Skelton v. Sara Lee Corp.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 07a0708n.06

Filed: October 3, 2007

No. 06-4234

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RONALD D. SKELTON, )

)

Plaintiff-Appellant, ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

v. ) COURT FOR THE SOUTHERN

) DISTRICT OF OHIO

SARA LEE CORPORATION, )

)

Defendant-Appellee. )

_______________________________________)

OPINION

Before: BATCHELDER, GRIFFIN, Circuit Judges; ACKERMAN, District Judge.*

HAROLD A. ACKERMAN, District Judge.

After Sara Lee Corporation discharged Ronald Skelton in a reduction in force, Skelton

alleged age discrimination in violation of Ohio and federal law. Skelton appeals from the

District Court’s grant of summary judgment in favor of Sara Lee Corporation. Because Skelton

has not satisfied the third stage of the McDonnell Douglas burden-shifting framework, we

AFFIRM.

*

The Honorable Harold A. Ackerman, Senior United States District Judge for the District

of New Jersey, sitting by designation.

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I.

Plaintiff-Appellant Ronald D. Skelton began working for Defendant-Appellee Sara Lee

Corporation in 1979. In January 1985, Skelton became a load planner (hereinafter “Planner”)

within Defendant’s Transportation Department, a position he held until the effective termination

of his position on February 28, 2003. At the time of the termination of his position, Skelton was

46 years old. He now appeals the District Court’s grant of summary judgment in favor of

Defendant on his claims for age discrimination in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and Ohio’s age discrimination statute,

Ohio Revised Code Chapter 4112.

Defendant manufactures and markets numerous brand-name food products, such as

Hillshire Farms, Sara Lee, Jimmy Dean, and Ballpark. Defendant’s Transportation Department

is responsible for distributing products from the several production facilities where products are

made to a handful of regional warehousing and distribution facilities, or “mixing centers.” From

these mixing centers, combinations of products are loaded onto trucks for shipments to

customers. As a Planner, Skelton was primarily responsible for “building loads,” i.e., selecting

the carrier for each shipment and the most efficient arrangement of orders on the trucks to ensure

the lowest possible costs to customers. Planners are responsible for dealing with frequent carrier

problems, miscommunications, and other complications.

Prior to 2000, Defendant did not operate centralized mixing centers. Defendant’s nine

primary brands operated as independent companies, each with its own Planners located at the

various production facilities who managed the transportation of products directly from the

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production facilities to the customers. In an apparent effort to improve efficiency and increase

customer satisfaction, Defendant made drastic changes to its business model in the beginning of

2000, including the creation of five regional mixing centers. During this reorganization,

Defendant also centralized all of its Planners by moving them to the Spring Grove, Ohio, facility.

From Spring Grove, Planners would remotely manage the transportation of products from the

five regional mixing centers to grocery stores. As a result of the reorganization, the Planner

positions that existed at Defendant’s production facilities were eliminated, and many Planners

were laid off. Defendant also hired several new Planners during the first half of 2002 to operate

the newly centralized Spring Grove facility. Skelton was not laid off at this time because he had

already been working as a Planner in Spring Grove. Thus, Skelton began working in the new,

centralized, Transportation Department.

Defendant soon learned that the centralization of its transportation functions was not

successful. Apparently, Planners had greater difficulty dealing with day-to-day transportation

problems by phone or email from Spring Grove, as compared with operating on-site. Thus, in

the Fall of 2002, Defendant decided to decentralize load planning by relocating the Planners to

the five mixing centers. At that time, Defendant employed seventeen Planners at the Spring

Grove facility; thus, several positions needed to be eliminated at the Spring Grove facility.

In early October 2002, Larry Rogers, Vice President of Transportation, discussed the plan

to decentralize the load planning function with Phil Lower, Russ Gibson and Joyce Humphrey.

Lower, a consultant hired to address problems in the department, had worked directly with

several of the Planners in Spring Grove in the preceding months. Gibson and Humphrey were

managers who directly supervised the Planners, including Skelton. On October 7, 2002, Rogers

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and Monica Mehta, Defendant’s Human Resource Manger, met with the entire department,

including the Planners, to inform them of the decision to decentralize. Rogers explained that

several Planner positions would be eliminated in Spring Grove and new Planners would be hired

in the regional mixing centers. Rogers announced that the Planners would be required to

interview for the positions that would remain in Spring Grove and that those Planners who were

not retained could apply for the positions being created at the mixing centers.

