Opinion
CASE NO. 1:10-CV-01439.
March 10, 2011
OPINION ORDER [Resolving Doc. No. 30, 39]
In this Family Medical Leave Act ("FMLA") and age discrimination case, Defendants Ohio Bell Telephone Company ("Ohio Bell") and James Tench, move for summary judgment. [Doc. 30.] The Defendants say that no evidence supports the Plaintiffs' claims that they were fired due to their age or their use of FMLA leave. The Defendants say that the Plaintiffs were fired due to their inability to meet minimum job performance requirements. [ Id .] The Plaintiffs, Eva Blount and Diane Durrah, oppose the motion. [Doc. 34.] The Defendants replied. [Doc. 41.]
As a preliminary matter, the Court DENIES the Defendants' motion to strike the Plaintiffs' brief in opposition to summary judgment and the accompanying evidentiary appendixes. [Doc. 39.] The Court finds that the Plaintiffs' opposition papers were timely filed and declines to strike them from the record.
I. Background
Plaintiffs Eva Blount and Diane Durrah sue their former employer, Ohio Bell Telephone Company for discriminatory and retaliatory termination. Specifically, Plaintiffs Blount and Durrah claim the following causes of action: (1) discharge in retaliation for taking protected medical leave under the Family Medical Leave Act, 29 U.S.C. §§ 2612 2615(a)(2) and (2) age discrimination under Ohio Revised Code Section 4112.14. [Doc. 1-1.] The Court must consider whether Ohio Bell fired the Plaintiffs because of their deficient performance or, conversely, because of their age or their use of FMLA leave.Plaintiff Eva Blount was employed by Defendant Ohio Bell from August 26, 1996, until Ohio Bell fired her on March 31, 2008. [Doc. 30-1 at 2.] Plaintiff Blount was forty-six at the time of her termination. [ Id. at 19.] Ohio Bell employed Plaintiff Diane Durrah from December 4, 2000, until it fired her on January 25, 2008. [ Id. at 2.] Plaintiff Durrah was fifty-four at the time she was fired. [ Id. at 19.] For the duration of their employment, both women were employed as customer service representatives at Ohio Bell's Consumer Call Center in Cleveland, Ohio. [ Id. at 2-3.] For a two year period — ending in the fall of 2006 — the women were both employed in separate department at the call center called "Win-Back"; however, when that department was eliminated, both women were returned to their regular customer service jobs. [ Id. at 3.] In their normal call customer service positions, the women were responsible for fielding incoming calls from customers and also offering the customers new products and services. [ Id. at 1.]
During their time at the call center, the Plaintiffs were under three levels of supervision. Directly supervising the women were "Coach Managers." [ Id. at 3.] After her return from "Win-Back" in late 2006 through October 2007, Plaintiff Blount's Coach Manager was Tony Woods; from October 2007 through December 2007 her Coach Manager was Cheryl McGraw; and from January 2008 until her termination, her Coach Manager was Rahul Vora. [ Id. at 4.] The Coach Managers reported directly to a Center Sales Manager. [ Id. at 4.] All of Plaintiff Blount's Coach Managers directly reported to Center Sales Manager Defendant James Tench. [ Id. at 4.] Additionally, Tony Woods, Plaintiff Blount's Coach Manager through October 2007, states that the Coach Managers assigned to Defendant James Tench were also required to report to Center Sales Manager Dionna Prentiss, and that the Coach Managers took direction and orders from both Defendant Tench and Dionna Prentiss. [Doc. 30-9 at 5-6.] Similarly, from returning from "Win-Back" in late 2006 through her termination, Plaintiff Durrah's Coach Manager was Lecianya Williams. [Doc. 30-1 at 4.] Durrah's Coach Manager, Lecianya Williams, reported directly to Center Sales Manager Freeze McCarter. [ Id. at 4.] All of the Center Sales Managers responsible for overseeing the Plaintiffs reported directly to General Manager Ryan Gunn until August 2007, and then to General Manager Scott Willis. [ Id. at 4.]
In January 2006, Ohio Bell began implementing a new system designed to gauge the performance of its customer service representatives called Performance Achievement Review ("PAR"). [ Id. at 4.] The PAR system scored representatives on a 100 point scale, with the score largely determined by objective ratings, such as meeting sales quotas, efficient resolution of calls, and otherwise following required call protocol. [ Id. at 5.] During 2006, representatives were required to meet ninety percent of their goals to avoid discipline; in January 2007, this marker was decreased to eighty percent; and in March 2007, this goal was increased to eighty-five percent. [ Id. at 5-6.]
