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2:06-cv-10235-SFC-VMM Doc # 84 Filed 04/04/11 Pg 1 of 25 Pg ID 1843 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION David Marsico, Plaintiff, v. Case No. 06-10235 Sears Holding Corporation f/k/a Kmart Honorable Sean F. Cox Holding, Defendant. ____________________________________/ OPINION & ORDER GRANTING DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT Plaintiff David Marsico (“Marsico” or “Plaintiff”) filed this age discrimination suit against his former employer, Sears Holding Corporation f/k/a Kmart Holding (“Defendant”), on January 18, 2006. This Court granted summary judgment in favor of Defendant in August, 2007. Plaintiff appealed and the Sixth Circuit remanded so that Plaintiff could depose two additional witnesses and use those depositions in responding to Defendant’s motion. Plaintiff has now taken those two depositions and the matter is back before the Court on Defendant’s Renewed Motion to Dismiss and/or for Summary Judgment. The parties have fully briefed the issues. The Court finds that the issues have been adequately presented in the parties’ briefs and that oral argument would not significantly aid the decisional process. See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. The Court therefore orders that the motion will be decided upon the briefs. As set forth below, Plaintiff has not submitted any evidence from the two new depositions that changes the Court’s conclusion that Defendant is entitled to summary 1 2:06-cv-10235-SFC-VMM Doc # 84 Filed 04/04/11 Pg 2 of 25 Pg ID 1844 judgment. The Court shall again grant summary judgment in favor of Defendant. BACKGROUND A. Procedural Background: Plaintiff filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) on June 20, 2005. (Ex. 17 to Pl.’s Response Br.). Plaintiff’s charge identified the “date of occurrence” as February 25, 2005. Plaintiff filed this action against Defendant on January 18, 2006, alleging: “Violation of the ADEA - Disparate Treatment” (Count I); “Violation of the ADEA - Disparate Impact” (Count II); “Violation of the Elliott-Larsen Civil Rights Act - Disparate Treatment” (Count III); and “Violation of the Elliott-Larsen Civil Rights Act - Disparate Impact” (Count IV). During discovery, Plaintiff sought to depose: 1) Edward Lampert; and 2) William Crowley. Magistrate Judge Morgan denied Plaintiff’s motion seeking to compel those depositions and this Court affirmed that ruling. Following the close of discovery, Defendant filed a Motion to Dismiss or for Summary Judgment. In responding to the motion, Plaintiff agreed to voluntarily withdraw Counts II and IV of his complaint, leaving only Plaintiff’s claims of disparate treatment under the ADEA (Count I) and the ELCRA (Count II). (Docket Entry No. 50 at 1 n.1). In an Opinion & Order issued on August 30, 2007, this Court granted Defendant’s Motion for Summary Judgment. Plaintiff appealed. The majority1 of the Sixth Circuit Panel that heard the case reversed and remanded, concluding that Plaintiff should have been allowed to depose Edward Lampert 1Judge Raymond Kethledge dissented, indicating that he would affirm. 2 2:06-cv-10235-SFC-VMM Doc # 84 Filed 04/04/11 Pg 3 of 25 Pg ID 1845 and William Crowley during discovery and “should have been allowed to utilize the evidence obtained from these depositions in responding to Defendant’s motion for summary judgment.” Marsico v. Sears Holding Co., Case No. 07-2231 at * 13 (6th Cir. March 25, 2010). Following remand, this Court held a status conference on July 6, 2010, at which time it issued a new Scheduling Order, so that Plaintiff could depose Lampert and Crowley. (Docket Entry No. 72). On November 1, 2010, Defendant filed its Renewed Motion to Dismiss and/Or For Summary Judgment. B. Factual Background: This Court’s practice guidelines for motions for summary judgment provide, in pertinent part, that: a. The moving party’s papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record . b. In response, the opposing party shall file a separate document entitled Counter- Statement of Disputed Facts. The counter-statement shall list in separately numbered paragraphs following the order or the movant’s statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter-Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial. c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter-Statement of Disputed Facts. Both parties complied with the Court’s practice guidelines for motions for summary judgment such that: 1) along with Defendant’s Renewed