Ercegovich v. Goodyear Tire & Rubber Co.

• Decision Date: 19 October 1998
• Docket Number: No. 97-3431,97-3431
• Citation: 154 F.3d 344
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1224, 74 Empl. Prac. Dec. P 45,676 Edward E. ERCEGOVICH, Plaintiff-Appellant, v. GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 344

154 F.3d 344

77 Fair Empl.Prac.Cas. (BNA) 1224,

74 Empl. Prac. Dec. P 45,676

Edward E. ERCEGOVICH, Plaintiff-Appellant, v. GOODYEAR TIRE & RUBBER COMPANY, Defendant-Appellee.

No. 97-3431.

United States Court of Appeals, Sixth Circuit.

Argued May 1, 1998.

Decided Aug. 31, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 19, 1998.

Joseph W. Diemert, Jr. (argued and briefed), Laura J. Gentilcore, Joseph W. Diemert, Jr. & Associates, Cleveland, OH, for Plaintiff-Appellant.

James D. Kurek (briefed), Vincent J. Tersigni (argued and briefed), Buckingham, Doolittle & Burroughs, Akron, OH, for Defendant-Appellee.

Before: JONES, MOORE, and COLE, Circuit Judges.

OPINION

MOORE, Circuit Judge.

The plaintiff-appellant, Edward Ercegovich, was formerly employed by the defendant-appellee, the Goodyear Tire & Rubber Company ("Goodyear"), as the Quality Systems Coordinator in Human Resources Development, Retail Sales Division. Ercegovich claims that he is the victim of employment discrimination, alleging 1) that Goodyear eliminated his position because of his age, and 2) then refused to offer him the opportunity to transfer to other positions within the corporation because of his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") as amended, 29 U.S.C. § 623(a), and Ohio's age-discrimination laws, OHIO REV.CODE ANN. § 4101.17, recodified as § 4112.14 (Banks-Baldwin West 1994 & Supp. 1998). The district court granted Goodyear's motion for summary judgment after concluding that Ercegovich failed to present evidence satisfying his prima facie burden, and in the alternative failed to show that Goodyear's explanation for eliminating his position was pretextual. Although we agree that Ercegovich failed to produce sufficient evidence of pretext with respect to his first claim challenging the reason for the elimination of his position, the district court erred in determining that Ercegovich failed to establish a prima facie case with respect to his second age-discrimination claim. After reviewing Ercegovich's evidence of pretext, we conclude that there is a genuine issue of material fact on which reasonable jurors could differ with respect to whether Goodyear discriminated against Ercegovich on the basis of age by reassigning younger employees to new positions without affording Ercegovich the same opportunity. Accordingly, we affirm in part and reverse in part and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Edward Ercegovich was born on October 15, 1937. He began working for Goodyear in 1962, and continued in Goodyear's employment until his dismissal in 1994. At the time of his firing, Ercegovich, then age fifty-seven, served as a Quality Systems Coordinator in Human Resources Development, Retail Sales Division in Akron, Ohio. Ercegovich was responsible for the training of retail managers throughout the country for the purpose of improving customer service. Ercegovich reported to Kim Lauritzen, Manager of Human Resources Development, who in turn reported to Paul Evert, Manager of Human Resources. Evert reported to Vice President Ed Gallagher, who oversaw the entire Retail Sales Division. J.A. at 503 (Pl.'s Ex. 2).

In 1994, Goodyear allegedly determined that improvements in customer service could be best achieved by reassigning responsibility for the training of retail store managers from Ercegovich to district managers. Goodyear claims that the decision to eliminate Ercegovich's position was made by Evert and Lauritzen, although Ercegovich believes Vice President Gallagher also had some input into the decision. On October 28, 1994, Ercegovich was informed of his termination by Lauritzen and Bob Morris, Personnel Manager. Ercegovich then met with Cathy Smith, Human Resources Consultant, who offered him the choice of either retirement or recallable layoff status. Rather than elect recallable layoff status and face the possibility of losing his medical benefits if not recalled within six months, Ercegovich elected to retire so that he could receive his full pension and medical benefits. Although Goodyear claims that it searched for other positions within the company for which Ercegovich was qualified and that other positions were available to him in Washington, D.C. and Detroit, Ercegovich claims that Lauritzen and Morris advised him that no alternative positions were available to him, J.A. at 406-07 (Ercegovich Dep.), and that Smith never discussed with him the possibility of transferring to another position within the company. J.A. at 402 (Ercegovich Dep.). Goodyear disputes Ercegovich's version of events and claims Ercegovich informed Smith that he was unwilling to relocate from Akron. See Def.-Appellee's Br. at 14, 28-29.

