NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0797n.06

No. 13-3382

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DONALD P. SNYDER,

Plaintiff-Appellant,

v.

PIERRE’S FRENCH ICE CREAM CO.,

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF OHIO

BEFORE: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. At the time the controversy in this 

case arose in the summer of 2010, plaintiff Donald Snyder was a 59-year-old former union 

employee of defendant Pierre’s French Ice Cream Company. In October 2011, Snyder brought 

two claims against Pierre’s under the Age Discrimination in Employment Act (ADEA), 

29 U.S.C. § 623(a)(1): a disparate-treatment claim and a hostile-work-environment claim. In his 

disparate-treatment claim, Snyder challenged the company’s recall decisions following a set of 

layoffs, alleging that Pierre’s decision to depart from its practice of recalling laid-off union 

employees to part-time and temporary positions only when Snyder was next-in-line for recall 

constituted age-based discrimination in violation of the ADEA. In his hostile-work-environment 

claim, Snyder alleged that numerous comments by his direct manager, John Bittinger, constituted 

persistent and severe harassment in violation of the ADEA. Pierre’s moved for summary 
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judgment on both counts. Ultimately, the district court granted both motions and entered 

summary judgment in favor of Pierre’s. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Disparate-Treatment Claim

Pierre’s is an Ohio corporation that manufactures and distributes ice cream products. In 

January 2010, the company laid off 11 employees, including seven union members—among 

them, Snyder. In conducting the layoffs, Pierre’s followed the seniority list for the Teamsters 

Local 336 union, to which Snyder belonged, and thus laid off the least senior union member first. 

Beginning in May 2010, due to the seasonal uptick in ice cream sales, Pierre’s was able to recall 

some of the union employees that it had laid off, including James Crowder, Roberto Cruz, and 

Chris Pogozelski, each of whom was more than ten years younger than Snyder. It conducted the 

recalls in order of seniority, recalling the most senior union member first. After Pogozelski was 

recalled, Snyder became next-in-line for recall. 

Pogozelski then resigned on July 20, 2010, and the company had to decide whether and 

with whom to replace him. The collective bargaining agreement between Pierre’s and the union, 

which Snyder helped negotiate, granted Pierre’s the right to hire a limited number of temporary 

workers, who then received lower wages than full-time union employees and did not accrue 

seniority or earn benefits. Because the summer was ending, Pierre’s president, Shelley Roth, and 

David Cillian, Pierre’s manager of operations, “decided that it did not make economic sense to 

bring back a full-time employee for the remainder of the season” to replace Pogozelski. Instead, 

the company hired a temporary worker, who worked part-time at part-time wages and without 

benefits for six weeks. Several other part-time, temporary positions became available at Pierre’s 
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while Snyder was at the top of the recall list. Pierre’s hired temporary workers to fill each of 

those positions.

Hostile-Work-Environment Claim

In 2007, several years before the lay-offs began, night warehouse manager John 

Bittinger, who was Snyder’s direct supervisor and was then 29 years old, began making agerelated derogatory comments toward Snyder, who was 53 at the time. Snyder and another 

employee, Andrew “Ken” Ashcraft, testified that Bittinger called them both “old man” and told 

them they were “too slow” on a daily basis over the course of three years. Snyder testified that

Bittinger also asked him repeatedly if he needed a walker or a cane and once asked him if he 

needed an oxygen tank. Bittinger allegedly told him, “Don, nothing against you personally, but 

if I was in charge, I would never have hired you, you’re too old.” One day while Snyder was 

loading the truck, Bittinger asked Snyder, “Can you handle that, old man?” And, when a truck 

driver came to the warehouse wearing an oxygen mask, Bittinger told Snyder, “That’s going to 

be you pretty soon.” Bittinger’s comments grew so frequent, Snyder testified, “It was just 

abuse.” Snyder also testified that he liked his job and did it well, and that Pierre’s never 

disciplined, suspended, or terminated him. Still, Bittinger’s comments made Snyder feel 

stressed, aggravated, frustrated, and humiliated, he said. His coworkers would stand around 

“kind of chuckling” when Bittinger belittled him. 