Motion to Dismiss and/or for Summary 3 2:06-cv-10235-SFC-VMM Doc # 84 Filed 04/04/11 Pg 4 of 25 Pg ID 1846 Judgment, Defendant filed an “Statement of Material Facts Not In Dispute” (“Def.’s Stmt.”) and 2) along with Plaintiff’s Response, Plaintiff filed his “Counter Statement of Disputed Facts” (Pl.’s Stmt.”). The following material facts are gleaned from the parties’ statements and the evidence submitted by the parties. Plaintiff worked for Defendant for more than 33 years. In May 2002, Plaintiff (date of birth 8/8/49) was “Division President, Eastern Division” for Kmart Corporation (“Kmart”) with responsibility for the eastern part of the United States. (Def.’s Stmt. at ¶ 1; Pl.’s Stmt. at ¶ 1). Plaintiff was promoted to that position by Julian Day (date of birth 5/14/52) (“Day”), who had been appointed to serve as Kmart’s President and CEO in March 2002. (Def.’s Stmt. at ¶ 2; Pl.’s Stmt. at ¶ 2). Kmart was in bankruptcy at the time that the Kmart Board hired Day. (Day’s Dep. at 6- 8). Kmart came out of bankruptcy in May 2003. (Id.). After Kmart emerged from bankruptcy, Day became the CEO and reported to the Board of Directors. Eddie Lampert (“Lampert”) was the new Chairman of the Board of Directors after Kmart emerged from bankruptcy. (Id. at 15). Plaintiff was moved2 from the “Division President, Eastern Division” position to “Senior Vice President of Store Operations” on February 1, 2003. (Def.’s Stmt. at ¶ 3; Pl.’s Stmt. at ¶ 3). Plaintiff earned an annual salary of $385,000 in that position and continued to report to Day in that position. Plaintiff remained Senior Vice President of Store Operations for approximately ten months. (Def.’s Stmt. at ¶¶ 4-6; Pl.’s Stmt. at ¶¶ 4-6). 2Defendant contends that move was a promotion, while Plaintiff contends it was a lateral move to due to reorganization which eliminated the Division President position. 4 2:06-cv-10235-SFC-VMM Doc # 84 Filed 04/04/11 Pg 5 of 25 Pg ID 1847 Plaintiff testified that while he was in store operations, sometime during 2003, Lampert came to talk to him and commented that Plaintiff “had been around a long time.” (Pl.’s Stmt. Of Material Facts in Dispute at ¶ 18; Pl.’s Dep. at 5). Rod Brumley (“Brumley”), a former employee of Defendant, was deposed in this action and testified that in May 2003, Lampert asked him to inquire about a refund policy sign at one of Plaintiff’s stores. Brumley states that when he advised Lampert that he had “received the answer from store ops,” and advised him of the answer, Lampert said “that’s what’s wrong with these K- Mart people, that old way of thinking.” (Brumley Dep. at 62). No evidence has been submitted to the Court to establish that Plaintiff was aware of that comment prior to this litigation. Plaintiff remained in the position of Senior Vice President of Store Operations until September 2003. Thus, he was in that position for less than 10 months of his more than 33-year tenure at Defendant. Day made the decision to move Plaintiff out of that position. (Pl.’s Dep. at 158). Defendant contends that Day removed Plaintiff from the position of Senior Vice President of Store Operations for performance reasons, specifically because the “allocation of store staffing hours” and the financial performance of “ancillary elements” in the stores (e.g., kiosks) had not improved under Plaintiff’s management. (See Day Dep. at 30). Plaintiff testified, however, that Day told him he “wanted to make a change, that Super K was losing money, and wanted me to go over and change the results.” (Pl.’s Dep. at 39-40). Plaintiff believed it would be a temporary move, although he testified that Day did not tell him it would be a temporary move. (Id. at 42). In any event, it is undisputed that Day made the change and that Plaintiff assumed the position of “Vice President of Super K and Carribean” on October 1, 2003, at a salary of 5 2:06-cv-10235-SFC-VMM Doc # 84 Filed 04/04/11 Pg 6 of 25 Pg ID 1848 $385,000. (Def.’s Stmt. at ¶ 12; Pl.’s Stmt. at ¶ 12; Ex. 11 to Pl.’s Br.). Neither Lampert nor Crowley were involved in the decision to place Plaintiff in that position. (Id.). Plaintiff testified that although he initially continued reporting to Day, he later began to report to Dene Rogers (“Rogers”). (Pl.’s Dep. at 46-48). Although Plaintiff’s title was initially “Vice President, Super Kmart Centers and the Carribean,” the Carribean stores were later removed from his area of responsibility and assigned to another employee who was the same age as Plaintiff.

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