PAUL D. BORMAN, District Judge.
This matter comes before the Court on Defendant Otis Elevator Company's ("Otis") Motion for Summary Judgment. (ECF No. 54.) Plaintiffs filed a response (ECF No. 67) and Otis filed a reply (ECF No. 89). The Court held a hearing on February 7, 2013. For the reasons that follow, the Court GRANTS Otis's motion.
This action involves claims of age discrimination by six individuals, two of whom also assert claims of race discrimination, who were employed as mechanics by Defendant Otis Elevator Company ("Otis") in the Detroit metropolitan area and were terminated in 2008-2009. Otis claims that the six Plaintiffs were among 17 mechanics who were laid off, and whose duties were assumed by other Otis mechanics, as part of a broader workforce reduction necessitated by economic conditions. Otis claims that Plaintiffs were selected for lay off pursuant to a performance ranking system unrelated to the Plaintiffs' age and/or race. Plaintiffs claim that they were terminated and replaced by younger, less qualified mechanics and argue that the reduction in force, and the ranking system utilized by Otis to select them for lay off, were a guise for both age and race discrimination. Presently before the Court is Otis's Motion for Summary Judgment.
Plaintiffs in this action are six former Elevator Journeymen Mechanics who worked for Otis and were laid off between February, 2008 and October, 2009. Plaintiffs worked at Otis's Detroit Branch Office which has three elevator departments-Modernization (updating existing elevator equipment), Construction (installation of new elevator equipment), and Service (repair and maintenance of existing elevator equipment). (ECF No. 54, Def.'s Mot. Summ. Judg. Ex. 2, March 9, 2012 Declaration of Joseph Steger ¶ 4.) In addition to performing work on elevators at various properties throughout the Detroit market, the Detroit Otis Office also contracts with Northwest/Delta Airlines to provide service and maintenance for elevators, escalators, moving walkways and an indoor tram system known as the Automated People Mover ("APM") at the Detroit Metropolitan Airport-McNamara Terminal ("DTW"). (Id. ¶ 9.)
Plaintiffs contend that they were terminated and replaced by younger workers and treated disparately compared to younger
Otis responds that it eliminated 40 hourly employees in Detroit through rolling layoffs which began in January, 2009, including the lay off of 16 of its 72 mechanics in the relevant time period, as part of a workforce reduction, including the six Plaintiffs in this action, each of whom, Otis maintains, was among the lowest performing mechanics when terminated. (Def.'s Mot. Summ. Judg. Ex. 18, Interrogatory Resp. 5; Def.'s Mot. Summ. Judg. Ex. 17, March 6, 2012 Declaration of Elizabeth Ceriello ¶ 7.) Otis further responds that neither race nor age was a consideration in the decision to layoff the six Plaintiffs.
In selecting the six Plaintiffs (along with 11 other mechanics who are not plaintiffs in this lawsuit) for layoff, Otis purports to have relied, in part, on a ranking system, the Field Associate Ranking, colloquially referred to as the "Rack and Stack," which was created by Otis on an annual basis to compare employee performance based on a pre-selected set of criteria to evaluate the workforce for possible layoffs. (Def.'s Mot. Summ. Judg., Ex. 2, Steger Decl. ¶ 14, Ex. B, 2009 Rack and Stack; ECF No. 83, Pls.' Sealed Resp. to Mot. Summ. Judg. Ex. T, 2007 Rack and Stack.)
The FAPEs are prepared by supervisors to rate the performance of individual employees, scoring the employee on a given set of factors by assigning the employee a competency level (unsatisfactory, low/limited, medium and strong (or not applicable)) on the pre-selected set of factors. For the most part, the performance factors considered by supervisors completing a FAPE, i.e. safety, ethics, focus on customer needs, customer relationship building, technical expertise, productivity, work quality, attitude, applying standard processes, dependability/reliability, communication, problem solving, results oriented, planning and organization, leveraging networks, troubleshooting skills, repair skills and availability for callbacks, are the same factors considered on the Rack and Stack. The competency levels on the FAPEs are not assigned numeric values.
On the Rack and Stack, the competency levels utilized on the FAPEs are assigned numeric values: 1-unsatisfactory, 2-low/limited, 3-medium, and 4-strong. Additionally, on the Rack and Stack, the factors
Plaintiffs contend that the Rack and Stack was somehow "rigged" against them because the Rack and Stack values did not, in every case, exactly mirror the corresponding competency levels on each employee's FAPE. Plaintiffs claim that the FAPE scores and the Rack and Stack values were supposed to completely align and that disparities between the scores on the individual FAPEs and the scores on the 2009 Rack and Stack demonstrate that the 2009 Rack and Stick was "rigged" by Otis to target older mechanics for layoff in favor of younger, less qualified mechanics.
Joe Steger (Caucasian DOB October 3, 1966) has been employed as a Field Operations Manager responsible for the Service/Maintenance Department of Otis's Detroit Office since 2002. (Steger Decl. ¶¶ 2-3.) Steger reports to the General Manager of the Detroit Office, which was Tim Collins in 2007 and 2008 and Robert Olney in 2009. (Steger Decl. ¶ 2.) In his role as a Field Operations Manager (Maintenance), Steger oversaw Maintenance operations and provided technical support for the Detroit Office sales department. (Def.'s Mot. Ex. 1, October 3, 2011 Deposition of Joseph Steger, 25.) Steger also was responsible for helping to prepare the budget for Maintenance operations based on monthly performance projections. (Id. at 28-29.) Steger would receive monthly reports from Otis's corporate headquarters that would set forth the profit that Maintenance was expected to achieve. (Id. at 29-30.) The Maintenance Department did not meet budget in 2009. (Id. at 35.)
In the latter half of 2008, Steger became aware that Otis experienced a significant decline in business due to the overall declining economy and particularly in Otis's Construction and Modernization departments. As a result of the decline in business, and in an effort to cut costs, the Detroit Office implemented a workforce reduction and laid off mechanics and apprentices on a rolling basis. (Steger Decl. ¶ 11.)
In his role as the Field Operations Manager of the Detroit Office, Joe Steger oversaw the Rack and Stack ranking process and was the official, and sole, custodian of the final Rack and Stack document. (Def.'s Mot. Summ. Judg. Ex. 1, Steger Dep. 100-01.) In this role, Steger oversaw the January 21, 2009 Rack and Stack meeting that resulted in the preparation of the 2009 Rack and Stack, pursuant to which Otis claims to have terminated each of the Plaintiffs, with the exception of Wolf, who was terminated earlier pursuant
Steger was involved in the decisionmaking process that led to the lay offs of Brown, Anderson, E. Lardner, J. Lardner and Richard Wright to the extent that Steger oversaw the January 10, 2009 Rack and Stack meeting at which each of the Detroit Office supervisors participated in the group ranking of mechanics based upon their evaluations of the mechanics whom they supervised. (Id. ¶ 16.) The written product of this meeting, the 2009 Rack and Stack, was then used in as a tool in making lay off decisions later in the year. According to Steger, the 2009 Rack and Stack was not dispositive in his decision to recommend a certain mechanic for lay off, but was considered by him in addition to other information that he may have learned, or other manpower changes that might have been made, between the January meeting and the time that lay off decisions were made. (Id. ¶¶ 16-17.) Each time Steger recommended a particular mechanic for lay off, this decision was reviewed by Betsy Ceriello, Otis's Labor Relations Manager, to ensure compliance with all equal employment laws, union contracts and licensing laws. (Id. ¶ 17.)
Phil Davis (DOB 5/6/75) was the Field Operations Manager at Otis's Detroit Office from January, 2007 to May, 2011. (Def.'s Mot. Ex. 14, March 9, 2012 Declaration of Philip Davis ¶ 3.) Phil Davis testified that when the DTW contract was renegotiated in January, 2007, there were "significant" financial concessions that had to be given back to the airport, which was reflected in the monthly revenues that Otis received from Delta (Northwest at the time) for work performed at the DTW. (Def.'s Mot. Summ. Judg. Ex. 9, November 23, 2011 Deposition of Philip Davis 27-28; Def.'s Mot. Ex. 14, Davis Decl. ¶ 7.) Many cost cutting measures were put into place in early 2007 to compensate for the loss in revenue (approximately 10% of Otis's total revenues) resulting from the DTW contract renegotiation, including the termination of one airport mechanic. (Def.'s Mot. Ex. 9, Davis Dep. 27-28, 31.) In the summer of 2007, it became clear that in order to achieve the necessary savings, Otis would need to reduce its workforce. (Id. at 45-46.) This decision was made by Davis, Steger and Tim Collins, then the General Manager of the Detroit Office. (Davis Decl. ¶¶ 8-9.)
Davis made the decision to lay off Plaintiff Tony Wolf who was the lowest ranked mechanic on the 2007 Rack and Stack comparing airport employees. (Davis Dep. 52, 125, 132; Davis Decl. ¶ 10.) Davis testified that the Rack and Stack process was completed first and then the Rack and Stack values would be used to complete the FAPEs. (Davis Dep. 68-69.) It was Davis's understanding that the Rack and Stack results were supposed to align with the FAPE for the following year. (Id. at 89-90.) Davis explained that because the Rack and Stack process utilizes numerical values and the FAPEs do not, there was some inherent variation between the two processes due to rounding up or down. (Id. at 92-93; 118.) Davis recalled that at the Rack and Stack meetings, there was always some disagreement among the
Mr. Davis also made the decision to terminate Plaintiff Ralph Brown. (David Dep. at 159-60; Davis Decl. ¶ 14.) Brown was selected because he was the lowest ranking mechanic working on the APM at the time the General Manager (Robert Olney at the time) informed Mr. Davis that he needed to eliminate a mechanic. (Davis Decl. ¶ 14.) Phil Davis also selected Richard Wright for lay off because at the time the decision was made to eliminate another airport mechanic, Mr. Wright was the lowest performing mechanic on the 2009 Rack and Stack. (Davis Decl. ¶ 16.) Mr. Davis did not recall any new hires since Mr. Wolf's lay off in 2008; all of his employees were transfers from other departments. (Id. at 217.)
Keith Hearns, the supervisor who participated to some degree in the decisions to terminate Plaintiffs Earl Lardner, James Lardner and Ray Anderson, testified that "the Rack and Stack process is an internal management tool" that Otis used to rank its employees against each other, and that the Rack and Stack was used to select employees for lay offs when lay offs were mandated. (Def.'s Mot. Ex. 11, October 4, 2011 Deposition of Keith Hearns 69-70, 73, 75, 97-99.) Hearns testified that he takes his FAPEs for the year into the Rack and Stack meeting and uses the FAPEs "as a guide" that only "loosely" informs the ultimate numeric figures on the Rack and Stack. (Id. at 79-80.) Hearns testified that there was no directive to make the FAPE "equal" to the Rack and Stack and there was no requirement that one be "an absolute map[]" to the other. (Id. at 80-82.) Specifically, Hearns explained:
(Id. at 73, 82) (colloquy omitted).
Differences between the FAPE and the Rack and Stack, Mr. Hearns explained, additionally would occur because the Rack and Stack meeting involved the input of "every field manager that has people on the list," and although he brought his completed FAPEs with him to the Rack and Stack meeting, the numbers ultimately entered on the Rack and Stack were collectively agreed upon and changes to FAPE values would be made if there "was enough agreement." (Id. at 85-87, 91-92, 95-96, 112-13.) Specifically, Hearns testified:
(Id. at 91-92.)
