RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Grosjean v. First Energy Corp., et al. No. 02-3361 ELECTRONIC CITATION: 2003 FED App. 0404P (6th Cir.) File Name: 03a0404p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: John D. Franklin, LAW OFFICES OF JOHN D. FOR THE SIXTH CIRCUIT FRANKLIN & ASSOCIATES, Toledo, Ohio, for Appellant. _________________ Denise M. Hasbrook, ROETZEL & ANDRESS, Toledo, Ohio, for Appellees. ON BRIEF: John D. Franklin, LAW WILLIAM GROSJEAN, X OFFICES OF JOHN D. FRANKLIN & ASSOCIATES, Plaintiff-Appellant, - Toledo, Ohio, for Appellant. Denise M. Hasbrook, - ROETZEL & ANDRESS, Toledo, Ohio, for Appellees. - No. 02-3361 v. - _________________ > , OPINION FIRST ENERGY CORPORATION ; - _________________ TOLEDO EDISON ENERGY, - Defendants-Appellees. - BOGGS, Chief Judge. William Grosjean appeals the - district court’s summary judgment for his employers, First N Energy Corporation and its Toledo subsidiary, Toledo Edison Appeal from the United States District Court Energy, (collectively “First Energy”), in his age for the Northern District of Ohio at Toledo. discrimination action against them. Grosjean had lost his No. 01-07213—James G. Carr, District Judge. supervisory title and duties after his superior had rated him as inadequate in dealing with his subordinates. The district court Argued: August 7, 2003 granted summary judgment because Grosjean failed to demonstrate that First Energy’s proffered reason for the Decided and Filed: November 13, 2003 demotion, the unfavorable rating, was a mere pretext. We affirm on the alternative basis that Grosjean failed to make his Before: BOGGS, Chief Judge; SILER, Circuit Judge; and prima facie case of age discrimination because he was not RICE, District Judge.* replaced by a person significantly younger than himself. I First Energy hired Grosjean in 1970 as a plant helper, a unionized position. Over the following two decades he was steadily promoted until in 1990 he joined management as a machine shop supervisor at First Energy’s Bayshore, Ohio, power plant. In 1997, he was reassigned to a position as yard * The Honorable Walter Herbert Rice, United States District Judge for supervisor. His new responsibilities included scheduling the the Southern District of Ohio, sitting by designation.
1 No. 02-3361 Grosjean v. First Energy Corp., et al. 3 4 Grosjean v. First Energy Corp., et al. No. 02-3361
large coal trains that fed the power plant, supervising the On May 2, 2001, Grosjean filed a complaint against First fourteen workers who unloaded the trains, and disposing of Energy in the United States District Court for the Northern the ash generated. Grosjean was instructed in these duties by District of Ohio. In it he claimed that First Energy had John Gallagher, an experienced yard supervisor. After six discriminated against him on the basis of his age, in violation months of training, Gallagher and Grosjean divided the shifts of the federal Age Discrimination in Employment Act between them. Both Gallagher and Grosjean worked (“ADEA”), 29 U.S.C. §§ 621-634, and the Ohio anti- weekdays and would split weekend shifts. Their supervisor discrimination statute, Ohio Rev. Code § 4112.02. In during the relevant period was the director of production, particular, Grosjean alleged that First Energy had demoted Kenneth Dresner. him from his supervisory position, that he had been denied a bonus for the year 1999, and that he had been denied a During 1998, there appear to have been no significant promotion back to his old position. On February 22, 2002, problems with Grosjean’s performance. However, during the district court granted summary judgment to First Energy 1999, Dresner and Grosjean had a series of meetings to on the basis that Grosjean had presented insufficient evidence discuss what Dresner felt were inadequacies in management that First Energy’s stated legitimate, non-discriminatory style. The common element of these complaints was that reason for its actions, the unfavorable performance report, Dresner considered Grosjean to be neither sufficiently strict was pretextual. Before this court now is Grosjean’s timely with the workers under his supervision nor loyal to Dresner. appeal of that grant. In Dresner’s view, these meetings did not result in an appreciable improvement in the problem areas. On March 2, II 2000, Grosjean met with Dresner to discuss his performance rating report for 1999, authored by Dresner. This report, Age discrimination cases under the ADEA are analyzed while praising Grosjean’s technical competence, was damning under the same framework as employment discrimination with respect to his management role. On this basis, Dresner cases under Title VII. Policastro v. Northwest Airlines, Inc., recommended