UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IBRAHIM KIRA, 

Plaintiff, Case Number 09-10683

Honorable David M. Lawson

v.

ARAB COMMUNITY CENTER FOR 

ECONOMIC AND SOCIAL SERVICES,

Defendant.

_____________________________________/

OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Plaintiff Ibrahim Kira, a limited license psychologist, filed a complaint under the Age

Discrimination in Employment Act (ADEA) and the Michigan Elliott Larsen Civil Rights Act

alleging that the defendant, Arab Community Center for Economic and Social Services (ACCESS)

terminated his employment as a therapist and supervisor on account of his age. Presently before the

Court is the defendant’s motion for summary judgment, in which it alleges that the undisputed facts

show that the plaintiff voluntarily left his employment to take a better-paying job once he learned

of the defendant’s intended reorganization, and the defendant had a legitimate, non-discriminatory

reason for reorganizing that resulted in the change in the plaintiff’s employment status. The plaintiff

says that he started looking for other employment when he was told his position would change with

the reorganization, and the reorganization itself was a pretext for discrimination, since it resulted

only in the departure of the plaintiff and one other therapist/supervisor, both of whom were seventy

years old. The Court finds that although there is evidence in the record which supports the

defendant’s contentions, the plaintiff has come forward with contrary evidence and has established

a jury-submissible claim. Therefore, the Court will deny the motion for summary judgment.

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I.

The plaintiff was employed as a psychologist by defendant ACCESS from January 1995

through March 2008. He is an English- and Arabic-speaking limited-license therapist who was

seventy years old at the time he left the defendant’s employ. According to the defendant, the

plaintiff began his employment as a therapist, but he was given a supervisory role sometime in 2005,

and his client-contact duties gave way to supervisory duties as time went by. In fact, the defendant

contends that by the end of the plaintiff’s tenure, he had reduced his own caseload so that he was

seeing only one patient every two days. By 2005, the plaintiff was reporting to Dr. Mohammed

Farrag, the clinical director of the defendant’s department of community health and research. Dr.

Farrag reported to the executive director, Dr. Adnan Hammad. Dr. Farrag also apparently had

reduced his patient contact. Dr. Hammad determined that a reorganization was necessary to lower

the ratio of therapists to patients, improve the level of services, and control costs. He envisioned a

“flat structure” in which every licensed therapist would carry a patient load. In pursuit of that

reorganization, the defendant contends that Dr. Hammad persuaded Dr. Farrag, who also was

seventy years old, to relinquish his clinical director position and become a consultant. That

agreement was a never completed and Dr. Farrag left ACCESS in January 2008. Dr. Hammad

approached the plaintiff with a similar objective. The parties’ versions of the ensuing conversations,

which are set forth below, are not the same.

The plaintiff provides a different history. He says that his employment at ACCESS always

had a supervisory component, and he maintained his level of patient contact throughout his entire

tenure there, except when he was given additional grant-writing duties by Dr. Hammad. The

plaintiff testified that the standard work allocation for a full-time therapist was 60-65% direct patient

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work and 35-40% administrative, and for a supervisor 50% supervision, 32% direct patient contact,

and 18% administrative. When Dr. Hammad assigned the plaintiff to do research and write grants

for ACCESS over the last two years of the plaintiff’s employment, the plaintiff reduced his caseload

to avoid neglecting his patients, a decision that was approved by Dr. Hammad. No one ever

complained about the quality of the plaintiff’s work; to the contrary, both parties agree that the

plaintiff did his job quite well.

The plaintiff met with Dr. Hammad and Michele Wells, the defendant’s human resources

director, on July 20, 2007 to discuss the plaintiff’s position in light of Dr. Hammad’s planned

reorganization. The parties offer different versions of the conversation. According to the defendant,

the plaintiff had told Dr. Hammad that he did not want to see patients any longer and preferred to

focus his work on research and grant writing. Dr. Hammad contends that he said that the plaintiff

could step out of his current position and remain at ACCESS in his capacity through January 1, 2008

while the defendant looked for a replacement. Thereafter, the plaintiff would be given an ongoing

position as an independent contractor writing grants and doing research. The terms of that position

remained open to negotiation.

