Opinion

Powell v. Dallas Morning News L.P.

776 F. Supp. 2d 240
2011 U.S. Dist. LEXIS 32128
2011 WL 1119775

Court: District Court, N.D. Texas
Filed: Mar 28, 2011
Status: Published
Author: Stickney
On the bench: Paul D. Stickney
Cited by: 18 cases
Authority: More cited than 71.0%

holding similar evidence insufficient to constitute direct evidence of age-based bias

How later courts described this case

holding similar evidence insufficient to constitute direct evidence of age-based bias
Under the "sham affidavit" doctrine, a "nonmovant cannot defeat a motion for summary judgment by submitting an affidavit [that] contradicts, without explanation, [her] previous testimony."
“Plaintiffs’ reli *556 anee on the proposed regulation ... is misplaced because as a ‘notice of proposed rulemaking,’ it carries no legal weight or authority.... Proposed regulations are entitled to no deference until they are final.” (citing In re AppleTree Mkt., Inc., 19 F.3d 969, 973 (5th Cir.1994))
“Under the ‘sham affidavit’ doctrine, a ‘nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony.’” (quoting Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir. 1984))

Written by the judges who cited it.

The opinion

MEMORANDUM OPINION AND ORDER

PAUL D. STICKNEY, United States Magistrate Judge.

This is a consent case before the United States Magistrate Judge. The Motion for Summary Judgment of Defendants, The Dallas Morning News, Inc.

(“TDMN”); Belo Corp. (“Belo”); Belo Benefits Administrative Committee (the “Committee”), as plan administrator for the G.B. Dealey Retirement Pension Plan (the “Pension Plan”); and Belo Savings Plan (the “Savings Plan”) (collectively, “Defendants”) (doc. 241) is under consideration. Plaintiffs are Larry Randall Powell, Lawrence William DeOre, Paula F. Watson, Gary Van West, Raul Prezas Reyes, Timothy Arthur O’Leary, Jan Michael Hubbard, Michael S. Coons, John Paul Chamless, Ira Hadnot Alexander, Deborah Sue Yoorhees, Linston Robert Lofley, Karen Patterson, Linda Jones, Gary Stratton, Ewina H. Schumacher, Paulette Ladach, and Stephen Wayne Yount.

In their Third Amended Complaint (doc. 176), Plaintiffs allege that TDMN terminated their employment during a 2004 reduction in force (“RIF”). Seventeen of the Plaintiffs (all but Karen Patterson) (“ADEA Plaintiffs”) bring claims under the Age Discrimination in Employment

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Act (“ADEA”) based on theories of disparate impact and disparate treatment. Although TDMN was their former employer, the ADEA Plaintiffs bring the same ADEA claims against Belo, contending Belo was a “joint employer” with TDMN. All Plaintiffs (“Plaintiffs”) bring claims under § 502 of the Employee Retirement Income Security Act (ERISA) against Belo and the Committee, as administrators for the Pension Plan and the Savings Plan, for failure to timely provide them with copies of summary plan descriptions related to 2004 amendments to the Pension Plan and the Savings Plan.

Pending Motions and Objections to Summary Judgment Evidence

In addition to Defendants’ Motion for Summary Judgment, the following motions are before the Court for consideration: Plaintiffs’ Motion for Leave to File Consolidated Supplemental Appendix in Support of Plaintiffs’ Response to Defendants’ Objections to Plaintiffs’ Declarations, filed December 10, 2010 (doc. 287); Plaintiffs’ Motion for Leave to File Consolidated Supplemental Appendix in Support of Plaintiffs’ Response to Defendants’ Objections to Mischaracterization of Summary Judgment Evidence, filed December 10, 2010 (doc. 285); and Defendants’ Motion to Strike Appendix in Support of Declaration of Michael A. Campion [doc. 280], filed December 1, 2010 (doc. 283). The Court has considered the motions, the responses, and a reply.

This case was filed in 2006. Defendants’ Motion for Summary Judgment was filed April 30, 2010. The Court granted the parties’ multiple requests for extensions during the summary judgment briefing period. The Court granted exceptions to the local summary judgment rules by permitting the parties to greatly exceed page limitations.

The parties filed unlimited Appendices in support of the summary judgment, the response, and the reply. Defendants filed their reply in support of the summary judgment on October 14, 2010. However, the parties filed, and the Court granted, unopposed motions for extensions of time to file various responses and replies to objections. The filings continued until December 28, 2010.

Plaintiffs’ motions (docs. 285 and 287), filed December 10, 2010, seek to change the summary judgment record because of mistakes and omissions in their responsive filings of August 29, 2010 (docs. 249, 250,

252-61). The Court granted Plaintiffs two extensions of time to file their responsive pleadings. The Court finds that Plaintiffs’ motions are untimely and seek to expand the record with materials that should have been included in Plaintiffs’ August 29, 2010

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responsive pleadings. Pursuant to the Court’s inherent power to control its docket and prevent undue delay, Plaintiffs’ motions (docs. 285 and 287) are DENIED.

On November 17, 2010, without seeking leave of Court, Plaintiffs filed a supplemental declaration by their expert witness, Michael Campion, including it in an “Appendix in Support of Plaintiffs’ Response to Defendants’ Objections to the Declaration of Michael A. Campion Filed in Support of Plaintiffs’ Response to Defendants’ Motion for Summary Judgment (doc. 280). Defendants filed a Motion to Strike the supplemental declaration of Plaintiffs’ expert witness on December 1, 2010 (doc. 283). When Plaintiffs filed the supplemental declaration, Defendants had deposed Michael Campion and the discovery deadline had expired. The Supplemental Declaration attempts to bolster Campion’s credentials and show that the “reasonable HR practices” he described were based upon an acceptable approach to scientific inquiry. The Supplemental Declaration is in violation of the Local Rules, is untimely, and has already generated a request to reopen discovery and to depose Campion again (doc. 294). Pursuant to the Court’s inherent power to control its docket and prevent undue delay, Defendants Motion to Strike (doc. 283) is GRANTED. The Clerk is ordered to strike document 280, and the Court will not consider the supplemental appendix in reaching the decision on Defendants’ Motion for Summary Judgment.

The parties filed objections to the summary judgment evidence, responses, and replies. Evidence on summary judgment may be considered to the extent that it is not based on hearsay or other information that is not admissible at trial.

Fowler v. Smith,

68 F.3d 124, 126 (5th Cir.1995). Statements that are conclusory and based upon speculation will not be considered.

See Brown v. City of Houston, Tex.,

337 F.3d 539, 541 (5th Cir.2003) (holding that unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment). Plaintiffs and Defendants object to each others’ evidence on the grounds that it is speculative or conclusory, both with respect to fact witnesses and expert witnesses. In evaluating all of the evidence, the Court has disregarded any speculative, conclusory, or hearsay evidence and has considered only competent summary judgment evidence in deciding Defendants’ summary judgment motion. Accordingly, any objections not specifically addressed are overruled as moot.

Plaintiffs object to the declarations of the various decision-makers who recommended Plaintiffs for termination during the RIF, specifically to the decision-makers’ averments that they did not consider the employee’s age in recommending the employee for termination in the RIF. Plaintiffs’ object that the averments are vague, conclusory, lack a proper foundation, and fail to set forth how affiant has personal knowledge of the facts alleged. However, most of the evidence in question is not presented for the truth of the matter asserted; rather, it is submitted to show the decision-makers’ states of mind when they recommended Plaintiffs for termination. The decision-makers who decided which employees to terminate clearly had personal knowledge of the factors they considered in arriving at their recommendations. Plaintiffs’ objections to the decision-makers declarations are overruled.

A court cannot consider an affidavit or declaration that contradicts prior testimony or admissions for the purposes of creating a fact issue because it is not competent summary judgment evidence.

See e.g., Crowe v. Henry,

115 F.3d 294 , 298 n. 4 (5th Cir.1997);

S.W.S. Erectors, Inc. v.

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Infax, Inc.,

72 F.3d 489, 495 (5th Cir.1996);

Schiernbeck v. Davis,

143 F.3d 434, 438 (8th Cir.1998). Under the “sham affidavit” doctrine, a “nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony.”

Albertson v. T.J. Stevenson & Co., Inc.,

749 F.2d 223, 228 (5th Cir.1984);

Kennett-Murray Corp. v. Bone,

622 F.2d 887, 894-95 (5th Cir.1980);

In re CitX Corp.,

448 F.3d 672, 679 (3d Cir.2006). Courts have consistently disregarded such sham affidavits as nothing more than an attempt to “manufacture a disputed material fact where none exists.”

Albertson,

749 F.2d at 228 . The rule applies to exclude affidavits which contradict prior deposition testimony of the affiant.

Miller v. A.H. Robins Co., Inc.,

766 F.2d 1102, 1104 (7th Cir.1985). The Court sustains Defendants’ objections to any of Plaintiffs’ declarations and to the declarations of their expert witness which directly contradict the declarants’ previous testimony.

With respect to Defendants’ Objections to the Declaration of Michael A. Campion, the Court sustains Defendants’ general objections in part and denies them in part as moot. As the Court will explain in examining Defendants’ Reasonable Factor Other than Age (“RFOA”) defense, the expert witnesses’ 20 Reasonable HR Practices that Defendants allegedly should have known about and used during the RIF are irrelevant. Plaintiffs can rebut Defendants’ RFOA defense only by demonstrating that the factors offered by Defendants are unreasonable.

See, e.g., Smith,

544 U.S. at 243, 125 S.Ct. 1536 (noting RFOA does not permit rebuttal by showing that other reasonable methods not resulting in a disparate impact were available). There is no requirement under the RFOA prong of the ADEA that the least-discriminatory method be implemented.

Smith,

544 U.S. at 243 , 125 S.Ct. 1536 . The Court sustains Defendants’ objection and excludes Campion’s testimony about his 20 Reasonable HR Practices as irrelevant and hence, inadmissable.

Additionally, the Court sustains Defendants’ objection that Campions’ declaration testimony regarding “age stereotypes” exceeds the scope of his expert designation. When Defendants took Campion’s deposition in April 2010, Plaintiffs’ designations of subjects on which Campion would testify did not include using Campion as an expert on age stereotyping. Defendants had no notice and would be prejudiced if Plaintiffs were permitted to introduce this testimony by way of his declaration after the deposition had concluded.

Extremely able counsel on both sides have thoroughly briefed every conceivable issue. The Court has considered all of the issues, arguments, and objections raised and overrules as moot any arguments and objections that are not addressed in this opinion. The Court also clarifies that it has not applied any presumptions based upon the age of the decision-maker or the fact that the decision-maker both hired and terminated an employee.

Plaintiffs’ Claims Against Belo Under the ADEA

Under the ADEA, a parent corporation like Belo, cannot be held liable for discriminatory employment actions unless it qualifies as an “employer” under the statute.

See

29 U.S.C. § 623 ;

Chapman v. The Dallas Morning News, L.P.,

No. 3:06-CV-2211-B, 2008 WL 2185389 *6 (N.D.Tex. May 27, 2008) (unpublished). The ADEA defines an employer only as “a person engaged in industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or

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preceding calendar year.”

29 U.S.C. § 630 (b). In

Chapman ,

an age discrimination case based upon the same 2004 RIF that is the subjection of this action, the Hon. Jane J. Boyle, District Judge, granted the defendants’ summary judgment as to Belo because Belo did not meet the statutory definition of employer and thus was not an employer under the ADEA.

Chapman,

2008 WL 2185389 at *6. The Court agrees that the statutory definition contains no basis for disregarding the venerable corporate law principle of limited liability or for otherwise extending liability to a parent corporation for the discriminatory acts of its subsidiary.

However, Plaintiffs in this case allege that they are former employees of TDMN or Belo and assert that a “fact issue exists as to Belo’s status as a ‘joint employer’ under the ADEA.” (Defs.’ Br. at 225.) In support of this assertion, Plaintiffs cite

Fields v. Hallsville Indep. Sch. Dist.,

906 F.2d 1017, 1019-20 (5th Cir.1990) for the proposition that the Fifth Circuit uses the hybrid economic realities/common law control test for determining the existence of an employment relationship under both Title VII and the ADEA. (Defs.’ Br. at 226.) Nevertheless, contrary to Plaintiffs’ assertion, the plaintiffs in

Fields

did not argue that the two potential employers in that case should be considered a single employer under a “joint employer” theory, and the Fifth Circuit Court of Appeals did not address that issue.

Fields,

906 F.2d at 1019 n. 2. Other Fifth Circuit cases have used a “hybrid economic realities/common law control test” to resolve when companies will be considered single employers in ADEA suits.

Barrow v. New Orleans S.S. Ass’n,

10 F.3d 292, 296 (5th Cir.1994);

Deal v. State Farm County Muh Ins. Co. of Texas,

5 F.3d 117, 118 (5th Cir.1993). Under the economic realities/common law control test, the right to control an employee’s conduct is the most important factor.

Broussard v. L.H. Bossier, Inc.,

789 F.2d 1158, 1160 (5th Cir.1986). “If an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist.”

Spirides v. Reinhardt,

613 F.2d 826 (D.C.Cir.1979). The Fifth Circuit explains in

Schweitzer v. Advanced Telemarketing Corp.,

104 F.3d at 761, 764 (5th Cir.1997) that the “hybrid economic realities/common control test” was first used in the context of determining whether a worker employed as an independent contractor should be considered the employee of an entity for the purposes of Title VII and extended to ADEA cases in

Fields .

However, the Fifth Circuit later extended the original test to determine if separate, related business entities could together be considered the employer of a plaintiff in a civil rights case.

Id.

(citing

Trevino v. Celanese Corp.,

701 F.2d 397, 404 (5th Cir.1983)). The hybrid test developed to help determine when plaintiffs could be considered employees of business entities, not to help decide if different entities were so integrated as to constitute a single employer of a plaintiff.

Schweitzer,

104 F.3d at 764. According to the Fifth Circuit Court of Appeals, although

Trevino

and the hybrid test are similar, the tests are not interchangeable.

Id.

The hybrid test should be used to determine if a plaintiff is an employee of the defendant or of one of the defendants in a multi-defendant case.

Id.

Then, if a question remains with respect to whether a second defendant is sufficiently connected to the employer-de

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fendant to be deemed a single employer, the court should conduct a

Trevino

analysis.

Id.

The

Trevino

analysis will establish if the additional defendant is also an employer of the plaintiff.

Id.

In this case, it is not necessary for the Court to apply the hybrid test to determine if TDMN is Plaintiffs’ employer. Plaintiffs admit that they were employed by TDMN. (Defs.’ App. 2304; 592:19-23; 1832:7-8; 227:22-24; 2136:15-16; 1589:12-20; 1416:14-1417:9; 825:14-16; 1280:9-22; 1683:8-15; 371:15-17; 1062:3-6; 122:1-15; 1781:16-23; 1200:15-25; 1162:21-23, 1163:21-22; 471:5-8; 490:13-15; 708:3-5; 912:20-22.) The only question that remains is whether, under the

Trevino

test, Belo is sufficiently connected to TDMN for TDMN and Belo to be considered a single employer or joint employer.