The following week, Rogers and Humphrey interviewed every Planner, including

Skelton. Rogers, Humphrey, and Lowers met after the interviews to discuss their initial

impressions. Apparently, Gibson elected not to participate actively in the Planner selection

process because he had previously been informed that his own position was going to be

eliminated. Nevertheless, Gibson did provide to Humphrey some input on the Planners, which

apparently was considered in the final analysis. When Rogers, Humphrey, and Lowers met

again, they created a forced ranking of the Planners. Allegedly, the stated goal of the ranking

was to identify the Planners willing to: (1) devote the greatest amount of time and effort to their

jobs; (2) go beyond their regular duties; and (3) work hours in excess of their regular workday.

With these criteria in mind, the seventeen Planners were ranked: Skelton ranked eleventh and

was selected for termination. On October 18, 2002, Skelton was informed that he would be

terminated from his position effective February 28, 2003.

On April 16, 2003, Skelton filed his Complaint, asserting claims for age discrimination in

violation of the ADEA and O.R.C. §§ 4112.02 and 4112.99.1 The District Court granted

1

In the District Court, Skelton also asserted a claim for violation of Ohio public policy.

Skelton, however, does not raise this issue on appeal.

4

summary judgment on July 31, 2006, in favor of Defendant on all of Skelton’s claims. (J.A. at

117, Dist. Ct. Op. at 12; see also Skelton v. Sara Lee Corp., No. 03-276, 2006 WL 2165710, at

*6 (S.D. Ohio, July 31, 2006).) Skelton timely filed his Notice of Appeal with this Court on

August 24, 2006.2

II.

A. Standard of Review

This Court reviews de novo the District Court’s grant of summary judgment. Briscoe v.

Fine, 444 F.3d 478, 485 (6th Cir. 2006). A motion for summary judgment may be granted “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When faced with a

summary judgment motion, a district court must view all evidence and the inferences to be drawn

therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); Churchwell v. Bluegrass Marine, Inc., 444 F.3d

898, 903 (6th Cir. 2006). The critical inquiry for a district court is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251–52 (1986).

B. Evidence of Age Discrimination

2

The District Court had subject matter jurisdiction over Skelton’s federal claims pursuant

to 28 U.S.C. § 1331, and supplemental jurisdiction over Skelton’s state claims under 28 U.S.C. §

1367. This Court has appellate jurisdiction to review the District Court’s final order pursuant to

28 U.S.C. § 1291.

5

Under the ADEA, employers are prohibited from discriminating “against any individual

with respect to his compensation, terms, conditions, or privileges of employment, because of

such individual’s age.” 29 U.S.C. § 623(a); Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,

141 (2000) (noting that a “plaintiff’s age must have actually played a role in the employer’s

decisionmaking process and had a determinative influence on the outcome”) (citation and

quotation marks omitted). An employee may establish a claim under the ADEA by offering

either direct or circumstantial evidence of age discrimination. Wexler v. White’s Fine Furniture,

Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc). Direct evidence of age discrimination is “that

evidence, [which] if believed, requires the conclusion that unlawful discrimination was at least a

motivating factor in the employer’s actions.” Id. (quoting Jacklyn v. Schering-Plough

Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)); Rallins v. Ohio State Univ.,

191 F. Supp. 2d 920, 928 (S.D. Ohio 2002) (“Direct evidence exists only where the unlawful

discrimination is patent; it requires no inference of discrimination.”). “Circumstantial evidence,

on the other hand, is proof that does not on its face establish discriminatory animus, but does

allow a factfinder to draw a reasonable inference that discrimination occurred.” Wexler, 317 F.3d

at 570 (citation omitted).

1. Direct Evidence

At the outset, we consider whether Skelton offered any direct evidence of age

discrimination. See id.; see also Peyton v. Kellermeyer Co., 115 F. App’x 825, 829 n.1 (6th Cir.

2004) (“The dividing line between ‘direct’ and ‘circumstantial’ evidence is murky at best.

‘Direct evidence’ . . . has often been defined as evidence which, if believed, suffices to prove a

fact at issue ‘without inference or presumption.’”) (citations omitted). Where a plaintiff

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“succeeds in presenting direct evidence of a discriminatory motive, the burden [of production and

persuasion] shifts to the employer to prove by a preponderance of the evidence that it would have

made the same decision absent the impermissible motive.” Minadeo v. ICI Paints, 398 F.3d 751,

763 (6th Cir. 2005) (citation and quotation marks omitted).

