Federal Circuits, 6th Cir. (February 04, 1991)
Docket number: 90-5396
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U.S. Supreme Court - Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
U.S. Supreme Court - Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988)
U.S. Supreme Court - Pullman-Standard v. Swint, 456 U.S. 273 (1982)
U.S. Supreme Court - Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981)
U.S. Supreme Court - McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
U.S. Supreme Court - United States v. United States Gypsum Co., 333 U.S. 364 (1948)
U.S. Court of Appeals for the 2nd Cir. - Annmarie Lowe and Marie Delisi, Plaintiffs-Appellants, v. Commack Union Free School District, Joseph Del Rosso, as Superintendent of Schools, and Robert L. Davis, as Assistant Superintendent of Schools, Defendants-Appellees., 886 F.2d 1364 (2nd Cir. 1989) Plaintiffs-Appellants, v. Commack Union Free School District, Joseph Del Rosso, as Superintendent of Schools, and Robert L. Davis, as Assistant Superintendent of Schools, Defendants-Appellees.
Before RYAN and ALAN E. NORRIS, Circuit Judges, and JOINER, Senior District Judge.*
RYAN, Circuit Judge.Clyde Smith appeals the district court's decision finding that his former employer, the Tennessee Valley Authority ("TVA"), did not violate the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec . 633a, when it terminated him pursuant to a reduction in force. We are asked to decide:--Whether the district court clearly erred in ruling that the TVA did not discriminate against Smith based on his age under the theory of disparate treatment; and--Whether the district court clearly erred in ruling that the TVA did not discriminate against Smith based on his age under the theory of disparate impact.We conclude that the district court correctly decided all of these matters and that its judgment should, therefore, be affirmed.I.Plaintiff-appellant Smith worked as an M-41 General Steamfitter Foreman in TVA's Division of Power Engineering and Construction ("PE & C"), Construction Services Group ("CSG"). He began working for TVA in 1969 and was promoted to line management in 1977. He was sixty-one years old when TVA terminated him in 1988.In May 1988, economic necessity forced TVA to order a reduction in force ("RIF") of 7,000. As part of the RIF, the CSG and all of its positions would be eliminated; its functions, plus those of PE & C's Engineering Group, would be assumed by a new organization, Fossil and Hydro Construction ("FHC"). FHC would employ far fewer workers: twenty-one managers as opposed to the fifty-six employed by the Power Construction organization. The new FHC would require four Regional Construction Managers ("RCMs") and twelve Area Construction Superintendents ("ACSs") who reported to the RCMS. TVA labelled the RCM positions as M-7 and the ACS positions as M-5 or M-6, depending on the complexity of the jobs involved. Decisions about who would receive the new management jobs were determined by the head of FHC, Daniel Cowser; Lawrence Chapman (M-7), CSG General Construction Superintendent and newly appointed RCM; and Ronald Haynes (M-6), an Assistant General Construction Superintendent of CSG who was also named an RCM.Cowser, Chapman, and Haynes believed that the duties of the new ACS positions differed from those of the foremen. The ACS position required more accountability for results and the ability to manage larger projects with less staff. ACSs also had greater responsibility for scheduling, budgeting, engineering, labor relations, administration, and paperwork. In staffing these positions, Cowser, Chapman, and Haynes sought flexible employees who could adapt to change. Chapman and Haynes, who had been Smith's supervisors in the years preceding the RIF, did not recommend him for this position because they believed he was unable to adapt to change and needed too much staff assistance, which would no longer be available. They also believed that other general foremen had more education and specialized expertise which would be lost to the organization if they were not selected. Smith's expertise, steamfitting, was already accounted for by Haynes' background in this type of work.In addition to the reorganization, the RIF also encompassed a voluntary reduction component. In June 1988, TVA sent a notice to employees explaining the voluntary RIF program, which included double severance pay, and the reorganization which would result in only sixteen line management positions in FHC.After receiving the information packet, Smith met with Haynes who informed him that he had not been selected for a FHC position and thus would be unemployed after the RIF. Smith later called Haynes at home and asked Haynes for advice. Haynes told him that if he were in Smith's