                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0572n.06

                                            No. 10-5795

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                       FILED

JOHN R. BLANDFORD,                                )                                   Jun 05, 2012
                                                  )                             LEONARD GREEN, Clerk
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
EXXON MOBIL CORPORATION d/b/a                     )   EASTERN DISTRICT OF TENNESSEE
EXXON MOBIL FUELS MARKETING                       )
COMPANY,                                          )
                                                  )
       Defendant-Appellee.                        )



       Before: GIBBONS and SUTTON, Circuit Judges; DUGGAN, District Judge.*


       DUGGAN, District Judge. In this suit, Plaintiff John Blandford asserts claims of age

discrimination under the Age Discrimination in Employment Act (“ADEA”) and the Tennessee

Human Rights Act (“THRA”) against his employer, Exxon Mobil Corporation (“ExxonMobil”).

Blandford appeals the district court’s grant of summary judgment in favor of ExxonMobil with

respect to his claims. For the reasons set forth below, we affirm the district court’s decision.

                                                 I.

       ExxonMobil sales representatives are known within the company as “Territory Managers”

(“TMs”). The general class of TMs can be further subdivided based on the type of customers served.

Two groups of TMs that are particularly relevant to this suit are those who service “Company

       *
       The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 10-5795
Blandford v. Exxon Mobil Corp.


Operated Retail Stores” (“CORS TMs”) and those who service independent distributors of

ExxonMobil products (“Distributor TMs”). The company has typically assigned new recruits and

recent college graduates to the CORS TM position to allow them to learn the business. R. 49-1 at

29-30. As these employees gain experience, they often become Distributor TMs. Appellant App’x

53. At all times relevant to this litigation, Blandford was employed as a Distributor TM.

       ExxonMobil considers several factors in determining employees’ compensation: the

employee’s (1) “classification level” (“CL”); (2) performance, represented by a Rank Group

Percentile; and (3) work experience, measured in years. R. 25 at ¶¶ 3-4. Each CL corresponds to

a minimum and maximum salary. The Rank Group Percentile and work experience values are used

to define a number of “salary reference curves” within each CL. Id. at ¶ 4. The curves are defined

so that compensation rises at a decreasing rate as the employee gains experience. Thus, the trajectory

of the salary curve “flattens out.” See Appellee App’x 179. ExxonMobil has also at times created

salary curves for specific positions based on surveys of competitive data. R. 25 at ¶ 5. These salary

curves follow the same basic trajectory, with compensation rising at a decreasing rate.

       By January 2003, ExxonMobil perceived a need to align the pay of the TM job family more

closely with the pay offered in the marketplace for comparable positions. To accomplish this, the

company conducted internal studies and gathered competitive data from consulting organizations

William A. Mercer, Inc. and Towers Perrin. Id. at ¶ 6. Through these efforts, the company

determined that the pay structure of the TM job family was not aligned with the market. Appellee

App’x 193. ExxonMobil defined a new salary structure for the TM job family, which became known


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as the “TM Salary Curve.” Id. at ¶ 8. The decision was made to apply the TM Salary Curve to a

number of positions, including the CORS TM and Distributor TM positions. Appellee App’x 420.

       The TM Salary Curve was implemented in January 2003. Id. As a part of this change,

positions in the TM job family were given a new CL with a salary range of $45,000 through $77,000.

At the time, many TMs, including Blandford, had salaries above the $77,000 target maximum. R.

25 at ¶ 10-11. ExxonMobil implemented a program called “merit transition,” where TMs with

salaries above the target maximum would obtain annual “merit transition increases” of $800 to

$1,200. Id. at ¶ 14. The merit transition increase was expected to be smaller than the merit raises

given to TMs whose salaries were below the maximum level. Appellant App’x 33. Because the

salary ranges for each CL tended to increase from year to year, the result was that the salaries of all

TMs would eventually fall within the minimum and maximum range of the TM Salary Curve.

Following the implementation of the TM Salary Curve, Blandford was given annual merit transition

increases of between $800 and $1,200. R. 49-5.

       In August 2006, ExxonMobil conducted a “TM job family evaluation workshop” attended

by several executives of the Fuels Marketing organization. The workshop’s purpose was to review

the application of the TM Salary Curve. Human Resources executive Benjamin Buckland served

as the workshop’s facilitator. Workshop attendees evaluated and compared the positions subject to

the TM Salary Curve to determine whether changes should be made. After this discussion, the

executives recommended the removal of several positions from the TM Salary Curve, but not the

Distributor TM position. Appellee App’x 434.


