Raymond Geiger v. Tower Automotive

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0325p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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RAYMOND L. GEIGER,

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Plaintiff-Appellant,

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No. 08-1314

v.

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Defendant-Appellee. -

TOWER AUTOMOTIVE,

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Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 06-13633—Thomas L. Ludington, District Judge.

Argued: May 1, 2009

Decided and Filed: September 4, 2009

Before: KENNEDY, GIBBONS, and ROGERS, Circuit Judges.

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COUNSEL

ARGUED: Richard A. Meier, LAW OFFICE, Farmington Hills, Michigan, for Appellant.

Philip B. Phillips, FOLEY & LARDNER LLP, Detroit, Michigan, for Appellee.

ON BRIEF: Richard A. Meier, LAW OFFICE, Farmington Hills, Michigan, for Appellant.

Philip B. Phillips, Jennifer L. Neumann, FOLEY & LARDNER LLP, Detroit, Michigan, for

Appellee.

GIBBONS, J., delivered the opinion of the court, in which KENNEDY, J., joined.

ROGERS, J. (p. 16), delivered a separate opinion concurring in the result.

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Raymond Geiger appeals the grant of

summary judgment to Tower Automotive (“Tower”) on his employment discrimination

claims pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 623(a) and Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), Mich. Comp. Laws

1

No. 08-1314 Geiger v. Tower Automotive Page 2

§§ 37.2202 et seq. The United States District Court for the Eastern District of Michigan

found that Geiger failed to make a prima facie showing of age discrimination under either

federal or state law and entered judgment as a matter of law for Tower.

For the reasons set forth below, we affirm the judgment of the district court.

I.

The facts of this case arise from Geiger’s termination from his employment at Tower.

Geiger, born in 1943, worked as a Maintenance, Repair, and Operations (“MRO”) Buyer for

Tower’s Elkton plant. He was employed as an MRO Buyer in 1998 and worked until his

termination on November 11, 2005, when he was 62 years old. Ellen Moorman, the human

resources manager, testified that Tower reduced the number of employees at the Elkton plant

from 122 positions in 2000 to 61 positions in 2006. Most of these reductions took place

because of downsizings. In 2005, Tower filed for bankruptcy, which further increased the

need to eliminate positions. According to Alfred Buycks, the director of MRO purchasing,

the president of Tower decided to centralize the purchasing responsibilities in light of the

bankruptcy. Buycks stated that the vice-president of Tower instructed him to eliminate 15

buyer positions, reducing the staff from 21 buyers to 6. While the 21 buyers had each been

assigned to a single facility, the 6 consolidated buyer positions would be responsible for

geographic regions. As a result, Geiger’s position at the Elkton facility was eliminated, and

a single new position was created with responsibility for both the Elkton and Clinton

facilities. Buycks, in consultation with his superior and with human resources, made the

hiring decisions for the new buyer positions.

Geiger remembers learning of this planned centralization at some point in May of

2005. Buycks drafted an organizational chart around the beginning of May of 2005 with

1

potential reassignments, listing Belinda Strong as the MRO Buyer for the Elkton and

Clinton facilities. Buycks allegedly modified this chart on May 13, 2005, by adding

phone numbers of several of the employees, including Strong, to the chart. Buycks

testified that he had not made any hiring decisions at that point and that the draft

1

The 2005 draft chart lists Strong by her previous name of Belinda Cottick. This opinion will

refer to her by her current name, Belinda Strong.

No. 08-1314 Geiger v. Tower Automotive Page 3

represented only “brainstorming.” The fact that other individuals shown slated for the

position were not actually chosen supports Buycks’s testimony. On May 13, 2005,

employees received an internal email notifying them that Tower would centralize many

positions, including buyer positions.