The plaintiff testified that at the meeting, Dr. Hammad told him about planned changes in

the organization so that Hammad could bring in “new blood . . . to be able to carry the next

generation.” Pl.’s Ans. to Mot. Summ. J., Ex. 3, Kira dep. at 10-11. The plaintiff contends that he

was told he would not have a job after January 1, 2008, but he would be offered work on a contract

basis after he resigned, funded only from the proceeds of successful grant applications he would

write. The plaintiff insists that Dr. Hammad made no mention of having to restructure for budgetary

reasons. He says he was never offered another position at ACCESS. He explained that he did not

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want to retire and he would begin to look for another job if the defendant did not offer him a

position. 

Following the meeting, Michele Wells sent the plaintiff a letter apparently to summarize the

discussion. The letter states:

. . . After long evaluation and thought . . . we are requesting that you resign your

positions as Supervisor, Children’s Programs, Community Mental Health Division.

 It is a known fact that you possess great skill and expertise in a variety of areas.

We invite you to have open dialogue with us as we negotiate re-positioning you

within the [organization] capitalizing on your skill of grant writing, research and

evaluation, [sic] please be assured that we are open to discuss [sic] regarding the

details of your transition.

Mot. Summ. J., Ex. 2. The plaintiff was encouraged to be “open minded and positive as we work

through this process.” Ibid. Wells set out the following schedule:

1. Effective Monday, July 23, 2007, ACCESS will announce to the staff that we

will be recruiting for a Supervisor of the Children’s Program, CMH Division.

2. Human resources will begin recruiting for this position immediately. Dr.

Kira has agreed to assist in interviewing as well as mentoring and training

candidates of interest.

3. Anticipated date of having a new supervisor on board, trained and ready to

lead, is January 1, 2008. At this time, Dr. Kira will begin serving, officially,

under the terms and in the capacity as negotiated. Negotiations of Dr. Kira’s

newly acquired capacity will be finalized by January 1, 2008 and become

effective beginning immediately thereafter. Negotiations will be facilitated

by Dr. Hammad . . . and . . . Michele Wells.

Ibid. 

The plaintiff remained in his position as the supervisor of the Children’s Program with the

same salary and benefits until November 28, 2007. Until then, neither party raised the issue of the

plaintiff’s new position. Each side blames the other for this lapse. The plaintiff began looking for

another job; he applied to the Georgia Center for Torture and Trauma Survivors (CTTS) for their

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director position on September 21, 2007, writing that he was leaving ACCESS for “advancement.”

Mot. Summ. J., Ex. 6, p. 2. 

On November 28, 2007, Dr. Hammad and Ms. Wells met with the plaintiff for the second

time. Both parties have described this meeting as basically a rehash of the earlier meeting, with the

plaintiff agreeing to stay in his position until March 1, 2008 because the defendant had not yet found

a qualified replacement candidate. The defendant sent a follow-up letter to the plaintiff that was

similar to the July 20 letter, with the revised termination date, noting that “Dr. Kira will remain on

ACCESS payroll in his present capacity with all associated benefits until March 1, 2008.” Mot.

Summ. J., Ex. 3. After the second meeting, neither party initiated discussions about the new

arrangement for the plaintiff. 

Some time during fall 2007, another position opened at ACCESS for the director of the

Clubhouse, a day program for chronically mentally ill patients. The defendant says that the plaintiff

never expressed any interest in or applied for this position. The plaintiff explains that he was

interested in the position, but did not want to “beg” for jobs after being informed that ACCESS no

longer wanted him as an employee. Mot. Summ. J., Ex. 4, pl.’s dep., at 79, 121-124. This position

was filled by a Clubhouse employee before the plaintiff left ACCESS.

 On February 7, 2008, the plaintiff received a job offer from the Georgia CTTS, which he

accepted, starting March 17, 2008. The defendant seems to believe that the plaintiff was actually

hired earlier and supplies the payroll records to support this point. However, these exhibits provide

no clear evidence of a hiring date. The defendant also notes that the plaintiff signed a lease in

Atlanta on February 12, 2008. The defendant states that it first learned of the plaintiff’s new job at

a February staff meeting. Dr. Hammad testified that he was surprised by this revelation, but happy

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for his friend and colleague because the CTTS job was “ten times more important than the job [Dr.

Kira] had at ACCESS” and he believed that the plaintiff “should not really take [the] risk in refusing

[that job] easily.” Mot. Summ. J., Ex. 1, Hammad dep., at 182-83). 