Customer sales representatives who did not score sufficiently high on this system would be subject to performance-based progressive discipline scale. [ Id. at 5-6.] Generally, Ohio Bell first gave a written warning, followed by a final written warning paired with a one day suspension, and then suspension pending termination. [ Id. at 6.] However, at each step of this scale, Ohio Bell managers had great discretion whether to repeat a step, advance an employee to the next step, or to forgo discipline entirely. [ Id. at 6.] Additionally, rather than disciplining an employee, Ohio Bell could institute a personalized performance improvement plan. [ Id. at 6.]
It is unclear who at Ohio Bell made the final decision to discipline and terminate employees. The Defendant states that all disciplinary decisions were made by the General Manager at the call center — Ryan Gunn until August 2007, and then Scott Willis at the time of the Plaintiffs' terminations. [ Id. at 4.] However, the Plaintiffs proffer evidence, including the testimony of Tony Woods, one of Plaintiff Blount's Coach Managers, that suggests that decisions to discipline workers were often made further down the supervisory chain, likely at the level of the Center Sales Manager. [Doc. 30-9; Doc. 36-1 at 3.] Woods states that many final decisions regarding discipline were made by Defendant James Tench and Dionna Prentiss, both Center Sales Managers indirectly overseeing Plaintiff Blount. [Doc. 30-9 at 24-29.] Wood also testified that he sat in meetings during 2007 in which Defendant James Tench and Dionna Prentiss specifically discussed targeting individuals who took FMLA leave with increased punishment and that individuals who took FMLA leave were progressed through the disciplinary chain much more quickly than were individuals who did not take FMLA leave. [ Id. at 24-29.]
It is undisputed that both Plaintiffs Blount and Durrah consistently failed to meet their PAR scoring expectations. [Doc. 30-1 at 7; Doc. 34 at 1-2.] For example, from January 2007 through her termination in March 2008, Plaintiff Blount did not once meet her monthly performance expectations under PAR. [Doc. 30-1 at 7-8.] Similarly, from January 207 through her termination in January 2008, Plaintiff Durrah also did not once meet her monthly performance expectations under the PAR system. [ Id. at 9-10.] However, the Plaintiffs allege that they were progressed much more quickly through the disciplinary process than were other workers due to their age and their use of FMLA leave.
Plaintiff Blount was subject to discipline for the first time on May 2, 2007. This discipline was based upon her March 2007 performance, and Blount was given a written warning and was also provided with a personalized plan to improve her performance. [Doc. 30-1 at 8.] Blount again failed to meet her performance quota in April 2007. She was progressed to the second stage of discipline and was given a final written warning and was also suspended for one day on May 24, 2007. [ Id. at 8.] Despite not meeting her goals in subsequent months, Blount was not subject to any discipline for her performance during the months of May or June 2007. [ Id. at 8.] Rather, on July 30, 2007, Blount was given another personalized performance improvement plan to help increase her monthly scores. [ Id. at 8.] However, because Blount's scores in for July 2007 were also low, on August 24, 2007, she was issued another final written warning and was again suspended for one day. [ Id. at 8.]
On September 26, 2007, Blount was suspended pending termination due to her August 2007 performance. [ Id. at 8.] However, under an agreement with Blount's union, Ohio Bell provided Blount a second chance on October 22, 2007, under a "Back to Work Agreement." [ Id. at 8.] Under this agreement, Blount's employment was continued, but Ohio Bell reserved the right to terminate Blount if her performance fell below the minimum required PAR score in any given month. [ Id. at 8; Doc. 34 at 11.] Despite this second chance, Blount failed to meet her PAR goals over the next three months — October, November, and December — and on January 28, 2008, Blount received another final written warning paired with a one day suspension. [Doc. 30-1 at 8.] At the time of her suspension, Blount was sent a letter by her Coach Manager, Rahul Vora, which stated that Ohio Bell and Blount "will continue to partner together using the Performance Improvement Plan that is already in place . . ." and that "I [Vora] am confident that you can improve your performance [and] . . . [am] committed to your success." [Doc. 35-3.] Several days later, on February 5, 2008, Blount says she became ill with pneumonia; because of illness Blount took FMLA leave and did not return to work until the end of March. [Doc. 34 at 12.] On March 31, 2008, when Blount returned from her FMLA leave, her Coach Manager Rahul Vora told her that her employment had been terminated, effective immediately, allegedly due to her poor performance during the month of January 2008. [ Id. at 13.]