Sometime during the early summer of 2005, Geiger alleges that his supervisor

and materials manager Mike Rokicki arranged for Kevin Truemner, a younger employee,

to receive training pertinent to Geiger’s job and suggested that Geiger take a voluntary

layoff for the one-week duration of the training. Geiger claims that this happened

because “Mr. Rokicki thought [Geiger] was considering retirement and that he felt [it

was] in the best interest of the Elkton business unit that he should have that role covered

by a younger person.” (Geiger’s Dep. at 44.) Geiger was not considering retirement and

complained to his immediate supervisor, Mike Murphy. Geiger was ultimately allowed

to attend the training session instead of the younger employee.

Tower produced a spreadsheet which listed the current MRO Buyers and also

listed six MRO Buyer positions to be reduced. Geiger was one of the six “[c]andidates

for reduction.” Shortly after this spreadsheet was generated, Buycks encouraged all

MRO Buyers to apply for one of the new MRO Area Buyer positions. He believes he

contacted all of the MRO Buyers individually to encourage them to apply, but he does

not remember speaking with Geiger. Geiger claims that he was never contacted. Strong

says that she was personally contacted and encouraged to apply, although Buycks does

not remember this conversation either. Based on this sequence of events, Geiger claims

that he was not seriously considered for the job.

Murphy assisted Geiger in filling out the online application for the job, but

Tower claims that it never received his application. Nevertheless, both Geiger and

Strong were interviewed for the position. On July 8, 2005, Linda Kreuter, the manager

of human resources, sent Buycks an email, instructing him that he “should plan to

contact the current plant MRO Buyers to make sure they are aware of and apply for the

positions and talk with them personally about the role.” Another version of the same

email, presumably the original version of the email, was found during discovery and

No. 08-1314 Geiger v. Tower Automotive Page 4

stated that Buyck “should plan to contact those MRO buyers that you want to make sure

apply for the positions and talk with them personally about the role” (emphasis added).

The district court permitted Geiger to depose Kreuter about the alteration, and the parties

provided supplemental briefing on the issue. Kreuter stated in her deposition that she

did not recall changing the email, nor did she know how it was changed. It is unclear

who altered this email, when the alteration occurred, or why. Geiger claims that the

alteration indicates Tower’s intention to cover up its illegal age discrimination against

him.

In September of 2005, Buycks offered Strong the position, and she accepted.

Buycks explained that he chose Strong because of her “systems and computer skills,

being a team player, having a full understanding of MRO materials at her plant, and . . .

also her interpersonal skills, dealing with upper leadership.” (Buycks’s Dep. at 48.) He

further explained that although Geiger was a hard and dedicated worker, “some of his

skill sets weren’t as up-to-date . . . [w]hen it comes to systems, Power Point, Excel,

things of that nature.” (Buycks’s Dep. at 49-50.) Buycks also stated that Strong’s

interpersonal skills were more impressive than Geiger’s. Cannon interviewed both

candidates and recommended Strong for the position, saying that he was impressed by

Strong’s performance at the Clinton facility, particularly the policies and procedures she

implemented. Murphy, Geiger’s immediate supervisor, stated that Geiger was a “good

employee” and performed to his expectations, although his time management skills and

organizational skills were “not excellent.” (Murphy’s Dep. at 8.) According to Buycks,

age played no role in his decision to hire Strong.

On November 11, 2005, Geiger’s employment was terminated. Moorman stated

in her deposition that no one was hired to replace him, and his former responsibilities

have been distributed among hourly union employees. Geiger claims that he was the

only person who was not reassigned to another position within Tower after the

centralization. Geiger filed a complaint in the United States District Court for the

Eastern District of Michigan, alleging age discrimination in violation of the ADEA and

the ECLRA.

