UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT DIEBEL, 

 Plaintiff, No. 08-13823 

 Hon. Gerald E. Rosen 

v. Mag. Donald A. Scheer 

L&H RESOURCES, LLC, a Michigan 

Limited Liability Company, 

 Defendant. 

_____________________________/ 

OPINION AND ORDER REGARDING DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT

At a session of said Court, held in the 

U.S. Courthouse, Detroit, Michigan on 

 February 17, 2010 

PRESENT: Honorable Gerald E. Rosen 

Chief Judge, United States District Court 

I. INTRODUCTION 

Plaintiff Robert Diebel commenced this suit against his former employer, 

Defendant L&H Resources, LLC (“L&H”), claiming that L&H discriminated against him 

on the basis of age in violation of the Age Discrimination in Employment Act (ADEA), 

29 U.S.C. § 621 et seq., and the Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. 

Laws § 37.2101 et seq., when the company failed to recall him from layoff status for 

several months. Through the present motion, L&H seeks summary judgment in its favor 

on both of Plaintiff’s claims. Plaintiff has responded to Defendant’s Motion, to which 

Response, Defendant has replied. 
 2

Having reviewed the parties’ briefs and accompanying exhibits, as well as the 

record as a whole, the Court finds that the relevant allegations, facts, and legal arguments 

are adequately presented in the written record, and that oral argument would not aid the 

decisional process. Accordingly, the Court will decide Sears's motions “on the briefs.” 

See Local Rule 7.1(e)(2), U.S. District Court, Eastern District of Michigan. This Opinion 

and Order sets forth the Court's ruling. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

Plaintiff Robert Diebel, born in 1948, is a retired journeyman bricklayer. From 

approximately 1992 until his early retirement in March 2008, he was employed by 

Defendant L&H, a large commercial mason contractor headquartered in Livonia, 

Michigan.1

 L&H is primarily engaged in masonry projects in metropolitan Detroit, 

though it is also takes on jobs in out-state Michigan, and portions of Ohio and Indiana.2

 

The company employs approximately 250 bricklayers. L&H is a signatory to a collective 

bargaining agreement (“CBA”) with the Bricklayers and Allied Craftworkers Union, 

Local No. 1 of Michigan (“Local #1”), of which Plaintiff is a member. Local #1 includes 

 

1

 Plaintiff sought concurrence to add a related entity, Leidal & Hart Mason Contractors, 

Inc. as a defendant in this action. L&H declined to stipulate to the addition. Plaintiff 

subsequently filed a separate suit against Leidal & Hart Mason Contractors, Inc. in state 

court. That action is still pending. 

2

 Masonry work involves the laying of brick, block and stone to various structures such as 

walls and building facades. There is no specialization among L&H bricklayers as to what 

type of masonry work they will do. Every bricklayer employed by the company does all 

types of masonry work, though some testimony in the record suggests that particular 

foremen have preferences for particular bricklayers, with strengths or weaknesses in 

different types of masonry work. 
 3

five counties in metropolitan Detroit. L&H is also a signatory to CBAs with bricklayer 

unions in out-state Michigan (“Local #9”), as well as other locals in Indiana and Ohio.3

During nearly sixteen years of employment with L&H, Plaintiff was rarely if ever 

laid off for substantial periods of time. Then, in November 2007, Plaintiff was laid off 

and not recalled to work for nearly twelve weeks.4

 At L&H, it is typically left up to the 

job foreman or the field operations superintendent to determine which bricklayers are 

directly transferred to another job, which are laid off and which will subsequently 

recalled to work. (Harman Dep. 22:6-17, June 11, 2009.) In this case, Plaintiff was laid 

off by his foreman, Mark LaFrance. In the months that followed, Plaintiff collected 

unemployment benefits but continued to call L&H to inquire about whether there was 

any work for him. Plaintiff states that he called LaFrance “constantly,” or about once a 

week through December, then once in January; and he called Mark Butscher, the field 

 

3

 In jobs outside the local metropolitan area, L&H is subject to different local CBAs. 

Each CBA includes terms governing pension contributions, hiring, wages, hours, 

overtime and termination of employment. These local CBAs usually also include a 

requirement that L&H employ a certain percentage of local union members on projects in 

those areas. Wage rates are usually less than wage rates in the metropolitan Detroit area 

covered by Local #1. L&H employees from the Detroit region may accept jobs outside 

metropolitan Detroit subject to local CBA requirements governing wages and benefits. 

4

 Previously the same year, Plaintiff was laid off twice: once for three weeks in February 

2007, and again for three weeks in April 2007. In both cases, he was laid off by the job 

foreman, Thomas Burke. Though the stated reason for the layoffs was lack of work, 

Plaintiff later testified that he believed Burke singled him out to be laid off before the 

jobs were completed because Burke did not like Plaintiff. (Pl. Dep. 23:23-25:4.) 

Plaintiff also testified that he believed age motivated those decisions, insofar as 

Plaintiff’s age was connected to the foreman’s complaint that Plaintiff was “not 

producing”–i.e., Plaintiff was not efficiently finishing his work. (Pl. Dep. 35:1-36:10.) 
 4

operations superintendent “a couple times.” (Pl. Dep. 39:10-18.)5 Ultimately, in 

February 2008 after having been on layoff for approximately 100 days, Plaintiff put in for 

early retirement because he “couldn’t live on unemployment [benefits].” (Pl. Dep. 40:20-

23.) His retirement became effective March 1, 2008. This action arises from Plaintiff’s 

claims that he was effectively “forced” to take an early retirement because of age-related 

bias and that as a result his monthly pension check was reduced by several hundred 

dollars from the amount he would have received had he been able to work until he was 

eligible to retire with full pension benefits. 

Plaintiff’s allegations of age discrimination stem first from comments made 

several months before his November 2007 layoff. When Plaintiff was between jobs in 

April 2007 he met with Michael Harman, the president and co-owner of L&H. 

According to Plaintiff, Harman told him that Thomas Burke, a foreman, and Mark 

Mulka, a sub-foreman, had complained about Plaintiff’s workmanship: they believed 

Plaintiff was “not producing.” (Pl. Dep. 25:18-26:1.) Harman later testified at his 

deposition that he did not recall specifically receiving complaints about Plaintiff’s work, 

“but everybody complains about everything, so I’m sure there’s times when people 

complained about it.” (Harman Dep. 20:22-21:2.)6

 Plaintiff further recalled: “[Harman] 

 

5

 Although Plaintiff testified that he got “no response” from Butscher, Butscher testified 

that he spoke to Plaintiff on the phone and told him that “the work was slow at that time.” 