Hearns also explained that the Rack and Stack, unlike the FAPEs, is a weighted system and includes numbers that can be fractional, making their totals inherently different in some instances from the FAPEs. (Id. at 72-74.) Hearns testified that he did not believe that the numbers on the Rack and Stack were ever changed after everyone left the Rack and Stack meeting: "[A]s a management team we trust one another that they wouldn't go behind our backs and change numbers we didn't agree to." (Id. at 93-94.)
Paul Jellison, the supervisor who communicated the termination decision to Plaintiff James Lardner, testified to his understanding from his training by Otis that the FAPE assessments and the numbers on the Rack and Stack were supposed to correlate and that, prior to 2010, the supervisors would generally try to transfer the information from the FAPE onto the Rack and Stack spreadsheet but they didn't always match up exactly. (Def.'s Mot. Ex. 12, October 4, 2011 Deposition of Paul Jellison 48-49.) Beginning in 2010, the final FAPEs for the year were completed and issued after the Rack and Stack meeting, to be certain that the two would
(Jellison Dep. 57-59.) Describing the Rack and Stack system prior to the 2010 changes, Jellison explained, as Hearns testified, that the numbers a supervisor would suggest from their FAPE could be changed based upon discussions at the Rack and Stack meeting, based upon the collective input of "a room full of supervisors with varying levels of experience." (Id. at 64.) Jellison explained that he would "put up his numbers," and "people might say blah, blah, blah, you know, not a three but a two, that kind of thing." (Id. at 65.) There would be discussion and sometimes a change would be made that would result in a different evaluation on the Rack and Stack. All of the Plaintiffs in the instant case were laid off under this system of evaluation as it existed prior to 2010:
(Id. at 66.) Although each of the Plaintiffs was terminated because of their ranking in the bottom 25% of mechanics on the 2009 Rack and Stack, they were not terminated for poor performance but due to lack of work and their rankings on the Rack and Stack. (Id. at 69.)
Gregory Testolin (Caucasian DOB 1/20/51), who supervised Plaintiff Earl Lardner, testified that he brought his FAPEs with him to the Rack and Stack meetings and that it was important that the numbers from the FAPEs go directly into the Rack and Stack and that the "goal" was that they be parallel. (Def.'s Mot. Summ. Judg. Ex. 13, October 5, 2011 Deposition of Gregory Testolin 52, 69-71, 75, 76.) Testolin confirmed that the numbers he would put up from his FAPEs could be changed by the group at the Rack and Stack meeting but that rarely happened. (Id. at 73-74.)
Robert Olney (Caucasian DOB 10/10/73) was the general manager for the Greater
(Def.'s Mot. Ex. 15, Olney Dep. 43-47, 51-52.)
Olney testified that either he or the general manager would have made Joe Steger aware of a need to reduce the workforce and explained that there would have been no computer or email trail regarding the need for a reduction in work force:
(Def.'s Mot. Ex. 15, Olney Dep. 70-71.)
Olney also testified that it did not surprise him that the layoffs did not proceed exactly according to the rankings on the Rack and Stack: "It wouldn't surprise me that it wasn't done in order just because there's different factors. This [the rack and stack] is kind of a guide." (Id. at 73.) Olney testified that a loss of business in one of the departments, i.e. Construction, Modernization or Maintenance, did not necessarily mean that the reductions would come from that affected department. That is why, Olney explained, the Rack and Stack was done across departments, so that the lowest performers would be considered for lay off regardless of the department that employed them. (Id. at 75.)
Olney testified that in 2008 he was managing a $50,000,000 office and by the time he left, at the end of 2010, the office was a $40,000,000 office due to loss of revenue on the Construction side and due to the unwillingness of customers to pay for their elevator service needs. (Id. at 75-77.) Olney testified that business had declined approximately 20% between 2008 and 2010 when he left Otis. (Olney Dep. 39.)
Olney explained that Otis tried to promote diversity and that "every time [they] had to lay people off, [race] was one of the — one of the discussions points was, if they were a protected class, we wanted to talk with Betsy [Ceriello] and make sure that we had exhausted our options." (Id. at 87.) Although he couldn't recall specific discussions regarding Plaintiffs Wright or Anderson, he explained that there was a possibility that when told by Joe Steger who had been selected for lay off, he (Olney) may question whether the protected class discussion had taken place and make sure that the lay off was cleared through Betsy Ceriello. (Id. at 88.) Olney also explained that the financial documents that would support the reductions in work force would be the monthly "selected operating data" reports. (Id. at 108-09.) Olney was not aware of the existence of any "labor budget" documents. (Id. at 78.) Olney also testified that he would not necessarily be surprised to see a big point differential between a FAPE and the Rack and Stack number as long as there was "some sort of consistency" between the two. (Id. at 91-93.)
Betsy Ceriello is a labor relations lawyer who has been employed by Otis as a labor relations manager since 2001. (Def.'s Mot. Summ. Judg. Ex. 16, December 2, 2011 Deposition of Elizabeth A. Ceriello 33, 69.) Her job duties include reviewing proposed lay offs and terminations of Otis employees for compliance with labor laws and company policies. She performed this function with respect to each Plaintiff in the instant case. (Id. at 75-76; 131-32; 133-34; Def.'s Mot. Ex. 16, Ceriello Decl. ¶ 6.) In 2009, Otis laid off 40 employees, including 16 mechanics. (Ceriello Dep. 136; 277-79; Ceriello Decl. ¶ 7.) Ms. Ceriello explained that her two main objectives in reviewing lay off requests were (1) to retain the best performing workforce and (2) to ensure compliance with the collective bargaining contract and any licensing or equal protection laws. (Id. at 142.) Ms. Ceriello described her role as a "check and balance" on the Rack and Stack/lay off process. (Id. at 146.) According to Ms. Ceriello, as of August 31, 2008, approximately 65% of the mechanics and apprentices in Detroit
Ms. Ceriello emphasized that in a lay off situation, which is how these Plaintiffs were terminated, all of the laid off mechanics were qualified — they were not terminated for poor performance. Their ranking at the lower end of the Rack and Stack was a reflection of where they fell among a group of qualified mechanics, not a finding by Otis that they were poor performers. (Id. at 147; 234.)
Until she rolled out the "Paint One Picture" training program in mid-2009, which emphasized that the FAPEs and Rack and Stack should directly align, Ms. Ceriello would hold informal, verbal training sessions with supervisors regarding the FAPE and Rack and Stack process. (Id. at 163-64; 181.) One of the objectives of the Paint One Picture training program was to improve the chance of prevailing on claims by hourly employees upon layoffs and terminations. (Id. at 182.) Ms. Ceriello conceded that in creating the 2009 Rack and Stack, the first cross-departmental Rack and Stack, there were more discrepancies between the FAPEs and the Rack and Stack than she would like to see but that it was the first time the supervisors had done it across departments and that the alignment between the two improved in subsequent years. (Id. at 188-89, 203.) In a perfect world, the "final portrait" if you will, would perfectly align the FAPE, the Rack and Stack, their job completion rates and the contents of their personnel files. (Id. at 236.)
Ms. Ceriello explained that the reason behind Plaintiff Wolf's lay off was the tough renegotiation of the Otis contract with the DTW airport and the substantial cost concessions that Otis had to make to retain that contract. (Id. at 73-75.) She was told by Phil Davis that in order to meet the DTW cost concessions and retain the DTW contract, they had to "lose a person and restructure the workforce." (Id. at 78.) Ms. Ceriello asked for the 2007 Rack and Stack and determined that Tony Wolf was the lowest performer. (Id. at 79.) Ms. Ceriello testified that she would analyze the Rack and Stack herself, to get "a snapshot" of the employees on the Rack and Stack closest to the individual facing lay off to determine things like race and age. (Id. at 98-99; 108-09.) Ms. Ceriello does not conduct any independent analysis of the business justifications presented to her by the manager or supervisor requesting authorization to lay someone off. (Id. at 101.) Ms. Ceriello did not ask the field supervisors or managers to document their reasons for a lay off but typically received their reasons in a telephone call. (Id. at 105.)
On the issue of aligning or matching the figures on the Rack and Stack to the FAPEs, Ms. Ceriello testified as follows:
(Def.'s Mot. Summ. Judg. Ex. 16, Ceriello Dep. 112-114.) "In end they have to produce this document called the FAP[E]. It matters not to me if they do this [Rack and Stack] first and put it on there [FAPE] or do that [FAPE] first and put it on here [Rack and Stack]. So in Detroit I believe the first when they did this combined one, I believe they tried doing it the second way when they did that — produced that particular January '09 Rack and Stack." (Id. at 174.)
With regard to the 2009 Rack and Stack, and Plaintiffs' terminations, Ms. Ceriello explained that she did check several FAPEs of the lowest ranked employees against the Rack and Stack and was not concerned with the disparities between the two because this was the first time that the supervisors had been required to sit down and create a Rack and Stack that covered all departments. (Id. at 123-124.) She excused disparities because of the likelihood that different supervisors from the different departments had different grading systems: "It was the first time we were kinda putting them on to one big rack and stack. So I would expect to see some deviation." (Id. at 124.) Specifically, she testified as follows:
(Id. at 172-73.) Over time, Ceriello explained, they were looking to have it be more aligned, but she was not surprised that this first group at this point in time may have done it imperfectly. After looking at the FAPEs and the Rack and Stack in the case of each of the Plaintiffs, Ceriello was satisfied that those being laid off were among the lowest performers. (Id. at 126-27.) Ms. Ceriello also testified that if a lay off was done some months after the Rack and Stack, there could be changes to the Rack and Stack if, for example, people's performance had changed in the intervening months. (Id. at 286.) She indicated that the only person who would be able to explain why the FAPE and the Rack and Stack scores varied would have been the supervisors themselves who participated in the Rack and Stack meeting. (Id. at 198, 203.)
In approving the lay offs of the Plaintiffs, Ms. Ceriello did not conduct an analysis of whether the disparities between the FAPEs and the Rack and Stack disproportionately affected any protected group:
(Id. at 208-09.) Ms. Ceriello was not aware and could not explain why the Plaintiffs' FAPE and Rack and Stack scores
Plaintiff Ray Anderson is African American and was born on April 7, 1956. (ECF No. 1, Compl. ¶¶ 12, 13.) Anderson was originally employed by Otis in 1975 and, after several years working elsewhere, was rehired by Otis again in 2003 when Otis acquired the company that employed Anderson. (Def.'s Mot. Ex. 3, June 28, 2011 Deposition of Raymond Anderson 144; Compl. ¶¶ 15, 16.) Anderson worked for Otis as an elevator journeyman mechanic assigned to Harper Hospital for several years but was reassigned to a different position upon his return from a medical leave in 2008. (Anderson Dep. 45-47, 50, 60; ECF No. 18, Otis's Supplemental Interrogatory Resp. 5.) According to Otis, Anderson was terminated in 2009 because there was a downturn in business and several individuals were selected for layoff. (Def.'s Mot. Summ. Judge. Ex. 11, Hearns Dep. 102-03.)
Anderson's supervisor, Keith Hearns (African American DOB 8/6/56), communicated the lay off decision to Mr. Anderson at the direction of Joe Steger. (Id. at 144-45, 149, 152.) Hearns, also an African American, testified that Anderson had expressed to Hearns his opinion that the elevator industry in the 1970's was racist but that he, Hearns, had never heard any racially derogatory comments while working for Otis. (Id. at 154-55.) Betsy Ceriello, Otis's Labor Relations Manager for the Midwest Region, explained that at her request, Mr. Anderson, an African American, was once or twice passed over for lay off in part to promote Otis's policy of encouraging diversity in the work force. (Def.'s Mot. Ex. 16, Ceriello Dep. 142-43; Def.'s Mot. Ex. 17, Ceriello Decl. ¶ 3.)
