UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SUZANNE WASHBURN, 

Plaintiff,

Case No. 09-CV-10202

v.

HON. GEORGE CARAM STEEH

GENERAL ELECTRIC CAPITAL, 

CORPORATION,

Defendant.

_____________________________________/

OPINION AND ORDER DENYING 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

On January 19, 2009, plaintiff Suzanne Washburn filed a complaint against her

former employer, defendant General Electric Capital Corporation (“GE Capital”), alleging

sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., and the Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2201 et seq.,

relating to the termination of her employment. Before the court is defendant’s motion for

summary judgment. Oral argument occurred at a hearing on this motion on June 29, 2011.

For the reasons that follow, the court DENIES defendant’s motion for summary judgment.

EVIDENCE

Plaintiff was a district manager (DM) in GE Capital’s Transportation Finance Group.

The Transportation Finance Group provides financing for the commercial trucking industry,

including lending products, growth capital, revolving lines of credit, equipment leasing, cash

flow programs, and asset financing. The Transportation Finance Group is based in Texas

and has multiple branch offices throughout the United States.

During the time period at issue in this case, GE Capital had a code of conduct

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 1 of 16 Pg ID 1180
2

entitled “The Spirit and The Letter,” which sets forth the company’s fair employment

practices. The code of conduct provides that the company will “make all employment

related decisions and actions without regard to a person’s . . . sex . . . or other

characteristic protected by law.” Plaintiff received a copy of “The Spirit and The Letter”

during her employment with GE Capital and attended training about prohibited harassment.

In addition, all managers at the company, including Jim Flanigan, receive training on “The

Spirit and The Letter.”

In June 1980, McCullough Leasing hired plaintiff as a clerk in the retail department.

In 1990, GE Capital Fleet Services acquired McCullough Leasing, and plaintiff was hired

by GE Capital Fleet Services as an administrative secretary. Plaintiff held various positions

at GE Capital and her 2005 work performance rating was “Needs Improvement.” Toward

the end of 2005, Stanley Boris, who was Sales Manager for GE Capital Transportation

Finance Group, offered to interview plaintiff for the DM position. Plaintiff also interviewed

for the position with Jim Flanigan, John Conkin, and Dan Clark. At the time of plaintiff’s

hiring, Boris was aware that plaintiff’s performance was under scrutiny. Flanigan was also

told that plaintiff was on a Performance Improvement Plan (PIP). Flanigan recommended

that GE Capital hire plaintiff for the DM position and Conkin approved the hiring. When

Conkin made the final hiring decision, he was aware of plaintiff’s “Needs Improvement”

performance rating. 

On April 26, 2006, Boris sent plaintiff an e-mail outlining general performance

expectations for the DM position. Specifically: (1) the normal annual sales volume

requirements for plaintiff’s territory were $25 to $30 million; (2) after she was in the position

for 90 days, she should meet sales volumes of $1 million each month; and (3) by the end

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 2 of 16 Pg ID 1181
3

of 2006, she should meet sales volumes of $2 million each month.

In June 2006, plaintiff started in the DM position. She reported to Boris, who

reported to Flanigan, who reported to Conkin. As DM, plaintiff was responsible for

procuring clients to whom GE Capital would lend money. This included calling on dealers,

trucking companies, and companies with trucking fleets in the territory to try to generate

business. DMs were responsible for entering their weekly itineraries, such as information

relating to telephone calls, meetings, action items, and potential transactions into a sales

database system called Siebel. Boris and Flanigan reviewed each DM’s Siebel entries on

a regular basis. They also expected all DMs to make a monthly marketing plan, which

Boris reviewed with each DM on a weekly basis.

Plaintiff was assigned the eastern Michigan sales territory, which originally was to

include the Detroit metropolitan area and Toledo, Ohio. When she transferred to the

position, there had been no DM assigned to the Detroit metropolitan area for approximately

three or four years. During that time, DM Douglas Moeller serviced clients in the Toledo

area. Once plaintiff took the DM position, Boris allowed Moeller to continue his assignment

because he had been servicing that area. Plaintiff complained to Flanigan about the

change in the territorial division and Flanigan never responded. Plaintiff never serviced the

Toledo area during her employment as a DM. Her sales goals were based on Michigan

only. 

