Alberico v. Leap Wireless International, Inc. et al

Filing 26

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 19 ). Signed by Judge Timothy S. Black on 7/18/2014. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TINO ALBERICO,
Plaintiff,
vs.
LEAP WIRELESS
INTERNATIONAL, INC., et al.,
Defendants.

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Case No. 3:13-cv-141
Judge Timothy S. Black

ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 19)
This civil case is before the Court on Defendants’ motion for summary judgment
(Doc. 19) and the parties’ responsive memoranda (Doc. 23, 25).
I.

BACKGROUND FACTS

Plaintiff maintains that Defendants discriminated against him because of his age
when they terminated his position as part of a reduction in force (“RIF”) in October 2012.
Plaintiff claims that Defendants used the RIF as pretext for terminating his position and
for retaining a substantially younger employee who was hired six weeks earlier.
Defendants argue that the decision to terminate Plaintiff and several other employees as
part of the RIF was based on legitimate business reasons having nothing to do with
Plaintiff’s age.

II.

UNDISPUTED FACTS 1

1. Throughout his ten-year employment at Cricket, 2 Plaintiff was based out of
Dayton, Ohio, and he was last employed as a Financial Analyst II. (Doc. 14 at
39-40).
2. Plaintiff’s position at Cricket was eliminated in connection with a RIF that
impacted the entire field finance department and was in response to economic
problems. (Id. at 88-90, 92, 95, 96, Ex. 9; Doc. 17 at 8-11, 13, 15, 106).
3. As a result of the RIF, on September 23, 2012, Jeff Nachbor informed Brooks
Martin, the Vice President of Field Finance at Cricket who oversaw the team for
which Plaintiff worked, that Martin needed to decide which four of the seven
positions on his team he wanted to eliminate. (Doc. 14 at 77-78; Doc. 17 at 5, 7-9,
13-15, 38, Ex. 1).
4. Ultimately, Martin decided to eliminate Plaintiff’s position as part of a workforce
reduction that impacted Martin’s team as well as the entire finance department at
Cricket. (Doc. 14 at 88-90, 92, 95, 96, Ex. 9; Doc. 17 at 8-11, 13, 15, 106.).
5. Going into the decision-making process, Martin wanted to have his entire team
located in the same office to allow the team to be more nimble and to make it
easier to collaborate by drawing ideas on a white board or presenting concepts to
quickly work through issues in-person, without the shortcomings of trying to work
through those issues remotely. (Doc. 17 at 14-15, 38-39, 101).
6. Martin also wanted to move his team from being geographically based to being
functionally based. He envisioned that his team members post-RIF would
specialize in specific financial functions that they would perform for the entire
company as opposed to being a generalist for a particular region, which is how the
team had been structured prior to the reduction. (Id. at 14-15, 38-39, 101).
7. Martin focused on retaining people whose skills and abilities would complement
each other instead of overlapping completely. (Id. at 53-54).

1

See Doc. 19, Ex. 1 and Doc. 24.

