Lefevers v. GAF Fiberglass Corp

Filing

OPINION and JUDGMENT filed: AFFIRMED, decision for publication pursuant to local rule 206. Boyce F. Martin, Jr. (AUTHORING), Richard F. Suhrheinrich, R. Guy Cole, Jr., Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0023p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 00-5667
v.
>
,
GAF FIBERGLASS CORPORATION,
Defendant-Appellee. N
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 99-00001—Todd J. Campbell, Chief District Judge.

GEORGE A. LEFEVERS,

Plaintiff-Appellant,

Argued: January 11, 2012
Decided and Filed: January 27, 2012
Before: MARTIN, SUHRHEINRICH, and COLE, Circuit Judges.
_________________
COUNSEL
ARGUED: Christopher K. Thompson, Nashville, Tennessee, for Appellant. Frederick
T. Smith, SEYFARTH SHAW, Atlanta, Georgia, for Appellee. ON BRIEF:
Christopher K. Thompson, Nashville, Tennessee, for Appellant. Frederick T. Smith,
Donna L. Keeton, SEYFARTH SHAW, Atlanta, Georgia, for Appellee.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. George Lefevers appeals the dismissal
of his age discrimination suit. As Tolstóy wrote, “We do not beat the Wolf for being
gray, but for eating the sheep.”1 Lefevers has failed to show that age discrimination,

1

COUNT LEV N. TOLSTÓY, The Wolf and the Hunters, in 12 THE COMPLETE WORKS OF COUNT
TOLSTÓY 31 (Leo Wiener trans., Dana Estes & Co. 1904) (1869-72).

1

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rather than his poor performance, motivated his termination. For the reasons that follow,
we AFFIRM.
I.
Lefevers was terminated from his job as shift supervisor at GAF Fiberglass
Corporation’s Nashville plant in August 1998. He was fifty-eight years old at the time
of his termination. He claims that he was terminated because of his age, in violation of
the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., and the
Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-21-101, et seq.
In support of his claim, Lefevers offers evidence of several statements made by
GAF

employees,

evidence

regarding

performance

appraisals

and

related

communications, and assertions of having been replaced by another employee.
Lefevers’s performance appraisals for the periods before 1997 were positive or average;
his 1997 appraisal was negative. Lefevers sought to have the 1997 appraisal changed
to a more positive evaluation, but GAF refused to change it.
GAF states that Lefevers was terminated as part of a reduction in force. After
Lefevers’s termination, Tom Ladd, then-active General Supervisor, assumed supervisory
responsibility for the shift Lefevers formerly supervised.
Following his termination, Lefevers filed this lawsuit in federal court. GAF
moved for summary judgment on Lefevers’s claims and the district court granted the
motion. Lefevers appealed, but the case on appeal was stayed due to GAF’s 2001
bankruptcy. GAF’s reorganization plan was confirmed in 2009. The automatic stay is
no longer in effect, and the appeal is now before this Court.
II.
“We review a district court’s grant of summary judgment de novo.” Binay v.
Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (citation omitted). Summary judgment is
proper if the materials in the record “show[] that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(a). “In deciding a motion for summary judgment, the court must view the factual
evidence and draw all reasonable inferences in favor of the nonmoving party.” Banks
v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
III.
“The [Age Discrimination in Employment Act] prohibits an employer from
discharging an employee ‘because of such individual’s age.’” Schoonmaker v. Spartan
Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir. 2010) (quoting 29 U.S.C.
§ 623(a)(1)). “An employee may establish a claim under the [Act] by offering either
direct or circumstantial evidence of age discrimination.” Wexler v. White’s Fine
Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (citing Kline v. Tenn. Valley Auth.,
128 F.3d 337, 348 (6th Cir. 1997)). “The ultimate question in every employment
discrimination case involving a claim of disparate treatment is whether the plaintiff was
the victim of intentional discrimination.” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th
Cir. 2009) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153
(2000)) (internal quotation marks omitted).
“We apply the same analysis to age-discrimination claims brought under the
[Tennessee Human Rights Act] as those brought under the [Age Discrimination in
Employment Act].” Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 620 (6th Cir. 2006)
(citations omitted).
A.
Lefevers alleges that several statements were made that are direct evidence of
discrimination. He alleges that, in late 1996 or early 1997, John Stromme, a GAF
employee, referred to United States presidential candidates as “old” Bob Dole and
“dumb” Bill Clinton; that in 1997, Stromme asked Lefevers and other employees, “When
are you going to retire?”; and that in the first quarter of 1997, Stromme told older shift
supervisors, “We realize you guys are getting old and would like to know if any of you
are going to retire.” Lefevers alleges that, in the fall of 1997, Mary Hall, a GAF human

