317 F.3d 564 (6th Cir. 2003), 99-3929, Wexler v. White's Furniture, Inc.

Docket Nº:99-3929
Citation:317 F.3d 564
Party Name:Wexler v. White's Furniture, Inc.
Case Date:January 27, 2003
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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317 F.3d 564 (6th Cir. 2003)

Donald G. WEXLER, Plaintiff-Appellant,


WHITE'S FINE FURNITURE, INC., Defendant-Appellee.

No. 99-3929.

United States Court of Appeals, Sixth Circuit

January 27, 2003

Argued: March 20, 2002.

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Louis A. Jacobs (argued), Columbus, OH, for Appellant.

James E. Davidson (argued and briefed), Sehottenstein, Zox & Dunn, Columbus, OH, for Appellee.

John S. Marshall (briefed), Columbus, OH, for Appellant.


GILMAN, Judge, delivered the opinion of the court, in which MARTIN, Chief Circuit Judge, DAUGHTREY, MOORE, COLE, and CLAY, Judges, joined. KRUPANSKY, Judge (pp. 578-597), delivered a separate dissenting opinion. BOGGS, Judge (p. 597), also delivered a separate dissenting opinion, in which BATCHELDER, Judge, joined.


GILMAN, Circuit Judge.

Donald G. Wexler was hired as a sales representative by White's Fine Furniture, Inc. in September of 1993. He was 55 years old at the time. Less than two years later, Wexler was promoted to be the manager of the company's Morse Road store. Wexler, however, was demoted in June of 1997, after sales at the store had significantly declined. At a private meeting during which Wexler was informed of his demotion, the two senior corporate officers made several adverse references to Wexler's age. Wexler's age was again mentioned when the company's president announced the demotion to the store's other employees. During this same speech, the youth of Wexler's successor was emphasized.

Wexler filed suit against White's, claiming that his demotion violated the Age Discrimination in Employment Act (ADEA). The district court granted summary judgment to White's after concluding that Wexler was not qualified for his job as store manager and that, even if Wexler were qualified, White's had proffered a legitimate, nondiscriminatory reason for his demotion. A panel of this court affirmed the district court's decision, but we

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subsequently granted Wexler's petition for a rehearing en banc and vacated the panel's decision. For the reasons set forth below, we REVERSE the district court's grant of summary judgment and REMAND the case for further proceedings consistent with this opinion.


A. Factual background

White's owns and operates retail furniture stores in the greater Columbus, Ohio area. In September of 1993, Wexler was hired by Gordon Schiffman to work as a sales representative at the Morse Road store. Schiffman, the president, chief executive officer, and a controlling shareholder of White's, was in his mid-sixties at the time. In February of 1995, Wexler became the manager of the Morse Road store. Wexler was 57 years old when Schiffman promoted him.

Sales at the Morse Road store began to decline in late 1996. Between November of 1996 and May of 1997, for example, average monthly sales at the store were 30% lower than they had been the previous year. Wexler himself sold 48% less furniture during that time period than he had during the same six-month interval the prior year.

Schiffman, as president, and David Lively, the executive vice-president, met with Wexler on June 9, 1997. During this meeting, Schiffman expressed dissatisfaction with the store's declining sales and criticized Wexler for failing to fulfill certain aspects of his managerial duties. Wexler responded in writing to these criticisms the following day. His response included a discussion of the fact that furniture sales were declining nationwide. He also noted that, in early June, Lively had admitted that the declining sales were not Wexler's fault and that White's had scaled back advertising for the Morse Road store.

Schiffman and Lively advised Wexler six days later that the company planned to demote him to his former job as a sales representative. In order to encourage Wexler to accept the demotion, Schiffman and Lively offered him a higher commission on the furniture he sold than he had received when he was originally a sales representative. According to Wexler, he had the following exchange with Schiffman at the beginning of this meeting:

Gordon [Schiffman] had a smile on his face, said he had read the paper that I had given him [responding to Schiffman's criticisms], and that most of what I had written was correct. However, they have decided to make a change.