(Compare Pl. Dep. 39:16-23 and Butscher Dep. 17:2-4.) 

6

 Mark Butscher testified that in his experience as field operations superintendent he 

observed Plaintiff’s work and never had any problems or concerns with it. (Butscher 

Dep. 10:23-25, June 11, 2009.) He did however report that Plaintiff may have “slowed 
 5

told me that he thought I had gotten too comfortable because I was there for so many 

years and that he didn’t have room for that, that it was turning into a competitive business 

and he was building a younger company.” (Pl. Dep. 26:19-23.) Harman stated that he 

did not recall saying anything to Plaintiff to that effect. (Harman Dep. 24:16-17; 25:4-5.) 

Instead, he testified: 

I remember sitting down and talking with [Plaintiff], but I was very 

sensitive to his needs coming in. He came in a lot and talked, and I don’t 

recall him ever—I don’t recall saying anything like, Bob, we’re going to 

build a younger company. We may have talked about bettering our 

company and him being a part of it. I don’t recall saying, a younger 

company, no. 

(Harman Dep. 33:20-25.) Plaintiff claims that Harman also inquired about Plaintiff’s 

plans to retire and told him he was going after younger bricklayers; Harman allegedly 

said that Plaintiff should “think about getting too comfortable with [his] position.” (Pl. 

Dep. 27:2-14.) Harman later testified, “I don’t remember having a discussion about 

[Plaintiff’s plans for retirement]—he may have made mention of it, but I couldn’t tell 

you.” (Harman Dep. 24:4-8.) 

Following this conversation, Plaintiff was hired to work on a job in Toledo, Ohio. 

In August 2007 he was transferred to a job Detroit, building corporate headquarters for a 

company called ITC. There, Plaintiff worked with a crew of roughly ten bricklayers, 

 

down” when he reached the end of a job: “Some guys, when they get down to the end of 

the job they like to, instead of getting it done, they like to slow down, and [Plaintiff] 

could have done that a few times.” (Butscher Dep. 11:23-12:1.) Butscher testified that 

he had received word from one of Plaintiff’s foremen on a few projects in spring 2007 

that Plaintiff had “slowed down” in this sense. (Butscher Dep. 11:5-9.) 
 6

until he was laid off by the job’s foreman, Mark LaFrance, on November 19, 2007. 

Although Plaintiff claims that there was still work to be done on the project when he was 

laid off, LaFrance explained in his deposition that: 

The vast majority of the job was completed. I hung on to [Plaintiff] longer 

than most people that were there before him because he is a good bricklayer 

and we had some fancy things to finish. After those were complete, I was 

left with two apprentices and my right-hand man, who is a sub-foreman, to 

lay cap stones for the next several weeks. So, that’s who was left after him. 

(LaFrance Dep. 12:18-25, June 4, 2009.) At least four ITC crew members who were laid 

off from the ITCjob around the same time as Plaintiff—Anthony Kubeck (born 1966), 

Joel Woodward (born 1981), Chris Darke (1982), and Dennis Hogan (born 1959)—were 

either immediately transferred or soon thereafter recalled to work on a new job building 

the Conner Creek Academy.7

 At least two of these individuals were recalled to work 

because they were specifically requested by a particular foreman. (Butscher Dep. 20:20-

25; 22:3-7.) Meanwhile, others who were laid off from the ITC crew—Donald Crawford 

(born 1947) and Christopher Crawford (born 1971)—subsequently spent over 100 days 

on layoff. 

Plaintiff called LaFrance to ask about available work and specifically inquire 

about the Conner Creek Academy job in the weeks that followed. LaFrance told him that 

the project involved heavy block work and thus was inappropriate for Plaintiff. Plaintiff 

took this to mean that LaFrance was referring to Plaintiff’s age. (Pl. Dep. 46:8-47:8.) 

 

7

 Although Plaintiff originally claimed that he thought some newly-hired bricklayers were 

also called to work on the Conner Creek Academy project, hire dates for the entire crew 

show that none were new-hires. 
 7

LaFrance later testified that he did not consider recalling Plaintiff to work on the Conner 

Creek job because: 

Bob is a self-proclaimed bricklayer. Bob is a very good bricklayer. Bob 

isn’t a very good block layer. Depending on that particular job, we had to 

lay an astronomical amount of block per man, and that is not up [Plaintiff’s] 

alleyway, I guess. . . . That’s my opinion. 

(LaFrance Dep. 17:10-16) (emphasis added).8

 Mark Butscher further testified that 

Plaintiff was not recalled to work more generally because the company was experiencing 

an overall slowdown (Butscher Dep. 17:2-4), and he was under the impression that 

Plaintiff had already or would soon retire: “I thought [Plaintiff] had retired because I 

hadn’t heard from him. Usually, an employee that wants to work, they’ll call me every 

day.” (Butscher Dep. 19:11-13.)9

On February 20, 2008, Plaintiff filed a complaint with the Equal Employment 

Opportunity Commission (EEOC).10 The EEOC did not make a determination as to the 

merits of Plaintiff’s claims; instead, the Commission terminated its investigation 

“because efforts to conciliate this matter under Section 7(d) of the ADEA have been 

unsuccessful.” (Pl. Resp. Ex. M.) It issued a right-to-sue letter on June 9, 2008. Plaintiff 

 

8

 LaFrance later clarified that Plaintiff “laid a fine block,” but “whether it was . . . 1986, 

1976, or 2007, Bob was the same guy . . . . he could never lay a lot of block.” (LaFrance 

Dep. 17:24-18:5) (emphasis added). 

9

 Joel Woodward, a fellow bricklayer, testified at deposition that Plaintiff also told 

everyone at the ITC project that he planned to collect unemployment for a few months 

then retire. (Woodward Dep. 22:17-23:1, June 4, 2009.) 

10 Plaintiff did not avail himself of the grievance procedures available to him as a 

member of the union under the CBA because he claimed he did not know that such 

procedures existed. (Pl. Dep. 8:2-4.) 
 8

filed the instant action on September 5, 2008, alleging age discrimination. Specifically, 

he argues that L&H laid him off and did not recall him to work because of his age. In 

support of this contention, he cites the foregoing incidents and further alleges that L&H 

did not actually experience a work slowdown since the company was filling positions on 

over 30 jobs in late 2007 and early 2008 while Plaintiff was waiting to be recalled from 

layoff status. Plaintiff further alleges that at least some of the jobs available during the 

at-issue time period were staffed by employees from non-local unions or new hires. 