a performance rating of “does not meet 297 F.3d 535, 538 (6th Cir. 2002) (citing Mitchell v. Toledo expectations.” As a result of this rating, Grosjean was Hosp., 964 F.2d 577, 582 (6th Cir. 1992)). Proof in such reassigned from his supervisory position to a newly-created cases proceeds in three stages. Kline v. Tenn. Valley Auth., position of planner. As a planner, he would continue to 128 F.3d 337, 342 (6th Cir. 1997) (citing Tex. Dep’t of Cmty. schedule trains and receive the same salary and benefits, but Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), and he would no longer have supervisory responsibility for any McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 other employees. Grosjean’s supervisory duties were (1973)). First, “[i]n order to prove a prima facie case of returned to Gallagher on a temporary basis. As a discrimination, a plaintiff must show 1) that he is a member consequence Gallagher worked more than a thousand hours of a protected group, 2) that he was subject to an adverse overtime during the remaining ten months of the year. employment decision, 3) that he was qualified for the Eventually, the position was filed by Richard Riley. At the position, and 4) that he was replaced by a person outside of time of Dresner’s unfavorable performance rating, Grosjean the protected class.” Kline, 128 F.3d at 349 (citing Talley v. was 54 years old, Dresner was 41 years old, Gallagher was 48 Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6th Cir. 1995)). years old, and Riley was 51 years old. In age discrimination cases, the protected class includes all workers at least 40 years old and the fourth element is modified to require replacement not by a person outside the No. 02-3361 Grosjean v. First Energy Corp., et al. 5 6 Grosjean v. First Energy Corp., et al. No. 02-3361
protected class, but merely replacement by a significantly replacement.”); Godfredson v. Hess & Clark, 173 F.3d 365, younger person. Kline, 128 F.3d at 352-53; O’Connor v. 372-73 (6th Cir. 1999) (reaffirming Barnes, 896 F.2d at Consol. Coin Caterers Corp., 517 U.S. 308, 311-13 (1996). 1465). Second, “[i]f the plaintiff establishes [a] prima facie case, the burden then shifts to the defendant to ‘articulate some Grosjean was replaced, in both the colloquial and the legal legitimate, nondiscriminatory reason for the employee's meanings of that term, by Riley.
Free access — add to your briefcase to read the full text and ask questions with AI
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Grosjean v. First Energy Corp., et al. No. 02-3361 ELECTRONIC CITATION: 2003 FED App. 0404P (6th Cir.) File Name: 03a0404p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: John D. Franklin, LAW OFFICES OF JOHN D. FOR THE SIXTH CIRCUIT FRANKLIN & ASSOCIATES, Toledo, Ohio, for Appellant. _________________ Denise M. Hasbrook, ROETZEL & ANDRESS, Toledo, Ohio, for Appellees. ON BRIEF: John D. Franklin, LAW WILLIAM GROSJEAN, X OFFICES OF JOHN D. FRANKLIN & ASSOCIATES, Plaintiff-Appellant, - Toledo, Ohio, for Appellant. Denise M. Hasbrook, - ROETZEL & ANDRESS, Toledo, Ohio, for Appellees. - No. 02-3361 v. - _________________ > , OPINION FIRST ENERGY CORPORATION ; - _________________ TOLEDO EDISON ENERGY, - Defendants-Appellees. - BOGGS, Chief Judge. William Grosjean appeals the - district court’s summary judgment for his employers, First N Energy Corporation and its Toledo subsidiary, Toledo Edison Appeal from the United States District Court Energy, (collectively “First Energy”), in his age for the Northern District of Ohio at Toledo. discrimination action against them. Grosjean had lost his No. 01-07213—James G. Carr, District Judge. supervisory title and duties after his superior had rated him as inadequate in dealing with his subordinates. The district court Argued: August 7, 2003 granted summary judgment because Grosjean failed to demonstrate that First Energy’s proffered reason for the Decided and Filed: November 13, 2003 demotion, the unfavorable rating, was a mere pretext. We affirm on the alternative basis that Grosjean failed to make his Before: BOGGS, Chief Judge; SILER, Circuit Judge; and prima facie case of age discrimination because he was not RICE, District Judge.* replaced by a person significantly younger than himself. I First Energy hired Grosjean in 1970 as a plant helper, a unionized position. Over the following two decades he was steadily promoted until in 1990 he joined management as a machine shop supervisor at First Energy’s Bayshore, Ohio, power plant. In 1997, he was reassigned to a position as yard * The Honorable Walter Herbert Rice, United States District Judge for supervisor. His new responsibilities included scheduling the the Southern District of Ohio, sitting by designation.