To determine whether a parent corporation and its subsidiary may be regarded as a “single employer” or “integrated enterprise” under the ADEA, the Fifth Circuit Court of Appeals applies the four-part analysis originally adopted by the United States Supreme Court in the context of labor disputes.

Lusk v. Foxmeyer Health Corp.,

129 F.3d 773, 777-781 (5th Cir.1997) (citing

Radio Union v. Broadcast Serv.,

380 U.S. 255, 257 , 85 S.Ct. 876 , 13 L.Ed.2d 789 (1965), and extended to civil rights actions by the Fifth Circuit in

Trevino v. Celanese Corp.,

701 F.2d 397 (5th Cir.1983)). The four factors to consider include: (1) interrelation of operations, (2) centralized control of labor or employment decisions, (3) common management, and (4) common ownership or financial control.

Id.

This analysis ultimately focuses on whether the parent corporation was a final decision-maker in connection with the employment matters underlying the litigation.

Id.; see Chaiffetz v. Robertson Research Holding, Ltd.,

798 F.2d 731, 735 (5th Cir.1986). All four factors are examined only as they bear on this precise issue.

Id.; see Schweitzer v. Advanced Telemarketing Corp.,

104 F.3d 761, 765 (5th Cir.1997). More specifically, the Court must determine which entity made the final decisions regarding employment matters relating to the individuals claiming discrimination.

The only factor upon which Plaintiffs submit any evidence is the second one, centralized labor or employment decisions. According to Plaintiffs, Belo played a considerable role in the RIF at TDMN, which was an operating subsidiary of Belo in 2004. (Spitzberg Dep., Pis.’ App. 2102-2103.) The evidence shows that the economically driven RIF led to the termination of more than 125 jobs at TDMN and approximately 194 jobs across all of Belo’s media companies. (Daume Aff. ¶ 3, Defs.’ App. 2304.)

Belo made the decision that there would be a RIF at TDMN rather than options such as pay cuts or other alternatives to layoffs. (Willey Dep., Pis.’ App. 2381, 2395.) The RIF Documents, which contained the instructions to rank the affected employees and the criteria by which to rank them, came from Marian Spitzberg at Belo. (Pis.’ App. 1054-1079.) Belo handled HR matters for TDMN. (Miller Dep., Pis.’ App. 1714-1715;

See also City of Jackson,

544 U.S. at 242 , 125 S.Ct. 1536 (citing

Wards Cove,

490 U.S. at 657 , 109

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S.Ct. 2115). Other courts agree that an ADEA plaintiff cannot rely on a broad unmeasurable policy as a basis for a disparate impact claim.

See Mustelier v. Equifax, Inc.,

No. 08-1008, 2009 WL 890468 , at *6 (D.P.R. Mar. 25, 2009) (holding plaintiff failed to identify a facially neutral rule in the restructuring process that was responsible for a disparity);

Kourofsky v. Genencor Int’l Inc.,

459 F.Supp.2d 206, 215 (W.D.N.Y.2006) (plaintiffs failed to identify any facially neutral policy);

White v. Am. Axle & Mfg., Inc.,

No. 05-CV-72741-DT, 2006 WL 335710 *4 (E.D.Mich. Feb. 14, 2006) (holding plaintiff must identify the specific employment practice to give the defendant fair notice of what plaintiffs claim is and the grounds upon which it rests, not just termination selection procedures in a RIF).

Many courts have held that a plaintiffs reliance on the undue subjectivity of the RIF termination process is not a proper basis for a disparate impact claim. See

Leichihman v. Pickwick Int’l,

814 F.2d 1263 , 1270 n. 5 (8th Cir.1987) (noting that the RIF “was not implemented through some facially neutral procedure, such as a height and weight requirement or an aptitude test, but was conducted through a series of subjective decisions eliminating certain positions in order to cut costs;” therefore, a disparate impact claim was inappropriate given the lack of a “neutral policy, the impact of which could be measured”);

Combs v. Grand Victoria Casino & Resort,

No. 1:08-CV-00414-RLY-JMS, 2008 WL 4452460 , at *3 (S.D.Ind. Sept. 30, 2008) (holding that a generalized policy such as subjective decision-making does not state a claim of disparate impact age discrimination or satisfy the requirement for a specific test, requirement, or practice) (citing

City of Jackson,

544 U.S. at 241 , 125 S.Ct. 1536 ) (internal quotations omitted).

Watson v. Fort Worth Bank,

the United States Supreme Court recognized that the disparate impact theory may apply to claims alleging discrimination based on an employer’s subjective decision making in a Title VII case. 487 U.S. at 989 , 108 S.Ct. 2777 . Nevertheless, the Court made clear that “an employer’s policy of leaving [termination] decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct.”

Id.; see Anderson v. Douglas & Lomason Co., Inc.,

26 F.3d 1277, 1292 (5th Cir.1994);

Page v. U.S. Indus., Inc.,

726 F.2d 1038 , 1046 (5th Cir.1984). As the United States Supreme Court held in

Wards Cove ,

a plaintiff may not “simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is ‘responsible for isolating and identifying the

specific

employment practices that are allegedly responsible for any observed statistical disparities.’ ” 490 U.S. at 656 , 109 S.Ct. 2115 (quoting

Watson,

487 U.S. at 994 , 108 S.Ct. 2777 ) (emphasis added). A plaintiffs failure to identify the specific practice being challenged is the sort of omission that could “result in employers being potentially liable for ‘the myriad of innocent causes that may lead to statistical imbalances ....’”

Wards Cove,

490 U.S. at 657 , 109 S.Ct. 2115 .

See City of Jackson,

544 U.S. at 241 , 125 S.Ct. 1536 . Additionally, policies can be facially neutral but applied in a discriminatory manner so that it impacts adversely on one group, and thus shows evidence of discrimination in disparate treatment cases.

Payne v. Travenol Laboratories, Inc.,

673 F.2d 798, 827 (5th Cir. 1982).

Plaintiffs’ Claims that Facially Neutral Policies Were Applied in a Discriminatory Manner

In an attempt to specify a policy or procedure, Plaintiffs allege that managers

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or supervisors failed to follow TDMN’s policy, changed the policy, and applied TDMN’s RIF policy in a discriminatory manner. For example, Plaintiffs claim that the managers and supervisors (1) applied their own criteria to evaluate employees for the RIF; (2) violated Belo’s “no bumping” policy and disregarded the guidelines for position consolidations; (3) were inconsistent in using an employee’s proper performance evaluations; (4) added selective considerations to the selection process; (5) changed performance appraisal scores; (6) changed job titles so that some of the employees became a “class of one”; (7) used a “rubber stamp” approach to oversight of the RIF process; and (8) failed to conduct the required adverse impact analysis. (Pis.’ Resp. at 8-20.) Plaintiffs contend that managers or supervisors were implementing the Spitzberg instructions to “retain those employees who have demonstrated the most productivity, the greatest adaptability and/or versatility, and who possess the skill sets best suited to our projected work environment.” (Pis.’ App. 1054-55.) Judge Boyle dismissed as “not facially neutral” Plaintiffs’ disparate impact claim that was based upon defendants’ policy of “replacing managers over age 50 with managers at least 10 years younger and [creating] an environment in which managers made clear that they considered older employees to be lacking in passion, flexibility, and technical savvy, as well as lacking appeal to the ‘Newspaper of the Future’s’ target readers under age 40.” (Mem. Ord., doc. 30 at 21). For the same reason, Defendants are entitled to summary judgment. Plaintiffs’ purported discriminatory applications of the RIF policy are not facially neutral and are more properly considered as disparate treatment claims.

With respect to the rejuvenation claim, Plaintiffs allege that Defendants “focused on hiring younger writers and editors to ‘rejuvenate’ the ‘Newspaper of the Future’; to create specific media products, including

Quick,

to appeal to readers under age 40; and hired and assigned younger writers and editors to work for that publication.” (Third Am. Compl. ¶ 62.) Plaintiffs Lofley, Ladach, and O’Leary testified in their depositions that they believed this alleged policy was intentionally discriminatory. (Defs.’ App. 966:17-967:4; 886:7-16; 1126:7-16.) An employer’s focusing on hiring younger “predominantly non-ADEA-protected employees” could constitute intentional discrimination and cannot serve as the basis for a disparate impact claim.

Larkin v. State of Mich. Dep’t of Social Servs.,

89 F.Sd 285, 289 (6th Cir.1996) (recognizing that “facially discriminatory actions are just a type of intentional discrimination or disparate treatment and should be treated as such”). The Court does not find that Plaintiffs allegations regarding “rejuvenation” set forth a facially neutral policy. Accordingly, Defendants are entitled to summary judgment on Plaintiffs’ disparate impact claim based upon a policy of rejuvenation.

A court will not consider on summary judgment claims that are raised for the first time in response to a motion for summary judgment.

See Dickerson v. United Parcel Service, Inc.,

1999 WL 966430 , *2 (N.D.Tex.1999). For this reason, the Court will not consider Plaintiffs’ belated attempt to support a disparate impact claim by arguing in response to Defendants’ Motion for Summary Judgment that Plaintiffs are not relying on the “RIF as a whole” for the first neutral policy or practice but “have only complained of the specific phase of the RIF in which the employees were evaluated under the Spitz-berg Memorandum criteria.” (Resp. to Mot. for Summ. J. at 40.) Moreover, even if the Court were to consider it, Plaintiffs make no attempt to isolate this “phase,”

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or the Spitzberg Memo’s impact, from the RIF termination selection process as a whole.

Plaintiffs did not timely identify within the selection process for the layoff a specific measurable policy or practice responsible for purported statistical disparities. The broad claim of undue subjectivity in the RIF termination process is not a proper basis for a disparate impact claim in an ADEA case. Under Title VII, a plaintiff may challenge an overall decision-making process if it is not capable of separation for analysis; however, this exception is not permitted in ADEA cases.

See City of Jackson,

544 U.S. at 241 , 125 S.Ct. 1536 .

To the extent they are attempting to correct these deficiencies by claiming for the first time (in their response to summary judgment) that they are now relying on a certain “phase” or a certain “memo,” Plaintiffs’ disparate impact claims fail. They have not given Defendants sufficient notice of their disparate impact claims. The Court will now consider alternatively whether TDMN’s RIF policy was exclusively subjective.

Whether the Summary Judgment Record Shows that TDMN’s RIF Policy

Was

Exclusively Subjective

Alternatively, assuming subjectivity in a RIF termination process as a whole can be the basis of a disparate impact claim, such a claim can proceed only if the entire RIF process is entirely subjective.

Durante v. Qualcomm, Inc.,

144 Fed. Appx. 603, 605-607 (9th Cir.2005) (unpublished). Evidence that a RIF excessively, but not exclusively, relied on subjective criteria cannot be the subject of a disparate impact claim.

Id.

In this case, Plaintiffs do not even contend that the RIF was completely subjective. (Defs.’ Resp. at 38.) Plaintiffs set forth the following “evidence of the Policy, Process or Practice” to show that the RIF procedure was “overly subjective:” the RIF procedure required managers to rank employees without providing objective criteria or oversight because managers had the discretion to consider or ignore previous performance evaluations which themselves lacked adequate objective criteria. (Campion Dec., § 180, Pis.’ App. 0076-0078; Defs.’App. 3454.)

TDMN specifically instructed decision-makers to rely primarily on objective factors such as past performance, raises, and disciplinary issues when they decided which positions to eliminate and which individuals to lay off. (Defs.’ App. 801:5-12; 1539-1564, 1516.) The deposed decision-makers testified they relied on prior performance evaluations, salary increases, and disciplinary infractions or reprimands. (Defs.’ App. 1967:5-19; 2027:18-24; 2245:7-2246:5; 17:24-18:6; 62:10-17*, 85:17-86:1; 137:23-138:11*; 120:6-121:5*; 806:l-4;444:14-24;453:3-15; 2488:5-10, 2120:9-20; 1970:10-20; 1263:3-5, 1268:4-10; 115:19-116:8*, 167:2-8*.) Additionally, they considered objective criteria not explicitly referenced in the RIF forms, such as measures of productivity, the number of stories published, and the employees’ skill sets.

(Id.)

Taking the facts most favorably to Plaintiff, even if some managers did not consider employees’ prior performances and two decision-makers failed to consider at least one of the four objective criteria, this does not show that the RIF process was entirely subjective or even overly subjective. Moreover, Plain

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tiffs’ complaint that Defendants failed to require managers to consider any objective factors when they decided to completely eliminate, rather than downsize or consolidate, positions in the RIF is not a proper basis for an age discrimination claim.

Chapman,

2008 WL 2185389 at *7 (holding an employer’s decision to eliminate a job position in an economically driven RIF is a “legitimate, nondiscriminatory reason for terminating an employee”). The summary judgment record does not show that TDMN’s RIF policy was exclusively subjective. Plaintiffs disparate impact claim based upon undue subjectivity fails. The Court will now consider alternatively whether undue subjectivity cause a disparate impact on ADEA-protected employees.

Whether the Summary Judgment Record Shows that Undue Subjectivity Caused a Disparate Impact on ADEA-Protected Employees

Even if Plaintiffs had proved the first element of a prima facie case of disparate impact, they would need to present “statistical evidence of a kind and degree sufficient” to show that the specific identified practice caused an adverse employment action that disparately affected workers who were forty years of age and over forty.

Collins-Pearcy,

698 F.Supp.2d at 741-42 . Defendants contend that even assuming Plaintiffs may proceed with the purported undue subjectivity of the RIF termination selection process, they have failed to demonstrate any causation. Plaintiffs must prove that the isolated factor of undue subjectivity within the RIF selection process caused significant statistical disparities showing a disparate impact on age-protected employees to assure that Defendants are not held liable for innocent causes that lead to statistical disparities.

See Wards Cove,

490 U.S. at 657 , 109 S.Ct. 2115 . However, as Defendants point out, Plaintiffs’ expert analyzed the “statistical disparities caused by the termination process” as a whole, rather than the purported lack of objective criteria. (Pis.’ Resp. at 117.)

Plaintiffs’ Expert Report concludes that “[t]he results show that there is adverse impact in the termination decisions.” (Defs.’ App. 3051.) Clearly, the expert did not measure the adverse impact of undue subjectivity in the termination selection process as opposed to the myriad of other possible causes of adverse impact.