Snyder approached Cillian several times to inform him of Bittinger’s harassment. Cillian 

said he would look into the situation and tell Bittinger to stop making derogatory, age-related 

comments to Snyder. 
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Grievance Process

Snyder never filed a grievance while he worked at Pierre’s, saying later that he feared he 

would be fired, but he did initiate the grievance process after he was laid off. An arbitrator 

denied his grievance following a hearing. Snyder subsequently filed a charge of age 

discrimination with the Equal Employment Opportunity Commission (EEOC), complaining 

about Pierre’s use of temporary workers and claiming that Bittinger’s harassment subjected him 

to a hostile work environment. The EEOC issued a dismissal and a right-to-sue letter. Snyder 

then filed this action in federal district court, alleging two claims under the ADEA. Pierre’s 

moved for summary judgment on both counts. The district court granted Pierre’s motion for 

summary judgment as to Snyder’s hostile-work-environment claim and denied it as to Snyder’s 

disparate-treatment claim, finding with respect to the disparate-treatment claim that Snyder 

offered sufficient evidence to proceed to trial. Pierre’s then filed a motion asking the district 

court to reconsider its decision to deny summary judgment as to the disparate-treatment claim. 

The district court granted the motion for reconsideration and, upon reconsideration, granted 

summary judgment to Pierre’s on the disparate-treatment claim as well. Snyder now appeals the 

district court’s decisions granting Pierre’s motion to reconsider and its motion for summary 

judgment on both counts. 

ANALYSIS

Disparate-Treatment Claim

We review a district court’s grant of summary judgment de novo. Geiger v. Tower Auto., 

579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is proper when “the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a); Martello v. Santana, 713 F.3d 309, 313 (6th Cir. 2013). 
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The court must view “the evidence in the light most favorable to the nonmoving party and draw 

all reasonable inferences in that party’s favor.” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 679 

(6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “The 

ultimate question 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.’” 

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

Snyder claims that Pierre’s discriminated against him on the basis of his age when it 

failed to recall him to his job. The ADEA prohibits employers from discriminating against older 

employees with respect to compensation, terms and conditions of employment, or privileges of 

employment because of their age. 29 U.S.C. § 623(a)(1). A failure to rehire an individual after a 

reduction in force can provide the basis of an ADEA claim. See Wanger v. G.A. Gray Co., 

872 F.2d 142, 145 (6th Cir. 1989). In establishing a claim, an ADEA plaintiff may prove age 

discrimination through direct or circumstantial evidence. Geiger, 579 F.3d at 620. If the 

plaintiff lacks direct evidence of discrimination, we apply the McDonnell Douglas burdenshifting framework. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th 

Cir. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Snyder offered no direct evidence of disparate treatment—“that evidence which, if 

believed, requires the conclusion that unlawful discrimination was at least a motivating factor in 

the employer’s actions.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 

2003) (en banc) (internal citation and quotation marks omitted). Direct evidence may “take the 

form, for example, of an employer telling an employee, ‘I fired you because you are disabled [or 

elderly].’” Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998). Thus, in order to prove a 

disparate-treatment claim using direct evidence, Snyder must tie Pierre’s adverse employment 
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decision—here, a failure to recall—to the decision-maker’s age-based bias. Given the facts in 

this record, he cannot do so.

Snyder first attempts to support his disparate-treatment claim with evidence of Bittinger’s 

age-related animus toward Snyder but, in the district court, he failed to offer evidence sufficient 

to persuade a reasonable jury that Bittinger participated in the decision not to recall Snyder. 

Although statements of anyone who is “meaningfully involved” in an adverse employment 

decision may constitute direct evidence, even if that person lacks final decision-making 

authority, Wells v. New Cherokee Corp., 58 F.3d 233, 238 (6th Cir. 1995), “comments made by 

individuals who are not involved in the decision-making process regarding the plaintiff’s 

employment do not constitute direct evidence of discrimination.” Carter v. Univ. of Toledo, 

349 F.3d 269, 273 (6th Cir. 2003). Snyder argues that Bittinger was involved in the recall 

decision because: Bittinger complained to Snyder and Cillian that the older employees Pierre’s 

hired from temporary staffing agencies were too slow and less productive than younger workers, 

which, Snyder claims, showed that Bittinger “consulted with Cillian about personnel decisions”; 