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resources manager, stated in a staff meeting, “There are some elderly supervisors that
we have to do something with within the next year.” Finally, Lefevers alleges that, in
April 1999, John Toms, the Nashville plant regional manager, stated, “I don’t understand
why you older employees–old employees think we’re trying to get rid of you. We need
you to run this plant.”
At the summary judgment stage, this Court must assume that these alleged
statements were made. Even so, “‘[s]tatements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process itself [can not] suffice to satisfy the
plaintiff’s burden . . .’ of demonstrating animus.” Bush v. Dictaphone Corp., 161 F.3d
363, 369 (6th Cir. 1998) (second alteration in original) (quoting Price Waterhouse v.
Hopkins, 490 U.S. 228, 277 (1989) (O’Connor, J., concurring)). Lefevers has not
offered evidence to show that the general statements about the age and impending
retirement of GAF employees were made or relied upon by Ron Franklin, the GAF
Nashville plant manager, in his decision to terminate Lefevers. While Hall’s statement
might otherwise be considered probative of discriminatory intent on her part, it was
made two years prior to Lefevers’s termination. Toms’s statement tends to cut against
Lefevers’s argument, because it shows a desire to retain, not to terminate, older
employees. In all cases, Lefevers has offered no evidence that these statements were
considered by Franklin in his decision to terminate Lefevers.
As to Stromme’s statement regarding retirement, questions concerning an
employee’s retirement plans do not alone constitute direct evidence of age
discrimination. See, e.g., Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d
1382, 1395 (6th Cir. 1993) (finding that suggestions by law firm shareholders that an
attorney retire are not alone sufficient to support a finding of age discrimination). Here,
Lefevers does not allege that GAF employees suggested that he retire, but that they
merely inquired generally about his, and others’, plans regarding retirement.
Finally, as the district court held, the statements made by Stromme, a
nondecisionmaker, in late 1996 or early 1997 about “old” Bob Dole are neither
temporally nor topically related to Lefevers’s discharge. See Phelps v. Yale Sec., Inc.,

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986 F.2d 1020, 1025-26 (6th Cir. 1993). None of these statements constitutes direct
evidence of discriminatory intent, and the district court did not err in holding that
Lefevers failed to present direct evidence of discriminatory intent sufficient to withstand
summary judgment.
B.
Under the framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), if a plaintiff cannot prove discriminatory intent by direct evidence,
he may do so by making a prima facie case of age discrimination through indirect or
circumstantial evidence. See Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d
405, 410 (6th Cir. 2008). Once a prima facie case has been made, the burden shifts to
the defendant to articulate a legitimate, non-discriminatory reason for the adverse
employment action. Kline, 128 F.3d at 348. “Once the defendant meets this burden, ‘the
plaintiff must produce sufficient evidence from which the jury may reasonably reject the
employer’s explanation’” as pretextual. Martin, 548 F.3d at 410-11 (quoting Manzer v.
Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994)).
Even assuming that Lefevers has made a prima facie case, he has not shown that
GAF’s reasons for terminating him were pretextual. GAF asserts that Lefevers was
selected for discharge as part of a reduction in force because his job performance was
inadequate. GAF has offered evidence to substantiate its reasons for his termination.
As to Lefevers’s poor job performance, GAF offered evidence including Lefevers’s
performance reviews; memoranda concerning his behavior around other employees;
written warnings concerning his behavior; and evidence that he had not satisfied the
goals of a personal performance plan. As to its assertion that it was undergoing a
reduction in force, GAF offered evidence that it was exiting a line of business; evidence
of its elimination of certain employment positions, including positions analogous to
Lefevers’s at two other plants in Chester and Savannah; and evidence that GAF left
certain open positions unfilled. Further, GAF’s subsequent bankruptcy during the
pendency of this appeal lends credence to GAF’s assertion that the company was
undergoing a reduction in force in an attempt to ward off bankruptcy. GAF has provided