The plaintiff’s last day at ACCESS was March 1, 2008. His colleagues attended a companysponsored farewell party for him. On March 3, 2008, Dr. Hammad sent an email to the Executive

Director stating, “This is to let you know that I let Dr. Kira go last Friday; it went very peaceful and

nice.” Pl.’s Ans. to Mot. Summ. J., Ex. 5. On March 16, 2008, the plaintiff received a layoff notice

from the ACCESS Human Resources Department, which stated, “It is with much regret that we are

unable to continue your employment effective March 16, 2008. This was a difficult decision and

comes as a result of the position requirements and requisition.” Ans. to Mot. Summ. J., Ex. 6. 

After the plaintiff left ACCESS, the defendant faced a supervisory problem and moved

Abdullah Ali, a 55-year-old therapist and supervisor in the adult program, to the acting supervisor

role for the children’s program as well. The defendant argues that although the plaintiff was

qualified for the position, Dr. Ali’s more patient-focused practice was preferred for the supervisor

position. Dr. Ali continues in this position because ACCESS has been unable to find a suitable

candidate with the necessary credentials and language skills.

The plaintiff filed a complaint against ACCESS on February 23, 2009, asserting claims under

both the federal ADEA, 29 U.S.C. § 621 et seq., and Michigan’s Elliott-Larsen Civil Rights Act,

Mich. Comp. Laws § 37.2202 et seq. The defendant filed a motion for summary judgment on

November 11, 2009 and, following the plaintiff’s response and the defendant’s reply, the Court

heard brief oral argument on January 13, 2010.

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II.

The defendant presents two main arguments. First, understanding that there is no direct

evidence of discrimination, the defendant contends that the plaintiff cannot prove a prima facie case

because the plaintiff was never fired. The defendant’s take on the evidence is that the plaintiff

ignored the offer to negotiate a new job arrangement and instead left ACCESS for a better – and

better paying – position. The defendant believes that the only way the plaintiff can show adverse

action by his employer given the circumstances of his departure is to prove constructive discharge,

which cannot be found in these facts. Second, the defendant argues that there is no circumstantial

evidence that age was the reason the plaintiff separated from ACCESS. The defendant says that of

the two jobs not given to the plaintiff after July 2007, one (the Clubhouse director position) he never

applied for, and the other (the supervisory position he vacated) was not awarded until after he left

voluntarily, and then it was assigned only on an interim basis.

The plaintiff refutes the first point with his own testimony and documentation from the

defendant’s files, which discuss “let[ting] [the plaintiff] go,” and “eliminat[ing]” his position. He

states that the July 20, 2007 letter makes clear that as of the first of the year, he no longer had a job

as an employee with ACCESS, despite the invitation to negotiate other arrangements. He says that

age was the motivating factor behind the restructuring, as shown by the elimination of the two older

therapists and the retention of younger department heads. The plaintiff also insists that the

defendant’s claim of restructuring is pretextual, since Dr. Hammad has given several inconsistent

justifications for it, and the true reason was betrayed by the explanation furnished at the July 20,

2007 meeting that ACCESS wanted “new blood” in the organization.

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The standards for evaluating a motion for summary judgment are well known but bear

repeating here. As the Sixth Circuit recently explained:

Both claimants and parties defending against a claim may move for summary

judgment “with or without supporting affidavits.” Fed. R. Civ. P. 56(a), (b). Such

a motion presumes the absence of a genuine issue of material fact for trial. The court

must view the evidence and draw all reasonable inferences in favor of the

non-moving party, and determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251-52 (1986). The party bringing the summary judgment motion has the initial

burden of informing the district court of the basis for its motion and identifying

portions of the record that demonstrate the absence of a genuine dispute over

material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc.,

276 F.3d 845, 848 (6th Cir. 2002). Once that occurs, the party opposing the motion

then may not “rely on the hope that the trier of fact will disbelieve the movant's

denial of a disputed fact” but must make an affirmative showing with proper

evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d

1472, 1479 (6th Cir. 1989).

Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009). In addition, when “‘reviewing a

summary judgment motion, credibility judgments and weighing of the evidence are prohibited.

Rather, the evidence should be viewed in the light most favorable to the non-moving party. . . . 

Thus, the facts and any inferences that can be drawn from those facts[] must be viewed in the light

most favorable to the non-moving party.’” Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374

(6th Cir. 2009) (quoting Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (citations

omitted)); see also Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003) (“In evaluating the

evidence, [the district court] ‘draw[s] all reasonable inferences therefrom in a light most favorable

to the non-moving party.’”) (quoting PDV Midwest Refining, LLC v. Armada Oil & Gas Co., 305

F.3d 498, 505 (6th Cir. 2002)).

The Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., makes prohibits

employers from discriminating against covered employees on the basis of age:

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It shall be unlawful for an employer–

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate

against any individual with respect to his compensation, terms, conditions or

privileges of employment, because of such individual’s age.

29 U.S.C. § 623(a)(1). “Congress enacted the ADEA ‘to promote employment of older persons

based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and]

to help employers and workers find ways of meeting problems arising from the impact of age on

employment.’” Pistillo v. Comm’r, 912 F.2d 145, 150 (6th Cir. 1990) (quoting 29 U.S.C. § 621(b)).

In order to prevail, the plaintiff must provide sufficient facts that would allow a reasonable

jury to conclude that ACCESS fired him. “He also must produce ‘direct, indirect, or circumstantial

evidence that [his] age was a factor in the decision to terminate [him] and that ‘but for’ this factor

[he] would not have been terminated.’ Gagne v. Northwestern Nat’l Ins. Co., 881 F.2d 309, 314-15

(6th Cir. 1989), citing Chappell v. GTE Products Corp., 803 F.2d 261, 265-66 (6th Cir. 1986).”

Woythal v. Tex-Tenn Corp., 112 F.3d 243, 246 (6th Cir. 1997) (alterations in original).

“ELCRA claims are analyzed under the same standards as federal ADEA claims. See Blair

[v. Henry Filters, Inc.], 505 F.3d [517,] 523 [(6th Cir. 2007)] (analyzing ADEA and ELCRA claims

“together” under the same standards in a work force reduction case).” Geiger v. Tower Automotive,

579 F.3d 614, 626 (6th Cir. 2009). To make out a claim of age discrimination under the ElliottLarsen statute, a plaintiff must produce evidence that she suffered an adverse employment action

and that age was a determining factor in the employer’s decision. See Town v. Mich. Bell Tel. Co.,

455 Mich. 688, 697, 568 N.W.2d 64, 69 (1997). 

A. Adverse Action

The Sixth Circuit has held that “[a]n adverse employment action is an action by the employer

that ‘constitutes a significant change in employment status, such as hiring, firing, failing to promote,

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reassignment with significantly different responsibilities, or a decision causing a significant change

in benefits.’” White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008) (quoting

Burlington Indus. v. Ellerth, 524 U.S. 742 (1998)), Tepper v. Potter, 505 F.3d 508, 515 (6th Cir.

2007). Not every action taken by an employer that potentially affects an employee rises to the level

of an adverse employment action. White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 796

(6th Cir. 2004). Employer actions that are a “mere inconvenience or an alteration of job

responsibilities” are not “enough to constitute an adverse employment action.” Mitchell v.

Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004). 

To prove adverse employment action, the plaintiff must demonstrate a “materially adverse

change in the terms or conditions of [his or] her employment because of [his or] her employer’s

conduct.” Kosis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996) (internal citations and

quotation marks omitted). “An employer’s decision to discharge an employee is a classic example

of an adverse employment action.” Vincent v. Brewer Co., 514 F.3d 489, 495 (6th Cir. 2007). Other

examples of adverse employment actions include “termination of employment, a demotion

evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or

other indices that might be unique in a particular situation.” Kosis, 97 F.3d at 886 (internal citations

and quotation marks omitted). 

The defendant contends that it took no adverse action against the plaintiff. Instead, it argues

that the plaintiff left voluntarily to pursue a better job without determining the conditions of the

independent contractor position offered him at ACCESS. Dr. Hammad testified that Dr. Kira was

not laid off and that “[w]e had an open, an open discussion and an open relationship with Dr. Kira

and we never finalized that relationship.” Mot. Summ. J., Ex. 1, Hammad dep. at 124. Hammad

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testified that “Dr. Kira divorced the relationship,” id. at 170; “I was not thinking of Dr. Kira to be

laid off from the organization,” id. at 206-07. The defendant also argues that Dr. Kira was not fired;

rather his position was eliminated. The defendant argues that it did not want to fire Dr. Kira and it

expressed interest in retaining him as an independent contractor. Finally, in its October 6, 2008

position statement to the EEOC, the defendant describes the facts as follows: 

Dr. Adnan Hammad, the Director of the ACCESS Community Health and Research

Center, Mr. Abdallah Boumediene, the Operations Manager of the Center, and

Michelle Wells, the Director of Human Resources for ACCESS, met with Dr. Kira

for a period of ten months over how those changes [in the Commission of the

Accreditation of Rehabilitation Facilities (CARF) standards] would affect Dr. Kira.