Plaintiffs have not demonstrated that the alleged policy or practice of allowing undue subjectivity in the RIF termination selection process actually caused the disparate impact their statistics purport to show. Based on Plaintiffs’ own admissions and those of their expert witness, the Court can only conclude that Plaintiffs’ statistical analyses have failed to “offer statistical evidence of a kind and degree sufficient to show that the practice in question — undue subjectivity in the selection process — caused employees older that forty to be included in the RIF at a disproportionate rate.”

Watson,

487 U.S. at 994 , 108 S.Ct. 2777 . Defendants are entitled to judgment as a matter of law on Plaintiffs’ disparate impact claim based on the alleged lack of objective criteria and oversight in the RIF, i.e., undue subjectivity in the RIF. The Court will now consider alternatively Defendants’ “reasonable factor other than age” defense.

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Defendants’ Reasonable Factor Other Than Age Defense to Plaintiffs’ Disparate Impact Claims

The ADEA mandates that an employer reach employment decisions without regard to age, but it does not place an affirmative duty upon an employer to accord special treatment to members of the protected age group.

Williams v. General Motors Corp.

656 F.2d 120, 129 (5th Cir. 1981). Accordingly, rather than demonstrating that Defendants could have achieved their goals by pursuing an alternative course of action that would not create a disparate impact on a protected group (as in Title VII disparate impact claims), ADEA disparate impact claims are subject to the RFOA analysis.

See Smith,

544 U.S. at 233, 239 , 125 S.Ct. 1536 (finding that it is in cases involving disparate impact that “the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was ‘reasonable’ ”).

Once a plaintiff has carried his heavy burden of isolating a specific policy and demonstrating the statistical disparity, a defendant carries the burden of production and persuasion of the RFOA defense.

Meacham,

554 U.S. at 101 , 128 S.Ct. 2395 . A plaintiff then has the opportunity to rebut the RFOA by demonstrating that the factors offered by the defendant are unreasonable.

See e.g., Smith,

544 U.S. at 243 , 125 S.Ct. 1536 (noting that RFOA does not permit rebuttal that other reasonable methods not resulting in a disparate impact were available).

In this case, the Court has not found, but will assume

arguendo,

that Plaintiff has met its initial burdens and that the burden of production and persuasion has shifted to the Defendants to show a RFOA. Plaintiffs respond that the RFOA defense is not available to Defendants based upon a regulation proposed by the Equal Employment Opportunity Commission (“EEOC”) on February 18, 2010. 75 FR 7212 -01, 2010 WL 558711 (F.R.). The proposed regulation provides that “when disparate impact results from giving supervisors

unchecked

discretion to engage in

subjective

decision making, however, the impact may, in fact, be based on age because the supervisors to whom decision making was delegated may have acted on the bases of conscious or unconscious age-based stereotypes.” 75 Fed.Reg. at 7218 (emphasis supplied). However, Plaintiffs’ reliance on the proposed regulation as barring the RFOA defense is misplaced because as a “notice of proposed rulemaking,” it carries no legal weight or authority.

In re AppleTree Mkt., Inc.,

19 F.3d 969, 973 (5th Cir.1994) (stating that “proposed regulations are not entitled to judicial deference and carry no more weight than a position advanced in a brief by one of the parties”). Proposed regulations are entitled to no deference until they are final.

Id. See also Teweleit v. Hartford Life & Accident Co.,

43 F.3d 1005, 1009 (5th Cir.1995). The closing date for comments on the rule was April 19, 2010. Plaintiffs have failed to show that the rule has been adopted and is entitled to deference.

Even assuming the rule is applicable, the proposed regulation gives three criteria to be considered: “(i) the extent to which the employer gave supervisors unchecked discretion to assess employees subjectively; (ii) the extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and (iii) the extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

Id.

As the Court previously noted, the second stage of the RIF involved the HR department’s confirmation of the managers’ rea

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sons for termination and evaluation paperwork. (Defs.’ App. 386:17-331:11; 1497:12-24.) At the third stage, the managers’ paperwork was sent to impartial reviewers.

{Id.

1531:11-16; 341.1:25-341.3: 23.) Some RIF forms were returned to managers to be redone in whole or in part and some proposed terminations were reversed.

{Id.

1532.1:15-15.2:10.) Outside legal counsel conducted another review.

{Id.

337:15-17; 1528:20-24.) An Executive Review Committee conducted the final review, judging whether the decisions were fair, supported by justifiable business reasons, and nondiscriminatory.

{Id.

1531:21-1532:3.) The managers were not given unchecked discretion.

Plaintiffs have not pointed to any age-based stereotypes, and the managers considered objective factors, such as prior performance evaluations, salary increases, seniority, disciplinary actions, productivity, and skill sets. (Defs.’ App. 1967:5-19; 2027:18-24; 2245:7-2246:5; 17:24-18:6; 62:10-17*, 85:17-86:1; 137:23-138:11*; 120:6-121:5*; 806:l-4;444:14-24;453:3-15; 2488:5-10, 2120:9-20; 1970:10-20; 1263:3-5,1268:4-10; 115:19-116:8*, 167:2-8*.)

Finally, Defendants provided the RIF decision-makers with guidance or training about how to apply the facts and avoid discrimination. This included a question- and-answer session with the HR representative during which he stressed the importance of using objective criteria. (Kresl Dep. at Defs.’ App. 801:5-12.) RIF decision-makers also received instructions to avoid discrimination against employees based on race, ethnicity, gender, and age. (Defs.’ App. 1539, 1516-1517.) Accordingly, the Defendants’ RFOA defense is not precluded by the rule.

The RFOA Defense Applied to TDMN’s RIF

The United States Supreme Court has recognized that “[c]ourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it.”

Watson,

487 U.S. at 999 , 108 S.Ct. 2777 . According to the Fifth Circuit Court of Appeals, “ ‘[t]he ADEA was not intended to be a vehicle for judicial second guessing of business decisions, nor was it intended to transform the courts into personnel managers.’ ”

Walther v. Lone Star Gas Co.,

952 F.2d 119, 123 (5th Cir.1992) (quoting

Thombrough v. Columbus & Greenville R.R. Co.,

760 F.2d 633, 647 (5th Cir.1985)). An employer is entitled to make those decisions for itself.

Id. See Norwood v. Calpine Corp.,

2005 WL 2171883 , *6 (S.D.Tex.2005). The reduction of a work force is a legitimate, non-discriminatory reason for termination.

E.E.O.C. v. Texas Instruments,

100 F.3d 1173, 1181 (5th Cir.1996). The use of project eliminations as criteria for determining which employees to terminate is itself an objective factor.

Durante v. Qualcomm, Inc.,

144 Fed.Appx. 603, 606 (9th Cir.2005) (unpublished).

TDMN’s company-wide 2004 RIF was economically motivated by a downturn in the newspaper industry. According to Department of Labor statistics, between 1999 and 2008 the total number of jobs in the American newspaper industry dropped from 448, 810 to 335,780, a twenty-five per cent decrease. TDMN was Dallas’ only remaining major daily newspaper. Defendants had to implement the RIF as a direct result of declining revenues. Given economic conditions at TDMN and in the newspaper industry, their stated goal was to reduce the overall workforce salaries. They state that their RIF termination practices were clearly related to this goal and provided a fair and efficient way to reduce TDMN’s workforce by approximately six percent. At TDMN 125 jobs were terminated, and across all of Belo’s

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media companies, approximately 194 jobs were eliminated.

Plaintiffs contend the RIF was unreasonable due to undue subjectivity and lack of objective criteria. Defendants counter that the summary judgment evidence conclusively shows that managers were not only instructed to consider past performance, raises, and disciplinary issues, but managers actually considered multiple objective factors in deciding which employees to terminate during the RIF.

During the managers’ training session, Skooglund repeatedly emphasized that managers were to utilize objective factors to the extent possible. (Defs.’ App. 801:5— 12.) Plaintiffs concede that department managers would be an important source to use in ranking employees for the RIF and that they might even be the best source. (Defs.’ App. 82:24-83:4; 111:6-25.) Plaintiffs cite only their expert witness’ unsupported conclusion that “[s]ome managers even admitted that they did not consider past performance appraisals to rank employees.” (Pis.’ App. 57.) Plaintiffs make the unsupported assertion that managers “were allowed to change the most recent (2004) performance rating, or to make a rating for 2004 if there was not one of record”

(Id.)

The record shows that TDMN’s HR representatives analyzed demographic information to ensure that there was no disparate impact on protected groups. (Defs.’ App. 1529:3-1530:4.) One of the HR representatives testified that she personally conducted an analysis to determine any potential adverse impact. (Defs.’ App. 3267; 337-38.) Additionally, adverse impact analysis was conducted by outside counsel. (Pis.’ App. 2012-13.)

Plaintiffs’ expert admitted that the RIF “was not completely subjective.” (Defs.’ App. 331:5-11.) Additionally, Defendants note that Plaintiffs’ expert witness admits that several objective factors correlated with termination decisions, such as “performance review scores, pay increases, and disciplinary warnings.” (Defs.’ App. 3035.) Further, Plaintiffs’ expert admits it is proper for decision-makers to consider some subjective criteria such as “management judgment” when deciding who to terminate.

(Id.

112:4-10.) The ADEA clearly does not prohibit TDMN from using both subjective and objective criteria and considering its future business needs during its RIF.

See Smith,

544 U.S. at 243 , 125 S.Ct. 1536 .

Plaintiffs’ contentions that Defendants were required to establish that they had no options available other than to institute unduly subjective RIF termination practices is without merit. Unlike Title VII disparate impact claims, where Plaintiffs can prevail by demonstrating Defendants could have achieved their goals by pursuing an alternative course of action that would not create a disparate impact on a protected group, ADEA disparate impact claims are subject to the RFOA analysis.

See Smith,

544 U.S. at 233, 239 , 125 S.Ct. 1536 (“It is, accordingly, in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was ‘reasonable.’ ”). Once Plaintiffs have carried their heavy burden of isolating a specific policy and demonstrating the statistical disparate impact resulting from the policy, the burden shifts to the Defendants to prove the actions were based on reasonable factors other than age.

See Meackam,

554 U.S. at 102 , 128 S.Ct. 2395 .

Although Defendants carry the burden of production and persuasion of the RFOA defense, “the more plainly reasonable the employer’s ‘factor other than age’ is, the shorter the step for that employer from producing evidence raising the defense, to persuading the factfinder that the defense

*266

is meritorious.”

Meackam,

554 U.S. at 102 , 128 S.Ct. 2395 . Once Defendants make such a showing, Plaintiffs can rebut Defendants’ RFOA defense only by demonstrating that the factors offered by Defendants are unreasonable.

See, e.g., Smith,

544 U.S. at 243 , 125 S.Ct. 1536 (noting RFOA does not permit rebuttal that other reasonable methods not resulting in a disparate impact were available). There is no requirement under the RFOA prong of the ADEA that the least discriminatory method be implemented.

Smith,

544 U.S. at 243 , 125 S.Ct. 1536 . For this reason, the Court has not considered Plaintiffs’ expert witnesses’ opinion that the Defendants’ RIF practices failed to conform to his list of so-called “20 Reasonable HR Practices.” (Declaration of Dr. Michael A. Campion, Ph.D., Pis.’ App. 33, 83-84.) Defendants have no duty to establish the lack of better alternatives because the RFOA inquiry does not require a determination as to “whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class.”

Smith,

544 U.S. at 243 , 125 S.Ct. 1536 ;

see also Rollins v. Clear Creek Indep. School Dist.,

No. Civ. AG-06-081, 2006 WL 3302538 (S.D.Tex. Nov. 13, 2006) (holding that Defendant is not required to show that there are no other ways of remaining in compliance with the requirement, as it would under the Title VII business necessity test; it is simply required to show that “the [method] selected was not unreasonable.” (citing

Smith,

544 U.S. at 243 , 125 S.Ct. 1536 )) (unpublished). The fact that other RIF practices were available is not relevant to, and does not rebut, Defendants’ RFOA defense.

Even assuming Plaintiffs had identified a specific policy or practice that caused an adverse statistical impact on employees over the age of forty, Defendants are entitled to judgment as a matter of law because all of the alleged policies were based on reasonable factors other than age.

TDMN asserts that to ensure that key personnel would be retained, it allowed managers with first-hand knowledge of employees’ performance to consider subjective factors, such as which employees had the most skills critical to future performance, an employee’s ability to work well with co-workers, and whether an employee exercised good judgment. The summary judgment record shows that the process TDMN utilized was clearly not an “undisciplined system of subjective decisionmaking” that was insufficiently related to TDMN’s RFOA.

See Watson,

487 U.S. at 999 , 108 S.Ct. 2777 (noting that many jobs require personal qualities that have never been considered amenable to standardized testing). Defendants used reasonable, non-age related factors. Plaintiffs’ claim that the unduly subjective processes that TDMN purportedly used were unreasonable is without merit.

Defendants’ RFOA Defense to Plaintiffs’ Rejuvenation Claim

Fifteen of the ADEA Plaintiffs who worked in the newsroom have explained their disparate impact claim of a “policy of rejuvenation” as: Defendants’ decision to exclude

Quick

and

Al Dia,

subsidiaries of Belo, from the RIF. The Court has previously decided that assuming TDMN had the policy of rejuvenation alleged by Plaintiffs, Plaintiffs failed to show a genuine issue of material fact with respect to a disparate impact claim. However, because Defendants have articulated their defense to this claim, the Court will assume for purposes of argument that Plaintiffs have stated a claim for disparate impact based on the alleged rejuvenation policy.

Formulating a policy or plan to attract the audience most likely to raise profitabil

*267

ity is a reasonable factor other than age.

Lit v. Infinity Broad. Corp. of Penn.,

2005 WL 3088364 (E.D.Pa. Nov.16, 2005) (finding that a repackaging effort to appeal to a younger audience was designed to keep the radio station successful and was a reasonable factor other than age). TDMN conducted extensive market research and surveys to determine how to reach more readers in an attempt to increase revenue. (Defs.’ App. 1512:2-1512:23; 59:1-13; 1365:1-7; 1366:18-23; 1039:2-1040:4; 1018:12-1019:5.) TDMN contends that any policy intended to rejuvenate the publication was the direct result of market research and was taken for the explicit purpose of increasing readership and keeping the publication successful.

(Id.)

Plaintiffs do not rebut the reasonableness of the factors considered in implementing the alleged rejuvenation. Rather, several Plaintiffs admit that focusing on the audience that is most likely to garner the highest revenue is reasonable. (Defs.’ App. 1108:20-1109:19; 1110:18-1111:15; 1762:9-12; 305:15-306:3; 622:1-4.) According to some of the Plaintiffs, an effort to reach a younger audience does not categorically correlate with or adversely affect older writers or editors. (Defs.’ App. 2194:12-19; 111:6-15; 1126:23-1127:4; 1861:4-21; 1885:9-23; 622:5-13; 1232:16-1233:15.) Plaintiffs’ expert witness never performed any statistical analysis of the purported “policy of rejuvenation” and fails to mention this policy in his Report. (Defs.’ App. 88:13-15.) Plaintiffs’ expert never analyzed the purported policy of selecting only particular positions, departments, or products for the RIF.

