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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHARRON HOLMES,

Case No. 09-10642

Plaintiff,

v. HON. SEAN F. COX

United States District Judge

J.P. MORGAN CHASE NATIONAL 

CORPORATE SERVICES, INC.

Defendant.

________________________________/

OPINION & ORDER

Plaintiff Sharron Holmes (“Holmes” or “the Plaintiff”) filed this Michigan state-law age

discrimination claim in the Wayne County, Michigan, Circuit Court on November 19, 2008. 

Defendant J.P. Morgan Chase National Corporate Services, Inc. d/b/a Chase (“Chase”) removed

this action pursuant to the Court’s diversity jurisdiction on February 20, 2009 [Doc. No. 1]. The

matter is before the Court on Chase’s Motion for Summary Judgment [Doc. No. 11]. In light of

both parties’ request that the Court cancel oral argument on this motion, the Court declines to

hold oral argument on the motion pursuant to Local Rule 7.1(e)(2). For the reasons below, the

Court GRANTS Chase’s motion [Doc. No. 11]. 

BACKGROUND

Ms. Holmes was originally hired by National Bank of Detroit (“NBD”), a predecessor to

Chase, on March 20, 1973 as a teller. [Holmes Dep., Def.’s Ex. 1, Doc. No. 11, p.96]. Ms.

Holmes was promoted to the position of branch manager for NBD in 1996, and from 1996 until

2004 was the branch manager of the Fort Junction branch in Detroit, Michigan. Id. at pp.96-97. 

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Ms. Holmes generally received sub-par performance reviews in her role as branch manager at the

Fort Junction branch: in 1999 and 2003, she received a “needs improvement” rating from NBD,

and in 2001 received a review stating that each and every category Ms. Holmes was evaluated

upon had slipped from the prior year. Id. at pp.103-106. After Chase’s acquisition of NBD as

part of their merger with Bank One, Chase rated the Fort Junction branch as the worst

performing branch in its peer group of similarly-situated branches. Id. at p.108. 

In early 2005, Chase transferred Ms. Holmes to the West Chicago/Telegraph branch,

were she remained until her termination. Id. at p.97. During periodic audits of the West

Chicago/Telegraph branch in 2005 and in 2006, through which Chase evaluates the performance

of bank branches, Ms. Holmes’ work was again cited as below expectations. Id. at p.98; see also

Chase Bank Audits, Def.’s Ex. 2. The West Chicago/Telegraph branch also failed to meet its

target goals on all sales campaigns in the year 2005. Id. at p.115. Ms. Holmes acknowledged

that these were evidence of operational problems within her branch, and that they reflected

poorly on her abilities as a branch manager. Id. at p.99. 

In response to the sub-par performance of the West Chicago/Telegraph branch under Ms.

Holmes’ leadership, Chase transferred an experienced assistant manager into the branch in 2006

to try and clean up branch operations. Id. at p.122. Rather than solve the problem, however, the

West Chicago/Telegraph branch’s sales numbers dropped even further in 2006. Id. at p.116-117. 

At the end of 2006, Plaintiff’s supervisor, District Manager Kathy Johnson, placed Ms. Holmes

on a performance improvement plan and told Ms. Holmes that her performance needed to

improve. Id. at pp.118-19; see also Def.’s Ex. 3. 

In April of 2007, Ms. Johnson left employment with Chase, and Vanessa Robinson

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(“Robinson”) became Ms. Holmes’ new District Manager on or about May 15, 2007. Id. at

p.128. Ms. Robinson’s supervisor, Market Manager Manny Alia (“Alia”), also started in his

position with Chase at roughly the same time as did Ms. Robinson. Id. at p.130. 

At that time, Ms. Holmes’ branch was still performing below expectations, and Ms.

Robinson and Mr. Alia addressed the status of the West Chicago/Telegraph branch with Ms.

Holmes during a meeting in May of 2007. Id. at p.132. When asked why her branch was

performing so poorly, Ms. Holmes stated that she only had one Personal Banker at her branch

instead of the usual two. When pressed by Ms. Robinson and Mr. Alia, however, Ms. Holmes

admitted that she had been authorized to hire another Personal Banker five months earlier when

the prior Personal Banker had been discharged, but that Ms. Holmes had not taken any steps to

fill the position. Id. at p.124. At that meeting, Mr. Alia reiterated that Ms. Holmes had the

authority to hire a second Personal Banker for the West Chicago/Telegraph branch, and also

granted Ms. Holmes the authority to hire a third such employee. Id. at pp.134, 134. Though Ms.