position, approaching retirement and about to be terminated, he would volunteer for the RIF and retire. Smith volunteered for the RIF on July 13. TVA accepted his decision on July 27, and his last day of work was on August 1, 1988 when all of the slots were filled.In the middle of October 1988, Smith discovered that TVA had retained other M-4 General Foremen who were younger than he and less experienced. TVA had retained ten of the twenty-one General Construction Foremen and promoted the six M-4s to a pay grade of M-5. Smith was surprised about these retentions because his performance evaluations for the previous five years, graded on a scale of excellent, superior, proficient, acceptable or unsatisfactory, included two superiors and three proficients. Only one of the six retained M-4 foremen had more superior ratings than Smith did. Smith also had worked for TVA longer than all but one of the six retained foremen.Consequently, on March 8, Smith filed a formal administrative complaint with the Equal Employment Opportunity Commission ("EEOC"). TVA rejected this claim as untimely on March 31, 1989. Smith filed this action in district court on April 27, 1989.The court entered a memorandum opinion and judgment in favor of TVA, finding that although Smith made a prima facie case of age discrimination by showing that TVA retained foremen aged 29, 39, 42, 42, 49, and 52, and terminated foremen aged 41, 45, 59, 51, 53, 53, 58, and 61, Smith did not meet his burden rebutting TVA's explanation that age was not a factor in the selection process.II.Under the ADEA, it is unlawful for any employer to discharge an individual "because of such individual's age." 29 U.S.C. Sec . 623(a)(1). Claims under the ADEA may be brought under either a disparate treatment or disparate impact theory. Whether the ADEA has been violated under either theory is reviewed on appeal for clear error. Pullman-Standard v. Swint, 456 U.S. 273, 290 (1982); Antonio v. Wards Cove Packing Co., Inc., 827 F.2d 439, 443 (9th Cir.1987), rev'd on other grounds, 109 S.Ct. 2115 (1989). Thus, a reviewing court must affirm the district court's decision in ADEA cases unless it is "left with the definitive and firm conviction that a mistake has been committed." See United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).A. Disparate TreatmentA plaintiff establishes a prima facie case of intentional age discrimination when he shows that he was a member of the protected class, 40-70 year olds; he was discharged; he was qualified for the position; and he was replaced by a younger person. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). When a plaintiff proves that age played a motivating role in the termination, the employer may avoid liability only by proving by a preponderance of the evidence that it would have reached the same decision without taking account of the plaintiff's age. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Thus, the burden of production shifts to the employer to articulate a legitimate nondiscriminatory reason for the termination. McDonnell Douglas, 411 U.S. at 804. Finally, the burden of production shifts back to the employee to show that these reasons are pretextual. Id. Although the burden of production shifts throughout the process, the burden of persuasion remains with the plaintiff at all times. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).In establishing a prima facie case, an ADEA plaintiff terminated during an RIF carries "a greater burden of supporting charges of discrimination than an employee who was not terminated for similar reasons." Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th Cir.1986). In addition to showing the usual requirements of an age discrimination suit, an employee discharged during an RIF "must come forward with additional direct, circumstantial, or statistical evidence that age was a determining factor in his termination." Id. The failure to retain a competent older employee when economic necessity requires a reduction in force will not establish age discrimination. LaGrant v. Gulf & Western Mfg. Co., Inc., 748 F.2d 1087, 1090-91 (6th Cir.1984). This is especially true when, as here, the plaintiff presents no evidence that management favored younger workers, tended to fire older workers, or expressed disfavor toward older workers. Id. at 1091.Even if Smith established a prima facie case, he did not refute TVA's claim that age was not a factor. A plaintiff can challenge the credibility of the defendant's business justification in three ways: by showing that the reasons had no basis in fact; by showing that they were not the actual factors behind the discharge; or by showing that they were insufficient to motivate the discharge. Chappell v. GTE Prod. Corp., 803 F.2d 261, 266 (6th Cir.1986), cert. denied,