NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0118n.06 Filed: February 11, 2009
No. 08-5227
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MICHAEL D. HARMON, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF KENTUCKY EARTHGRAINS BAKING COMPANIES, INC., ) ) Defendant-Appellee. ) )
BEFORE: RYAN, SILER, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Michael D. Harmon appeals the district court’s grant of summary judgment in favor
of his former employer, defendant Earthgrains Baking Companies, Inc. (“Earthgrains”), and
dismissal of his claim for age discrimination under the Kentucky Civil Rights Act, KY . REV . STAT .
ANN . § 344.040(1). The district court determined that Harmon failed to satisfy the fourth element
of the prima facie case of age discrimination, requiring that Earthgrains replace him with a
significantly younger person. The court also rejected Harmon’s request that it consider other
evidence of alleged discrimination outside of the traditional prima facie elements.
On appeal, Harmon contends that the district court erred by failing to consider evidence of
pretext, including his contention that Earthgrains’s decision to restructure its personnel rather than No. 08-5227 Harmon v. Earthgrains Baking Cos., Inc.
replace him was part of an effort to conceal its alleged prior discriminatory conduct and defeat his
prima facie case. Because the district court ruled correctly that Earthgrains did not replace Harmon
with a significantly younger person, thereby defeating his prima facie case, and properly rejected
Harmon’s remaining pretext arguments, we affirm.
I.
On February 14, 2006, Earthgrains1 terminated Harmon from his position as district manager.
At the time of discharge, Harmon was 57 years old and had been employed by Earthgrains (or its
corporate predecessors) for 28 years.
Beginning in 2002, Harmon managed Earthgrains’s facility in Bowling Green, Kentucky, in
its West Tennessee Zone. In October 2005, Earthgrains hired 32-year-old Bradley Jordan as vice-
president of the West Tennessee Zone. Jordan supervised Harmon. At the time of Jordan’s hire,
Harmon’s employee file contained no negative entries.
During parts of November and December 2005, Harmon missed work for health-related
reasons. When Harmon returned to work in December 2005, he and Jordan toured various stores
in the Bowling Green area to evaluate Harmon’s performance. Harmon alleges that during that
review, Jordan told him: “I bet you think that your older people are your best people . . . . well,
they’re not. They’re not your best people.”
1 Earthgrains is a wholly-owned subsidiary of the Sara Lee Corporation. Although the complaint named Sara Lee as a defendant and the appellate briefs include Sara Lee as a non- appealing defendant in the case caption, the district court dismissed Sara Lee from this action by order entered November 30, 2006. The order substituted Earthgrains for Sara Lee.
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Jordan’s assessment of Harmon’s performance in December 2005 was negative. The
evaluation cited numerous areas requiring improvement, including poor product displays, products
that were outdated and out-of-stock, and lack of “pride.”
While reviewing Earthgrains’s profit and loss statements in February 2006, Jordan learned
that an Earthgrains delivery truck in Bowling Green had been involved in two separate accidents,
in December 2005 and January 2006. In the first accident, the truck, operated by employee Lewis
Geron, struck a deer. In the second accident, the truck, operated by employee Chuck (Casper) Glass,
hit a doghouse that fell from another vehicle.
The employee drivers reported both accidents to mechanics in Earthgrains’s in-house repair
garage in Nashville. Although the truck sustained damage after each accident, the mechanics
advised the Bowling Green employees that the truck remained functional until they could make the
required repairs. Accordingly, employees in Bowling Green continued to drive it.
On February 8, 2006, Jordan confronted Harmon about the accidents. Jordan asked Harmon
why he did not complete an accident report after each collision, which would have notified Jordan
of the incidents. Harmon contends that at this meeting, Jordan informed him for the first time that
Earthgrains’s policy required that all accidents be reported to the “zone leadership team,” including
accidents that did not involve injuries or liability issues. Jordan suspended Harmon pending further
investigation, documenting his concern that Harmon permitted the damaged truck to be driven by
employees on both occasions without first insuring that it was safe to drive. The next day, Danny
Gaither, zone human resources manager, notified Lisa Millisor, Earthgrains’s human resources
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director in Atlanta, that he intended to terminate Harmon. In his letter, Gaither recounted Harmon’s
failure to follow the accident reporting procedure and concluded:
I have attached a document that gives some particulars about Mike’s tenure and records of performance. It also includes a summary of Brad’s excellent and specific documentation of work withs with Mike Harmon. Brad and I have serious doubts if Mike’s performance will ever improve to the level expected of a District Manager, regardless of coaching and training provided. Mike is basically a good person that does well when running a route but sorely lacks the skill sets necessary to be successful as a DM.[] We both realize that procedure would normally include a coaching for improvement or PIP before separation of employment generally occurs. Brad feels that we may have an opportunity to cut through the chase and separate employment for the serious offense of not reporting these accidents. If we don’t take this opportunity we are more than likely postponing the inevitable.
