Benson v. Tocco, Inc.

United States Court of Appeals,

Eleventh Circuit.

No. 95-6324.

Frederick B. BENSON, Frank D. Dollar, Robert J. Brown, Rolan Archambault, Plaintiffs-
Appellants,

v.

TOCCO, INC., a wholly-owned subsidiary of Park Ohio Industries, Inc., Park Ohio Industries,
Inc., Defendants-Appellees.

June 2, 1997.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV-93-N-
1816-M), Edwin L. Nelson, Judge.

Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior District Judge.

BIRCH, Circuit Judge:

In this employment discrimination action filed pursuant to the Age Discrimination in

Employment Act, 29 U.S.C. § 621-34 ("ADEA"), Frederick Benson, Frank Dollar, Robert Brown,

and Rolan Archambault each contend that the defendants, Tocco, Inc. and Park Ohio Industries, Inc.

(hereinafter "Tocco") discharged them due to their age during a company-wide reduction-in-force.

The district court granted summary judgment in favor of Tocco. Benson, Dollar, Brown, and

Archambault appeal that order. For the reasons that follow, we affirm in part, reverse in part, and

remand for further proceedings consistent with this opinion.
I. BACKGROUND

Tocco manufactures induction hardening and heating equipment. At the time the events

giving rise to this action transpired, Archambault, Dollar, and Brown were mechanical designers in

Tocco's engineering departments; Benson served as Tocco's human resources manager. In 1992,

Tocco instituted a reduction-in-force ("RIF") for what Tocco contends were purely economic

reasons; the appellants submit that Tocco rehired as many employees as it fired during the RIF, and

that Tocco's true motivations for the terminations were discriminatory.

*
Honorable James H. Michael, Senior U.S. District Judge for the Western District of Virginia,
sitting by designation.
 Dennis Liederbach, the president of Tocco, selected the employees to be terminated.

According to Tocco, Archambault was selected as part of the RIF because his design methods were

overly-detailed, slow, and not sufficiently productive. Tocco also suggests that Archambault's

position, requiring expertise in water recirculation systems, was eliminated entirely; to the extent

that Tocco still needed to have work involving the design of water recirculation systems performed,

Tocco contends that it contracted this work to outside vendors. At the time of his termination,

Archambault was informed that the decision to fire him was unrelated to his performance in his job.

Dollar was employed by Tocco as a mechanical engineer and was primarily involved in mechanical

machine design. At the time of the RIF, Tocco was attempting to institute the wide-spread use of

a new computer-automated-design program, Pro-Engineer ("Pro-E"). Tocco submits that Dollar was

targeted for reduction due to his resistance to adapt to and become proficient in Pro-E. Tocco also

maintains that it had decided to shift the function of the engineers in Dollar's department away from

machine design and toward inductor coil design, for which Dollar allegedly was not suited. Dollar

contends that the majority of Tocco employees subsequent to the RIF were not yet proficient in Pro-

E and that Tocco focused its Pro-E training efforts on younger employees. Although Dollar

concedes that he missed several Pro-E training classes, he suggests that he deliberately was called

away from these classes to keep the work "flowing" while younger employees were permitted to

become versed in computer automated design systems.

Tocco maintains that Brown also was terminated due to his persistence in drafting manually

and his concomitant failure to integrate into his work computer-aided design. Brown notes that he

did take several courses in computer automated design but that, unlike younger employees, he was

not given an opportunity to perform day-to-day work on the computer. The parties dispute both the

extent to which Brown sought greater access to the computer and whether the work to which Brown

was assigned at that time was best accomplished using a computer. Benson managed Tocco's

Human Resources Department, assisted by an administrative assistant, prior to his termination.

According to Tocco, the decision to terminate Benson was motivated by a desire to restructure the

Human Resources Department and consolidate the administrative aspects of Benson's position with
the clerical functions performed by his assistant. Tocco advertised regionally for a personnel

manager several months before Benson was fired. Clerical skills were not stated as a requirement

of the job. Benson officially was terminated by Sterling Parks, a Park Ohio manager. At the time

of his termination, Benson was informed that he was chosen to be included in the RIF strictly for

economic reasons and not due to any deficiencies on his part. Benson inquired whether (1) Tocco

had taken any steps to find him another position at either Tocco or Park Ohio and (2) Tocco had

considered maintaining him at a reduced salary. Parks responded in the negative to both inquiries.