1 No. 02-3361 Grosjean v. First Energy Corp., et al. 3 4 Grosjean v. First Energy Corp., et al. No. 02-3361
large coal trains that fed the power plant, supervising the On May 2, 2001, Grosjean filed a complaint against First fourteen workers who unloaded the trains, and disposing of Energy in the United States District Court for the Northern the ash generated. Grosjean was instructed in these duties by District of Ohio. In it he claimed that First Energy had John Gallagher, an experienced yard supervisor. After six discriminated against him on the basis of his age, in violation months of training, Gallagher and Grosjean divided the shifts of the federal Age Discrimination in Employment Act between them. Both Gallagher and Grosjean worked (“ADEA”), 29 U.S.C. §§ 621-634, and the Ohio anti- weekdays and would split weekend shifts. Their supervisor discrimination statute, Ohio Rev. Code § 4112.02. In during the relevant period was the director of production, particular, Grosjean alleged that First Energy had demoted Kenneth Dresner. him from his supervisory position, that he had been denied a bonus for the year 1999, and that he had been denied a During 1998, there appear to have been no significant promotion back to his old position. On February 22, 2002, problems with Grosjean’s performance. However, during the district court granted summary judgment to First Energy 1999, Dresner and Grosjean had a series of meetings to on the basis that Grosjean had presented insufficient evidence discuss what Dresner felt were inadequacies in management that First Energy’s stated legitimate, non-discriminatory style. The common element of these complaints was that reason for its actions, the unfavorable performance report, Dresner considered Grosjean to be neither sufficiently strict was pretextual. Before this court now is Grosjean’s timely with the workers under his supervision nor loyal to Dresner. appeal of that grant. In Dresner’s view, these meetings did not result in an appreciable improvement in the problem areas. On March 2, II 2000, Grosjean met with Dresner to discuss his performance rating report for 1999, authored by Dresner. This report, Age discrimination cases under the ADEA are analyzed while praising Grosjean’s technical competence, was damning under the same framework as employment discrimination with respect to his management role. On this basis, Dresner cases under Title VII. Policastro v. Northwest Airlines, Inc., recommended a performance rating of “does not meet 297 F.3d 535, 538 (6th Cir. 2002) (citing Mitchell v. Toledo expectations.” As a result of this rating, Grosjean was Hosp., 964 F.2d 577, 582 (6th Cir. 1992)). Proof in such reassigned from his supervisory position to a newly-created cases proceeds in three stages. Kline v. Tenn. Valley Auth., position of planner. As a planner, he would continue to 128 F.3d 337, 342 (6th Cir. 1997) (citing Tex. Dep’t of Cmty. schedule trains and receive the same salary and benefits, but Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), and he would no longer have supervisory responsibility for any McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 other employees. Grosjean’s supervisory duties were (1973)). First, “[i]n order to prove a prima facie case of returned to Gallagher on a temporary basis. As a discrimination, a plaintiff must show 1) that he is a member consequence Gallagher worked more than a thousand hours of a protected group, 2) that he was subject to an adverse overtime during the remaining ten months of the year. employment decision, 3) that he was qualified for the Eventually, the position was filed by Richard Riley. At the position, and 4) that he was replaced by a person outside of time of Dresner’s unfavorable performance rating, Grosjean the protected class.” Kline, 128 F.3d at 349 (citing Talley v. was 54 years old, Dresner was 41 years old, Gallagher was 48 Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6th Cir. 1995)). years old, and Riley was 51 years old. In age discrimination cases, the protected class includes all workers at least 40 years old and the fourth element is modified to require replacement not by a person outside the No. 02-3361 Grosjean v. First Energy Corp., et al. 5 6 Grosjean v. First Energy Corp., et al. No. 02-3361