To determine plaintiff’s sales goals, Boris reviewed written data relating to the

vehicle population and the customer bases in the territory. He also reviewed historical

business in the territory. Plaintiff’s annual sales goals were as follows: $12 million for 2006;

$24 million for 2007; and $21 million for 2008. Plaintiff understood that GE Capital

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 3 of 16 Pg ID 1182
4

expected her to reach her sales goals.

Plaintiff’s total sales volume for 2006 was $2,917,300. Her goal for 2006 was $12

million. Sometime in early 2007, Boris became concerned about plaintiff’s ability to

generate sales volume. At that point, Boris met with plaintiff to review her sales plan and

determine what he could do to help her succeed. In addition, Boris traveled to plaintiff’s

territory to observe her job performance and identify any missed opportunities. Finally,

Boris spoke with plaintiff on a regular basis to review her progress.

On or about March 19, 2007, plaintiff met with Boris and Flanigan in Chicago to

discuss her work performance. According to plaintiff, when Flanigan joined the meeting he

would not acknowledge her. Flanigan then allegedly told her, “I want you to give an

explanation as to why your [Siebel] schedule is not filled and I’m not seeing anything.” At

that point, Boris turned his computer to show Flanigan that plaintiff’s schedule was

complete. Plaintiff alleges that after this meeting, Boris told her that Flanigan told him that

he “did not believe that a female should be in [the DM] position.” Flanigan denies making

this statement. Flanigan believes that his limited contact with plaintiff was due to his limited

contact with DMs unless asked to participate in sales calls. Flanigan contends that he did

not attend any sales calls with plaintiff because she did not ask him to attend sales calls

and because he does not know many customers in her territory. 

On March 21, 2007, Boris sent an e-mail to plaintiff stating that her sales volume for

the first quarter of 2007 was an estimated $2.5 million. The e-mail also stated that she

must “demonstrate continuous improvement in [the second quarter] with a target

achievement of $4.5 [million] and then a minimum of $2 [million] per month thereafter . . .”

Also in 2007, Boris issued plaintiff her 2006 performance review, which is referred to as an

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 4 of 16 Pg ID 1183
5

“EMS” (Employee Management System). Under the “Contributions/Performance Trend”

category, Boris stated that “[plaintiff] needs continued improvement in her performance to

achieve required volume objectives.” Plaintiff did not dispute the content of her 2006 EMS

with Boris. Plaintiff does not believe her EMS was based on sex.

As of August 31, 2007, plaintiff’s total sales volume for the year was $5.3 million.

Her goal for the same time period was $15 million. In September 2007, Boris placed

plaintiff on a PIP because she was not meeting her sales volume goals. Conkin gave the

final approval to issue the PIP. The PIP provided that:

[T]he following volume objectives over the next 3 [sic] will be established as

the minimum level required to achieve your performance improvement plan

during the months of September, October and November: September

$1.5M[;] October $1.8M[;] November $2.0M[; and] Total $5.3M . . .

Subsequent to October, you will be expected to continue to achieve your

minimum quarterly volume objective of $6.0M on an ongoing basis . . . Sue,

this letter is intended to reiterate that we require improvement with respect

to volume achievement for the Eastern Michigan territory . . . GE Commercial

Finance does not repeat performance improvement action plans. Failure to

achieve the minimum volume stated above could result in further action up

to and including termination.

Plaintiff understood that she was responsible for meeting the sales goals outlined in the PIP

and that failure to meet those goals could result in termination of her employment. Plaintiff

does not believe that the issuance of her September 2007 PIP was related to sex. 

In early January 2008, plaintiff claims she received a phone call from Boris advising

her that he was told by Flanigan that she was “done,” meaning her employment was

terminated. Plaintiff immediately contacted the Human Resources Department and spoke

with Representative Binh Le. During this telephone call, plaintiff asked Le about her

employment status. Plaintiff claims that during this conversation Le told her GE Capital

was formally notifying her that within 90 days her employment would be terminated. He

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 5 of 16 Pg ID 1184
6

also recommended that she resign. According to plaintiff, she told him that she was being

treated differently than her male counterparts under the supervision of Flanigan and that

she felt her situation was due to her gender.