2

Defendants are Leap Wireless International, Inc. and its wholly-owned subsidiary Cricket
Communications, Inc. It is undisputed that Cricket was Plaintiff’s employer, but the parties
disagree whether Leap is a proper party to this litigation as a joint employer. However, because
the Court concludes that Plaintiff fails to establish a prima facie case of discrimination, the joint
employer issue need not be resolved.
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8. Immediately before the RIF, Plaintiff was one of four Financial Analyst IIs on
Martin’s team. (Doc. 14 at 39-40; Doc. 17 at 13-14).
9. In making the RIF decisions concerning his team, Martin eliminated four of the
seven positions that reported up to him and three of the four Financial Analyst IIs,
including Plaintiff. (Doc. 17 at 9, 17, 21, 25, Ex. 1).
10. In deciding which of the four Financial Analyst IIs on his team to retain, Martin
started with geographic location. (Doc. 14 at 39-40; Doc. 17 at 13-14, 17, 21, 3839, 77.).
11. Based on geographic location, Martin eliminated Plaintiff’s position, as Plaintiff
was the only finance team member located outside Rolling Meadows (a Chicago
suburb) and was the only department employee in Dayton. (Doc. 17 at 9, 22).
12. When the RIF decision was made, all of the members of Martin’s team (other than
Plaintiff) were located in Rolling Meadows, Illinois. (Id. at 9).
13. Martin did not consider the duration of experience at Cricket or performance
reviews in deciding which Financial Analyst II to retain and which to let go.
(Doc. 19-2 at ¶ 5).
14. In addition to eliminating Plaintiff’s position, Martin decided to eliminate the
positions of two other Financial Analyst IIs (Hyma Sandra and Dawn Plizga), both
of whom were substantially younger than Plaintiff, while retaining Art Obrebski.
(Doc. 14 at 10-11, 95; Doc. 17 at 25, Ex. 1).
15. Martin opted to retain Obrebski because he believed that his skills best
complemented the remaining members of the team going forward. (Doc. 17 at 5354).
16. Obrebski and Plaintiff had different job skills. (Doc. 16 at 30, 33-35, 37-38; Doc.
17 at 51-54, 58-63,66-67, 78-79).
17. Of all the Financial Analyst IIs on Martin’s team before the RIF, Martin believed
Obrebski was the best at handling large sets of data and data mining. (Doc. 16 at
30, 33-35, 37; Doc. 17 at 51-54, 59-61, 78-79).
18. Martin honestly believed that Obrebski’s skill set of data mining and otherwise
handling large sets of data was necessary for his team going forward after the RIF.
(Doc. 17 at 53-54, 78-79; Doc. 19-2 at ¶¶ 5-6).

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19. Martin believed that Plaintiff’s work primarily included traditional financial
analysis and management reporting, which Martin considered to be neither unique
nor complementary of the skill sets of others on Martin’s team post-RIF, as those
skills were already covered by other people who were being retained, including
Acri, Sinnott, and Martin. (Doc. 16 at 34, 37-38; Doc. 17 at 52-54, 59-63).
20. Even if Plaintiff would have been located in Rolling Meadows, Martin still would
still have retained Obrebski because he believed that Obrebski had proved to be
extremely proficient at data mining, technical skills, and otherwise handling large
sets of data, which was essential to his team going forward, whereas he believed
that Plaintiff had not. (Doc. 16 at 30, 33-35, 37; Doc. 17 at 58-62, 66-67, 78-79).
21. Plaintiff has no knowledge regarding the job skills, performance, or experience of
the other Financial Analyst IIs (including Obrebski) who were on Martin’s team
before the RIF. (Doc. 14 at 80-82).
22. Plaintiff does not know what factors Martin considered in deciding which
positions to eliminate in the RIF, he does not know how Cricket was planning to
restructure Martin’s team or the finance department when those decisions were
made, and he does not know what skills Martin considered to be the most
important for a Financial Analyst II on his team post-RIF. (Id. at 90-92).
23. Neither Martin nor any other management employee at Cricket ever made
derogatory comments about Plaintiff’s age. (Id. at 74).
24. No one mentioned Plaintiff’s age during the meeting when he was informed that
his position was being eliminated in connection with the RIF. (Id. at 88-90).
25. The only reason Cricket ever provided to Plaintiff for his job elimination was the
RIF. (Id. at 88-90).

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III.

STANDARD OF REVIEW

Summary judgment is governed by Rule 56 of the Federal Rules of Civil
Procedure. A motion for summary judgment should be granted if the evidence
submitted to the Court demonstrates that there is no genuine issue as to any material
fact and that the movant is entitled to summary judgment as a matter of law. Fed. R.
Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986).
“Summary judgment is only appropriate ‘if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881,
886 (6th Cir. 2007) (quoting Fed. R. Civ. P. 56(c)).
“Weighing of the evidence or making credibility determinations are prohibited at
summary judgment - rather, all facts must be viewed in the light most favorable to the
non-moving party.” Id.
Once “a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own pleading.”
Viergutz v. Lucent Techs., Inc., 375 F. App’x 482, 485 (6th Cir. 2010) (citation omitted).
Instead, the party opposing summary judgment “must - by affidavits or as otherwise
provided in this rule - set out specific facts showing a genuine issue for trial.” Id.
(citation omitted).

