1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0218p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

R OBERT S CHEICK , Plaintiff-Appellant ,

v

.

T ECUMSEH P UBLIC S CHOOLS ; P ROFESSIONAL E DUCATIONAL S ERVICES G ROUP , LLC, Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ ┘ No. 13-1558

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit. No. 2:11-cv-10493—Nancy G. Edmunds, District Judge. Argued: May 1, 2014 Decided and Filed: September 2, 2014 Before: GUY, GIBBONS, a nd GRIFFIN, Circuit Judges.

_________________ COUNSEL

ARGUED: James M. Tucker, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curi ae. Jeffrey S. Burg, LAW OFFICES OF , JEFFREY S. BURG, Southfield, Michigan, for Appellant. Kenneth B. Chapie, GIARMARCO, MULLINS & HORTON, P.C., Troy, Michigan, for Appellee Tecumseh Public. Mark R. Smith, RHOADES MCKEE PC, Grand Rapids, Michigan , for Appellee Professional Educational Services. ON BRIEF: James M. Tucker, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., fo r Amicus Curiae. Jeffrey S. Burg, LAW OFFICES OF , JEFFREY S. BURG, Southfield, Mi chigan, for Appellant. Kenneth B. Chapie, Timothy J. Mullins, GIARMARCO, MULL INS & HORTON, P.C., Troy, Michigan, for Appellee Tecumseh Public. Mark R. Smit h, RHOADES MCKEE PC, Grand Rapids, Michigan, for Appellee Professional Educational Services. 

### >No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 2

_________________ OPINION

_________________ RALPH B. GUY, JR, Circuit Judge. Plaintiff Robert Scheick appeals from the judgment entered against him with respect to the claim th at his contract was not renewed because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1), and Michigan’s Elliott-Larsen Civil Righ ts Act (ELCRA), Mic h. Comp. Laws Ann. § 37.2202(1)(a). Scheick argues that summary judg ment should not have been granted in favor of defendant Tecumseh Public Schools (TPS) and third-party defendant Pr ofessional Educational Services Group, LLC (PESG). The EEOC has filed a brief as amicus curiae agreeing in part with Scheick’s contentions. See F ED

. R. A PP

. P. 29(a). Finding that the evidence, viewed in the light most favorable to Scheick, was sufficient to cr eate a genuine issue of material fact for trial, we reverse and remand for further proceed ings consistent with this opinion.

I.

Plaintiff Robert Sche ick was hired as Principal of T ecumseh High School in July 2004, when he was 51 years of age, and continued in that position until July 2010. For the first three years, Scheick was employed directly by TPS. Then, by agreement, the 54-year-old Scheick formally retired from TPS and was hired by the staffing firm PESG to continue working as principal under a three-year c ontract between TPS and PESG through June 30, 2010. Under that arrangement, Scheick began receiving pension a nd health care benefits from the retirement system, and TPS avoided more than $29,000 in payrol l and benefit costs per year. In fact, the next year, several other TPS employees entere d into similar arrangements as cost-saving

measures.
In early 2010, when Scheick was 56 (almost 57) years of age, TPS decided not to renew
the contract for his services. Although PESG’s contract was terminable upon 30-days written notice, there is no dispute that the nonrenewal wa s an adverse employment action with respect to Scheick. Scheick continued to be employed as principal until the contract expired at the end of June 2010, after which he was elig ible for but did not seek a nother assignment through PESG.No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 3

Scheick claimed that the contract was not renewe d because of his age, and he filed this action against TPS after receiving a right-to-sue letter from the EEOC. TPS filed its own third-party complaint for indemnification against PESG, a nd PESG brought a counterclaim against TPS. The claims between TPS and PESG are not befo re the court—only their common position that their motions for summary judgment were prope rly granted with resp ect to Scheick’s age
discrimination claims.
Scheick reported directly to TPS Superintende nt Michael McAran for the last four of his six years as principal (both befo re and after the change of em ployment to PESG). McAran— who is older than Scheick by about ten years— was the sole employee of TPS’s seven-member Board of Education, attended meetings with the Board every two weeks, and had a practice of speaking to the board president ev ery other day. McAran explaine d that he was responsible for overseeing the district, managing the budget, and making final pe rsonnel decisions.