L&H counters that Plaintiff cannot satisfy his burden of proof where: (1) Plaintiff was 

never actually terminated; and (2) L&H experienced an actual work slow down due to the 

economic downturn, resulting in a work force reduction. The company is now smaller, 

but maintains essentially the same age profile, with roughly the same percentage of 

employees aged 50 to 59. Plaintiff retired on March 1, 2008, effectively ending any 

possibility of being recalled from layoff status. 

III. ANALYSIS

A. Legal Standard – Rule 56(c)

 Through the present motion, L&G seeks summary judgment in its favor on each of 

Plaintiff's claims. Summary Judgment under Rule 56(c) of the Federal Rules of Civil 

Procedure is appropriate “if the pleadings, the discovery and disclosure materials on file, 

and any affidavits show that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). 
9

 As the Supreme Court has explained, “the plain language of Rule 56(c) mandates 

the entry of summary judgment, after adequate time for discovery and upon motion, 

against a party who fails to make a showing sufficient to establish the existence of an 

element essential to that party's case, and on which that party will bear the burden of 

proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). 

In deciding a motion brought under Rule 56, the Court must view the evidence in a light 

most favorable to the non-moving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th 

Cir. 2006). Yet, the non-moving party “may not rely merely on allegations or denials in 

its own pleading,” but “must—by affidavits or as otherwise provided in [Rule 56]—set 

out specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). Moreover, 

any supporting or opposing affidavits “must be made on personal knowledge, set out 

facts that would be admissible in evidence, and show that the affiant is competent to 

testify on the matters stated.” Fed. R. Civ. P. 56(e)(1). Finally, “the mere existence of a 

scintilla of evidence that supports the nonmoving party's claims is insufficient to defeat 

summary judgment.” Pack, 434 F.3d at 814 (alteration, internal quotation marks, and 

citation omitted). 

B. Standards Applicable to Age Discrimination Cases Under the ADEA 

The ADEA provides that it is unlawful for an employer “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). “The ultimate question in every employment 
10

discrimination case involving a claim of disparate treatment is whether the plaintiff was 

the victim of intentional discrimination.” Schoonmaker v. Spartan Graphics Leasing, 

LLC, No. 09-1732, — F.3d —, 2010 WL 364185, at *2 (6th Cir. Feb. 3, 2010) (citing 

Geiger v. Tower Automotive, 579 F.3d 614, 620 (6th Cir. 2009)). 

A plaintiff may establish a violation of the ADEA in one of two ways: direct or 

circumstantial evidence. See Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 

405, 410 (6th Cir. 2008). “Direct evidence is evidence that proves the existence of a fact 

without requiring any inferences.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 

F.3d 544, 548 (6th Cir. 2004). It is evidence “from the lips of the defendant proclaiming 

his or her animus.” Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998) (internal 

quotation and citation omitted). “Circumstantial evidence, on the other hand, is proof 

that does not on its face establish discriminatory animus, but does allow a fact-finder to 

draw a reasonable inference that discrimination occurred.” Geiger, 579 F.3d at 622 

(quoting Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en 

banc)). The Supreme Court recently held that under either method of proof, the burden 

of persuasion remains on the ADEA plaintiff to show that “age was the ‘but-for’ cause of 

the employer’s adverse decision.” Gross v. FBL Financial Services, Inc., — U.S. —, 

129 S. Ct. 2343, 2351 (2009).11

 

11 Until recently, the Sixth Circuit applied the burden-shifting framework of McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas Dept. of Comm. 

Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981), in both direct evidence and 

circumstantial evidence ADEA claims. Geiger v. Tower Automotive, 579 F.3d 614, 621 

(6th Cir. 2009) (citing Laderach v. U-Haul of Nw. Ohio, 207 F.3d 825, 829 (6th Cir. 
11

C. Plaintiff Cannot Make Out His Claim of Age Discrimination.

 1. Direct Evidence

 Plaintiff fails to offer direct evidence that supports his age discrimination claim. 

He offers no evidence that connects L&H’s failure to recall Plaintiff from layoff for 

several months in December 2007 and early 2008 to Plaintiff’s age. Instead, Plaintiff 

cites Harman’s comments at the April 2007 meeting that he was interested in building a 

younger company, Harman’s inquiries into Plaintiff’s plans to retire, and LaFrance’s 

comment that Plaintiff would not want a heavy block job. Even if such statements were 

made, they do not constitute direct evidence of age discrimination. 

 A statement proffered as direct evidence of age-based bias must not be “isolated, 

ambiguous, or abstract” and must be a remark “by the employer.” Wharton v. GormanRupp Co., 309 Fed. Appx. 990, 995 (6th Cir. 2009). “A discriminatory comment is 

attributable to the employer when it is made by a ‘decision maker.’” Id. at 995-96 (citing 

Coburn v. Rockwell Automation, Inc., 238 F. App’x 112, 118 (6th Cir. 2007) (noting the 

“vital difference” between discriminatory statements by corporate decision makers and 

“stray remarks” by personnel who are unrelated to the decision making process). 

 

2000)). However, in Gross the Supreme Court held that the “burden of persuasion does 

not shift to the employer to show that it would have taken the action regardless of age, 

even when a plaintiff has produced some evidence that age was one motivating factor in 

that decision.” Gross, 129 S. Ct. at 2352. The Sixth Circuit later clarified that “Gross

overrules our ADEA precedent to the extent that cases applied Title VII’s burden-shifting 

framework if the plaintiff produced direct evidence of age discrimination,” but that courts 

in this circuit should continue to apply the burden-shifting framework when a plaintiff 

relies on circumstantial evidence. See Geiger, 579 F.3d at 621-22 (6th Cir. 2009); see 

also Gross, 129 S. Ct. at 2351 n.4. 
12

“Statements by non-decisionmakers, or statements by decisionmakers unrelated to the 

decisional process itself cannot suffice to satisfy the plaintiff's burden . . . of 

demonstrating animus.” Geiger, 579 F.3d at 620-21 (internal citations and quotations 

omitted). Comments that directly concern the specific hiring decision at issue, or 

comments from a person that witnessed all or most aspects of the hiring process, may 

also be direct evidence of age discrimination, even if the speaker did not himself have a 

hand in the decision. Wharton, 309 Fed. Appx. at 996. 

