Affirming summary judgment in favor of the employer in an age discrimination action under the Age Discrimination in Employment Act and the Michigan Elliott-Larsen Civil Rights Act, the U.S. Court of Appeals for the Sixth Circuit ruled that age-related statements allegedly made to an employee were not direct evidence of discrimination because they were unrelated to her termination and were not made by the decision maker responsible for terminating her employment. Marsh v. Associated Estates Realty Corp. et al., No. 12-1594 (6th Cir. Apr. 5, 2013) (unpublished). The Court also found the employee failed to show that the employer’s reasons for terminating her — her repeated poor performance-testing scores and policy violations — were pretextual.


Rosemary Marsh worked as a Leasing Consultant for AERC of Michigan, LLC (“AERC of Michigan”) from May 2005 until her termination in December 2007. Marsh was 61 years old when she was hired, and 63 years old when her employment was terminated. 

As a Leasing Consultant, Marsh’s primary duty was to rent apartments. She claimed she was effective in this position based on the number of apartments she leased. However, AERC of Michigan also assessed its employees’ performance using anonymous telephone and video evaluations of the Leasing Consultants’ sales techniques and customer communication skills. Evaluations were scored on a 100-point scale, and Leasing Consultants were expected to achieve a score of at least 90 on the telephone evaluations and at least 80 on the video evaluations. 

Marsh’s scores on these evaluations were considerably lower than expectations. Over the course of her employment, she received scores of 41 and 56 on video evaluations and scores of 82, 45, 41, 57, 35, 83, 80, 100, 50 and 76 on the phone evaluations. Thus, out of 12 evaluations, Marsh met expectations only once. In addition, she failed to obtain identification from a prospective tenant before taking the prospective tenant on a tour of an apartment, which violated AERC of Michigan’s policies. In April 2007, Marsh received a written warning advising her to improve her future evaluations or face additional corrective action, up to and including termination. Far from improving, thereafter Marsh received three unacceptable phone evaluation scores in the next five months.

In November 2007, Marsh received a video evaluation score of 56 and again failed to obtain the requisite identification from a prospective tenant before an apartment tour. As a result, after consultation with the Regional Manager, the Regional Vice President and Human Resources, Marsh’s immediate supervisor placed Marsh on final probation, which required Marsh, among other things, to attain a score of at least 90 on all future video and phone evaluations or face termination. In December 2007, however, Marsh received yet another unacceptable phone evaluation score of 76. In addition, a day later, Marsh again violated AERC of Michigan’s policies by holding apartments without first receiving deposits and by showing units that she had specifically been instructed not to show. Marsh’s supervisor forwarded this information to the Regional Manager and, based on Marsh’s failure to improve her phone shop scores and continued violations of policy, the Regional Manager recommended that Marsh’s employment be terminated. This decision was approved by the Regional Vice President and HR.

On December 12, 2007, Marsh’s supervisor met with Marsh to inform her of her termination. Marsh alleged the supervisor made age-related comments during this meeting, including “I think you’re getting too old for your job because of that phone shop,” or “I think you’re just getting a little too old for your job.” Marsh also asserted the supervisor called her “Old Rose” on “a couple” of occasions; made statements such as “you’re slipping, you’re getting old” when anybody forgot something; and asked whether Marsh was “too old to get down there” when Marsh needed to load paper in a photocopier. The supervisor denied having made any of the alleged statements. 

Marsh subsequently sued AERC of Michigan, along with its parent company Associated Estates Realty Corporation and other affiliated entities, for age discrimination under the Age Discrimination in Employment Act (“ADEA”) and the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”). AERC of Michigan asked the district court to dismiss Marsh’s lawsuit, and the court granted the motion. Marsh appealed.

Applicable Law

To establish an age discrimination claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), an employee must show that: “(1) [s]he was at least 40 years old at the time of the alleged discrimination, (2) [s]he was subjected to an adverse employment action, (3) [s]he was otherwise qualified for the position, and (4) [s]he was rejected and someone outside the protected class was selected.” Harris v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010). If the employee makes this showing, the burden then shifts to the employer to articulate a nondiscriminatory reason for its action. If the employer meets this burden, the employee must show that the employer’s reason was a pretext for intentional age discrimination. Age discrimination claims made under the ELCRA are assessed using the same analytical framework as those made under the ADEA. Bondurant v. Air Line Pilots Ass’n, Int’l, 679 F.3d 386, 394 (6th Cir. 2012).

Appeal Rejected

Marsh argued the supervisor’s various alleged statements to her were evidence of age discrimination and pretext. The appeals court disagreed. Examining whether the alleged statements constituted direct evidence of age discrimination, the Court found, “At most, these statements show only that [the supervisor] felt that Marsh was an elderly individual and that some stage of old age was correlated with a decrease in job performance.” In addition, the supervisor was not the decision maker regarding Marsh’s termination; thus, her alleged comments did not constitute direct evidence of age discrimination.

Turning to the McDonnell-Douglas burden-shifting framework, the Court held AERC of Michigan presented a legitimate, nondiscriminatory reason for Marsh’s termination and Marsh did not successfully rebut that reason by demonstrating it was pretextual. Marsh argued that other, younger employees received low evaluation scores and were retained. The Court rejected her argument, noting that no other employee consistently received such poor scores or was tested 12 times and passed only once. Additionally, no other employee was retained after engaging in similar violations of company policy. Finally, the Court concluded the age-related comments did not demonstrate pretext because they were not made by a decision maker. Accordingly, the Court affirmed summary judgment in favor of the defendants on Marsh’s ADEA and ELCRA claims.

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This case is a good example of how well-documented performance problems may trump alleged discriminatory comments in the event adverse action is taken against an employee.