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 Unless otherwise noted, the following facts are undisputed. 

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

KAREN M. KEYS, et al.,

Plaintiffs,

v. Case No. 09-11105

ARKEMA INC.,

Defendant.

/

OPINION AND ORDER GRANTING DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT

Pending before the court is Defendant’s “Motion for Summary Judgment.” 

Plaintiffs have filed a response in opposition to the motion, and Defendant filed a reply. 

The court concludes that a hearing is unnecessary. See E.D. Mich. LR 7.1(e)(2). For

the reasons below, the court will grant Defendant’s Motion.

I. BACKGROUND1

In this age discrimination case, Plaintiffs’ case theory is that their employer

decided to sell the factory where they worked because the workforce was aged. 

Plaintiffs allege that this violates Michigan’s Elliot Larsen Civil Rights Act (“ELCRA”). 

Defendant was the owner of the Riverview Plant, where Plaintiffs worked. (Pls.’

Resp. Br. Ex. 4 at 13.) The Riverview Plant produced “specialty amines,” which are

chemicals used in various industrial applications, such as water treatment, and also

used in the production of detergents, lubricants, and gas-treatment agents. (Def.’s Mot.

Br. Ex. D ¶ 3.) The production of specialty amines was, however, never central to

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Defendant’s core business. (Pls.’ Resp. Br. Ex. 4 at 13.) At some point, the president

of Taminco, a company that specialized in the production of such amines, approached

Defendant and indicated an interest in buying the Riverview Plant. (Pls.’ Resp. Br. Ex. 4

at 13 & Ex. 6 at 24-25.) Emanuel Katz was an Arkema employee involved in the

deliberations concerning whether to sell the Riverview Plant to Taminco. (Pls.’ Resp.

Br. Ex. 6 at 10-11.) According to Katz, Defendant decided to sell the Riverview Plant

and its specialty amine production business to Taminco because “the net present value

of keeping the business was substantially less than the net present value being offered

to [Defendant] by Taminco.” (Pls.’ Resp. Br. Ex. at 13-14, 33.) According to another of

Defendant’s employees, the Riverview Plant’s sale was also motivated by a desire to

divest Defendant of “non-core” business activities. (Pls.’ Resp. Br. Ex. 3 at 40.) 

The parties dispute the extent to which the Riverview Plant’s labor costs were

considered in Defendant’s decision to sell. Defendant collected and provided to

Taminco “due diligence” information. The due diligence was collected to give Taminco

proof of the Riverview Plant’s value, and it included some information on labor costs,

such as employee age, years of service, and how these variables factor into an

employee’s benefits. (Pls.’ Resp. Br. Ex. 2 at 2 & Ex. 3 at 17.) According to Defendant,

the information was not compiled until after the decision to sell the Riverview Plant to

Taminco. (Def.’s Reply 1.) To support this proposition, Defendant cites the deposition

of Samuel Glover, an Arkema employee who collected the due diligence information. 

Glover stated that the due diligence was for the purpose of “evaluating if what [Taminco

was] getting is what they agreed to.” (Pls.’ Resp. Br. Ex. 3 at 13-14 (emphasis added).) 

Defendant also maintains that when it decided to sell the Riverview Plant, it considered

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only total fixed costs rather than examining the individual categories of costs, such as

labor costs. (Pls.’ Resp. Br. Ex. 6 at 15.)

Regardless of the timing and consideration of the due diligence, Plaintiffs point

out that, a year and a half before the sale, Defendant modified its pension plan after

conducting “age related analyses.” (Pls.’ Resp. Br. Ex. 4 at 21-23.) As a result,

Plaintiffs assert that Defendant was “keenly aware of the progressing age of its

workforce.” (Pls.’ Resp. Br. 3.) Defendants do not appear to contest this point—indeed,

it seems evident to the court that any competent business entity would need to be

constantly aware of the seniority and age of its employees, as these metrics are likely to

be closely related to overall labor costs .

When Defendant sold the Riverview Plant to Taminco, nearly all employees were

transferred to Taminco. (Pls. Resp. Br. Ex. 6 at 29.) 

Plaintiffs state in their response that Taminco has slated the Riverview Plant for

closure at the end of 2009. (Pls.’ Resp. 2.) 

II. STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is proper when

there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). “In deciding a motion for summary

judgment, the court must view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor.” Sagan v. United

States, 342 F.3d 493, 497 (6th Cir. 2003). “Where the moving party has carried its

burden of showing that the pleadings, depositions, answers to interrogatories,

admissions and affidavits in the record, construed favorably to the non-moving party, do

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not raise a genuine issue of material fact for trial, entry of summary judgment is

appropriate.” Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987) (citing Celotex

Corp. v. Catrett, 477 U.S. 317 (1986)).

