Age discrimination in employment; Michigan’s Elliott-Larsen Civil Rights Act (ELCRA); The district court’s decision to vacate the jury’s verdict for plaintiff & enter judgment as a matter of law for defendant; Whether plaintiff offered sufficient “direct evidence” of discrimination to establish his ELCRA claim; Causation; Hearsay; Impeachment evidence; “Indirect evidence” of age discrimination; McDonnell Douglas Corp v Green; Comparing Noble v Brinker Int’l, Inc

[This appeal was from the ED-MI.] The court held that the district court did not err by vacating the jury’s verdict for plaintiff-former employee (Lowe) and entering judgment as a matter of law for defendant-employer (Walbro) in this age discrimination case under the ELCRA. It concluded the evidence that Lowe presented at trial was “materially different” than that he had offered to overcome summary judgment, and no direct evidence of age discrimination was presented at trial. Further, he did not establish his prima facie case using indirect evidence. Lowe, who was 60 years old, was fired from his job at Walbro, where he had worked for over 40 years. He sued under Michigan’s ELCRA for age discrimination. The district court granted Walbro summary judgment, but the court previously reversed on appeal. On remand, a jury found for Lowe. But the district court granted Walbro's motion for judgment as a matter of law and vacated the verdict, ruling that the evidence Lowe presented at trial was insufficient for the case to have been submitted to the jury. The court noted that in its prior opinion, it found from Lowe’s deposition testimony that his supervisor’s (D) “alleged words at the termination meeting were direct evidence of age discrimination.” But this deposition testimony “was never presented to the jury despite Lowe’s brief claiming otherwise.” Rather, the jury only heard the quote during the cross-examination of Walbro’s expert witness (Dr. B) “when Lowe’s counsel read the quote from the doctor’s report in order to impeach her testimony.” This report could not be used as substantive evidence where “Lowe agreed at trial that [it] was being used only for impeachment purposes, and . . . he never sought a hearsay exception at trial[.]” Absent evidence of D’s “alleged ageist comments at the termination meeting, the only relevant testimony that the jury heard was that [D] made a number of stray remarks about Lowe’s age over an almost two-year period of time . . . .” The court found that without the evidence of D’s “alleged ageist statements at the termination meeting, there is no direct evidence of age discrimination.” As for indirect evidence, the court held that, “as in Noble, Lowe did not present evidence that he was replaced by someone younger, that he was treated differently from similarly situated individuals outside the protected class, or that any other evidence connected the passing references to his age to the decision to terminate him.” Affirmed.