McAran insisted that he alone made the decision not to rene w Scheick’s contract, but also
testified that he discussed the nonrenewal with several board members in dividually and believed there was an informal consensus among the board members in support of his decision. Without specifying when he made that decision, McAran sa id it was “well before” he met with Scheick to discuss what would be Scheick’s first formal performance evaluation on February 25, 2010. McAran admitted that he prepared the performan ce evaluation with the intention of “lay[ing] the groundwork” to end Scheick’ s relationship with TPS.

There was evidence that McAran received co mplaints from several parents, staff, and board members reflecting growi ng dissatisfaction with Scheick’ s performance and a perceived lack of leadership on his part. Two board members—Jim Rice and Karen Januszek—stated by way of affidavit that they had been teachers in the high school and were of the opinion that Scheick was not an effective principal. Sche ick countered with favorable opinions of his performance from Assistant Principal Dennis Nile s and Human Resources Di rector Donna Elser.
The most significant failure identified in th e performance evaluation was the fact that the high school did not meet the state-mandated adequa te yearly progress (AYP ) for two consecutive years due to clerical errors (a lbeit errors not made by Scheick personally). Board Member Jason Sines was particularly concerned ab out this failing. It resulted in negative publicity for TPS, asNo. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 4

did an embarrassing delay of several minutes during the graduation cerem ony the previous year when Scheick left the speeches of the valedictor ian and salutatorian in his office. Scheick’s
attendance at school functions was al so described as deficient, incl uding an incident when he left a concert early and two teachers had to handle a predictably volat ile parent in his absence.

The review identified other deficiencies th at had occurred in recent years including: failing for a second time to ensure that transcri pts of college-bound student athletes made it to the NCAA’s eligibility center; failing to pr operly coordinate homebound-student services; mishandling an issue concerning a special educ ation student’s accommodations; and failing to notify the parents of a student appearing at an expulsion hearing before the Board. Several of these issues were raised informally with Scheic k, but no further disciplina ry action was taken at the time. Although the evaluation rated two ar eas in need of slight improvement, McAran testified that, overall, this was a “good, compet ent” evaluation. Without denying that these incidents had occurred, Scheick re sponded to each of the noted de ficiencies in a letter dated March 8, 2010. On that same date, McAran sent written notice to PESG th at Scheick’s contract
would not be renewed.

Scheick claims that McAran made statemen ts to him suggesting age-based animus on three occasions: namely, (1) in informing Scheick that the Board wanted hi m to retire during the performance review on February 25; (2) in telling Scheick that “the y just want somebody younger” in an exchange on February 26; and (3) in explaining to Scheick that “they wanted someone younger” in reference to both of their positions in a follow-up conversation on March 15. McAran disputed Scheick’s accounts of their c onversations, in part, and denied that he said the decision had anything to do with Scheic k’s age. Scheick and the EEOC contend that testimony concerning these statements constitu ted direct evidence of age discrimination.
Overlapping the reasons given by McAran, TPS also maintained that the nonrenewal was the result of budget cuts that we re discussed and drafted by the board’s finance committee during January and February 2010. The evidence includ ed affidavits by two board members—Rice and Kevin Packard—who explained that newly announced reductions in state funding had substantially worsened the anticipated budget deficit for the following year. The finance committee proposed significant cuts—including closing an elementary school, selling theNo. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 5

administration building, reducing transportation, and eliminating several positions—as part of the budget that was presented to the Board on Marc h 9, 2010. TPS maintained that this proposed budget contemplated elimination of the high school principal position (for an annual savings of more than $100,000).
Rice and Packard explained that consolida tion of the principal and superintendent positions “made sense” since Scheick’s contract was ending, the administrative offices were to be relocated to the high school building, and McAran had experien ce as a building principal. They both specifically denied that Scheick’s age was a fact or in those discussions, and emphasized that the Board had approved several ot her contracts with PESG for administrators who were the same age or older than Scheick had been when his cont ract was not renewed. 1