Skelton’s only purported direct evidence of age discrimination is that he “was repeatedly

subjected to comments by his supervisor Russ Gibson to the effect that ‘Ron [Skelton] has been

around since Christ was a baby.’” (Pl.’s Br. at 13.) Defendant counters that there exists no

evidence that Gibson made any such comment on more than one occasion. Indeed, the District

Court suggested that Gibson made this statement on a single occasion sometime in 2002, and

concluded that this statement did not qualify as direct evidence of age discrimination in

accordance with this Court’s precedent. Specifically, the District Court noted that “a reasonable

trier of fact could believe Mr. Gibson made this statement and still conclude Defendant’s

termination of Plaintiff’s employment was lawful.” (J.A. at 112, Dist. Ct. Op. at 7 (emphasis

added) (citing Peyton, 115 F. App’x at 829 (“In our view, a reasonable trier of fact could believe

this testimony and still conclude that [the employee’s] discharge was lawful; accordingly, the

testimony does not meet the Sixth Circuit’s ‘direct evidence’ test.”)).)

Taking all inferences in the light most favorable to Skelton, we assume for the purposes

of this appeal that Gibson made this comment and that he did so on multiple occasions. This

Court has previously stated that statements allegedly showing an employer’s age bias are to be

evaluated by considering four factors:

(1) whether the statements were made by a decision-maker or by an

agent within the scope of his employment; (2) whether the statements

were related to the decision-making process; (3) whether the

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statements were more than merely vague, ambiguous or isolated

remarks; and (4) whether they were made proximate in time to the act

of termination.

Peters v. Lincoln Elec. Co., 285 F.3d 456, 477-78 (6th Cir. 2002) (noting that “none of these

factors is individually dispositive of age discrimination, but rather, they must be evaluated as a

whole, taking all of the circumstances into account”) (citation omitted). Skelton fails to assert

that Gibson’s statement satisfies any of these four factors. In fact, Skelton fails to address these

factors at all. Nevertheless, even a brief examination of Gibson’s statement in relation to these

factors reveals that the District Court did not err in dismissing Skelton’s alleged direct evidence

of age discrimination.

Although he was a supervisor of the Planners, including Skelton, Gibson’s influence in

determining which Planners to terminate was limited. Prior to the Planners’ interviews, Gibson

himself was notified that his position would be eliminated. Thus, Gibson refused to be involved

directly in the process of selecting which Planners were to be fired. Apparently, Gibson did

provide some input to Humphrey, and Defendant acknowledges that this information was

considered in the final analysis. Importantly, however, Gibson was not involved directly in the

forced ranking of the Planners, a ranking which proved to be dispositive in determining which

Planners would be let go.3 Therefore, although Gibson, as a general matter, may have been a

3

In his deposition testimony, Gibson commented that he refused to play any kind of role

in connection with deciding the fate of the other employees. “I told them that [Defendant’s]

letting me go and then making me choose who would stay and who would go would stick like

sour grapes, I would have no part in it.” (J.A. at 122) Asked whether he provided “any input

whatsoever,” Gibson responded that he had communicated verbally with Humphrey regarding his

opinion of the Planners, “who were the go-getters, who weren’t, who would take on extra

responsibilities . . . when needed, who wouldn’t.” (Id. at 122-23.) Gibson testified that he

refused to participate in any of the group meetings. (Id. at 123.) With regard to Skelton, Gibson

testified that “Ron does his job but he doesn’t do extra. . . . he never volunteered to go the extra

8

“decision-maker” in his position as a supervisor for Defendant, Skelton presents absolutely no

evidence to suggest that Gibson was a decision-maker with regard to the decision to terminate

Skelton’s position.

Likewise, there is no evidence that Gibson’s statement was in any way related to

Defendant’s decision-making process in terminating Skelton. In fact, according to Defendant,

Skelton himself acknowledged that he understood Gibson’s comment “to refer to his tenure in

the department rather than reflecting any age bias.” (Def.’s Br. at 36; see also J.A. at 222 (“I

would say it was more based on [my] length of service.”).) Skelton does not contest this

assertion. Indeed Gibson’s comment is not discriminatory on its face. Perhaps, as Skelton

asserts, the comment suggested that his age “was an issue.” (Pl.’s Br. at 13.) However, an

inferential step is necessary to equate Gibson’s comment about Skelton’s tenure with the

department--or his age--with unlawful discriminatory animus. Even Skelton does not proffer

such an argument. It is therefore reasonable to conclude that Gibson’s statement was an isolated

and irrelevant remark that had no influence on the termination decision. See Phelps v. Yale Sec.,

Inc., 986 F.2d 1020, 1025 (6th Cir. 1993) (“[I]solated and ambiguous comments are too abstract,

in addition to being irrelevant and prejudicial, to support a finding of age discrimination.”)

