               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0207n.06
                           Filed: March 28, 2006

                                      No(s) 04-5407/5876

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


KENNETH L. SISK,                                        )
                                                        )        ON APPEAL FROM THE
       Plaintiff-Appellant,                             )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE EASTERN
v.                                                      )        DISTRICT OF TENNESSEE
                                                        )
COMMERCIAL FURNITURE GROUP, INC.,                       )                          OPINION
f/d/b/a FALCON PRODUCTS, INC.,                          )
                                                        )
       Defendant-Appellee.                              )



BEFORE:        COLE, GIBBONS, and ROGERS, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant Kenneth Sisk was terminated from

his position with Defendant-Appellee Falcon Products, Inc. (“Falcon”). Sisk claims that he was

unlawfully terminated as a result of his age, in violation of the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 621 et sq. Falcon contends that Sisk’s position was eliminated during

a lawful reduction in force. For the reasons that follow, we AFFIRM the district court’s grant of

summary judgment in favor of Falcon and AFFIRM the district court’s denial of Sisk’s motion for

reconsideration.

                                                I.

       Falcon, now doing business as the Commercial Furniture Group (“Commercial”), is

primarily a commercial furniture manufacturer headquartered in St. Louis, Missouri. At the time

of his termination, Sisk was a plant engineer/maintenance supervisor at Falcon’s Newport,
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Sisk v. Commercial Furniture Group, Inc.

Tennessee plant. Throughout his employment with Falcon, Sisk, a salaried employee, received

positive performance reviews and salary increases. Among his responsibilities, Sisk supervised

eight employees in the maintenance and housekeeping department.             In early 2001, Falcon

experienced a downtown in its business. On July 10, 2001, Falcon announced that it was closing

one plant and significantly downsizing another. From July 10 to August 20, 2001, Falcon eliminated

approximately 200 positions company-wide out of approximately 3,500 total employees. On

October 5, 2001, Falcon internally announced additional measures to combat the decline in its

growth of sales. Falcon eliminated ten percent of its salaried workforce, cut management salaries

by ten percent, suspended merit raises, and reduced business travel. These reductions terminated

nine and one-half salaried positions at the Newport plant. Additionally, Falcon laid off seventy-nine

hourly employees at the Newport facility.

       Prior to announcing its restructuring, Falcon instructed Mike Nelson, plant manager of the

Newport facility, to review the plant’s salaried positions to determine if any positions could be

eliminated. Nelson claims that the primary criterion in determining which employees would be

recommended for termination was expendability of the position.            Nelson made the initial

recommendation to terminate Sisk to David Hearn, General Manager of the Newport plant, and to

Russell Armstrong, an otherwise unidentified supervisor.             Nelson believed that Sisk’s

responsibilities could be absorbed by other employees. After Nelson, Hearn, and Armstrong

determined that Sisk’s position should be eliminated, they sought the approval of Cyndy

Rosenbloom, Vice President of Human Resources, who approved Sisk’s termination. Sisk was

terminated at the age of sixty-five and was the oldest of the discharged salaried employees.

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Sisk v. Commercial Furniture Group, Inc.

       According to Falcon, Sisk’s responsibilities were assigned to Gary Shelton, Bonnie Guthrie,

and Nelson, all of whom were salaried employees. Falcon contends that Shelton assumed Sisk’s

maintenance responsibilities, Nelson assumed Sisk’s day-to-day supervisory duties, and Guthrie

became responsible for any environmental responsibilities handled by Sisk.

       More than seven months after Sisk was terminated, Tony Lawson, a Falcon employee at the

Newport plant who had been temporarily assigned to the Morristown, Tennessee plant, returned to

the Newport facility as a manufacturing/production engineer. The parties dispute when Nelson

knew that Lawson was returning to Newport — Nelson testified that he did not know when Lawson

was returning until he actually returned; Lawson stated that he and Nelson had communicated

regarding Lawson’s possible return six times, beginning one month after Sisk’s termination. Nelson

contends that Lawson was a more valuable supervisor to Falcon than Sisk because Lawson had

computer numeric control machining (“CNC”) programing experience and could supervise both the

only CNC programmer who remained after the lay-offs and the maintenance workers. The CNC

responsibilities were critical to Falcon’s operations, because virtually all raw wood and other

material used to manufacture furniture had to be processed through the CNC machinery prior to final

manufacturing. Further, the CNC programmer was not “school trained” and needed supervision.

       Shelton was unable to perform all of Sisk’s maintenance responsibilities. As a result, on

May 20, 2002, Lawson assumed both the maintenance responsibilities held by Shelton and the

responsibility for supervising the maintenance and housekeeping department.

       Falcon asserts that Nelson decided to terminate Sisk because Nelson believed, based on his

past experience with cost-containment measures, that the maintenance department would eventually

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be eliminated as part of the restructuring. Nelson was correct. In July 2003, Lawson was laid off

when Falcon eliminated the maintenance department.