Benson subsequently communicated in writing his concern to Tocco's legal counsel, Hal Madorsky,

that his termination was related to his age. According to Benson, Tocco shortly thereafter modified

the wording of its advertisement regarding the Human Resources Department from a position

entitled "Personnel Manager," Benson's title, to "Personnel Supervisor." Tocco hired Joan Kanner

several months after Benson's termination; Kanner had both administrative and clerical experience.

Kanner resigned the position after three months. Tocco readvertised the position and Benson

applied for the job. Liederbach responded to Benson that clerical skills were required and asked that

Benson update Tocco as to his abilities in this regard. Benson contends that he perceived

Liederbach's letter to be an attempt to communicate that Benson would not be considered for the

position and, consequently, recommended his former administrative assistant. Tocco ultimately

hired Andy Huddleston as Personnel Supervisor approximately eight months after Benson's

termination. Huddleston possessed approximately the same typing skills as Benson and required

computer training at the start of his employment with Tocco.

The district court found that Archambault, Dollar, and Brown were able to demonstrate that

they were qualified for another available position at the time of termination but, in response to

Tocco's articulation of a legitimate, non-discriminatory justification for the terminations, failed to

establish that Tocco's stated reasons were pretextual. The court further determined that Benson had

failed to establish a prima facie case. Accordingly, the court granted summary judgment in favor
of the defendants.1

II. DISCUSSION

We review de novo the district court's order granting summary judgment. See Earley v.

Champion Int'l. Corp., 907 F.2d 1077, 1080 (11th Cir.1990). Summary judgment is appropriate

where there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). Where the record taken as a

whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue

for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,

1356, 89 L.Ed.2d 538 (1986) (citation omitted). On a motion for summary judgment, we must

review the record, and all its inferences, in the light most favorable to the nonmoving party. United

States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

In an employment discrimination case, the plaintiff must produce sufficient evidence to

support an inference that the defendant-employer based its employment decision on an illegal

criterion. See Alphin v. Sears Roebuck & Co., 940 F.2d 1497, 1500 (11th Cir.1991) (citing Halsell

v. Kimberly-Clark Corp., 683 F.2d 285, 290 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct.

1194, 75 L.Ed.2d 438 (1983)). At the summary judgment stage, our inquiry is whether an ordinary

person could reasonably infer discrimination if the facts presented remained unrebutted. Id. (quoting

Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir.1989)). Once a plaintiff has established a

prima facie case and has put on sufficient evidence to allow a factfinder to disbelieve an employer's

proffered explanation for its actions, that alone is enough to preclude entry of judgment as a matter

of law. Combs v. Plantation Patterns, 106 F.3d 1519, 1532 (11th Cir.1997). Stated differently, a

plaintiff is entitled to survive summary judgment "if there is sufficient evidence to demonstrate the

existence of a genuine issue of fact as to the truth of each of the employer's proffered reasons for its

challenged action." Id. at 1529.

1
Because the court granted summary judgment in favor of the defendants as to each plaintiff,
it did not address the defendants' contention that Park Ohio was not an "employer" under the
ADEA and, therefore, not a proper party to this action. The appellants do not address this issue
in their brief but reserve the right to argue in favor of Park Ohio's inclusion in the case before the
district court on remand. Because we reverse in part the district court's decision, we remand for
the court's consideration the question of whether Park Ohio is, for purposes of the ADEA, an
"employer" subject to liability under the facts of this case.
 This circuit has adopted a variation of the test articulated by the Supreme Court for Title VII

claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

for cases arising under the ADEA. See Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565,

566 (11th Cir.1992). In order to make out a prima facie case for an ADEA violation, the plaintiff

must show that he (1) was a member of the protected age group, (2) was subject to adverse

employment action, (3) was qualified to do the job, see Verbraeken v. Westinghouse Elec. Corp.,