(citation and quotation marks omitted).

Finally, the District Court indicated that Gibson made this comment sometime in 2002.

The decision to terminate Skelton was made on or about October 18, 2002. Thus, although the

comment and the decision to eliminate Skelton’s position occurred in the same calendar year, it

is unclear whether Gibson’s comment was made “proximate in time” to Defendant’s decision to

leg up like [some] others.” (Id. at 124.)

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terminate Skelton. See Asmo v. Keane, Inc., 471 F.3d 588, 600 (6th Cir. 2006) (Griffin, J.,

dissenting) (noting that according to earlier precedents of this Court “temporal proximity alone

cannot establish the requisite causal nexus between the employee’s protected activity or status

and the adverse action.”). Notably, however, Skelton fails even to assert evidence that there was

any temporal proximity.

Because none of the four factors, as articulated in Peters, weigh in Skelton’s favor with

regard to Gibson’s comments, this Court affirms the District Court’s conclusion that Skelton

failed to proffer any direct evidence of age discrimination.

2. Circumstantial Evidence

This Court is guided by the McDonnell Douglas burden-shifting framework to analyze

age discrimination claims based upon circumstantial evidence. Wexler, 317 F.3d at 574 (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). First, an employee must establish a

prima facie case of age discrimination. Id. Once an employee satisfies this burden, the burden of

production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the

adverse employment action. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th

Cir. 1998). If the employer is able to do so, the burden shifts back to the employee to rebut the

employer’s proffered reason by showing by a preponderance of the evidence that the employer’s

articulated reason was a pretext for intentional age discrimination. Id. Importantly, the burden of

persuasion remains on the employee. Reeves, 530 U.S. at 143. However, the employer’s alleged

nondiscriminatory reason for taking an adverse employment action may not be considered by a

court when analyzing the prima facie case. Wexler, 317 F.3d at 574 (“To do so would bypass the

burden-shifting analysis and deprive the plaintiff of the opportunity to show that the

10

nondiscriminatory reason was in actuality a pretext designed to mask discrimination.”).

a. Prima Facie Case

Pursuant to the McDonnell Douglas formula, to establish a prima facie case of age

discrimination, an employee must show the following elements: (1) he was a member of the

protected class (i.e., age 40 or over); (2) he was qualified to perform the job; (3) he was subject

to an adverse employment action; and (4) he was replaced by a younger individual. Scott v.

Goodyear Tire & Rubber Co., 160 F.3d 1121, 1126 (6th Cir. 1998); see also Cicero v. Borg-

Warner Auto., Inc., 280 F.3d 579, 588 (6th Cir. 2002) (noting that “[a] presumption of

discrimination arises when a plaintiff establishes a prima facie case under the first stage of the

McDonnell Douglas test”). However, as the District Court recognized, where an employee’s

position is eliminated pursuant to a reduction in force (“RIF”) or reorganization, the analysis with

regard to the fourth element differs because the employee is not replaced. (J.A. at 112, Dist. Ct.

Op. at 7 (citing Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 371 (6th Cir. 1999)); see also

Barnes v. GenCorp Inc., 896 F.2d 1457, 1464-65 (6th Cir. 1990).) By showing only the first

three elements of the McDonnell Douglas formula, an employee “has not presented any evidence

indicating that the work force reductions are not the reasons for the discharge.” Barnes, 896 F.2d

at 1465 (noting that in RIF cases “‘the most common legitimate reasons’ for the discharge are the

work force reductions” themselves); see also id. (“A different result would allow every person

age 40-and-over to establish a prima facie case of age discrimination if he or she was discharged

as part of a work force reduction.”). Thus, in a RIF or reorganization case, the employee “does

not make out a prima facie case absent additional direct, circumstantial, or statistical evidence

tending to indicate that the employer singled out the plaintiff for discharge for impermissible

11

reasons.” Id. (hereinafter “the fourth element” or “the Barnes additional evidence requirement”);

see also Asmo v. Keane, Inc., 471 F.3d 588 (6th Cir. 2006) (“The purpose of the additional

evidence requirement is to ensure, in [RIF] cases, that the plaintiff has presented evidence to

show that there is a chance that the reduction in force is not the reason for the termination.”);

Ercegovich, 154 F.3d at 350 (citing Barnes).

The parties agree that Skelton satisfies the first three elements of the prima facie showing.

(See Def.’s Summ. J. Br. at 8, J.A. at 29 (“To be clear, Sara Lee’s management never believed

that Skelton was a bad planner, or that he lacked the skills and knowledge to do the job.”).)