 Here, Plaintiff has presented no evidence that Harman was involved in the 

decision to lay Plaintiff off. Harman testified that although he possessed the general 

authority to hire and fire employees, it was not his practice to hire and fire nonmanagement employees—i.e., bricklayers. Decisions as to which bricklayers were laid 

off and recalled from layoff were squarely within the superintendent and foremen’s 

purview. In addition, Mark Butscher, the superintendent who oversees which employees 

are recalled to work, testified that Harman never spoke to him about Plaintiff or about a 

general interest in hiring younger employees. Thus, although Harman was a 

“decisionmaker” within the company in the general sense, the record does not support the 

inference that he was in any way linked to the decision not to recall Plaintiff or that he 

even witnessed all or part of the hiring decision at issue. Plaintiff’s claims are also 

significantly weakened by the fact that Harman made the alleged offending remarks in 

April 2007, after which Plaintiff was hired to work on two more jobs lasting almost seven 
13

months, before being laid off. Harman’s general statements, even if taken as true, appear 

to be isolated remarks, unrelated to the staffing decisions made over a half-year later. 

 Harman’s questions about Plaintiff’s plans for retirement are similarly insufficient 

to constitute direct evidence. In Ercegovich v. Goodyear, 154 F.3d 344 (6th Cir. 1998), 

the Sixth Circuit explained that while some employer’s comments about retirement may 

well be relevant to a showing of age discrimination, overall courts should take a flexible 

approach to assessing the relevancy of age-related remarks: “[T]he courts must carefully 

evaluate factors affecting the statement’s probative value, such as ‘the declarant's position 

in the corporate hierarchy, the purpose and content of the statement, and the temporal 

connection between the statement and the challenged employment action[.]” Id. at 357 

(citing Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir. 1997)). In this 

case, although Harman held a top position in the L&H hierarchy, and made the alleged 

comments about Plaintiff’s retirement in the context of a conversation about Plaintiff’s 

place at the company, there is virtually no temporal connection between his alleged 

queries and Plaintiff’s subsequent layoff. Plaintiff nevertheless argues that Harman’s 

questions about retirement prove the existence of age-related bias without requiring any 

inferences. In support of this argument, he cites Wharton v. Gorman-Rupp Co., 309 Fed. 

Appx. 990 (6th Cir. 2009). Wharton is inapposite here: in that case, the plaintiff, Sharon 

Wharton, sued her former employer claiming that the employer’s rejection of her 

application for a position of executive administrative assistant was motivated by agebased discrimination. Id. at 991. Wharton based her claim in part on allegations that: 
14

Approximately two months after her interview, . . . [the vice president for 

human resources] told her that, although she performed very well at the 

interview, [the employer] did not select her for the position because “[w]e 

were looking down the road, we wanted longevity.” She then allegedly 

asked what he meant by “longevity.” [The vice-president] purportedly 

responded that “[w]e’re both baby boomers,” asked how old she was and 

how much longer she had to work before she retired, and remarked that she 

would be retiring “before too long” and that the company “went with a 

younger person.” 

Id. at 992. The employer asserted that Wharton’s eminent retirement was one of the 

bases for its decision not to hire her. Id. In the present case, Harman’s alleged comments 

were both far more ambiguous and they were not made in the context of a discussion 

about a specific hiring decision. Instead, they were made a full half-year before Plaintiff 

was laid off. In addition, there is no evidence that Harman had any direct knowledge of 

the circumstances surrounding Plaintiff’s layoff beyond the general understanding that 

work was slowing down. Finally, given the good relationship Plaintiff appeared to have 

with L&H management, it seems far likelier that any queries about Plaintiff’s long-term 

plans were “more of a friendly inquiry than a covert attempt to force retirement.” 

Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997). 

 Last, Plaintiff’s allegation that LaFrance’s comments about the heavy block job 

constitute direct evidence is inaccurate. As the Sixth Circuit has explained, “[m]ere 

personal belief, conjecture and speculation are insufficient to support an inference of age 

discrimination.” Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th 1997). Here, 

Plaintiff provided only his own opinion as to why LaFrance did not think the Conner 

Creek Academy job was appropriate for Plaintiff: “The last time I talked to [LaFrance] he 
15

said it was a heavy-block job and I didn’t want to be there anyway. Meaning because of 

my age, just too heavy of a job.” (Pl. Dep. 46:8-10) (emphasis added). Apart from 

Plaintiff’s personal belief, there is no evidence in the record that LaFrance actually told 

Plaintiff that the Conner Creek Academy job was unavailable to him because of 

Plaintiff’s age. On the contrary, LaFrance clearly indicated that he did not choose to 

transfer Plaintiff directly to the next job or later recall him from layoff because he 

considered Plaintiff inefficient at laying block, and the job required an employee that 

could lay a lot of block in a limited period of time. Thus, LaFrance’s statement that 

Plaintiff would not want to work on the Conner Creek Academy job is not direct 

evidence of age discrimination. 

 2. Circumstantial Evidence

 As outlined above, in the absence of direct evidence of age discrimination, a 

plaintiff may make a claim by circumstantial evidence. Under this method, the Title VII 

burden-shifting framework applies. Schoonmaker, 2010 WL 364185, at *2. Thus, to 

make out a prima facie case, the plaintiff must first show that: (1) he was a member of 

the protected class; (2) he was qualified for his job; (3) he suffered an adverse 

employment action; and (4) either he was replaced by a person outside the protected 

class, or he was treated differently than a similarly situated non-protected employee. 

Mickey v. Zeidler Tool and Die Co., 516 F.3d 516 (6th Cir. 2008). If the plaintiff 

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

nondiscriminatory reason for its employment action. Martin v. Toledo Cardiology 
16

Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008) (citing Kline v. Tenn. Valley Auth., 

128 F.3d 337, 348 (6th Cir. 1997)). Once the defendant meets this burden, “the plaintiff 

must produce sufficient evidence from which the jury may reasonably reject the 

employer’s explanation.” Id. at 410-11 (citing Manzer v. Diamond Shamrock Chemicals 

Co., 29 F.3d 1078, 1083 (6th Cir.1994)). 

i. Prima Facie Case

 L&H does not dispute that Plaintiff can satisfy the first and second elements of a 

prima facie case of age discrimination. Plaintiff was over 40 years old at the time of the 

events in this case and, thus, he was a member of the protected class. Plaintiff also 

satisfies the second criterion in that L&H foremen and the superintendent generally 

acknowledged that Plaintiff was qualified as a bricklayer. The parties do, however, 

dispute that Plaintiff satisfied the third and fourth elements, i.e., whether Plaintiff 

suffered an adverse employment action, and whether he was replaced by a younger 

worker or treated differently from similarly situated, non-protected employees. 