These officers informed Dr. Kira that if he stayed on staff, he would have to assume

supervisory duties, while continuing to be a therapist at the clinic. They specifically

offered Dr. Kira a new position with these duties, which Dr. Kira declined on the

stated basis that he was “getting tired” and did not want to make such a major

change.

The officials listed above then offered Dr. Kira a full-time or a part-time consulting

contract under which he would receive full benefits and salary for a period. As they

explained, this would be a job in which he would be writing grants and reviewing

files, rather than seeing patients. Dr. Kira again declined, stating that he was “tired,”

that his wife was ill, that he was considering moving to Atlanta, and that he wanted

to explore other options.

Dr. Kira then stated he wanted to retire. ACCESS accepted his resignation but

advised him that it would lay him off instead so that he could collect unemployment

benefits.

Ans. to Mot. Summ. J., Ex. 8, EEOC Position Statement.

The plaintiff denies that he was offered a supervisory position. He has presented evidence

that he was asked for his resignation several times, including at both meetings with Dr. Hammad and

Ms. Wells and in both follow-up letters. The letters plainly stated that he would no longer have a

job as of January 1, extended to March 1, 2008. Dr. Hammad acknowledged in his deposition that

“[w]e did request that Dr. Kira resign from his position as a supervisor for the children [sic] mental

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health program because the . . . position was eliminated.” Ans. to Mot. Summ. J., Ex. 7, Hammad

dep. at 101. Dr. Hammad also authored an email to his supervisors informing them that he had “let

Dr. Kira go.” Ans. to Mot. Summ. J., Ex. 5. In addition, the defendant sent the plaintiff a Notice

of Layoff. 

The Court believes that there is sufficient evidence of adverse employment action so that “‘a

jury could reasonably find for the plaintiff.’” Baker v. City of Hamilton, Ohio, 471 F.3d 601, 605

(6th Cir. 2006) (quoting Anderson, 477 U.S. at 252). There is no doubt that the defendant sought

to change its relationship with the plaintiff. At the time, the plaintiff enjoyed a full-time, salaried

position, and the defendant wanted to change that to an independent contractor, pay-as-you-go

relationship. The details of the independent contractor position remain unclear; neither party made

an effort to pursue the idea. However, the evidence suggests that one feature of the new relationship

contemplated by Dr. Hammad was that the plaintiff would lose the security of a fixed salary and

benefits to be replaced by an arrangement in which his compensation was determined by the success

of his grant writing. The plaintiff also would no longer be the supervisor of the children’s program

at the defendant’s community mental health division. Those differences amount to “a significant

change in employment status, such as . . . reassignment with significantly different responsibilities,

or a decision causing a significant change in benefits,” White, 533 F.3d at 402 (internal quotation

omitted), or “a demotion evidenced by a decrease in wage or salary, a less distinguished title, a

material loss of benefits, or other indices that might be unique in a particular situation,” Kosis, 97

F.3d at 886. 

B. Illegal motive

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At the summary judgment stage, the plaintiff must offer some evidence that the defendant

took the adverse employment action against the plaintiff “because of [his] age.” 29 U.S.C. §

623(a)(1). “A plaintiff may establish a violation of the ADEA by either direct or circumstantial

evidence.” Geiger v. Tower Automotive, 579 F.3d 614, 620 (6th Cir. 2009) (citing Martin v. Toledo

Cardiology Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008)). Last term in Gross v. FBL

Financial Services, Inc., --- U.S. ---, 129 S. Ct. 2343, 2350 (2009), the Supreme Court held that the

language of the ADEA leaves no room for mixed motive cases. The Court reiterated the following

standard of proof: “To establish a disparate-treatment claim under the plain language of the ADEA,

. . . a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Ibid.

(citing Bridge v. Phoenix Bond & Indem. Co., 553 U.S. ---, ---, 128 S. Ct. 2131, 2141-42 (2008), and

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63-64 & n.14 (2007). The Sixth Circuit has held,

however, that the application of the familiar McDonnell-Douglas framework to determine whether

the plaintiff has offered sufficient circumstantial proof of illegal motive at the summary judgment

stage remains unaffected by Gross. Geiger, 579 F.3d at 622. 