While Anderson was on medical leave, Roy England (Caucasian DOB 11/28/62) performed his job duties at Harper Hospital. (Def.'s Mot. Ex. 1, Steger Dep. 162; Def.'s Mot. Ex. 18, Otis's Supp. Interrog. Resp. 5.) Anderson was terminated on June 16, 2009 and Matt Cole (Caucasian DOB 4/14/61), who was returning from leave, replaced Anderson. (Def.'s Mot. Summ. Judg. Ex. 3, Anderson Dep. 43; Compl. ¶ 21.)
Plaintiff Ralph Brown is Caucasian and was born on April 13, 1958. (Def.'s Mot. Ex. 4, September 7, 2011 Deposition of Ralph Brown 35-36.) Brown worked almost exclusively at the DTW on the tram but also did some traditional service work at the DTW. (Id. at 31.) Brown was terminated on August 11, 2009. (Id. at 12.) Following his termination, Brown's job duties were performed by Kerry Kimlin (Caucasian age 47), who had advanced from the position of apprentice to mechanic in the summer of 2009, and who was performing the same work as Brown prior to Brown's termination. (Def.'s Mot. Ex. 9, Davis Dep. 191-92; Def.'s Mot. Ex. 4, Brown Dep. 12, 73-75; Def.'s Mot. Ex. 14, Davis Decl. ¶ 13.)
Brown testified that sometime in 2000 (Brown was 42 at the time) two of his supervisors, both of whom were the same age or older than he, gave him a bow tie to wear and said this is what the old timers wore, put it on. (Brown Dep. 33-36.) Brown also testified that his supervisor, John Mosella, would make comments about Brown being older and not able to move so fast and precluding Brown from "riding the bike" to service the tram, which required a quick service turnaround time. He also testified that his co-worker on his shift, Harry Marshall, who was older than Brown by about ten years, was permitted to "ride the bike" while Brown handled the control panel. Id. at 37-41. Brown also testified that he viewed a training video that warned about the propensity for older workers to experience a greater number of accidents on the job. Id. at 40-43. Brown testified that he believed the FAPEs were the arbitrary opinion of a supervisor but was unable to point to any portion of the FAPE that actually was designed to be adverse just to older workers. Id. at 56-57. Brown was terminated by Phil Davis and was told that he was being laid off due to lack of work. Id. at 65-66.
Plaintiff Earl Lardner is Caucasian and was born on May 2, 1952. Earl Lardner was terminated on August 20, 2009 and his duties were assumed by Ed Idyle (Caucasian DOB 5/8/66). (Def.'s Mot. Ex. 5, August
Earl Lardner was dissatisfied with his March, 2009 FAPE from his supervisor, Greg Testilon. (Def.'s Mot. Ex. 5, E. Lardner Dep. 23.) He felt that there was no standard for the evaluation for a particular skill and that the basis for the numbers assigned to them was never explained. (Id. at 28-29.) Earl Lardner testified that his supervisor, Greg Testilon, who was close in age to Mr. Lardner, asked him what his plans were for retirement but that Lardner thought nothing of the questions at the time. (Id. at 30-31.) Testilon never suggested to Lardner that he was too old or physically incapable of performing his job duties. (Id. at 32.) Testolin was involved in terminating Earl Lardner's employment in the sense that he was responsible for the evaluation that determined Earl Lardner's ranking on the 2009 Rack and Stack. (Def.'s Mot. Summ. Judg. Ex. 13, Testolin Dep. 78-81.) Like the other Plaintiffs, Lardner recalls seeing a training video that discussed the fact that older workers are more prone to work place injuries. (Id. at 33-34, 37.)
Plaintiff James Lardner is Caucasian and was born on March 2, 1956. James Lardner was terminated on October 9, 2009 and his job duties were assumed by Bryan Morche (DOB 8/26/71), who was at that time an Otis employee working in service. (Def.'s Mot. Summ. Judg. Ex. 6, August 5, 2011 Deposition of James Lardner, 9, 57; ECF No. 73, Pls.' Resp. Sealed Ex. H, Excerpts from EEOC Proceedings 2.) Lardner was terminated by Paul Jellison (Caucasian DOB 8/2/77) who both participated in the decision to lay off James Lardner and delivered to him the news that he had been laid off. (Def.'s Mot. Ex. 12, Jellison Dep. 9-11.) Jellison testified that James Lardner was terminated because there was a consolidation of routes and Jellison had to eliminate one mechanic. (Id. at 33-34.) Although routes were consolidated, Jellison testified that the total number of mechanics under his supervision did not decrease but that there was a net loss of one mechanic because there was an elimination of a full time equivalent of two thousand hours (one mechanic for one year) across the board. (Id. at 36-38.) Morche ranked 35 places higher than James Lardner on the 2009 Rack and Stack. James Lardner was called back by Otis after his October 9, 2009 termination to help out with service maintenance on an elevator machine in Bay City. (Def.'s Mot. Ex. 6, J. Lardner Dep. 9.)
James Lardner testified that he was aware that there was a slowdown in business at Otis's Detroit Office in 2009. (Id. at 13.) He also testified that in his opinion the FAPEs were not fairly designed because the supervisors filling them out were never with the employees and because one of the factors, technical competence, favored younger workers because the older workers were not trained on the new equipment. (Id. at 46-47.)
James Lardner testified that another Otis employee, perhaps one of his supervisors but he couldn't be sure, once teased him about being slow, walking up the stairs. Other than that comment, and questions regarding his intentions of retiring, none of his supervisors ever told him he was too old to perform his job duties.
James Lardner testified that he witnessed Joe Steger comment, sometime in 2002, that he did not want black people working for him. Lardner testified that Steger was laying off a black helper sometime in 2002 named Van Wiley but in fact was supposed to lay off another worker who was not black. Lardner testified that Steger told him that was "all right because I don't want any blacks working for me." (Id. at 73-76.) Steger denies ever having made the remark. (Def.'s Mot. Ex. 1, Steger Dep. 12.)
Richard Wright is African American and was 58 years old when terminated by Otis on September 9, 2009. (Def.'s Mot. Summ. Judg. Ex. 8, August 10, 2011 Deposition of Richard Wright, Sr. 9-10.) Wright was principally assigned to the DTW, doing traditional service work (elevators, escalators, moving sidewalks) and with some experience assisting with the control panel for the airport tram (APM). (Wright Dep. 17-18, 59-60, 23-26.) Wright was terminated by Phil Davis who selected Wright for termination, with input from Joe Steger, because "given the layoffs that had already occurred in 2009, [Mr. Wright] was the lowest ranked remaining Airport Mechanic." (Def.'s Mot. Ex. 14, Davis Decl. ¶ 16.) Following Wright's termination, Kirk Rosiek (Caucasian age 41) was transferred to the DTW to work on the APM after completing a Modernization assignment. (Def.'s Mot. Ex. 9, Davis Dep. 198-202.) Rosiek's transfer to the APM resulted in the reassignment of another mechanic with traditional service work experience, Yves Levesque (Caucasian age 44), to absorb Wright's traditional service work duties. (Id. at 201-02.)
Mr. Wright testified in his deposition that he did not believe that either of his supervisors, Phil Davis or John Mosella, ever discriminated against him on the basis of his age or his race. (Id. at 31-32, 33-34.) Regarding his claim that he had suffered racial discrimination, Mr. Wright testified that a temporary "helper" once stated to Mr. Wright that he did not have to take orders from a "nigger." (Id. at 35.) Apart from this comment, Mr. Wright did not recall any other racially discriminatory remarks. (Id. at 37.) Mr. Wright never had a conversation of substance with Mr. Steger but after Mr. Wright was terminated he was told by James Lardner that Mr. Steger had once said that he did not want any black people working for him. (Id. at 39-40.) Other than comments that Mr. Wright perceived to be a joke from an older co-worker, Mr. Wright never experienced remarks from Otis supervisors relating to his age or ability to physically perform his job duties. (Id. at 41-43.) Mr. Wright testified that he was aware at the time he was laid off that other mechanics also were being laid off and were in the same position as he — looking for call-back work. (Wright Dep. 10, 20.)
Plaintiff Tony Wolf is Caucasian and was born on December 26, 1956. Tony Wolf was laid off on February 1, 2008, prior to the time that the other Plaintiffs were terminated and pursuant to a different 2007 Rack and Stack. (Def.'s Mot. Summ. Judg. Ex. 7, July 29, 2011 Deposition of Anton Wolf, 7.) Wolf worked on the APM (Automated People Mover/Tram) at the DTW. (Id. at 34.) Wolf was terminated by Phil Davis, who told Wolf that he was being laid off because of lack of work.
Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim, or cross-claim is asserted may "at any time, move with or without supporting affidavits, for a summary judgment in the party's favor as to all or any part thereof." Fed.R.Civ.P. 56(b). Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party's case on which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548; See also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987).
A fact is "material" for purposes of a motion for summary judgment where proof of that fact "would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black's Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conversely, where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). "`The central issue is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir.2005)).
If this burden is met by the moving party, the non-moving party's failure to make a showing that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at
"Rule 56(e)(2) leaves no doubt about the obligation of a summary judgment opponent to make [his] case with a showing of facts that can be established by evidence that will be admissible at trial.... In fact, `[t]he failure to present any evidence to counter a well-supported motion for summary judgment alone is grounds for granting the motion.' Rule 56(e) identifies affidavits, depositions, and answers to interrogatories as appropriate items that may be used to support or oppose summary judgment." Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting Everson v. Leis, 556 F.3d 484, 496 (6th Cir.2009)).
The Age Discrimination Employment Act, 29 U.S.C. § 621-634 (the "ADEA") prohibits employers from discharging an employee "because of such individual's age." 29 U.S.C. § 623(a)(1). A plaintiff may proceed on a claim of age discrimination on the basis of direct or circumstantial evidence. "If a plaintiff cannot prove discriminatory intent by direct evidence, he may do so by making a prima facie case of age discrimination through indirect or circumstantial evidence." Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 725 (6th Cir.2012). "The burden-shifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and further refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), applies in the present case because [Plaintiffs] presented no direct evidence of discrimination." Browning v. Department of the Army, 436 F.3d 692, 695 (6th Cir.2006). Where, as here, a plaintiff lacks direct evidence and chooses to proceed on the basis of circumstantial evidence, he must prove that: "(1) he was at least 40 years old at the time of the alleged discrimination; (2) he was qualified for the job; (3) he suffered an adverse employment action; and (4) he was replaced by someone substantially younger." Id. "An allegation that the plaintiff was replaced by a younger individual supports an inference of discrimination only if the age difference is significant." Blizzard v. Marion Technical College, 698 F.3d 275, 283 (6th Cir.2012) (citing Grosjean v. First Energy Corp., 349 F.3d 332, 336 (6th Cir. 2003)). An age difference of fewer than six years is not significant as a matter of law, age differences greater than ten years are generally considered significant and differences that fall between six and ten years are to be judged on a case by case basis. Blizzard, 698 F.3d at 284.
Barnes, 896 F.2d at 1465.