Plaintiff Diane Durrah had a stronger work record than Blount (although her scores were still below the PAR goals), but she was progressed more quickly through the disciplinary process than was Blount. Plaintiff Durrah spent most of the month of February 2007 absent from work on FMLA leave. [Doc. 34 at 16.] Despite missing most of the previous month, Durrah was given her first written warning on March 22, 2007, due to her low performance during February 2007. [Doc. 30-1 at 10.] Durrah did not receive discipline for her low performance during the months of March and April 2007; rather, Ohio Bell instituted a personalized performance improvement plan for her on April 10, 2007. [Doc. 30-1 at 10.] From April 30, 2007 to July 11, 2007, Plaintiff Durrah took FMLA leave after having carpal tunnel surgery. [Doc. 34 at 17.] On August 28, 2007, Durrah was disciplined — she was again given a first written warning due to her low performance during July 2007. [Doc. 30-1 at 10.]
On October 2, 2007, Durrah was issued a final written warning paired with a one day suspension and an updated performance plan. [ Id. at 10.] On November 5, 2007, the Defendant repeated the second step of discipline — a final written warning paired with a one day suspension — because of Durrah's low scores during September 2007. [ Id. at 10.] Durrah's performance did not improve and she was given another final written warning on December 6, 2007, based upon her low scores in October 2007. [ Id. at 10.] For the entirety of the month of December 2007, Plaintiff Durrah was out on FMLA leave. [Doc. 34 at 16.] Upon her return to work in January 2008, Plaintiff Durrah was terminated; Defendant Ohio Bell says that the termination was due to her low PAR score during November 2007, and not at all related to her use of FMLA leave. [Doc. 30-1 at 10.]
There is some dispute over the exact date of Durrah's termination. Plaintiff Durrah says that she was terminated on January 14, 2008. [Doc. 34 at 16.] Defendants say that Durrah was suspended pending termination on January 7, 2008, and that the termination was upheld after a Review Board Hearing on January 22, 2008. [Doc. 30-1 at 10.] The Court does not find that the exact date of the termination is particularly relevant to a determination of whether the termination was due to legitimate or illegitimate reasons.
On February 10, 2011, the Defendants moved for summary judgment. [Doc. 30.] The Defendants say that they are entitled to summary judgment because: (1) the Plaintiffs fail show that their use of FMLA leave was related to their termination, (2) the Plaintiffs cannot prove that the proffered reason for termination was pre-textual; (3) all of the claims brought under the FMLA are time barred; and (4) the Plaintiffs fail to proffer any evidence of age-related discrimination. [Doc. 30-1.]
II. Legal Standard
Summary judgment is appropriate when "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). The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party's case. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The moving party meets its burden by "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. , 477 U.S. at 323 (quoting Fed.R.Civ.P. 56(c)).
Once the moving party satisfies its burden, the burden shifts to the non-moving party to set forth specific facts showing a triable issue. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). In responding to a summary judgment motion, the non-moving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence to defeat a properly supported motion for summary judgment." Street v. J.C. Bradford Co. , 886 F.2d 1472, 1477 (6th Cir. 1989) (internal quotation omitted). The non-moving party must adduce more than a scintilla of evidence to overcome the motion. Id .
In deciding summary judgment, the Court views the factual evidence and draws all reasonable inferences in favor of the non-moving party. Thomas v. Cohen , 453 F.3d 657, 660 (6th Cir. 2004) (citations omitted). Ultimately, the Court must decide "whether the evidence presents 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." Martingale , 361 F.3d at 301 (citing Terry Barr Sales Agency, Inc. v. All-Lock Co. , Inc., 96 F.3d 174, 178 (6th Cir. 1996) (internal quotations omitted).