After consulting with in-house counsel, Millisor accepted the recommendation to terminate
Harmon. As grounds for termination, Millisor concluded that Harmon violated company policy by
not reporting the accidents and by not requiring Geron or Glass to undergo drug testing after the
accidents. In making those determinations, Millisor was unable to reference a written policy.
Gaither conceded that the written policy, while it existed, contradicted or did not address aspects of
the spoken policy conveyed to Harmon at the meeting in which he was suspended, including the
purported requirements that all accidents be reported and that drug tests be performed. After
Harmon’s discharge, Millisor and Gaither clarified the accident reporting policy to Earthgrains’s
district managers.
Earthgrains did not fill the vacancy created by Harmon’s termination; rather, it assigned Mark
Carter, an existing district manager in Glasgow, Kentucky, who is ten years younger than Harmon,
to manage the area previously supervised by Harmon. Carter not only absorbed permanently all of
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Harmon’s job responsibilities, but he also continued to serve as district manager in Glasgow, thereby
increasing his workload. As part of the realignment, Earthgrains also assigned four truck routes
managed previously by Carter in Leitchfield, Kentucky, to another existing district manager, Joe
Kocher. According to the affidavit of Mitchel Cox, regional vice-president of Sara Lee’s South
Region, Earthgrains decided to make these adjustments before it terminated Harmon. It also
announced its restructuring plans four months before Harmon filed the present lawsuit.
Harmon sued Earthgrains in the Warren County (Kentucky) Circuit Court, alleging that
Earthgrains discriminated against him on the basis of age, in violation of KY . REV . STAT . ANN . §
344.040(1). Earthgrains removed the case to the United States District Court for the Western District
of Kentucky on the basis of diversity of citizenship.
The district court granted Earthgrains’s motion for summary judgment. The court first
determined that Harmon failed to satisfy the fourth element of the prima facie case of age
discrimination, requiring that the employer “replace” the claimant with a significantly younger
person. It concluded, quoting our decision in Grosjean v. First Energy Corp., 349 F.3d 332, 335-36
(6th Cir. 2003), that “Carter’s assumption of [Harmon’s] duties in addition to his own does not
‘constitute replacement under the law of this circuit.’” Second, the court rejected Harmon’s
contention that other evidence – including his age, his unblemished performance record of 28 years,
and a termination that was purportedly based on an unwritten policy and recommendation by a
newly-hired 32-year old supervisor – justified an inference of age discrimination. Harmon timely
appeals.
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II.
A district court’s grant of summary judgment is reviewed de novo. Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” FED . R. CIV . P. 56(c).
The moving party bears the initial burden of specifying the basis for its motion and of
identifying the portion of the record which demonstrates the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this
burden, the non-moving party must then produce specific facts demonstrating that a genuine issue
of material fact exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
The court must view all facts and inferences in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Williams v.
Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999). However, the “mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of material fact.” Liberty
Lobby, Inc., 477 U.S. at 247-48 (1986). Thus, only disputed material facts, those “that might affect
the outcome of the suit under the governing law,” will preclude summary judgment. Id. at 248.
KY . REV . STAT . ANN . § 344.040(1) makes it unlawful for an employer to discharge any
individual because the person is age forty and over. The civil rights provisions under Chapter 344
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of the Kentucky Revised Statutes are interpreted consistently with their federal anti-discrimination
law counterparts. Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005) (citations
omitted). Moreover, “[a]ge discrimination cases under the ADEA [federal Age Discrimination in
Employment Act, 29 U.S.C. §§ 621-634] are analyzed under the same framework as employment
discrimination cases under Title VII.” Grosjean, 349 F.3d at 335.
Harmon concedes that he has no direct evidence of discrimination by Earthgrains.
Accordingly, he acknowledges that he must prove discrimination by circumstantial evidence based
on the burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973) and refined in Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 252-53 (1981). Under that standard, Harmon must first establish a prima facie case of age
discrimination by demonstrating that: (1) he is a member of a protected class; (2) he was subjected
to an adverse employment action; (3) he was qualified for the position; and (4) he was replaced by
a person outside of the protected class. Grosjean, 349 F.3d at 335 (citation omitted). “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 protected class, but merely
replacement by a significantly younger person.” Id. (citation omitted).
