with” and requested the opportunity to work with someone else at KimberlyClark. 

Accordingly, even assuming the 2006 evaluation prematurely referenced events from 2007, as Segel

alleges, Hein’s deposition thoroughly corroborates Kimberly-Clark’s position that Segel’s

interpersonal difficulties with Hein animated Kimberly-Clark’s decision to terminate Segel. 

Accordingly, Segel’s arguments that “Hein did not corroborate” his supervisor’s criticisms, PlaintiffAppellant Br. at 37, are likewise belied by the record. 

Finally, we consider Segel’s assertion that Kimberly-Clark treated him differently from his

younger colleague, Mancinelli. For Segel to use Mancinelli to establish pretext through Manzer’s

second option, Segel has the burden of establishing that Mancinelli is similar in “all of the relevant

aspects.” Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994). Among other

things, Segel must prove that he and Mancinelli engaged in the same conduct which served as the

basis for his termination, but that he was the only one who suffered an adverse employment action. 

See Colvin v. Veterans Admin. Med. Ctr., 390 F. App’x 454 (6th Cir. 2010) (“This Court has held

that in the disciplinary context, to be found similarly situated, the plaintiff and his proposed

comparator must have engaged in acts of comparable seriousness.”)(internal alterations and citations

omitted). In this case, then, Segel must establish that Mancinelli had the same interpersonal

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shortcomings that served as the basis for Segel’s termination. Mancinelli’s 2006 annual review

makes clear that this is not the case. Accordingly, Segel fails to identify a comparator at KimberlyClark to establish circumstantial evidence of discrimination. 

Prong Three

Segel also complains that Kimberly-Clark’s stated reasons for Segel’s termination were

insufficient to motivate the adverse employment action. Plaintiff-Appellant Br. at 33-38. In support

of this claim, Segel repeatedly references his excellent sales record. Id. As this Court made clear

in Chen, 580 F.3d at 401, an employee’s interpersonal difficulties are sufficient grounds for an

adverse employment action. See also Viergutz v. Lucent Techs., Inc., 375 F. App’x 482, 485 (6th

Cir. 2010). 

III. CONCLUSION

Because Segel failed to satisfy any of the Manzer prongs, Segel did not establish that

Kimberly-Clark’s adverse employment action was pretextual. As such, Segel did not demonstrate

that age was a “but-for” cause for his termination. Accordingly, we AFFIRM the district court. 

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