Grosjean v. First Energy Corp.

• Citation: 349 F.3d 332
• Decision Date: 13 November 2003
• Docket Number: No. 02-3361.,02-3361.
• Parties: William GROSJEAN, Plaintiff-Appellant, v. FIRST ENERGY CORPORATION; Toledo Edison Energy, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

349 F.3d 332

William GROSJEAN, Plaintiff-Appellant, v. FIRST ENERGY CORPORATION; Toledo Edison Energy, Defendants-Appellees.

No. 02-3361.

United States Court of Appeals, Sixth Circuit.

Argued: August 7, 2003.

Decided and Filed: November 13, 2003. Pursuant to Sixth Circuit Rule 206

ARGUED:

John D. Franklin, LAW OFFICES OF JOHN D. FRANKLIN & ASSOCIATES, Toledo, Ohio, for Appellant.

Denise M. Hasbrook, ROETZEL & ANDRESS, Toledo, Ohio, for Appellees.

ON BRIEF:

John D. Franklin, LAW OFFICES OF JOHN D. FRANKLIN & ASSOCIATES, Toledo, Ohio, for Appellant.

Denise M. Hasbrook, ROETZEL & ANDRESS, Toledo, Ohio, for Appellees.

Before: BOGGS, Chief Judge; SILER, Circuit Judge; and RICE, District Judge.^*

OPINION

BOGGS, Chief Judge.

William Grosjean appeals the district court's summary judgment for his employers, First Energy Corporation and its Toledo subsidiary, Toledo Edison Energy, (collectively "First Energy"), in his age discrimination action against them. Grosjean had lost his supervisory title and duties after his superior had rated him as inadequate in dealing with his subordinates. The district court granted summary judgment because Grosjean failed to demonstrate that First Energy's proffered reason for the demotion, the unfavorable rating, was a mere pretext. We affirm on the alternative basis that Grosjean failed to make his prima facie case of age discrimination because he was not replaced by a person significantly younger than himself.

I

First Energy hired Grosjean in 1970 as a plant helper, a unionized position. Over the following two decades he was steadily promoted until in 1990 he joined management as a machine shop supervisor at First Energy's Bayshore, Ohio, power plant. In 1997, he was reassigned to a position as yard supervisor. His new responsibilities included scheduling the large coal trains that fed the power plant, supervising the fourteen workers who unloaded the trains, and disposing of the ash generated. Grosjean was instructed in these duties by John Gallagher, an experienced yard supervisor. After six months of training, Gallagher and Grosjean divided the shifts between them. Both Gallagher and Grosjean worked weekdays and would split weekend shifts. Their supervisor during the relevant period was the director of production, Kenneth Dresner.

During 1998, there appear to have been no significant problems with Grosjean's performance. However, during 1999, Dresner and Grosjean had a series of meetings to discuss what Dresner felt were inadequacies in management style. The common element of these complaints was that Dresner considered Grosjean to be neither sufficiently strict with the workers under his supervision nor loyal to Dresner. In Dresner's view, these meetings did not result in an appreciable improvement in the problem areas. On March 2, 2000, Grosjean met with Dresner to discuss his performance rating report for 1999, authored by Dresner. This report, while praising Grosjean's technical competence, was damning with respect to his management role. On this basis, Dresner recommended a performance rating of "does not meet expectations." As a result of this rating, Grosjean was reassigned from his supervisory position to a newly-created position of planner. As a planner, he would continue to schedule trains and receive the same salary and benefits, but he would no longer have supervisory responsibility for any other employees. Grosjean's supervisory duties were returned to Gallagher on a temporary basis. As a consequence Gallagher worked more than a thousand hours overtime during the remaining ten months of the year. Eventually, the position was filed by Richard Riley. At the time of Dresner's unfavorable performance rating, Grosjean was 54 years old, Dresner was 41 years old, Gallagher was 48 years old, and Riley was 51 years old.