(Id.

at 101:10-18.) Plaintiffs offer no evidence of the purported impact of the exclusion of the

Quick

and

Al Dia

newsroom employees on the entire ADEA-protected group of TDMN’s ADEA-protected employees. (Pis.’ Resp. at 66-68.) Defendants have shown that, as a matter of law, the exclusion of the two-year-old Belo subsidiaries from the RIF was based on reasonable factors other than age. Further Defendants have shown, as a matter of law, that Plaintiffs’ claims that the RIF termination process was unreasonable are without merit. Plaintiffs failed to rebut Defendants’ RFOA defense. Defendants are entitled to summary judgment on Plaintiffs’ disparate impact claim arising from an alleged policy of rejuvenation and the failure to include

Quick

and

Al Dia

in the RIF.

Disparate Treatment

When a plaintiff alleges disparate treatment, liability depends on whether the plaintiffs age, the protected trait under the ADEA, actually motivated the employer’s decision.

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 141 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000);

Rachid v. Jack In The Box, Inc.,

376 F.3d 305, 309 (5th Cir.2004). Under the ADEA, “[i]t shall be unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment,

because of

such individual’s age[.]” 29 U.S.C. § 623 (a)(1) (2008) (emphasis added). The plain language of § 623(a)(1) requires: “a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.”

Gross v. FBL Fin. Servs., Inc.,

— U.S. -, -, 129 S.Ct. 2343, 2351 , 174 L.Ed.2d 119 (2009) (citations omitted).

The Court uses a three-step process to evaluate ADEA claims at the summary judgment stage, the modified

McDonnell Douglas

approach.

Rachid,

376 F.3d at 312 . First, the plaintiff must establish a

prima facie

case of discrimination, which creates a presumption that the employer engaged in unlawful discrimination.

Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 254 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981). “A plaintiff can demonstrate

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age discrimination in two ways, either through: direct evidence or by an indirect or inferential [circumstantial] method of proof.”

Berquist v. Washington Mut. Bank,

500 F.3d 344, 349 (5th Cir.2007) (quoting

Rachid,

376 F.3d at 309 ). “Plaintiffs producing only circumstantial evidence of discriminatory animus ... must negotiate the burden-shifting analysis set forth in

McDonnell Douglas Corp. v. Green

[ 411 U.S. 792 , 36 L.Ed.2d 668 , 93 S.Ct. 1817 (1973) ].”

Machinchick v. PB Power, Inc.,

398 F.3d 345, 350 (5th Cir. 2005) (citation omitted);

see also Hagan v. Echostar Satellite, L.L.C.,

529 F.3d 617, 624 (5th Cir.2008) (“Although

McDonnell Douglas

was a Title VII case, the burden-shifting framework established therein has been adapted and applied to cases under the [ADEA],.. ,”).

In cases such as this one in which the plaintiffs were discharged during an RIF, a plaintiff must establish a

prima facie

case of age discrimination by showing that he or she: (1) was discharged; (2) was qualified for the' remaining position; (3) belonged to a protected group of persons at least forty years old; and (4) was replaced by someone younger, or outside the protected class, or otherwise discharged because of age.

Chapman,

2008 WL 2185389 at *6 (citing

Rhodes v. Guiberson Oil Tools,

75 F.3d 989, 992-93 (5th Cir. 1996)) (abrogated on other grounds in

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 141 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000)).

“Once the plaintiff establishes a

prima facie

case, the burden of production shifts to the defendant to proffer a legitimate nondiscriminatory reason for its employment action.”

Machinchick v. PB Power, Inc.,

398 F.3d 345, 350 (5th Cir.2005) (citing

West v. Nabors Drilling USA, Inc.,

330 F.3d 379, 385 (5th Cir.2003)). The Supreme Court has noted that “[t]his burden is only one of production, not persuasion”; and that it cannot involve a credibility assessment.

Reeves,

530 U.S. at 143 , 120 S.Ct. 2097 (quoting

St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 509 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993)). “If the defendant meets its burden, the presumption of discrimination created by the

prima facie

case disappears, and the plaintiff is left with the ultimate burden of proving discrimination.”

Sandstad v. CB Richard Ellis, Inc.,

309 F.3d 893, 897 (5th Cir.2002) (citing

St. Mary’s Honor Ctr.,

509 U.S. at 511-12 , 113 S.Ct. 2742 ).

Undisputed summary judgment evidence shows that Plaintiffs were terminated during an RIF.

An RIF is a presumptively legitimate, nondiscriminatory reason for an employer to terminate an employee.

EEOC v. Tex. Instruments Inc.,

100 F.3d 1173, 1181 (5th Cir.1996). A plaintiff can rebut the presumption of legitimacy by showing either: (1) the purported RIF is merely a sham or a pretext for age discrimination, or (2) although the RIF is legitimate on its face, the employer imple

*269

mented it in such a way that age was impermissibly used as a factor to determine which employees were terminated.

See Patrick v. Ridge,

394 F.3d 311, 317 (5th Cir.2004);

Thombrough v. Columbus and Greenville R.R. Co.,

760 F.2d 633, 645 (5th Cir.1985),

abrogated on other grounds by St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993). When a plaintiff challenges the presumptive validity of an RIF, the defendant must articulate a specific nondiscriminatory reason why the plaintiff in particular was included in the RIF.

See Patrick,

394 F.3d at 317 ;

Thombrough,

760 F.2d at 645 (noting that the concern in an RIF case is “why, given the employer’s need to reduce his workforce, he chose to discharge the older rather than the younger employee”). Finally, the burden shifts back to the plaintiff who must show that the defendant’s proffered reason is merely a pretext for age discrimination.

Rachid,

376 F.3d at 312 .

Whether Plaintiffs Have Adduced Admissible, Direct Evidence of Age Discrimination

“Direct evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.”

Sandstad v. CB Richard Ellis, Inc.,

309 F.3d 893, 897 (5th Cir.2002);

see also Mooney v. Aramco Services Co.,

54 F.3d 1207, 1217 (5th Cir.1995) (noting that direct evidence of discrimination includes comments that directly suggest the existence of bias, that “cannot reasonably be interpreted as anything other than a reflection of bias”) (quoting

Davis v. Chevron U.S.A., Inc.,

14 F.3d 1082, 1085 (5th Cir.1994) (per curiam)). Defendants contend that Plaintiffs offer no admissible direct evidence of age discrimination. Plaintiffs rely on age-based remarks and the incorporation of age bias in termination decisions.

In some ADEA cases, evidence of pretext is not needed.

Moss v. BMC Software, Inc.,

610 F.3d 917, 928-929 (5th Cir.2010) (citing

Rachid,

376 F.3d 305, 312 (5th Cir.2004)). In

Rachid ,

for example, the plaintiff presented evidence that the decision-maker told the plaintiff “... you’re too old.”

Id.

at 315 . The court held that “such comments preclude summary judgment because a rational trier of fact could conclude that age played a role in [the employer’s] decision to terminate [plaintiff].”

Id.

at 315-16 . Nevertheless, the Fifth Circuit Court of Appeals has also “repeatedly held that ‘stray remarks’ do not demonstrate age discrimination.”

Texas Instruments,

100 F.3d at 1181 . “In order for an age-based comment to be probative of an employer’s discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was an impermissible factor in the decision to terminate the employee.”

Id.

(citing

Bodenheimer v. PPG Industries, Inc.,

5 F.3d 955, 958 (5th Cir.1993)). “Remarks may serve as sufficient evidence of age discrimination if they are: 1) age related, 2) proximate in time to the employment decision, 3) made by an individual with, authority over the employment decision at issue, and 4) related to the employment decision at issue.”

Medina v. Ramsey Steel Co., Inc.,

238 F.3d 674, 683 (5th Cir.2001).

Plaintiffs assert that, in an early October 2004 meeting, Rodrigue announced that younger employees with more potential to grow would more likely survive the RIF than older employees. (Pis.’ Br. at 180.) The only admissible evidence

cited in support of this allega

*270

tion is Gary Stratton’s (“Stratton”) deposition. (Stratton Dep. at Pis.’ App. 2208-09.) The Court has reviewed Plaintiffs’ cited deposition pages. The cited pages do not mention any statement by Rodrigue.

(Id.)

Rodrigue explicitly denies ever making any statement that younger employees with more room to grow would be kept over older employees. (Rodrigue Dep. at Defs.’ App. 1361:19-1362:10.) In his deposition, Stratton admitted he did not recall Rodrigue actually saying anything about age in connection with this purported statement. (Stratton Dep. at Defs.’ App. 1606:4-1607:6.) Instead, Stratton testified that all he remembered Rodrigue saying at this meeting was that employees who had “less potential to grow” were more likely to be terminated in the RIF.

(Id.)

Assuming Rodrigue made the statement about employees with “less potential to grow,” such a statement could “reasonably be interpreted as [some]thing other than a reflection of bias,” and therefore does not constitute direct evidence of age discrimination.

Mooney,

54 F.3d at 1217 ;

Davis,

14 F.3d at 1085 . Moreover, the summary judgment record contains no evidence Rodrigue had any authority or input into the decision to terminate Stratton or any of the other Plaintiffs. (Rodrigue Dep. at Defs.’ App. 1359:4-12.)

Rodrigue informed the AMEs how much each department would need to cut in compensation costs, and delegated to the AMEs the responsibility of deciding which employees to include in the RIF. (Rodrigue Dep. at Defs.’ App. 1360:1-19.) Rodrigue’s purported comment about employees with potential to grow is not indicative of age discrimination towards Plaintiffs.

Palasota v. Haggar Clothing Co.,

342 F.3d 569, 576-78 (5th Cir.2003) (noting that for comments to be probative of age discrimination, they must be made by an individual with authority over the termination in question).

Other Age-Related Comments

Plaintiff contends the following age-related comments are proof of age discrimination or age bias. They contend that TDMN’s Publisher Moroney stated in his January 2004 “Goals Speech” that TDMN could not achieve its goals if it was a “company full of middle-aged white guys like me” and that to that end, he explicitly “enlist[ed] every manager in this cause.” (Pis.? App. 1038.) Plaintiffs have taken Moroney’s comment out of context.

Moroney was not speaking about a goal for terminating employees in an RIF. Rather, he was addressing the broader goal of creating diversity and making those in leadership roles understand the communities they serve, such as “geographic communities, ethnic communities, religious communities, communities of interest.” The goal was “a company whose senior leadership, middle management and non-management alike reflect the rich diversity of North Texas.” Moroney enlisted “managers who have the opportunity to hire people to make it his and her goal to

*271

have a reporting staff that reflects diversity-

The last three age-related comments that Plaintiffs rely upon follow:

1. Bruce Tomaso, the Religion Editor who ranked the religion reporters and recommended the termination of Plaintiff Hadnot, noted in an email to Doug Bedell (a writer terminated in the RIF at the age of 53) that:

I’m thinking that’s f_great. In 5 to 7 years, I’ll be 57 to 59 making as much as two reporters, unemployable elsewhere and of marginal value to the newspaper. I’ll be, in other words, the next generation of Gary Strattons and Bob Trimbles.”

(Pis.’ App. 1195.) At the time of the RIF and when this email was sent, Gary Stratton was 57 years old; Bob Trimble was 65. (Pis.’ App. 1143; Pis.’ App. 1176.)

2. Bedell responded to Tomaso, noting that “the prospect for normal retirement or a buy-out is gone for any boomers who stick this out. With a steady decline in readership, we [employees terminated in the October 27, 2004 RIF] will be only the first wave of 50-ish folk who are run off or dismissed.”

(Pis.’ App. 1195), and

3. Sharon Grigsby, the deputy editorial page editor, noted that two Editorial Department employees — James Mitchell, then a 50-year-old editorial writer, and William McKenzie, then a 50-year-old editorial columnist — were “more than a little shell-shocked to see they are the last ‘old guard’ standing” following the RIF which brought the terminations of plaintiffs and editorial writers Tim O’Leary (then 47) and John Chamless (then 57), editorial cartoonist Bill DeOre (then 57), and editorial writer Jim Frisinger (then 53).

(Grigsby Dep., Pis.’ App. 1500, Pis.’ App. 1508 (Ex. 14); Pis.’ App. 1137.) These three reactions to the RIF are not direct and unambiguous comments that would allow a reasonable jury to conclude without any inferences or presumptions that age was an impermissible factor in TDMN’s decision to terminate Plaintiffs. The remarks are age related, but there is no indication that they were made before or during the employment decision by the decision-maker. They are stray remarks that are not made by the decision makers.

Incorporation of Age-Based Criteria in Employment Decisions

Plaintiffs also assert as direct evidence of discrimination the proposition that the RIF decision-makers evaluated employees based on criteria incorporating age bias, such as “adaptability,” “versatility,” “skill sets best suited to projected work environment,” “potential,” or “flexibility.” (Pis.’ Br. at 182-83.) Northern District of Texas Local Rule 56.5(c) requires “[a] party whose motion or response is accompanied by an appendix [to] include in its brief citations to each page of the appendix that supports each assertion that the party makes concerning the summary judgment evidence.” Plaintiffs cite no specific evidence in their voluminous appendix that supports this assertion. Moreover, the cases that Plaintiffs rely on to support their theory all involve statements that were made about particular age-protected employees.

See, e.g., Machinchick,

398 F.3d at 353 ;

Rachid,

376 F.3d at 315 ;

Bienkowski v. Am. Airlines, Inc.,

851 F.2d 1503, 1507 (5th Cir.1988);

Guthrie v. J.C. Penney Co.,

803 F.2d 202, 208 (5th Cir. 1986);

Grant v. Hazelett Strip-Casting Corp.,

880 F.2d 1564, 1569 (2d Cir.1989).

Plaintiffs assertion that decision-makers considered allegedly aged-based stereotypes during the RIF would require the

*272

factfinder to make an inference that the factor considered was an age-based stereotype. Thus, it would not constitute direct evidence even if Plaintiffs had properly-supported their assertion.

See Sandstad,

309 F.3d at 897 . The fact that RIF decision-makers considered traits such as “versatility” and “flexibility” does not constitute direct evidence of age discrimination.

The Court now turns to whether Plaintiffs have shown that a genuine issue of material fact precludes summary judgment on their disparate treatment claims using the

McDonnell Douglas

burden-shifting framework.

Frank v. Xerox Corp.,

347 F.3d 130, 137 (5th Cir.2003).

Application of the Burden-Shifting Approach

Plaintiffs contend that they are each able to establish the elements of a

prima facie

case, while Defendants argue that none of the Plaintiffs have established a

prima facie

case of age discrimination.