Robinson herself hired a second Personal Banker for the branch on her own [See Robinson Dep.,

Def.’s Ex. 5, Doc. No. 11, p.10], Ms. Holmes took no steps to fill the third Personal Banker

position at her branch. [Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, p.135]. 

Ms. Holmes took a medical leave from June 4, 2007 until July 9, 2007. Id. at pp.136-37. 

Around that same time, Ms. Holmes alleges that she began to suspect that her supervisors were

persecuting her not because of her poor job performance, but due to her age:

Q: Why do you believe that [your supervisors were persecuting you because of

your age]?

A: I believe that based on a couple of things. One was rumor that they were

actively getting rid of employees, branch managers who’d been around a

long time, because it would save the bank some money. 

Q: And what was the second thing?

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A: I had received information from other bank employees when I was on my

medical leave, that people were already deciding who would get my

branch. 

Q: Okay. So those were the two things that - - 

A: (Interposing) And I knew for a fact that I was the oldest branch manager in the

Detroit group, both districts. 

[Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, pp.70-71]. When pressed regarding the alleged “rumors”

that were circulating regarding Chase’s penchant for terminating older employees, Ms. Holmes

admitted that these merely amounted to the unsupported speculation of her peers:

Q: Okay. Let’s start with the rumor. You said that there was a rumor going

around? 

A: Um-hum (affirmatively). 

Q: What was the source of the rumor?

A: Oh, just, you know, a group of managers would get together after a meeting

and have lunch or something and they would say, you know, this is what I

heard, that, you know, if you’re fifty years old and you make fifty

thousand dollars, there’s a fifty percent chance you’re going to be out the

door soon. 

 Q: Okay.

A: Because that’s the easy way they can make the numbers look better. When

they take your salary out of the equation, it’s going to automatically bump

up the numbers so that the market looks better than it looked. 

Q: Okay. 

A: So these were the conversations that were being had. 

Q: Okay. So these were just people, managers - - 

A: (Interposing) Yeah. 

Q: - - sitting around speculating?

A: Yeah. I can’t say a number or something that said that, but. . . .

Q: So these were your fellow branch managers?

A: Yeah, peers, um-hum (affirmatively). 

Id. at pp.71-72 (emphasis added). Ms. Holmes was also unable to offer any objective evidence

supporting her assertion that her branch was being “divided up” during her absence while on

medical leave: 

Q: All right. And then you said you received information while you were on

medical leave?

A: Yes.

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 Nowhere in the exhibits provided to the Court by either party does a “Mary” or a “Hazel”

corroborate these conversations. 

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Q: Who gave you this information while you were on medical leave?

A: Let’s see. I talked to a couple of people. I’m not sure. It was - - I believe it

was someone in my office. I’m not sure what person it was. It was one of

two people. 

Q: And what was the information that you received?

A: That people were discussing who might get my job. There was a young lady

there that was a trainee, and she hadn’t been placed. 

*****

Q: A lot of the employees at the branch are debating who might replace you here?

A: No. Other people in the bank. 

Q: Like who?

A: I guess other managers or. . . .

Q: Other peers of yours?

A: People in - - yeah, peers, or people in other departments, like the sales coach

or the business banker person that assigned to the branch, or - - it’s like a

whole team of people that worked for the branch manager. 

Q: So you’re kind of getting this secondhand then?

A: Right.

Q: So you don’t really know who was saying anything?

A: No. 

Q: They’re just saying there’s a rumor here - - 

A: (Interposing) Right.

Q: - - that you were - - 

A: (Interposing) And they called me because they were concerned, because they

thought that I would not come back this time, because I’d been off before

with medical issues. But they were concerned that I wasn’t coming back. 

Q: Okay.

A: So they called to say this is what they heard. 

Q: Okay.

A: That kind of thing. 

Q: So we don’t remember who called you and gave you this information, right?

A: It was one of two people at my branch that I’m sure of.

Q: Okay. 

A: Mary or Hazel.1

Id. at pp.72-75 (emphasis added). 