No. 08-1314 Geiger v. Tower Automotive Page 5

During the course of discovery, Geiger found two additional documents and a

comment made during a deposition that he claims further indicate that he was terminated

on account of his age. First, meeting notes from an “MRO Centralization Meeting” list

Rokicki as having concerns that Geiger might file an age discrimination suit against

Tower. Specifically, the notes state: “Ray Geiger has been identified as potential

[reduction in force]. [Rokicki] is concerned with age discrimination issue he will follow

up with [human resources].” Second, in response to an email from Cannon regarding

the fact that an employee leaked the information that Geiger’s employment was going

to be terminated, Rokicki stated: “Just a FYI. I’m still sticking with the Friday plan [to

terminate Geiger], although [Geiger] will probably be fishing for info from me later

today. . . . P.S. I just cannot shake this feeling that we’re doomed!” Third, in her

deposition, Moorman was asked why a document had Geiger listed as laid off rather than

terminated. She responded, “I maybe made a boo-boo.”

Tower filed a motion for summary judgment. After hearing argument, the district

court granted the motion, finding that Geiger had not established a prima facie case of

age discrimination under the heightened standard applicable to work force reductions.

The district court found that Geiger had not provided evidence to challenge Tower’s

proffered reason that his discharge was due to Tower’s work force reductions. Geiger

filed a motion for reconsideration, which was denied by the district court. Geiger v.

Tower Auto., No. 06-13633-BC, 2008 WL 544958, at *2 (E.D. Mich. Feb. 25, 2008).

Geiger timely appealed to this court.

II.

We review a district court’s grant of summary judgment de novo. See Niemi v.

NHK Spring Co., Ltd., 543 F.3d 294, 298 (6th Cir. 2008). Summary judgment should

be granted when the moving party can “show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). Once the moving party has met its burden, the nonmoving party must

demonstrate an essential element of its claim to defeat the motion for summary

judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the nonmoving party

No. 08-1314 Geiger v. Tower Automotive Page 6

cannot provide enough evidence that a reasonable jury could find for it, the motion for

summary judgment should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986).

A. ADEA

The ADEA prohibits an employer from failing or refusing to hire, discharging,

or 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)(1). A plaintiff may establish a violation of the ADEA by either

direct or circumstantial evidence. See Martin v. Toledo Cardiology Consultants, Inc.,

548 F.3d 405, 410 (6th Cir. 2008). “Direct evidence of discrimination is that evidence

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

motivating factor in the employer’s actions.” Wexler v. White’s Fine Furniture, Inc.,

317 F.3d 564, 570 (6th Cir. 2003) (en banc) (internal quotation marks omitted).

“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.” Id. In Gross v. FBL Financial Services, Inc., the Supreme

Court recently emphasized that with both direct and circumstantial evidence, the burden

of persuasion remains on ADEA plaintiffs to demonstrate “that age was the ‘but-for’

cause of their employer’s adverse action.” 129 S. Ct. 2343, 2351 n.4 (2009).

1. Direct Evidence

“The ultimate question in every employment discrimination case involving a

claim of disparate treatment is whether the plaintiff was the victim of intentional

discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000).

Any discriminatory statements must come from decisionmakers to constitute evidence

of discrimination. See Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 550

(6th Cir. 2004). “Statements by nondecisionmakers, or statements by decisionmakers

unrelated to the decisional process itself [cannot] suffice to satisfy the plaintiff’s burden

. . . of demonstrating animus.” Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir.

No. 08-1314 Geiger v. Tower Automotive Page 7

1998) (internal quotation marks omitted) (alterations in original). We have said that

under Title VII, if a plaintiff can show direct evidence of intentional discrimination, the

burden of persuasion shifts to the employer to demonstrate that it would have discharged

the plaintiff even if it had not been motivated by age discrimination. See, e.g., Laderach

v. U-Haul of Nw. Ohio, 207 F.3d 825, 829 (6th Cir. 2000).2 Over the years, we have

applied this burden-shifting framework to analyze direct evidence of discrimination

claims brought outside of Title VII, including ADEA claims. See, e.g., Blair v. Henry

Filters, Inc., 505 F.3d 517, 523 (6th Cir. 2007); Manzer v. Diamond Shamrock Chems.