Skelton, however, argues that the District Court improperly determined that he failed to satisfy

the fourth element of the prima facie showing. For the purpose of this appeal, we assume,

without deciding, that Skelton indeed established the fourth element of the prima facie showing,

and thus satisfied the first prong of the McDonnell Douglas burden-shifting framework. Yet, as

is discussed in greater detail below, we affirm the District Court’s grant of summary judgment

pursuant to the third prong of the McDonnell Douglas framework because Skelton has not shown

that Defendant’s articulated reason for terminating his position was a pretext designed to mask

age discrimination.

Although, as noted, we assume that Skelton established a prima facie case of age

discrimination, and specifically the Barnes additional evidence requirement, we find it

appropriate to address briefly the District Court’s prima facie analysis. Skelton argues on appeal

that, when the evidence is viewed in the light most favorable to him and without consideration of

Defendant’s self-serving evaluation criteria, the District Court should have determined that he

established the fourth element of the prima facie case of age discrimination due to the substantial

12

evidence that Defendant retained less qualified employees than he. See Barnes, 896 F.2d at 1466

(“[A] plaintiff could establish a prima facie case by showing that he or she possessed

qualifications superior to those of a younger co-worker working in the same position as the

plaintiff.”); Williams v. Gen. Elec. Co., 269 F. Supp. 2d 958, 967 (S.D. Ohio 2003) (“To meet the

heightened prima facie requirement in a RIF case . . . Plaintiff in this case could present evidence

that he was more qualified than the younger workers [the employer] did not terminate.”) (citing

Barnes); but see Brocklehurst v. PPG Indus., Inc., 123 F.3d 890, 896 (6th Cir. 1997) (“In a RIF,

qualified employees are going to be discharged.”). Defendant, however, asserts that after the

centralization in 2000, the Planners located in the Spring Grove facility began to be responsible

for planning the distribution of all of Defendant’s brands from the five mixing centers to

Defendant’s grocery store customers. Thus, after the centralization, Defendant asserts that

Skelton “began performing an essentially new job.” (Def.’s Br. at 5.)

After considering this issue, the District Court concluded that Skelton’s “assertion that he

had better qualifications than the other candidates is not sufficient to establish the fourth prong.”

(J.A. at 116, Dist. Ct. Op. at 11.) According to the District Court, this is because “the [proper]

inquiry is ‘whether the other candidates are more qualified with respect to the criteria that

[Defendant] actually employs.’” (J.A. at 116-17, Dist. Ct. Op. at 11-12 (emphasis added) (citing

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1285 (9th Cir. 2000)).) To support this conclusion,

the District Court offered the following discussion, quoted below in its entirety.

[W]ith respect to Plaintiff’s allegation that less experienced

employees were retained, Defendant, in determining who to retain,

did not emphasize experience, knowledge or tenure. Instead,

Defendant focused on the planners who were willing to put forth the

greatest amount of time and effort into the position. The

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Transportation Department was in a crisis due to the failure of the

reorganization and Defendant needed planners who would work as

long as necessary to [make] reorganization a success. In evaluating

Plaintiff, it was determined his work habits did not mesh with

Defendant’s needs. Instead, he “did his eight-hour day and went

home”. Further, he “did his job. But frankly, that’s all he did, was

his job. A lot of people were showing themselves to take on a lot

more responsibility than just their jobs, which was what was needed.”

Moreover, the reviewers “didn’t see any evidence that [Plaintiff] was

working with other people, that he would do more than what the

specific request was.”

(J.A. at 116, Dist. Ct. Op. at 11 (emphasis added) (citations omitted).) In other words, after

considering Defendant’s stated criteria to evaluate the Planners, i.e., allegedly desiring “the

Planners who were willing to put forth the greatest amount of time and effort into the position,”

the District Court determined that Skelton’s alleged “experience” was not necessarily consistent

with Defendant’s hiring goals. Thus, according to the District Court, Skelton’s substantial

experience as a Planner as compared to the retained Planners was insufficient to satisfy the fourth

element of the prima facie case. Although the District Court arrived at the correct result--that

Skelton’s age discrimination claims could not survive summary judgment--it committed an error

in its analysis of the “qualifications” issue at the first stage of the McDonnell Douglas burden-

shifting framework.

In an en banc decision in Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564 (6th Cir.