"If a plaintiff satisfies his burden at the prima facie stage, the burden of production shifts to the employer to set forth a legitimate, non-discriminatory reason for the adverse employment action. If the employer meets this burden, the burden of production shifts back to the plaintiff to show that the employer's explanation was a mere pretext for intentional age discrimination. The burden of persuasion, however, remains on the ADEA plaintiff at all times to demonstrate that age was the "but-for" cause of their employer's adverse action." Schoonmaker, 595 F.3d at 264 (internal citations and quotation marks omitted).
Once an employer rebuts a stated prima facie case with a legitimate, non-discriminatory reason for the adverse employment action, "the presumption of discrimination no longer exists, and [plaintiff] must prove that the reasons offered by the [employer] were in fact pretextual in order to prevail." Browning, 436 F.3d at 695.
"An employer is entitled to summary judgment `if the plaintiff created
Each of the Plaintiffs in the instant case has satisfied the first three prongs of the prima facie case. Plaintiffs are all over the age of 40, their lay offs were adverse employment actions and they were qualified to do the work.
"A work force reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge. However, a person is not
Plaintiffs argue that Otis has failed to present sufficient evidence of the financial necessity for a RIF and also failed to demonstrate that the number of mechanics actually was reduced. In response to Plaintiffs' discovery requests seeking evidence of the economic necessity for the RIF, Otis produced its monthly plan to performance figures for the years 2008 and 2009, which demonstrate that Otis failed to meet the plan goals in the majority of those months. Plaintiffs do not dispute the accuracy of this information but rather attack the fact that Otis did not produce other information, such as documents reflecting "labor costs," from which Plaintiffs apparently hoped to dispute the fact that Otis actually faced an economic need to reduce its workforce. The Court previously denied without prejudice Plaintiffs' motion for spoliation on this issue, finding no evidence that Otis failed to produce the documents that had been requested or ordered to be produced on this issue during discovery. (ECF No. 103.)
Otis maintains that it has produced all documents and evidence on which it intends to rely to establish the economic necessity for a workforce reduction — i.e. the performance to plan documents and testimony regarding the overall economic downturn in the industry at the time of Plaintiffs' lay offs, a fact to which several witnesses, including many of the Plaintiffs, testified to during discovery. Plaintiffs have presented no credible evidence to dispute the fact that each of the terminations at issue in this litigation was carried out pursuant to a corporate directive to eliminate mechanics at Otis's Detroit office due to financial concerns in the Detroit elevator market.
In support of their claim that Otis had no real need to reduce its workforce, Plaintiffs direct the Court to a page from Otis's 2009 Annual Report, indicating that Otis employs 60,781 people across the globe and reported revenues of $11.8 billion and operating profits of $2.4 billion worldwide 2009. The utter lack of probative value of this evidence to the economic issues faced in Otis's Detroit office in 2009 is patently clear. Plaintiffs have not produced sufficient evidence to create a genuine issue of material fact regarding the economic necessity for a reduction in force at Otis's Detroit office in 2008-2009.
Nor have Plaintiffs presented evidence to rebut Otis's evidence that it did in fact lay off 17 of its 72 mechanics between January, 2008 and December, 2009, pursuant to an economically motivated reduction in force. Plaintiffs make the unsupported statement that in fact there was no reduction in the mechanic labor force and that the repair side of the business (the Maintenance department where Plaintiffs were employed) was not suffering the same economic downturn as the Construction and Modernization departments. (ECF No. 67, Pls.' Resp. 19). Plaintiffs concede that the evidence demonstrates a slow-down on the Construction and Modernization end of the business in the Detroit market but note that none of the Plaintiffs worked in those departments. (Pls.' Resp. 1.) Otis explained in its position statements to the EEOC that as the economy continued to decline and layoffs were needed, the "company's management made a number of
The Sixth Circuit has recognized, however, that such "reshuffling" of the workforce in an effort to achieve an overall cost savings is a legitimate means of carrying out a RIF and is consistent with the mandate of Barnes. In Brocklehurst v. PPG Indus., Inc., 123 F.3d 890 (6th Cir. 1997), the Sixth Circuit reversed the district court's denial of PPG's renewed motion for summary judgment as a matter of law challenging the sufficiency of the evidence in support of the jury's verdict on plaintiff's age discrimination claim, and remanded to the district court with instructions to enter judgment in favor of PPG on plaintiff's age discrimination claim. In Brocklehurst, it was undisputed that PPG was seeking to reduce costs and increase profitability, in part by terminating approximately 130 employees. Id. at 895. Performance was to be the sole criteria for determining who would be terminated and the employees were ranked against each other to accomplish this purpose. Id. at 893. Brocklehurst was ranked near the bottom of employees in his peer group and therefore was identified as an employee who should be terminated as part of the RIF. Id. Brocklehurst was terminated and his position was filled by another PPG employee who was promoted to Brocklehurst's position following Brocklehurst's termination. The position previously occupied by Brocklehurst's replacement was filled by another PPG employee and that employee's position was left unfilled. Id. at 895. Concluding that Barnes could not be interpreted to disqualify a termination as part of a RIF if the affected employee's position is not eliminated, the Sixth Circuit held:
123 F.3d at 895.
In Douglas v. Int'l Automotive Components Grp. North America, Inc., 483 Fed. Appx. 178 (6th Cir.2012), the Sixth Circuit applied the logic of Brocklehurst in a case involving a reduction in force that "reshuffled" valued employees to replace employees who were terminated following a directive to reduce costs. In Douglas, the plaintiff was terminated and his position was filled by another employee who did related but not identical work but who was deemed to be critical to the upcoming launch of a particular project. Id. at 180. Rejecting plaintiff's contention that the RIF was not the true reason for his discharge because his position was filled by another existing employee, the Sixth Circuit
Plaintiffs also suggest that the fact that there were rehires and even new hires after Plaintiffs were laid off indicates that there was no bona fide need to reduce the workforce. Phil Davis testified, however, that there may have been new hires or rehires but that the overall number of mechanics definitely reduced over the relevant period of time. (Def.'s Mot. Ex. 9, Davis Dep. 150-51). This testimony is consistent with the documentary evidence that demonstrates that Otis employed 72 mechanics on January 20, 2009 and employed 57 mechanics on June 30, 2010. (Compare Def.'s Mot. Ex. 2, Steger Decl. ¶ 14, Ex. B, January 21, 2009 Rack and Stack with Pls.' Resp. Ex. O, List of Mechanics in Detroit office as of June 31, 2010.) This evidence is unrebutted. Plaintiffs suggest that because the number of employees in the Maintenance/Repair department did not decrease over the period that included the RIF, Otis did not in fact decrease its number of mechanics. Otis has explained, however, that the workforce was evaluated as a whole, not just by department, i.e. Construction, Modernization and Repair, and that while there may have been a few new hires, there was definitely a greater number of layoffs overall. (Davis Dep. 150.)
As Brocklehurst makes clear, evidence that Otis preferred to retain its Construction and Modernization mechanics, and to transfer some of them to the positions previously occupied by Plaintiffs, is simply insufficient as a matter of law to permit the Court to conclude that plaintiffs' terminations were therefore not pursuant to a bona fide RIF. "[A] project-specific or employee-specific increase in work cannot rebut [Otis's] aggregate data demonstrating a companywide downturn in [elevator] work and decrease in workforce." Copeland v. Regent Electric, Inc., 499 Fed. Appx. 425, 430 (6th Cir.2012). In Copeland, just days before laying off the African American plaintiff, the employer had transferred five white employees from other projects to the plaintiff's project. The Sixth Circuit held that even assuming another employee took on the work previously performed by plaintiff, the lay off still fell under Barnes's definition of a RIF:
Copeland, 499 Fed.Appx. at 432. Plaintiffs have not attempted to establish that any of the mechanics who assumed the Plaintiffs' job duties were not previously performing "related work." The mere fact that they were elevator mechanics in different departments
It is true that if Plaintiffs had been able to demonstrate a genuine factual dispute regarding the existence of the RIF, applying the additional evidentiary burden required in the case of a RIF would be inappropriate. In the instant action, however, although Plaintiffs' contest the "legitimacy" of Otis's reduction in force, Plaintiffs have failed to adduce concrete evidence to dispute the "existence" of the reduction. "Ultimately, whether one characterizes [Otis's] restructuring as a replacement or an elimination of a position, the fact that an employer facing a work shortage shifts the available work to some employees and lays off the rest (including [African Americans and older workers]) — without more — fails to establish a prima facie case of discrimination." Copeland, 499 Fed.Appx. at 432. Accordingly, under Barnes and its progeny, the Plaintiffs bear the burden at the prima facie stage of producing additional direct, circumstantial or statistical evidence in this case that the Plaintiffs were singled out for termination because of their age.
Because Plaintiffs were terminated pursuant to a RIF, they must do more than simply demonstrate that each of them was replaced by a younger worker — they must produce "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons" in order to satisfy the fourth prong of their prima facie case. Barnes, 896 F.2d at 1465. While each Plaintiffs' claim ultimately must be analyzed individually under the McDonnell Douglas burden shifting framework, see Barnes, 896 F.2d at 1470, Plaintiffs suggest that an inference of discrimination as to the entire group is sufficiently demonstrated by certain "statistical" evidence and that this showing would satisfy the heightened fourth prong of the prima facie case as to each Plaintiff.
"Appropriate statistical data showing an employer's pattern of conduct toward a protected class as a group can, if unrebutted, create an inference that a defendant discriminated against individual members of the class. To do so, the statistics must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity." Barnes, 896 F.2d at 1466 (citations omitted). "[B]oth the methodology and the explanatory power of the statistical analysis must be sufficient to permit an inference of discrimination." Id. (citing Simpson v. Midland-Ross Corp., 823 F.2d 937, 944 (6th Cir.1987)).
Plaintiffs' "statistical evidence" falls far short of the type of statistical evidence that the court in Barnes and in subsequent cases relied on by Plaintiffs, such as Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121 (6th Cir.1998), found sufficient to establish a prima facie case under the heightened standard applicable in a RIF. Neither the methodology nor the explanatory power of Plaintiffs' "statistical" analysis is sufficient to permit an inference of discrimination at the prima facie stage. Barnes cautioned that any data relied on to support an inference of discrimination must be from a reliable source and must be of sound methodology. 896 F.2d at 1466. Most importantly, however, unlike the statistical evidence found sufficient at the prima facie stage in Barnes and Scott, Plaintiffs' "statistical" evidence fails to eliminate either of the two most obvious explanations for discharge, i.e. lower proficiency and random chance, and therefore cannot create an inference of discrimination.
Unlike the expert opinion evidence considered by the courts in Barnes and Scott, none of Plaintiffs' "statistical" information is presented through the testimony of an expert and some of it is contradicted by unrebutted evidence submitted by Otis. Plaintiffs' "statistical evidence" was compiled and presented not through experts but by Plaintiffs' counsel, Darcie Brault, in briefs and in a now-stricken exhibit. Plaintiffs' "statistical evidence" contains numerous factual errors and omissions as well as faulty or unexplained methodology. For example, in support of their assertion that the terminations resulted in an overall decrease in the average age of retained mechanics, Plaintiffs assert, without any evidentiary support, that with regard to Mr. Wolf's 2008 lay off, Lawrence Kubert, a mechanic who was older than Plaintiff Wolf and ranked 2nd on the 2007 Rack and Stack (Wolf ranked 13th out of 15-see Pls.' Ex. I, 2007 Rack and Stack), retired shortly after Wolf was laid off, suggesting that this fact diminishes the significance of Otis's retention of this older mechanic at the time that it terminated Wolf. The undisputed evidence demonstrates, however, that Kubert (who is eight years older than Plaintiff Wolf) was retained when Wolf was laid off and retired on January 31, 2011, over three years after Wolf was laid off.