First, the Court evaluates whether L&H’s failure to recall Plaintiff from layoff 

constituted an adverse employment action. L&H argues that because Plaintiff was never 

“forced” to retire, he cannot satisfy this element. “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). The Sixth Circuit has also held that an 

employer’s decision to lay off an employee and never recall her may also constitute an 

adverse employment action, even if the layoff is not technically the same as termination 
17

or discharge. Id. at 494-95. In Vincent, the Court found even though the laid off 

employee was not formally terminated, there was no question that the employer made the 

initial decision to lay her off, and that this decision was “adequate to satisfy the 

requirement of an adverse employment decision.” Id. at 495. In this case, the parties do 

not dispute that Plaintiff was laid off from the ITC job in November, and that he was not 

recalled in the months that followed. Therefore the Court finds, as the Sixth Circuit did 

in Vincent, that being laid off from a job is sufficient evidence of an adverse employment 

action to satisfy the third element of a prima facie age discrimination case even if there is 

a possibility that the employee may eventually be recalled to work. 

 The Court next turns to whether Plaintiff has shown that he was either replaced by 

a person outside the protected class, or treated differently than a similarly situated nonprotected employee. In Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir. 1990), the Sixth 

Circuit held that when work force reductions by the employer are a factor in the adverse 

employment decision, the fourth element of the McDonnell Douglas test is modified to 

require the plaintiff to provide “additional direct, circumstantial, or statistical evidence 

tending to indicate that the employer singled out the plaintiff for discharge for 

impermissible reasons.” Id. at 1465. The Barnes Court further explained that 

A work force reduction situation occurs when business considerations 

cause an employer to eliminate one or more positions within the company. 

An employee is not eliminated as part of a work force reduction when he or 

she is replaced after his or her discharge. However, a person is not replaced 

when another employee is assigned to perform the plaintiff's duties in 

addition to other duties, or when the work is redistributed among other 

existing employees already performing related work. A person is replaced 
18

only when another employee is hired or reassigned to perform the plaintiff's 

duties. 

Id. 

 In this case, L&H has asserted that work force reductions played a role in the 

decision not to recall Plaintiff from layoff for several months. In support of this 

argument, L&H supplies the affidavit of Brad Leidal, the secretary and treasurer of L&H, 

who attests that for the three months following November 2007 the workload in the 

Detroit area for L&H-employed bricklayers was reduced by 14.2%, 9.2%, and 39.7% 

respectively. (Leidal Aff. ¶ 9.) Leidal further states that after analyzing the L&H 

workforce according to age, “[t]he percentage of bricklayers employed by L&H, even 

with the reduction in staffing from calendar year 2007 through calendar year 2008, 

remains unchanged at (in [Plaintiff’s] age category) 18% of the total bricklayer number 

of employees.” (Leidal Aff. ¶ 10.)12 In opposition, Plaintiff provides his own analysis of 

 

12 Leidal also cites two charts, which show an overall decrease in monthly contractor 

hours from 13,122 in October 2007 to 6,071 in March 2009, (Def. Mot. for Summ. J. Ex. 

9), and show that the company went from having 152 bricklayers working in October 

2007 to 72 bricklayers working in March 2008 (Def. Mot. for Summ. J. Ex. 11). These 

charts—Exhibits 9 and 11—along with Exhibit 10, a chart of monthly hours logged for 

January 2006 through May 2009, are unauthenticated summaries of payroll accounting 

documents. Rule 56(e) of the Federal Rules of Civil Procedure mandates that affidavits 

or other matters supporting a motion for summary judgment must contain admissible 

evidence. Admissibility is determined according to the Federal Rules of Evidence. 

Documents that do not satisfy this requirement must be disregarded. Michigan Paytel 

Joint Venture v. City of Detroit, 287 F.3d 527, 532 (6th Cir. 2002). Plaintiff argues that 

these charts are inadmissible. The Court agrees. 

L&H counters that the charts are admissible as summaries of voluminous writings 

(i.e., 1,200 pages of documents produced by L&H during discovery), pursuant to Rule 

1006 of the Federal Rules of Evidence. However, under Rule 1006, a summary must be 

“accurate, authentic and properly introduced before it may be admitted into evidence.” 
19

L&H’s personnel data for the period Plaintiff spent on layoff, concluding that there were 

at least 32 active job sites between November 20, 2007 and March 1, 2008. This does not 

refute the evidence that L&H was experiencing a slowdown in overall contract hours 

worked and as a result reduced the number of bricklayers actively on a job. Even if L&H 

continued to operate jobs during the period at issue, Leidal’s testimony that L&H actually 

reduced its active workforce remains uncontroverted. The Court thus finds that work 

force reduction was a factor in the decision to lay Plaintiff off and to keep him on layoff 

for several months. Plaintiff must accordingly present “additional direct, circumstantial, 

or statistical evidence tending to indicate that the employer singled out the plaintiff for 

discharge for impermissible reasons.” Barnes, 896 F.2d at 1465. 

 

Martin v. Funtime, Inc., 963 F.2d 110, 115-16 (6th Cir. 1992) (quoting United States v. 

Scales, 594 F.2d 558, 563 (6th Cir.), cert. denied, 441 U.S. 946, 99 S. Ct. 2168 (1979). 

Neither the charts nor the underlying documents have been properly introduced, since 

L&H has proffered no foundation for either. Even if the company produced the 

underlying payroll accounting documents in discovery and Plaintiff did not question their 

admissibility at that time, as Plaintiff points out, documents obtained through discovery 

do not automatically become part of the summary judgment record. See Hoffman v. 

Applicators Sales & Services, Inc., 439 F.3d 9, 14-15 (1st Cir. 2006) (affirming exclusion 

of chart purporting to summarize data disclosed during discovery where the data itself 

was never introduced into the summary judgment record). Moreover, the Court is unable 

to assess the reliability or authenticity of the summarizing charts, even if the underlying 

documents would be admissible at trial. The preparer of the charts is not named and the 

exhibits do not reference any range of pages in the underlying accounting documents. 