On or about January 7, 2008, Boris issued plaintiff a memorandum regarding her

PIP progress. The memorandum stated: 

During the plan period, you achieved the following volume levels: September

$.5M[;] October $1.4M[;] November $.1M[; and] and Total $2.0M . . . This

represented a 38% achievement level against the performance plan minimum.

In December you booked $1.7MM . . . which would give you a total for the 4

months of $3.7MM or 51% achievement of the performance plan level.

Overall, your performance is still rated as Needs Improvement, and you have

not successfully met the outlined objectives of the Performance Improvement

Plan we initiated in September 2007. As stated in my September 10th letter,

your failure to meet the objectives in the PIP could result in further action by

GE, including termination.

Plaintiff’s total sales volume for 2007 was $8,824,400 and her sales goal for that period was

$24 million. Plaintiff does not believe that the issuance of the PIP progress memorandum

was related to her sex. 

In February 2008, plaintiff received her 2007 EMS from Boris. Under the category

of “Contributions/Performance Trend,” the EMS states “Sue’s performance needs

improvement in 2008 to achieve her required volume objectives.” In early 2008, Boris

transferred from the Sales Manager position to the Medium Duty Finance Representative

position. In March 2008, he voluntarily resigned. Plaintiff then began reporting to Sales

Manager Jim Loughery. On March 27, 2008, Flanigan emailed Boris requesting he

discharge plaintiff. Boris then emailed Le stating that it would be inappropriate for him to

fire her because he was no longer her manager. Boris also said, “Michigan may not be

able to support two DM’s and a $48MM budget at this time. [Plaintiff] has called on

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 6 of 16 Pg ID 1185
7

customers and dealers as I have asked her to do. GE has a presence in the Detroit market

because of her efforts but the [sales] volume has not followed as of this date . . . [I]f it is

determined that the company should terminate her, my recommendation is that her position

be considered as a reduction in force . . .” 

During the first quarter of 2008, plaintiff’s sales volume was $2,897,200 and her goal

was $3,822,000. On April 1, 2008, plaintiff received a memo from Flanigan terminating her

employment effective April 4, 2008. Conkin made the final decision to discharge plaintiff

after consulting with Flanigan and Le. Flanigan testified that plaintiff is the only DM whose

employment he recommended be terminated.

Other DMs in the Transportation Finance Group were issued warnings by Boris,

Flanigan, and Loughery. On or about August 24, 2005, Boris issued a PIP to DM Victor

Siegel because he was not meeting his sales goals. Siegel ultimately did not meet his PIP

requirements and resigned in lieu of termination. 

On or about April 3 and 4, 2008, Flanigan and Loughery issued performance

counseling memorandums to Thomas Rayburg, John Mauer, and Mike Hirsch because

they failed to meet their sales goals in 2007 and for the first quarter of 2008. None of these

male DMs received a PIP and none of these male DMs were fired. Boris testified that the

decision to issue a PIP to a DM is based on “making progress, historically how they

performed, and whether they were continuing to make progress in their numbers.” When

testifying as to why the male DMs were not issued PIPs, Boris said Rayburg had not

worked for a full year and was trending upward, Mauer had a solid pipeline and was

trending upward, and Hirsch “had a history of high performance.” Another DM, Moeller,

was never issued a counseling memorandum for failing to meet his sales goals because

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 7 of 16 Pg ID 1186
8

Boris believed “he was a solid performer historically.” 

Flanigan testified that plaintiff was issued a PIP and other DMs were not because

she did not meet sales numbers, and her marketing plan, itinerary, sales calls, and

projections were unsuccessful. During the period in which plaintiff worked as a DM, she

was the lowest-rated performer in the Transportation Finance Group. Plaintiff was the only

female DM working under Boris and Flanigan during the period in which she was employed

by defendant.

STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) empowers the court to render summary

judgment 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 judgment as a matter of law." See

Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has

affirmed the court's use of summary judgment as an integral part of the fair and efficient

administration of justice. The procedure is not a disfavored procedural shortcut. Celotex

Corp. v. Catrett, 477 U.S. 317, 327 (1986).

The standard for determining whether summary judgment is appropriate is "'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.'" Amway Distributors

Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all reasonable

inferences must be construed in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "[T]he

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 8 of 16 Pg ID 1187
9

mere existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that there

be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original).

