David Kremp v. ITW Air Management

478 F. App'x 931
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 13, 2012
Docket11-3235
StatusUnpublished
Cited by2 cases

This text of 478 F. App'x 931 (David Kremp v. ITW Air Management) 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
David Kremp v. ITW Air Management, 478 F. App'x 931 (6th Cir. 2012).

Opinion

SUTTON, Circuit Judge.

When business conditions deteriorated in late 2008, ITW Air Management reduced the size of its workforce. David Kremp, the company’s marketing manager, was among the workers let go. Kremp sued, claiming ITW discriminated against him in violation of the federal Age Discrimination in Employment Act and state law. The district court granted summary judgment to ITW. We agree and affirm.

*932 I.

ITW Air Management sells high-speed blowers and other devices that manufacturers use to clean, cool and maintain factory equipment. Beginning in 2001, David Kremp served as the company’s marketing manager. In that capacity, he produced marketing communications, oversaw the company’s advertising strategy, conducted market research, engaged in sales work and performed miscellaneous management activities.

In January 2009, ITW’s revenue fell sharply as the economic downturn accelerated, prompting ITW General Manager William Oh to reduce costs by laying off employees. The company’s reduction-in-force policy provides that “the Company will lay off employees by length of service, except where critical skills are involved.” PI. App’x at 178. Oh opted to reduce the marketing department because it would have relatively little short-term impact on business. Oh first laid off Jeff Stephenson, a marketing support worker with less seniority than Kremp. Revenue continued to decline, and Oh eliminated Kremp’s position in February.

Five months later, Kremp sued ITW in federal court on age-discrimination grounds. ■ After discovery, the district court granted summary judgment to ITW. It concluded that Kremp did not make out a prima facie case of age discrimination because he “ha[d] not produced any circumstantial evidence of comments or practices that suggest a preference for younger employees,” and he could not identify any younger employees the company had retained in jobs nearly identical to his. R.57 at 8-9. It also concluded that, even if Kremp had established a prima facie case, no reasonable jury could find that ITW’s stated rationale for laying him off was pretextual.

II.

Because Kremp offers no direct evidence of age discrimination, we evaluate his claim under the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 98 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, when a company discharges an employee in connection with a reduction in force, the plaintiff bears the initial burden of showing: (1) he was a member of the protected age class; (2) he was discharged; (3) he was qualified for the job; and (4) “additional ... evidence” shows the employer “singled out the plaintiff for discharge for impermissible reasons.” Geiger v. Tower Automotive, 579 F.3d 614, 622-23 (6th Cir.2009). Kremp meets the first three requirements, but his case founders on the fourth.

Kremp tries to satisfy the additional-evidence requirement by showing he “possessed qualifications superior to those of a younger co-worker working in the same position.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir.1990). To do so, he points to two younger employees retained by ITW: Steve Getz (age 43), regional sales manager for the Midwest, and Rick Immell (age 45), national sales manager. But to make any headway under this test, Kremp must show that “all of the relevant aspects of his employment situation were nearly identical” to those of the younger employees. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998).

He cannot do that. Getz and Im-mell were full-time sales managers paid on commission, while Kremp was a marketing manager paid on salary who spent about half his time in sales. Kremp’s part-time work in sales, moreover, was devoted almost entirely (80 to 90 percent) to ITW’s Vortec line of products, while Getz and *933 Immell spent most of their time selling the company’s Paxton line of products, which are built to customer specifications, cost significantly more and most importantly require more sales work. Kremp’s job was not “nearly identical” to the jobs of these other employees.

Kremp offers several responses, but they are all unconvincing. First, Kremp says that he could have performed the sales jobs that Getz and Immell held given his “years of experience selling to Paxton customers.” Br. at 26. That is beside the point. 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.” Sahadi v. Reynolds Chem., 636 F.2d 1116, 1118 (6th Cir.1980) (per curiam); accord Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 266-67 (6th Cir.2010). To hold otherwise would mean that virtually every fired employee over the age of 40 could make out a prima facie case of age discrimination. See Sahadi, 636 F.2d at 1118. That is not how the ADEA works. It does not impose a mandatory seniority system on every covered employer in the country.

Second, Kremp says that he could have handled Getz’s and Immell’s jobs better than they handled them, since Getz was still learning the job and Kremp trained Immell when Immell joined the company. That overlooks the two-part nature of the test. Kremp must demonstrate, first, that he “possessed qualifications superior to those of a younger co-worker.” Barnes, 896 F.2d at 1466. So far so good. But he must demonstrate, second, that the younger co-worker “work[ed] in the same position” as he did. Id. Kremp, as shown, did not work in the same positions as Getz and Immell.

Third, Kremp says that he was more critical to ITW’s success than Immell because Kremp’s marketing manager position “had been a fixture of the company since 1989,” while Immell’s national sales manager position “was created ... in 2004.” Br. at 28. That does not matter. Neither the ADEA nor the cases construing it say that a company faced with a necessary reduction in force must retain workers based on how long their positions have existed at the company. Otherwise, AT & T still would be required to have a director of telegraph operations.

Fourth, Kremp says that ITW should have kept him because he “undisputedly had much greater experience than Immell regarding Vortec, the larger of the company’s two product lines.” Br. at 29. Yet that is because nearly all of Kremp’s sales experience involved Vortec products, while the majority of Immell’s experience involved Paxton products, confirming that their jobs were not “nearly identical.” Ercegovich, 154 F.3d at 352.

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478 F. App'x 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-kremp-v-itw-air-management-ca6-2012.