Unlike the summarized personnel records in Martin, which were compiled by compliance 

officers who testified to their accuracy and authenticity, there is absolutely no foundation 

from which the Court could evaluate the charts’ admissibility. Accordingly, the Court 

will not consider them as part of the summary judgment record. Leidal’s affidavit 

however is admissible. 
20

 Plaintiff argues that other similarly-situated bricklayers were treated more 

favorably than Plaintiff because L&H had several opportunities to recall Plaintiff to 

work, but instead opted to hire other bricklayers who were substantially younger than 

Plaintiff.13 In support of this contention, Plaintiff relies primarily on his own crossreference of L&H’s personnel information report, which provides the age and hire date 

for L&H employees, with job labor reports for the period of Plaintiff’s layoff (November 

19, 2007 through March 1, 2008). (Pl. Resp. Ex. K.) Specifically, Plaintiff analyzes 34 

jobs where he claims L&H “could have assigned plaintiff to work, but refused to do so.” 

(Pl. Resp. 10.) The resulting chart lists almost all employees staffed on projects during 

the relevant months who are at least seven years younger than Plaintiff, i.e., born in 1955 

or later.14 Plaintiff does not include bricklayers born before 1955 who were staffed on 

 

13 In the Sixth Circuit, an age difference of more than six years is considered 

“substantially younger.” Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 

2003). 

14 The Court questions Plaintiff’s methodology in compiling this cross-reference chart. 

Plaintiff appears to include some employees hired outside the relevant period, i.e., those 

hired after Plaintiff’s effective retirement on March 1, 2008. (See Pl. Resp. Ex. K at pp. 

3, 4, 7, 10, 12, 14, 15, 17, 18.) He also includes some bricklayer apprentices in his tally, 

though apprentices are generally paid significantly less than journeyman bricklayers and 

are thus not similarly situated. (See Pl. Ex. K. at pp. 3, 4, 9, 10.) In other places, 

Plaintiff inexplicably omits certain employees: for example, for the out-state job entitled 

“Ashley Terrace” in Ann Arbor, Michigan, Plaintiff’s chart lists only one employee while 

the job records report indicates that at least seven bricklayers (including a sub-foreman, 

and two employees of similar ages to Plaintiff) were staffed on that job. (See Pl. Resp. 

Ex. K at p. 10.) While there may have been a certain logic to compiling the crossreference chart in this way, the Court is unable to decipher exactly what that logic was. 

Finally, the Court notes that the task of deciphering the chart is complicated by the fact 

that it is not organized alphabetically by job title or otherwise arranged in the order in 

which the jobs appear in the L&H records. And within each job on Plaintiff’s chart 
21

multiple jobs during the disputed period. Plaintiff argues that the chart “reveals” that 

“[t]here were at least 32 jobs during the at-issue time period that defendant could have 

assigned plaintiff to work, but refused to do so.” (Pl. Resp. 10.) Plaintiff further argues 

that of those 32 jobs, 22 were within the Local #1 jurisdiction though some employed 

bricklayers from outside locals.15 Finally, Plaintiff notes that, across all 32 jobs, there 

were at least 178 instances in which a substantially younger bricklayer was employed. 

 Although the foregoing evidence indeed shows that Plaintiff could have been 

recalled but was not, it does not establish that Plaintiff was “singled out” to stay on layoff 

because of his age. The data selected by Plaintiff indicates that work was ongoing for a 

subset of L&H employees. However, further information provided by L&H indicates 

that during the same period over 80 bricklayers were laid off. (See Def. Answers to 

Plaintiff’s Third Set of Interrogs.) Within that group, at least 46 bricklayers remained on 

layoff for over 100 days, i.e., longer than Plaintiff. And well over half of those 46 were 

substantially younger than Plaintiff, born in 1955 or later.16 Among Plaintiff’s fellow 

Local #1 journeyman bricklayers, some stayed on layoff for up to six months before 

 

employees are not listed alphabetically, nor are they listed in any apparent order by age or 

union affiliation. 

15 Notably, Plaintiff does not claim that L&H in any way violated the terms of the CBA 

by hiring outside the Local #1 union, or outside the controlling local in out-state or outof-state jobs. The CBAs only mandate that a certain percentage of crew-members on any 

given job be drawn from the controlling local. 

16 At least forty-six of the employees who were laid off during this period were outside 

the protected class: that is, younger than 40 years old.
22

being recalled, while still others had still not been recalled to work at the time L&H 

compiled the information. For example, 

• Eric Benedict (born 1976) was laid off on September 26, 2007 from the ITC 

project as it was winding down. There was no record of him ever being recalled. 

• Christopher Crawford (born 1971) was laid off on November 20, 2007 from the 

ITC project as it was winding down. No other work was available at that time. 

He was recalled over 160 days later on April 30, 2008 at the request of a particular 

foreman. 

• Donald Crawford (born 1947) was laid off on January 2, 2008 from the University 

of Michigan Mosher Jordan project when it was slowed due to winter conditions. 

No other work was available at that time. He was recalled over 200 days later on 

August 6, 2008. 

• Gustavo Gonzales (born 1970) was laid off on September 25, 2007 during a 

temporary lull in the Greektown Casino jobsite. He was recalled over 200 days 

later on April 14, 2008. 

• Cecil Hogan (born 1960) was laid off from a project in Ann Arbor on October 5, 

2007. There was no record of him ever being recalled. 

• Jason Kuehl (born 1973) was laid off on December 14, 2007 from a project in Mt. 

Clemens, Michigan. There was no record of him ever being recalled. 

• Todd McGill (born 1969) was laid off on December 11, 2007 from a job in 

Brandon, Michigan. There was no record of him ever being recalled. 

• Martin Mihelcich (born 1969) was laid off on September 27, 2007 from a project 

in Mt. Clemens, Michigan. There was no record of him ever being recalled. 

• Jeff Reeves (born 1972) was laid off on November 29, 2007 from the Motor City 

Hotel project. There was no record of him ever being recalled. 

• Robert Robinson (born 1966) was laid off on October 19, 2007 from the Motor 

City Valet parking project. There was no record of him ever being recalled. 

• Kirk Schnettler (born 1962) was laid off on December 14, 2007 from a project in 

Mt. Clemens, Michigan. He was recalled to work on an elementary school 
23

building project over 160 days later on May 26, 2008, at the request of the 

project’s foreman. 