III. Analysis
III.A. Family Medical Leave Act
The Plaintiffs first bring a claim of unlawful retaliation and discrimination under the Family Medical Leave Act,29 U.S.C. § 2615(a)(2). The FMLA permits eligible employees to take unpaid temporary medical leave for up to twelve weeks in a twelve month period due to a "serious health condition" that prevents the employee from performing the functions of her job.29 U.S.C. § 2612. Employees who utilizes FMLA leave are entitled to be restored to their positions, or an equivalent one, upon their return.29 U.S.C. § 2614(a)(1). An employer may not discriminate or retaliate against an employee for taking FMLA leave.29 U.S.C. § 2615(a)(2). In particular, an employer is prohibited from "us[ing] the taking of FMLA leave as a negative factor in employment actions," or in any other manner discriminat[ing] against any individual" who utilizes FMLA leave. 29 U.S.C. § 2615(a)(2); 29 C.F.R. § 825.220(c) ; Arban v. West Publ'g Corp. , 345 F.3d 390, 403 (6th Cir. 2003).
Plaintiffs claiming FMLA retaliation may prove their cases using either direct or indirect circumstantial evidence. Direct and indirect cases proceed under separate analytical frameworks, and the decision which framework to use depends upon the type of evidence proffered by the plaintiff. "[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. Schering-Plough Healthcare Prods. Sales Corp. , 176 F.3d 921, 926 (6th Cir. 1999). "Consistent with this definition, direct evidence of discrimination does not require a 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). "`The evidence must establish not only that the plaintiff's employer was predisposed to discriminate . . . but also that the employer acted on that predisposition.'" DiCarlo v. Potter , 358 F.3d 408, 415 (6th Cir. 2004) (quoting Hein v. All America Plywood Co. , 232 F.3d 482, 488 (6th Cir. 2000)). "Evidence of discrimination is not considered direct evidence unless a[n improper] motivation is explicitly expressed." Amini v. Oberlin Coll. , 440 F.3d 350, 359 (6th Cir. 2006).
Unlike in the indirect evidence framework, "an employee who has presented direct evidence of improper motive does not bear the burden of disproving other possible nonretaliatory reasons for the adverse action. Rather, the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive." Weigel v. Baptist Hosp. of E. Tenn. , 302 F.3d 367, 382 (6th Cir. 2002).
Here, the Plaintiffs proffer direct evidence that their termination was due, at least in part, to the discriminatory animus of both Defendants Ohio Bell and James Tench. Tony Woods, one of Plaintiff Blount's Coach Managers, states that many final decisions regarding discipline were made by Defendant James Tench and Dionna Prentiss, Center Sales Managers, and that he sat in meetings during 2007 in which Tench and Prentiss specifically discussed targeting individuals who took FMLA leave with increased punishment. [Doc. 30-9 at 24-29.] Woods also said that although all of the individuals who were punished had failed to meet their PAR expectations, those individuals taking FMLA leave were purposely progressed much more quickly through the disciplinary chain than were individuals who did not take FMLA leave. [ Id. at 24-29.] Taking this testimony as true, the Court finds that it constitutes testimony direct evidence of discrimination. See Nguyen v. City of Cleveland , 229 F.3d 559, 563 (6th Cir. 2000) (stating that direct evidence would be "a facially discriminatory employment policy or a corporate decision maker's express statement of a desire to remove employees in the protected group"); Downey v. Charlevoix County Bd. of Road. Commr's , 575 N.W.2d 712, 717 (Mich. Ct. App. 1998) (finding that stated policy of targeting older workers constitutes direct evidence of discrimination).
Indeed, the Plaintiffs proffer evidence suggesting that Defendant Tench and other Center Sales Managers possessed the authority to make disciplinary decisions and that there was a stated policy among the Sales Managers to punish FLMA users more heavily. Moreover, even if the decision to punish and terminate resided higher in the supervisory chain, as Defendants argue, the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub v. Proctor Hospital , ___ S. Ct. ___, 2011 WL 691244, at *5-7 (Mar. 1, 2011) (holding that discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).
In direct evidence cases, once a plaintiff shows that the prohibited classification played a motivating part in the employment decision, the burden of both production and persuasion shifts to the employer to prove by a preponderance of the evidence that it would have terminated the employee even had it not been motivated by impermissible discrimination. DiCarlo , 358 F.3d at 415 ; Manzer v. Diamond Shamrock Chemicals Co. , 29 F.3d 1078, 1081 (6th Cir. 1994). Here, taking all disputed facts in the Plaintiffs' favor, the testimony of Tony Woods alone — who stated that the Center Sales Managers possessed the power to discipline employees and that the Managers at the Cleveland office actively enforced a policy of discrimination against FMLA users — is sufficient to shift the burden to the Defendants. Because the Plaintiffs proffer direct evidence of discriminatory animus, the burden shifts to the Defendants to prove by a preponderance of the evidence that it would have terminated the Plaintiffs regardless of their use of FMLA leave. Daugherty v. Sajar Plastics, Inc. , 544 F.3d 696, 707 (6th Cir. 2008).