Co., 29 F.3d 1078, 1081 (6th Cir. 1994). In Gross, however, the Supreme Court

specifically held that the “burden of persuasion does not shift to the employer to show

that it would have taken the action regardless of age, even when a plaintiff has produced

some evidence that age was one motivating factor in that decision.” 129 S. Ct. at 2352.

Thus, Gross overrules our ADEA precedent to the extent that cases applied Title VII’s

burden-shifting framework if the plaintiff produced direct evidence of age

discrimination. Gross enunciated the correct standard for ADEA claims as whether the

plaintiff has proven “by a preponderance of the evidence . . . that age was the ‘but-for’

cause of the challenged employer decision.” Id. at 2351.

Geiger alleges that his supervisor Rokicki arranged for Truemner, a younger

employee, to receive training pertinent to Geiger’s job and suggested that Geiger take

a voluntary layoff for the duration of the training. Geiger further claims that “the word

come [sic] back to [him] that Mr. Rokicki thought [he] was considering retirement and

that he felt [it was] in the best interest of the Elkton business unit that he should have

that role covered by a younger person.” Geiger was not considering retirement and

2

This thread of our case law derives from the analysis for mixed-motive employment

discrimination cases approved by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 244-

45 (1989) (plurality opinion). Although the mixed-motive case in Price Waterhouse involved direct

evidence, this burden-shifting framework was intended for mixed-motive cases and not all cases involving

direct evidence, as now clarified by Gross. 129 S. Ct. at 2352. Our court’s expansive application of the

burden-shifting framework was based on a misunderstanding that the framework applied to the type of

evidence presented and not the type of claim brought. See, e.g., Wexler, 317 F.3d at 585 (finding that “no

Price Waterhouse mixed-motive analysis is warranted, because [plaintiff] failed to surmount his initial

burden of proffering probative direct evidence [of] any impermissible age-related discriminatory motive”

(emphasis in original)); Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994)

(declaring that Price Waterhouse’s burden-shifting framework would have applied to plaintiff’s ADEA

claim if he had presented direct evidence of age discrimination).

No. 08-1314 Geiger v. Tower Automotive Page 8

argues that Rokicki’s statement and behavior constitute direct evidence of age

discrimination.

Geiger has presented no evidence, however, to suggest that Rokicki was involved

in the decision to hire Strong instead of Geiger.3 Furthermore, because Geiger has not

alleged that Rokicki’s statement occurred in relation to the decision to terminate his

employment, this conduct is not direct evidence. Rowan, 360 F.3d at 550 (finding that

statements made by nondecisionmakers do not constitute direct evidence and are more

appropriately analyzed as circumstantial evidence). In fact, there is no evidence to

indicate that Rokicki’s allegedly discriminatory mindset resulted in any adverse

employment action because Geiger was ultimately allowed to attend the training session

and Truemner was instead temporarily laid off for the duration of the training. We thus

find that Geiger has not provided direct evidence of age discrimination. See Brown v.

Packaging Corp. of Am., 338 F.3d 586, 589-90 (6th Cir. 2003) (finding that a statement

by a non-decisionmaker that the vice-president “wanted younger people” was not direct

evidence of age discrimination).

2. Circumstantial Evidence

While Gross specifically rejected the burden-shifting framework for claims of

direct evidence, as discussed above, the Supreme Court expressly declined to decide

whether the McDonnell Douglas test applies to the ADEA. In a footnote, the majority

noted that it “has not definitively decided whether the evidentiary framework of

[McDonnell Douglas], utilized in Title VII cases is appropriate in the ADEA context.”