With respect to the remaining Plaintiffs' lay offs pursuant to the 2009 Rack and Stack, Plaintiffs attempt to derive statistical significance from a comparison of the average age of mechanics who were laid off pursuant to the 2009 Rack and Stack
Plaintiffs make no effort to describe the reason, if any, for these omissions and make no effort to describe the relevant time frame for their comparisons or to explain what factors, e.g. changes in business conditions or qualifications of the new hires, etc., might have prompted Otis to hire new mechanics and not rehire Plaintiffs two years after Plaintiffs were terminated. See Simpson v. Midland-Ross Corp., 823 F.2d 937, 943 (6th Cir.1987) (finding plaintiff's statistical evidence regarding the ages of new hires doomed by the failure to provide evidence regarding the qualifications of the new hires, noting that "employee statistics unaccompanied by evidence regarding qualified potential applicants from the relevant labor market... lacked probative value").
Plaintiffs also make sweeping and unsupported statements regarding three older workers (JP Lagaeuex (DOB 1947), Warren Morche (DOB 1945), and Jim Whims (DOB 1947)), who were retained by Otis during the RIF, citing their "impending retirements" as a reason to ignore their ages in the "statistical" presentation of data. (Pls.' Resp. 7 n. 23.) Plaintiffs only speculate about the fact of these retirements and offer no evidence that Otis knew at the time that it retained these three older workers (all of whom not unimportantly were ranked significantly higher than Plaintiffs on the 2009 Rack and Stack) were planning to retire on any date certain or that their retirement plans in any way figured into Otis's rankings. In fact, Plaintiffs' own Exhibits indicate that none of the three retired until a year to eighteen months after Plaintiffs were terminated. (Pls.' Resp. Ex. M.) Also noteworthy is the fact that of the six new hires on Plaintiffs' chart, three are 48 or older, further undercutting Plaintiffs' claim that Otis preferred to employ younger mechanics, outside of the Plaintiffs' protected class, i.e. forty years of age and older.
Plaintiffs' statistical evidence is plagued by several critical inaccuracies or omissions of data, and also fails to adequately
Even assuming the accuracy of the data and the soundness of the methodology (neither of which the Court can presume), Plaintiffs fail to explain the probative value of comparing the average age of those laid off and not recalled to the average age of Otis's new hires in the months and years following the Plaintiffs' terminations. Importantly, Plaintiffs never adequately rebut the affidavit testimony of Betsy Ceriello that "as of August 31, 2008, approximately 65% of the Mechanics and Apprentices in Detroit were over 40 years old. As of January 31, 2010, approximately 74% of the Mechanics and Apprentices in Detroit are over 40 years old." (Def.'s Mot. Ex. 17, Ceriello Aff. ¶ 8(a).) Plaintiffs' only rebuttal to this evidence is the accusation that "Otis lumps together Mechanics and Apprentices to support its claim that Otis went from 65% to 74% of employees over forty after the layoff." (Pls.' Resp. 1.) Plaintiffs do not explain why including Apprentices renders the statistic unreliable. Ceriello includes the apprentices on both sides of the equation, i.e. she is comparing apples to apples, so the Court is hard pressed to see the significance of Plaintiffs' rebuttal on this point. Nor do Plaintiffs proffer an alternate more telling comparison, e.g. the percentage of mechanics over 40 years old both before and after the RIF, or for that matter any other potentially probative comparison.
Barnes, 896 F.2d at 1467. In permitting statistical evidence to suffice to establish a prima facie case, the court in Barnes explained: "We allow a plaintiff to establish a prima facie case [based on statistics] without additional evidence that bias is the more likely cause of the discharge than legitimate explanations because we assume, absent some reason to believe the opposite is true, that job skills will be equally distributed across all age groups." 896 F.2d at 1469. In the instant case, even assuming that Plaintiffs' statistical evidence demonstrated a significant disparity, the Rack and Stack ranking of employees based on performance is evidence that skill in this case is not equally distributed. This negates Plaintiffs' ability to draw an inference of discrimination at the prima facie stage based on statistics alone because relative lower proficiency (one of the two most "obvious explanations" for discharge of an employee) has been demonstrated through the Rack and Stack process.
Plaintiffs, however, would have the Court disregard the Rack and Stack ranking of mechanics because they claim that the Rack and Stack itself was manipulated to target older employees for lay off. Thus, Plaintiffs would argue that at the prima facie stage, the most common basis for discharge, i.e. relative lower proficiency, has not been demonstrated and that, as in Barnes, the Court should assume that job skill was evenly distributed. But Barnes suggests that in the face of evidence that job skill was not equally distributed, statistical disparities cannot suffice to establish a prima facie case. While the integrity of the Rack and Stack is addressed
This Court has already ruled that Exhibit U, prepared by Ms. Brault and offered as a Federal Rule of Evidence 1006 Summary in support of Plaintiffs' response to Defendants' motion for summary judgment, be stricken. (ECF No. 103, Order Striking Exhibit U.) While the Court would not typically address the contents of a stricken exhibit, it does so here for the limited purpose of demonstrating that the very document prepared by Plaintiffs' counsel to demonstrate ageist bias in the Rack and Stack in fact demonstrates that any disparities in the Rack and Stack are in fact age-neutral.
In her stricken Exhibit U, Ms. Brault attempted to demonstrate that the Rack and Stack process was "manipulated" to the "disadvantage of the older workers." (Pls.' Resp. 21-23.) In an effort to demonstrate that the Rack and Stack was a sham document used to target older workers for lay off, Ms. Brault attempted to document disparities between the Plaintiffs' FAPEs and their rankings on the Rack and Stack. It is undisputed that where Ms. Brault did not have sufficient information regarding a particular mechanic's FAPE scores, she simply excluded them from her charts. Ms. Brault's "chart" setting forth the sort by disparity and birthdate includes information on only 45 of the 72 mechanics ranked on the 2009 Rack and Stack. Although she lacked FAPEs for seven of the 72 mechanics, this does not explain why her disparity conclusions do not include all of the remaining mechanics for whom she did have FAPE data. For some unexplained reason, some individuals for whom Otis did provide FAPEs, and who appear on Ms. Brault's master list (her Exhibit 2 to Exhibit U), do not appear in her disparity or birth date sorts (her Exhibit 4 to her Exhibit U). As a result, the explanatory power of the entire Exhibit is necessarily compromised and insufficient to support an inference of discrimination. For this reason alone, the methodology employed to compare the disparities in the mechanics' scores is not sufficient to infer discriminatory intent, even were the Court to accept Ms. Brault's comparisons as a pedagogical aid.
Finally, even if comparisons of disparities between FAPE scores and Rack and Stack scores were accurately drawn and presented on stricken Exhibit U, the Court's own random sampling of several employees' scores, young, old and in between, demonstrates that, despite Plaintiffs' claim otherwise, there is no particular ageist pattern to the distribution of the disparities. It appears that in several instances, across several age groups, the scores entered on the Rack and Stack were lower than they would have been had they been transposed directly from the FAPEs. This result is consistent with the testimony of several Otis supervisors who explained that discussions took place at the Rack and Stack meeting and that changes could be made based on the collective opinion of the group. Also, as Phil Davis and Keith Hearns both testified, the fact that the FAPE scores had no numeric values resulted in multiple fractional scores being entered on the Rack and Stack. A selection of the disparities noted by the Court is as follows: The Plaintiffs: Ray Anderson (53, 12 full decreased scores)
At the hearing on this matter, when the Court directed Plaintiffs' counsel's attention to this pattern of disparities that appeared across all age groups, Counsel conceded that the disparity data she compiled really only demonstrated that "there were huge disparities with respect to a lot of workers," and that the ranking process was therefore inherently flawed. (ECF No. 120, Transcript of Feb. 7, 2013 Hearing on Defendant's Motion for Summary Judgment 28.) Accordingly, Plaintiffs concede that the "disparity data," even assuming it were fully and accurately presented (which it is not), reflects, if anything, that across the board the Rack and Stack was not an accurate reflection of an individual employee's actual performance. Consequently, Plaintiffs question Otis's business judgment in relying on the Rack and Stack as a tool for selecting employees for lay off. (Id. at 30.) It was clear from counsel's remarks at the hearing on this matter that Plaintiffs' principal grievance is with the alleged subjectivity of the FAPE process and they question Otis's utilization of the FAPEs as a baseline for creating the Rack and Stack. As counsel stated at the hearing: "So this whole idea that the FAPE — FAPEs are supposed to provide the foundation for making relative comparison is already on very tenuous ground because it's not something that they can make subjective evaluations on." (Hr'g Tr. 32.) Plaintiffs would have preferred if Otis evaluated the Plaintiffs using the "OMMS," an "electronic system designed to show how they get to their routes, what they do on their routes, how much time they spend, make sure everything is completed, and that is completely objective...." (Hr'gTr. 33.)
This is not an age specific complaint — this is an attack on Otis's business judgment and applies across the board to
Because it is undisputed that mechanics of all ages had their scores adjusted, there is simply no basis to infer from any disparities between the FAPEs and the Rack and Stack that those disparities were age related. Plaintiffs offer no evidence that Otis lacked an honest belief that the Rack and Stack was a valid reflection of relative employee performance. It is undisputed that Otis did in fact rely on the Rack and Stack rankings (in addition to other criteria in some instances) as a tool in the process of selecting mechanics for lay off. Indeed, this is Plaintiffs' central complaint. Plaintiffs may question whether the Rack and Stack was an accurate reflection of employee performance with regard to any ranked mechanic, but they have offered no basis on which a reasonable juror could conclude that Otis did not in fact rely on the Rack and Stack or that it lacked an honest belief that the Rack and Stack could be used as a tool for comparing the relative skill sets of its mechanics.
Plaintiffs also suggest that the subjectivity of the FAPEs serves as circumstantial evidence of discriminatory motive. The subjectivity of the FAPEs is as irrelevant in this case as it was in Browning, supra. As in Browning, Plaintiffs "at most contend[] that [Otis] undervalued [their] skills and experience" but provide no evidence of a "a link between the subjective matrix criteria and any discriminatory intent by [Otis]." 436 F.3d at 697. In other words, Plaintiffs do not contend that the performance factors that supervisors are required to evaluate on the FAPEs, i.e. ethics, focus on customer needs, customer relationship building, technical expertise, etc., in and of themselves disfavor older workers. See Grano v. Dep't of Dev. of Columbus, 699 F.2d 836, 837 (6th Cir.1983) (finding that the question "is whether the subjective criteria were used to disguise discriminatory action"). Whether Plaintiffs agree with the subjective nature of the FAPE process, or believe that they are more qualified than their FAPEs reflect, is "irrelevant to the age-discrimination inquiry — what matters is [their supervisor's] perception of [their] qualifications." Browning, 436 F.3d at 698. Absent a challenge to the underlying criteria used in the evaluation process, employers are free to make wholly subjective, unpopular and imperfect decisions. Id.
Plaintiffs rely on Scott v. Eastman Chemical Co., 275 Fed.Appx. 466, 476 (6th Cir.2008) for the proposition that subjective evaluations must be "carefully scrutinized" to guard against their use as a mechanism for discrimination, particularly where the decisionmakers are not members of the protected group. However, the Sixth Circuit in Scott also noted that the use of subjective criteria is permissible and ultimately decided that even under careful scrutiny, Eastman had articulated a non-discriminatory reason based on both subjective and objective criteria for not promoting the plaintiff. Id. at 477.