On her first day back from medical leave, Ms. Holmes failed to appear at a mandatory

manager meeting. When Ms. Robinson called Ms. Holmes to inquire about her absence, Ms.

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Holmes told Ms. Robinson that she was “overwhelmed.” Id. at p.141. 

On July 20, 2007, Ms. Robinson made an unannounced visit to the West

Chicago/Telegraph branch to observe the branch’s performance. Id. at pp.152-53. On that day,

Ms. Robinson observed Ms. Holmes fail to conduct a morning “huddle” meeting of the

employees before the branch opened, a meeting required every morning pursuant to Chase

policy. Id. at p.156; see also Robinson Dep., Def.’s Ex. 5, pp.25-27. Ms. Robinson also

observed that Ms. Holmes did not have her staff involved in a “campaign call,” soliciting new

business for the branch through cold-calls, also required by Chase policy. Id. As a result, when

Ms. Robinson and Mr. Alia again met with Ms. Holmes on July 24, 2007, Ms. Holmes was

placed on another performance improvement plan and given a written warning - her second

action plan in less than nine months. Id. at p.157, see also Def.’s Ex. 7. 

The July 24, 2007 action plan required, among other things, for Ms. Holmes to “show

coach” her employees - i.e., modeling effective sales and customer service techniques for her

employees to emulate. Id. at pp.159-160. Ms. Holmes was also instructed to “work the lobby”

during business hours, attending to the customer service needs of branch customers. Id. 

When Ms. Robinson again stopped by the West Chicago/Telegraph branch only one

week later - on July 31, 2007 - she observed that Ms. Holmes was still not “show coaching” her

employees and not “working the lobby.” Id. at pp.161-63. Ms. Holmes candidly admitted that

she was not following the action plan at that time. Id. at pp.171-72. 

As a result, Ms. Robinson prepared a recommendation for Ms. Holmes’ termination,

which was approved by Mr. Alia effective August 3, 2007. [See Def.’s Ex. 8]. The reasons given

for Ms. Holmes’ termination included the poor results of West Chicago/Telegraph branch under

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her leadership, including negative sales numbers and branch audits, as well as Ms. Holmes’ lack

of response to the July 24, 2007 action plan. Id. Both Ms. Robinson and Mr. Alia testified at

deposition that Ms. Holmes’ age was not a factor at all in her termination. [See Robinson Dep.,

Def.’s Ex. 5, Doc. No. 11, p.32; Alia Dep., Def.’s Ex. 9, Doc. No. 11, p.17]. 

At the time of her discharge, Ms. Holmes was fifty-three years old. [Pl.’s Dep., Def.’s Ex.

1, Doc. No. 11, p.10]. Following Ms. Holmes’ discharge, Ms. Robinson transferred another

Branch Manager, Celisa Jackson (“Jackson”), who at the time was thirty-six years old, to the

West Chicago/Telegraph branch. [Robinson Dep., Def.’s Ex. 5, Doc. No. 11, p.27]. After

transferring Ms. Jackson to the branch, its operational performance immediately improved. Id. at

pp.29-30. 

Following her discharge from Chase, Ms. Holmes filed a charge of age discrimination

with the EEOC, who investigated her complaint and determined that there was insufficient

evidence to support her claim. [Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, p.19]. Ms. Holmes filed

the instant lawsuit in the Wayne County, Michigan, Circuit Court on November 19, 2008, which

Chase removed to this Court based upon diversity jurisdiction on February 20, 2009. [See Notice

of Removal, Doc. No. 1]. 

When asked to support her age discrimination claim with evidence, Ms. Holmes failed to

come up with anything objective: 

Q: Okay, what evidence or facts do you rely upon to support your claim of age

discrimination. . .? I think you indicated that you had gotten some

rumors? 

A: Oh, the rumors and comments?

Q: Right.

A: And things like that?

Q: Yeah, right, anything other than that? 

A: I guess aside from the fact that I was the last one standing, if you will, the

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oldest person in the group - - 

*****

Q: Anything else, ma’am?

A: Other than being the oldest one in the group?

Q: Yep. 

A: I don’t know. Sometimes I felt like it was a little different type of pressure

being put on me in terms of doing it and do it now, because of that that I

don’t think my peers got this in talking to them. So basically those two

things.

Q: All right. 

A: Other than a feeling, and rumor and innuendo, that’s it. I don’t have anything

else that I can say about that. 