protected class, but merely replacement by a significantly replacement.”); Godfredson v. Hess & Clark, 173 F.3d 365, younger person. Kline, 128 F.3d at 352-53; O’Connor v. 372-73 (6th Cir. 1999) (reaffirming Barnes, 896 F.2d at Consol. Coin Caterers Corp., 517 U.S. 308, 311-13 (1996). 1465). Second, “[i]f the plaintiff establishes [a] prima facie case, the burden then shifts to the defendant to ‘articulate some Grosjean was replaced, in both the colloquial and the legal legitimate, nondiscriminatory reason for the employee's meanings of that term, by Riley. That Riley was as much part rejection.’” Kline, 128 F.3d at 342 (quoting Burdine, 450 of the protected class of workers over 40 as Grosjean does not U.S. at 252-53). Third, after the defendant has met this preclude the making of a prima facie case. burden, “the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer’s The fact that one person in the protected class has lost explanation.” Manzer v. Diamond Shamrock Chems. Co., 29 out to another person in the protected class is . . . F.3d 1078, 1083 (6th Cir. 1994). In some cases, plaintiff’s irrelevant, so long as he has lost out because of his age. evidence establishing the prima facie case can also be Or to put the point more concretely, there can be no sufficient to meet one or more of the elements necessary to greater inference of age discrimination . . . when a rebut the defendant’s proffered non-discriminatory reasons. 40-year-old is replaced by a 39-year-old than when a See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149 56-year-old is replaced by a 40-year- old. (2000). O’Connor, 517 U.S. at 312. However, “the prima facie case We conclude that Grosjean was not replaced by a requires evidence adequate to create an inference that an significantly younger person. He therefore failed to make his employment decision was based on an illegal discriminatory prima facie case and we need not address the legitimate- criterion.” Ibid. This “inference cannot be drawn from the reason and pretext parts of the McDonnell analysis, the bases replacement of one worker with another worker on which the district court decided the issue. insignificantly younger.” Id. at 313.1 Therefore, the question reduces to whether Riley, at age 51, was significantly younger Grosjean argues that he was initially replaced by Gallagher, than Grosjean, at age 54.2 who temporarily took over his duties in addition to his own. However, Gallagher’s assumption of Grosjean’s duties does Age differences of ten or more years have generally been not constitute replacement under the law of this circuit. A held to be sufficiently substantial to meet the requirement of “person is not replaced when another employee is assigned to perform the plaintiff’s duties in addition to other duties, or when the work is redistributed among other existing 1 O’Connor clarifies the fourth part of a prima facie age employees already performing related work. A person is discrimination case; it does not eliminate it. The decision of a district replaced only when another employee is hired or reassigned court within this circuit to the contrary is no t correct. Ligo n v. Triang le to perform the plaintiff’s duties.” Barnes v. GenCorp Inc., Pac. Corp., 935 F. Supp. 936 , 941 (M .D. Tenn. 1996 ). 