On May 2, 2001, Grosjean filed a complaint against First Energy in the United States District Court for the Northern District of Ohio. In it he claimed that First Energy had discriminated against him on the basis of his age, in violation of the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the Ohio anti-discrimination statute, Ohio Rev.Code § 4112.02. In particular, Grosjean alleged that First Energy had demoted him from his supervisory position, that he had been denied a bonus for the year 1999, and that he had been denied a promotion back to his old position. On February 22, 2002, the district court granted summary judgment to First Energy on the basis that Grosjean had presented insufficient evidence that First Energy's stated legitimate, non-discriminatory reason for its actions, the unfavorable performance report, was pretextual. Before this court now is Grosjean's timely appeal of that grant.

II

Age discrimination cases under the ADEA are analyzed under the same framework as employment discrimination cases under Title VII. Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538 (6th Cir.2002) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992)). Proof in such cases proceeds in three stages. Kline v. Tenn. Valley Auth., 128 F.3d 337, 342 (6th Cir.1997) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). First, "[i]n order to prove a prima facie case of discrimination, a plaintiff must show 1) that he is a member of a protected group, 2) that he was subject to an adverse employment decision, 3) that he was qualified for the position, and 4) that he was replaced by a person outside of the protected class." Kline, 128 F.3d at 349 (citing Talley v. Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6th Cir.1995)). In age discrimination cases, the protected class includes all workers at least 40 years old and the fourth element is modified to require replacement not by a person outside the protected class, but merely replacement by a significantly younger person. Kline, 128 F.3d at 352-53; O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). Second, "[i]f the plaintiff establishes [a] prima facie case, the burden then shifts to the defendant to `articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" Kline, 128 F.3d at 342 (quoting Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089). Third, after the defendant has met this burden, "the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer's explanation." Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir.1994). In some cases, plaintiff's evidence establishing the prima facie case can also be sufficient to meet one or more of the elements necessary to rebut the defendant's proffered non-discriminatory reasons. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

We conclude that Grosjean was not replaced by a significantly younger person. He therefore failed to make his prima facie case and we need not address the legitimate-reason and pretext parts of the McDonnell analysis, the bases on which the district court decided the issue.

Grosjean argues that he was initially replaced by Gallagher, who temporarily took over his duties in addition to his own. However, Gallagher's assumption of Grosjean's duties does not constitute replacement under the law of this circuit. A "person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties." Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.1990) (citing Sahadi v. Reynolds Chem., 636 F.2d 1116, 1117 (6th Cir.1980)); see also Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir.1992) ("Spreading the former duties of a terminated employee among the remaining employees does not constitute replacement."); Godfredson v. Hess & Clark, 173 F.3d 365, 372-73 (6th Cir.1999) (reaffirming Barnes, 896 F.2d at 1465).

Grosjean was replaced, in both the colloquial and the legal meanings of that term, by Riley. That Riley was as much part of the protected class of workers over 40 as Grosjean does not preclude the making of a prima facie case.

The fact that one person in the protected class has lost out to another person in the protected class is ... irrelevant, so long as he has lost out because of his age. Or to put the point more concretely, there can be no greater inference of age discrimination ... when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old.

O'Connor, 517 U.S. at 312, 116 S.Ct. 1307. However, "the prima facie case requires evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion." Ibid. This "inference cannot be drawn from the replacement of one worker with another worker insignificantly younger." Id. at 313, 116 S.Ct. 1307.¹ Therefore, the question reduces to whether Riley, at age 51, was significantly younger than Grosjean, at age 54.²

Age differences of ten or more years have generally been held to be sufficiently substantial to meet the requirement of the fourth part of age discrimination prima facie case. See, e.g., Balut v. Loral Elec. Sys., 166 F.3d 1199, 1998 WL 887194, at *1 (2d Cir.1998) (table) (replacement of 57-year old with 47-year old was sufficient); Sempier v. Johnson & Higgins, 45 F.3d 724, 729-30 (3d Cir.1995) (replacement of employee with two others, one "well over ten years younger," sufficient); Hollander v. Am. Cyanamid Co., 172 F.3d 192, 199 & n. 3 (2d Cir.1999) (transfer of duties from 58-year old to two other employees, one 11 years and one 8 months younger, sufficient); O'Connor v. DePaul Univ., ...