               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0098n.06
                          Filed: February 8, 2005

                                             No. 03-4239

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


GEOFFREY GRONEK,                                  )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
WESCO DISTRIBUTION, INC.,                         )   NORTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellee.                        )




       Before: SUHRHEINRICH, ROGERS, and COOK, Circuit Judges.


       COOK, Circuit Judge. Geoffrey Gronek appeals the district court’s grant of summary

judgment in favor of WESCO on his age-discrimination claim under the Age Discrimination in

Employment Act. Because Gronek fails to raise a genuine factual dispute that Gronek discriminated

against him because of his age, we affirm.


                                                 I.


       Gronek’s employment with WESCO ended when WESCO terminated him as part of what

Gronek concedes constituted an economically-motivated reduction in force. Gronek was forty-nine

years old at the time of the termination. WESCO’s RIF also resulted in the termination of twenty-

year-old Amy Adams.
No. 03-4239
Gronek v. WESCO Distrib., Inc.

       Though Gronek acknowledges the economic basis for the RIF, he contends that his age

motivated WESCO’s decision to terminate him. He filed a charge with the Equal Employment

Opportunity Commission and later initiated this action alleging that WESCO violated the ADEA.

The district court declined to reach the merits of Gronek’s ADEA claim and, instead, granted

summary judgment on the basis that Gronek’s non-cooperation with the EEOC’s investigation

constituted failure to exhaust administrative remedies.


       Gronek challenges the district court’s conclusion that he failed to exhaust administrative

remedies, alleging that exhaustion requires only filing a claim with the EEOC and waiting the

statutorily prescribed period before filing suit. WESCO defends the district court’s determination,

but maintains in the alternative that Gronek’s claim fails on the merits. Because we can readily

resolve this case on the merits, we need not consider whether Gronek failed to exhaust his

administrative remedies.


                                                II.


       Gronek concedes that he must satisfy the heightened burden applicable to reduction in force

cases to establish a prima facie case of age discrimination. Thus, he must not only demonstrate that

he is member of the protected class, was subjected to an adverse employment action, and was

qualified for the particular position, but must also “present additional direct, circumstantial, or

statistical evidence tending to indicate that the employer singled [him] out … for discharge for

impermissible reasons.” Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 371 (6th Cir. 1999)



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No. 03-4239
Gronek v. WESCO Distrib., Inc.

(citation and internal quotation marks omitted). Under the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), applicable to ADEA claims, if Gronek makes out a

prima facie case, the burden shifts to WESCO to “produce evidence of a non-discriminatory reason

for its action, which will necessarily be the alleged reduction in force.” Godfredson, 173 F.3d at

371. “The burden then returns to [Gronek] to demonstrate that [WESCO’s] proffered reason is

pretextual.” Id.


       Even if Gronek could establish a prima facie case of age discrimination, his failure to present

evidence sufficient to show pretext is fatal to his claim. As purported evidence that age motivated

WESCO’s decision to terminate him, Gronek points to WESCO’s decision to hire two younger

employees for available positions—several months after his termination—instead of recalling him.1

But “we have held that ‘[w]here an employer reduces his workforce for economic reasons, it incurs

no duty to transfer an employee to another position within the company.’ A fortiori, an employer

has no duty to recall laid-off employees when a new position opens up.” Almond v. ABB Indus. Sys.,

Inc., 56 Fed. Appx. 672, 678 (6th Cir. 2003) (alteration in original) (citation omitted). And Gronek

fails to provide us with any information, such as the relative qualifications of employees or the pool

of applicants from which WESCO selected them, to permit us to infer discrimination from the ages



       1
         Contrary to WESCO’s characterization, we do not construe Gronek’s allegations regarding
WESCO’s later hiring decisions as asserting an independent claim for relief. Instead, we interpret
such allegations as purported circumstantial evidence that Gronek’s age motivated WESCO’s
decision to terminate him. To the extent that Gronek did intend to allege a separate “failure to
rehire” claim, we agree that Gronek’s failure to raise such claim in the district court precludes him
from raising it here.

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Gronek v. WESCO Distrib., Inc.

of the employees hired after his termination. See Simpson v. Midland-Ross Corp., 823 F.2d 937,

943-44 (6th Cir. 1987) (finding that statistical evidence regarding the age of employees hired

following the plaintiff’s discharge lacked probative value absent additional information from which

to infer discrimination). Nor has Gronek alleged that WESCO treated Adams, only twenty when

she was terminated, any differently than it treated him. Thus, Gronek’s evidence amounts to little

more than “mere conclusory allegations [,which] do not suffice to prove intentional discrimination

based on age.” Id. at 941.


                                               III.


       Because Gronek fails to raise a genuine issue regarding whether the reduction in force was

a pretext for age discrimination, we affirm the district court’s grant of summary judgment in favor

of WESCO.




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