As part of the continued reorganization of Human Resources Development, Goodyear eliminated two other positions in April of 1995--Manager of Human Resources and Personnel Development Specialist. J.A. at 378 (Attachment M--Movement of Associates); 686, 697-98 (Lauritzen Dep.). After the elimination of his position as Manager of Human Resources, Paul Evert, age forty, received a transfer to another position within the Retail Sales Division. J.A. at 378 (Attachment M--Movement of Associates). Karen Cohn, who was hired two weeks prior to the elimination of Ercegovich's position, J.A. at 70-71 (Ercegovich Dep.), was transferred to the position of Personnel Administrator after the elimination of her position as Personnel Development Specialist. J.A. at 378 (Attachment M--Movement of Associates). Cohn was twenty-eight years old at the time. See id.

On December 27, 1994, Ercegovich filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). On October 13, 1995, the EEOC issued to the Ercegovich a right to sue notice. Ercegovich then filed suit in federal court, raising claims under the ADEA, 29 U.S.C. § 623(a), and Ohio's age-discrimination laws. OHIO REV.CODE ANN. § 4101.17, recodified as § 4112.14. The district court granted Goodyear's motion for summary judgment on the ground that Ercegovich failed to establish a prima facie case of age discrimination. Alternatively, the district court held that even if Ercegovich established a prima facie case, he failed to show that Goodyear's proffered explanation for the elimination of his position was pretextual. This appeal followed.

The district court had jurisdiction over the plaintiff-appellant's federal claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the plaintiff-appellant's state claims under 28 U.S.C. § 1367. We have appellate jurisdiction over the district court's final order pursuant to 28 U.S.C. § 1291.

II. FEDERAL AGE DISCRIMINATION CLAIMS

We review de novo the district court's grant of summary judgment. See McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 372 (6th Cir.1997). Summary judgment is appropriate when there is no dispute as to a material question of fact and one party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56. We must view all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993). If after reviewing the record as a whole a rational factfinder could not find for the nonmoving party, summary judgment is appropriate since there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Ercegovich's complaint raises two related but separate claims of age discrimination. First, Ercegovich claims that the decision to eliminate his position was motivated not by economic reasons, but by age bias. J.A. at 8 (Compl.pp 9, 13). Second, Ercegovich claims that in contrast to his younger counterparts whose positions also were terminated as part of the reorganization, Goodyear did not offer him the opportunity to transfer to other positions in the company for which he was qualified, and its failure to do so was due to age bias. J.A. at 8 (Compl.pp 10, 13). ¹ We hold that although the district court properly granted Goodyear's motion for summary judgment with respect to Ercegovich's first claim of age discrimination, the district court improperly granted summary judgment to Goodyear on Ercegovich's second claim.

A. Elimination of Ercegovich's Position

The ADEA prohibits employers 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). Where the plaintiff fails to present direct evidence of discrimination, the courts analyze ADEA cases under the three-step McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Initially, the plaintiff must present evidence sufficient to establish a prima facie case of age discrimination. See Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1389 (6th Cir.1993). Once a plaintiff satisfies his or her prima facie burden, the burden of production shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment action. See id. If the employer meets this burden, the burden of production shifts back to the plaintiff to show that the employer's nondiscriminatory explanation is a mere pretext for intentional age discrimination. See id.

Where the employer eliminates an employee's position pursuant to a reduction in force or a reorganization, the employee establishes a prima facie case of age discrimination when he or she shows (1) that he or she was forty-years old or older at the time of his or her dismissal; (2) that he or she was qualified for the position; (3) that he or she was discharged; and (4) "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons."...