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Further, Rule 56(c) states that “[a] party asserting that a fact . . . is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the
record . . . or . . . showing that the material cited do not establish the absence . . . of a
genuine dispute.” Where “a party fails . . . to properly address another party’s assertion
of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
IV. ANALYSIS
Plaintiff alleges that Defendants discriminated against him on the basis of age in
violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621,
et seq., and Ohio Revised Code Chapter 4112. “Age discrimination claims brought under
Ohio law are analyzed under the same standards as federal claims brought under the
[ADEA].” Wharton v. Gorman-Rupp Co., 309 F. App’x 990, 995 (6th Cir. 2009).
Absent direct evidence of discrimination, Plaintiff must prove discrimination
under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973).
The first step of the McDonnell Douglas burden-shifting framework is that
Plaintiff must establish a prima facie case of discrimination. To make a prima facie case,
Plaintiff must evidence the following elements: (1) that he was a member of a protected
class; (2) that he was discharged; (3) that he was qualified for the position held; and (4)
that he was replaced by someone outside of the protected class. Geiger v. Tower Auto.,
579 F.3d 614, 622 (6th Cir. 2009).

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The parties agree that Plaintiff was terminated as part of a RIF. When a plaintiff is
terminated as part of a RIF, the plaintiff must meet a “heightened standard” to establish
the fourth element of his prima facie case and is required to provide “additional direct,
circumstantial, or statistical evidence tending to indicate that the employer singled out the
plaintiff for discharge for impermissible reasons.” Id. at 623.
If the plaintiff establishes a prima facie case, the burden of production shifts to the
employer to identify a legitimate, nondiscriminatory reason for the adverse employment
decision. Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008). If the
employer meets this burden of production, then the burden shifts back to the plaintiff to
prove by a preponderance of the evidence that the legitimate, non-discriminatory reason
given is a pretext for discrimination. Id.
The overall burden of persuasion remains with the plaintiff at all times. Id.
A.

Prima Facie Case

The parties agree that Plaintiff satisfies the first three elements of his prima facie
case and that he was terminated as part of a RIF. Accordingly, to establish the fourth
element, Plaintiff must provide “additional direct, circumstantial, or statistical evidence
tending to indicate that the employer singled out the plaintiff for discharge for
impermissible reasons.” Barnes, 896 F.2d at 1465. “The guiding principle is that the
evidence must be sufficiently probative to allow a fact finder to believe that the employer
intentionally discriminated against the plaintiff.” Id. at 1466.