If the movant establishes by use of the material specified in Rule 56(c) that there is

no genuine issue of material fact and that it is entitled to judgment as a matter of law, the

opposing party must come forward with "specific facts showing that there is a genuine issue

for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean

v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in

the non-movant's pleadings will not meet this burden, nor will a mere scintilla of evidence

supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be

evidence on which a jury could reasonably find for the non-movant. Id.

ANALYSIS

To establish a claim under Title VII and the Elliott-Larsen Civil Rights Act, plaintiff

may either present direct or circumstantial evidence of discrimination. “[D]irect evidence

is that evidence which, if believed, requires the conclusion that unlawful discrimination was

at least a motivating factor in the employer’s actions.” Jacklyn v. Shering-Plough

Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). Also, “direct evidence

of discrimination does not require the factfinder to draw any inferences in order to conclude

that the challenged employment action was motivated at least in part by prejudice against

members of the protected group.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.

2003). Once direct evidence has been presented, “the burden of persuasion shifts to the

defendant to show that it would have terminated the plaintiff’s employment had it not been

motivated by discrimination.” Jacklyn, 176 F.3d at 926. 

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 9 of 16 Pg ID 1188
10

To establish a claim using circumstantial evidence, plaintiff’s evidence needs to

allow the fact finder to draw a reasonable inference that discrimination occurred. Kline v.

Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 2003). Plaintiff is required to first establish

a prima facie case by showing that (1) she was a member of a protected class, (2) she

suffered an adverse employment action, (3) she was qualified for her position, and (4) she

was treated differently than similarly situated employees. Wright v. Murray Guard, Inc., 455

F.3d 702, 707 (6th Cir. 2006) (describing the McDonald Douglass Corp. elements to

establish a prima facie case). The Sixth Circuit has summarized the burden shifting as

follows:

Under the McDonnell Douglas burden-shifting framework, once the plaintiff

establishes a prima facie case of intentional discrimination, the burden shifts

to the defendant to articulate a nondiscriminatory reason for its actions. The

defendant bears only the burden of production; the burden of persuasion

remains with the plaintiff at all times. Once the defendant has articulated a

nondiscriminatory reason for its decision, the presumption of discrimination

that arises from the plaintiff’s prima facie case disappears and the plaintiff

must have the opportunity to show that the defendant’s proffered

explanation is merely a pretext for discrimination. 

Weigel v. Baptist Hosp., 302 F.3d 367, 377-78 (6th Cir. 2002) (internal citations omitted).

When defendant establishes a non-discriminatory reason for termination, it becomes

plaintiff’s burden to show that defendant’s proffered reason for termination is mere pretext.

To meet her burden, “plaintiff must show that ‘either (1) the proffered reason had no basis

in fact, or (2) that the proffered reason did not actually motivate [her] discharge, or (3) that

[the proffered reason was] insufficient to motivate the discharge.”’ Russell v. Univ. of

Toledo, 537 F.3d 596, 604 (6th Cir. 2008) (emphasis in original) (citing Manzer v. Diamond

Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994)).

As the following discussion indicates, plaintiff has successfully presented direct

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 10 of 16 Pg ID 1189
11

evidence of gender discrimination. It should also be noted that plaintiff can establish a

prima facie case using circumstantial evidence of disparate treatment as compared to her

male counterparts. Defendant only seriously challenges plaintiff’s ability to show that she

was treated differently than similarly situated employees. However, plaintiff satisfies this

element as discussed in the pretext section of this opinion. 

Plaintiff’s Direct Evidence of Discrimination

Plaintiff argues that Boris’s statement to her describing Flanigan’s statement about

not wanting a female in the DM position constitutes direct evidence of discrimination.

Plaintiff also alleges Flanigan’s behavior at the March 19, 2007 meeting and Flanigan’s

failure to attend sales calls with plaintiff constitute direct evidence of discrimination. 