To establish a

prima facie

case in the context of an RIF, a plaintiff must demonstrate: (a) he or she is within the protected age group; (b) he or she has been adversely affected by the employer’s decisions; (c) he or she was qualified to assume another position at the time of discharge; and (d) evidence from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.

See Nichols v. Loral Vought Sys. Corp.,

81 F.3d 38, 41 (5th Cir.1996) (citing

Amburgey v. Corhart Refractories Corp., Inc.,

936 F.2d 805, 812 (5th Cir.1991));

Chavarria v. Despachos Del Notre, Inc.,

390 F.Supp.2d 591, 596-597 (S.D.Tex.2005);

Woodhouse v. Magnolia Hosp.,

92 F.3d 248, 252 (5th Cir.1996), and

Nichols,

81 F.3d 38 at 41 . The

prima facie

case of intentional age discrimination differs somewhat when the plaintiff was terminated in an RIF. Most notably, the fourth factor requires a plaintiff terminated in an RIF to produce evidence showing the defendant consciously chose to not treat age neutrally, or otherwise regarded age as a negative factor.

See Amburgey,

936 F.2d at 812 (to prove the fourth factor, “the evidence must lead the factfinder reasonably to conclude either (1) that defendant consciously refused to consider retaining or relocating a plaintiff because of his age, or (2) that defendant regarded age as a negative factor in such consideration.”) (citation omitted);

Thombrough,

760 F.2d at 642 (citing

Williams v. General Motors Corp.,

656 F.2d 120, 129-130 (5th Cir.1981)).

Plaintiffs argue that the use of subjective criteria incorporating age bias in the RIF supports a claim of disparate treatment. (Defs.’ Resp. at 184.) Plaintiffs again cite to the proposed regulation from the EEOC that has not been adopted as their sole support for this contention, and claim that the “EEOC has stated that the use of subjective criteria that incorporate age-biased criteria give rise to claims of disparate treatment.”

(Id.

citing 75 Fed.Reg. 7217.) The Proposed Regulation states that the use of

unchecked

criteria can state a claim for disparate impact, not disparate treatment.

(Id.)

Plaintiffs’ argument is specious and without merit.

See Richter v. Hook-SupeRx,

142 F.3d 1024 , 1032 n. 4 (7th Cir.1998) (finding that “the district court adequately considered and rejected the testimony of Dr. Michael Campion [the same Michael Campion who is Plaintiffs’ expert witness], who stated that the subjective decision-making process used provided the ‘perfect atmosphere’ for age stereotyping, in part “[because the ADEA does not forbid subjective selection processes”).

Finally, Plaintiffs argue that “Defendants’ false accusations of deficient performance create an inference of discrimi

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natory animus.” (Pis.’ Resp. at 185.) This argument is not supported by the record.

See Reeves,

530 U.S. at 147 , 120 S.Ct. 2097 (noting, “Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence .... ”).

Plaintiffs have not provided any evidence that Defendants intended to discriminate against them based on their ages, such as by consciously choosing to not treat age neutrally, or otherwise regarding age as a negative factor in the RIF.

See Nichols,

81 F.3d at 41 (citing

Amburgey,

936 F.2d at 812 );

Thornbrough,

760 F.2d at 642 (citing

Williams,

656 F.2d at 129-130 ). Plaintiffs have failed to satisfy the fourth prong and thus, have failed to make a

prima facie

case of disparate treatment. Nevertheless, the Court will assume,

arguendo,

that Plaintiffs have established their

prima facie

case of age discrimination and examine whether Defendants have articulated a legitimate, nondiscriminatory reason or reasons for Plaintiffs’ terminations. An economically-motivated RIF constitutes a legitimate, nondiscriminatory rea son for an employee’s termination.

See EEOC v. Texas Instruments,

100 F.3d at 1181 ;

Nichols,

81 F.3d at 41 ;

Pribila v. Emerson Elec. Co.,

2002 WL 629528 , at *3 (N.D.Tex. April 16, 2002) (Boyle, M.J.). Defendants assert that, in this case, the RIF itself is a legitimate, nondiscriminatory reason for Plaintiffs’ terminations. Nevertheless, Plaintiffs argue that the RIF was not economically driven. This assertion is based upon a hearsay statement by Plaintiff Hubbard, who testified that Moroney stated at the September 29, 2004 meeting at which he announced the RIF that TDMN was “very profitable.”

(See

Hubbard Dep., Pis.’ App. 1586-89.) This hearsay statement is not admissible. Moreover, Plaintiffs cherry-picked this statement and failed to cite the entire context of Hubbard’s deposition testimony. Hubbard testified that Moroney qualified this alleged statement by noting that TDMN was 35% less profitable in 2004 than in 2000. (Hubbard Dep. at Pis.’ App. 1587:1-2.) Plaintiffs’ inadmissible evidence does not create a genuine issue of material fact either with respect to the legitimacy of the RIF or the fact that the RIF was economically driven by the downturn in the newspaper industry and Defendants’ own financial problems.

Moreover, “an employer’s decision to eliminate a job position ... has been recognized as a legitimate, nondiscriminatory reason for terminating an employee.”

Chapman,

2008 WL 2185389 at *7. In fact, the

Chapman

case involved the same RIF which resulted in Plaintiffs’ terminations. During the 2004 RIF, if a job was eliminated, the person who performed that particular job was automatically included as part of the RIF. (Yates Dep. at Defs.’ App. 2035:6-9.) If a position was eliminated, the managers had no discretion to consider whether to transfer that particular employee to another position. TDMN adhered to a strict no-transfer and no-bumping rule as part of the RIF. (Spitzberg Dep. at Defs.’ App. 1526:15-25.) Thus, for seven Plaintiffs, DeOre, Hubbard, Patterson, Powell, Reyes, Watson, and West, TDMN has shown a legitimate reason justifying their terminations, the elimination of their positions during the RIF.

Plaintiffs claim that Defendants changed job titles to create a class of one and thus eliminate certain Plaintiffs by eliminating their positions. Plaintiffs claim Defendants amended the organization chart on September 15, 2004 because the charts were dated September 15, 2004. (Pis.’ Resp. at 17) (citing Pis.’ App. 1007-18.)

(See Org. Charts

at Pis.’ App. 1007-18.) Defendants point out that the charts do not indicate that they were revised as of

*274

that date, or at any time in the recent past.

(See id.)

Plaintiffs have produced no evidence that Defendants amended the organization charts, or that any Plaintiff— including Hubbard, Powell, Watson, or West — had their job titles changed shortly before the RIF. Moreover, even if Plaintiffs could demonstrate that job titles were changed near the time of the RIF, Plaintiffs’ failure to argue and prove that they were more qualified for these positions, or should have been considered for these positions, demonstrates that the purported changes in job title are not pretexts for discrimination.

See Tucker v. SAS Inst., Inc.,

462 F.Supp.2d 715, 728 (N.D.Tex. 2006) (citing

Price v. Federal Express Corp.,

283 F.3d 715, 723 (5th Cir.2002)).

When a job was downsized in the 2004 RIF, the number of employees in a given position was reduced, but the position was not entirely eliminated. (Defs.’ App. 1516:24-1517:4, 1546.) When a position was downsized, managers had to evaluate each employee in that position based on the employee’s past and present job performance, and anticipated ability for future contributions. (Defs.’ App. 1547.) Managers then had to numerically rank all employees in that position.

(Id.)

After the managers ranked the employees, they then had to recommend which employees should be included in the downsizing.

(Id.)

When a job was consolidated in the 2004 RIF, two or more positions were combined or restructured into a fewer number of positions.

(Id.

at Defs.’ App. 1553.) When a position was consolidated, managers had to evaluate each employee in their current position, and in the consolidated position, based on the employee’s past and present job performance, and skill set.

(Id.

at Defs.’ App. 1554.) Then managers had to numerically rank employees with respect to the consolidated position.

(Id.)

After ranking the employees, managers were then required to recommend which employees should be retained in the consolidated position.

(Id.)

A plaintiff can rebut the presumption of an RIF’s legitimacy by demonstrating either: (1) the purported RIF is merely a sham and nothing more than a pretext for age discrimination, or (2) the RIF, while legitimate on its face, is implemented in such a way that age is impermissibly used as a factor in determining which employees are terminated.

Utley v. MCI, Inc.,

No. 3:05-CV-0046-K, 2008 WL 836419 , at *3 (N.D.Tex. Mar. 24, 2008) (citing

Patrick v. Ridge,

394 F.3d 311, 317 (5th Cir.2004), and

Thombrough,

760 F.2d at 645 ). Although Plaintiffs do not contend that the RIF is a sham, they claim that the “entire RIF process ... was tainted by age bias.” They cite to the deposition testimony of Yates, the AME of the Sports Department at the time of the RIF, for the proposition that Yates relied solely on his own judgment rather than performance evaluations to rank and evaluate employees for the RIF.

(Id.

185.) Defendants respond that Plaintiffs mischaracterize Yates’ testimony. Yates testified that he did not use the prior year’s performance reviews to rank the five assigning editors in the Sports Department during the RIF process. (Yates Dep. at Pis.’ App. 2448-2450.) Yates specifically testified that he “used annual evaluations” during the course of deliberations regarding who to cut from the Sports Department. (Yates Dep. at Defs.’ App. 2027:18-24.) Further, Yates conferred with five other managers during the ranking process and they all concurred with him. The conclusory statement that the entire RIF process was “tainted with age bias” cannot be inferred from Yates’ testimony.

(See

Pis.’ Resp. at 185-86.) Plaintiffs state that their expert witness stated in his declaration at ¶ 29 that he “found the reasons for

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recommending employees for termination were simply ‘post hoc’ justifications for the recommendations, not objective evaluations of the employees’ performance.”

(Id.

at 185.) In fact, Campion makes the conclusory supposition that the checklists on the RIF forms “could have been little more than convenient post hoc justifications for why these employees were selected for termination.” (Campion Dec. ¶ 29 at Pis.’ App. 21-22.) The record contains no evidence that the checklists were in fact, post hoc rationalizations. Further, the record contains no evidence that the checklists did not state the real reasons for termination. The checklists contained multiple reasons. No matter when the checklist was completed, Campion’s inadmissible speculations would not prove that the RIF was implemented in such a way that age was impermissibly used as a factor in determining which employees are terminated. Plaintiffs failed to rebut TDMN’s legitimate, nondiscriminatory reasons. Defendants are entitled to rely on the RIF itself as a legitimate, nondiscriminatory reason for Plaintiffs’ terminations.

Again, for purposes of argument, the Court will presume that Plaintiffs created a genuine issue of material fact with respect to the legitimacy of the RIF as a nondiscriminatory reason for Plaintiffs’ terminations. The Court will now consider whether Defendants have articulated a specific legitimate and nondiscriminatory reason for the termination of each Plaintiff during the RIF.

See Utley,

2008 WL 836419 at *3 (citing

Patrick,

394 F.3d at 317 , and

Thombrough,

760 F.2d at 645 (noting that the concern in an RIF case is “why, given the employer’s need to reduce his workforce, he chose to discharge the older rather than the younger employee”)).

Michael S. Coons

Defendants’ Nondiscriminatory Reasons

Yates, the manager responsible for making RIF-related decisions for the Sports Department, selected Coons for the RIF because TDMN downsized the sports copy editor positions from nineteen to sixteen. Yates and other managers rated and ranked all nineteen sports copy editors. The other managers agreed with Yates’ rankings. Coons ranked eighteenth. Yates gave the following reasons for terminating Coons. Unlike other copy editors who had not received reprimands, Coons was reprimanded frequently. Further, Coons received average overall ratings on his annual performance evaluations. Additionally, compared to his peers, he reacted poorly to changes in deadline situations. He had a temper. His temperament sometimes failed to hold up well to changes in deadlines. Coons did not think visually as he edited, and he failed to attend mandatory “breakdown” meetings. Defendants have articulated specific nondiscriminatory reasons why Coons was included in the RIF. Therefore, the burden shifts back to Plaintiffs to show that Defendants’ proffered reasons are merely pretext for unlawful age discrimination.

Utley,

2008 WL 836419 at *3 (citing

Rachid,

376 F.3d at 312 ). At the pretext stage, a plaintiff must present sufficient evidence to create a genuine issue of material fact with respect to whether age was a “but for” cause of the discharge.

Gross,

129 S.Ct. at 2350-51 . A plaintiff may do this by showing that (1) a discriminatory reason more than likely motivated the employer, or (2) the reason offered by the defendant is unworthy of credence.

Id.

Stated differently, the employee must show that the employer’s proffered reason for its decision is pretextual, and that age bias is the real reason for the employer’s decision.

Smith v. City of Jackson, Miss.,

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351 F.3d 183, 196 (5th Cir.2003). To show pretext, the plaintiff may produce evidence creating a fact issue as to whether the plaintiff was clearly better qualified than a retained employee who assumed some of the plaintiffs duties, or the plaintiff may otherwise disprove the legitimate reasons proffered by the defendant for his or her termination.

Chapman,

2008 WL 2185389 , at *8. “To establish a fact question, a plaintiff must provide sufficiently specific reasons for his opinion; mere subjective speculation will not suffice.”

Nichols v. Loral Vought Sys. Corp.,

81 F.3d 38, 42 (5th Cir.1996).

Plaintiffs’ Claims of Pretext and Defendants’ Rebuttal

Plaintiffs point to Yates’ 2004 RIF evaluation which stated Coons was a “solid editor,” the December 2002 review which said one of his “Strengths” is that Coons’: “approach is organized and methodical ... tackles his duty roster efficiently under deadline pressure.” (Pis.’ App. 0878-0879.) They claim his February 2004 review states, “can handle a heavy workload on deadline.” (Pis.’ App. 0885.) Plaintiffs state that Coons “meets expectations” for the relevant 2002-2004 RIF evaluation period. (Defs.’ App. 2089.) They assert that nine of the retained editors also received “meets expectations” ratings for the same period, yet three were terminated. (Yates Dep., Pis.’ App. 2460-2461.) Plaintiffs assert that these examples show that Defendants’ stated reasons are false. This evidence shows only that Coons received mixed reviews, not that Defendants’ stated reasons are false. Plaintiffs attempt to refute Yates’ contention that Coons received “frequent reprimands” by stating that Coons’ RIF evaluation indicated that he had no written warnings or other disciplinary documentation during the RIF evaluation period (“the last 3 years”). (P’s.’ App. 0419.) However, Coons admits to three reprimands which occurred earlier. Coons blames any and all reprimands on what Coons perceives as Yates’ “tendency to act on false assumptions.” (Coons Dec. at ¶¶ 2, 4-6, Pis.’ App. 3144, 3145-3146.) However, “an employer may take an adverse action for any reason, fair or unfair, so long as the action is not motivated by an age-based discriminatory animus.”