The Defendants say that the Court should entirely disregard the testimony of Tony Woods as irrelevant. The Defendants say that this testimony is improper "me too" evidence, which cannot be the basis for a claim of discrimination. [Doc. 30-1 at 16.] The Court disagrees with this point and instead finds Woods's testimony a crucial piece of evidence. The Defendants are correct that the Plaintiffs cannot solely rely upon evidence that other employees were discriminated against to make their own case. However, here, the Plaintiffs proffer evidence indicating that the entire workplace was permeated with a policy of discrimination that in all likelihood — if this testimony is true — directly bore upon the decisions to discipline and terminate the Plaintiff.
The Court also rejects the Defendants' argument that this claim is not timely. The statute of limitations under the FMLA is subject to a two-year statute of limitations period, unless the violation was "willful," in which case the limitations period is extended to three years. 29 U.S.C. § 2617(c)(1). Here, the Plaintiffs proffer sufficient evidence, if accepted as true, that would establish the Defendants' alleged violations of the FMLA were willful and purposeful. Accordingly, the Court finds this claim to be timely.
Defendant Ohio Bell says that it terminated the employment of both Plaintiff Blount and Durrah because neither woman was able to adequately perform the functions of their job. [Doc. 30-1 at 14.] Specifically, the Defendants say that the Plaintiffs "demonstrated a sustained inability or unwillingness to meet objective minimum performance requirements." [ Id. at 14.] In making this argument, the Defendants rely almost entirely on the Plaintiffs' performance record, which shows that both Plaintiffs were consistently unable to meet their PAR expectations. [ Id. at 14.] However, this evidence speaks primarily to a relatively undisputed point; neither of the Plaintiffs claim that they were able to meet the job expectations under the PAR system. Rather, both argue that they were subject to discipline, and ultimately terminated, more quickly than were other workers who also failed to meet their PAR goals but who did not use FMLA leave. [Doc. 34 at 2-3.]
In support of this point, the Plaintiffs point out the fact that they were both terminated immediately upon returning from FMLA leave. Indeed, Blount's employment was terminated immediately upon returning from leave and Durrah's was terminated within two weeks. [ Id. at 8.] Blount's termination is particularly suspicious. On January 28, 2008, she was sent a letter detailing the discipline that was being taken against her due to her poor December 2007 performance. [Doc. 35-3 at 10.] This letter also expresses a clear intention to afford Blount a chance to improve her scores. [ Id. ] One week later, Blount left for nearly two months on FMLA leave and upon her return to work she was terminated. [Doc. 34 at 12.] Despite only working for one week between the writing of this letter and her termination, the Ohio Bell's intention to continue working to improve her performance dissipated and the only intervening event that could explain this change was Blount' FMLA leave. [ Id. at 12-14.]
In both Blount's and Durrah's cases, this temporal proximity creates some inference of improper motive. See Lindsay v. Yates , 578 F.3d 407, 418-19 (6th Cir. 2009); Mickey v. Zeidler Tool Die Co. , 516 F.3d 516, 523 (6th Cir. 2008); DiCarlo , 358 F.3d at 421 . This is particularly true where, as here, both women could have been terminated due to their performance on a number of previous occasions. For example, under Blount's October 2007 "Back to Work Agreement," Ohio Bell retained the right to fire Blount if her PAR score was below target in any month. [Doc. 30-1 at 9.] Yet, Ohio Bell did not terminate Blount, despite her scores falling short for several months, and instead waited until the day she returned from a two-month FMLA leave. [ Id. at 7-9.] Although this sort of temporal evidence is usually analyzed in indirect evidence cases, here it weighs heavily against finding that the Defendants carry their burden of proving by a preponderance of the evidence that the Plaintiffs would have been terminated regardless of their FMLA use.