• David Walley (born 1962) was laid off on September 28, 2007 from the 

Greektown parking structure project. There was no record of him ever being 

recalled. 

• Jimmy Williams (born 1957) was laid off on November 16, 2007 from a project in 

Macomb, Michigan. There was no record of him ever being recalled. 

(See Def. Answers to Pl.’s Third Set of Interrogs.) In light of the foregoing, the record 

simply does not support the assertion that Plaintiff was singled out or treated less 

favorably than other younger bricklayers. Even though Plaintiff has provided statistical 

evidence that a subset of L&H employees continued to work during the relevant period, 

layoff data combined with uncontroverted testimony from L&H employees regarding an 

overall lull in available work indicates that bricklayers of different ages were laid off 

from across the L&H workforce for as long as or longer than Plaintiff. 

 Plaintiff also argues that he established the fourth element of the prima facie case 

by showing that L&H transferred or recalled at least four other similarly-situated, but 

substantially younger bricklayers, from the ITC jobsite. This argument fails as well. The 

Sixth Circuit has explained that in analyzing the treatment of similarly situated 

employees, the question is whether the plaintiff has “demonstrate[d] that he or she is 

similarly-situated to the non-protected employee in all relevant respects.” Mickey v. 

Zeidler Tool and Die Co., 516 F.3d 516, 522 (6th Cir. 2008) (quoting Ercegovich v. 

Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998). This Court evaluates 

whether a non-protected employee is “similarly situated” by considering “the skill, effort, 
24

and responsibilities of each job and the working conditions under which each job is 

performed.” Id. (quoting Conti v. Universal Enter., Inc., 50 Fed. Appx. 690, 699 (6th Cir. 

2002)). Plaintiff argues that the evidence showing that Kubeck, Woodward, Darke and 

Hogan (all of whom were at least seven years younger than Plaintiff) were immediately 

transferred to other jobs or recalled from layoff status within a few months satisfies the 

fourth element. He argues that these individuals were “similarly situated” because they 

all answered to the same company boss, all were bricklayers under the same CBA, and 

none had complaints about the quality of their work. However, the record indicates that 

while Plaintiff was a fine bricklayer and capable of laying block, he was considered an 

efficient block layer. LaFrance specifically testified that he needed workers who could 

lay a lot of block quickly for the Conner Creek Academy job, to make the most efficient 

use of his crew. He testified that he did not believe Plaintiff was such a bricklayer, 

though he would have been a good candidate for a job that required “fancy brickwork.” 

Therefore, although Plaintiff makes much of the fact that all bricklayers in Local #1 are 

qualified to do all kinds of masonry jobs, he has failed to show that the four employees 

who were selected to be directly transferred or recalled after leaving the ITC jobsite were 

“similarly-situated” in that they all had the same level of skill for the particular job in 

question. 

 Finally, Plaintiff argues in the alternative that Harman and LaFrance's ageist 

comments (asking about Plaintiff's retirement plans, saying that heavy block work was 

inappropriate for Plaintiff) are sufficient circumstantial evidence to satisfy this fourth 
25

prong. The Court disagrees. As discussed above, there was virtually no temporal 

connection between Harman’s alleged comments and the ultimate layoff. Furthermore, 

LaFrance made no explicit ageist comment; instead he stated that Plaintiff was not wellsuited for a particular kind of job. Plaintiff’s subjective interpretation of these statements 

as reflecting age-bias is insufficient to serve as circumstantial evidence under the fourth 

prong. The Court therefore finds that Plaintiff has failed to provide “additional evidence” 

as required in a workforce reduction age discrimination case. He has failed to establish 

his prima facie case. 

ii. Pretext 

 Even assuming Plaintiff satisfied the prima facie elements of an age 

discrimination claim, he cannot show that L&H’s proffered reasons for laying him off 

and failing to recall him were pretext for age discrimination. That is, Plaintiff has not 

shown that L&H’s proffered reasons—a general lack of work, Plaintiff’s inefficiency at 

laying block, and the belief that Plaintiff planned to retire—(1) were false or had no basis 

in fact; (2) did not actually motivate L&H’s decision; or (3) were insufficient to motivate 

the employer's decision. Wexler, 317 F.3d at 576. Nor has Plaintiff shown that L&H’s 

proffered reasons were so unreasonable as to give rise to an inference of pretext. See

Schoonmaker, 2010 WL 364185, at *7 (citing Sybrandt v. Home Depot, U.S.A., Inc., 560 

F.3d 553, 558 (6th Cir. 2009)). In opposing a motion for summary judgment, Plaintiff 

must produce sufficient evidence from which a jury could reasonably reject L&H’s 

reasons for laying him off and failing to recall him. Id. (citing Chen v. Dow Chemical 
26

Co., 580 F.3d 394, 400 (6th Cir. 2009) (“Pretext is a commonsense inquiry: did the 

employer fire the employee for the stated reason or not?”)). The Court finds that Plaintiff 

has failed to satisfy this burden of production. 

 Plaintiff makes three arguments why L&H’s proffered non-discriminatory reasons 

are not credible: (1) L&H did not actually experience a slowdown in work flow; (2) L&H 

cannot site particularized evidence which substantiates why it made its decision; and (3) 

L&H stated in its answer to Plaintiff’s first set of interrogatories that it “has no 

information” to explain why Plaintiff, in particular, was selected for layoff. Plaintiff also 

argues that L&H has asserted shifting or changing reasons for its employment decision, 

which itself proves that the reasons are pretextual. It is well-settled that a court “may not 

reject an employer's explanation [of its action] unless there is sufficient basis in the 

evidence for doing so.” Gray v. Toshiba Am. Consumer Prods., 263 F.3d 595, 600 (6th 

Cir. 2001). The record here does provide a basis for the Court to reject L&H’s reasons. 