The court does not weigh the evidence to determine the truth of the matter, but

rather, to determine if the evidence produced creates a genuine issue for trial. Sagan,

342 F.3d at 497 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 

The moving party must first show the absence of a genuine issue of material fact. Plant

v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000) (citing Celotex, 477 U.S. at 323). 

The burden then shifts to the nonmoving party, who “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). He must put forth enough

evidence to show that there exists a genuine issue to be decided at trial. Plant, 212

F.3d at 934 (citing Anderson, 477 U.S. at 256). Summary judgment is not appropriate

when “the evidence presents a sufficient disagreement to require submission to a jury.” 

Anderson, 477 U.S. at 251-52 (1986).

The existence of a factual dispute alone does not, however, defeat a properly

supported motion for summary judgment—the disputed factual issue must be material. 

See id. at 252 (“The judge’s inquiry, therefore, unavoidably asks whether reasonable

jurors could find by a preponderance of the evidence that the plaintiff is entitled to a

verdict—‘whether there is [evidence] upon which a jury can properly proceed to find a

verdict for the party producing it, upon whom the onus of proof is imposed.’” (alteration

in original) (citation omitted)). A fact is “material” for purposes of summary judgment

when proof of that fact would establish or refute an essential element of the claim or a

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defense advanced by either party. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.

1984) (citation omitted).

 III. DISCUSSION

The ELCRA prohibits an employer from discriminating against an employee on 

the basis of age. Mich. Comp. Laws § 37.2202(1)(a). In some cases of discrimination,

a plaintiff can prove discrimination based on direct evidence. In such cases, the plaintiff

can go forward and prove discrimination just as a plaintiff would prove any other matter

in a civil case. Hazle v. Ford Motor Co., 628 N.W.2d 515, 520-21 (Mich. 2001). 

Plaintiffs do not assert that this is a direct-proof case, but, instead, they rely on

indirect evidence of discrimination. (Pls.’ Resp. 5.) 

For ELCRA cases with no direct proof of discrimination, the Michigan Supreme

Court has adopted the burden-shifting analysis of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Hazle, 628 N.W.2d at 521. Under the McDonnell Douglas

framework, a plaintiff must first establish a prima facie case of discrimination on the

“basis of proofs from which a factfinder could infer that the plaintiff was the victim of

unlawful discrimination.” Id. In other words, the plaintiff must “present evidence that the

employer’s actions, if otherwise unexplained, are more likely than not based on the

consideration of impermissible factors.” Id. In a typical discrimination case where a

plaintiff is passed over for a promotion or denied employment, proving the prima facie

case is done by establishing four factors: (1) the plaintiff belongs to a protected class;

(2) the plaintiff suffered an adverse employment action; (3) the plaintiff was qualified for

the position; and (4) the job was given to another under circumstances giving rise to an

inference of unlawful discrimination. Id. This case, however, involves the sale of an

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 “For analytical purposes, Michigan’s Elliott-Larsen Act resembles federal law,

and the same evidentiary burdens prevail as in ADEA cases. Gallaway v. Chrysler

Corp., [306 N.W.2d 368, 370-71 (Mich. 1981)] (adopting Sixth Circuit analysis in

Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975)).” Simpson v. Midland-Ross

Corp., 823 F.2d 937, 940 (6th Cir. 1987).

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entire plant, so the four-element prima facie case defined above is not terribly helpful. 

But “the elements of the McDonnell Douglas prima facie case should be tailored to fit

the factual situation at hand.” Id. at 521 n.6. In Allen v. Diebold, Inc., 33 F.3d 674, 678

(6th Cir. 1994), the Sixth Circuit defined the prima facie case in an Age Discrimination in

Employment Act2 (“ADEA”) case involving a plant-closing. The Allen court analogized

plant-closing cases with reduction-in-workforce cases, see, e.g., Deetjen v. Anchor

Coupling, Inc., 101 F. App’x 46, 48 (6th Cir. 2004), and held that, to establish a prima

facie case, the “plaintiffs in a plant closing case must show that an employer’s decisions

regarding which factories to close or downsize were based on consideration of the ages

of the workers at those factories.” Allen, 33 F.3d at 678. Specifically, the Allen court

held that the prima facie case could be established with “statistics . . . which are so

unusual that, absent explanation by defendant, we could permit a jury to infer age

discrimination on that basis alone.” Id. There is no reason why the prima facie case in

a plant-closing case should be different from a plant-sale case, so the court will utilize

the standard articulated in Allen.

Where the plaintiff has established a prima facie case, a rebuttable presumption

of discrimination arises. Hazle, 628 N.W.2d at 521. At this point the defendant has the

opportunity to articulate a legitimate, nondiscriminatory reason for its employment

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decision. Id. Accordingly, if the defendant produces such evidence then the plaintiff’s

“prima facie case drops away.”