881 F.2d 1041, 1045 (11th Cir.1989), cert. dismissed, 493 U.S. 1064, 110 S.Ct. 884, 107 L.Ed.2d

1012 (1990), and (4) was replaced by a younger individual. See O'Connor v. Consolidated Coin

Caterers Corp., --- U.S. ----, ----, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996). These criteria are

altered slightly in both an RIF case and where a position is eliminated in its entirety; in these

instances, the plaintiff establishes a prima facie case by demonstrating (1) that he was in a protected

age group and was adversely affected by an employment decision2, (2) that he was qualified for his

current position or to assume another position at the time of discharge, and (3) evidence by which

a fact finder reasonably could conclude that the employer intended to discriminate on the basis of

age in reaching that decision. See Mitchell, 967 F.2d at 567-68; Earley, 907 F.2d at 1082;

Verbraeken, 881 F.2d at 1045-46.

1. Motion to Strike

The appellants contend that the district court abused its discretion in striking from the record
an affidavit by Dr. James Long, a labor economist, setting forth the statistical significance of the

ages of those chosen by Tocco to be included in the RIF. We review a district court's rulings

regarding discovery for abuse of discretion. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 542 (11th

Cir.1996). According to the appellants, their initial, good-faith response to the defendants' request

for information relating to experts was that they had not yet decided whether to use an expert. On

November 15, 1994, thirty days before the close of discovery, the appellants requested certain

information concerning the ages of Tocco employees at the time of the RIF. Defense counsel

2
It is undisputed that each of the appellants was within the protected age group at the time of
termination.
informally objected to the request. At a subsequent meeting held to resolve the dispute, plaintiffs'

counsel advised that he required this information to evaluate the need for an expert witness. The

defendants apparently agreed to produce the requested discovery but did not do so until February

6, 1995, almost two months subsequent to this meeting and two weeks after they had filed a motion

for summary judgment. During the intervening two months, plaintiffs' counsel had notified defense

counsel of the expert he planned to use and of the continued need to receive and evaluate the

requested material. On February 18, 1995, plaintiffs' counsel forwarded to defense counsel the

pertinent expert affidavit. The affidavit established various statistical correlations between the

pattern of terminations at Tocco during the RIF and the ages of terminated employees.3 Tocco

moved to strike the affidavit on the ground that the plaintiffs' delay was prejudicial; the court

granted the motion.

Tocco does not dispute this chronology of events but insists that the appellants failed to

disclose their expert in a timely fashion and, thus, the district court's ruling was appropriate. Both

parties cite Hancock v. Hobbs, 967 F.2d 462 (11th Cir.1992), in support of their respective positions

in relation to the district court's discovery ruling. In Hancock, the plaintiff informed the defendant

at the beginning of discovery that she had not yet decided what expert she would retain for trial; in

truth, the plaintiff had already retained an expert, a fact she did not reveal until five months after the

request for expert disclosure had been made and three months after the close of discovery. Under

those circumstances, we held that the district court's exclusion of this expert testimony did not

constitute an abuse of discretion. See id. at 468.

The circumstances presented here are markedly different from those in Hancock.

Fed.R.Civ.P. 26(e)(1) states that "a party is under a duty seasonably to amend a prior response to

an interrogatory, request for production, or request for admission if ... corrective information has not

otherwise been made known to the other parties during the discovery process...." The undisputed

procedural history of this case indicates that the plaintiffs diligently and truthfully informed Tocco

3
For example, Dr. Long found statistical significance in the fact that, of fourteen employees
terminated during the RIF, all but three were over forty years old.
as to the necessity for certain information in order to evaluate the need for expert testimony. The

plaintiffs expressly identified the name of the proposed expert and explained that the need for

information was related directly to the use of an expert. R2-32 at Exh. E. Tocco thus was on notice

as to the plaintiffs' intention to call an expert pending the evaluation of certain information that

Tocco had delayed in producing. It is difficult to discern how, after Tocco finally submitted the

requested documentation, it was prejudiced by the plaintiffs' prompt delivery of the promised expert

affidavit. We do not see this case as analogous to Hancock, in which the plaintiff deliberately

concealed the fact that an expert had been retained and submitted the expert testimony months after

the close of the discovery. We see neither subterfuge nor deliberate delay attributable to the

plaintiffs. To the extent the submission of the expert affidavit was delayed past the close of

discovery, this delay was caused in large part by Tocco's conduct. We conclude that the district

court abused its discretion in striking from the record Dr. Long's affidavit.