Hidalgo v. Overseas Condado Ins. Agencies, Inc.,

120 F.3d 328, 332 (1st Cir.1997).

Plaintiffs also assert that Yates reprimanded one other copy editor (Coons Dec. at ¶ 8, Pis.’ App. 3146.) Notably, Plaintiffs fail to provide a copy of the purported email reprimand. Defendants object to the portion of Coons’ Declaration referencing the alleged e-mail from Yates to the other editor on grounds the Declaration is conclusory, speculative, not based on personal knowledge in violation of Rule 56(e), and hearsay. Moreover, Defendants contend that under the Best Evidence rule, Plaintiffs should be required to produce the purported e-mail. The Court agrees. However, assuming that Yates once reprimanded another copy editor, Plaintiffs cite no evidence that Yates reprimanded any copy editors other than Coons and that editor, nor do they show how this alleged reprimand of another editor demonstrates intentional discrimination against Coons based on his age. Such a reprimand would not have affected the outcome of Yates’ ranking of the sports copy editors because TDMN terminated three sports copy editors in the RIF, and Coons ranked eighteenth out of nineteen. Accordingly, Plaintiffs have not offered “substantial” evidence that this reason for including him in the RIF is pretextual.

To counter Yates’ assertion in the RIF evaluation: “headline writing skills not as strong as others,” Plaintiffs point to Coons’ February 13, 2004 review which stated

*277

that Coons had “good news judgment” and was “vocal when an important story breaks”; “dedicated editor with a strong sense of purpose ... excellence is ... ultimate goal ... sets a high standard and pushes himself to achieve it on a story-by-story basis.” Plaintiffs assert that Yates’ ranking of Coons has no meaning but simply reflects that Yates targeted Coons and contrived reasons to support the ranking.

Defendants contend that Plaintiffs do not contest that TDMN downsized Coons’ sports copy editor position, that his overall ratings on annual performance evaluations were average, or that he failed to attend breakdown meetings regularly. (Defs.’ Resp. at 197-99.) Rather, Plaintiffs argue that nine other sports copy editors also got average ratings and the breakdown meetings were not mandatory because they were held before Coons’ four o’clock shift. Plaintiffs do not contest that these meetings were held every day and that in both Coons’ 2002 and 2004 performance appraisals, Renbarger instructed Coons to attend more, or at least a few, breakdown meetings a month. (Defs.’ App. 318, 243, 320, 245.) Plaintiffs have not shown that Yates’ termination of Coons for his average ratings and failure to attend breakdown meetings is a pretext for age discrimination.

Plaintiffs attempt to contest the fact Coons had a temper and did not respond well to deadlines. With respect to Coons’ temper, Plaintiffs merely state that “Coons is not aware of any facts to support such an assertion.” (Pis.’ Resp. at 198.) However, both Yates and Renbarger concluded that Coons had a problem controlling his temper (Defs.’ App. 2090, 2055), and Yates explained that Coons “has a temper,” and “his temperament sometimes doesn’t hold up well in deadlines, to changes.” (Yates Dep. at Defs.’ App. 2057:9-17.) This conclusion was noted in both Coons’ 2002 performance evaluation and in his RIF evaluation. (Defs.’ App. 318, 243, 2090, 2055.) With respect to Coons’ tendency to respond poorly to deadlines, Plaintiffs cite his 2002 evaluation — which noted, in part, he “tackles his duty roster efficiently under deadline” — and his 2004 evaluation— which stated Coons “can handle a heavy workload on deadline.” (Pis.’ Resp. at 198.) However, the same 2002 evaluation, performed by Renbarger, notes that Coons “still becomes overly frustrated” when problems occur near deadlines, and warned Coons to “curb these outbursts because they are disruptive to other [staff].” (Defs.’ App. 317, 243.) Moreover, the fact that Coons may handle his “duty roster” or a heavy workload well under deadlines does not conflict with Yates’ unequivocal testimony that Coons does not respond well to changes in deadlines. (Defs.’ App. 2057:9-17.) Coons admitted that both his 2002 and 2004 performance appraisals were fair. (Coons Dep. at Defs.’ App. 243:21-244:4, 245:12-246:19.) Thus, Plaintiffs have failed to offer substantial evidence discrediting the fact that Yates considered Coons’ temper or his tendency to respond poorly to changes in deadlines.

Regarding the fact that Coons needed to think more visually as he edits, Plaintiffs claim this “is completely subjective and unsubstantiated.” (Pis.’ Resp. at 199.) The only evidence Plaintiffs cite in support of this argument is a Declaration from Plaintiff Gary West (“West”), that everyone at TDMN was told to appeal to younger readers.

(Id.)

Common sense dictates that a person of any age could appeal to younger readers and the editor’s age is irrelevant to the completion of this purported directive. Even if admissible and true, a factfinder could not conclude from this remark that it had anything to do with Coons’ termination or that, but for Coons’ age, he would not have been terminated.

*278

This criticism regarding the need to think more visually is documented in Coons’ 2002 and 2004 performance evaluations. Renbarger noted that Coons needed to think more visually as he edits, and that, in this regard, he should provide readers with more charts, graphics, and photos.

“The evidence offered to counter the employer’s proffered reasons must be substantial.”

See McMartin v. Officemax, Inc.,

No. 3:08-CV-0297-K, 2009 WL 2340941 , at *7 (N.D.Tex. July 27, 2009) (citations omitted). Plaintiffs have offered no substantial evidence to disprove the fact that, when recommending Coons for termination in the RIF, Yates considered Coons’ lack of visual thinking in his edits.

Moreover, Coons testified to the absence of age discrimination at TDMN and much of this testimony remains undisputed, including his testimony that: no one ever made discriminatory comments about his age while he worked for TDMN; he was not aware of any facts indicating that any of his supervisors other than Yates discriminated against him on the basis of his age; his assertion that Yates discriminated against him was based solely on his own subjective belief, and not on any objective facts; and, he had not heard of anyone in management at TDMN making age disparaging remarks or stereotyping older employees. (Coons Dep. at Defs.’ App. 290:14-17, 294:22-295:15, 296:21-301:4.)

Conclusions Regarding Coons’ Claim

Plaintiffs have failed to show that a genuine issue of material fact exists with respect to whether Defendants’ reasons for Coons’ termination are a pretext for age discrimination. Moreover, they have failed to show that a genuine issue of material fact exists with respect to proof that “but for” Coons’ age, he would not have been terminated. Accordingly, Defendants are entitled to summary judgment on Plaintiffs’ claim that TDMN intentionally terminated Coons in the RIF because of his age.

Stephen Wagne Yount

Defendants’ Nondiscriminatorg Reasons

Yates selected Yount for the RIF because TDMN downsized the sports assigning editor position, and because, compared to his peers, Yount was not: (1) as creative; (2) nearly as good at solving problems; and (3) as strong a line editor. Other editors had the impression Yount was not reading the stories submitted by writers before they were passed on. Further, Yount had been demoted a few years before the RIF. At no time did Yates consider Yount’s age in making the decision to terminate his employment in the RIF. (Yates Aff. ¶ 7 at Defs.’ App. 3283.)

Plaintiffs’ Claims of Pretext and Defendants’ Rebuttal

Plaintiffs claim that TDMN’s assertion that Yount was selected for termination because he had “many problems with performance during his tenure” is false. Plaintiffs support their claim with: (1) the fact that in 1995, Yount was promoted to assistant editor; (2) in a 2002 performance evaluation, Yates praised Yount’s performance by stating that Yount “was a thoughtful participant in our department”; had melded a strong team; offered ideas on many other beats; was thrust into his role as “pro basketball editor” at a challenging time; and was a “good advocate for his writing staff’; and “Steve’s supervisory combination of zones and pro basketball is unique in our department.” (Pis.’ App. 0963.) Plaintiffs state that Yates also noted that Yount was in charge of numerous suburban zones and also managed the NBA/Maverieks coverage, “one of the hottest beats at our newspaper.”

(Id.)

Yount received positive comments from his supervisor, Dennis Hall, in his 2003 performance review, noting

*279

Yount’s varied responsibilities and his development of “potential” in writers. (Pis.’ App. 0966-0967.) Plaintiffs point out that Defendants do not cite to a 2004 performance review. Plaintiffs claim that Yates’ ranking Yount as fifth out of five assigning editors establishes only that Yates targeted Yount.

Defendants reply that Plaintiffs do not dispute that TDMN downsized Yount’s sports assigning editor position. (Pis.’ Resp. at 199-201.) With respect to Plaintiffs’ attempt to discredit the reasons why Yount was one of the two assigning editors included in the RIF, Defendants assert that Defendants did not have the burden to substantiate these assertions, but to merely articulate them. (Defs’ Br. at 99.) It is well settled that at the “pretext” stage, Plaintiffs have the burden to affirmatively disprove Defendants’ reasons.

(Id.)

However, Plaintiffs introduce no evidence discrediting the reasons for Yount’s termination. (Pis.’ Resp. at 200.) For example, with respect to the criticism that editors had the impression Yount was not reading stories submitted by writers before passing them on, Plaintiffs argue that Yount was simply “following instructions to get copy quickly into the flow.” (Pis.’ Resp. at 200.) With respect to Plaintiffs’ claim Defendants “falsely state that Yount was ‘demoted’ in the 2001 reduction in force,” Yount conceded in his deposition that it was a demotion. (Yount Dep. at Defs.’ App. 2141:18-24.) Yount admitted that he had no reason to believe Yates discriminated against him based on his age; his age discrimination claim was merely based on his belief he was discriminated against, and not on any specific facts; he never heard anyone at TDMN make discriminatory remarks; there was no specific person who he believed discriminated against him based on age; and, after he was terminated, employees of TDMN contacted him about openings at TDMN on two separate occasions, both of which were within a year of the RIF. (Yount Dep. at Defs.’ App. 2159:9-13, 2161:13-2163:1, 2180:2-16, 2181:5-8, 2182:16-19.)

Conclusions Regarding Yount’s Claim

Plaintiffs have not provided substantial evidence to show that Defendants’ articulated reason for terminating Yount’s employment in the RIF was a pretext for age discrimination. Moreover, Plaintiffs have produced no evidence that age was the “but for” cause of his termination, as required under

Gross .

Accordingly, because Plaintiffs failed to discredit any of the reasons Defendants proffered for including Yount in the RIF, and failed to produce any evidence that age was the “but for” cause of his termination, as required under

Gross (id.

at 199-201), their claim that Yount was terminated because of his age fails as a matter of law. There is no genuine issue of material fact with respect to Yount’s claim. Defendants are entitled to summary judgment on Yount’s disparate treatment claim.

Jan Michael Hubbard

Defendants’ Nondiscriminatorg Reasons

Yates decided to eliminate Hubbard’s position because it was a “luxury,” one that was not essential to a future viable Sports Section. (Yates Dep. at Defs.’ App. 2031:24-2032:10.) Yates decided that the Morning Line column was not a critical part of the Sports Section.

(Id.

at Defs.’ App. 2032:21-2033:13.) At no time did Yates consider Hubbard’s age when deciding to eliminate his position. (Yates Aff. ¶ 9 at Defs.’ App. 3283.)

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Plaintiffs’ Claims of Pretext and Defendants’ Rebuttal

Plaintiffs assert that, contrary to Defendants’ assertion, Hubbard’s actual job title was “Special Writer” and he was the “Page Two” columnist. (Pis.’ App. 0296.) Plaintiffs claim that Defendants admit that a “Special Writer” “can be assigned to do a variety of things, including writing about a particular beat, writing feature stories, or writing specialty or analytical sports columns.” (Defs.’ Br. at 21-22.) Plaintiffs point to positive feedback on the column, from Hubbard’s supervisor, Gary Leavell, and from Yates. (Hubbard Dec. ¶¶ 11, 21 Pis.’ App. 3162-3163, 3164, 3167.) Plaintiffs rely on Hubbard’s claims that he read columns on page two of the Sports section that were similar to the “Morning Line” after his termination. However, Plaintiffs have no evidence that the writers of the new columns were employed by TDMN or that they were under age 40 at the time of the RIF. (Hubbard Dec. ¶¶ 6, 9, 26 and Exh. A, Pis.’ App. 3162, 3163, 3164; Pis.’ App. 1171.) Hubbard’s claim is based entirely on subjective beliefs. Purported facts based only on subjective beliefs are not competent summary judgment evidence, and the Court will not consider them.

See Grimes v. Texas Dept. of Mental Health and Mental Retardation,

102 F.3d 137, 139-140 (5th Cir.1996) (citing

Forsyth v. Barr,

19 F.3d 1527, 1533 (5th Cir.1994);

Douglass v. United Servs. Auto. Ass’n,

79 F.3d 1415, 1429 (5th Cir.1996) (en banc) (“[Cjonclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant’s burden.”);

Grizzle v. Travelers Health Network, Inc.,

14 F.3d 261, 268 (5th Cir.1994) (An employee’s self-serving generalized testimony stating her subjective belief that discrimination occurred “is simply insufficient to support a jury verdict in plaintiffs favor.”);

Krim v. BancTexas Group, Inc.,

989 F.2d 1435, 1449 (5th Cir.1993) (“Summary judgment, to be sure, may be appropriate, even in cases where elusive concepts such as motive or intent are at issue, ... if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.”) (citations omitted). In response to motions for summary judgment, it is therefore incumbent upon the nonmoving party to present evidence — not just conjecture and speculation — that the defendant retaliated and discriminated against plaintiff).

see also Webb v. Level 3 Communs., LLC,

167 Fed.Appx. 725, 733 (10th Cir.2006) (citing

Furr,

82 F.3d at 988 , when concluding “the fact that [the plaintiffs] responsibilities existed after the layoff is not evidence of discrimination.”). Hubbard’s testimony that he has no basis for his age discrimination claim other than his belief that age factored into the decision to terminate him in the RIF is undisputed. (Hubbard Dep. at Defs.’ App. 620:1-5, 623:21-624:2.)

Conclusions Regarding Hubbard’s Claim

Plaintiffs have not produced any evidence that the reasons for Hubbard’s termination are unworthy of credence and that age was the “but for” cause of Hubbard’s termination, as required under

Gross .

(Pis.’ Resp. at 201-02.) There are no genuine issues of material fact with respect to Hubbard’s claim. Accordingly, Defendants are entitled to summary judgment on Hubbard’s disparate treatment claim.

Gary Van West

Defendants’ Nondiscriminatory Reasons

Yates decided to terminate West’s employment. He eliminated West’s position as “Horse Racing Writer” because the demand for horse racing coverage had been declining for several years. Further, horse racing coverage was not essential to the future Sports Section. (Yates Aff. ¶ 10 at Defs.’ App. 3283.) At no time did Yates consider West’s age when deciding to eliminate his position.

(Id.

¶ 11 at Defs.’ App. 3283.)