Defendant argues Boris’s statement is inadmissible hearsay. Plaintiff contends

Boris’s statement is not hearsay. Under FRE 801(d)(2)(D), a statement is not hearsay

when it is “offered against a party” which was made “by the party’s agent or servant

concerning a matter within the scope of the agency or employment, made during the

existence of the relationship.” The alleged statement is offered by plaintiff and was

allegedly made by Boris during Boris’s employment with defendant. Defendant argues that

Boris’s statement was not made during the scope of his employment because, “there is a

critical difference between making a statement as an employee and having the actual or

implied authority to make such a statement on behalf of your employer.” Jacklyn, 176 F.3d

at 928. In Jacklyn, the plaintiff attested that her manager told her that the regional manager

said he did not want any “skirts” working for him. Because the regional manager who

allegedly made the “skirts” statement was not the regional manager at any time when the

manager was supervising the plaintiff, and because the manager was not involved in any

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 11 of 16 Pg ID 1190
1

Defendant argues that the FRE 804(b)(3) does not apply. This rule only applies

when the declarant is unavailable. Boris and Flanigan are available to testify and both

were deposed. The court does not need to address this issue because plaintiff has

already established Boris’s statement was not hearsay.

12

of the critical appraisals preceding the plaintiff’s leave, the court concluded the manager’s

statement was not within the scope of his employment. Id. Conversely, Boris’s alleged

statement about Flanigan’s alleged statement was made at a time when Boris was

plaintiff’s direct supervisor and Boris reported to Flanigan. Boris issued plaintiff a PIP,

plaintiff failed to meet her goal, and plaintiff was terminated upon Flanigan’s

recommendation. Therefore, Boris’s statement falls within the scope of his employment

and thus is not hearsay. 

Defendant also argues plaintiff’s description of Boris’s alleged statement is an

inadmissible opinion of a lay witness under FRE 701. However, plaintiff is testifying about

a fact and is not asserting an opinion. Next, defendant argues Boris’s statement is

inadmissible because plaintiff “bears the burden of establishing the proper foundation for

the admissibility of the statements.” Liadis v. Sears, Roebuck & Co., 47 F. App’x 295, 303

(6th Cir. 2002)). Defendant claims plaintiff did not establish a proper foundation. According

to plaintiff, Flanigan treated her in a bizarre manner during the March 2007 meeting.

Plaintiff asserts that when she asked Boris about Flanigan’s behavior, Boris told her that

Flanigan stated that he “did not believe that a female should be in [the DM] position.”

Plaintiff infers that the temporal proximity of the comment to the bizarre interaction at the

meeting establishes a foundation. Drawing all inferences in favor of the non-moving party,

plaintiff has established that Flanigan was speaking about her position with the company.1

Defendant further claims that even if Boris’s statement is admissible, the statement

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 12 of 16 Pg ID 1191
13

is not direct evidence of discrimination because Flanigan was not the final decision maker

in plaintiff’s termination. Defendant relies on McDonald v. Union Camp Corp., 898 F.2d

1155, 1161 (6th Cir. 1990) which found “a statement by an intermediate level management

official is not indicative of discrimination when the ultimate decision to discharge is made

by an upper level official.” However, the Supreme Court recently held an employer liable

when “one of its agents committed an action based on discriminatory animus that was

intended to cause, and did in fact cause, an adverse employment decision.” Staub v.

Proctor Hosp., 131 S. Ct. 1186, 1193 (2011). Because Flanigan was plaintiff’s supervisor

and was involved in her termination, plaintiff can use his statement to establish

discriminatory animus.

To constitute direct evidence, “the evidence must establish not only that the plaintiff’s

employer was predisposed to discrimination . . . but also that the employer acted on that

predisposition.” Hein v. All Am. Plywood Co., 232 F.3d 482, 488 (6th Cir. 2000). In Hein,

a case involving weight discrimination, the Sixth Circuit found “[plaintiff] presented no

evidence to connect [defendant’s] alleged prejudice against heavier individuals with his

decision to fire [plaintiff].” Id. at 489. The court in DiCarlo v. Potter, 358 F.3d 408 (6th Cir.

2004) held that a closer temporal proximity between the discriminatory act and the

termination allows for a lesser quantum of evidence needed to conclude discriminatory

animus motivated termination. Id. at 416-17. The alleged statements and behavior upon

which plaintiff relies occurred around March 19, 2007. She was issued her PIP in

September 2007 and terminated in April 2008. A factfinder could reasonably conclude from

Flanigan’s statement that he was predisposed to discrimination. Flanigan was defendant’s

agent, he recommended that plaintiff’s employment be terminated, and plaintiff was

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 13 of 16 Pg ID 1192
14

terminated. Drawing all inferences in favor of plaintiff, plaintiff has set forth sufficient direct

evidence of sex discrimination.