Gross, 129 S. Ct. at 2349 n.2. In this circuit, however, while recognizing the differences

between Title VII and the ADEA, we have long found the McDonnell Douglas

3

Geiger argued for the first time in appellate oral argument that Rokicki played some part in the

decision to terminate his employment. This argument is likely waived as he never argued that Rokicki

participated in the decisionmaking either before the district court or in his appellate briefs. See United

States v. Williams, 544 F.3d 683, 690 (6th Cir. 2008). Geiger never disputed or even responded to Tower’s

defense, argued in Tower’s briefs to the district and appellate courts, that Buycks, not Rokicki, made the

decision to hire Strong. Nevertheless, even if this argument were not waived, Geiger has not presented

any evidence indicating that Rokicki’s statement regarding training Truemner at the Elkton facility had

anything to do with Buycks’s decision to hire Strong for the Clinton MRO Area position. Moreover, even

if Geiger could provide evidence to suggest a link, the record clearly indicates that age was not the “but-

for” factor in Tower’s decision to choose Strong over Geiger. Gross, 129 S. Ct. at 2351.

No. 08-1314 Geiger v. Tower Automotive Page 9

framework useful in analyzing circumstantial evidence of ADEA claims. See, e.g.,

Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Laugesen v.

Anaconda Co., 510 F.2d 307, 317 (6th Cir. 1975)). The McDonnell Douglas test thus

remains applicable law in this circuit, see Martin v. Toledo Cardiology Consultants, Inc.,

548 F.3d 405, 410 (6th Cir. 2008), and we are without authority to overrule prior

published decisions of our court absent an inconsistent decision of the Supreme Court

or an en banc reversal. See Rutherford v. Columbia Gas, _ F.3d _, 2009 WL 2253321,

at *2 (6th Cir. July 30, 2009). Consequently, we find that the McDonnell Douglas

framework can still be used to analyze ADEA claims based on circumstantial evidence.

This result is in accordance with the only circuits to have addressed the issue after Gross.

See Milby v. Greater Phil. Health Action, No. 08-2865, 2009 WL 2219226, at *1 (3d

Cir. July 27, 2009) (continuing to apply McDonnell Douglas because the plaintiff “does

not dispute” its application (citing Reeves, 530 U.S. at 142)); Martino v. MCI Commc’ns

Servs., Inc., No. 08-2405, 2009 WL 2224914, at *3 (7th Cir. July 28, 2009) (applying

McDonnell Douglas without discussion).

To set forth a prima facie case of age discrimination using circumstantial

evidence, a plaintiff must establish the four elements of the well-known McDonnell

Douglas test: 1) that he was a member of a protected class; 2) that he was discharged;

3) that he was qualified for the position held; and 4) that he was replaced by someone

outside of the protected class. See Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394

(6th Cir. 2008) (citing Minadeo v. ICI Paints, 398 F.3d 751, 764 (6th Cir. 2005)). If the

termination arises as part of a work force reduction, this court has modified the fourth

element to require the plaintiff to provide “additional direct, circumstantial, or statistical

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

impermissible reasons.” Barnes v. GenCorp, 896 F.2d 1457, 1465 (6th Cir. 1990).

The threshold question is thus whether Tower terminated Geiger in the context

of a work force reduction. “A work force reduction situation occurs when business

considerations cause an employer to eliminate one or more positions within the

company. An employee is not eliminated as part of a work force reduction when he or

No. 08-1314 Geiger v. Tower Automotive Page 10

she is replaced after his or her discharge.” Id. A person is considered replaced “only

when another employee is hired or reassigned to perform the plaintiff’s duties.” Id. A

person is not considered replaced when his duties are absorbed by another person “or

when the work is redistributed among other existing employees already performing

related work.” Id.