Q: Okay, Well who is it that you believe discriminated against you on the basis of

your age?

A: I think it was Vanessa [Robinson] and Manny [Alia]. 

Q: Okay. Did Vanessa ever make any derogatory comments about your age? 

A: No, not that I know of. 

*****

Q: Are you aware of any derogatory comments that Manny Alia has ever made or

- - regarding - - 

A: (Interposing). No. 

Q: - - your age or anyone else’s age?

A: No. 

Q: Okay, so its nothing they said?

A: No. 

[Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, pp.172-74 (emphasis added)]. 

Following discovery, Chase filed the instant motion for summary judgment [Doc. No. 11]

on October 26, 2009, in which Chase seeks dismissal of Ms. Holmes’ complaint in its entirety. 

STANDARD OF REVIEW

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgement as a

matter of law.” FED. R. CIV. P. 56(c). The party seeking summary judgment has the initial

burden of informing the court of the basis for its motion and identifying those portions of the

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pleadings, depositions, answers to interrogatories, and admissions on file together with the

affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex

v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party who “must

set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)). 

ANALYSIS

Chase seeks dismissal of Ms. Holmes’ case. For the reasons that follow, the Court

GRANTS Chase’s motion [Doc. No. 11], and dismisses this action in its entirety. 

Ms. Holmes, who was fifty-three years of age at the time of her discharge from

employment with Chase, brings her age discrimination claim under Michigan’s Elliott-Larsen

Civil Rights Act, M.C.L. § 37.201 et seq. That statute provides, in relevant part: 

An employer shall not do any of the following:

(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate

against an individual with respect to employment, compensation, or a

term, condition, or privilege of employment, because or religion, race,

color, national origin, age, sex, height, weight, or marital status. 

M.C.L. § 37.2202(1)(a). 

Michigan courts “have used the prima facie test articulated by the Supreme Court in

McDonnell Douglas Corp. v. Green[, 411 U.S. 792 (1973)] as a framework for evaluating agediscrimination claims.” Town v. Mich. Bell Telephone Co., 455 Mich. 688, 695 (1997). First,

the employee has the burden to bring forth a prima facie showing of age discrimination. Id. If

the plaintiff meets their prima facie burden, the burden of production shifts to the employer, who

must proffer a legitimate, nondiscriminatory reason for the employee’s discharge. Id. Upon

satisfaction of the employer’s burden of production, the burden shifts back to the employee,

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who:

. . . must submit admissible evidence to prove that the employer’s

nondiscriminatory reason was not the true reason for the discharge and that the

plaintiff’s age was a motivating factor in the employer’s decision. Thus, the

employer must prove that the employer’s explanation was a pretext for

discrimination. 

Id. at 697 (emphasis added). 

In their instant motion for summary judgment [Doc. No. 11], Chase makes no argument

against Ms. Holmes’ prima facie case. Further, in her response brief [Doc. No. 13], Ms. Holmes

does not dispute that Chase had a legitimate, nondiscriminatory motivation - i.e., Ms. Holmes’

poor job performance - for Ms. Holmes’ discharge. Rather, the instant motion centers around

whether Ms. Holmes has proffered sufficient admissible evidence to raise genuine issues of

material fact regarding whether Chase’s proffered justification for Mr. Holmes’ termination was

a pretext for age discrimination. [See Def.’s Br., Doc. No. 11, pp.9-13; Pl.’s Br., Doc. No. 13,

pp.6-7]. The Court holds that Ms. Holmes has failed to meet this burden. 

Again, to successfully prove that Chase’s explanation for her discharge was a pretext for

age discrimination, Ms. Holmes “must submit admissible evidence to prove that the employer’s

nondiscriminatory reason was not the true reason for the discharge and that the plaintiff’s age

was a motivating factor in the employer’s decision.” Town, 455 Mich. at 697 (emphasis added). 

Further, it is not enough for Ms. Holmes to simply raise a genuine issue of material fact

regarding the pretextual nature of Chase’s proffered reasons. Instead, Ms. Holmes “must not

merely raise a triable issue that the employer’s proffered reason was pretextual, but that it was a

pretext for age. . . discrimination.” Lytle v. Malady, 458 Mich. 153, 176 (1998) (emphasis

added). The Lytle Court elaborated as follows: 

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[A] plaintiff must prove discrimination with admissible evidence, either direct or

circumstantial, sufficient to permit a reasonable trier of fact to conclude that

discrimination was a motivating factor for the adverse action taken by the

employer toward the plaintiff.

