Bindery Company Granted Summary Judgment in ADEA Lawsuit

, than that employer hired persons younger than the plaintiff); lagrant v. gulf & w. mfg. although schoonmaker does not articulate it as such, presumably this evidence establishes a prima facie case of age discrimination, then every employer who pursuant to sixth circuit rule 206 the work is redistributed among other existing employees already performing related to state a prima facie case on a disparate treatment theory using circumstantial must be sufficiently probative to allow a factfinder to believe that the handbook, and (3) pease did not review personnel files for criteria he admitted should this court recently reiterated in an unpublished decision that this qualifications in relationship to other applicants, without more, fails to establish actually motivate the defendant's challenged conduct, or was insufficient to motivate the while she disagrees with spartan graphics's conclusions, schoonmaker has were retained in the same position.'" id. at 421 (quoting eeoc v. clay printing co., 955 statistical samples provide little or no probative force to show discrimination; rejecting 1 graphics's failure to follow the layoff criteria in its own handbook was not "additional to carry the burden of proof in a case under the federal age discrimination in working in the same position as the plaintiff. alternatively, a plaintiff his termination was due to his age rather than economic factors, based on the fact that spartan graphics's decision to terminate her employment was so unreasonable as to give f.2d 307 (6th cir. 1975)]. to show that the employer's explanation was a mere pretext for intentional age as further proof of "additional evidence" schoonmaker points out that in response to her facie showing in the context of a reduction in work force. see barnes, 896 f.2d at 1466 the parties donotdisputethatschoonmaker'sterminationarosefromareduction [it] discriminated on the basis of age."). indeed, the record reflects that pease, whose appeal from the united states district court if the plaintiff was truly singled out for discharge because of age he or is insufficient to establish a prima facie case of age discrimination"; holding that the defendant employer's failure to utilize performance reviews or objective data in the the adea prohibits an employer from discharging an employee "because of - such individual's age." 29 u.s.c. � 623(a)(1). "`the ultimate question in every second, schoonmaker argues that the lower court erred in holding that a mere shamrock chems. co., 29 f.3d 1078, 1084 (6th cir. 1994). nor has she shown that possessed qualifications superior to those of a younger co-worker plaintiff-appellant, circumstantial evidence." geiger v. tower auto., 579 f.3d 614, 622 (6th cir. 2009). without more, are insufficient to establish discrimination. cf. briggs v. potter, 463 f.3d complaint about schoonmaker, which pease failed to investigate or document; and barnes requires, namely that the plaintiff was the most competent member of his peer f.2d at 1117 (holding that the plaintiff was not replaced where his former duties were dave clay, pease, david wilson, and carl frederickson) decided at a weekly production defendant-appellee. inference that his decision had anything to do with plaintiff's age." furthermore, corp., 249 f. app'x 450, 456 (6th cir. 2007). michigan elliot-larsen civil rights act, claiming she was let go instead of taylor satisfy the fourth element in a work force reduction case, see barnes, 896 f.2d at 1465, what establishes aprima faciecase of age discrimination that themcdonnell douglas prima facieelements 3 has not presented any evidence tending to show that the work force reduction was not pretext under the second and third prongs of the wexler test. 614, 620 (6th cir. 2009) (quoting reeves v. sanderson plumbing prods., inc., 530 u.s. spartan graphics leasing, llc, because of her age. spartan graphics moved, inter alia, for summary judgment. the pease's undisputed testimony established that he considered the employees' considers these factors to be relatively equal, decisions will be guided by assume that defendant's evaluation process was haphazard . . . there exists no reasonable to have people that can get along and work together and be more of a team." reason had no basis in fact. 507, 516-17 (6th cir. 2006) (holding that a plaintiff's subjective views of his circumstances, will carry an automatic burden to justify the termination. "[w]hen work force reductions by the employer are a factor in the decision, `the most fourth, schoonmaker argues that she should be able to use "pretext" evidence _________________ 1465. by merely showing the other elements of a mcdonnell douglas case, a plaintiff meeting that they needed to cut costs. each manager evaluated his department for cost appeared to play a role in the plaintiff's termination). in other words, she has not shown no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 7 pease did not consider that schoonmaker had a greater length of service (eleven speek and keven tobias, who worked the first shift and acted as pease's assistant, appeals. no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 3 insufficient to motivate its conduct in choosing to terminate schoonmaker. to the employer to articulate a legitimate nondiscriminatory reason for the adverse age-based discrimination. see geiger, 579 f.3d at 625 (holding that employer's fact that he did not perceive her as a team player. 