Geiger claims that his termination does not constitute a work force reduction

because he was replaced by Strong, who was selected as the MRO Area Buyer for the

Elkton and Clinton facilities. Because Geiger was formerly the MRO Buyer for the

Elkton facility, he argues that she replaced him. However, Strong was selected to

perform Geiger’s former duties in addition to her former duties as the MRO Buyer for

the Clinton facility. Strong thus did not replace Geiger but was hired to perform both

his duties and her own. See Campbell v. PMI Food Equip. Group, Inc., 509 F.3d 776,

785-86 (6th Cir. 2007); Barnes, 896 F.2d at 1465 (“[A] person is not replaced when

another employee is assigned to perform the plaintiff’s duties in addition to other

duties.”); Wilson v. State of Ohio, Dep’t of Job & Family Servs., 178 F. App’x 457, 465

(6th Cir. 2006) (finding that a combination of two positions into one “clearly does not

meet the definition of replacement”); Spencer v. Hilti, Inc., 116 F.3d 1480, 1997 WL

359094, at *5 (6th Cir. 1997) (table) (“It is clear . . . that we were attempting in Barnes

to distinguish between the replacement of an employee and situations where there was

a consolidation of jobs designed to eliminate excess worker capacity.”). Furthermore,

the record indicates that Strong did not perform all of Geiger’s former duties because she

was working out of the Clinton plant. Many of Geiger’s responsibilities at the Elkton

plant have been absorbed by hourly employees at the Elkton plant. See Barnes, 896 F.2d

at 1465 (finding that a person has not been replaced when his work is redistributed

among other existing employees). We therefore conclude that Geiger was not replaced

by Strong and was terminated as part of a reduction in force.4

4

Geiger claims that he was the only employee terminated as a result of the consolidation process.

To support this claim, he submitted a spreadsheet indicating that he was the only employee discharged in

the month of November. However, this same spreadsheet also lists the reductions from September through

November and shows that another employee was laid off the previous month. Truemmer is not listed at

all, as he was discharged in February. Significantly, the list does not appear to be complete because it does

not list Strong as an employee, nor any of the other MRO Area Buyers. Without more information, Geiger

No. 08-1314 Geiger v. Tower Automotive Page 11

Because his discharge and failure to be re-hired arose from a work force

reduction, Geiger must meet a heightened standard to establish a prima facie case. See

Asmo v. Keane, Inc., 471 F.3d 588, 592-93 (6th Cir. 2006). It is undisputed that Geiger

has presented evidence to establish the first three elements of the McDonnell Douglas

test. First, he was 62 years old when he was terminated and clearly falls within the

protection of the ADEA. See, e.g., Barnes, 896 F.2d at 1465. Second, he was

terminated from his employment with Tower. Third, he was qualified to be MRO Area

Buyer for Elkton and Clinton because he had already served as MRO Buyer for Elkton,

had 27 years of experience, and had received positive reviews from Tower. Tower

selected Strong, who was 33 years old and outside the protected class.

However,“because the most common legitimate reason for the discharge of a plaintiff

in a [reduction in force] situation is the work force reduction, the plaintiff must provide

‘additional direct, circumstantial, or statistical evidence tending to indicate that the

employer singled out the plaintiff for discharge for impermissible reasons.’” Brune &

Ashing v. Basf Corp., 234 F.3d 1267, 2000 WL 1597908, at *3 (6th Cir. 2000) (table)

(quoting Barnes, 896 F.2d at 1465). “‘The guiding principle [in a work force reduction

case] is that the evidence must be sufficiently probative to allow a factfinder to believe

that the employer intentionally discriminated against the plaintiff because of age.’”

Gragg v. Somerset Tech. Coll., 373 F.3d 763, 767-68 (6th Cir. 2004) (quoting Barnes,

896 F.2d at 1466).

In sum, Geiger offers the following as circumstantial evidence of discrimination

against him: 1) Rokicki’s comments that he wanted a younger person to attend training;

2) Rokicki’s comments that age discrimination was a concern in terminating Geiger;

3) Rokicki’s email that they were “doomed”; 4) Buycks’s draft documents and other

actions indicating that Strong had been chosen for the position of MRO Area Buyer

before Strong or Geiger had been interviewed; 5) the manipulation of an email from

Kreuter; and 6) Moorman’s comment that listing Geiger’s status as laid off was a “boo-

boo.”

has not refuted the overwhelming evidence in the record that the consolidation process was part of a

reduction in force.