Under the McDonnell Douglas framework, see McDonnell Douglas v. Green, 411 U.S. 792

(1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981), the plaintiff first

must establish a prima facie case, whereupon the defendant must offer a legitimate reason for its

actions. If the defendant does so, the plaintiff cannot proceed unless he offers some evidence that

the defendant’s proffered justification is a pretext for unlawful discrimination. See Kline v. Tenn.

Valley Auth., 128 F.3d 337, 342 (6th Cir. 1997).

A prima facie case requires proof that the plaintiff: 1) was a member of a protected class (age

40 to 70); 2) suffered an adverse employment action perpetrated by the defendant; 3) was qualified

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for the position held; and 4) was replaced by someone outside of the protected class. See Geiger,

579 F.2d at 622-23 (citing Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008) (citing

Minadeo v. ICI Paints, 398 F.3d 751, 764 (6th Cir. 2005)); Browning v. Dep’t of Army, 436 F.3d

692, 695 (6th Cir. 2006). The fourth component also can be established by showing that the plaintiff

“was treated differently from similarly situated employees outside the protected class.” Mitchell v.

Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004). To be “outside the protected class,” the

comparator should be substantially younger than the plaintiff. See O’Connor v. Consol. Coin

Caterers Corp., 517 U.S. 308, 313 (1996) (“Because the ADEA prohibits discrimination on the basis

of age and not class membership, the fact that a replacement is substantially younger than the

plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was

replaced by someone outside the protected class.”)).

At seventy years of age, the plaintiff falls within the intended scope of protection of the

ADEA. See 29 U.S.C. § 631(a) (“The prohibitions in this chapter shall be limited to individuals

who are at least 40 years of age.”). This Court has determined that the defendant took adverse action

against him, and there is no dispute that Dr. Kira was qualified for the job that was taken from him.

The defendant argues that the plaintiff cannot show that he was treated less favorably than

substantially younger individuals because there was a job opening in the Clubhouse for which the

plaintiff failed to apply, and the plaintiff’s own job never saw a permanent replacement before he

left for his new job in Georgia, although the temporary occupant, at age 55, is substantially younger

than the plaintiff. 

The defendant also views the field of comparison very narrowly. It argues that comparators

must be limited to “supervisors [who] had over the course of the preceding year reduced their patient

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load to seeing one patient every two days . . . or one patient per week.” Def.’s Reply Br. at 4. That

limitation is too severe. “The plaintiff need not demonstrate an exact correlation with the employee

receiving more favorable treatment in order for the two to be considered ‘similarly-situated.’”

McMillan v. Castro, 405 F.3d 405, 414 (6th Cir. 2005) (citations and internal quotation marks

omitted). To be “similarly situated,” employees generally must “have dealt with the same

supervisor” and “have been subject to the same standards.” Mitchell v. Toledo Hosp., 964 F.2d 577,

583 (6th Cir. 1992). The Sixth Circuit has cautioned, however, that district courts “should not

assume . . . that the specific factors discussed in Mitchell are relevant factors in cases arising under

different circumstances, but should make an independent determination as to the relevancy of a

particular aspect of the plaintiff’s employment status and that of the non-protected employee.”

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

law in this Circuit is that a plaintiff must show only “that the comparable employee is similar ‘in all

of the relevant aspects.’” Martin, 548 F.3d at 412 (quoting Ercegovich, 154 F.3d at 352); see also

Geiger, 579 F.2d at 622-23 (collecting cases). 

The plaintiff points out that he was treated differently than the other program supervisors

who reported to Dr. Farrag. None of the other supervisors were affected by the reorganization,

except Dr. Ali and Dr. Wasi who took over the plaintiff’s position and duties in addition to their own

when ACCESS could not find a suitable replacement. The only other employee fired was Dr.

Farrag, the other seventy-year-old member of that department. Coincidence could be at work here,

but at the very least the evidence is sufficient to establish the fourth component of a prima facie

case. 

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The defendant has proffered a couple reasons for its action: the need to restructure and to

address the declining caseload of some of its therapists. The plaintiff therefore must offer some

evidence of pretext. In this Circuit, proof of pretext has been organized around three general

propositions: “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did

not actually motivate his discharge, or (3) that they were insufficient to motivate discharge.”

Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (quoting McNabola

v. Chi. Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993)). The plaintiff contends that the defendant’s

proffered reasons are not worthy of belief because it has offered multiple and contradictory

explanations for eliminating the plaintiff’s position. The plaintiff also argues that the need to

reorganize was not the real reason the plaintiff was fired from his salaried position. 