Plaintiffs also complain that the FAPEs were not reliable because the supervisors doing the evaluations were not themselves mechanics or did not visit the worksites often enough. Plaintiffs provide no evidence, apart from the opinions of the Plaintiffs, regarding the qualifications of the supervisors who performed the evaluations and thus has provided no factual support for this claim. Moreover, even if true, this would not serve as evidence of discriminatory intent as this same failing would be true with regard to each mechanic, regardless of his age or race.
Finally, Plaintiffs argue that discriminatory intent can be inferred from a "corporate culture that devalued older workers in favor of younger ones." (Pls.' Resp. 19-20.) In support of this assertion, Plaintiffs point to (1) a safety training video, (2) comments made by co-workers or supervisors regarding "old timers" or "old men," and (3) questions posed to Plaintiffs regarding when Plaintiffs anticipated retiring.
The undisputed evidence demonstrates that the safety training video shown by Otis on several occasions instructed that both new workers (due to lack of training/skill) and older workers (due to complacency, not age) were statistically more likely to be involved in work-related accidents. (Def.'s Mot. Ex. 9, Davis Dep. 227-28.) Plaintiffs mischaracterize Phil Davis's testimony on the topic of the safety video which, read in its entirety, in fact clearly supports Otis's position that the safety video is not age-related at all. In pertinent part, Mr. Davis testified as follows:
Def.'s Mot. Ex. 9, Davis Dep. 226-28.
Plaintiffs seize on the last question and answer in this lengthy discussion and represent that Mr. Davis "knew" that the older workers felt they were being singled out and targeted by the video. In fact, Mr. Davis denied ever hearing anyone make the remark about "we have to make sure they don't get to that point." Taken in its entirety, Mr. Davis's testimony on the subject of the video clearly explains that the video targeted the young and the old alike, and that the complacency at which the video was directed was a function of years of experience, not just age. Plaintiffs should not be permitted to "rely on the answer to an isolated and ambiguous question to create an issue of fact for trial." Barnes, 896 F.2d at 1474.
The Court concludes that this safety video simply is not age-related at all and certainly cannot serve as a basis to infer a corporate culture to devalue old workers. Plaintiffs do not even attempt to challenge the integrity of the statistics in the safety video and there is no basis to doubt that the video presented an accurate statement of workplace accidents occurring most frequently in the younger (less experienced) and older (more complacent) populations of employees. Perhaps Plaintiffs took offense or disagreed but there is nothing ageist in such a message and no Plaintiff ever complained to management about the content of the safety video prior to filing this lawsuit.
Plaintiffs also support their claim of a corporate culture that devalued older workers with evidence of remarks allegedly made about "old men" or "old timers" or questions put to them about their plans for retirement.
The Court need look no further than the case on which Plaintiffs rely to conclude that these isolated instances of alleged discriminatory remarks by co-workers and immediate supervisors, even if made, do not amount to evidence of a corporate culture that devalues older workers. "Discriminatory statements may reflect a cumulative managerial attitude
Plaintiff Wright testified that he always perceived the comments by John Mosella or others about being old as jokes and that he never believed that either of his supervisors, Phil Davis or John Mosella, ever discriminated against him because of his age. The purpose and content of these alleged remarks, therefore, do not evidence discriminatory intent. Plaintiff Brown testified that some time in 2000 or 2001 he was made to wear a bow tie like the old Otis employees used to wear and to pose for a picture that was displayed in the mechanics' break room. First, this incident is too far removed temporally from Brown's termination in August, 2009 to be probative on the issue of the corporate culture nine years later. Moreover, the purpose and content of the remark, i.e. having a 42 year old dress up in the uniform of an Otis mechanic from an earlier era, doesn't necessarily suggest anything about a corporate culture that devalues older workers. Brown himself thought the incident was "silly" and never complained to management. See Levy v. Mercantile Stores Co., Inc., 168 F.3d 490, 1998 WL 808215, at *4 (6th Cir.1998) (table case) (finding remarks like "old timers" were "either ambiguous or totally innocuous" and not evidence of "ageist animus"). Brown's testimony that Carey Bailey and John Mosella made comments sometime in 2007 about Brown being the oldest worker left after Harry Marshall's retirement similarly lack probative value because neither of these individuals was high enough in the corporate hierarchy for their remarks, even if uttered, to be probative of a "managerial policy" or "corporate culture," and the incident occurred over two years before Brown was laid off in August, 2009.
James Lardner was unable to name anyone in specific who commented about his being too old to walk up the stairs and therefore this alleged statement cannot even be analyzed under Ercegovich framework. In addition, Lardner testified that he did walk with a limp as a result of a car accident, which would explain why coworkers may have commented on his gait.
Finally, comments inquiring about "retirement plans" over coffee without accompanying comments pressuring the employee to retire are insufficient. Wilson v. Reliance Trading Corp. of America, 208 F.3d 216, 2000 WL 282357, at *1 (6th Cir.2000) (table case) (finding that casual inquiries about retiring made well before plaintiff retired that "were not constant or done in a way that put pressure on plaintiff to retire" were insufficiently probative of discriminatory intent). Plaintiffs have failed to establish that Otis promoted a culture that devalued older workers in favor of younger workers. The statements and incidents allegedly evidencing such a corporate culture are too isolated, too remote, or too innocuous to be probative of a general corporate attitude of ageist discriminatory intent.
For the reasons stated above, the Court finds that Plaintiffs have failed to produce sufficient direct, circumstantial or statistical evidence to meet their heightened burden under Barnes.
"An allegation that the plaintiff was replaced by a younger individual supports an inference of discrimination only if the age difference is significant." Blizzard, 698 F.3d at 283. Under established precedent in the Sixth Circuit, an age difference of fewer than six years is not significant as a matter of law, age differences greater than ten years are generally considered significant and differences that fall between six and ten years are to be judged on a case by case basis:
Blizzard, 698 F.3d at 284.
Plaintiffs allege that they were "replaced" and Otis responds that Plaintiffs' job duties were "assumed" by other Otis mechanics. Even assuming Plaintiffs' allegation that they were "replaced," three of the six Plaintiffs have failed to establish that they were replaced by significantly younger workers. Plaintiff Ray Anderson (DOB 4/7/1956) was replaced by Matt Cole (DOB 4/14/61).
Even assuming that Plaintiffs have stated a prima facie case of age discrimination, Otis has proffered unrebutted evidence that it was faced with an economic need to reduce its labor force and that it terminated 17 of its 72 mechanics between January, 2008 and November, 2009 (along with many non-mechanic terminations not involved in this case, ultimately reducing its workforce by 30%) pursuant to that RIF. It is undisputed that Plaintiffs were terminated, along with 11 other mechanics, during this time frame. The burden is therefore upon Plaintiffs to demonstrate that Otis's RIF was simply a pretext or a scheme to conceal age discrimination. "For a plaintiff to show pretext, he must show that the employer's given reason for its conduct `had no basis in fact, did not actually motivate the defendant's challenged conduct, or was insufficient to motivate the defendant's challenged conduct.'" Lefevers, 667 F.3d at 725 (quoting Schoonmaker, 595 F.3d at 268).
As the Sixth Circuit noted in Barnes, even if statistics are sufficient to sustain a plaintiff's prima facie case, statistics alone cannot serve to demonstrate pretext where "the statistics [] do not tend to establish that age played a factor in any particular decision." Barnes, 896 F.2d at 1469 (emphasis in original). "Statistics [] cannot entirely rule out the possibility that chance caused the disparity. Nor can statistics determine, if chance is an unlikely explanation, whether the more probable
The Sixth Circuit has cautioned that the "three-part" pretext inquiry not be formalistically employed so that the Court loses sight of the essence of the pretext inquiry at the summary judgment stage, i.e. "did the employer fire the employee for the stated reason or not." In Chen v. Dow Chemical Co., 580 F.3d 394 (6th Cir.2009), the Sixth Circuit summarized the inquiry as follows:
580 F.3d at 400 n. 4.
Analyzing Plaintiffs' proffered pretext evidence with these guidelines in mind, the Court concludes that Plaintiffs have created at best a "weak issue of fact as to whether [Otis's] reason is untrue and there [is] abundant and uncontroverted independent evidence that no discrimination has occurred." Chen, 580 F.3d at 400 n. 4.
As in Lefevers, there are "substantial uncontroverted facts supporting the assertion that [Otis] was undergoing a reduction in force...." Lefevers, 667 F.3d at 725.
Plaintiffs suggest that the RIF had no basis in fact because Otis ultimately rehired some mechanics and hired new mechanics in the months and years following the Plaintiffs' terminations. Plaintiffs fail to suggest, however, how this evidence bears on the economic basis for a reduction in force in late 2008 and early 2009. Plaintiffs present no evidence regarding Otis's business needs at the time that any subsequent hiring decisions may have been made, nor a single indication of the jobs that those rehires and new hires were hired to perform. It is undisputed that Otis was under no obligation, contractual or otherwise, to offer employees laid off for lack of work re-employment. Plaintiffs concede this in their response, see Pls.' Resp. 10 n. 29, and counsel for Otis confirmed that this was the case at the hearing on this matter:
Hr'g Tr. 6-7.
Evidence regarding hires and rehires in the months and years following Plaintiffs' lay offs is of no probative force whatsoever regarding the circumstances and motivations behind the Plaintiffs' terminations in early 2009, in response to an undisputed economic downturn in the elevator business and an inability of the Detroit Otis office to meet its performance to plan to goals. That Otis may subsequently have been awarded new contracts, or recovered to some extent from the financial challenges it faced in the Detroit market in 2008 and 2009, necessitating the rehiring or hiring additional mechanics, does not tend to indicate that the decision to select 17 mechanics for layoff in early 2009 to achieve cost savings lacked any basis in fact.
Plaintiffs argue that the 2009 Rack and Stack was manipulated to mask the true underlying reason that they were chosen for termination, i.e. their age. Plaintiffs endeavor to show pretext by suggesting that the 2009 Rack and Stack was altered or rigged to rank older employees (whom Plaintiffs infer would have had higher Rack and Stack rankings had their FAPE values been directly translated onto the Rack and Stack) lower than their younger counterparts. Even assuming the values on Plaintiffs' stricken Exhibit U are correct, the data fails to provide statistically sound support for the conclusions that Plaintiff urges the Court to draw. As discussed supra, (see Section
Plaintiffs argue that the supervisors all testified that they would directly transpose the numbers from their FAPEs onto the Rack and Stack and that the two matched in every case. As discussed supra, the evidence simply does not support this claim. In fact, without exception, the Otis witnesses testified that during the Rack and Stack meeting, changes could be and were made to the values based on the collective opinion of the group. Phil Davis testified that he did not fill out the FAPEs until after the Rack and Stack meeting and that the values were inherently not a perfect match because the FAPEs did not utilize numerical values and the Rack and Stack did. Davis testified that they were supposed to match but that during the meeting discussions occurred and point differentials, a half or one point, did occur. Keith Hearns testified that the FAPEs "loosely informed" the Rack and Stack and that there was no "change" in the numbers because the FAPEs didn't utilize numeric values, which were first assigned on the Rack and Stack. Hearns testified that once the rankings were in place, there would be discussion at the meeting and changes would be made if there was enough agreement. Paul Jellison testified that changes in the FAPE scores based upon discussion at the Rack and Stack meeting sometimes would occur that would result in a different evaluation on the Rack and Stack. Greg Testolin testified that it was important that the numbers match and that the "goal" was that the FAPE and the Rack and Stack be parallel. Testolin testified that his personal FAPE numbers could be changed by the group in this fashion but that his numbers "rarely" were changed. Moreover, the "Paint One Picture" program that Plaintiffs put forth as evidence that the FAPEs and the Rack and Stack were supposed to be identical was put into place after the 2009 Rack and Stack was prepared. Betsy Ceriello testified that the 2009 Rack and Stack was the first time that the Rack and Stack had been prepared across departments, with the input from supervisors from all departments, and that disparities may have been greater simply because the cross-departmental ranking was so new to the supervisors.