The Board approved the budget sometime in Ma y 2010, and Scheick’s contract expired at the end of June 2010. McAran, who was in his mi d-sixties at the time, assumed the duties of both positions on July 1, 2010. McAran and TPS Fi nance Director William Wright testified that they expected the consolidation of these positions to last for one or tw o years. The situation changed unexpectedly, however, when the Board lear ned just before its July 19 meeting that the reductions in state funding would likel y be smaller than anticipated.
With smaller than expected cuts in state funding (together with grea ter than expected enrollment), the Board decided to restore a number of the eliminated positions once the additional funding was approved. The position of high school principal was posted in advance of the approval (along with one other position). In August 2010, TPS hired 44-year-old Griff Mills to be the high school principal. McAran relin quished the principal’s duties and continued to serve as superintendent. Since Griff was a dir ect hire, TPS incurred payroll and benefit costs associated with the position that had previ ously been avoided by c ontracting through PESG.
In granting summary judgment to TPS and PESG, the district court found that Scheick had not presented direct evidence of age discrimination; could not show that he was replaced by a younger person; and that, even if he could make a prima facie showing of age discrimination,

1 Specifically, TPS approved an extension of the PESG contract for Human Resources Director Donna Elser, age 57, and entered into contracts with PESG for se rvices of Payroll Specialist Jim Brown, age 67; Secretary Cheryl Lloyd, age 62; and Director of Finance William Wright, age 59.No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 6

he failed to present sufficient evidence to establ ish pretext. Summary j udgment was entered in favor of TPS and PESG for the reasons set fort h in the opinion and order of March 19, 2013, and plaintiff’s motion for reconsideration was denied for the reasons stated in the order entered on April 30, 2013. This timely appeal followed.

II.

The district court’s decisi on granting summary judgment and its denial of the motion to
reconsider that decision are both reviewed de novo. Geiger v. Tower Auto. , 579 F.3d 614, 620 (6th Cir. 2009); Medical Mut. of Ohio v. Amalia Enters., Inc. , 548 F.3d 383, 389-90 (6th Cir. 2008). Summary judgment is appropri ate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F ED

. R. C IV

. P. 56(a). In making this determination, the court must “view the evidence and draw all reasonable inferences in favor of the non-moving party.” Fuhr v. Hazel Park Sch. Dist. , 710 F.3d 668, 673 (6th Cir. 2013). For a genuine dispute to exist, “there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986).

A. Standards
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge . . . or otherwise discriminate against any indi vidual with respect to his compensation, terms, conditions, or privileges of employment, becau se of such individual’s age.” 29 U.S.C. § 623(a)(1). To prevail on a clai m under the ADEA, it is not sufficient for the plaintiff to show that age was a motivating factor in the advers e action; rather, the ADEA’s “because of” language requires that a plaintiff “prove by a preponderan ce of the evidence (which may be direct or circumstantial) that age was th e ‘but-for’ cause of the chal lenged employer decision.” Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 177-78 (2009) (citing Reeves v. Sanderson Plumbing Prods,
Inc. , 530 U.S. 133, 141-43, 147 (2000)). For an employer to take an adverse action “because of age” means “‘that age was the “reason” that the employer decided to act.’” Univ. of Tex. Sw.No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 7

Med. Ctr. v. Nassar , 133 S. Ct. 2517, 2527 (2013) (quoting Gross , 557 U.S. at 176) (extending
Gross to retaliation claims under Title VII). 2

Gross clarified that the burden of persuasion does not shift to the employer in an ADEA case, “even when a plaintiff has produced some evidence that age was one motivating factor in that decision.” 557 U.S. at 180; see Geiger , 579 F.3d at 621 (recognizi ng abrogation of prior precedent in direct evidence cases under the ADEA). But, as this and every other circuit has held, application of the McDonnell Douglas evidentiary framework to prove ADEA claims based
on circumstantial evidence remains consistent with Gross

. See Schoonmaker v. Spartan Graphics Leasing, LLC , 595 F.3d 261, 264 n.2 (6th Cir. 2010) (citing Geiger , 579 F.3d at 622); Sims v. MVM, Inc. , 704 F.3d 1327, 1332-33 (11th Cir. 2013) (collecting cases).
Further, nothing in Gross undermines the principle that “[t]he direct evidence and circumstantial evidence paths are mutually excl usive; a plaintiff need only prove one or the other, not both.” Kline v. TVA , 128 F.3d 337, 348-49 (6th Cir. 1997); see also Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 121 (1985) (“ McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination”). The district court found that Scheick had not demonstrated a que stion of fact under e ither evidentiary path. Regardless of the evidentiary route taken, however, “[t]he ultim ate question in every employment discrimination case involving a claim of disparate treatment is whether the plainti ff was the victim of intentional
discrimination.” Reeves , 530 U.S. at 153.