The Plaintiffs also note that even though Plaintiff Durrah had a much stronger work record than Plaintiff Blount — Durrah often missed her PAR target narrowly, whereas Blount often did not come close to meeting the target — that Durrah was progressed more rapidly through the disciplinary process than was Blount. [Doc. 30-1 at 7-10; Doc. 34 at 16-19.] A review of the PAR scores of both women shows that Ohio Bell more consistently disciplined Durrah when her scores fell below the PAR goals and that Ohio Bell was actually quite lenient regarding Blount's underachievement throughout 2007. [Doc. 30-1 at 7-10.] The Plaintiffs explain this variance in punishment by pointing out that Durrah used FMLA leave regularly throughout 2007, whereas Blount only used FMLA for the first time in February/March 2008. [Doc. 34 at 16-19.] Thus, Plaintiffs say that Durrah was on the receiving end of discriminatory punishment multiple times during 2007 because she regularly took FMLA leave, whereas Blount was not. [ Id. at 16-19.] However, and further supporting this argument, once Blount used FMLA leave in early 2008, Ohio Bell immediately became strict with her, firing her on her first day back from work. [ Id. at 12-13.]
The Court finds, taking all disputed facts in the Plaintiffs' favor, that the Defendants are unable to carry their burden of proving that the Plaintiffs would have been terminated regardless of their FMLA use. Rather, a determination of the Defendants' reasons for terminating both of the Plaintiffs would more appropriately be left to a trier of fact. Accordingly, the Court DENIES the Defendants' motion for summary judgment on the Plaintiffs' FMLA retaliation claim.
III.B Age Discrimination — Ohio Revised Code Chapter 4112
The Plaintiffs also bring claims of age discrimination under Chapter 4112 of the Ohio Revised Code. [Doc. 1-1 at ¶¶ 35-42.] The Plaintiffs say that they were both "treated disparately from other customer service representatives outside of the protected age group in that PARS policy was either not applied to [] younger employees and/or implemented in a different fashion so as to adversely affect older employees . . ." [ Id. at ¶ 37.]
Courts generally analyze age discrimination claims brought under Ohio law using the same framework as claims brought under the federal Age Discrimination in Employment Act ("ADEA"). See Minadeo v. ICI Paints , 398 F.3d 751, 763 (6th Cir. 2005). A plaintiff can establish an age discrimination case under the ADEA either by providing direct evidence of discrimination or by providing indirect evidence that satisfies the burden-shifting McDonnell Douglas paradigm. Id.
Direct evidence "proves the existence of a fact without requiring any inferences." Blair v. Henry Filters, Inc. , 505 F.3d 517, 523 (6th Cir. 2007) (internal citation omitted). Indirect evidence is evaluated under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Under this framework, a plaintiff has the initial burden to establish a prima facie case of discrimination. If a plaintiff does so, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for its actions. See Cichewicz v. UNOVA Indus. Automotive Systems, Inc. , 92 F. App'x 215, 218-19 (6th Cir. 2004).
To prove a prima facie case of age discrimination under the McDonnell Douglas analysis, a plaintiff must show: (1) that he was at least 40 years old at the time of the alleged discrimination; (2) that he suffered an adverse employment action; (3) that he was qualified for the position; and (4) that he "was either replaced by a substantially younger person, or was treated less favorably than a similarly situated employee from outside the protected class." McElroy v. Philips Med. Sys. N. Am., Inc. , 127 F. App'x 161, 166 (6th Cir. 2005). Ohio courts have recognized, as has the Sixth Circuit, that the fourth element of the prima facie case of discrimination can be replaced with proof that a comparable person, outside the protected class, was treated better than the plaintiff. Blanton v. Cuyahoga County Bd. of Elections , 779 N.E.2d 788, 793 (Ohio App. 2002); Clayton v. Meijer, Inc. , 281 F.3d 605, 610 (6th Cir. 2002).
The Plaintiffs here entirely fail to proffer any evidence to prove the fourth element of their prima facie — that they were "either replaced by a substantially younger person, or was treated less favorably than a similarly situated employee from outside the protected class." McElroy v. Philips Med. Sys. N. Am., Inc. , 127 F. App'x 161, 166 (6th Cir. 2005). The Plaintiffs point to no evidence in the record tending to prove this claim; indeed, the Plaintiffs do not even address this claim in their opposition to the Defendants' motion for summary judgment.
Accordingly, the Court GRANTS the Defendants' motion for summary judgment on both Plaintiffs' age discrimination claim.
IV. Conclusion
For the foregoing reasons, the Court DENIES the Defendants' motion for summary judgment on the FMLA retaliation claim and GRANTS the Defendants' motion for summary judgment on the age discrimination claim. The Court also DENIES the Defendants' motion to strike the Plaintiffs' brief in opposition to summary judgment and the accompanying evidentiary appendixes
IT IS SO ORDERED.
Dated: March 10, 2011