Defendant’s Non-Discriminatory Reason for Termination

As plaintiff can establish direct evidence of discrimination, the court reviews

defendant’s alleged reason for plaintiff’s termination. Plaintiff never met a sales goal,

was the lowest rated sales performer, was placed on a PIP, and failed to meet the

standards set forth in the PIP. Moreover, Boris attempted to help plaintiff meet her

sales goals but she still failed. Based on plaintiff’s poor performance, it is reasonable

for the court to accept defendant’s reason for terminating her as non-discriminatory. 

Plaintiff’s Pretext Evidence

 Plaintiff claims defendant’s proffered reasons did not actually motivate her

discharge. She relies upon Flanigan’s discriminatory statement, her allegedly arbitrary

and unreasonable sales goals, and the difference between defendant’s treatment of her

and her male counterparts.

Plaintiff argues Flanigan’s alleged statement portrays defendant’s discriminatory

motive and shows that Flanigan’s recommendation to discharge plaintiff was based on

his discriminatory animus towards females in the DM position. Defendant counters by

relying on the “same-actor inference,” arguing that because Flanigan and Conkin were

willing to hire plaintiff knowing she is female they are unlikely to fire her because of her

sex. Yet, the Sixth Circuit rejected the idea that a mandatory “same-actor inference” be

applied “in favor of a summary judgment movant.” Wexler v. White’s Fine Furniture,

Inc., 317 F.3d 564, 573 (6th Cir. 2003). Additionally, the length of time between

plaintiff’s hiring and firing weakens the “same-actor inference.” Buhrmaster v. Overnite

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 14 of 16 Pg ID 1193
15

Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995). 

Plaintiff also asserts that her sales goals were arbitrary and raise a genuine issue

as to whether they were set to ensure her failure. She claims that defendant’s reliance

on the territory’s historical sales data to set her goals is arbitrary because her territory

had not had a representative for three to four years and Detroit has had a declining

business market. Boris even testified that Michigan may not have enough sales

opportunities to handle two DMs. Defendant answers by explaining that DM sales goals

are set using the same procedure regardless of sex. All DM sales goals are based on

the overall goal for the Chicago region plus past sales goals for each territory. Because

no recent sales goals were available for plaintiff’s territory, defendant relied on vehicle

population, customers data, and dealer bases. The Sixth Circuit found that it is

irrelevant whether a company’s sales goals were reasonably set, “so long as the

[company] applied them equally . . .” Brown v. Bank One, 168 F. App’x 46, 2006 WL

348133 at *52 (6th Cir. Feb. 14, 2006). Defendant claims the goals were applied

equally among male and female DMs. For example, it issued Siegel a PIP and issued

Mauer, Hirsch, and Rayburg performance counseling memorandum for failing to meet

sales goals. Plaintiff argues that no male DMs who failed to meet sales goals were

issued PIPs or fired during her employment. Defendant relies on plaintiff’s poor

performance to distinguish its actions regarding plaintiff and male DMs. However, out of

the ten remaining DMs who worked under Flanigan, all of whom were male, five failed

to come within 10% of their sales goals and were not issued PIPs or fired. Additionally,

plaintiff claims defendant knew of Detroit’s declining market and only lowered her sales

goals 3%. 

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 15 of 16 Pg ID 1194
16

Finally, plaintiff argues that the disciplinary actions taken against male DMs,

which coincided with her termination, raise a genuine issue as to defendant’s

discriminatory motive. Plaintiff claims defendant took disciplinary actions against the

male DMs as a prophylactic measure. Mauer, Rayburg, and Hirsch were each

disciplined on or around April 4, 2008, the same day plaintiff was fired. Defendant

counters by noting that Siegel was issued a PIP before plaintiff was hired. However,

Flanigan testified that plaintiff was the only DM whose employment he recommended be

terminated. Viewing the evidence as a whole, and in the light most favorable to plaintiff,

the court finds a genuine issue of material fact as to whether defendant’s reason for

plaintiff’s termination is mere pretext.

CONCLUSION

For the reasons set forth above, defendant’s motion for summary judgment is

DENIED.

Dated: July 20, 2011

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

July 20, 2011, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

2:09-cv-10202-GCS-RSW Doc # 40 Filed 07/20/11 Pg 16 of 16 Pg ID 1195