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sufficient evidence under the McDonnell Douglas framework to shift the burden to
Lefevers to show pretext.
For a plaintiff to show pretext, he must show the employer’s given reason for its
conduct “had no basis in fact, did not actually motivate the defendant’s challenged
conduct, or was insufficient to motivate the defendant’s challenged conduct.”
Schoonmaker, 595 F.3d at 268 (citations omitted); see also Hopson v. DaimlerChrysler
Corp., 306 F.3d 427, 434 (6th Cir. 2002).
Lefevers has not produced evidence sufficient to show that GAF’s explanation
for its termination of his employment was pretextual. First, as discussed above, there
are substantial uncontroverted facts supporting the assertion that GAF was undergoing
a reduction in force and that Lefevers’s performance evaluations reflected GAF’s
legitimate assessment that his performance on the job had declined to an inadequate
level. Though Lefevers disputes aspects of the contents and context of the performance
appraisals, his disagreement with GAF’s “assessment of his performance . . . does not
render [GAF’s] reasons pretextual.” McDonald v. Union Camp Corp., 898 F.2d 1155,
1162 (6th Cir. 1990). For these reasons, we hold that Lefevers has not shown GAF’s
stated reason for his termination had no basis in fact.
Second, Lefevers has not shown that GAF’s stated reason for his termination did
not actually motivate the challenged conduct. The evidence that bears most strongly on
this issue is that GAF retained employees near or above Lefevers’s age in positions
analogous to his own. Immediately before he was terminated from his position as shift
supervisor, there were four shift supervisors at the GAF Nashville plant: Lefevers (age
58), Boone Shaver (age 61), Jim Hamilton (age 55), and Pat Moses (age 51). All but
Lefevers were retained as shift supervisors; all are older than forty and thus also
members of the class protected by the Act; and Shaver is actually older than Lefevers.
We have held, in similar circumstances, that there is no inference of age discrimination.
See Chappell v. GTE Prods. Corp., 803 F.2d 261, 268 (6th Cir. 1986) (finding no
inference of discrimination where “both of the men retained were also in the protected
age category”); Grubb v. W.A. Foote Mem’l Hosp., Inc., 741 F.2d 1486, 1498 (6th Cir.

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1985) (determining that evidence the retained employee was older than plaintiff
“severely undercut the likelihood of [the employer’s] decision being predicated on age
bias”), vacated on other grounds, 759 F.2d 546 (6th Cir. 1985).
Finally, Lefevers has not shown that GAF’s reasons for terminating him were
insufficient. Generally, reduction in force, coupled with a poor performance review, is
not an insufficient reason to motivate the challenged conduct. See, e.g., Barnes v.
GenCorp, Inc., 896 F.2d 1457, 1468-73 (6th Cir. 1990). Lefevers argues that his
replacement by Ladd requires an inference that there was no reduction in force. The
record shows, though, that Ladd did not replace Lefevers but instead assumed Lefevers’s
duties in addition to his own during the period immediately following Lefevers’s
termination. In any case, Lefevers has not rebutted GAF’s evidence supporting its
contention that there was a reduction in force beyond asserting that the GAF
organizational charts from May 1998 through March 1999 “do[] not reveal any
substantial or significant reorganization or reduction in work force.” Lefevers does not
explain this conclusory statement or detail how he came to this conclusion based on his
review of the charts. Further, as noted before and as the district court found, he does not
rebut evidence that “at the time [Lefevers’s] employment was terminated, [GAF] had
eliminated numerous positions within the company, not just [his].” As to his poor job
performance, Lefevers disputes aspects of the contents and context of the performance
appraisals, but his disagreement with GAF’s “assessment of his performance . . . does
not render [GAF’s] reasons pretextual.” McDonald, 898 F.2d at 1162.
For these reasons, Lefevers has not offered sufficient evidence to carry his
burden of showing that GAF’s stated reasons for his termination were pretextual.
IV.
Lefevers has not presented direct evidence of discrimination or evidence
sufficient to show that GAF’s proffered explanation for his discharge is pretextual. We
AFFIRM the district court’s grant of summary judgment.