B. Direct Evidence

Before Gross , our circuit defined direct evidence as that evidence “w hich, 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); see also DiCarlo v. Potter , 358 F.3d 408, 415-16 (6th Cir. 2004) ( overruled on other

2 Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) pr ovides that an employer shall not discriminate against an individual with respect to employment “because of . . . age.” M ICH

. C OMP

. L AWS A NN . § 37.2202(1)(a). The district court analyzed the age discrimination claims brought under the ELCRA using the same standards we apply to claims brought under the ADEA. See Geiger , 579 F.3d at 626; Bondurant v. Air Line Pilots Ass’n , 679 F.3d 386, 394 (6th Cir. 2012); see also Howard v. Mich. Dep’t of Corr. , No. 344258, 2013 WL 2223133 (Mich. Ct. App. May 21, 2013). Plaintiff has not argued that this was error, and any claim that the Michigan courts would analyze the claim differently has been waived.No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 8

grounds by Gross , 557 U.S. at 180, as stated in Geiger , 579 F.3d at 621). Because Wexler ’s definition does not survive in the ADEA context after Gross , we now look to whether evidence, if believed, requires the conclusion that age was the “but for” cause of the employment decision. Under either articulation, the inquiry includes bo th a predisposition to discriminate and that the employer acted on that predisposition. DiCarlo , 358 F.3d at 415. In ot her words: “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) (citing cases);
see also DiCarlo , 358 F.3d at 415. As noted, Scheick testified that McAran made statements to him on three occasions suggest ing that the nonrenewal deci sion was caused by age-based
animus.
1. Statements by McAran
First, on February 25, McAran allegedly began Scheick’s first formal performance review by stating: “The Board wa nts you to retire.” McAran expl ained that the Board wanted to have someone as high school principal who would take over as superintende nt after a few years, and then asked Scheick how long he intended to work. Scheick answ ered that he wanted to work at least two more years, although he did not “get a chance” to also say that he would possibly stay longer. They discussed the performance evaluation and whether a “buyout” or a one-year extension of the contract under a performance im provement plan might be possible. Scheick testified that when he added, “or the [B]oard c ould force you to fire me,” McAran agreed with
him.
The following day, February 26, McAran approa ched Scheick to ask whether he was “all right” and whether he would be interested in a “buyout.” Then, according to Scheick, McAran volunteered that “they just wa nt somebody younger.” Finally, on March 15, a week after notice of the nonrenewal was sent to PESG, Scheick ma de an appointment and met with McAran to discuss his options. McAran sa id he had no options, and explai ned that “they wanted someone younger.” Scheick asked what he meant, and McAran said they wanted someone younger for both the principal and superintendent positions. McAran, on the other hand, claimed that he had been referring only to himself.No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 9

2. Analysis
TPS and PESG argue that these statements do not constitute direct evidence because they are ambiguous with respect to who “they” referred to, what position or positions were being referenced, and whether the statements re flected the intent of the decisionmaker. 3

The first statement, made during the perf ormance review, did not constitute direct evidence of age discrimination. As the district court found, McAr an’s statement that the Board wanted Scheick to retire would re quire an inference to conclude that retirement was a proxy for age (as opposed to either years of service or a desire that he leave the position voluntarily). See,

e.g. , Scott v. Potter , 182 F. App’x 521, 526 (6th Cir. 2006) (finding the statement “[w]hy don’t you retire and make everybody happy” did not constitu te direct evidence of age discrimination).
In contrast, McAran’s other two statemen ts about wanting “someone younger” are not ambiguous and, if believed, do not require an infe rence to conclude that age was the but-for cause of the decision not to re new Scheick’s contract. First, the statements by McAran to Scheick on February 26 and Ma rch 15, respectively, represent di rect references to age. See Sharp v. Aker Plant Servs. Grp., Inc. , 726 F.3d 789, 794 (6th Cir. 2013) (involving statement “we want someone younger”). Moreover, the stat ements are not ambiguous despite the lack of an explicit statement that “the Board” wanted someone younger. Cf. Fuhr , 710 F.3d at 674 (finding ambiguities required infe rences about what part of the “old boys network” took which unspecified retaliatory ac tions). Any suggestion that “they” could have referred to parents or staff is not credible. Rather, as Scheick a nd the EEOC argued, McAran could not have been referring to anyone other than the Board (whe ther formally or by informal consensus). 4