5 of discrimination that barnes requires in a reduction-in-force setting. retained in the same position. schoonmaker's argument is not without some support. another employee is hired or reassigned to perform the plaintiff's duties"); sahadi, 636 showing that the two oldest employees were selected for termination also does not reduction in work force, (2) her supervisor did not use the criteria stated in the employee c. pretext 29 u.s.c. �� 621-634. prima facie case. wexler v. white's fine furniture, inc., 317 f.3d 564, 574 (6th cir. midland-ross corp., 823 f.2d 937, 943 & n.7 (6th cir. 1987) (noting that small pease investigated and concluded that everyone was at fault. f.2d 493, 502 (6th cir. 1987) ("so long as its reasons are not discriminatory, an assumed by another employee in addition to his other functions). thus, like the plaintiff schoonmaker correctly points out that in skalka v. fernald envtl. restoration mgmt. no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 6 a finding of age discrimination." skalka v. fernald env. restoration mgmt. corp., 178 f.3d 414, 421 (6th conclude that the defendant employer discriminated against skalka, because he "was the no. 07-01245--paul lewis maloney, chief district judge. for the foregoing reasons, the judgment of the district court is affirmed. if the plaintiff's case-in-chief is viewed as satisfying the requirements for x work. a person is replaced only when another employee is hired or reassigned to schoonmaker also argues that evidence of pretext can be gleaned from need for color matching was significantly decreased and the plaintiff was one of four pease found no fault with schoonmaker.6 3) that she was qualified for the position held; and 4) that she was replaced by someone argued: january 11, 2010 "additional evidence" "may include `showing that persons outside the protected class fourth element in a reduction in force situation as follows: that result conflicts with the intent of congress and with our own better worker than taylor and that spartan graphics gave inconsistent and subjective offered no evidence to support her subjective belief that she is more qualified or issues. the eeoc's finding of reasonable cause is not probative here because it provides no facts but only relative length of service. mcdonell douglas test is modified to require the plaintiff to provide "additional direct, 4 of the two employees. id. at n.1. specifically, the plaintiff argued "that this court should v. on the basis of age). - ranked on various skills in relation to their peers. id. plaintiff skalka, who was 54 years find a prima facie case where it is shown that an employee terminated during an fifty to seventy employees. schoonmaker began working for spartan graphics in we affirm. "additional evidence" criterion may be satisfied by showing that younger persons were 5 productive than schoonmaker. he had no records to support that conclusion, however. employer is free to choose among qualified candidates."). moreover, "even if we judgments or that it used a faulty evaluation system does not support the inference that no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 5 as part of a reduction in work force (a fact which schoonmaker does not dispute). pease no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 12 the bindery department. old at the time of the layoffs, received a near-perfect score and the highest rank in his suhrheinrich, circuit judge. plaintiff harriet schoonmaker appeals from the fact of an age differential," which was "insufficient evidence for a prima facie case under consider as "additional evidence" any evidence that also demonstrated that spartan head was retained and the plaintiff, also a department head, was laid off); adams v. for the western district of michigan at grand rapids. productivity, attendance, general performance record and other factors because she has not shown that another employee was hired or reassigned to perform "possessed qualifications superior to those of a younger co-worker working in the same evidence�in the context of a reduction in force�shows age discrimination. here, october 1995 as a bindery worker. she worked the third shift, along with four others: sum, schoonmaker has not created a triable issue as to pretext. such a small statistical sample is not probative of discrimination. see simpson v. i. background a "bare conclusion." see coleman v. quaker oats co., 232 f.3d 1271, 1284 (9th cir. 2000). furthermore, she should be able to develop enough evidence through the discovery the reason for the discharge, which does not make out a prima facie case. id. thus, have been considered. she further contends that the district court erred in refusing to - 133, 153 (2000)). establishing pretext: (1) co-worker pauline wempel's accusation that schoonmaker cf. tinker v. sears, roebuck & co., ranking" process to facilitate a reduction in workforce. id. at 419. employees were discrimination, and accordingly it does not establish the kind of "additional evidence" decision to terminate her was so unreasonable as to create an inference of pretext. in inc., 280 f.3d 579, 592 (6th cir. 2002). however, schoonmaker offers no proof that district court granted the motion, concluding that schoonmaker had failed to establish absenteeism. pease admitted that he was unaware of the company's written policy on position and that the two oldest employees on the third shift were selected for the employer to make perfect decisions, but simply prevents employers from taking adverse in work force is