2003), this Court instructed that an employer’s alleged nondiscriminatory reason for taking an

adverse employment action may not be considered by a court when analyzing the prima facie

case. Id. at 574. That is, a court must sustain clear boundaries when assessing the three stages of

the McDonnell Douglas burden-shifting analysis. Peters, 285 F.3d at 473 (“[T]he legitimate

non-discriminatory reason offered by the employer at the second stage of the McDonnell Douglas

14

inquiry may not be considered in determining whether the employee has produced sufficient

evidence to establish a prima facie case.”) (citing Cline v. Catholic Diocese of Toledo, 206 F.3d

651, 660 (6th Cir. 2000)). To do otherwise, Skelton correctly asserts, could “wrongly collapse[]

the final stages of the burden shifting analysis into the evaluation of the plaintiff’s prima facie

case.” (Pl.’s Br. at 24.) However, in its assessment of the fourth element of the prima facie case-

-the first stage of the burden-shifting analysis--the District Court improperly viewed Skelton’s

asserted superior experience through the prism of Defendant’s alleged nondiscriminatory

retainment criteria. In other words, the second and third stages of the McDonnell Douglas

burden-shifting analysis were--but should not have been--addressed by the District Court during

its discussion of the first stage of the burden-shifting analysis.4 Thus, the District Court

improperly considered the Defendant’s alleged nondiscriminatory reason for taking an adverse

employment action when it analyzed Skelton’s prima facie case.

Skelton himself adds to this confusion when he argues that “he was more qualified by []

Sara Lee’s own standards than numerous retained employees” at the time of the RIF. (Pl.’s Br.

at 16 (emphasis added).) Thus, Skelton himself contradicts his argument that the District Court

failed to heed Wexler. Moreover, Skelton does not even articulate what exactly he means by

“Sara Lee’s own standards,” although the most likely meaning of “standards” in this context is

the Defendant’s alleged nondiscriminatory reason for taking an adverse employment action, i.e.,

4

Of course, the District Court was free to separately analyze the second and third stages

of the McDonnell Douglas burden-shifting analysis. However, to avoid collapsing the final

stages of the analysis into the evaluation of the prima facie case, the District Court should only

have considered the second and third stages if: (1) it found that Skelton established a prima facie

case, or (2) if it discussed the later stages under the aegis of an alternative finding, e.g., “even if

Skelton were deemed to have established a prima facie case of discrimination . . . .” However,

the District Court neither made such a finding nor presented such an alternative finding.

15

invoking the second stage of the McDonnell Douglas burden-shifting analysis. Thus, this

quotation suggests that at the prima facie stage, even Skelton evaluated his qualifications in light

of Defendant’s standards, or at least his perception of them. However, Skelton’s invocation of

Defendant’s “own standards” does not alter the requirement as discussed in Wexler that a

purported prima facie case be analyzed without consideration of the employer’s alleged

nondiscriminatory reason for terminating the position.

Notwithstanding the District Court’s error with regard to the first stage of the McDonnell

Douglas burden-shifting framework, we will affirm the District Court’s grant of summary

judgment in favor of Defendant. We assume that Skelton has established a prima facie case of

age discrimination but, as discussed below, he has not met his burden to show pretext.

b. Legitimate Nondiscriminatory Reason for Termination

Where an employee establishes a prima facie case of age discrimination--which, as noted

above, we assume here for the present purposes--then under the McDonnell Douglas framework,

the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory

reason for its actions. Wexler, 317 F.3d at 574. Here, Defendant asserts that “it sought to retain

Planners who demonstrated a willingness to put in as much time and effort as necessary, and go

beyond the traditional job requirements, in order to meet the needs of the business.” (Def.’s Br.

at 40.) Defendant allegedly was in desperate need of Planners with such characteristics “because

the centralization of the transportation department was such a disaster, [and] management was

under great pressure to restructure the department in a manner that would address the customer

service problems emanating from the department.” (Id. at 7 (noting further that “the department

was in a crisis mode, and the jobs of the managers were at stake in making a second

16

reorganization work”).) According to Defendant, Skelton “simply did not demonstrate such

characteristics.” (Id.) Defendant presented deposition testimony from Humphrey and Gibson

who both indicated that Skelton was less willing than other Planners to go beyond the basic

requirements of the position. Defendant also cites Skelton’s last performance appraisal prior to

the RIF, in which Gibson recorded that Skelton “does not stretch beyond his day-to-day duties,”

as he “[t]ends to operate in his own silo of responsibility, unless asked.” (Def.’s Br. at 16; J.A. at

232.) Although Defendant’s alleged evaluation criteria is not immune from reproach, we find

that Defendant has met its burden of production by putting forth a legitimate, non-discriminatory

reason for Skelton’s termination.