Bittinger’s performance review by Cillian stated that “John [Bittinger] always does his best to 

respond to changes in personnel, inventory and equipment. He consistently assesses his 

personnel needs based upon who may have called-off and reacts accordingly,” which, Snyder 

claims, provides evidence that Bittinger was involved in and influenced Pierre’s hiring decisions;

Cillian copied Bittinger and Sullivan on the recall letters sent to Cruz and Pogozelski; and, 

finally, Bittinger “rode” employees he wanted out of the warehouse, though Snyder identifies 

only two employees, both of whom were “young guys,” as the employees whom Bittinger 

“rode.” No reasonable jury could find, based on this evidence, that Bittinger was involved in 

Pierre’s decisions about whom to recall following the company’s layoffs. 
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Snyder also argues that comments by Sullivan provide direct evidence that the company’s 

failure to recall him was based on age discrimination. Although a reasonable jury might find that 

Sullivan participated in Pierre’s recall decisions, no reasonable jury could conclude that she 

discriminated against Snyder based on his age. Snyder must offer sufficient evidence that a

reasonable jury could “find by a preponderance of the evidence that age discrimination was a 

determining factor in the employer’s decision.” Chappell v. GTE Prods. Corp., 803 F.2d 261, 

268 (6th Cir. 1986). However, an employee’s “personal beliefs, conjecture and speculation 

[regarding his employer’s bias] are insufficient to support an inference of age discrimination.” 

Id. Snyder identifies only one discriminatory comment that Sullivan allegedly made to him. 

According to Snyder’s deposition testimony, Sullivan interviewed Snyder about his 

discrimination complaints and asked him if the manager before Bittinger made any 

discriminatory comments against him. Snyder testified that he told Sullivan that his prior 

manager had not made any discriminatory comments. According to Snyder, Sullivan then said, 

“[Y]ou was much younger back then, Don . . . we was all much younger back then.” No 

reasonable jury could conclude that Sullivan’s isolated comment during her investigation of 

Snyder’s allegations constituted age discrimination. See id. Snyder was therefore unable to tie 

the company’s recall decision to age discrimination using direct evidence.

Because Snyder failed to offer direct evidence of discrimination, we next address 

circumstantial evidence of discrimination by applying the McDonnell Douglas framework. 

Ercegovich, 154 F.3d at 350 (citing McDonnell Douglas Corp., 411 U.S. at 792). Under that 

framework, the plaintiff must first “present evidence sufficient to establish a prima facie case of 

age discrimination,” id., which, if established, “raises a rebuttable presumption of 

discrimination.” Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1390 (6th Cir. 
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1993) (per curiam). If the plaintiff succeeds at this first step, “the burden of production then 

shifts to the defendant employer to provide a legitimate non-discriminatory reason for the 

[adverse employment] action.” Id. If the defendant carries its burden, the burden of production 

shifts back to the plaintiff. Id. At the final stage, the plaintiff must “show that the employer’s 

nondiscriminatory explanation is a mere pretext for intentional age discrimination.” Ercegovich, 

154 F.3d at 350. Here, Snyder’s claim failed at the first step, when he was unable to offer 

evidence sufficient to establish the fourth element of a prima facie case. 

To establish a prima facie case of age discrimination, a plaintiff must demonstrate “by a 

preponderance of the evidence that: (1) he was a member of the protected class (age forty to 

seventy); (2) he was subjected to an adverse employment action; (3) he was qualified for the 

position; and (4) he was treated worse than a younger person.” Barnhart, 12 F.3d at 1390. 

Pierre’s concedes that Snyder satisfied the first three elements of a prima facie case. To satisfy 

the fourth element, Snyder must show that Pierre’s “replaced him with a younger worker or . . . 

treated similarly situated, non-protected employees more favorably.” Mickey v. Zeidler Tool & 

Die Co., 516 F.3d 516, 521-22 (6th Cir. 2008). 

Snyder cannot show that Pierre’s replaced him with a younger worker. An allegation that 

“the employer assigned the former employee’s work to an independent contractor that decided to 

employ younger persons to do the plaintiff’s work is, without more, insufficient to establish a 

prima facie case.” Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 786 (6th Cir. 2007). 