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1. Statistical Evidence
For statistical evidence to create an inference of discrimination, “the statistics must
show a significant disparity and eliminate the most common nondiscriminatory
explanations for the disparity.” Barnes, 896 F.2d at 1466. The sample size must be
sufficient to provide reliable and probative data. See Schoonmaker v. Spartan Graphics
Leasing, LLC, 595 F.3d 261, 267 (6th Cir. 2010) (concluding that evidence that the two
oldest employees were terminated does not constitute “additional evidence” because
“such a small statistical sample is not probative of discrimination”).
Plaintiff provides statistics based on a sample size of at most seven employees.
Plaintiff’s sample is not sufficient to evidence discrimination. See, e.g., Conley v. U.S.
Bank Nat’l Ass’n, 211 F. App’x 402, 407 (6th Cir. 2006) (concluding that “this small
sample size [ten], gives [plaintiff]’s statistics little or no probative value”); Williams v.
Tyco Elec. Corp., 161 F. App’x 526, 535 (6th Cir. 2006) (determining that a sample size
of twenty, of which five employees were terminated, was too small); McCraw v. Ohio
Bell Tel. Co., No. 1:12-cv-1620, 2013 U.S. Dist. LEXIS 103570, at *19 (N.D. Ohio July
24, 2013) (holding that a sample size of eight was “unquestionably too small to be
statistically significant, and [could not] support an inference of discrimination”).
2. Circumstantial Evidence
Circumstantial evidence may consist of proof that the plaintiff “possessed
qualifications superior to those of a younger co-worker working in the same position.”
Barnes, 896 F.2d at 1466. A demonstration of superior skills must be based on evidence
such as “objective, company-established criteria,” Schoonmaker, 595 F.3d at 266, rather
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than Plaintiff’s subjective belief based on “self-selected qualifications.” Copeland v.
Regent Elec., Inc., 499 F. App’x 425, 433 (6th Cir. 2012).
Plaintiff offers several pieces of circumstantial evidence to satisfy his heightened
burden: Obrebski’s hiring six weeks prior to the RIF, Obrebski’s failure to satisfy the
minimum qualifications in the job posting, the potential that a jury could conclude that
Plaintiff was more qualified than the two terminated employees and possessed the same
skills as Obrebski, and Martin’s quick determination of which positions to terminate
without considering whether Plaintiff would transfer to Chicago. (Doc. 23 at 8-9, 15).
Defendants hired Obrebski six weeks before the RIF to fill an opening caused by a
voluntary departure. 3 (Doc. 17 at 32). Although it is undisputed that in July 2012 Martin
knew that his market was underperforming and potentially could be sold (Doc. 17 at 98),
this Court will not second-guess the business decision to fill a vacancy as “it is
inappropriate for the judiciary to substitute its judgment for that of management.” Smith
v. Leggett Wire Co., 220 F.3d 752, 763 (6th Cir. 2000). Defendants did not actually
terminate Plaintiff’s position until October 9, 2012, at which point Obrebski had
completed his training. (Doc. 14 at 88-89, Ex. 9). The timing and circumstances of
Obrebski’s hiring is not sufficiently probative to allow a jury to infer that Defendants
selected Plaintiff’s position for termination because of his age.
Plaintiff’s focus on Obrebski’s alleged failure to meet the minimum qualifications
in the job description is misguided and unavailing. Plaintiff relies on the terms of a

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Plaintiff does not argue that Obrebski’s recent hiring is evidence that there was not a true RIF.
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February 2004 job description, which required four years of experience and does not
reference data mining skills. (Doc. 23, Ex. D). Plaintiff alleges that the May 2012 job
posting, which required two years’ minimum experience and referenced data mining
skills, was not produced until after Plaintiff’s counsel noted that Obrebski failed to satisfy
the minimum requirements of the February 2004 posting. (Doc. 19-2, Ex. A). Plaintiff
appears to attack the authenticity of the May 2012 posting and argues that the sequence
of production could lead a jury to conclude that the May 2012 posting was merely an
attempt to justify Plaintiff’s termination. (Doc. 23 at 15).
However, Plaintiff fails to rebut Martin’s sworn statement that he hired Obrebski
based on the May 2012 posting and that Obrebski met all the minimum qualifications.
(Doc. 19-2 at ¶ 8). The same skills and qualifications applicable to Obrebski’s hiring are
undoubtedly also relevant to his retention, but “employers are not rigidly bound by the
language in a job description.” Browning v. Dep’t of Army, 436 F.3d 692, 696 (6th Cir.
2006).
Plaintiff fails to evidence that he possessed superior qualifications than Obrebski.
The proper point of comparison is to retained employees, so Plaintiff’s argument
regarding his superior qualifications to the other two terminated Financial Analyst IIs is
not relevant. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th
Cir. 1998) (clarifying that a comparison must be to an employee who received more
favorable treatment). Plaintiff identifies positive performance reviews dating back to
2004, but these reviews do not account for recent changes to the position, such as the