First, as discussed above, Plaintiff’s attack on the factual basis of the lack of work 

reason is unavailing. Even without the disputed charts—Exhibits 9, 10 and 11, addressed 

supra in Note 12—multiple L&H employees testified from personal knowledge about the 

company’s overall decrease in workload during the last quarter of 2007 and the first 

quarter of 2008. L&H also submitted a list of over 80 employees who were laid off 

during the same period as Plaintiff’s layoff. Plaintiff’s analysis of job report information 

showing that L&H continued to have over 30 active jobs, along with his own vague 

testimony that L&H had “tons of work,” do not rebut this evidence—it merely shows that 
27

some work continued through the downturn and that L&H staffed those jobs with 

employees other than Plaintiff.17 

Next, Plaintiff’s argument that L&H cannot site particularized evidence which 

substantiates why it made its decision completely glosses over the express testimony of 

Mark LaFrance who worked with Plaintiff several times before acting as his foreman on 

the ITC job in November 2007. As discussed above, LaFrance testified that he reduced 

his crew on the ITC project to a skeleton crew as the job wound down. He laid Plaintiff 

off because the fancy brickwork was completed or nearing completion. He then did not 

recall Plaintiff to work on the next project because it was his assessment that Plaintiff is a 

talented bricklayer, but does not lay block efficiently. This testimony is clearly sufficient 

to explain why Plaintiff was not recalled specifically to work on the Conner Creek 

Academy job. While Plaintiff is correct to point out that an employer may not merely 

state that it based its adverse employment decision on which employee it considered to be 

“best qualified” for the work, citing Alvarado v. Texas Rangers, 492 F.3d 605, 616 (5th 

Cir. 2007), a subjective assessment of a candidate's performance may serve as a 

legitimate, nondiscriminatory reason for the candidate's non-selection so long as the 

employer can articulate “a clear and reasonably specific basis for its subjective 

assessment.” Id. (citing Burdine, 450 U.S. at 258). Here, LaFrance provided a clear and 

 

17 Plaintiff’s analysis of the available work also does not address the many workers who 

were laid off from active jobs when work slowed, but were later recalled to the same 

project when activity picked up again. For example, a bricklayer like Robert Coates 

worked on the Brandon High School job up until his layoff on February 27, 2008. He 

was then recalled to the same job site on April 2, 2008. (See Def. Answers to Plaintiff’s 

Third Set of Interrogs. at 7; Pl. Resp. to Mot. for Summ. J. Ex. J Mason 408-415.)
28

specific basis for his decision to layoff Plaintiff from the ITC job and not to recall him to 

the next job for which LaFrance was foreman. To the extent that Plaintiff argues that he 

was sufficiently skilled to work specifically on the Conner Creek Academy job, this 

amounts to nothing more than his disagreement with the business judgment of his 

employer. See Hein v. All America Plywood Co., Inc., 232 F.3d 482, 490 (6th Cir. 2000) 

(soundness of employment decision may not be challenged as a means of showing 

pretext). With respect to Plaintiff not being recalled to other jobs more generally, Mark 

Butscher testified that he did not recall Plaintiff because there were fewer jobs overall, no 

foreman specifically requested Plaintiff, and by the first quarter of 2008, Butscher was 

under the impression that Plaintiff had already or would soon retire. Plaintiff does not 

dispute that he essentially gave up calling Mark Butscher in January and February 2008, 

though Butscher testified that employees on layoff seeking work typically called every 

day. L&H also provided the testimony of at least two other employees who were under a 

similar impression that Plaintiff planned to retire. Taken together, this is a clear and 

specific basis for the decision not to recall Plaintiff. 

Plaintiff’s argument that L&H’s answer to the interrogatory proves the 

illegitimacy of the company’s stated reasons for laying Plaintiff off is not supported by 

the record. L&H’s answer was filed in response to an interrogatory seeking information 

about a “workforce reduction plan.” L&H does not have such a plan. Rather, layoffs are 

commonplace when work slows and left up to the discretion of foremen on specific jobs, 

as work winds down and other work becomes available. The parties do not dispute that 
29

individuals are laid off as work winds down, sometimes reducing a crew to a few workers 

to complete a job, depending in part on the foreman’s discretion. Thus, the fact that L&H 

could not respond to a question about Plaintiff’s layoff as it related to an overall 

“workforce reduction plan” does not itself cast doubt on the company’s other clearly 

articulated reasons. 

 Plaintiff also argues that the fact that L&H’s reasons for failing to recall Plaintiff 

have shifted or changed over the course of the litigation indicates that those reasons are 

pretextual. The Sixth Circuit has held that an employer’s shifting rationale can be 

evidence of pretext. Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 

2002). However, in this case, L&H’s proffered reasons did not shift. Instead, different 

reasons were given regarding different aspects of the layoff/recall process. First, Mark 

LaFrance testified that he decided to lay off Plaintiff from the ITC job because it was 

slowing down and he no longer needed a full crew. His subsequent decision not to recall 

Plaintiff to Conner Creek was motivated by a slightly different reason, as dictated by the 

different demands of the new jobsite. Mark Butscher, the only other main decisionmaker 

involved in the at-issue employment decision, testified that he did not recall Plaintiff to 

any other job because the company was experiencing an overall slowdown. Viewed in 

light of the overall layoff/recall process, each individual’s testimony is internally 

consistent and responsive to the company’s concerns in different circumstances. Finally, 

the more generalized statements about L&H’s lack of work from Harman or others within 
30

the company do no contradict the foregoing testimony. Rather, they explain the context 

in which Plaintiff’s layoff—along with dozens of others’ layoffs—occurred. 

 The foregoing demonstrates that L&H’s stated reasons for laying Plaintiff off and 

failing to recall him were not pretext for age discrimination. Plaintiff has not carried his 

burden of show that age was the ‘but-for’ cause of the employer’s adverse decision, and 

accordingly he has failed to establish that he was terminated because of his age under the 

ADEA. 

D. ELCRA

Plaintiff also claims that his layoff and L&H’s subsequent failure to recall him 

from layoff violates the Elliott-Larsen Civil Rights Act. The ELCRA prohibits an 

employer from discriminating against an employee on the basis of age. Mich. Comp. 

Laws § 37.2202(1)(a). ELCRA claims are analyzed under the same standards as federal 

ADEA claims. See Geiger, 579 F.3d at 626; Blair v. Henry Filters, Inc., 505 F.3d 517, 

523 (6th Cir. 2007). Because Plaintiff has failed to present evidence sufficient to 

establish a prima facie ADEA claim, he has similarly failed to establish a prima facie

case under the ELCRA. 

IV. CONCLUSION

For the reasons set forth above, 

 NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s motion for 

summary judgment [Dkt. # 27] is GRANTED. 

 
31

IT IS FURTHER ORDERED that this case is DISMISSED, with prejudice. 

 s/Gerald E. Rosen 

 Gerald E. Rosen 

 Chief Judge, United States District Court 

Dated: February 17, 2010 

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

February 17, 2010, by electronic and/or ordinary mail. 

 s/Ruth A.Gunther 

 Case Manager 

 (313) 234-5137