If Harmon establishes a prima facie case of age discrimination, the burden then shifts to
Earthgrains to articulate a legitimate, nondiscriminatory reason for terminating him. Id. (citations
omitted). If Earthgrains meets this burden, Harmon must then “produce sufficient evidence from
which the jury may reasonably reject [Earthgrains’s] explanation.” Id. (citation omitted). At all
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times, Harmon retains the burden of persuasion as to the ultimate issue of age discrimination. Lilley
v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992) (citing Burdine, 450 U.S. at 252-53).
The parties agree that the first three elements of the prima facie case are satisfied. At issue
is the fourth requirement.
III.
Harmon first contends that the district court erred in ruling that he failed to satisfy the fourth
element of the prima facie case of age discrimination, requiring that Earthgrains replace him with
a significantly younger person. As grounds for that argument, Harmon states:
During Jordan’s tenure, two district managers left their employment in the West Tennessee Zone, Harmon and McClane, 57 and 61, respectively. During his tenure Jordan hired two district managers, Shivian Daniels and Bradley Osterberg, 25 years old and 37 years old, respectively.
Earthgrains convinced the District Court that through the repositioning of Carter no replacement of Harmon occurred. Earthgrains attempts to buttress this position by stating that the zone realignment had been in the works – at least as of the day following Harmon’s termination.
The McDonnell Douglas analysis is never to be applied mechanically. Yet in finding the replacement element has not been satisfied, the District Court has done just that. An overly technical reading of the McDonnell Douglas factors allows an employer to escape responsibility for discriminatory actions by such realignments and repositioning of personnel. In this case, Earthgrains realigned Harmon’s previous geographic area into a different zone. That decision was conveniently discussed the day after Harmon’s termination. Prior to that realignment, however, they repositioned a significantly younger manager, Carter, to cover Harmon’s former territory. In the meantime, 61 year old McClane is enticed into early retirement. In addition to coaxing McClane to exit, Jordan is interviewing and hiring a 25 year old and a 37 year old as West Tennessee Zone Managers. Apparently Jordan held steadfast his belief that “[older people] . . . they’re not your best people.”
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Given the lost [sic] of two (2) district managers from the West Tennessee Zone, and the hiring of two (2) district managers into that zone, the realignment and repositioning of Carter in April 2006 is properly shown as the charade it is. To claim that a jury could not reasonably find is error. The discriminatory motive is more readily apparent when one considers the respective ages of the two outgoing district managers and the two that were subsequently hired.
In Grosjean, we affirmed the district court’s grant of summary judgment in favor of the
employer on an employee’s age discrimination claim “on the alternative basis that Grosjean failed
to make his prima facie case of age discrimination because he was not replaced by a person
significantly younger than himself.” 349 F.3d at 334. We stated:
Grosjean [age 54] argues that he was initially replaced by Gallagher [age 48], who temporarily took over his duties in addition to his own. However, Gallagher’s assumption of Grosjean’s duties does not constitute replacement under the law of this circuit. A “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 employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff’s duties.” Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) (citing Sahadi v. Reynolds Chem., 636 F.2d 1116, 1117 (6th Cir. 1980)); see also Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992) (“Spreading the former duties of a terminated employee among the remaining employees does not constitute replacement.”); Godfredson v. Hess & Clark, 173 F.3d 365, 372-73 (6th Cir. 1999) (reaffirming Barnes, 896 F.2d at 1465).
Id. at 335-36.
Applying Grosjean, the district court correctly concluded that Earthgrains did not “replace”
Harmon. The evidence conclusively establishes that Carter, an existing Earthgrains employee,
completely absorbed Harmon’s duties, in addition to retaining his preexisting duties, thereby
increasing Carter’s workload. Although as part of this transition Earthgrains assigned four truck
routes previously managed by Carter to another existing district manager, Joe Kocher, Earthgrains
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did not hire a new employee to fill the vacancy left by Harmon; rather, it redistributed all of his prior
duties among its existing district managers. Therefore, under Grosjean and the cases upon which
it relied, Harmon was not “replaced.”
IV.
Although Harmon’s failure to establish a prima facie case of age discrimination requires
dismissal of his claim, he nevertheless attempts to rescue it by arguing that the district court erred
by failing to look beyond the traditional elements of the prima facie case and consider other evidence
suggesting discriminatory conduct by Earthgrains. Specifically, Harmon urges us to consider the
context in which Earthgrains repositioned or reassigned existing employees to Harmon’s vacancy.
Specifically, he implies that Earthgrains made such changes for the unscrupulous purposes of
concealing its discriminatory conduct and defeating his prima facie case, i.e., it “conveniently”
realigned its zones and repositioned its personnel the day after it terminated him. In this way,
Harmon’s argument is actually based on “pretext,” namely, that Earthgrains’s decision to restructure
its personnel was a pretext for concealing its discrimination.