Id. (emphasis added). Michigan courts recognize three separate avenues by which a plaintiff can

show pretext: 

A plaintiff can establish that a defendant’s articulated legitimate,

nondiscriminatory reasons are pretexts (1) by showing that the reasons have 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. 

Feick v. County of Monroe, 229 Mich. App. 335, 343 (1998).

In the instant case, Ms. Holmes argues that four different pieces of evidence raise

genuine issues of material fact regarding the pretextual nature of Chase’s decision to terminate

her: 1) that Ms. Holmes’ replacement “was treated differently than her, based upon her age,”

[Pl.’s Br., Doc. No. 13, p.6]; 2) that Ms. Holmes was terminated only a few months into Ms.

Robinson’s tenure as her supervisor; 3) Ms. Holmes’ deposition testimony regarding “rumors”

circulating among Chase employees; and 4) Ms. Holmes’ subjective feelings that she was treated

differently than other employees by Ms. Robinson and by Mr. Alia. Ultimately, none of this

evidence satisfies Ms. Holmes’ burden of establishing a genuine issue of material fact that

Chase’s decision to terminate her was a pretext for age discrimination. 

I. Alleged Disparate Treatment of Ms. Holmes’ Successor

Ms. Holmes argues that her replacement, Ms. Jackson, “was clearly treated differently

than her, based on her age.” [Pl.’s Br., Doc. No. 13, p.6]. She argues that her review for the year

2006 resulted in a rating of “meets expectations” in six of seven categories [See Holmes 2006

Review, Pl.’s Ex. E, Doc. No. 13], and that this review’s outcome was roughly the same as that

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Ms. Jackson received on her 2008 review [See Jackson 2008 Review, Pl.’s Ex F, Doc. No. 13]. 

Thus, Ms. Holmes argues as follows: 

Ms. Jackson’s results with this Branch were virtually the same was [sic] Ms.

Holmes’s results. However, Ms. Holmes was terminated without being given the

chance to finish her 30-day review, hiring another personal banker and assistant

manager, and improving her numbers. Ms. Jackson was eventually given the

opportunity to receive additional staffing and improve her performance without

being terminated. 

[Pl.’s Br., Doc. No. 13, p.7]. 

None of this, however, establishes that Chase’s proffered reason for terminating Ms.

Holmes was pretextual, let alone a pretext for age discrimination. First, “[t]he isolated fact that a

younger person eventually replaces an older employee is not enough to permit a rebuttal

inference that the replacement was motivated by age discrimination.” Hedrick v. Western

Reserve Care System, 355 F.3d 444 (6th Cir. 2004). This is especially true here, as Ms. Holmes

admitted in her deposition that she was the oldest remaining branch manager in the area.

[See Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, p.71]. Logically, therefore, unless Chase went outside

of its available work force to fill Ms. Holmes’ position, her replacement would necessarily be

younger than her. 

Furthermore, Michigan courts have held that pretext is not established through

comparisons to a similarly-situated employee where the other employee’s “performance was

proportionately higher.” Town, 455 Mich. at 701. In this case, it is undisputed that Ms. Jackson

immediately achieved better results in the West Chicago/Telegraph branch than did Ms. Holmes. 

Nor does Ms. Holmes establish pretext by comparing her own 2006 evaluation with that

of Ms. Jackson in 2008. Quite simply, that Ms. Holmes received satisfactory ratings in 2006

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misses the point: outside of 2006, Ms. Holmes had consistently received unsatisfactory ratings,

and her ratings went back down again in 2007. Ms. Jackson’s insubordination - i.e., her

admitted failure to follow direct orders from her superiors as outlined in the July 24, 2007 action

plan [See Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, pp.171-72] - further undermines her arguments. 

Finally, despite Ms. Holmes’ arguments to the contrary, there is no evidence that Chase

gave Ms. Jackson any more resources than Chase made available to Ms. Holmes. While Ms.

Jackson did have a two additional Personal Bankers at her disposal than did Ms. Holmes, one of

those employees was hired - by Ms. Robinson after the May 2007 meeting - during Ms. Holmes’

tenure, and the other employee was only unavailable to Ms. Holmes because Ms. Holmes

admittedly failed to hire someone to fill the position. 

