GM’s Transfers of Older Engineer Probed by Sixth Circuit Panel

The Sixth Circuit on Wednesday questioned lawyers for General Motors LLC and the US government on whether shifting an engineer into different jobs could be age discrimination.

At issue in Douglas Milczak’s appeal of a lower court ruling that he lacked sufficient evidence for a trial is what actions amount to adverse employment action under the Age Discrimination in Employment Action. The Equal Employment Opportunity Commission, in backing Milczak, advanced arguments similar to ones it’s made under Title VII of the 1964 Civil Rights Act on a question currently being weighed by the US Supreme Court.

A ruling by the US Court of Appeals for the Sixth Circuit agreeing with the agency and Milczak could have a broad impact on workers and employers in Kentucky, Michigan, Ohio, and Tennessee. It could also be influenced by an interim decision by the justices in that case before them, Muldrow v. City of St. Louis, a potential impact expressly raised by Judges Eugene E. Siler Jr., Andre B. Mathis, and Rachel S. Bloomekatz.

According to Milczak, two involuntary job transfers and one shift reassignment he experienced when GM retooled the Detroit-area plant where he worked were each adverse acts under the ADEA.

Those moves by GM met the adverse action standard the circuit set Threat v. City of Cleveland, EEOC attorney Amos Blackman told Judges Eugene E. Siler Jr., Andre B. Mathis, and Rachel S. Bloomekatz. They had more than a de minimis affect on Milczak’s job terms and conditions, Blackman said.

Who Milczak worked with was affected by the job moves, the EEOC attorney said. The changes also occurred against a backdrop of age-based hostility towards Milczak, and in some instances he lacked the tools needed to do the job after being transferred or his skills weren’t needed for this new role. Milczak’s hours were changed as a result of the reassignment to the night shift, Blackman said.

Siler asked if those circumstances are what made the job actions by GM sufficiently adverse.

What happened here clears the standard set by the Sixth Circuit in Threat, Blackman said. But the EEOC’s position is also that, under the text of the ADEA, any involuntary transfer is adverse and can be discriminatory, he said.

The agency argued in its brief that forced transfers, denials of transfers, and reassignment are sufficiently adverse to support an age bias claim, because they necessarily affect workers in more than a de minimis way.

Bloomekatz asked how the fact that Muldrow is pending before the Supreme Court affects how the Sixth Circuit should handle Milczak’s appeal.

The appeals panel can decide Milczak’s case under existing precedent without waiting for a ruling in Muldrow, or it can wait, Blackman said. The question under review in Muldrow is limited to whether transfer decisions can amount to discrimination without a separate determination that they caused a worker a significant disadvantage, he said.

‘Just One Element’

Counsel for GM pushed back on the significance of the adverse action standard to Milczak’s case.

It won’t change the result if the lower court wrongly rejected Milczak’s transfers and reassignment as not sufficiently adverse, because that’s “just one element” of a prima facie case under the ADEA, Donald Campbell Bulea of Ogletree, Deakins, Nash, Smoak & Stewart PC said. Milczak also failed to identify a younger worker who was treated more favorably, Bulea said.

The Sixth Circuit has previously cautioned against using “a wide brush” in performing the adverse action analysis, GM’s lawyer said. Judges need to look at the context, and the context here was a partial plant closing that affected all employees. Milczak was shifted to a different job in a different part of the plant, because he preferred remaining in that location rather than moving to another plant, Bulea said.

Threat was totally different, because that case involved direct evidence of race discrimination, Bulea said.

Bloomekatz wondered whether that context doesn’t really come into play at the second stage of the test used in workplace bias cases, where the employer must come forward with a nondiscriminatory explanation for its actions.

There is still a materiality threshold at the prima facie stage, Bulea said. But the same context as to why Milczak was transferred also establish at the subsequent stages of the job bias analysis that GM’s decisions weren’t a pretext for age bias, he said.

Siler asked whether Milczak is still working for GM.

“Yes, he continues to be employed in his preferred position,” in which he is paid a “well-into six figures salary” and receives regular bonuses and various job benefits, Bulea said. Why would GM do that if it’s discriminating against Milczak based on age, Bulea said.

Harassment Analysis Challenged

Milczak’s claims also include that he was harassed based on his age—he was in his mid-to-late 50s at the time—and his attorney told the Sixth Circuit that the lower court misapplied the governing standard.

There’s no dispute that a totality-of-the-circumstances test applies, Eric I. Frankie of Southfield, Mich., said. Some of the harassment was overt, such as Milczak’s supervisor calling him an “old fart” and similar names, while some of it was non-overt because it didn’t directly refer to Milczak’s age, Frankie said.

The lower court “disaggregated” that evidence by placing it into six separate categories and then examining those categories in isolation from each other, Milczak’s lawyer said. That type of disaggregation makes it easier to reject hostile work environment claims, he said.

“I think that raises an interesting question, Bloomekatz said.

The case is Milczak v. General Motors, LLC, 6th Cir., No. 23-01462, oral argument 1/31/24.