Cichewicz v. Unova Industrial Automotive Systems, Inc.

COOK, Circuit Judge,

dissenting.

Because I agree with the district court that Cichewicz failed to establish a prima facie case of age discrimination, I respectfully dissent from the majority’s decision.

The majority correctly identifies the key issue in this case: whether Cichewicz presented sufficient evidence to satisfy the fourth element of a prima facie case of age discrimination — that in reducing its workforce UNOVA singled out Cichewicz for termination because of his age. Hawley v. Dresser Indus., Inc., 958 F.2d 720, 723 (6th Cir.1992). The majority incorrectly determines, however, that Cichewicz satisfied this element by: 1) naming ten additional employees over forty whom UNOVA also terminated, and 2) submitting the affidavit of one such employee stating that UNOVA terminated only older employees. Cichewicz’s evidence is insufficient under both federal and state law to withstand UNOVA’s motion for summary judgment.

I. Federal Law

As the majority recognizes, in this workforce reduction case Gichewicz can satisfy the fourth and final element of a prima facie case of age discrimination by presenting “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discriminatory reasons.” Barnes v. Gen-Corp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). The majority incorrectly concludes, though, that Cichewicz presented such evidence.

Construed in the light most favorable to Cichewicz, the summary judgment evidence supports the claim that UNOVA terminated Cichewicz and ten other employees over forty. In workforce reduction cases, however, termination of older employees is not evidence of discrimination. In Barnes, this Court explained that plaintiffs in such cases must present additional evidence of discrimination because “[w]hen work force reductions by the employer are a factor in the decision, the most common legitimate reasons for the discharge are the work force reductions.” Id. (quotation marks and citation omitted). Thus, a plaintiff must show more than that he was over forty, qualified, and terminated. Otherwise, “every person age 40-and-over [could] establish a prima facie case of age discrimination if he or she was discharged as part of a work force reduction.” Id. Consequently, UNOVA’s termination of employees over forty is not additional evidence that would allow a factfinder to “draw a reasonable inference that discrimination occurred.” Wexler v. White’s Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc).

Cichewicz could create a triable issue on the fourth element by showing, for example, that he “possessed qualifications superior to those of a [retained] younger coworker working in the same position.” Barnes, 896 F.2d at 1465-66. Cichewicz, however, presented no information about any similarly situated younger employee that UNOVA retained. The majority suggests that such information is unnecessary given that “[n]o evidence was produced to contradict Carls[o]n’s representation that only older employees were targeted for termination in UNOVA’s downsizing.” Such a conclusory statement cannot give rise to a genuine issue of material fact. See Williams v. Ford Motor Co., 187 F.3d 533, 544 (6th Cir.1999) (“Plaintiffs cannot challenge the motion for summary judgment by relying on ... affidavits that merely state conclusory allegations.” (citing Fed. R. Civ. P. 56)). Moreover, even if *223UNOVA did terminate only older employees, this fact would not amount to the additional evidence required for a prima facie case of age discrimination. Barnes, 896 F.2d at 1465 (“Our conclusion [regarding the requirements for a prima facie case] would not change even if a plaintiff additionally demonstrated that younger persons were retained in other jobs which the plaintiff was qualified to perform.”).

The Barnes court did, as the majority points out, state that “[appropriate statistical data showing an employer’s pattern of conduct toward a protected class as a group can, if unrebutted, create an inference that a defendant discriminated against individual members of the class.” Id. at 1466. In Barnes, the evidence considered sufficient to establish a prima facie case consisted of two expert reports prepared by professional statisticians comparing the employer’s treatment of more than one hundred employees from all age groups. Id. at 1462-63. Cichewicz presented no statistical data showing, as Barnes requires, “a significant disparity” in UNOVA’s treatment of older and younger employees. Id. The district court therefore correctly assessed the evidence as warranting summary judgment for UNOVA on Cichewicz’s federal claim.

II. State Law

In reviewing the grant of summary judgment to UNOVA on Cichewicz’s state law claim, the majority seems to overlook Michigan law requiring Cichewicz to present evidence that UNOVA terminated him because of his age:

In a reduction-in-force case, the plaintiff, to establish a prima facie case, must show more than simply that the employer retained a younger employee while discharging an older one. Matras v. Amoco Oil Co., 424 Mich. 675, 385 N.W.2d 586, 590 (1986). Rather, “the employee [must] present sufficient evidence on the ultimate question whether age was a determining factor in the decision to discharge the older protected employee.” Ibid. Courts have thus required “[t]he plaintiff in such reorganization cases [to] come forward with additional direct, circumstantial, or statistical evidence that age was a factor in his termination.” Simpson v. Midland-Ross Corp., 823 F.2d 937, 941 (6th Cir.1987).

Mroz v. Elec. Data Sys. Corp., 1997 WL 468331, at *3 (6th Cir. Aug. 13, 1997) (unpublished) (applying Michigan law); see also Dabrowski v. Warner-Lambert Co., 815 F.2d 1076, 1080 (6th Cir.1987) (applying Michigan law) (“[W]here a company is in the process of restructuring its work force because of economic problems, an unsuccessful older employee who brings suit for age discrimination must show more than a mere age difference between himself and those employees who better weather the storm.”).

Cichewicz failed to present evidence that would allow a reasonable factfinder to conclude that age was a factor in UNOVA’s decision to terminate him. The district court therefore correctly granted summary judgment to UNOVA on Cichewicz’s state law claim.

III. Pretext

The majority reasons, as a second basis for reversing the district court’s grant of summary judgment, that UNOVA’s proffered reason for terminating Cichewicz— workforce reduction — might be pretextual. Congruity argues against supposing for purposes of determining a prima-facie-case showing that this is a workforce reduction case and then abandoning that premise in evaluating whether UNOVA offered a nondiscriminatory reason for firing Cichewicz. If this is not a workforce reduction case, Cichewicz can establish a prima facie case of age discrimination only by showing that a younger employee replaced him. See Cicero v. Borg-Warner Automotive, Inc., *224280 F.3d 579, 584 (6th Cir.2002) (noting that the fourth element of a prima facie case of age discrimination is replacement by a younger person). Cichewiez did not even allege replacement by a younger employee. He instead pursued the route prescribed to fit workforce reduction cases. Thus, whether this is or is not a workforce reduction case, under either burden of proof, Cichewiez failed to present a prima facie case and this court thus never properly reaches the issue of pretext.

IV. Conclusion

Because no reasonable jury could find by a preponderance of the evidence that UNOVA targeted Cichewiez for termination because of his age, the district court properly granted UNOVA’s motion for summary judgment. I therefore respectfully dissent.