No. 08-1314 Geiger v. Tower Automotive Page 12

First, as mentioned above, Rokicki’s comments about Geiger’s retirement are not

pertinent because Geiger has not presented any evidence to show that Rokicki was

involved in the decision to hire Strong or terminate Geiger. The record indicates that

Rokicki was not involved in the brainstorming sessions, did not interview Geiger, was

not consulted about Geiger’s qualifications, was not copied on the correspondence about

offering the position to Strong, and by contrast, fought against the consolidation process

and wrote emails to the human resources department expressing his anger over the way

in which Geiger’s employment was terminated. See Brown, 338 F.3d at 589-90.

Second, Geiger claims that Rokicki’s documented concern about a possible age

discrimination suit constitutes evidence of age discrimination. When Rokicki learned

that Geiger was listed as a candidate for reduction, he expressed his concern to Buycks

that Geiger could bring an age discrimination claim. The MRO Centralization Meeting

notes summarize Rokicki’s statements as follows: “Ray Geiger has been identified as

potential [reduction in force]. [Rokicki] is concerned with age discrimination issue he

will follow up with [human resources].” Rokicki explained that his statements stemmed

from his prior experience with layoffs and his concern that proper procedures be

followed in terminating Geiger. Looking at the facts in the light most favorable to

Geiger, and assuming that Rokicki’s concern was instead motivated by animus against

older employees, Rokicki’s statements about a possible age discrimination suit still do

not constitute evidence of age discrimination because he was not the one making the

hiring decision. Buycks decided to hire Strong, without any input from Rokicki, and

Geiger has offered no evidence that Buycks was concerned about an age discrimination

suit.

Similarly, Rokicki’s email that they were “doomed” is not evidence that Buycks

discriminated against Geiger on account of age. In response to an email from Cannon

about Geiger’s termination, Rokicki stated, “Just a FYI. I’m still sticking with the

Friday plan [to terminate Geiger], although [Geiger] will probably be fishing for info

from me later today. . . . P.S. I just cannot shake this feeling that we’re doomed!”

Rokicki stated that his comment was due to the fact that he did not think that the MRO

No. 08-1314 Geiger v. Tower Automotive Page 13

Buyer positions should have been consolidated. The record supports the fact that

Rokicki was not in favor of the consolidation; but even if his feeling “doomed” was

solely on account of Geiger’s termination, this is not evidence that Geiger was

terminated on account of his age.

Next, Geiger claims that Buycks selected Strong without considering him for the

position. As evidence, Geiger submitted documents that list Strong as the MRO Area

Buyer that were drafted before his interview for the position. He also alleges that Strong

was personally contacted and encouraged to apply, in contrast to the fact that no one

contacted him. Nevertheless, Geiger’s supervisor Murphy helped Geiger apply,5 and he

was interviewed by Cannon for the position. The record supports Geiger’s claim that

Buycks preferred Strong as a candidate for the position. Indeed, he offered her the job

instead of Geiger. However, Buycks’s preference for Strong is not actionable unless it

was motivated by discriminatory animus. See Browning v. Dep’t of the Army, 436 F.3d

692, 696-97 (6th Cir. 2006) (“[T]he employer’s motivation, not the applicant’s

perceptions, or even an objective assessment [] of what qualifications are required for

a particular position, is key to the discrimination inquiry.” (internal quotation marks

omitted)); Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987) (“So long as its reasons

are not discriminatory, an employer is free to choose among qualified candidates.”).

Because Geiger has failed to present evidence that Buycks terminated or refused to hire

Geiger on account of his age, he cannot establish that Buycks’s preference for Strong is

discriminatory.

Next, Geiger points to the alteration in Kreuter’s email that distorted the

language of the email to make the MRO Area Buyer selection process seem more fair.