He then said, you're 60 years old, aren't you, Don? I said, no, Gordon. I'm 59. I'll be 60 in January. He then said, well, we both have been in the business 117 years. You don't need the aggravation, stress of management problems, customer problems, taking care of all these salespeople's problems that keep calling you to the phone all day every day.

Mr. Lively then interjected that they were going to really be grinding their managers in the future, and if they had to sweep floors or stay there until 11:00 p.m., they would do so. And he said it was stuff that I don't think you'd want to be doing.

Wexler accepted his new position as a sales representative on June 16, 1997. Later that evening, Schiffman telephoned Wexler to discuss how he would announce to the other employees that Wexler would no longer be the manager of the Morse Road store. During this conversation, Schiffman said that he would "just mention that you're getting older, although not as old as I am."

Wexler recorded the June 19, 1997 meeting during which Schiffman announced

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Wexler's demotion to the other employees. During his speech, Schiffman said the following:

I'm going to share with you a conversation that Don Wexler, David Lively and I started in January. Don came back to my office one day and said Gordon, I've been in my [sic] management for a bunch of years, and I'm not sure what I want to do. Maybe I should just be worrying about my own customer[s] and not everyone else's customers. This is getting to be tiring.

At that time we were interviewing for managers, because we needed somebody for this store. . . . But we did interview another guy that we thought was top drawer. We thought that he was just absolutely a terrific kid. He's about David [Lively]'s age, been in the furniture business about as long as David. He's about as intense as David is. He's a fine guy. His name is John Nielson [sic].

I think you will like him very much. He is a fine, proper young man. . . . Don't be misled by his youth anymore than being misled by David Lively's youth.

Wexler contends that the above-mentioned incidents were not the only times that his age was referred to in a pejorative manner by company officials. He claims that Lively had once offered to retrieve a pen from the floor that Wexler had dropped, "out of respect for [Wexler's] age." Lively had also once allegedly described Wexler to a manufacturer's representative as "a bearded, grumpy old man." Finally, Wexler claims that Lively had occasionally addressed him as "pops" or "old man." Lively was then in his early thirties.

John Neilson, who was hired as the new manager of the Morse Road store, was also in his early thirties at the time. Sales at the Morse Road store continued to decline under Neilson's supervision, and he was removed as manager approximately five months later. Neilson's successor, Alvie Crank, was in his mid-thirties when he was hired to manage the store. Under Crank, sales continued to decline. Store sales were $2,507,384 during 1998, as compared with over $4 million in sales during the last full year that Wexler was manager. Crank, however, was neither fired nor demoted as a result of the declining sales.

B. Procedural background

In April of 1998, Wexler filed a one-count complaint against White's in the United States District Court for the Southern District of Ohio, alleging age discrimination in employment. After discovery, White's moved for summary judgment. The district court granted the motion, ruling that Wexler's evidence failed to support his prima facie case and, even if Wexler had established a prima facie case, he had failed to prove that the company's nondiscriminatory reason for demoting him was a pretext designed to mask age discrimination. A panel of this court then affirmed the district court's decision. Wexler v. White's Fine Furniture, Inc., 246 F.3d 856 (6th Cir. 2001). In July of 2001, however, this court granted Wexler's petition for a rehearing en banc and vacated the panel's decision. We now take this opportunity to clarify several important, recurring issues in employment discrimination law, including the same-actor inference, the same-group inference, what is required for a plaintiff to satisfy the qualification prong of the prima facie test, and the business-judgment defense.


A. Standard of review

A district court's grant of summary judgment is reviewed de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000)

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(en banc). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering such a motion, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Evidence of age discrimination

Under the ADEA, an employer is prohibited from discharging older employees on the basis of their age. 29 U.S.C. § 623(a). An employee may establish a claim under the ADEA by offering...

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