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focus on data mining, and do not provide any basis to compare Plaintiff’s qualifications
with Obrebski’s.
Plaintiff focuses on the argument that “[a] jury could thus conclude that Obrebski
did not have any demonstrated skills which [Plaintiff] did not.” (Doc. 23 at 15).
However, construing all the evidence in Plaintiff’s favor, he has at best created a genuine
dispute as to whether Plaintiff and Obrebski possessed equivalent skills. Such a showing
is not sufficient to meet the heightened burden, which requires a showing that Plaintiff
“possessed qualifications superior to those of a younger co-worker.” Barnes, 896 F.2d at
1466. As the Sixth Circuit has made clear, “an ADEA plaintiff cannot meet the
‘additional evidence’ requirement by showing only that a younger person was retained in
a position which [the] plaintiff is capable of performing.” Kremp v. ITW Air Mgmt., 478
F. App’x 931, 933 (6th Cir. 2012).
The timing and circumstances of Martin’s decision do not create additional
evidence that Plaintiff was singled out because of his age. 4 It is “clearly established that
an employer has no duty under ADEA to permit an employee to transfer to another
position or to displace workers with less seniority when the employee’s position is

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Plaintiff also argues that Defendant provided shifting justifications for its decision to terminate
him, allegedly shifting between geographic location and skills. However, such an inquiry is only
relevant to pretext, so the Court may not address it as part of the prima facie case. See Wexler v.
White’s Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir. 2003) (en banc) (“[A] court may not
consider the employer’s alleged nondiscriminatory reason for taking an adverse employment
action when analyzing the prima facie case.”). Moreover, even if the Court considered shifting
justifications as part of the prima facie case analysis, a plaintiff’s “belief that she was a better
worker . . . and that [her employer] gave inconsistent and subjective justifications for laying her
off . . . simply does not show age discrimination, and accordingly it does not establish the kind
of ‘additional evidence’ of discrimination that Barnes requires in a reduction-in-force setting.”
Schoonmaker, 595 F.3d at 268.
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eliminated as part of a work force reduction.” Barnes, 896 F.2d at 1469. Martin was not
required to consider relocating Plaintiff to Chicago, and the attendant relocation expenses
and uncertainty regarding the potential sale of the Chicago market further support this
decision. (Doc. 17 at 94, 98, 105). Plaintiff identifies a younger employee whom
Defendants transferred, but that employee held a managerial position, was based in a
different market not subject to sale, and was not under Martin’s control. (Doc. 17 at 71,
110, 112). This comparison is unavailing because the employees are not similarly
situated in all relevant respects. See Ercegovich, 154 F.3d at 352-53.
Plaintiff has failed to meet his heightened burden of producing “additional direct,
circumstantial, or statistical evidence tending to indicate that the employer singled out the
plaintiff for discharge for impermissible reasons.” Geiger, 579 F.3d at 623. “When an
employer implements a RIF, the unfortunate fact is that someone has to go. It is not the
prerogative of the courts to engage in the post-hoc management of the employer’s
internal affairs by second-guessing how personnel could have been more equitably
allotted, or cost-savings better realized.” Norbuta v. Loctite Corp., 1 F. App’x 305, 314
(6th Cir. 2001). Martin was faced with the unenviable task of terminating four of his
seven team members. “The mere termination of a competent employee when an
employer is making cutbacks due to economic necessity is insufficient to establish a
prima facie case of age discrimination.” LaGrant v. Gulf & W. Mfg. Co., Inc., 748 F.2d
1087, 1090 (6th Cir. 1984). Plaintiff has not produced additional direct, circumstantial,
or statistical evidence that indicates Martin terminated Plaintiff because of his age. See

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Barnes, 896 F.2d at 1466. Therefore, construing all facts in favor of Plaintiff, he fails as
a matter of law to establish a prima facie case of discrimination.
V.

CONCLUSION

Accordingly, for the foregoing reasons, Defendants’ motion for summary
judgment (Doc. 19) is GRANTED. The Clerk shall enter judgment accordingly,
whereupon this case is CLOSED in this Court.
IT IS SO ORDERED.
Date: 7/18/14

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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