The email Geiger initially received in discovery stated, “Al, you should plan to contact

the current plant MRO Buyers to make sure they are aware of and apply for the positions

and talk with them personally about the role.” However, the original email stated, “Al,

5

The parties dispute whether Geiger actually submitted an application to be MRO Area Buyer.

Tower claims that there is no electronic record of his application. This factual dispute is of no

consequence in this case because the record indicates that Geiger was interviewed and considered for the

job, regardless of whether his application was received.

No. 08-1314 Geiger v. Tower Automotive Page 14

you should plan to contact those MRO buyers that you want to make sure apply for the

positions and talk with them personally about the role” (emphasis added). Although this

alteration is undeniably suspicious, it is ultimately irrelevant because there is no

evidence that Strong was hired or that Geiger was discharged on account of age.

Furthermore, Geiger has offered no proof to show that Kreuter participated in the

decisions to choose Strong or terminate Geiger. See Rowan, 360 F.3d at 550.

Lastly, Geiger claims that Moorman’s testimony is indicative of the fact that a

mistake was made in terminating him. In her deposition, Moorman was asked why a

document generated after Geiger’s termination had him listed as “laid off.” She

responded, “I maybe made a boo-boo.” Geiger claims that the “boo-boo” was his

discharge from Tower. Upon closer reading, however, it is clear that Moorman’s

response refers to the fact that the document she created listed Geiger as having been

“laid off,” and thus subject to recall for future employment, instead of “terminated.” The

“boo-boo” was that she meant to categorize Geiger’s employment as terminated.

Moreover, Geiger’s interpretation of this exchange is illogical given that five lines down

from this statement, Moorman stated that she did not even know who made the decision

to terminate Geiger. Her “boo-boo” could not have been discharging Geiger because she

had nothing to do with the decision.

Because Geiger has failed to provide additional evidence that he was terminated

or not hired on account of his age, as required by the heightened standard for work force

reduction cases, Barnes, 896 F.2d at 1465, we find that Geiger has not established a

prima facie case of age discrimination.

Furthermore, even if we were to assume that the evidence Geiger presented met

the heightened standard and established a prima facie case of age discrimination, Geiger

nevertheless has not established that Tower’s stated reason – a reduction in force from

21 employees to 6 – was pretext and that age was the real reason for Geiger’s

termination. The record indicates that Tower chose the better worker when it hired

Strong for one of the few consolidated positions that covered Geiger’s and others’

former responsibilities. Because Geiger has not presented evidence that Tower’s

No. 08-1314 Geiger v. Tower Automotive Page 15

legitimate, non-discriminatory reason was pretextual, we find that the district court

correctly granted summary judgment to Geiger on his ADEA claim.

B. ELCRA

Geiger also claims that his termination violates the ELCRA. The ELCRA

prohibits “discriminat[ing] against an individual with respect to employment,

compensation, or a term, condition, or privilege of employment, because of . . . age[.]”

Mich. Comp. Laws § 37.2202(1)(a). ELCRA claims are analyzed under the same

standards as federal ADEA claims. See Blair, 505 F.3d at 523 (analyzing ADEA and

ELCRA claims “together” under the same standards in a work force reduction case).

Because Geiger has failed to present evidence sufficient to establish the elements of an

ADEA claim, he has similarly failed to establish a prima facie case under the ELCRA.

Because we find that Geiger has not established a claim under the ELCRA, we need not

address Tower’s arguments that Geiger’s ELCRA claims are time-barred.

III.

For the foregoing reasons, we affirm the district court’s grant of summary

judgment to Tower.

No. 08-1314 Geiger v. Tower Automotive Page 16

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CONCURRING IN THE RESULT

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ROGERS, Circuit Judge, concurring. I concur in the result, but would base

affirmance on Geiger’s not having shown pretext, even assuming that Geiger had made

out a prima facie case of age discrimination.