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        At some point, Blandford raised a concern that the TM Salary Curve was discriminatory

based on age. In October 2006, Blandford participated in a conference call with Buckland, Area

Manager Jim Coleman, and Distributor Business Manager Kendall MacGibbon to discuss this issue.

R. 44-2 at 15. Blandford was told that his concerns were investigated, but that no discrimination was

found. Id. at 16. During this phone call, Buckland allegedly stated, “intuitively . . . we all know that

the value of experience goes down with age.” R. 44-1 at 15.

        In August 2008, Blandford filed his complaint in the Circuit Court of Knox County,

Tennessee, alleging age discrimination under the ADEA and THRA. ExxonMobil removed the case

to the Eastern District of Tennessee and moved for summary judgment. The district court granted

ExxonMobil’s motion in an opinion dated June 3, 2010. Blandford now appeals that decision.

                                                  II.

        A district court’s grant of summary judgment is reviewed de novo. Provenzano v. LCI

Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011). Summary judgment is appropriate when “there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). The moving party has the burden of proving the absence of a genuine

issue of material fact and its entitlement to summary judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). All facts, including inferences, are viewed in the light most

favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). The central inquiry is “whether the evidence presents a sufficient disagreement to




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require submission to a jury or whether it is so one-sided that one party must prevail as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

                                                III.

       “The ADEA prohibits an employer from failing or refusing to hire, discharging, or

discriminating ‘against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age . . . .’” Geiger v. Tower Auto., 579 F.3d

614, 620 (6th Cir. 2009) (quoting 29 U.S.C. § 623(a)(1)). “A plaintiff may establish a violation of

the ADEA by either direct or circumstantial evidence.” Id. (citing Martin v. Toledo Cardiology

Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008)). “‘Direct evidence of discrimination is that

evidence which, if believed, requires the conclusion that unlawful discrimination was at least a

motivating factor in the employer’s actions.’” Id. (quoting Wexler v. White’s Fine Furniture, Inc.,

317 F.3d 564, 570 (6th Cir. 2003) (en banc)). “‘Circumstantial evidence, on the other hand, is proof

that does not on its face establish discriminatory animus, but does allow a factfinder to draw a

reasonable inference that discrimination occurred.’” Id. (quoting Wexler, 317 F.3d at 570).

“Regardless of the type of evidence submitted, the burden of persuasion remains on ADEA plaintiffs

to demonstrate ‘that age was the but-for cause of their employer’s adverse action.’” Provenzano, 663

F.3d at 811 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178 n.4 (2009)). Age

discrimination claims brought under the THRA are evaluated using the same analysis. Bender v.

Hecht’s Dep’t Stores, 455 F.3d 612, 620 (6th Cir. 2006).

A. Disparate Treatment Claim


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       “The ultimate question in every employment discrimination case involving a claim of

disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves v.

Sanderson Plumbing Prods., 530 U.S. 133, 153 (2000). In an age discrimination case, this means

that the plaintiff’s age “must have ‘actually played a role in [the employer’s decisionmaking] process

and had a determinative influence on the outcome.’” Id. at 141 (quoting Hazen Paper Co. v.

Biggins, 507 U.S. 604, 610 (1993)) (alteration in original).

1. Direct Evidence

       Blandford argues that Buckland’s statement, “intuitively . . . we all know that the value of

experience goes down with age,” R. 44-1 at 15, is direct evidence of age discrimination. When

examining statements allegedly showing employer bias on the basis of age, courts should consider

“whether the comments were made by a decision maker or by an agent within the scope of his

employment; whether they were related to the decision-making process; whether they were more

than merely vague, ambiguous, or isolated remarks; and whether they were proximate in time” to the

challenged action. Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir. 1994).

       It is undisputed that Buckland was involved in neither the design nor the initial

implementation of the TM Salary Curve. Blandford argues that Buckland’s comment is significant,

however, because Buckland facilitated the 2006 workshop at which ExxonMobil executives decided

not to remove the Distributor TM position from the TM Salary Curve. Blandford thus concludes that

Buckland has a “connection to the decision-making process.” Appellant Br. 29. This “connection”

is tenuous at best. Buckland may have had access to the decision makers, but there is no evidence


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indicating that he influenced their decision in any meaningful way. There is also no evidence

suggesting that these decision makers shared Buckland’s views with respect to age and experience.

       Buckland’s remark also does not reflect a discriminatory attitude toward older workers, as

Blandford suggests. By stating that “the value of experience goes down with age,” Buckland merely

expressed the view that experience is subject to diminishing returns. Put differently, an employee

can be expected to gain much of the knowledge necessary to his position early in his assignment.