Even assuming, arguendo, that Ms. Holmes could show that Chase’s reasons for

replacing her with Ms. Jackson were pretextual, Ms. Holmes has made no showing that those

reasons were a pretext for age discrimination. Aside from the fact that Ms. Jackson was thirtysix at the time the fifty-three year old Ms. Holmes was terminated - a fact that, in and of itself

under Hedrick is irrelevant - Ms. Jackson has no evidence that her age had anything to do with

Chase’s decision to terminate her. Such evidence does not establish a pretext for age

discrimination. 

II. Ms. Holmes’ Termination After Only a Few Months Under Ms. Robinson

Ms. Holmes also argues that the short period of time she worked under Ms. Robinson

demonstrates the pretextual nature of Chase’s decision to terminate her: 

Additionally, it is notable that Ms. Robinson became Ms. Holmes’ district

manager in June 2007, only a couple [of] months before Ms. Holmes was

terminated. Ms. Robinson clearly did not give Ms. Holmes a chance to prove

herself in such a short amount of time. 

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 Further, Ms. Holmes admits that Ms. Robinson, as Ms. Holmes’ supervisor, attended the

meeting with Ms. Holmes and Mr. Alia in May of 2007. 

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[Pl.’s Br., Doc. No. 13, p.7 (internal citation omitted)]. Despite the fact that Ms. Holmes’ own

deposition shows that Ms. Robinson became her supervisor in May of 20072

, rather than June of

2007 [See Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, p.128], the fact that Ms. Robinson may not have

given “Ms. Holmes a chance to prove herself in such a short amount of time” is irrelevant. The

record is replete with evidence that Ms. Holmes was performing at an unacceptable level long

before Ms. Robinson became her superior. 

Further, while Ms. Holmes argues that she did not have enough time under Ms.

Robinson’s supervision to complete the tasks required of her in the July 24, 2007 action plan, it

is undisputed that on July 31, 2007 Ms. Holmes had not even bothered to begin adhering to the

plan. Finally, and most importantly, even if Ms. Robinson did terminate Ms. Holmes without

giving her a meaningful chance to complete the July 24, 2007 action plan, there is no evidence

that this fact demonstrates a pretext for age discrimination. 

III. Rumors Circulating Amongst Other Chase Employees

 In her deposition, Ms. Holmes outlined two separate instances where she was made

aware of “rumors” circulating amongst the employees at Chase regarding potential age

discrimination: 1) rumors that Chase wanted to terminate older, higher-paid employees to save

money [See Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, pp.71-72]; and 2) rumors that, during her

medical leave, others were speculating as to whom might take over as branch manager at the

West Chicago/Telegraph branch [See Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, pp.72-75]. Neither

of these “rumors” constitute admissible evidence demonstrating that Chase’s decision to

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 Additionally, the second of these statements - that others were speculating that Ms. Holmes may

not return as a branch manager following her medical leave - does nothing to show that Chase sought to

terminate Ms. Holmes due to her age. 

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terminate Ms. Holmes was a pretext for age discrimination. 

Again, under Town, Ms. Holmes has the burden to come forward with “admissible

evidence” tending to show that Chase’s decision was a pretext for discrimination. Town, 455

Mich. at 697 (emphasis added). The Federal Rules of Evidence define “hearsay” as follows: 

“Hearsay” is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted. 

FED. R. EVID. 801(c). Unless an exception applies, hearsay evidence is generally not admissible. 

FED. R. EVID. 802. In this case, both types of statements relied upon by Ms. Holmes are hearsay

- each is an out of court statement by a third party, and each is offered for its own truth: 1) that

Chase sought to terminate older, higher-paid employees; and 2) that others at Chase thought Ms.

Holmes would not return from her medical leave as a branch manager.3

The Sixth Circuit considered - and rejected - the admissibility of similar evidence

purported to demonstrate pretext in Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992). 

