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Tinker v. Sears, Roebuck & Co.,
127 F.3d 519 (6th Cir. (Mich.) Oct. 14, 1997)
The Plaintiff, Tinker, worked in the Defendant’s automotive
department for 29 years. He was fired two days before his fifty-second birthday
for allegedly doing work for a fellow Sears employee for free on company time.
Tinker denied this and maintained that the reason that the work was not paid for
was because the salesperson assigned to the task, Kevin Martin, failed to fill
in the labor blank on the work order. Tinker brought suit in federal court alleging
that his termination was the result of age discrimination in violation of the
Elliott-Larsen Civil Rights Act, or ELCRA. The district court granted summary
judgment for the Defendant after it held that Tinker had failed to prove a prima
facie case of age discrimination and that he had failed to prove that Sears’
proffered reason was a pretext. The Plaintiff appealed.
The Court of Appeals noted that the manner of proving
age discrimination under ELCRA is identical to the McDonnell Douglas test.
The Plaintiff must first make out a prima facie case. The parties both agreed
that Tinker met the first three elements of the prima facie case. Tinker claimed
that he met the fourth prong in that a younger, part-time employee was promoted
to full-time status after Tinker was fired. The Court of Appeals agreed, holding
that, by promoting the younger employee from part-time to full-time status, Sears
effectively replaced Tinker by reassigning another employee to assume Tinker’s
duties.
The court noted that the burden then shifted to the Defendant
to offer a legitimate, non-discriminatory reason for its actions. Sears met this
burden by alleging that Tinker’s termination was the result of his violation
of company policy on the preparation of work orders.
The burden then shifted back to Tinker to prove that the reason
Sears had advanced was a pretext for age discrimination. To accomplish this, Tinker
presented the testimony of various supervisors at Sears that was inconsistent,
contradictory, and unbelievable. Larry Cassar, the store manager, testified that
he decided to fire Tinker because he had worked on a customer’s car without
a work order. Cassar also testified that Tinker had not told him that he had completed
a work order but failed to sign it after he had finished the work. Additionally,
Cassar stated that Tinker failed to sign off on the work order after completing
the repair. Cassar further testified that he had no idea whether Tinker had "conspired"
with other employees to defraud Sears. The auto department manager testified that
Tinker was fired because he worked on a customer’s car without proper authorization
but that he did not believe that Tinker had conspired to defraud Sears. Finally,
Michael Fricker, the Sears loss prevention manager, testified that he believed
Tinker deserved to be fired because he suspected him of conspiring to defraud
Sears by providing free labor. The Court of Appeals felt that the inconsistency
of the testimony highlighted the presence of a material issue of fact.
The court also noted that Tinker raised a second issue
of fact relating to the credibility of Sears’ statements regarding the cause
of his termination. ‘Tinker alleged that a younger employee, David Burlingame,
was not fired, although he had committed the same offense for which Sears alleged
that it fired Tinker. Sears disputed this, saying that it did in fact fire Burlingame
for the same infraction committed by Tinker. Tinker believed that this proved
that Sears’ proffered reason for firing Burlingame was a pretext and, thus,
that his evidence of disparate treatment was credible.
The court held that Burlingame’s ultimate success
in court on his claim that he was fired in retaliation for his testimony supporting
Tinker, rather than for his violation of company policy, raised an issue of fact
as to whether Tinker and Burlingame were, in fact, treated differently for the
same offense, or if they would have been treated differently absent Burlingame’s
testimony in Tinker’s case.
Having made these findings, the Sixth Circuit reversed
the district court’s grant of summary judgment to the Defendant and remanded
the case back to the district court for proceedings consistent with its opinion.
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