Once the employee has developed considerable expertise, each additional year of experience makes

less of a difference. This does not imply that older TMs are any less capable of performing their

jobs; in fact, it seems to suggest the opposite. The premise for the diminishing return is that more

experienced employees have already established expertise in their jobs, while less experienced

employees are still developing their skills. This assumption appears to be one of the foundations of

ExxonMobil’s general compensation system, as its salary reference curves tend to flatten out as

experience increases. See Appellee App’x 179. Blandford testified that he does not believe that the

general compensation system was discriminatory based on age. R. 26-1 at 5. It is difficult, if not

impossible, to reconcile this position with Blandford’s assertion that Buckland’s remark was facially

discriminatory. Buckland’s remark was ambiguous at worst, and certainly does not require the

conclusion that unlawful discrimination motivated ExxonMobil’s decision. The district court

correctly concluded that Blandford failed to present direct evidence of age discrimination.




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2. Circumstantial Evidence

       “The three-step framework developed in McDonnell Douglas Corp. v. Green and modified

by Texas Dep’t of Community Affairs v. Burdine guides the analysis of age discrimination claims

based upon circumstantial evidence.” Provenzano, 663 F.3d at 811-12 (citations omitted). “In the

first step, the employee carries the initial burden of establishing a prima facie case of age

discrimination; if the employee meets this burden, the second step requires the employer to respond

by articulating some legitimate, nondiscriminatory reason for the adverse employment action at

issue.” Id. at 812 (citing McDonnell Douglas, 411 U.S. 792, 802 (1973)). “Third, assuming such

a response is made, the employee then bears the burden of rebutting this proffered reason by proving

that it was pretext designed to mask discrimination.” Id. (citing McDonnell Douglas, 411 U.S. at

804). “At all times, the ultimate burden of persuasion remains on the plaintiff to demonstrate that

age was the ‘but-for’ cause of their employer’s adverse action.” Id. (citing Burdine, 450 U.S. 248,

253 (1981)).

       Blandford’s prima facie case requires him to show that he: (1) is a member of a protected

class; (2) was qualified for his position; (3) suffered an adverse employment action; and (4) suffered

such action under circumstances giving rise to an inference of unlawful discrimination. See Macy

v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 364-65 (6th Cir. 2007). The district court

concluded that Blandford satisfied the first three elements, but not the fourth.

       Blandford has presented statistical analysis indicating that older workers are treated less

favorably as a result of the TM Salary Curve. “‘Appropriate statistical data showing an employer’s


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Blandford v. Exxon Mobil Corp.


pattern of conduct toward a protected class as a group can, if unrebutted, create an inference that a

defendant discriminated against individual members of the class.’” Bender, 455 F.3d at 622 (quoting

Barnes v. GenCorp., Inc., 896 F.2d 1457, 1466 (6th Cir. 1990)) (citation omitted). “‘To do so, the

statistics must show a significant disparity and eliminate the most common nondiscriminatory

explanations for the disparity.’” Id. (quoting Barnes, 896 F.2d at 1466) (citation omitted).

Blandford’s analysis shows that Distributor TMs tended to be, on average, older than CORS TMs.

This is easily explained, as the CORS TM position was often used to train new recruits and recent

college graduates.    R. 49-1 at 29-30.       Blandford’s analysis also establishes that after the

implementation of the TM Salary Curve, Distributor TMs’ raises were, on average, smaller than

those given to CORS TMs. This disparity is not surprising, because the TM Salary Curve limited

the raises given to TMs whose salaries were above the maximum of the salary range. According to

Blandford, the average Distributor TM’s salary in 2001 was $86,600, which was already above the

$77,000 target ceiling of the TM Salary Curve. Appellant Br. 12. This presents an obvious

explanation for the statistical disparity - the raises given to many Distributor TMs were limited

because those employees’ salaries were already above the target ceiling. “[T]here is no disparate

treatment under the ADEA when the factor motivating the employer is some feature other than the

employee’s age,” even where the motivating factor is correlated with age. Hazen Paper Co., 507

U.S. at 608-09. Age discrimination plaintiffs must establish that they were discriminated against

“because they were old, not because they were expensive.” Allen v. Diebold, Inc., 33 F.3d 674, 677

(6th Cir. 1994). Blandford’s statistical analysis fails to satisfy this burden.


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       Blandford points to documents created prior to adoption of the TM Salary Curve in which

it was projected that this change would result in significant cost savings for ExxonMobil. This is

irrelevant, as “[t]he ADEA was not intended to protect older workers from the often harsh economic

realities of common business decisions.” Id. Blandford also notes that ExxonMobil’s pre-

implementation analysis included data on the number of employees in various age groups. See

Appellant App’x 44. Discriminatory intent cannot be implied based solely upon ExxonMobil’s

awareness of its employees’ ages, as it does not necessarily follow that age motivated the company’s

compensation decisions.