Plaintiffs’ Claims of Pretext and Defendants’ Rebuttal

Plaintiffs contend that Yate’s assertion is false because West had never heard of the position “Horse Racing Writer.” He claims his position was “Special Writer,” the same job title as many other writers with varied duties and beats. West contends that he was assigned to cover the “beat” of horse racing, received good performance reviews throughout his employment, and in 2004 was rated as “Exceeds Expectations.” (West Dec. at ¶¶ 15, 16 Pis.’ App. 3224.) West avers that he wrote about nearly all sports while at TDMN on topics as varied as the Mavericks, Cowboys, Golden Gloves, soccer, senior track and field, and high school football. He claims he also wrote features (including about sports of the 1990s and the history of the Yale-Harvard football game), several book reviews, and twice wrote previews of the Academy Awards. West contends he covered these varied topics along with the horse racing beat. West claims his additional writings demonstrate that TDMN did not regard him as just a “Horse Racing Writer.” (West Dec. at ¶ 10, Pis.’ App. 3223.) The Court has previously noted that the evidence does not support Plaintiffs’ claim that Defendants created new job titles for purposes of eliminating employees during the RIF.

Plaintiffs argue that Defendants’ attempts to narrowly portray West’s role as “Horse Racing Writer” show that TDMN’s reasons for terminating him are false. Plaintiffs contend that the excuse of “reduced demand” for coverage of horse racing did not occur until after 2004; that West was assigned to cover the beat during its rise in popularity; and that this shows the strength of his skills. Also, TDMN’s plan for West, as articulated by Sports Editor Dwayne Bray, was to have him continue to cover the horse racing beat until the 2004 Breeders’ Cup World Thoroughbred Championships, and then to make him a Sports columnist. (West Dec. at ¶¶ 3, 4, Pis.’ App. 3220.) Instead, Yates terminated West three days before the

*282

Breeders’ Cup. After his termination, West covered the event for the

Fort Worth Star Telegram

and observed that TDMN sent Richard Durrett, Kevin Blackstone, and Eddie Seiko to cover the event. West contends he had significantly more experience and knowledge and was better prepared to cover the event than Durrett, Blackstone and Seiko. West declares that after a long history of insisting that horse racing was an important sports topic to cover, TDMN suddenly, three days before the Breeders’ Cup, determined that horse racing was not important as an area of coverage. (West Dec. at ¶¶ 2, 3, Pis.’ App. 3220.)

TDMN also asserts that it had “substantially reduced the space allotted to horse racing coverage” before the RIF. (Defs.’ Br. at 23.) The newspaper, and the sports section in particular, were shrinking, and TDMN had reduced the space allotted to almost everything except, perhaps, coverage of the Dallas Cowboys. West also observed through reading the paper that after the RIF, TDMN continued to cover the sport of horse racing in a weekly horse racing column, at least during the Lone Star season. West has observed TDMN reporters frequently at Lone Star park since 2004 to cover major races. TDMN also has continued to employ Rick Lee to provide the newspaper with picks for Lone Star’s races and a morning line. West contends he was well qualified to do all of these jobs. (West Dec. at ¶¶3, 5, Pis.’ App. 3220-3221.)

Plaintiffs point out that sports writers at TDMN frequently changed assignments and beats. Tim Cowlishaw, for example, changed from football to the hockey beat. Kevin Blackstone was not in the Sports Department before becoming a sports columnist. West asserts that TDMN did not emphasize a person’s familiarity with a particular sport when making assignments. For example, in 2000, West was asked to cover the fifth game of the Stanley Cup Finals, although at that time he had no experience covering hockey. Dave Smith, the Sports Editor who preceded Yates, stated in West’s annual evaluations that TDMN did not intend to confine his beat to horse racing. Smith told West that, if he was a columnist, “you’d be one of our best columnists ... and if you were a features writer, you’d be one of our best features writers.” In April or May 2004, Bray met with West and confirmed that TDMN plan was for West to become a general sports columnist after the Breeders’ Cup. That was West’s goal and his expectation at the time he was terminated. Instead, TDMN terminated both West and Hubbard and permitted two younger writers, Todd Davis and Steve Davis, to write columns after the RIF. Bray, in fact, met with West after the RIF and informed him he had not agreed with the decision to terminate him. (West. Dec. at ¶¶ 6-9, 12, 29, Pis.’ App. 3221-3223, 3227.) Plaintiffs contend that these facts contradict Defendants’ assertion that West’s position as “Horse Racing Writer” was eliminated and that West was not “qualified to assume a remaining position.” However, in his deposition, West admitted his position was eliminated in the RIF, and that “TDMN did not hire anyone specifically to cover horse racing” at any time following the RIF. (West Dep. at Defs.’ App. 1851:13-22.) West’s Declaration now disputes the fact that TDMN eliminated West’s position in the RIF. (Pis.’ Resp. at 202.) West’s Declaration, to the extent that it conflicts with his deposition testimony, is a sham affidavit and is not admissible.

See S.W.S. Erectors,

72 F.3d at 496 . Plaintiffs clearly failed to introduce evidence sufficient to rebut Defendants’ assertions. Plaintiffs’ arguments about West’s title are irrelevant because West admits he spent the vast majority of his time writing about horse

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racing, a beat no one else covered. (West Dep. at Defs.’ App. 1839:25, 1851:4-8.) Plaintiffs likewise concede that being a “horse-racing journalist” was West’s “primary responsibility as an employee.” (Pis.’ Resp. at 26.) Clearly, there is no dispute that West was the only employee whose job duties principally consisted of writing about horse racing, and his termination in the RIF resulted from the elimination of his position because of a reduction in horse racing coverage. Plaintiffs do not contend that the demand for horse racing coverage did not begin to decline before the RIF, just that most of the slippage in demand was later. (Pis.’ Resp. at 202) (citing West Dec. ¶¶ 3^1 at Pis.’ App. 3220.) Yates affirmed that the demand for horse racing coverage had dramatically declined in the years leading up to the RIF. (Yates Aff. ¶ 10 at Defs.’ App. 3283.) Irrespective of whether the decline was “dramatic,” or had only just begun— as West contends — the parties are in agreement that demand began to decline before the RIF, and has continued to decline.

Plaintiffs next argue that TDMN sent three writers to cover the Breeders’ Cup. (Pis.’ Resp. at 203) (citing West Dec. ¶¶ 2-3 at Pis.’ App. 3220.) However, Yates noted that TDMN ran occasional horse racing stories following the RIF. (Yates Aff. ¶ 10 at Defs.’ App. 3283.) TDMN’s sending some reporters (whose primary responsibility was not horse racing) to cover the Breeders’ Cup after it eliminated West’s position in the RIF, does not show that the reasons for terminating West were pretextual. Moreover, Plaintiffs do not assert these reporters were under forty, or even younger than West.

(See

Pis.’ Resp. at 203.) Plaintiffs admit there were cutbacks in the amount of space allotted to horse racing before the RIF, but contend the entire newspaper, especially the Sports Section, was experiencing cutbacks.

(Id.)

(citing West Dec. ¶¶3, 5 at Pis.’ App. 3220-21.) This directly conflicts with West’s deposition testimony, in which he testified that cutbacks in coverage in 2004 were “mainly a reduction in space allotted to horse racing.” (West Dep. at Defs.’ App. 1847:2-6.) West provides no testimony in his deposition that the entire newspaper, or the Sports Section in particular, had downsized prior to the RIF, or that any other parts of the paper were downsizing. Furthermore, Plaintiffs do not claim other parts of TDMN suffered cutbacks of the same magnitude as horse racing, but merely allege they also suffered cutbacks at “some” level.

(See

Pis.’ Resp. at 203.) Plaintiffs contend that following the RIF, TDMN continued to cover horse racing.

(Id.)

In support, they rely on West’s Declaration, in which he claims to have observed reporters from TDMN at Lone Star Park “since 2004 to cover major races.”

(Id.)

(citing West Dec. ¶¶ 3, 5 at Pis.’ App. 3220-21.) Defendants do not dispute that TDMN continues to run an occasional horse racing story, including “major races.” (Yates Aff. ¶ 10 at Defs.’ App. 3283.) This fact does not contradict the fact that TDMN eliminated West’s position of a full-time Horse Racing Writer, and has not replaced him since the RIF— both of which West admits. Plaintiffs also contend that TDMN “has continued to employ Rick Lee to provide the newspaper with picks for Lone Star’s races and a morning line.” (Pis.’ Resp. at 203.) West admitted that Rick Lee is only a part-time employee. (West Dep. at Defs.' App. 1876:6-10.) Additionally, Rick Lee was employed as a part-time handicapper before the RIF. (Yates Dep. at Defs.’ App. 2037-38.) Given West’s testimony that TDMN has not replaced him since the RIF

(see

West Dep. at Defs.’ App. 1851:19-22), the allegation that TDMN still has a part-time employee predicting the

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winners of local horse races does not discredit Defendants’ reasons for terminating West in the RIF. Even if Plaintiffs could demonstrate that other employees of TDMN absorbed some of West’s duties following the RIF, this would not constitute evidence of pretext. “[A] company is under no obligation to eliminate all the job duties handled by an individual in a given position when the company eliminates the position.”

Tucker,

462 F.Supp.2d at 728 n. 5. Accordingly, given the undisputed fact that TDMN eliminated West’s position in the RIF and has not replaced him, the allegations that various other employees perform some of the same duties as West are completely irrelevant to the issue of whether the elimination of his position was a pretext for age discrimination. In sum, Plaintiffs have not introduced “substantial” evidence discrediting the reasons Defendants proffered for including West in the RIF. Nor have Plaintiffs produced any evidence that age was the “but for” cause of his termination, as required under

Gross. (See

Pis.’ Resp. at 202-04.) Additionally, West testified at his deposition that Yates never did anything to make West think that Yates’ personal animosity towards him was based on his age; no one ever made discriminatory comments towards him; he is not aware of anything in writing demonstrating age discrimination; and he does not believe anyone other than Yates discriminated against him based on age. (West Dep. at Defs.’ App. 1877:16-1878:1,1884:4-6,1884:13-20.)

Conclusions Regarding West’s Claim

West fails to raise a genuine issue of material fact concerning TDMN’s reasons for terminating him. West presents no competent summary judgment evidence that shows age was the “but for” reason that TDMN terminated him. There is no genuine issue of material fact with respect to West’s claim. Accordingly, Defendants are entitled to summary judgment on West’s disparate treatment claim in Count Four.

Garg Stratton

Defendants’ Nondiscriminatorg Reasons

Jarrett Rush (“Rush”) recommended Stratton for termination in the RIF because TDMN downsized his position of copy editor on the Suburban News Desk. On performance reviews, Stratton ranked last behind the other layout editors in multiple performance-related categories which included productivity, adaptability, and versatility. Additionally, Rush had to make more revisions to Stratton’s work than to the other two layout editors with whom Rush compared him. (Rush Dep. at Defs.’ App. 1405:17-1406:8.) Rush never took Stratton’s age into account when deciding to terminate him in the RIF.

(Id.

at Defs.’ App. 1406:15-18; Rush Aff. ¶ 4 at Defs.’ App. 2880.)

Plaintiffs’ Claims of Pretext and Defendants’ Rebuttal

Plaintiffs contend that Rush became Stratton’s supervisor “sometime” in 2004 and supervised him for only a short time before the RIF. (Defs.’ Br. at 23; Rush Dep., Pis.’ App. 1956.) They also note that Rush acknowledged that all three employees had received the same performance rating, “meets expectations.” (Rush Dep., Pis.’ App. 1956-1957.)

Plaintiffs assert that Defendants’ claim that Stratton’s productivity was “much less” than the other layout editors because he completed only one “section” a day, compared to one-and-one-half to two sections by the two comparators is false. (Defs.’ Br. at 24.) Plaintiffs claim that Defendants fail to specify the sections, covers, or specific days to which they refer. (Stratton Dep., Pis.’ App. 2205.) Nevertheless, they contend Stratton testified that he averaged building one to one-and-

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one-half “covers” (front pages) a day, depending on the section. (Stratton Dep., Pis.’ App. 2205-2206.)

Plaintiffs also label as false Defendants’ assertion that Stratton was not “versatile” because he was unable to switch back and forth between “multiple” sections on a given day. (Rush. Dep., Pis.’ App. 1955; Rush Dep., Pis.’ App. 1974.) Plaintiffs assert that Stratton switched between “two” sections to complete one-and-one-half covers, and that he assisted others in finishing their sections. (Stratton Dec. at ¶ 1, Pis.’ App. 3209.) Plaintiffs allege that Defendants provide no documentation to support their conclusory assertions that Stratton was less productive than the other two editors and point out that Stratton rarely missed deadlines and was consistently on time with all his sections even when others on the desk missed theirs. Stratton claims he assisted others (including Jennifer Robles) in making deadline and points out that other designers often had problems with Robles’ sections. (Stratton Dec. at ¶ 1, Pis.’ App. 3209.)

Plaintiffs assert as false Defendants’ claim that Stratton ranked third in “adaptability” because he “struggled learning CCI,” a pagination system which allows the editor to lay out pages on a computer. (Stratton Dep., Pis.’ App. 2203; Rush Dep., Pis.’ App. 1973.) They claim Stratton flatly denied that he “continued to struggle with certain aspects of CCI” until he was terminated. (Defs.’ App. 1599; Stratton Dep., Pis.’ App. 2204.) They point out Stratton’s contention that: (1) like his colleagues, he learned the CCI system when TDMN began using it; (2) almost everyone on the zone desk had occasional trouble with building charts on the CCI system; and (3) he took a course in building charts and had no further problem before Rush became his supervisor. (Stratton Dec. at ¶ 2, Pis.’ App. 3209.)

Plaintiffs also label as false Defendants’ assertion that Rush had to make more revisions to Stratton’s work than to the other two layout editors but Rush “tweaked things” for all the editors. (Defs.’ App. 1406, Rush Dep., Pis.’ App. 1974-1975.) Rush testified in his Affidavit that “ultimately, [he] decided to terminate Gary Stratton.” (Defs.’ App. 2880, Rush Aff. at ¶ 3.) Plaintiffs contend that these facts establish that Rush targeted Stratton based on false allegations.

Defendants note that Plaintiffs do not dispute that TDMN downsized Stratton’s position, or that Stratton was by far the weakest of the three layout editors. (Pis.’ Resp. at 212-14.) With respect to Plaintiffs challenge to Defendants contention that Stratton’s productivity was lower than the other layout editors, Defendants point out that Stratton admitted he did not know how many covers the other layout editors averaged per day. (Stratton Dep. at Defs.’ App. 1600:14-1601:7.) Therefore, he cannot make a comparison. Rush’s undisputed testimony is that “there were days where one layout editor would build two sections,” whereas Stratton “could [only] do one section a day.” (Rush Dep. at Pis.’ App. 1955,1974.)