In short, Plaintiffs' claim that the FAPEs and the Rack and Stack matched identically at the close of the January 21, 2009 Rack and Stack meeting, and that Joe Steger went back into the document some time after the meeting and manipulated the numbers to target older workers creates at best a hypothetical question, not based on fact, in the face of abundant and uncontroverted testimony that changes were made during the Rack and Stack meeting. See Chen, 580 F.3d at 400 n. 4. But even assuming that an issue of fact exists as to whether this mysterious manipulation in fact occurred, this factual dispute is immaterial to the Plaintiffs' age discriminations claims because the disparities exist randomly among all age groups and skill levels, the young, the old, the high performers and the low performers. Contrary to Plaintiffs' unsupported assertion otherwise, as the Court demonstrated supra, the claim that older workers in general were disproportionately downgraded on the Rack and Stack is simply not borne out by the evidence. Again, by way of illustration, even assuming the values on Plaintiffs' stricken Exhibit U are correct, Dirk Knebler, Yves Levesque, Dan Schipinski and J. Smith all have disparities larger than Plaintiffs Wright (born in 1950 and 28.5 disparity points) and J. Lardner (1956 and 9.5-J. Lardner, one of the oldest employees, only had a disparity of 9.5 points, among the smallest of any of the employees) yet Knebler, Schipinski
In sum, despite a professed goal to keep the FAPE values and Rack and Stack scores close, there were disparities between the FAPEs and the 2009 Rack and Stack among the old, the middleaged and the young. Lagaeuex, Kubert and Kevin Frush (the oldest mechanics) all score in the top 25 performers and had very low disparities. If Steger manipulated the 2009 Rack and Stack after the meeting with the supervisors, as Plaintiffs suggest, then Steger manipulated the scores based on some criteria other than age because the largest disparities are not in fact singularly present among the older mechanics, not by a long shot. Although Plaintiffs Brown and Anderson do stand out as having the highest disparities, the absence of any ageist pattern overall in the disparities precludes any ageist inference as to these two. There is simply no inference that a reasonable juror could draw from Plaintiffs' statistical evidence that would suggest that Brown and Anderson's ages, as opposed to some other (perhaps discreditable but not discriminatory) reason, were the basis for their discharge. Additionally, uncontroverted evidence that Otis retained several employees near or above the Plaintiffs' ages suggests that the stated reason (a RIF and the Rack and Stack) was the true reason. Lefevers, 667 F.3d at 726 (finding no inference of discrimination where those retained were also members of the protected group). Roy England (DOB 11/28/62), O. Asmat (DOB 4/16/52), Warren Morche (DOB 5/19/45), R. Wingert (DOB 11/19/54), M. Cole (DOB 4/14/61), Kerry Kimlin (DOB 4/17/61) all were retained. It also merits mention that the oldest mechanics (50 years and older) were dispersed among the mechanic population — among the top one-third of performers on the 2009 Rack and Stack (those least at risk of being selected for layoff), ten were over the age of 50; of the middle one-third of performers on the 2009 Rack and Stack, seven were over the age of 50 and among the bottom one-third of performers (those most at risk of being selected for layoff, the Plaintiffs among them), 13 were over the age of 50.
If in fact Steger manipulated the 2009 Rack and Stack to target older mechanics, he certainly planned a master cover up by also manipulating the scores of the younger and middle aged workers to cover his tracks. This "mystery" of the disparities, as Plaintiffs describe it, cannot be the basis on which a jury may infer discriminatory intent or finds pretext. Without some additional evidence (other than the sheer speculation that Steger manufactured a computer crash to hide the metadata on the Rack and Stack, a claim that Plaintiffs have failed to support with evidence sufficient to create a question of fact) no reasonable juror could conclude that the alleged disparities between the Rack and Stack and the FAPEs evidence an intent to target older workers for lay off. There is unquestionably evidence that Otis's first cross-departmental effort at the Rack and Stack in 2009, pursuant to which all Plaintiffs but Wolf were terminated, was imperfectly done and that subsequently efforts
"Generally, a reduction in force, coupled with a poor performance review, is not an insufficient reason to motivate the challenged conduct." Lefevers, 667 F.3d at 726. Although none of the Plaintiffs was fired for poor performance, there is no dispute that the Rack and Stacks ranked them among the lowest performing mechanics. While Plaintiffs question the integrity of the 2009 Rack and Stack, they have failed to create a genuine issue of material fact regarding whether the Rack and Stack was in fact age-neutral and therefore was a legitimate tool for ranking the mechanics. Plaintiffs' rankings in the bottom 25 of the 72 mechanics, coupled with Otis's decision to execute a RIF, is not an insufficient basis on which to base the termination decisions. Where Otis deviated from the Rack and Stack, it provided its exact reasons for doing so, which Plaintiffs have failed to rebut. (Def.'s Mot. Ex. 2, Steger Decl.; see infra discussion regarding additional pretext evidence as to the individual Plaintiffs.)
Plaintiffs have failed to produce sufficient evidence to permit a reasonable juror to conclude that Otis's legitimate business reasons given for selecting the Plaintiffs for lay off was not really the true reason for their terminations.
"While the Plaintiffs as a group cannot demonstrate facts sufficient to allow a finding of pretext," the Court must also consider whether the "individual Plaintiffs have presented enough evidence to allow a finding of pretext." Barnes, 896 F.2d at 1470. The Court thus examines evidence that may be particular to Plaintiffs E. Lardner, J. Lardner or Richard Wright that may be sufficient to demonstrate that, as to any one of them, sufficient evidence of pretext has been shown.
Earl Lardner (DOB 5/2/52, age 57 at termination) worked a somewhat rural maintenance route for Otis and was terminated on August 20, 2009. (Def.'s Mot. Ex. 5, E. Lardner Dep. 18.) Earl Lardner's duties were assumed by Ed Idyle (DOB 5/8/66), a longtime Otis employee who was working for Otis at the time that Earl Lardner was terminated. Mr. Idyle ranked 45 places higher than Earl Lardner on the 2009 Rack and Stack. Ed Testilon, Earl Lardner's supervisor at the time of his lay off, testified that Mr. Idyle was "a long term Otis employee" who "had a previous maintenance route in the Southfield area" before assuming Earl Lardner's route. (Def.'s Mot. Ex. 13, Testilon Dep. 116-17.)
Earl Lardner claims that Mr. Idyle was less qualified than he and "much less experienced." (Def.'s Mot. Ex. 5, E. Lardner Dep. 30.) In support of his claim regarding Mr. Idyle's qualifications and experience,
Earl Lardner testified that his supervisor, Greg Testilon, was close in age to Mr. Lardner and never suggested to Mr. Lardner that he was too old or physically incapable of doing his job. (Def.'s Mot. Ex. 5, E. Lardner Dep. 32.) Greg Testilon testified that he participated in Earl Lardner's lay off to the extent that he prepared the FAPE which was used to enter scores on the 2009 Rack and Stack and he participated in the 2009 Rack and Stack meeting. (Def.'s Mot. Ex. 13, Testilon Dep. 80-81.) Mr. Testilon testified that his recollection was that his FAPE scores for Earl Lardner were the scores that were entered on the 2009 Rack and Stack:
(Testilon Dep. 81.) As a comparison of Earl Lardner's 2009 FAPE and his scores on the 2009 Rack and Stack demonstrates, Earl Lardner's FAPE scores in fact were different (higher by a full point on eight factors) than his 2009 Rack and Stack scores. Earl Lardner was among the mechanics with the greatest disparity between his FAPE scores and his 2009 Rack and Stack scores. Mr. Lardner's 2009 Rack and Stack score was also increased, however, one full point on one performance factor, ethics. Either Mr. Testilon's recollection is mistaken or the 2009 Rack and Stack scores for Earl Lardner were changed some time after the 2009 Rack and Stack meeting. Joe Steger, whom all the evidence suggests was the keeper of the Rack and Stack document and who was the only individual with the ability to have adjusted the Rack and Stack scores after the 2009 Rack and Stack meeting, testified that he went back into the document once to make a note about Bob Shumaker but never went back in to make adjustments other than that one time. (Def.'s Mot. Ex. 1, Steger Dep. 227-28.) Mr. Steger later testified that as the keeper of the Rack and Stack he would have been the one who made the note on the Rack and Stack indicating that Plaintiff Ray Anderson had been "retained due to race on January 21, 2009," although he did not recall having done so.
Had Earl Lardner's FAPE scores been exactly transposed onto the 2009 Rack and Stack, his score would have been 205.5, which would have put him just before James Lardner on the Rack and Stack and thus still among the bottom 25 mechanics and still at risk of lay off during the 2009 RIF. (ECF No. 84, p. 7.) Had Earl Lardner's FAPE scores been adjusted more in keeping with many other mechanics both above and below his age, an average adjustment would have put his Rack and Stack score at 185.5, which would have put Earl Lardner two spots higher on the 2009 Rack and Stack, just before Plaintiff Ralph Brown.
Joe Steger testified in his Declaration that he selected Earl Lardner for lay off based on the 2009 Rack and Stack, Otis's business needs, and information he had learned during weekly manager meetings regarding mechanic's performance and skills. (ECF No. 55-1, Steger Decl. ¶ 22.) Given the other lay offs that had occurred in 2009, Earl Lardner was the fourth lowest ranked mechanic on the 2009 Rack and Stack remaining in Detroit. (Id.) The three lower ranked mechanics were co-Plaintiff Richard Wright, Dan Schipinski and Roy England. Mr. Steger made the decision to retain Schipinski over Earl Lardner based on Schipinski's specialized skill in cab modernization, Roy England because of a customer request and Mr. Wright to avoid further disruption at the airport where several other lay offs had already occurred. (Id.) Plaintiff Earl Lardner has not disputed the business reasons given by Mr. Steger in his Declaration but claims that Earl Lardner would not have been in line for lay off, i.e. he would not have been the fourth lowest ranked mechanic but would have been ranked higher, had his Rack and Stack score accurately reflected his FAPE score.
It is a closer case as to whether Earl Lardner has presented sufficient evidence to permit a reasonable juror could conclude that that the Rack and Stack scores were used as a guise to terminate him due to his age. There is no dispute that eight of Earl Lardner's performance factors were lowered by a full point. Two were lowered by a half-point. What distinguishes Earl Lardner's case from the other Plaintiffs is that Earl Lardner's supervisor specifically recalled that his FAPE scores for Mr. Lardner were directly translated onto the 2009 Rack and Stack. Notably, however, the failure of the FAPEs and Rack and Stack scores to align was seen through all age categories and, by way of example, Jim Smith (DOB 1965, 13 years younger than Earl Lardner), also suffered a lower score on the 2009 Rack and Stack by one full point on eight performance factors. As discussed supra, Plaintiffs have failed to support a claim that the 2009 Rack and Stack, viewed as a whole, was manipulated to target older workers for lay off. There are simply too many instances where younger workers also had their scores significantly lowered for reasons that remain equally unexplained.