       Sisk claims that his position was not eliminated but that he was replaced by Lawson, a

younger worker. Sisk argues that he was more qualified than Lawson, that production supervisors

with experience equivalent to his experience were not terminated, and that Falcon overstated the

CNC supervision responsibilities. On January 31, 2005, Falcon filed for bankruptcy protection and

reorganized under Chapter 11 as Commercial.

       On March 8, 2004, the district court granted Falcon’s motion for summary judgment. The

district court denied Sisk’s motion for reconsideration on June 28, 2004. This timely appeal of both

decisions followed.

                                                II.

A. Standard of Review

       We review a grant of summary judgment de novo. Cincinnati Ins. Co. v. Zen Design Group,

LTD, 329 F.3d 546, 551 (6th Cir. 2003). Generally, this Court reviews a district court’s denial of

a motion for reconsideration for abuse of discretion. Gage Prods. Co. v. Henkel Corp., 393 F.3d

629, 637 (6th Cir. 2004) (citing Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 454

(6th Cir. 2003) (additional citations omitted)). However, when we review an appeal of a motion that

sought reconsideration of a grant of summary judgment, we only review the grant of summary

judgment de novo. Columbia Gas Transmission v. Limited Corp., 951 F.2d 110, 112 (6th Cir. 1991);

see also Gage Prods. Co., 393 F.3d at 637.




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B. Age Discrimination

       Absent direct evidence of discrimination, a plaintiff claiming that he was unlawfully

terminated in violation of the ADEA must establish a prima facie case of age discrimination. A

prima facie case is made by showing that: 1) the employee was in the protected group — i.e., over

forty years old; 2) the employee was qualified for the position; 3) the employee was terminated; and

4) the employee was replaced by a younger person. McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973); King v. Buckeye Rural Elec. Coop., No. 99-3320, 2000 U.S. App. LEXIS 8056,

at *5 (6th Cir. Apr. 20, 2000) (citing Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 69 (6th

Cir. 1982)).

       If a plaintiff meets his prima facie burden, the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for the termination. McDonnell Douglas, 411 U.S. at 804. If

the employer articulates such a reason, the burden shifts back to the plaintiff to show that this reason

is pretextual. Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 143 (2000). Falcon

concedes that Sisk meets the first three prongs of the prima facie case. Therefore, the only question

is whether the fourth prong is met.

       Where a termination occurs during a reduction in force, a plaintiff can satisfy the fourth

prong of the McDonnell Douglas test by presenting “additional direct, circumstantial, or statistical

evidence tending to indicate that the employer singled out the plaintiff for discharge for

impermissible reasons.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990); see also

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 357 (6th Cir. 1998) (same). A plaintiff

in a reduction-in-force case can also satisfy the fourth prong by demonstrating that a “comparable

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non-protected person was treated better.” Ercegovich, 154 F.3d at 350 (quoting Mitchell v. Toledo

Hosp., 964 F.2d 577, 582–83 (6th Cir. 1992)).

       While Sisk contends that he was replaced by a younger employee, the record does not bear

out that assertion. It was only after seven and one-half months had passed, and the maintenance

department had yet to be disbanded, that Lawson assumed most of Sisk’s former responsibilities.

There is no evidence that it was Falcon’s intent when Sisk was terminated to shift his position to a

younger worker or that Falcon actually did award the position to a younger employee. The only

evidence that Sisk offers in support of his claim is the statement of Lawson — who himself was

terminated at a later date as a result of Falcon’s reduction in force — that Nelson contacted Lawson

one month after Sisk was terminated about taking over maintenance supervisor responsibilities and

discussed the topic with Lawson on several other occasions. The discussions between Nelson and

Lawson indicate merely that Nelson’s initial determination as to when Falcon would eliminate the

maintenance department was incorrect, and that Nelson’s initial determination that Sisk’s position

would be easily absorbed by other employees was, likewise, incorrect. Sisk was not replaced by

Lawson; if anything, the employees who initially took over Sisk’s responsibilities, for the most part,

found that their newly assigned duties were assumed by Lawson.

       Sisk asserts that he satisfies the fourth prong by showing that a comparable non-protected

person was treated better. Sisk argues that younger production supervisors--who retained their

positions--were comparable to him. However, Sisk had no production experience. The only

comparison between Sisk and the production supervisors lies in the fact that they share the title




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“supervisor.” Thus, Sisk cannot show that he was similar to the production supervisors in “all

relevant aspects.” Id. at 352.

       Sisks offers no other evidence that he was replaced by a younger employee or that a

comparable non-protected employee was treated better, and thus he has failed to establish a prima

facie case. Even if Sisk were able to establish a prima facie case, Falcon articulated a legitimate,

non-discriminatory reason for Sisk’s termination. Finally, there is no evidence that Sisk’s

termination was a pretext for discrimination.

                                                III.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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