In this case, Pierre’s requested temporary workers from an outside company to fill certain 

positions, and Snyder offered no evidence that Pierre’s requested young workers or played any 

role in choosing the workers the agency provided. Snyder also failed to offer evidence showing 
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that Pierre’s hired anyone to continue performing his job. Thus, Snyder cannot prove the fourth 

element of a prima facie case by demonstrating that he was “replaced with a younger worker.”

Snyder also cannot show that Pierre’s “treated similarly situated, non-protected 

employees more favorably.” Mickey, 516 F.3d at 522. “[I]n 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.” Id. (internal 

quotation marks and citation omitted; emphasis in the original). However, the non-protected 

employee need not “be identically situated to the plaintiff in every single aspect of their 

employment.” Id. (internal quotation marks and citation omitted). Here, Snyder was not 

similarly-situated to the union employees who were recalled because he was lower on the 

seniority list and, at the time the other union employees were recalled, the company had

sufficient work to justify recalling full-time union employees. There is no evidence to suggest 

that Pierre’s had sufficient work to justify recalling Snyder to his full-time position when he was 

at the top of the recall list. Nor was Snyder similarly-situated to the temporary workers the 

company employed instead of recalling Snyder because the temporary workers, who are not 

entitled to the same pay and benefits as union employees, were hired at substantially lower cost 

to the company. Pierre’s was in financial distress around the time of the recalls and exercised its 

business judgment, in accordance with the collective bargaining agreement, to hire temporary 

workers in the middle of July to finish out the summer season. Thus, Snyder has failed to show 

that any of the employees Pierre’s recalled or hired were similarly-situated to him in all relevant 

aspects. Accordingly, we affirm the district court’s grant of summary judgment on Snyder’s 

disparate-treatment claim.
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Hostile-Work-Environment Claim

Snyder’s hostile-work-environment claim also lacks merit. To prove a hostile-workenvironment claim under the ADEA, a plaintiff must demonstrate that (1) he is older than 40 

years; (2) he “was subjected to harassment, either through words or actions, based on age”; (3) 

“[t]he harassment had the effect of unreasonably interfering with the employee’s work 

performance and creating an objectively intimidating, hostile, or offensive work environment”; 

and (4) there is some basis for holding the employer liable. Crawford v. Medina Gen. Hosp., 96 

F.3d 830, 834-35 (6th Cir. 1996). Snyder, of course, satisfies the first element, and a reasonable 

jury could find that Bittinger subjected Snyder to harassment based on his age. Snyder, however, 

cannot satisfy the third element of a hostile-work-environment claim. 

We assess the totality of the circumstances to determine whether an ADEA plaintiff was 

subjected to an objectively hostile work environment. See Thornton v. Fed. Express Corp., 

530 F.3d 451, 455 (6th Cir. 2008). Factors we consider include “the frequency of the 

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere 

offensive utterance; and whether it unreasonably interferes with an employee’s performance.” 

Id. (internal quotation marks and citations omitted). In order to show that the harassment 

interfered with his work performance, Snyder “need not prove that his . . . tangible productivity 

has declined . . . . The employee need only show that the harassment made it more difficult to do 

the job.” Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988). 

Considering the totality of the circumstances, no reasonable jury could find that Snyder’s 

work environment was objectively hostile. See Williams v. Gen. Motors Corp., 187 F.3d 553, 

568 (6th Cir. 1999). Language and conduct that are “merely offensive” are insufficient to 

support a hostile-work-environment claim. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). 
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The record shows that there was a culture of “shop talk” in the warehouse, and Snyder himself 

participated in the banter. Bittinger’s comments did not interfere with Snyder’s ability to 

perform his job; Snyder stated that he liked his job and was good at it. Snyder was never 

disciplined, nor did he receive negative performance reviews. Thus, under the totality of the 

circumstances, Snyder cannot demonstrate that the harassment he alleges was sufficiently severe 

or pervasive that it created an objectively hostile work environment. The district court thus 

properly granted summary judgment to the defendant on Snyder’s hostile-work-environment 

claim.

CONCLUSION

For all of the foregoing reasons, we AFFIRM the district court’s decision granting 

summary judgment to Pierre’s on both of Snyder’s ADEA claims.