896 F.2d 1457, 1465 (6th Cir. 1990) (citing Sahadi v. 2 Reynolds Chem., 636 F.2d 1116, 1117 (6th Cir. 1980)); see In addition, here Gallagher was the obvious tem porary rep lacem ent, also Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992) as he had been doing exactly the same job as Grosjean. Thus our focus (“Spreading the former duties of a terminated employee is on the 3-year age difference with Riley in determining this issue, though we also note that even the difference with G allagher was only 6 among the remaining employees does not constitute years. No. 02-3361 Grosjean v. First Energy Corp., et al. 7 8 Grosjean v. First Energy Corp., et al. No. 02-3361
the fourth part of age discrimination prima facie case. See, with two others in their 40s sufficient); Bunch v. Board of e.g., Balut v. Loral Elec. Sys., 166 F.3d 1199, 1998 WL Educ., 201 F.3d 440, 1999 WL 1206875, at *2 (6th Cir. 1999) 887194, at *1 (2d Cir. 1998) (table) (replacement of 57-year (table) (passing over of 53-year old for promotion eight times, old with 47-year old was sufficient); Sempier v. Johnson & six times for persons under age 40, sufficient); Tichenor v. Higgins, 45 F.3d 724, 729-30 (3d Cir. 1995) (replacement of Sec’y of Army, 181 F.3d 104, 1999 WL 357813, at *2 (6th employee with two others, one “well over ten years younger,” Cir. 1999) (table) (promotion of 38-year old over 53-year old sufficient); Hollander v. Am. Cyanamid Co., 172 F.3d 192, sufficient); Pope v. City of Cleveland, 22 Fed. Appx. 474, 199 & n.3 (2d Cir. 1999) (transfer of duties from 58-year old 475, 2001 WL 1355597, at *1 (6th Cir. 2001) (table) to two other employees, one 11 years and one 8 months (promotion of 38-year old over 54-year old sufficient); younger, sufficient); O’Connor v. DePaul Univ., 123 F.3d Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 236 665, 669-70 & n.2 (7th Cir. 1997) (replacement of 43-year old (3d Cir. 1999) (discharge of plaintiff while retaining by 32-year old sufficient); Barnett v. Dep’t of Veterans employees 8 and 16 years younger sufficient); Baron v. City Affairs, 153 F.3d 338, 341 (6th Cir. 1998) (replacement of of Highland Park, 195 F.3d 333, 340 (7th Cir. 1999) (denial 51-year old by employee “around 40" sufficient); EEOC v. of promotion to 47-year old while promoting 30-year old and Bd. of Regents of Univ. of Wisc. Sys., 288 F.3d 296, 303 (7th 31-year old sufficient); Isenbergh v. Knight-Ridder Cir. 2002) (termination of 47-year old while retaining Newspaper Sales, 97 F.3d 436, 440 & n.1 (11th Cir. 1996) “woman in her twenties or thirties” sufficient; so was (promotion of 44-year old over 60-year old sufficient); Weigel termination of 54-year old while retaining 23-year old); v. Baptist Hosp., 302 F.3d 367, 375 (6th Cir. 2002) (44-year Rhymer v. Yokohama Tire Corp., 106 F.3d 391, 1997 WL old substantially younger than 60-year old); O’Connor, 517 14143, at *3 (4th Cir. 1997) (replacement of a 54-year old by U.S. at 312 (implying that difference between 56-year old and a 41-year old sufficient); Brennan v. Metropolitan Opera 40-year old is substantial); Roxas v. Presentation Coll., 90 Ass’n, 192 F.3d 310, 317 (2d Cir. 1999) (stating that F.3d 310, 316 (8th Cir. 1996) (denial of application for replacement of a 47-year old by a 33-year old “may well have sabbatical to 54-year old while approval of same to 37-year met” the “de minimis burden of establishing a prima facie old sufficient); Carlton v. Mystic Transp., 202 F.3d 129, 135 case of age discrimination”); Mroz v. Elec. Data Sys. Corp., (2d Cir. 2000) (replacement of terminated employee with 124 F.3d 198, 1997 WL 468331, at *4 (6th Cir. 1997) (table) employees 18 and 25 years younger sufficient); Ridley v. (31- and 33-year-old workers significantly younger than Lucent Techs., 22 Fed. Appx. 571, 2001 WL 1563636, at *1 47-year old plaintiff); Keathley v. Ameritech Corp., 187 F.3d (6th Cir. 2001) (hiring of 31-year old