Tocco also suggests that even if we were to find the district court's exclusion of Dr. Long's

affidavit to have been in error, such error is rendered harmless by the scant value of the expert

testimony. We disagree. In his affidavit, Dr. Long testified that the rate of termination for Tocco

employees over forty years old during the RIF was five times as large as the termination rate for

employees under forty; the standard deviation was calculated to be 3.04 with a 0.002 probability.

Similarly, employees over fifty years old were terminated at three times the rate of those under fifty,

with a standard deviation of 2.66 and a probability of 0.008. See R2-32 at Exh. G. We have held that

a standard deviation of two or three is enough to support an inference of discrimination. Maddow

v. Procter & Gamble Co., 107 F.3d 846, 852 (11th Cir.1997) (citing Kilgo v. Bowman Transp., Inc.,

789 F.2d 859, 871 n. 18 (11th Cir.1986)). We view the evidence submitted by the appellants

regarding the rate of termination of older employees to be statistically significant and, accordingly,

consider it, where relevant, in tandem with the other evidence adduced in the record.

2. Archambault

As noted by the district court, Archambault presented evidence to show that he was at least

qualified for an available position at the time of the RIF. Several weeks after Archambault was
terminated, Tocco advertised for a mechanical engineer. Significantly, the advertisement described

"a minimum of two years" of Pro-E experience as "ideal" but not required. R1-23-19. Indeed, at

the time of Archambault's termination, most Tocco engineers had not yet accumulated two years of

Pro-E experience and Archambault had recently completed a Pro-E training course. Archambault

thus satisfied his burden of establishing that he was qualified for another job available at Tocco at

the time he was fired.

We disagree with the court's determination, however, that Archambault failed to present

evidence sufficient to raise an inference that Tocco's proffered justification for Archambault's

discharge was a pretext for age discrimination.4 Tocco contends that the decision to terminate

Archambault was based on the fact that Archambault was overly meticulous in his work and

inefficient in his use of time with respect to each project. The record does indicate that Archambault

had been made aware that at least one supervisor, Dale Bradford, considered the amount of time he

allocated to many tasks to be excessive. R1-18-12 at 75. The record further shows, however, that

Archambault expressly was informed at the time of his termination that the decision to include him

in the RIF was not a reflection of his capabilities or work. R1-23-1 at 119. The record further

reveals that notwithstanding Bradford's possible dissatisfaction with Archambault's use of time,

other supervisors considered him to be dependable and his attention to detail to save time once the

product got "to the floor" because it did not need to be rechecked or reworked. R1-23-7 at 38, 49.

The record also shows that the other designers retained in Archambault's engineering section were

considerably younger and less experienced than he was. Drawing all inferences from the record in

the light most favorable to Archambault in tandem with the statistical evidence referenced earlier,

we conclude that there exists conflicting evidence with respect to Tocco's intent in firing

Archambault such that a reasonable fact finder could disbelieve Tocco's stated reason for terminating

4
In analyzing Archambault's discrimination claim, the district court apparently conflated the
third element of plaintiff's prima facie case—evidence by which a factfinder might infer that the
employer intended to discriminate on the basis of age—with the showing of pretext necessary to
rebut the employer's articulation of a legitimate, non-discriminatory reason for the termination.
In so doing, the court found that Archambault had failed to demonstrate pretext. We treat the
court's decision as a finding that Archambault established a prima facie case but failed to
overcome Tocco's proffer of legitimate justifications for the termination decision.
his employment. See Combs, 106 F.3d at 1529. A jury question therefore exists as to whether

Tocco's proffered reasons for terminating Archambault were pretextual. The district court erred in

granting summary judgment on this claim.