An inquiry into the legitimacy of the employer’s articulated reasons for not replacing a
plaintiff may, given the proper circumstances, be appropriate at the prima facie stage. Such an
approach is consistent with the flexible, adaptive nature of the McDonnell Douglas framework. See
McDonnell Douglas, 411 U.S. at 802 n.13 (“[T]he prima facie proof . . . is not necessarily applicable
in every respect to differing factual situations.”). We have repeatedly cautioned that “the McDonnell
Douglas test is not to be applied mechanically”; rather, a “case-by-case approach” should be applied,
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focusing “on whether age was in fact a determining factor in the employment decision.” Barnes, 896
F.2d at 465. See also Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1179-80 (6th Cir. 1983)
(rejecting a rigid application of the McDonnell Douglas formula and holding that the McDonnell
Douglas elements of the prima facie case are “guidelines” and not “exclusive criteria”). In Grosjean,
we acknowledged the interrelationship between the steps of the McDonnell Douglas analysis: “In
some cases, plaintiff’s evidence establishing the prima facie case can also be sufficient to meet one
or more of the elements necessary to rebut the defendant’s proffered non-discriminatory reasons.”
349 F.3d at 335 (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149 (2000)).
Therefore, although we may consider the legitimacy of Earthgrains’s restructuring decisions
at the prima facie stage, Harmon’s assertion that the district court erred by refusing to depart from
the traditional prima facie elements is without merit. The district court properly recognized that
“Blackwell would allow a modification or departure from the traditional McDonnell Douglas
analysis if the facts should warrant it[,]” but that Harmon did not advance “any justifiable reason
why the Court should not use these criteria to analyze [his] claim here.” We agree.
Simply stated, Harmon failed to demonstrate that Earthgrains’s articulated reason for not
replacing him – its plan to restructure its zones and personnel – was intended to conceal its alleged
prior discriminatory conduct and defeat his prima facie case. Mitchel Cox, Sara Lee’s regional vice
president, stated in his affidavit that Sara Lee’s decision to restructure Earthgrains’s zones and move
the Bowling Green depot and two other depots from Earthgrains’s West Tennessee Zone to its
Kentucky/Indiana Zone was made before Earthgrains terminated Harmon and before it became aware
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that Harmon intended to file a lawsuit. According to Cox, Earthgrains made a Powerpoint
presentation announcing its restructuring decision four months before Harmon filed suit. Cox also
confirmed that Carter’s absorption of Harmon’s duties were permanent and that no new district
manager positions were created as a result of the vacancy left by Harmon. Carter verified in his
affidavit that he did absorb Harmon’s duties, that his overall job responsibilities increased as a result,
and that “they remain so to this day.”
Harmon produced no evidence contradicting the affidavits of Cox and Carter. If
Earthgrains’s restructuring decisions directly resulted from this lawsuit, the alleged plot has
continued now for almost three years. The evidence permits no inference that Earthgrains’s actions
were a temporary ruse designed to immunize it from liability. Specifically, Harmon submitted no
evidence suggesting that, at any time before or after the filing of his lawsuit, Earthgrains hired a new
district manager to fill his vacancy or that it reassigned a significantly younger employee to his
former position. The only reasonable inference that can be drawn is that Earthgrains permanently
eliminated Harmon’s position and distributed his former duties among existing staff. Further, that
Sara Lee made the decision to restructure Harmon’s zone before Earthgrains terminated him and
even announced that decision four months before Harmon filed suit, strongly weigh against a
reasonable inference that its personnel decisions were motivated by its purported desire to conceal
its alleged discriminatory conduct.
Where an employer redistributes a terminated employee’s work among existing employees
and does not replace the discharged employee, we must presume that the employer acted for
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legitimate business reasons. That is so because the business incentives underlying such a maneuver
are readily apparent. See Sahadi v. Reynolds Chemical, 636 F.2d 1116, 1118 (6th Cir. 1980) (“[A]
prima facie case of age discrimination is not shown by mere termination of a competent employee
where it is shown that an employer is making cutbacks due to economic necessity.”). Obviously, the
employer accrues the economic benefit of having one less employee on the payroll. For these
reasons, the district court correctly rejected Harmon’s argument that Earthgrains’s restructuring
decisions were motivated by a desire to conceal its alleged discrimination.
V.
In conclusion, because the district court correctly ruled that Earthgrains did not replace
Harmon with a significantly younger person, thereby defeating his prima facie case, and properly
rejected Harmon’s remaining pretext arguments, we affirm.
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