not sufficient to state a prima facie case); reminder v. roadway employee is assigned to perform the plaintiff's duties in addition to other duties, or when act, mich. comp. laws � 37.2101, et seq. discriminatory motive . . . . the guiding principle is that the evidence pease also admitted that he did not review the personnel files of the three third this court therefore held that the plaintiff "ha[d] failed to establish more than the a prima facie case of age discrimination in a work force reduction setting. schoonmaker application did not raise inference of pretext; noting that the law does not require argued: h. rhett pinsky, pinsky, smith, fayette & kennedy, llp, grand ii. analysis 2 file name: 10a0017p.06 reduction in the size of the work force. making such decisions is not even if we assume schoonmaker made out a prima facie case, she cannot show like the plaintiff in sahadi, schoonmaker has not shown that she was replaced b. prima facie case "additional evidence" even though younger workers were retained during work force instead of taylor. see chen v. dow chem. co., 580 f.3d 394, 400 (6th cir. 2009). plaintiff failed to state a prima facie case by a mere showing that a younger department chem., 636 f.2d 1116, 1118 (6th cir. 1980) (per curiam). in sahadi, the plaintiff was 1 plaintiff was the victim of intentional discrimination.'" geiger v. tower auto., 579 f.3d in order to establish the "additional evidence" needed at the prima facie stage of the coronado were cutters. taylor, evert, and schoonmaker were bindery workers. speek order and judgment of the district court granting defendant spartan graphics leasing llc's the defendant retained two younger employees whose work he could have performed. barnes, 896 f.2d at 1465-66 (internal citations omitted). a supervisor's decision to value certain criteria higher than other criteria listed in job no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 11 127 f.3d 519, 523 (6th cir. 1997) (holding that the plaintiff created a genuine issue of no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 10 express, inc., 215 f. app'x 481, 483-84 (6th cir. 2007) (per curiam) (finding no the most qualified to perform the work available based on qualifications, employment act"; holding that the plaintiff employee's evidence showed little more that job." id. at 1118. the sahadi court rejected this argument, stating: constitute "additional evidence." although barnes holds that statistical evidence may consistently stated that productivity was a factor in schoonmaker's layoff, as well as the oldest member of his peer group and was laid off despite being ranked the most pretext with proof of inconsistent statements made by several managers, all of whom counsel > the company considers relevant in each case. when the company question is not whether the proffered evidence gets the label "pretext." it is whether the discrimination. id. the burden of persuasion, however, remains on the adea plaintiff in work force and all agree that schoonmaker has established the first three elements of in gross v. fbl fin. servs. inc., 129 s.ct. 2343, 2349 & n.2 (2009), the supreme court competent employee when an employer is making cutbacks due to economic necessity productivity and the inability to get along with others�had no basis in fact, did not the mcdonnell douglas test. only the fourth element is at issue. _________________ the second problem is that years to taylor's six) or that taylor had been "written up" in january 2005 for excessive 462; see also coleman, 232 f.3d at 1285 ("that [the employer] made unwise business business circumstances may result in a temporary or permanent graphics' proffered reasons were pretextual. facie case. cf. skelton, 249 f. app'x at 462 (rejecting argument at pretext stage that the preference for another employee was not actionable unless motivated by discriminatory marean, miller johnson, grand rapids, michigan, for appellee. recommended for full-text publication the first problem with schoonmaker's reliance on skalka is that the quoted qualifications were superior to that of a younger coworker). she has not made that employment actions for impermissible, discriminatory reasons); wrenn v. gould, 808 pease was not the decisionmaker. and, as spartan graphics points out, pease co., 748 f.2d 1087, 1090-91 (6th cir. 1984) (stating that "[t]he mere termination of a - language�merely "showing that persons outside the protected class were retained in the staff reductions. the company's employee handbook provides in relevant part: rise to an inference of pretext. see sybrandt v. home depot, u.s.a., inc., 560 f.3d 553, spartan graphics's reasons were subjective, the evidence does not raise an inference of decision-making process raised a reasonable inference that the employer discriminated she points to three different situations as this court has held that "an eeoc letter of violation . . . is . . . presumptively inadmissible because it 6 no. 09-1732 age was in fact a determining factor in the employment decision." id. at 1465 n.9. substantially younger employees in comparable positions are retained during reduction thus, under the law of this circuit, schoonmaker would have to show that she 1 circuit holds that a court may not consider the employer's alleged nondiscriminatory staff reduction and unpublished. see, e.g., dabrowski v. warner-lambert co., 815 f.2d 1076, 1078-79 showing. employer's shifting rationale can be evidence of pretext. cicero v. borg-warner auto., this conclusion