over 49-year old 915, 923-24 (8th Cir. 1999) (replacement of salespersons over sufficient); Fester v. Farmer Bros. Co., 2002 WL 31323499, 45 by those under 35 created reasonable inference of age at *5 (10th Cir. 2002) (table) (attempted replacement of discrimination); Cheng v. MINACT, 103 F.3d 128, 1996 WL 58-year old by man in late 30s sufficient); Abrams v. Millikin 724372, at *5 n.2 (6th Cir. 1996) (table) (age disparity & Fitton Law Firm, 267 F. Supp. 2d 868, 875 (S.D. Ohio between 60-year old teacher and teacher in mid-40s 2003) (replacement of legal assistant of unspecified age, but sufficient); Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th 39 years of tenure at defendant, by 38-year old sufficient); Cir. 1998) (replacement of 47-year old by 32-year old Banks v. Travelers Cos., 180 F.3d 358, 367 (2d Cir. 1999) sufficient); Simpson v. Kay Jewelers, 142 F.3d 639, 649 (3d (replacement of 49-year old with 27-year old sufficient); Cir. 1998) (Pollak, J., concurring that replacement of 57-year Staton v. Husky Computers, 176 F.3d 484, 1998 WL 808019, old by 42-year old sufficient); Miller v. Borden, 168 F.3d 308, at *2 (9th Cir. 1998) (table) (replacement of 55-year old with 314 (7th Cir. 1999) (replacement of man “approaching 60" 33-year old sufficient); Byrnie v. Town of Cromwell, Bd. of No. 02-3361 Grosjean v. First Energy Corp., et al. 9 10 Grosjean v. First Energy Corp., et al. No. 02-3361
Educ., 243 F.3d 93, 102 (2d Cir. 2001) (hiring of 42-year old by person 6 years younger insufficient); Kalagian v. Carwein, over 64-year old sufficient); Koster v. Trans World Airlines, 57 F.3d 1077. 1995 WL 323801, at *1 (9th Cir. 1995) (table) 181 F.3d 24, 32 (1st Cir. 1999) (retained 25-year old manager (replacement of 50-year old with two 44-year olds “substantially younger” than furloughed 49-year old insufficient); Mroz, at *4 (6th Cir. 1997) (table) (41-year-old manager); Fisher v. Wayne Dalton Corp., 139 F.3d 1137, worker not significantly younger than 47-year-old plaintiff); 1141 (7th Cir. 1998) (passing over 63-year old for 39-year old Cramer v. Intelidata Techs. Corp., 168 F.3d 481, 1998 WL sufficient); Wexler v. White’s Furniture, 317 F.3d 564, 592 911735, at *3 (4th Cir. 1998) (table) (replacement of (6th Cir. 2003) (en banc) (Krupansky, J., agreeing in dissent employee with person 5 years younger insufficient); Wellman that replacement of 59-year old by man in his early 30s v. Wheeling & Lake Erie Ry. Co., 134 F.3d 373, 1998 WL sufficient); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 25005, at *4 (6th Cir. 1998) (table) (replacement of 46-year 917 (9th Cir. 1996) (replacement of 54-year old by 25-year old with 41-year old insufficient); Cianci v. Pettibone Corp., old sufficient); Krieg v. Kimball Intern., 33 F.3d 56, 1994 WL 152 F.3d 723, 728 (7th Cir. 1998) (replacement of 47-year old 459561, at *3 (7th Cir. 1994) (table) (55-year old by 42-year old, even combined with supervisor’s comment substantially older than man 30 years his junior). that plaintiff was “getting too old for the job,” insufficient); Schiltz v. Burlington N.R.R., 115 F.3d 1407, 1412 & n.6 (8th The overwhelming body of cases in most circuits has held Cir. 1997) (where six positions that 48-year old plaintiff that age differences of less than ten years are not significant applied for were filled by persons aged 43, 46, 51, 55, 48, and enough to make out the fourth part of the age discrimination 47 no prima facie age discrimination case exists); Bush, 161 prima facie case. See, e.g., Girten v. McRentals, 337 F.3d F.3d at 368 (6th Cir. 1998) (replacement of 46-year old by 979, 981 (8th Cir. 2003) (stating that replacement of 63-year 41-year old insufficient); Steiner v. Envirosource, 134 F. old by 54-year old may be insufficient); Radue v. Supp. 2d 910, 917 (N.D. Ohio 2001) (termination of 