James Lardner (DOB 3/2/56, 53 at the time of termination) was terminated on October 9, 2009. His job duties on his maintenance route at Sinai-Grace were assumed (Plaintiffs say he was "replaced") by Bryan Morche (DOB 8/26/71) and subsequently by Cliff Tomlin (DOB 1955). (Def.'s Mot. Ex. 6, J. Lardner Dep. 9, 32, 57-59.) James Lardner testified to his belief that Bryan Morche was not as qualified as Lardner on the equipment that Lardner worked and that Morche often called him (Lardner) for help with troubleshooting. (Id. at 57-58.) Other than his opinion of Morche's qualifications, and evidence regarding James Lardner's own qualifications as having taken some college courses and having Detroit and Michigan journeyman's licenses, Plaintiffs offer Morche's FAPEs as evidence that he was less qualified than Lardner. (ECF No. 72, Pls.' Resp. Ex. G, 16-18, Morche 2010 FAPE.) The supervisor comments in Morche's 2010 FAPE indicate that he is "the go to guy" with escalators, has an excellent attitude toward quality and customer needs, always responds to change with limited resistance, is mechanically inclined and sometimes "struggles with electrical repairs and troubleshooting." (Id.) James Lardner did not have any information or opinion regarding Cliff Tomlin's qualifications to perform Lardner's job duties. (Id. at 60.) See Schoonmaker, 595 F.3d at 266 (requiring objective evidence of relative qualifications "as measured by objective, company-established criteria" even to demonstrate a prima facie case).
Paul Jellison, James Lardner's supervisor, testified that James Lardner was selected for lay off due to a consolidation of routes. (ECF No. 12, Jellison Dep. 33-34.) Joe Steger testified that he selected James Lardner for lay off because he was the fourth lowest ranked mechanic at the time Olney requested that Steger reduce the number of mechanics again. (ECF No. 55, Steger Decl. ¶ 23.) Steger testified that he retained three lower ranked mechanics, Yves Levesque, Dan Schipinski and Roy England due to Levesque's experience on the APM at the airport, Schipinski's specialized skill in cab modernization and England because of a customer request. (Id.) Plaintiffs do not contest any of these reasons given by Steger for deviating
Unlike the large disparity between Earl Lardner's FAPE and Rack and Stack scores, James Lardner had one of the smallest disparities of any of the 72 mechanics on the Rack and Stack. Thus, there is no evidence that would in any way distinguish his case from any other of the mechanics, most of whom were younger than he, whose scores were adjusted even more drastically. Moreover, it is undisputed that his route was ultimately taken over by a mechanic who was one year older than Lardner. There is simply no evidence on which a reasonable juror could conclude that the RIF and the Rack and Stack were a pretext used to select James Lardner for lay off because of his age.
Richard Wright (DOB 12/26/50) was terminated on September 9, 2009 from his position principally assigned to the DTW doing traditional service work (elevators, escalators, moving sidewalks) with some experience with the control panel on the APM. (Def.'s Mot. Ex. 8, Wright Dep. 17-18, 23-26, 59-60.) As an initial matter, the Court notes that Mr. Wright has failed to address Otis's argument that Mr. Wright's age (as well as his race) discrimination claim fails for the fundamental fact that he admits that his supervisor, Phil Davis, who selected him for lay off, never discriminated against him on the basis of his age (or his race). (Wright Dep. 31-32.)
Wright was selected for lay off by his supervisor, Phil Davis, who testified that he selected Wright, with Joe Steger's input and approval, because he was the lowest ranking airport mechanic at the time of his lay off. (ECF No. 14, Davis Decl. ¶ 16.) Davis testified that Wright's lay off was necessary because there was a surplus of mechanics at the DTW after Otis had reassigned Kirk Rosiek (Age 42) to the APM at the DTW "given his skill set and recent completion of a modernization assignment." (Id. ¶ 15.) Rosiek's reassignment resulted in the need to transfer Yves Levesque (Age 45) from the APM to traditional service work at the airport, creating the surplus of mechanics that led to Richard Wright's lay off. (Id. ¶ 16; ECF No. 75, Otis's EEOC Statement Regarding Wright.) Plaintiffs assert that Rosiek replaced Wright and was less qualified than Wright because Rosiek was new to the APM and had to "learn" to do the work. Plaintiffs offer no evidence to establish that Wright's qualifications were superior to Rosiek's in any meaningful respect. Mr. Wright was the lowest ranking mechanic on the Rack and Stack at the time of his discharge and there was a surplus of mechanics doing traditional work at the airport. The Rack and Stack was consulted and Wright was selected. Wright has produced insufficient evidence from which a reasonable juror could conclude that the RIF and Rack and Stack were a pretext used to select him for lay off because of his age.
To withstand summary judgment on a race discrimination claim, plaintiff must present "either direct evidence of discrimination or introduce circumstantial evidence that would allow an inference of discriminatory intent." Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir.2003). If direct evidence is not presented, plaintiff must proceed under the same McDonnell Douglas burden shifting framework applicable in the age discrimination context discussed supra at IIIA1. Additionally, as in the context of an age discrimination
As evidence in support of their race discrimination claims, Anderson and Wright offer the following evidence:
Plaintiffs argue that Joe Steger's comment in 2002 about not wanting black people to work for him constitutes direct evidence of racial discrimination. The Court disagrees. "`[S]tatements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself [can not] suffice to satisfy the plaintiff's burden ... of demonstrating animus.'" Lefevers, 667 F.3d at 724. Evidence of one remark allegedly made seven years before the adverse employment action being challenged cannot serve as direct evidence of discrimination. See Jinks v. AlliedSignal, Inc., 250 F.3d 381, 388 (6th Cir.2001) (doubting that "a single, isolated comment or belief that one member of management held several years prior to [plaintiffs'] layoff is sufficient direct evidence" of discrimination.) Thus, Plaintiffs Anderson and Wright must proceed on the basis of circumstantial evidence, first making out a prima facie case, on their race discrimination claim. Additionally, if (as the Court concluded above) there is no genuine issue of material fact that Otis laid off the Plaintiffs pursuant to a RIF, in addition to proving to the standard fourth prong of a prima facie case of race discrimination, Plaintiffs must offer additional direct, circumstantial or statistical evidence that they were singled out for termination because of their race.
Anderson and Wright cannot meet their heightened prima facie burden under Barnes. Hearns's statements about "the white man," Testolin's unspecified "racial slurs," and some unidentified "helper's" remark about not taking orders from a "nigger," are too "isolated and ambiguous" to serve as additional circumstantial evidence of Otis's discriminatory intent. Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir.1993). Steger's statement made seven years earlier is too remote to bear on a decision that was made in 2009. Additionally, neither Steger's nor the unidentified "helper's" allegedly racial comments suffice to demonstrate animus. "`[S]tatements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself [can not] suffice to satisfy the plaintiff's burden ... of demonstrating animus.'" Lefevers, 667 F.3d at 724. "`Evidence of discriminatory motives must ... have some relationship with the employment decision in question; inappropriate but isolated comments that amount to no more than `stray remarks' in the workplace will not do.'" Naboychik v. Salix Pharmaceuticals, Inc., No. 10-10521, 2011 WL 4498821 at *5 (E.D.Mich.
While Steger was involved in the decisions to lay off the two African Americans, Anderson and Wright, his allegedly racial remark was made in 2002, seven years before the 2009 lay offs. (Def.'s Mot. Ex. 6, J. Lardner Dep. 73-76.) There is no evidence that his statement was in any way "related to the decisional process" that took place in 2009. Moreover, it is undisputed that Phil Davis, as to whom no discriminatory animus, racial or ageist, has been charged, was the individual who selected Richard Wright for lay off, with Steger's approval. (Def.'s Mot. Ex. 8, Wright Dep. 31; Def.'s Mot. Ex. 14, Davis Decl. ¶ 16.)
Anderson was terminated by his supervisor, Keith Hearns, who was also African American and was the same age as Anderson. Hearns testified that he was informed in a "standing Friday meeting" that Anderson one was one of the individuals who had been chosen for lay off. (Def.'s Mot. Ex. 11, Hearns Dep. 144.) Hearns testified that he was not specifically informed of how the decision was reached to terminate Anderson but he assumed that the decision was made based on the Rack and Stack. (Id.) Hearns could not recall who was present at that Friday standing meeting but assumed that Steger likely communicated the decision and perhaps Rob Olney also was present. (Id. at 144-45.) Hearns also testified in his deposition that he never heard Joe Steger or anyone at Otis make any racially derogatory comments or slurs. (Id. at 156.)
Plaintiffs appear to complain that Otis simply does not employ enough African Americans. There is no evidence that the alleged "dearth" of African Americans among the mechanic work force is a result of discrimination. Indeed, Plaintiff Anderson testified that to his belief that there were not many black workers in the elevator trade in general. (Id. at 38-39.) Moreover, the only evidence presented directly addressing this point suggests that Otis endeavored to retain its African American workers. Betsy Ceriello testified that she expressly directed Joe Steger to retain Anderson when he was first recommended for lay off. Tellingly, Wright testified that neither of his supervisors ever discriminated against him on the basis of his race. (Def.'s Mot. Ex. 8, Wright Dep. 31.)
Even assuming that Anderson and Wright could make out a prima facie case, they have not adduced sufficient evidence to create a genuine issue of material fact that Otis's stated reason for their terminations was pretextual.
The pivotal question the Court must ask at this summary judgment stage is whether, viewing the facts in the light most favorable to the Plaintiffs, a reasonable jury could conclude, based on the evidence presented, that the reduction in force, and the ranking system utilized by Otis to select Plaintiffs for lay off, were a guise to terminate these six Plaintiffs because of their age (and in the case of Anderson and Wright, also their race). Did Plaintiffs produce evidence to substantiate their claim that Otis intentionally manipulated the data on the 2009 Rack and Stack to target older workers so that the Plaintiffs would be chosen for lay off before younger, less qualified workers? The ultimate burden of persuading the trier of fact that age was the but for cause of their terminations remains at all times with the Plaintiffs. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir.2011). For the reasons stated above, the Court concludes that Plaintiffs have failed to meet this burden, both as to their age and race discrimination claims, and GRANTS Otis's motion for summary judgment.
IT IS SO ORDERED.
Similarly Earl Lardner's personal belief that Otis began recruiting members coming out of the military in the early 2000's, which he perceived resulted in a change in the corporate culture at Otis favoring younger employees, is just that — a personal belief based on opinion and not on personal knowledge. (Pls.' Mot. Ex. C, April 15, 2012 Declaration of Ear Lardner.) In fact, Lardner's Declaration states that his opinion is based on unspecified "data" that he was provided. Lardner's Declaration is insufficient to create a genuine issue of material fact on the issue of whether there was a corporate culture at Otis that devalued younger workers. Flagg v. City of Detroit, 827 F.Supp.2d 765, 775 (E.D.Mich. 2011) ("subjective beliefs, unbacked by facts within the personal knowledge of the witness, cannot assist Plaintiffs in withstanding summary judgment"); Tenneco Auto. Operating Co., Inc. v. Kingdom Auto Parts, No. 08-10467, 2009 WL 1438834, at *7 (E.D.Mich. May 18, 2009) ("Witness statements must be made on personal knowledge, and not on information and belief.").