c. Pretext

Lastly, if an employer is able to articulate some legitimate, nondiscriminatory reason for

its actions, the burden shifts back to the employee to rebut the employer’s proffered reason by

showing by a preponderance of the evidence that the employer’s articulated reason was a pretext

“designed to mask age discrimination.” Wexler, 317 F.3d at 574. As the District Court noted, a

plaintiff may prove pretext by showing that the employer’s proffered reason (1) has no basis in

fact, (2) did not actually motivate the employer’s challenged conduct, or (3) was insufficient to

motivate the employer’s challenged conduct. Id. at 576; see also Manzer v. Diamond Shamrock

Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (noting that the first and third “types of rebuttals

are direct attacks on the credibility of the employer’s proffered motivation for firing plaintiff and,

if shown, provide an evidentiary basis for what the Supreme Court has termed a ‘suspicion of

mendacity’”). Skelton does not specifically articulate how his alleged evidence demonstrates

pretext under any of these types of rebuttals. Nevertheless, it is helpful to address Skelton’s

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argument in the context of these particular showings.

“The first type of rebuttal . . . consists of evidence that the reasons given by the employer

simply did not happen.” Peters, 285 F.3d at 471. Here, although Skelton challenged, as an

analytical matter, whether the termination of Planners should be characterized as a RIF, Skelton

does not argue that his position was terminated pursuant to Defendant’s efforts to decentralize.

Skelton also does not contest that Defendant’s decision to reduce its workforce was based upon a

legitimate business decision. Thus, Defendant’s reason for including Skelton in the RIF is

clearly based in fact.

Taken out of order, “[t]he third type[] ordinarily consists of evidence that other

employees, particularly employees not in the protected class, were not fired even though they

engaged in substantially identical conduct to that which the employer contends motivated its

discharge of the plaintiff.” Id. at 471-72 (citation and quotation marks omitted). Skelton spends

a good deal of time in his brief discussing how several of the retained Planners were, in his

estimation, less qualified than Skelton. However, Skelton does not assert that any of these

Planners exhibited an unwillingness to “put in as much time and effort as necessary, and go

beyond the traditional job requirements[] in order to meet the needs of the business.” (Def.’s Br.

at 40.) In other words, Skelton proffers no evidence that the retained Planners were deficient

with regard to Defendant’s asserted non-discriminatory reason for the employees’ termination.

Moreover, it is Skelton’s burden, not Defendant’s, to show that he was superior to a retained

employee with regard to Defendant’s asserted criteria. Thus, Skelton has not carried his burden

to show that Defendant’s proffered reason was insufficient to motivate its termination decisions.

Lastly, Skelton can show pretext under the second type of rebuttal by showing that

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Defendant’s proffered reason “did not actually motivate” its decision to terminate Skelton’s

position. Although he does not denote his arguments as such, Skelton asserts at least three

identifiable grounds to establish pretext under this rebuttal type: (1) Defendant utilized

inconsistent criteria to select Skelton for termination; (2) Defendant had made its decision to

terminate Skelton prior to the interviews; and (3) Defendant did not utilize performance reviews

or objective data in the decision-making process. For the following reasons, Skelton has failed to

present sufficient evidence that Defendant’s asserted justification demonstrates pretext, or that it

lacks credibility. See Reeves, 530 U.S. at 149 (holding that “a plaintiff’s prima facie case,

combined with sufficient evidence to find that the employer’s asserted justification is false, may

permit the trier of fact to conclude that the employer unlawfully discriminated”) (emphasis

added).

This Court has recognized that “[a]n employer’s changing rationale for making an

adverse employment decision can be evidence of pretext.” Asmo, 471 F.3d at 596. In this vein,

Skelton argues that despite its claims to the contrary, Defendant actually sought employees who

possessed different characteristics than simply willingness to work long hours. For example,

Defendant allegedly “sought to retain the best Planners who could best service the customers and

those where were the best performers.” (Pl.’s Br. at 31.) Defendant, however, consistently

argues that it sought to retain those Planners who were willing to work long hours and do more

than the basic requirements of the job. Skelton has therefore identified a factual dispute:

whether Defendant consistently used the same criteria to determine which Planners to retain.

However, this factual dispute is not material. Even if, as a practical matter, Defendant’s

evaluation criteria were not strictly limited to the stated criteria, it does not mean that the

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evaluation system that was applied was itself discriminatory. See Smith, 195 F. App’x at 396

(noting that “the fact that [an] evaluation system used may not have been the best tool for

evaluating employee performance does not show that the RIF based on evaluations made under

that system was not proper”). For example, Skelton does not argue that Defendant ever

considered age as a relevant factor in its evaluation process of the Planners. As the Supreme

Court articulated in St. Mary’s Honor Center v. Hicks, “[i]t is not enough . . . to dis believe the

employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.”