62-year Kimberly-Clark Corp., 219 F.3d 612, 619 (7th Cir. 2000) old while retaining 57-year old and 59-year old insufficient); (termination of 53-year old while retaining 46-year old and Brown v. EG & G Mound Applied Tech., 117 F. Supp. 2d 44-year old, without more, insufficient); Lesch v. Crown Cork 671, 677-78 (S.D. Ohio 2000) (replacement of 57-year old by & Seal Co., 282 F.3d 467, 472 (7th Cir. 2002) (replacement 52-year old insufficient); Bennington v. Caterpillar Inc., 275 of 62-year old accountant by 53-year old insufficient); F.3d 654, 659 (7th Cir. 2001) (replacement of 57-year old Dunaway v. Int’l Bhd. of Teamsters, 310 F.3d 758, 767 (D.C. with 52-year old insufficient); Scott v. Parkview Memorial Cir. 2002) (replacement of employee by other 7 years Hosp., 175 F.3d 523, 525 (7th Cir. 1999) (age difference younger insufficient without more); Richter v. Hook-SupeRx, between group aged 32 to 46 and group aged 42 to 48 not 142 F.3d 1024, 1029 (7th Cir. 1998) (replacement of 52-year substantial); Clevidence v. Wayne Savings Cmty. Bank, 143 F. old by 45-year old insufficient); Black v. Columbus Pub. Sch., Supp. 2d 901, 907-08 (N.D. Ohio 2001) (replacement of 124 F. Supp. 2d 550, 574-75 (S.D. Ohio 2000) (replacement 46-year old by 43-year old insufficient); Hoffmann v. of 52-year old by 45-year old insufficient); Hartley v. Wisc. Primedia Special Interest Publ’ns, 217 F.3d 522, 525 (7th Bell, 124 F.3d 887, 892 (7th Cir. 1997) (age difference of 6 or Cir. 2000) (replacement of 42-year old with 39-year old 7 years presumptively insufficient); Woodsmall v. Eclipse insufficient); Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Mfg. Co., 249 F. Supp. 2d 918, 923-24 (E.D. Tenn. 2002) Cir. 2000) (“three year age difference is too insignificant to (implying that replacement of 59-year old with 53-year old support a prima facie case of age discrimination”); O’Connor, insufficient); Wassel v. Mutual Life Ins. Co., 164 F.3d 633, 517 U.S. at 312-13 (implying that difference between 68-year 1998 WL 700537, at *1 (9th Cir. 1998) (table) (replacement old and 65-year old is not substantial); Munoz v. St. No. 02-3361 Grosjean v. First Energy Corp., et al. 11 12 Grosjean v. First Energy Corp., et al. No. 02-3361
Mary-Corwin Hosp., 221 F.3d 1160, 1166 (10th Cir. 2000) F.3d 30, 38 (2d Cir. 2000) (replacement of 67-year old with (holding “that because plaintiff's replacement was only two 59-year old sufficient); Fisher v. Vassar Coll., 66 F.3d 379, years his junior–an obviously insignificant difference–the 1995 WL 527804, at *29 (2d Cir.) (table) (48-year old and necessary inference of discrimination was precluded, and he 44-year old professors were substantially younger than failed to establish his prima facie case”); Hillman v. Safeco 53-year old), republished as amended, 70 F.3d 1420, 1450-51 Ins. Co. of Am., 190 F. Supp. 2d 1029, 1038 (N.D. Ohio (2d Cir. 1995) (same). 2002) (replacement of 54-year old by 54-year old insufficient); Lovas v. Huntington Nat. Bank, 215 F.3d 1326, The Ninth Circuit has not settled on a standard for 2000 WL 712355, at *3 (6th Cir. 2000) (table) (demotion and substantial age difference and its case law is accordingly termination of 48-year old officer where older officers were inconsistent. Compare Douglas v. Anderson, 656 F.2d 528, retained insufficient). 