is consistent with other decisions fromthis court, both published as opposed to a decision to ignore the handbook provision, does not give rise to an plaintiff could establish a prima facie case by showing that he or she schoonmaker because she seemed to present more personnel problems than taylor. in could show that the employer made statements indicative of a and second shifts were more productive. pease said he chose evert first because she had harry speek, andrea coronado, melanie taylor, and bonnie evert. speek and without contradiction that he considered the latter factor to be more important than schoonmaker claims that pease, speek, and tobias gave inconsistent reasons for be considered to determine whether there is "additional evidence." thus, she faults the opinion proto plastics, inc., 151 f. app'x 468, 470 (6th cir. 2005) (holding that mere fact that spartan graphics, headquartered in sparta, michigan, offers high quality sheet schoonmaker's main points�her evidence of "pretext"�are her belief that she was a expressly declined to decide whether the mcdonnell douglas test applies to the adea. this court in barnes v. gencorp inc., 896 f.2d 1457 (6th cir. 1990), we stated in the context of explaining schoonmaker brought suit, alleging age discrimination under the adea and the employer intentionally discriminated against the plaintiff because of age. in sum, the district court did not err in holding that schoonmaker failed to was schoonmaker's direct supervisor. carl pease was the finishing manager who ran (internal quotations marks and citation omitted). over schoonmaker because schoonmaker was sometimes hard to work with and he action.'" geiger, 579 f.3d at 620 (quoting gross, 129 s. ct. at 2351 n.4). further, this younger employee or applicant receives better treatment than an older one is insufficient 2003) (en banc).3 of objective evidence that will suffice as the additional evidence discrimination that no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 9 criteria because he considered "qualifications, productivity, attendance, general inconsistencies in spartan graphics's reasons for laying off schoonmaker. specifically, position as the plaintiff." barnes, 896 f.2d at 1465-66.4 statistical argument in a reduction in work force case). animus); browning v. dep't of the army, 436 f.3d 692, 697 (6th cir. 2005) (holding that before: suhrheinrich, sutton, and cook, circuit judges. recently held that the mcdonnell douglas framework may still be used to analyze adea claims based on a jury could reasonably reject spartan graphic's explanation of why it terminated her terminates an employee between 40 and 70 years of age under any countervailing evidence, this is insufficient to establish the fourth element of the prima this evidence does not rebut spartan graphics's proffered reason. even if schoonmaker argues that pease relied on complaints made by her co-workers to peer group. id. at 419-21. we held that there was sufficient evidence for the jury to productive than taylor. schoonmaker's subjective views in relation to other coworkers, r. civ. p. 56(c). this court reviews de novo the district court's grant of summary schoonmaker abandoned her state law claim under the michigan's elliot-larsen civil rights a color matcher for the defendant. as a result of a downturn in the auto industry, the employment action. allen v. highlands hosp. corp., 545 f.3d 387, 394 (6th cir. 2008). economic cutback can establish that a younger person was retained in a position which decided and filed: february 3, 2010 _________________ discrimination). in other words, she has not created an inference that the proffered n group, as measured by objective, company-established criteria, suggesting that he in sahadi, schoonmaker has shown nothing more than "the fact of an age differential." id. at 1117. the plaintiff's reduced work load was assumed upon his discharge by one plaintiff is capable of performing, and would have been willing to relocate to perform under federal rules of civil procedure 56 of producing sufficient evidence from which choosing to retain taylor instead of schoonmaker. this court has held that an in unfair prejudice to defendant." williams v. the nashville network, 132 f.3d 1123, 1129 (6th cir.1997) testified that he decided to lay off two individuals from the third shift because the first case. but in making this argument, she misses the point of the barnes requirement. the motion for summary judgment in this action under the age discrimination employment act, same position" is dicta. in skalka, the plaintiff had already provided precisely the kind if the employer meets this burden, the burden of production shifts back to the plaintiff suggests that preliminarily there is reason to believe that a violation has taken place and therefore results shift bindery workers when he made his decision. pease stated that to him, "it's better in short, none of this evidence gives rise to an inference that spartan graphics's circumstantial, or statistical evidence tending to indicate that the employer singled out kennedy, llp, grand rapids, michigan, for appellant. thomas r. wurst, connie l. principle applies equally in a work force reduction setting. see skelton v. sara lee complaint filed with the eeoc complaint, spartan graphics never mentioned personality or productivity employment discrimination case involving a claim of disparate treatment is whether the skalka's dicta is inconsistent with an earlier sixth circuit case. see sahadi v. reynolds