509 U.S. 502, 519 (1993) (emphasis in original). Here, although there may be some evidence to

show that Defendant did not rely solely on the criteria that it proffers, Skelton simply has

produced no evidence that Defendant utilized any alternate criteria that implicated intentional age

discrimination.

Skelton next argues that the interviews “were clearly a sham.” (Pl.’s Br. at 32.) Skelton

complains about the chronology of Defendant’s decision-making process, noting specifically that

the decision to terminate his position had been made prior to the interviews. Even if this Court

assumes that Defendant made the decision to eliminate Skelton prior to the interviews, it does

not necessarily follow, or even suggest, that Defendant targeted Skelton because of his age. See,

e.g., Hooper v. Cargill, Inc., 187 F.3d 635, 1999 WL 552560, at *5 (6th Cir. July 23, 1999) (per

curiam) (table). After all, Skelton had been working as a Planner for Defendant for more than 17

years. It is reasonable to assume that, prior to his actual interview, Defendant was sufficiently

aware of Skelton’s professional proclivities to support an informed evaluation of him with regard

to the stated criteria. Thus, even if Skelton could show that prior to his interview Defendant had

decided that he would be terminated, it simply does not bear upon the question of whether

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Defendant discriminated based on age.

Finally, Skelton asserts that Defendant did not utilize performance reviews or objective

data in the decision-making process. For example, Skelton notes that “the interview forms for

retained Planners were nearly devoid of notes, whereas the forms for the terminated Planners

were fully completed.” (Pl.’s Br. at 32.) Apart from the interview forms of Christen Baum and

Mike Jones, two Planners who were retained and whose forms were filled with notes, Skelton’s

assertion is largely true. The interview forms of nearly every dismissed Planner were filled with

notes, while the forms of most of the retained Planners had few or no notes. However, even if

we assume that Defendant’s evaluation process was haphazard--at least as it pertained to note-

taking during the interviewing process--there exists no reasonable inference that Defendant

discriminated on the basis of age. See Coleman, 232 F.3d at 1285 (“That [the employer] made

unwise business judgments or that it used a faulty evaluation system does not support the

inference that [it] discriminated on the basis of age.”); Peters, 285 F.3d at 470 (“[M]ere

conjecture that the employer’s explanation is a pretext for intentional discrimination is an

insufficient basis for denial of summary judgment.”) (citation and quotation marks omitted). For

example, Skelton asserts no correlation between interview forms that were filled out and the

respective ages of the Planners. In fact, of the Planners who were dismissed and whose interview

forms were copiously filled, approximately half of them were under the age of 40. Thus,

Defendant’s evaluation process may have been imperfect, but it does not suggest that the process

was itself discriminatory on the basis of age.5 For the foregoing reasons, when viewing all the

5

Although all of the retained Planners were younger than Skelton, the fact remains that

the average age of the Planners decreased minimally after the decentralization (from 37.79 prior

to the RIF, to 36.84 after the RIF), and three of the retained Planners (Beverly Fitch, 45.15 years

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evidence in the light most favorable to Skelton, we find that there exist no genuine issues of

material fact.

Accordingly, Skelton has failed to show by a preponderance of the evidence that

Defendant’s articulated reason was a pretext “designed to mask age discrimination.” Wexler, 317

F.3d at 574. Therefore, we will affirm the District Court’s decision to grant summary judgment

in favor of Defendant because Skelton has not satisfied the third stage of the McDonnell Douglas

burden-shifting framework.

C. State Law Claims

The District Court did not address Skelton’s state law claims. However, this was not

inappropriate. This Court has acknowledged that when “analyzing claims arising under Ohio

Rev. Code § 4112, Ohio courts have adopted the framework established in federal case law

concerning Title VII and the [ADEA].” Peters, 285 F.3d at 469. Thus, Skelton’s state law

claims rise and fall with his federal claims. For the reasons stated above with regard to Skelton’s

ADEA claims, his state law claims were properly dismissed.

III.

Although we base our decision on the third stage of the McDonnell Douglas burden-

shifting framework, we AFFIRM the District Court’s grant of summary judgment in favor of

Defendant with regard to Skelton’s federal and state law claims.

old; Marketta Hayes, 44.92; and Christen Baum, 43.24) were within the protected class and not

substantially younger than Skelton, age 46.22, when his position was terminated.

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