533 (9th Cir. 1981) (replacement by person 5 years younger sufficient), and Estate of McGough v. Lockheed Martin, 2001 One of our sister circuits made use of this apparent WL 275007, at *3 & n.2 (9th Cir. 2001) (table) (implying that bifurcation of the case law to adopt a bright-line rule for replacement of 48-year old by 41-year old sufficient) prima facie age discrimination cases. Hartley v. Wisc. Bell, with Wassel, at *1 (holding replacement by person 6 years 124 F.3d 887 (7th Cir. 1997). The Seventh Circuit younger insufficient while citing Douglas), and Kalagian, at “considers a ten-year difference in ages (between the plaintiff *1 (replacement of 50-year old with two 44-year olds and her replacement) to be presumptively ‘substantial’ under insufficient). O’Connor.” Id. at 893. “[A]ny age disparity less than ten years is ‘presumptively insubstantial.’” Kariotis v. Navistar The Eleventh Circuit set an early precedent allowing age Int’l. Transp. Corp., 131 F.3d 672, 676 n.1 (7th Cir. 1997) discrimination cases to proceed with as small an age (citing Hartley, 124 F.3d at 893). Hence, that circuit defines difference as three years and subsequent decisions have been “substantially younger” as 10 years younger. Ibid. Accord bound by that precedent. Carter v. City of Miami, 870 F.2d Balderston v. Fairbanks Morse Engine, 328 F.3d 309, 322 578, 583 (11th Cir. 1989) (replacement of 49-year old with (7th Cir. 2003); EEOC v. Bd. of Regents of Univ. of Wisc. 46-year old sufficient); Carter v. DecisionOne Corp., 122 Sys., 288 F.3d 296, 302 (7th Cir. 2002). “In cases where the F.3d 997, 1003 (11th Cir. 1997) (replacement of 42-year old disparity is less, the plaintiff still may present a triable claim with 39-year old sufficient, citing Carter v. City of Miami); if she directs the court to evidence that her employer Damon v. Fleming Supermarkets, 196 F.3d 1354, 1359-60 considered her age to be significant.” Hartley, 124 F.3d at (11th Cir. 1999) (replacement of 42-year old by 37-year old 893. sufficient, citing Carter v. City of Miami).
No other circuit, including this circuit, has previously Finally, the Second Circuit in an unpublished opinion found adopted such a bright-line rule. See Cicero v. Borg-Warner a one-year age difference to be sufficient, but based that Auto., 280 F.3d 579, 588 (6th Cir. 2002). Nevertheless, only conclusion on a supervisor’s ageist comments. Nembhard v. a handful of cases in a few categories have been decided Memorial Sloan Kettering Cancer Ctr., 104 F.3d 353, 1996 contrary to the Hartley rule. Age differences of 8 or 9 years WL 680756, at *3-4 (2d Cir. 1996) (table). Nembhard is have been held to be sufficient. See Cicero, 280 F.3d at 588 consistent with Hartley because under Hartley smaller age (leaving the question of whether 43-year old was substantially differences may still present a triable claim where there is younger than 51-year old to jury); Tarshis v. Riese Org., 211 evidence that the employer considered age to be significant. No. 02-3361 Grosjean v. First Energy Corp., et al. 13
Given this array of authority, and our circuit’s precedent, we hold that, in the absence of direct evidence that the employer considered age to be significant, an age difference of six years or less between an employee and a replacement is not significant. This rule will assist district courts in making a firm determination, yet does not encroach on our precedent holding that eight years can be a significant age difference. The standard is also at least as lenient towards plaintiffs as all decisions of our sister circuits with the exception of the standard-less Ninth Circuit and the three- year-standard Eleventh Circuit. As Grosjean was not more than six years older than Riley or Gallagher and he presents no direct evidence that First Energy considered age to be significant, his federal age discrimination claim fails. “Under Ohio law, the elements and burden of proof in a state age-discrimination claim parallel the ADEA analysis.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 357 (6th Cir. 1998) (citing McLaurin v. Fischer, 768 F.2d 98, 105 (6th Cir. 1985), and Barker v. Scovill, Inc., 451 N.E.2d 807, 808 (Ohio 1983)). Therefore, as Grosjean’s federal claim failed, so must his state law claim. III For the foregoing reason, we AFFIRM the judgment of the district court.