The “Lowe Rule”: Impeachment-Only Hearsay Cannot Sustain an ELCRA Age-Discrimination Verdict

Introduction

Case: Kenneth James Lowe v. Walbro, LLC – United States Court of Appeals for the Sixth Circuit, No. 24-2011 (5 Aug 2025)

After a jury awarded veteran employee Kenneth Lowe nearly $2.3 million under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) for alleged age discrimination, the district court entered judgment as a matter of law (JMOL) in favor of Walbro, wiping out the verdict. On appeal, the Sixth Circuit affirmed. The Court’s opinion crystallises two critical evidentiary propositions that now stand as a fresh cautionary precedent:

1. Impeachment-only hearsay is not substantive evidence and therefore cannot carry a plaintiff’s burden at trial.
2. Absent admissible direct evidence, “stray remarks” plus ordinary work-force reshuffling are insufficient to meet the ELCRA’s causation requirement—whether framed as “motivating factor” or “but-for.”

These principles—collectively dubbed here the “Lowe Rule”—reshape how Michigan ELCRA cases (and, by analogy, other Title VII/ADEA-type claims) will be tried and challenged post-verdict.

Summary of the Judgment

• The Sixth Circuit reviewed de novo the Rule 50 JMOL granted by the district court.
• The panel concluded that once the hearsay statements in an expert report (introduced solely to impeach the expert) were stripped away, no admissible direct evidence of age bias remained.
• The remaining circumstantial evidence (sporadic age-based jokes, position elimination, no younger replacement) did not satisfy the fourth element of the McDonnell Douglas prima-facie test.
• Accordingly, no reasonable jury could find for Lowe; the JMOL and vacatur of the verdict were affirmed.

Analysis

A. Precedents Cited

The opinion relies heavily on—and fine-tunes—the following authorities:

• Hazle v. Ford Motor Co. (Mich. 2001) – Michigan’s adoption of the federal “direct evidence” definition.
• Sniecinski v. Blue Cross & Blue Shield (Mich. 2003) – Mixed-motive standards under ELCRA and “stray remarks” factors.
• Hecht v. National Heritage Academies (Mich. 2016) – Tension between “but-for” and “motivating factor” causation; the Lowe panel noted but bypassed the conflict.
• Reeves v. Sanderson Plumbing (U.S. 2000) – Rule 50 evidentiary review standards (no weighing, all inferences favorable to non-movant).
• Noble v. Brinker International (6th Cir. 2004) – Permissibility of JMOL after full trial when circumstantial evidence collapses.

The new decision synthesises these strands and injects a previously under-developed evidentiary nuance: the difference between quoting hearsay to impeach and proffering it substantively when direct evidence is indispensable.

B. Legal Reasoning

1. Rule 50 Framework & State Law Standard
   Because the case was in diversity, Michigan directed-verdict standards applied. The Court nonetheless observed that Michigan and federal Rule 50 tests are functionally identical: if no rational juror could find for the plaintiff, JMOL is proper.
2. Hearsay Dichotomy
   Lowe’s only potent “smoking-gun” remarks—“you’re getting up there in years; at retirement age”—surfaced exclusively within a psychiatric expert’s report. Both sides and the trial judge had labelled the report hearsay; plaintiff used it merely to impeach the expert’s contrary testimony. The appellate panel held:
   “Impeachment evidence is not substantive evidence. Once so cabined, the jury legally could not rely on it to find age bias.”
   This distinction gutted the direct-evidence route.
3. McDonnell Douglas Collapse
   Left only with indirect proof, Lowe had to satisfy the prima-facie fourth element (the “inference of discrimination”). He could not:
   • No younger replacement filled the eliminated position.
   • No similarly situated younger employee retained or treated more favorably.
   • Age-related jokes were temporally remote, not linked to the decision-making process, and sporadic—hence classic “stray remarks.”
   Under Noble, once plaintiff’s prima-facie case fails post-trial, JMOL is appropriate even after a full jury verdict.
4. Irrelevance of Causation Debate
   The panel expressly sidestepped Michigan’s unresolved “but-for vs. motivating factor” disagreement. It reasoned that Lowe’s evidence flunked even the lesser motivating-factor test, making the higher standard moot.

C. Impact of the Decision

This holding will bear noteworthy consequences:

• Trial Strategy Overhaul. Plaintiffs must now convert every key statement relied upon at summary-judgment into admissible trial evidence. Failure to move hearsay into the record via exceptions, party admissions, or live testimony may doom a verdict.
• Sharper JMOL Motions. Defense counsel gain a fortified template: isolate which exhibits/statements are admissible substantively; attack the remainder; then argue insufficiency under Noble.
• “Stray-Remark” Safe Harbor Expanded. Routine, non-decision-making age jokes—without more—are emphatically not enough under ELCRA. Employers receive clearer guidance on relative litigation risk.
• State-Federal Harmonisation. The Sixth Circuit’s blending of Michigan directed-verdict doctrine with federal Rule 50 may encourage Michigan courts to lean on analogous federal authorities when evaluating post-verdict motions.

Complex Concepts Simplified

• Direct vs. Indirect Evidence: Direct evidence is a “smoking-gun” statement that, if believed, compels the conclusion of discrimination (e.g., “I’m firing you because you’re 60”). Indirect evidence requires inferences, assessed under the McDonnell Douglas burden-shifting steps.
• Hearsay: An out-of-court statement offered for the truth. General rule—inadmissible unless an exception applies.
• Impeachment: Using a prior inconsistent statement solely to challenge a witness’s credibility. The jury may not treat that statement as proof of the underlying fact (unless a hearsay exception exists).
• Rule 50 / JMOL: After a party has been fully heard, the court may decide there is legally insufficient evidence for a reasonable jury to find for that party.
• “Stray Remarks” Doctrine: Isolated, vague, or non-contemporaneous comments by non-decision-makers (or even decision-makers unrelated to the specific adverse action) ordinarily carry little or no weight.

Conclusion

Key Takeaways:

1. Evidentiary Precision is Paramount. Plaintiffs cannot rely on impeachment snippets or discovery-phase paraphrases to survive a Rule 50 attack.
2. Stray Remarks Are Not Enough. Without a direct link between the remarks and the challenged employment decision, age-related jokes provide no lifeline.
3. Causation Threshold Remains High. Even under ELCRA’s arguably lower “motivating factor” standard, plaintiffs must offer concrete, admissible proof of discriminatory influence.

By affirming the JMOL in Lowe v. Walbro, the Sixth Circuit signals to litigants and trial courts alike that evidence admitted for a limited purpose remains limited; it cannot morph into substantive proof post-verdict. Going forward, the “Lowe Rule” will stand as a decisive checkpoint in Michigan employment litigation—and a potent reminder nationwide—of the gulf that separates impeachment from proof.