Nor are McAran’s alleged statements made ambiguous because there is uncertainty about whether McAran was referring only to Scheick’s pos ition as principal or to both the principal

3 There is no dispute that McAran’s alleged statements would be relevant to show age-based bias in connection with the nonrenewal decision; the only question is whether they constitute direct evidence of age discrimination. See Peters v. Lincoln Elec. Co. , 285 F.3d 456, 478 (6th Cir. 2002) (identifying four factors to be considered in evaluating statements that allegedly show an employer’s age bias); see also Diebel v. L&H Res., LLC , 492 F. App’x 523, 526 (6th Cir. 2012). 4 Scheick and the EEOC also argued that McAran must have been referring to th e Board because his first statement about retiremen t expressly referenced the Board. However reasonable such an inference might be, it would require an inference to reach that conclusion.No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 10

and superintendent positions. Either way, McAran was at least referring to Scheick’s position. Finally, TPS argues that there is ambiguity about whether the statements reflected the intention of the decisionmaker. However, because ther e was evidence that both McAran and the Board were involved in making the decision, it is immate rial whether McAran was acting at the behest of the Board, or on his own with input from the Board. Cf. Brown v. Packaging Corp. of Am. , 338 F.3d 586, 589-90 (6th Cir. 2003) (statement by supervisor with no involvement in the decision was not direct evidence of age discri mination). Thus, Scheick presented evidence which, if believed, would require the conclusion th at age was the but-for cause of TPS’s decision
not to renew the contract.

C. But-For Causation
The EEOC asserts that, by definition, the presentation of dir ect evidence of age
discrimination necessarily precludes entry of summary judgme nt in favor of the employer. Although this question has not been squa rely addressed in the case law since Gross , the EEOC’s
citation to Geiger does not support its contention that direct evidence will always defeat an employer’s motion for summary judgment w ith respect to claims under the ADEA.

In Geiger , after finding that direct evidence of ag e discrimination had not been presented, this court also held that, even if the plaintiff had established a link between the allegedly biased
actor and the adverse acti on, “the record clearly i ndicates that age was not the ‘but-for’ factor in [the] decision to choose [another] over Geiger.” Geiger , 579 F.3d at 622 n.3. This conclusion recognizes that Gross altered the burden of proof on the issue of causation and indicates that direct evidence of age discrimination may not always be sufficient to create a question of fact for
trial in the ADEA context. See also Hnizdor v. Pyramid Mouldings, Inc. , 413 F. App’x 915, 918 (7th Cir. 2011) (holding that despite direct evidence of age-ba sed animus, undisputed evidence of longstanding plan to move accounting depart ment established that no rational juror could conclude that age was the but-for cause of the adverse action). 5

5 The EEOC’s passing citation to Sharp is also unavailing. There, alth ough direct evidence was presented, the court considered evidence of other explanations and co ncluded that the “true reason” for the adverse action could not be determined as a matter of law. Sharp , 726 F.3d at 802 (applying Gross to claim under Kentucky law).No. 13-1558 Scheick v. Tecumseh Public Sch., et al. Page 11

Moreover, it is telling that Gross relied on Reeves , which, in turn, re iterated that “trial courts should not treat discrimination differently from other ultimate questions of fact.” Reeves , 530 U.S. at 148 (citation and inte rnal quotation marks omitted). The Court explained that the ultimate question (even under McDonnell Douglas ) is whether the evidence taken together “may permit the trier of fact to conclude that the employer unlawfully discriminated.” Id . Thus, even when direct evidence of age disc rimination has been offered, the que stion to be asked in deciding an employer’s motion for summary judgment is wh ether the evidence, taken as a whole and in the light most favorable to plaintiff, is sufficient to permit a rational trier of fact to conclude “that age was the ‘but-for’ cause of the challenge d employer decision.” Gross , 557 U.S. at 178.
Here, notwithstanding the evidence of dissatis faction with Scheick’s performance and the concurrent need to respond to the budget crisis, the evidence, ta ken as a whole and in the light most favorable to Scheick, is sufficient to perm it a reasonable juror to conclude that Scheick’s age was the but-for cause of TPS’s decision not to renew the contract for his services. Although TPS or PESG may ultimately prove otherwise, Sc heick has met his burden to come forward with evidence sufficient to establish that a genuine issue of material fact exists for trial.

REVERSED and REMANDED for further proceedings cons istent with this opinion.