Defendants contend that Plaintiffs misconstrue Defendants’ argument and evidence with respect to versatility. Defendants state they never claimed that the other layout editors worked on “more than two sections” each day, but only argued that they worked on “multiple” sections per day. Plaintiffs’ assertion that Defendants failed to prove any editor worked on more than two sections is baseless, as well as irrelevant. Plaintiffs rely on Stratton’s Declaration. However, Stratton’s Declaration conflicts with his deposition testimony which indicates that Stratton lacked personal knowledge with respect to the other layout editors’ work or productivity. Ac

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cordingly, his testimony is not admissible under the sham affidavit doctrine.

Defendants contend that Plaintiffs do not dispute that Stratton had more difficulties with CCI than the other layout editors, or assert the other layout editors experienced difficulties with CCI. (Pis.’ Resp. at 213-14.) Rather, Plaintiffs simply deny that Stratton continued to struggle with “building charts” in CCI at the time of his termination, even though he testified that, up until the time he was let go, “[s]ome aspects [of CCI] were a little bit more difficult than others.” (Stratton Dep. at Defs’. App. 1598:11-1599:6.) Rush unequivocally testified that Stratton had more troubles with CCI than the other two layout editors. (Rush Dep. at Defs.’ App. 1403:19-1404:20.) Irrespective of the precise level or type of difficulties Stratton faced with respect to CCI at the time of the RIF, Rush, the decision-maker, perceived that he had more problems with CCI than his colleagues. The record does not show that Rush’s perception regarding CCI problems was a pretext for discrimination.

Finally, Defendants assert that Plaintiffs have failed to disprove that, of the three layout editors, Rush had to “tweak” — or revise — Stratton’s work far more often. (Rush Dep. at Defs.’ App. 1406:1-8.) Plaintiffs’ allegations that Rush sometimes revised the work of the other layout editors does not negate the fact that Rush had to make revisions to Stratton’s work much more frequently than he did to the others’ work. Thus, Plaintiffs have failed to discredit the assertion that Rush had to more frequently revise Stratton’s work as compared to the other layout editors.

Stratton testified he did not know of any actions taken by Rush that were indicative of age discrimination; he was not aware of a specific person at TDMN ever discriminating against him on the basis of his age; and, he was not aware of any written documents demonstrating age discrimination against him by Defendants. (Stratton Dep. at Defs.’ App. 1590:24-1591:1, 1618:21-1619:10.)

Conclusions Regarding Stratton’s Claim

Plaintiffs have not offered “substantial” evidence proving that any of the reasons offered by Defendants for Stratton’s inclusion in the RIF are unworthy of credence. Nor have Plaintiffs produced any evidence that age was the “but for” cause of his termination, as required under

Gross .

To the contrary, most of Stratton’s testimony regarding the absence of age discrimination at TDMN remains undisputed. There are no genuine issues of material fact with respect to Stratton’s claim. Accordingly, Defendants are entitled to summary judgment on Stratton’s disparate treatment claim in Count Four.

Ewina H. Schumacher

Defendants’ Nondiscriminatory Reasons

James Yaws selected Schumacher for termination in the RIF because TDMN downsized her position of Lead Data Control Analyst, and because the only other Lead Data Control Analyst — Lafreda Bung (“King”) — received higher overall ratings than Schumacher in each of the three years prior to the RIF. Yaws concluded that it would have been very difficult for him to justify terminating King in favor of Schumacher in light of King’s consistently higher ratings on these evaluations. (Yaws Dep. at Defs.’ App. 2120:9-20.) Yaws did not consider Schumacher’s age when deciding to recommend her for termination in the RIF.

(Id.

at Defs.’ App. 2121:14-20.)

Plaintiffs’ Claims of Pretext and Defendants’ Rebuttal

Plaintiffs contend that Yaws showed age bias in Schumacher’s reviews. They cite

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as an example, Yaws’ statement that Schumacher “sometimes allows history to cloud her present interactions with others.” (2003 Schumacher Performance Evaluation at Defs.’ App. 1477.) Plaintiffs contend that Schumacher was employed by TDMN for 16 years before Yaws was hired, and she received solid reviews and promotions. Plaintiffs further argue that Schumacher had more experience than King in computer mainframe, the scheduling and running of jobs, and writing programs, together with many years of CA7 background, as well as computer programming background. Schumacher alleges that Brian Bush, another manager in the IT Department where Schumacher worked, told her to “double cheek” King’s work to ensure that her schedules and jobs were set up correctly. Schumacher claims that she did so on a regular basis, and that she would not have been asked to review King’s work unless she was better qualified. Plaintiffs argue that Defendants ignore the positive aspects of Schumacher’s extensive history but cite an incident that occurred in 2001 as a reason for her termination. Plaintiffs contend that these facts, and Defendants’ assertion that Yaws gave higher performance ratings to an employee Schumacher was asked to oversee, establish pretext.

Defendants contend that Plaintiffs fail to dispute that Yaws selected Schumacher for termination in the RIF because: (1) TDMN downsized her position of Lead Data Control Analyst; (2) the only other person in this position — King—received higher overall ratings than Schumacher in each of the three years preceding the RIF; and (3) Schumacher received a written warning during the three years preceding the RIF, whereas King did not. (Defs.’ Br. at 27-28, 116.) Defendants point out that, instead, Plaintiffs argue — without substantiation — (1) that James Yaws “showed age bias in Schumacher’s reviews,” (2) that Schumacher had more experience than King, and (3) that another manager in the IT Department purportedly told Schumacher to double check King’s work. Defendants urge that Plaintiffs cite no evidence in support of any of these contentions. With respect to the unsubstantiated claim that Yaws showed age bias in Schumacher’s reviews, Plaintiffs ignore the fact that in 2004 — the year of the RIF — Bush, who was responsible for rating both King and Schumacher, gave King a higher overall evaluation than Schumacher. (Defs.’ Br. at 153.) According to Defendants, even if Yaws had shown age bias in performing the annual performance reviews of Schumacher, the evidence demonstrates that Bush — about whom Schumacher had nothing negative to say — similarly rated Schumacher lower than King.

Defendants point out that the only example Plaintiffs provide of Yaws’ purported age bias is a statement he made in Schumacher’s 2003 Performance Appraisal, that Schumacher “sometimes allows history to cloud her present interactions with others.” (Pis.’ Resp. at 225; 2003 Schumacher Performance Evaluation at Defs.’ App. 1477.) For an age-related comment to be probative of age discrimination, Plaintiffs must show that the comments were: (1) age-related; (2) proximate in time to the termination; (3) made by an individual with authority over the termination, or someone in a position to influence the termination decision; and (4) related to the challenged employment decision.

See Palasota,

342 F.3d at 576-78 . Plaintiffs wholly fail to explain how this statement by Yaws is age-related. (Pis.’ Resp. at 225.) Furthermore, because Yaws wrote this in Schumacher’s February 14, 2003 Performance Appraisal — over a year-and-a-half before the RIF — any connection to Schumacher’s termination is remote. (2003 Schumacher Performance Evaluation at Defs.’ App. 1477.) Defen

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dants point out that Plaintiffs also fail to explain how this statement is related to Yaws’ decision to terminate Schumacher, particularly given that Yaws made no mention of this criticism in his RIF evaluation of Schumacher. (Schumacher RIF Form at Defs.’ App. at 2131-33.) Defendants conclude that Yaws’ purportedly age-related comment about Schumacher does not demonstrate age bias.

Defendants contend that Plaintiffs fail to clarify how Schumacher’s supposedly greater CA7 experience disproves the fact that Schumacher received lower overall ratings than King in each of the three years prior to the RIF, Yaws’ primary consideration in ranking Schumacher lower than King. Defendants assert that Schumacher admitted that before the RIF, TDMN planned to phase out the CA7 computer program. (Schumacher Dep. at Defs.’ App. 1441:24-1442:16.) Defendants further contend that Schumacher’s allegedly greater knowledge of an antiquated computer system that would soon be obsolete does not show that Schumacher had more relevant experience than King.

Defendants point out that Plaintiffs cite no evidence to support the contention that Bush asked Schumacher to “double check” King’s work and that this unsubstantiated allegation conflicts with the undisputed fact that Bush rated King as “Exceeds Expectations” in 2004, whereas he rated Schumacher as “Meets Expectations.” Taking as true the fact that Bush requested Schumacher review King’s work, this fact was not Yaws’ primary consideration in selecting Schumacher for termination. Yaws relied on the fact that Schumacher received lower overall evaluations than King in each of the three years leading up to the RIF. (Yaws Dep. at Defs.’ App. 2110:1-7.)

Defendants conclude that: (1) Plaintiffs have not offered “substantial” evidence discrediting any of the reasons offered by Defendants for Schumacher’s inclusion in the RIF; (2) Plaintiffs have not produced any evidence that age was the ‘but for’ cause of her termination, as required under

Gross .

Defendants urge that Schumacher’s disparate treatment claim in Count Four must fail as a matter of law.

Conclusions Regarding Schumacher’s Claim

Plaintiffs have not shown that Schumacher was more qualified than King or that Defendants’ reasons for her termination are false. Plaintiffs have not offered “substantial” evidence proving that any of the reasons offered by Defendants for Schumacher’s inclusion in the RIF are unworthy of credence. Plaintiffs have not produced any evidence that age was the “but for” cause of Schumacher’s termination, as required under

Gross .

To the contrary, most of Schumacher’s testimony regarding the absence of age discrimination at TDMN remains undisputed. There are no genuine issues of material fact with respect to Schumacher’s claim. Accordingly, Defendants are entitled to summary judgment on Schumacher’s disparate treatment claim in Count Four.

Paulette Ladach

Defendants’ Nondiscriminatory Reasons

Curtis Jones terminated Ladach in the RIF because: (1) TDMN consolidated her position with another position in the Circulation Department; (2) she had the narrowest scope of work among the employees Jones supervised, the lowest overall performance, and the least versatility; (3) she agitated and alienated her coworkers; (4) she failed to follow established procedures; (5) she jeopardized relationships with clients; (6) she failed to complete projects in a timely manner; (7) she lacked effective communication skills; and (8) the year of the RIF, she received a lower

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overall rating on her performance evaluation than her comparator. At no point did Jones consider Ladach’s age when recommending her for termination in the RIF. (Jones Dep. at Defs.’ App. 689:18-23.)

Plaintiffs’ Claims of Pretext and Defendants’ Rebuttal

Plaintiffs contend that: (1) Ladach’s title was Acquisition/Retention Coordinator, not Direct Mail Coordinator; (2) she received only one review, her 2003 Review, which was “exceeds expectations,” but which routinely included goals for improvement; (3) her performance was not “inconsistent”; and (4) contrary to Defendants’ assertions, her primary job duty, managing direct mail and insert programs, did not change. Plaintiffs argue that Defendants fail to state how Utz was better qualified than Ladach, but even if Defendants’ assertions are true, the two positions were not comparable. Plaintiffs contend that Utz was an hourly employee performing clerical duties, whereas Ladach was a salaried employee overseeing programs. (Ladach Dec. at ¶ 5, Pis.’ App. 3176-3177.) Plaintiffs claim that Jones never conducted a formal evaluation of Ladach in 2004, although she requested one. Plaintiffs assert that Jones told Ladach that he had sent her review to the HR Department, but HR said it had not received the review. Plaintiffs contend that Jones’ refusal to review Ladach in 2004 despite her requests, and his post hoc “laundry list” of purported deficiencies, establish that Jones’ stated reasons for terminating Ladach are false.

Plaintiffs argue that Defendants’ assertion that they evaluated Ladach for “flexibility” establishes that they actually based the evaluation on an age-biased criterion. (Defs.’ Br. at 116.) However, this Court has found that the fact that RIF decision-makers considered traits such as “versatility” and “flexibility” does not constitute direct evidence of age discrimination. Plaintiffs have given the Court no reasonable basis to infer that Ladaeh’s lack of flexibility establishes that they based the evaluation on an age-biased criterion.

Defendants contend that Plaintiffs do not dispute that TDMN consolidated Ladach’s position; she had the narrowest scope of work or the least versatility; she had problems getting along with coworkers; she failed to follow procedures; she jeopardized client relationships; she failed to complete projects in a timely manner; or she lacked effective communication skills. Instead, Plaintiffs merely dispute that Ladach’s performance was inferior to her comparator, Utz, and that she received a lower overall rating on her performance appraisal the year of the RIF. (Pis.’ Resp. at 224.) Defendants state that Plaintiffs claim “Defendants make several misstatements of fact,” asserting that “Ladach’s title was Acquisition/Retention Coordinator, not Direct Mail Coordinator,” and that Ladach “received only one review,” in 2003.

(Id.)

(incorrectly citing Ladach Dec. ¶ 5 at Pis.’ App. 3176-77.) According to Defendants, in her Declaration, Ladach merely averred she “believed [her] title was Acquisition/Retention Coordinator.” (Ladach Dec. ¶ 1 at Pis.’ App. 3176.) An affirmation in a declaration that one “believes” a certain statement to be true is not competent summary judgment evidence.

de la O v. Hous. Auth.,

417 F.3d 495, 502 (5th Cir.2005) (“statements made on information and belief do not constitute proper summary judgment evidence”)

See Bolen v. Dengel,

340 F.3d 300, 313 (5th Cir.2003). Moreover, Ladach did not definitively state she only received a performance appraisal in 2003, but merely declared she had “no recollection of receiving a performance review for the year 2002.”

(Id.

¶3 at Pis.’ App. 3176) This statement does not satisfy the requirement

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of Rule 56(e). Ladach further admitted that Jones told her that he had sent her 2004 performance review to the HR Department, even though he did not formally review it with her pursuant to the normal procedure.

(Id.

¶4 at Pis.’ App. 3176.) Although Jones may not have gone over Ladach’s 2004 evaluation with her, the undisputed evidence demonstrates that he did perform such an evaluation. (Ladach RIF Form at Defs.’ App. 698-99.) Accordingly, as Defendants have shown, they did not misstate either of these facts. Defendants assert that Ladach’s title at the time of the RIF is irrelevant, given the fact that when Jones compared Ladach’s performance to Utz, Utz was superior. Jones found Ladach’s overall performance to be lacking when he considered such factors as her inability to get along with coworkers, her tendency to jeopardize client relationships, her time management problems, and her ineffective communication skills.

Defendants show that they did not mistakenly “claim that [Ladach’s] supervisor, Davi Gray, noted she needed to improve certain skills” in her 2003 performance review. Even though Ladach received an overall rating of “Exceeds Expectations,” Ladach’s 2003 review clearly states that she needed to improve her people skills and time management. (2003 Ladach Performance Evaluation at Defs.’ App. 901-902.) Jones noted in Ladach’s RIF evaluation the fact that at the time of her 2003 review, she had a different supervis

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