Brian J. Bender and James W. Rafferty v. Hecht's Department Stores, a Division of May Enterprises

455 F.3d 612, 2006 U.S. App. LEXIS 19285, 88 Empl. Prac. Dec. (CCH) 42,510, 98 Fair Empl. Prac. Cas. (BNA) 1648, 2006 WL 2129339
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 1, 2006
Docket05-5662
StatusPublished
Cited by186 cases

This text of 455 F.3d 612 (Brian J. Bender and James W. Rafferty v. Hecht's Department Stores, a Division of May Enterprises) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brian J. Bender and James W. Rafferty v. Hecht's Department Stores, a Division of May Enterprises, 455 F.3d 612, 2006 U.S. App. LEXIS 19285, 88 Empl. Prac. Dec. (CCH) 42,510, 98 Fair Empl. Prac. Cas. (BNA) 1648, 2006 WL 2129339 (6th Cir. 2006).

Opinion

OPINION

McKEAGUE, Circuit Judge.

Brian Bender and James Rafferty (collectively, the “Plaintiffs”) worked for Hecht’s Department Stores (“Hecht’s”) and its predecessor for a number of years. Both were laid off during a corporate-wide reduction in force in 2003. They sued their former employer, asserting claims of age discrimination under the Age Discrimination in Employment Act of 1967 (the “ADEA”), 29 U.S.C. §§ 621 et seq., and the Tennessee Human Rights Act (the “THRA”), Tenn.Code. Ann. §§ 4-21-401 et seq. The district court granted summary judgment in favor of Hecht’s.

On appeal, the Plaintiffs argue that they have met their evidentiary burden to warrant a trial. We disagree. As explained below, the Plaintiffs have failed to establish their prima facie case that their positions were eliminated as a result of age discrimination. Moreover, they have not shown that Hecht’s proffered rationale for selecting others for two open positions was pretextual. Accordingly, we affirm summary judgment in favor of Hecht’s.

I.

A. Corporate Structure

Hecht’s is a division of The May Department Stores Company (“The May Stores”). Hecht’s operates a number of department stores across the East Coast and Tennessee. The division is itself divided into six regions. Each region has a Regional Vice President (“RVP”). The six RVPs report to Hecht’s Senior Vice-President of Stores, Paul Proietto. In turn, each department store has a General Manager (“GM”), and, depending on sales volume, one or more Divisional Sales Managers *616 (“DSM”) 1 and Area Sales Managers (“ASM”). 2 GMs and DSMs are considered senior executives.

Both Bender (50) 3 and Rafferty (55) were DSMs in different Nashville-area Hecht’s stores. There are a total of five stores within the Nashville area. All of these stores are in the same region, along with eight other stores. Andrew Grafton was the RVP for the thirteen-store region in which the Plaintiffs worked.

B. Plan for Workforce Reduction

As a result of stagnating sales and rising expenses, The May Stores developed a company-wide plan for reducing its workforce. With respect to the DSM position, no Hecht’s store with sales under $26m could have a DSM. If low sales forced a reduction in staff at a particular store, and there was only one affected DSM, that position was to be eliminated. If there were two DSMs at a store with sales volume justifying only one, the company would consider terminating an employee with a Marginal or Unacceptable evaluation on the employee’s “Annual Performance Appraisals.” 4 If employees could not be differentiated by their appraisals, then the company would look to their seniority status, with employees with the least seniority being the most vulnerable. After determining which positions to eliminate, the company would then fill any existing open positions with employees whose positions were to be eliminated. 5

Several weeks before the workforce reduction occurred, Tim Logan, Vice President — Compensation, Benefits, HRIS for The May Stores, sent an email to Kathy Gentilozzi, Vice President of Corporate Human Resources for The May Stores. In it, he clarified that not everyone rated Marginal or Unacceptable had to be separated. “A solid performer over many years who happened to have weaker than normal results LY may not be an appropriate candidate for separation.” He further explained that an employee’s “EDR ‘Capacity for Development’ cannot be a factor in determining who is to be separated.” 6

C. Implementation of the Workforce Reduction Plan

Grafton made recommendations regarding eliminations and transfers within his *617 region. He received assistance from Pat Wright, Vice President, Director, Stores Human Resources. Proietto and Hecht’s Senior Vice President of Human Resources, Bruce Kelso, made the final recommendations for the entire Hecht’s division. Gentilozzi made the final decision on all terminations and transfers across The May Stores.

When discussing the workforce reduction, there are four distinct levels of organization to which the parties refer: The May Stores as a whole; the Hecht’s division; Grafton’s region; and the Nashville-area Hecht’s stores.

The May Stores as a Whole: The May Stores implemented its workforce reduction plan in June 2003. 1,450 employees lost their jobs.

The Hecht’s Division: In total, 143 executives were terminated within the Hecht’s division. Thirty five DSM positions were eliminated (thirteen of the affected DSMs were transferred or demoted, and twenty two were terminated). Of the thirteen who were transferred or demoted, six were under the age of 40. Of the twenty two who were terminated, thirteen were under the age of 40. The average age of those DSMs impacted by the reduction was 40.8 years, slightly less than the overall age of the DSMs before the reduction (41.1 years).

Grafton’s Region of Hecht’s Stores: Within Grafton’s region, one GM was terminated. From the region’s group of DSMs (before the reduction), three were selected to takeover GM positions: Regina Dyer (51) and Terri Gunn-Thomas (41) became GMs outside Grafton’s region, and Allen Wesson (30) became a GM within Grafton’s region.

At the next step of the reduction, eight DSM positions were eliminated within Grafton’s region. Five of those DSMs were terminated or demoted, while three were laterally transferred. Of the thirteen DSMs who were ultimately retained or demoted, six were under the age of 40.

Nashville-Area Hecht’s Stores: Of the six DSM positions in the Nashville-area stores, four were eliminated. Both Bender’s and Rafferty’s stores fell far below the $26m-sales threshold. Brenda Woos-ley’s (47) store also fell below the threshold. They were the only DSMs at their respective stores, so their positions were eliminated. Terry Patton’s (39) store had two DSMs, but under the new workforce reduction criteria, it qualified for only one. Brian Jones (29) was the other DSM at the store. Because Jones had recently received an Effective appraisal, while Patton received a Marginal one, Patton’s position was eliminated. The remaining DSM position — Wesson’s position before he was promoted to GM — was not slated for elimination because the sales at the store exceeded $26m.

D. Opportunity to Transfer

After determining which DSM positions were to be eliminated, the company looked at the remaining open positions. In the Nashville area, there were two openings at the time of the reduction: the DSM position vacated by Wesson, and an ASM position that had been vacated before the reduction.

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455 F.3d 612, 2006 U.S. App. LEXIS 19285, 88 Empl. Prac. Dec. (CCH) 42,510, 98 Fair Empl. Prac. Cas. (BNA) 1648, 2006 WL 2129339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brian-j-bender-and-james-w-rafferty-v-hechts-department-stores-a-ca6-2006.