       Blandford asserts that the Mercer survey was not the most appropriate benchmark for the TM

Salary Curve, and ExxonMobil’s decision to rely on this survey is evidence of discriminatory intent.

Appellant Br. 49-50. “In deciding whether an employer reasonably relied on the particularized facts

then before it, we do not require that the decisional process used by the employer be optimal or that

it left no stone unturned.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). “[T]he key

inquiry is whether the employer made a reasonably informed and considered decision before taking

an adverse employment action.” Id. (citing Burdine, 450 U.S. at 256). Before creating the TM

Salary Curve, ExxonMobil obtained compensation surveys that contained data from a variety of

businesses, including oil and gas companies. R. 25 at ¶ 6-7. ExxonMobil compared its own salaries

with those identified in the surveys and designed the TM Salary Curve to conform with competitive

benchmarks. Id. at ¶ 10. The company also re-evaluated the positions subject to the TM Salary

Curve in 2006 to determine whether application of the curve to those positions was appropriate.


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Blandford’s evidence indicates that ExxonMobil’s decision was perhaps unwise and that a more

appropriate benchmark could have been found. It does not demonstrate, however, that the decision

was so poorly informed as to suggest discriminatory intent.

       The district court correctly concluded that Blandford failed to demonstrate an adverse

employment action under circumstances giving rise to an inference of unlawful discrimination. He

has not established a prima facie case of disparate treatment on the basis of age, and for this reason,

summary judgment in ExxonMobil’s favor was appropriate.

B. Disparate Impact Claim

       “‘Claims that stress disparate impact involve employment practices that are facially neutral

in their treatment of different groups but that in fact fall more harshly on one group than another.’”

Allen v. Highlands Hosp. Corp., 545 F.3d 387, 403 (6th Cir. 2008) (quoting Smith v. City of Jackson,

544 U.S. 228, 239 (2005)). In City of Jackson, the Supreme Court held that ADEA plaintiffs may

recover under a disparate impact theory. 544 U.S. at 240. The scope of disparate impact liability

under the ADEA is narrower than under Title VII, because “age, unlike race or other classifications

protected by Title VII, not uncommonly has relevance to an individual’s capacity to engage in certain

types of employment.” Id. at 240. The plaintiff must identify “‘specific employment practices that

are allegedly responsible for any observed statistical disparities.’” Id. at 241 (quoting Wards Cove

Packing Co. v. Atonio, 490 U.S. 642, 656 (1989)). If the plaintiff is able to demonstrate disparate

impact, the employer may escape liability by showing that “the differentiation is based on reasonable

factors other than age.” 29 U.S.C. § 623(f)(1). An employer seeking to defend on this basis “must


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not only produce evidence raising the defense, but also persuade the factfinder of its merit.”

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 87 (2008).

       With respect to Blandford’s disparate impact claim, the district court concluded that

ExxonMobil had demonstrated that its employment practice was based on reasonable factors other

than age. Blandford disagrees with this analysis. He argues that ExxonMobil considered and

rejected the use of a Senior Territory Manager Salary Curve, despite the fact that the proposed curve

would have lessened the impact on older employees. Under the ADEA, the proper inquiry is

whether the employer’s differentiation based on a factor other than age was reasonable, not whether

another course of action would have avoided a disparate impact. See City of Jackson, 544 U.S. at

243 (“Unlike the business necessity test, which asks whether there are other ways for the employer

to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness

inquiry includes no such requirement.”). It is therefore irrelevant that ExxonMobil rejected the

proposed Senior Territory Manager Salary Curve. Blandford also takes issue with ExxonMobil’s

decision to base the TM Salary Curve on the Mercer survey data, but for reasons discussed above,

the evidence supports a conclusion that this decision was reasonably informed and considered.

Blandford has failed to establish grounds for reversing the district court’s decision with respect to

his disparate impact claim.

                                                 IV.

       Blandford argues in his reply brief that the district court erred in applying the McDonnell

Douglas burden-shifting framework to his THRA claims. Reply Br. 14-19. Blandford points to the


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Tennessee Supreme Court’s decision in Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn.

2010), which held that the McDonnell Douglas framework was inapplicable at the summary

judgment stage because it conflicted with the Tennessee Rules of Civil Procedure. Blandford failed

to raise this argument in his opening brief, which was filed after the Gossett decision was issued.

This court has consistently held that arguments raised for the first time in a reply brief are waived.

Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010).

                                                  V.

       For the reasons set forth above, we affirm the district court’s grant of summary judgment.




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