The defendant’s stated reasons for separating the plaintiff have not been consistent

throughout the EEOC and court proceedings. As the plaintiff points out in his brief, in the

defendant’s position statement to the EEOC, the defendant asserted that “the Commission of the

Accreditation of Rehabilitation Facilities (CARF)[] changed its standards for accreditation to require

that psychologists or psychiatrists have a specific patient load, that they supervise other staff

members (including managers and therapists), and that they participate in the submission of grants.”

Ans. to Mot. Summ. J., Ex. 8. The defendant explained that it “had no choice but to realign its job

duties and responsibilities in accord with the CARF standards.” Ibid. However, Dr. Hammad

testified at his deposition that “[t]here is no relationship between CARF standards and accreditation

and the restructuring of ACCESS Community Mental Health . . . . there was no relationship between

the two. Two different issues, completely different issues.” Ans. to Mot. Summ. J., Ex. 7, Hammad

dep. at 211-12. The position statement represented that the plaintiff was told that if he continued

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in his job, he would have to take on additional supervisory duties, and the plaintiff declined the offer

of a job because he was “getting tired” and did not want the new responsibilities. Ans. to Mot.

Summ. J., Ex. 8. In his deposition, Dr. Hammad testified that no one had made the plaintiff an offer

of another job that involved supervisory duties. In its position statement, the defendant justified its

actions to the EEOC on the ground that the plaintiff had resigned or retired, but Dr. Hammad

acknowledged in his deposition that the plaintiff had done neither. Dr. Hammad also testified that

the change was needed to implement a “flat structure,” but, according to the plaintiff, ACCESS has

not followed through with those plans, there is no evidence that it ever will, and no other managers

have been affected by these plans. Dr. Hammad testified that no formal plans for the reorganization

were drawn up. 

The plaintiff also argues that the proffered justifications did not actually motivate the

discharge. He argues that Dr. Hammad’s comment about hiring “new blood . . . to carry the next

generation” demonstrates that the defendant was motivated by the plaintiff’s advanced age. “Courts

examine several factors in determining whether an employer’s age-related statements evince bias.

These include ‘(1) whether the statements were made by a decision-maker or by an agent within the

scope of his employment; (2) whether the statements were related to the decision-making process;

(3) whether the statements were more than merely vague, ambiguous or isolated remarks; and (4)

whether they were made proximate in time to the act of termination.’” Morgan v. N.Y. Life Ins. Co.,

559 F.3d 425, 432 (6th Cir. 2009) (quoting Peters v. Lincoln Elec. Co., 285 F.3d 456, 478 (6th Cir.

2002)). The statements satisfy these four factors and have some evidentiary value. Dr. Hammad

is a decision-maker for ACCESS. The statements were related to the decision-making process

concerning the plaintiff’s termination, since they were made during the discussion to solicit the

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plaintiff’s resignation. The defendant argues that the third factor favors disregarding the statement

because “new” does not necessarily mean “younger.” However, when used in the context of the

phrase “for the next generation,” a fair inference is that ACCESS was looking to hire younger

therapists who could relate to younger patients. The remark was part of a larger discussion about

the plaintiff’s termination and the future of the clinical programs at ACCESS. Within this context,

a reasonable inference from this statement is that the defendant wanted to hire a younger individual.

In addition, the plaintiff also has offered evidence that Dr. Farrag, the only other employee

over seventy in the clinical division, was the only other person asked to resign, and none of the other

managers were affected. Finally, the plaintiff argues that the defendant replaced him with Dr. Ali,

a fifty-five year old supervisor in the adult program. It appears that Dr. Ali took over the plaintiff’s

position and is performing the same tasks the plaintiff performed. There is no evidence in the record

that the defendant changed the job duties. The defendant argues that Dr. Ali is more qualified

because his therapeutic approach is more patient-driven. Perhaps, but the evidence that the plaintiff

was replaced by a younger individual allows an inference of illegal motive.

There is sufficient evidence in the record to permit the case to proceed further.

III.

The Court finds that issues of material fact preclude summary judgment. 

Accordingly, it is ORDERED that the defendant’s motion for summary judgment [dkt #22]

is DENIED.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: January 22, 2010

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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 January 22, 2010.

s/Teresa Scott-Feijoo 

TERESA SCOTT-FEIJOO

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