id. at 1118. attendance. thus, as a practical matter, pease followed the spartan graphics layoff more qualified than schoonmaker, but that, based on his observations, taylor was more the skalka court also noted that "[a]fter a jury verdict, the burden-shifting framework falls disclosure materials on file, and any affidavits show that there is no genuine issue as to third, schoonmaker argues that the district court erred by holding that spartan for the sixth circuit reason for taking an adverse employment action when it is analyzing the plaintiff's - no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 4 spartan graphics's proffered reason for terminating her was pretext for age performance record and other factors the company considers relevant." absent some - f.2d 936, 941 (4th cir. 1992)). in skalka, the defendant employer developed a "forced no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 8 interpretation of the act in laugesen [laugesen v. anaconda co., 510 harriet d. schoonmaker, first, schoonmaker claims that, contrary to the district court's ruling, the corp., 178 f.3d 414, 421 (6th cir. 1999), this court, citing barnes, id. at 420, said that (6th cir. 1987) (stating that "[t]his court has long recognized that the mere fact that a evidence a plaintiff must establish the four elements of the well-known mcdonnell fed web offset printing and screen-printing, primarily for use in advertising. it employs justifications for laying her off. this evidence, however, simply does not show age that spartan graphics's proffered reasons did not actually motivate its decision to the plaintiff's attempt to use the departure of only seventeen people as a basis for his inference that defendant discriminated on the basis of age." skelton, 249 f. app'x at possessed superior qualities to taylor in order to meet her burden of establishing a prima reduction). summary judgment is appropriate only "if the pleadings, the discovery and keyed her car, which pease found was unsubstantiated; (2) co-worker mary tyson's the plaintiff for discharge for impermissible reasons." id. _________________ away," and that "[t]he question for the court is simply whether there was sufficient evidence to support (3) melanie taylor's complaint that schoonmakerandevertweremistreatingher,which employees laid off from different departments. id. at 1116. the plaintiff asserted that discrimination. she cannot prove that spartan graphics's proffered reason�low evidence." asthedistrictcourtobserved, "pease's ignorance of the handbook provision, her duties. see barnes, 896 f.2d at 1465 (stating that "[a] person is replaced only when process or otherwise to establish a prima facie case. for example, a savings. the decision to cut costs was a "general consensus . . . nothing official." pease any material fact and that the movant is entitled to judgment as a matter of law." fed. at all times to demonstrate "`that age was the "but-for" cause of their employer's adverse in october 2006, spartan eliminated schoonmaker, then 58, and evert, then 65, outside of the protected class. id. at 622-23 (citations omitted).2 competent." id. at 421. explained that, in early fall 2006, work was slow, and the managers (owners jim and no. 09-1732 schoonmaker v. spartan graphics leasing, llc page 2 a. law been given the job basically as a favor after she was let go from another department, and common legitimate reasons' for the discharge are the work force reductions." id. at establish her prima facie case. thought taylor would get along better with coronado and speek. pease said that both douglas test: 1) that she was a member of a protected class; 2) that she was discharged; the barnes court further explained that "a person is not replaced when another in barnes v. gencorp inc., 896 f.2d 1457 (6th cir.1990), this court noted that - she was retiring at the end of the year anyway. pease chose to retain taylor, then 29, once a plaintiff satisfies her prima facie burden, the burden of production shifts are not to be applied "mechanically, instead opting for a case-by-case approach that focuses on whether agreed that taylor would be the better team player. pease admitted that taylor was no defendant's challenged conduct. wexler, 317 f.3d at 576; manzer v. diamond michigan, for appellee. on brief: h. rhett pinsky, pinsky, smith, fayette & district court for dismissing as irrelevant that (1) a younger employee was retained in her (stating that a plaintiff could establish a prima facie case by showing that her cir. 1999). terminate her. perform the plaintiff's duties." id. thus, according to barnes, a plaintiff might meet the the age discrimination act." id. at 1118-19. when a termination arises as part of a work force reduction, the fourth element of the rapids, michigan, for appellant. thomas r. wurst, miller johnson, grand rapids, united states court of appeals support his conclusion that she was not a team player, even though in each situation 558 (6th cir. 2009) (citation omitted). in other words, she has not carried her burden other words, the latter evidence does not show that the employer's reason was easy. however, the company will attempt to identify employees who are judgment. briscoe v. fine, 444 f.3d 478, 485 (6th cir. 2006). focus was keeping the bindery department running smoothly and efficiently, chose qualifications, and their ability to work together constructively as a team. he testified schoonmaker argues that the district court ignored that "all circumstances" may iii. conclusion