In Mitchell, an African-American employee filed an action against her employer, claiming she

was the victim of age and race discrimination. In support of her allegations, the plaintiff

supplied an affidavit describing how she had heard that other, white, employees had engaged in

similar conduct as the plaintiff was alleged to have committed, without being fired. Mitchell,

964 F.2d at 584. The Sixth Circuit rejected the plaintiff’s claim that such information evidenced

a pretext for discrimination: 

. . .[W]ith regard to Plaintiff’s hearsay Affidavit, the District Court correctly

found that the Affidavit was not a proper Rule 56(e) affidavit because it was not

made on personal knowledge and did not set forth “facts” that would be

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admissible into evidence. Even if the Court were to consider the Affidavit, the

statements contained therein are nothing more than rumors, conclusory

allegations and subjective beliefs which are wholly insufficient evidence to

establish a claim of discrimination as a mater of law. 

Mitchell, 964 F.2d at 584-85 (emphasis added). 

 In the instant case, as in Mitchell, Ms. Holmes freely admits that the substance of these

rumors are merely the speculation of her peers. [See Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, pp.71-

75]. Furthermore, unlike Mitchell, the statements proffered here are not even offered in the

context of a valid Rule 56(e) affidavit. Rather, Ms. Holmes relies on vague, inadmissible

second-hand reports of rumors in support of these statements, instead of coming forward with

affidavits attested to by the statements’ declarants. Therefore, these hearsay statements by Ms.

Holmes’ peers do not raise a genuine issue of material fact regarding Chase’s termination of Ms.

Holmes being a pretext for age discrimination. 

IV. Ms. Holmes’ Subjective Feelings

 Finally, in her deposition Ms. Holmes testified that she felt Ms. Robinson and Mr. Alia

were treating her differently than Ms. Holmes’ peers were treated by their superiors:

Sometimes I felt like it was a little different type of pressure being put on me in

terms of doing it and do it now, because of that that I don’t think my peers got this

in talking to them.

[Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, p.173]. Again, under Mitchell, “subjective beliefs. . . are

wholly insufficient to establish a claim of discrimination as a matter of law.” Mitchell, 964 F.2d

at 585; see also Fix v. Unisys Corp., 782 F.Supp. 343, 346 (E.D. Mich. 1991)(“Plaintiff’s bare

conclusory statements will not overcome a motion for summary judgment”). A similar attempt

to show a pretext for discrimination was rejected by the Michigan Supreme Court in Hazle v.

Ford Motor Co., 464 Mich. 456 (2001). In Hazle, the plaintiff felt that she was denied a

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promotion based upon her race. In rejecting her claim, the Hazle Court held as follows: 

The essence of defendant’s stated reasons for decision to hire [another] over

plaintiff was that they did not believe that plaintiff was qualified as [another] for

the office manager position. While plaintiff was not required to seek to show that

she was in fact more qualified that [another] in order to survive summary

disposition, plaintiff was required to demonstrate that the evidence in this case

would permit a jury to find that defendants’ explanation was a pretext for race

discrimination. Other than her subjective claim that she was more qualified than

[another], plaintiff has offered nothing to support her claim that defendants acted

with racial animus. In our view, the following testimony from plaintiff’s

deposition accurately captures the dispute in this case: 

Q: Why do you believe that your race had anything to do with the selection of

[another] over you?

A: Well, because I felt I was very qualified for the position and just from my own

observation I just feel that I’m a better qualified person. They hired a

Caucasian woman. So I felt it was a racial issue.

Q: Do you have any other reason, any reason at all for thinking that your race had

anything to do with the selection of [another] over you?

A: No. 

Hazle, 464 Mich. 456, 476-77 (emphasis added).

The deposition testimony quoted by the Hazle Court - deemed insufficient to show

discriminatory pretext - is analogous to that proffered by Ms. Holmes in the instant case. When

asked to support her assertion that Ms. Robinson and Mr. Alia were harder on her than on other

employees, Ms. Holmes admitted that her proof was limited to “a feeling, and rumor and

innuendo, that’s it.” [Pl.’s Dep., Def.’s Ex. 1, Doc. No. 11, p.173]. Such does not establish

discriminatory pretext. 

CONCLUSION 

For the reasons explained above, the Court HOLDS that Ms. Holmes has failed to

demonstrate a genuine issue of material fact that Chase’s proffered reasons for terminating Ms.

Holmes were a pretext for age discrimination. Therefore, the Court GRANTS Chase’s Motion

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for Summary Judgment [Doc. No. 11], and DISMISSES this case in its entirety.

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: January 20, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record on

January 20, 2010, by electronic and/or ordinary mail.

S/Jennifer Hernandez 

Case Manager

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