If the defendant articulates a legitimate reason, then, to survive summary

judgment, the plaintiff must produce evidence allowing the conclusion that the

defendant’s explanation is pretextual. Id. In this final step of the McDonnell Douglas

analysis, 

[t]here are three ways a plaintiff can establish that a defendant’s stated

legitimate, nondiscriminatory reasons are pretextual: (1) by showing the

reasons had no basis in fact, (2) if they have a basis in fact, by showing

that they were not the actual factors motivating the decision, or (3) if they

were factors, by showing that they were jointly insufficient to justify the

decision.

Dubey v. Stroh Brewery Co., 462 N.W.2d 758, 760 (Mich. Ct. App. 1990).

Plaintiffs suggest that the prima facie case is established “by several factors.” 

Plaintiffs argue that the material in the due diligence produced for Taminco establishes

that Defendant considered workforce age and labor costs when deciding to sell the

Riverview Plant. Specifically, Plaintiffs point to charts included in the due diligence that

included detailed breakdowns of years of service and age with references to how those

variables specifically affect employee benefits. Plaintiffs point to nothing on the record,

however, suggesting that Defendants considered the due diligence materials before

deciding to sell the Riverview Plant. 

Even assuming that Defendant considered the due diligence before deciding to

sell, Plaintiffs have still failed to establish a prima facie case. As Plaintiffs admit, “the

ELCRA ‘does not constrain an employer who acts on the basis of other

factors—pension status, seniority, wage rates, etc., that empirically correlated with

age.’” (Pls.’ Resp. 8-9.) The due diligence materials, at best, allow only the inference

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that Defendant based the decision to sell on labor costs, which empirically correlate with

age. Plaintiffs make this point for Defendant—in their response Plaintiffs argue that

Defendant based the decision to sell on how “ages [are] associated with various

employment benefits, i.e., defined benefits, and how such benefits will be eliminated

upon the sale of the facility to Taminco.” (Pls.’ Resp. 5.) Accordingly, though Plaintiffs

may have produced evidence suggesting that Defendant considered labor costs that are

correlated with and controlled by age, as a matter of law this evidence is insufficient to

allow an inference that Defendant sold the plant because the workforce was old rather

than expensive.

Plaintiffs argue that because 70% of the Riverview Plant workforce was over the

age of fifty, an inference of age discrimination is proper. The statistics offered by

Plaintiffs do not support the argument of age discrimination. Plaintiffs make no

argument and point to no evidence suggesting that the Riverview Plant age distribution

is older than that of Defendant’s other facilities. Moreover, Plaintiffs make no argument

and present no evidence that the Riverview Plant workforce was “old” vis a vis

Michigan’s or the country’s general population. Indeed, Plaintiffs point to nothing

suggesting that the Riverview Plant age distribution is disproportionately older than any

other distribution. Without more, these statistics are probative of nothing and fall far

short of allowing an inference of age discrimination.

Plaintiffs also argue that the “lack of credibility of the Defendant has to be

considered by this [c]ourt in determining whether age was a significant factor in the

decision to sale [sic] the facility.” (Pls.’ Resp. 7.) It does not. The burden to establish a

prima facie case of discrimination is Plaintiffs’. Plaintiffs have not met their burden of

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establishing a prima facie case, and they cannot shift their burden to Defendant by

attacking the credibility of Defendant and Defendant’s employees.

Furthermore, even assuming that Plaintiffs could establish a prima facie case,

Defendant has articulated a legitimate business reason for selling the plant: divesting

itself of non-core businesses and a determination that the Riverview Plant was worth

more on the auction block than in Defendant’s portfolio. Given that the Riverview Plant

will be closed, Defendant’s reasoning seems more than legitimate—it appears shrewd. 

Defendant has produced ample facts establishing its proffered reason as the actual

basis for the decision to sell, while Plaintiffs have produced nothing suggesting that

these reasons were not the actual basis for or sufficient justification for the decision to

sell. Accordingly, Plaintiffs have failed to present evidence sufficient to rebut

Defendant’s legitimate explanation for selling the Riverview Plant.

Plaintiffs’ assertions reduce to a claim that Defendant sold their plant because its

labor was expensive—expensive because it was staffed by an aged and high-seniority

workforce. This claim fails because legislatures have calculated that our laws should

not discourage companies from acting based on workforce cost, a factor that is largely

controlled by workforce age. Rightly or wrongly, the marketplace rather than courts

govern business relationships with these characteristics.

IV. CONCLUSION

Because Plaintiffs have failed to establish a prima facie case of discrimination,

the court will grant Defendant’s “Motion for Summary Judgment.” Accordingly,

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IT IS ORDERED that Defendant’s “Motion for Summary Judgment” [Dkt. # 20] is

GRANTED.

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: November 24, 2009

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, November 24, 2009, by electronic and/or ordinary mail.

 S/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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