3. Dollar

We leave undisturbed the district court's determination that Dollar set forth a prima facie

case of age discrimination because he was qualified for a position advertised shortly before the RIF

for which Tocco retained a younger employee. Tocco contends that it chose to include Dollar in the

RIF due to his refusal to learn Pro-E. Dollar submits that he did attempt to become Pro-E proficient

but that Tocco deliberately prevented him from developing the necessary computer skills. In support

of this proposition, he notes that he was called away from training sessions and was not given a

computer on his desk. He also suggests that younger employees were permitted to take the initial

Pro-E classes, thereby giving them an advantage in avoiding termination, and that even subsequent

to the RIF Tocco, by its own admission, needed a computer-training specialist to assist employees

with computer-aided design.

Although the record confirms Dollar's allegation that not all Tocco engineers and designers

were Pro-E proficient after the RIF occurred, he has not presented evidence to demonstrate that

Tocco's stated reason for his termination was a pretext for age discrimination. Notwithstanding

Dollar's contention that it was Tocco's conduct that prevented him from gaining the requisite

expertise in the use of a computer, his own testimony strongly suggests that he was not interested

in moving from manual drafting to computer-aided design techniques. In his deposition, for

instance, Dollar testified that he did not attend all the Pro-E classes in part because he was "called

out" and in part because "I was rather displeased with being in there in the first place.... I felt that

I was wasting time really.... I didn't feel like Pro-Engineering was benefitting the company or

myself whatsoever." R1-18-11 at 51-52. Dollar conceded that he was given a subsequent

opportunity to take more Pro-E classes but that he "preferred not to." R1-18-11 at 58. One of

Dollar's supervisors, Dale Bradford, further testified that Dollar had "refused" to learn Pro-E and had

stated that Pro-E was "going to be the death of the company and [Dollar] did not want to learn it."
R1-18-12 at 46. Karels also testified that he had made Dollar aware that Tocco intended to integrate

Pro-E into the company. Id. Indeed, none of the appellants disputes the fact that Tocco's supervisory

personnel had communicated the desire for the engineering staff to move toward the use of Pro-E

as a future goal. Even drawing all inferences in favor of Dollar, Dollar has not presented sufficient

evidence to permit a reasonable fact finder to disbelieve Tocco's justification for his termination.

Stated differently, Dollar has not shown that Tocco's explanation for including him in the RIF was

fabricated as a pretext for discrimination on the basis of age. We therefore affirm the district court's

summary judgment in favor of Tocco as to Dollar.

4. Brown

Brown also set forth sufficient evidence to establish that he was qualified for an available

position for which Tocco hired a younger individual at the time of the RIF. Tocco contends, as it did

in Dollar's case, that it targeted Brown for termination because he persisted in drawing designs by

hand and refused to be trained in Pro-E. Brown submits that he expressed an interest in gaining

proficiency in computer-assisted design work but that he was not given regular access to a computer.

He further suggests that Tocco's proffered reason for terminating his employment is pretextual.

The record contains evidence tending to show that Brown was asked by his supervisor to

adapt to the computer but that Brown believed he could accomplish a given task "faster on the

board." R1-23-10 at 24. There is also evidence that Brown declined to take a Pro-E course for

which he had been scheduled. R1-23-3 at 44-45. The record also shows, however, that Brown took

three courses in computer-assisted design during his tenure at Tocco and, notwithstanding his

request to spend time on the computer in order to become more proficient, was given neither a

computer at his desk nor regular access to any of the computers used by other employees in his

department. R1-23-3 at 16, 39-41. Brown testified that his supervisor, Sam Karels, expressed an

interest in giving Brown an opportunity to gain experience on the computer but that "[t]here was

more interest in getting the job out than me getting computer time" and "it come down to he wanted

the job out first." Id. at 40. Brown also testified that most other people in his office were given

greater access to a computer and stated that "[i]f there was a computer, it was at someone's work
station.... In order to use that computer, I'd have to get that person to, you know, go away or

something." Id. at 41. We conclude that there exists an arguable basis of evidence sufficient to

permit a reasonable factfinder to conclude that the reasons offered by Tocco to justify Brown's

termination were not the real reasons for his inclusion in the RIF. As such, the ultimate

determination as to whether the true motivation for Brown's termination was discriminatory in nature

is a jury question. Accordingly, we reverse the district court's judgment as to Brown.

5. Benson

Tocco submits that Benson was terminated because Tocco decided, for economic reasons,

to consolidate his position with that of his administrative assistant; in essence, Tocco suggests that

Benson's job was eliminated entirely and a new job created that required both administrative and

clerical skills. Benson responds that his position was never eliminated and the alleged

"restructuring" of the job was a pretext for discrimination; alternatively, Benson states that he was

qualified for the new position.

It is undisputed that Benson explicitly asked whether Tocco had considered him for any other

available position at Tocco or Park Ohio, or had considered maintaining him at a lower salary. It

is further undisputed that Tocco did not indicate to Benson, at the time of termination, that his

inclusion in the RIF was performance-related. The record reveals that Tocco advertised for a

personnel manager shortly before Benson was terminated. The advertisement described the job

Benson had held and sought an individual who could perform substantially the same tasks Benson

then performed, with the exception of requiring "computer capabilities." R1-23-24. Tocco asserts

that Benson was not qualified for this job because he had demonstrated no clerical or

computer-related skills. Tocco offers no evidence tending to show, however, that there was ever any

determination regarding Benson's clerical or computer capabilities. Liederbach's deposition

testimony that Benson had never demonstrated any such skills, R1-18-9 at 122-131, is not

dispositive; Benson had the benefit, up until this point, of an administrative assistant. It therefore

is unlikely that he would have had the opportunity or need to perform clerical functions from which

Liederbach could have derived a negative view of his clerical skills.
 Benson points also to the fact that after Joan Kanner resigned her post at Tocco three months

subsequent to taking the job, Tocco hired Andy Huddleston as Personnel Supervisor. It is

undisputed that Huddleston had no greater clerical or computer expertise than Benson at the time

he was hired. Tocco correctly observes that availability of a job for which the plaintiff may be

qualified eight months after an RIF is not proof that the same job existed at the time of the RIF. We

note, however, that Tocco made no change in the requirements for personnel supervisor between the

hiring of Kanner and Huddleston, yet Huddleston, who was hired to replace Kanner in the

newly-restructured, consolidated position, had no more clerical skills than did Benson. This

evidence, combined with both the statistical disparities in the rate of termination at Tocco and

Tocco's apparent failure to investigate the possibility that Benson might have had the necessary

skills to adapt to a restructured human resources position, gives rise to an inference of

discrimination. In other words, Benson has presented at least enough evidence such that a

reasonable factfinder could disbelieve Tocco's proffered reason for terminating his employment and,

instead, infer that this reason was a pretext for age discrimination. We conclude that the ultimate

question of whether Tocco was motivated by discriminatory animus in terminating Benson during

the RIF is a question that must be presented to the jury. Accordingly, we reverse the district court's

summary judgment with respect to Benson.

III. CONCLUSION

Archambault, Dollar, Brown, and Benson allege that the defendants, Tocco and Park Ohio,

targeted them for inclusion in a reduction in force based solely on their age. The district court found

that the plaintiffs had failed to show that the employers' proffered reasons to justify termination were

pretextual and granted summary judgment in favor of the defendants. We conclude that

Archambault, Brown, and Benson have produced sufficient evidence to permit a rational trier of fact

to infer that the defendants acted with discriminatory intent in choosing to discharge them. We

reverse the district court's judgment as to Archambault, Brown, and Benson. We further determine

that Dollar has not set forth enough evidence to demonstrate that the defendants' stated reasons for

terminating him were a pretext for age discrimination. We affirm the district court as to Dollar. We
remand this case to the district court for a determination as to whether Park Ohio is a proper party

to this action.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings

consistent with this opinion.