                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 04a0117n.06
                                Filed: November 19, 2004

                                          No. 03-1834

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


THOMAS C. SCHUCH,
    Plaintiff-Appellant,

v.
SAVAIR, INC.,                                         ON APPEAL FROM THE UNITED
     Defendant-Appellee.                              STATES DISTRICT COURT FOR THE
                                                      EASTERN DISTRICT OF MICHIGAN
                                              /


BEFORE: SUHRHEINRICH and CLAY, Circuit Judges; NIXON, District Judge. *

        CLAY, Circuit Judge. Plaintiff, Thomas C. Schuch, appeals the district court’s order

granting summary judgment to Defendant, Savair, Incorporated, on claims brought pursuant to the

Age Discrimination in Employment Act, 29 U.S.C. § 631 et seq. Plaintiff contends that the district

court erred in concluding that he failed to produce direct evidence of age discrimination; that he

failed to establish a prima facie case of age discrimination; that he was terminated as part of a

reduction in force; that he was not replaced by a younger employee; and that he failed to produce

probative statistical evidence of age discrimination. For the reasons that follow, we AFFIRM the

order of the district court.

                                       BACKGROUND



        *
       The Honorable John T. Nixon, United States District Judge for the Middle District of
Tennessee, sitting by designation.

                                                  1
       Defendant, Savair, Inc. (“Savair”) is a Michigan corporation that manufactures automated

welding guns for the automotive industry. Plaintiff, Thomas Schuch (“Schuch”), was hired by

Savair as a “saw boy” in 1983. He worked his way up through various jobs at Savair and, in 1985,

was promoted to Inspector in Savair’s In-Process Inspection Department. Two years later, Schuch

was again promoted, this time to the position of Supervisor of the In-Process Inspection Department.

In addition to his new supervisory responsibilities, Schuch carried on his prior duties as Inspector.

       Although a November 2000 performance evaluation of Schuch indicated that he was at the

“top of his class” as an inspector, it also revealed that Schuch “need[ed] improvement” in managing

people, handling conflict resolution, and leadership skills.

       During the same period, Savair was experiencing significant financial difficulty. The

company lost $592,000 in 2000, and $4,655,434 in 2001. In May 2001, Savair hired a new

president, Richard Borst (“Borst”) and a new director of manufacturing, Kim Fuga (“Fuga”). Fuga

determined Savair could cut costs by eliminating the positions of several employees, including some

supervisors, and by reducing the pay of some employees. Several Savair employees were laid off

on September 7, 2001. According to Schuch, he was promised that no more layoffs would be made

following that date. Nonetheless, Savair terminated Schuch’s employment on September 28, 2001.

       At the time of his termination, Schuch was fifty-nine years old and earning an annual salary

of $60,000. The other two inspectors in his department (who, unlike Schuch, held positions that

were neither salaried nor supervisory), ages twenty-two and forty-nine, were not laid off. On

October 1, 2001, Savair hired Don Maley (“Maley”), thirty-seven, for a non-supervisory inspector

position. Maley was hired at an hourly rate of nineteen dollars per hour. Unlike Schuch, Maley had




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training on the FARO arm machine, a costly and sophisticated electronic inspection device which

was sitting unused.

        In his deposition, Fuga testified that Schuch’s position was eliminated in order to reduce

costs. Fuga stated that Schuch was not retained as an inspector with a reduction in pay because of

his performance, explaining that Schuch “didn’t work well with others around him. He wasn’t open

for new ideas as far as new ways to inspect. . . . He wasn’t open for change. And he was set in his

ways. And his way was the only way to do something.” Michael Koltuniak, plant manager at

Savair, explained that he did not consider shifting Schuch from a salaried to an hourly position

because “the decision [to terminate Schuch] was made based on not only cost, but on like a cultural

change going from an older way of doing inspection to moving into coordinate measuring

machines,” like the FARO arm machine.

        On April 15, 2002, Schuch filed a claim for discrimination against Savair with the United

States Equal Employment Opportunity Commission (“EEOC”) and the Michigan Department of

Civil Rights. On May 16, 2002, Schuch requested and was issued a “Right to Sue” letter by the

EEOC. Schuch filed a complaint in the United States District Court for the Eastern District of

Michigan on May 22, 2002, alleging age discrimination in violation of Title VII of the Civil Rights

Act, 42 U.S.C. § 1981 and Michigan’s Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS §

37.2101, et al. 1

        Following the completion of discovery, Savair filed a motion for summary judgment

pursuant to Federal Rule of Civil Procedure 56(c) on January 31, 2003. In his responsive brief to


        1
        Although Schuch alleged violations of both federal and state discrimination laws in his
complaint, his state law claim pursuant to the Elliott-Larsen Civil Rights Act was not briefed on
appeal and it appears he has abandoned his Elliott-Larsen claim.

                                                3
that motion, Schuch sought leave to amend his complaint to allege age discrimination under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 631 et seq., having inadvertently

brought his claim pursuant to Title VII, under which age is not a protected class.

       On April 8, 2003, the district court heard arguments. One day later, the district court issued

a written opinion granting Schuch’s motion seeking leave to amend his complaint and Savair’s

motion for summary judgment. The district court rejected the evidence offered by Schuch as direct

evidence, finding that “there were no comments made about Plaintiff’s age.” The district court also

found that Schuch was not replaced by a younger worker. Finally, the district court found that this

was a reduction in force case, requiring Schuch to present additional direct, circumstantial, or

statistical evidence, and that Schuch had failed to do so.

       Schuch then filed a motion for reconsideration, which was denied on June 3, 2003. Schuch’s

notice of appeal to this Court followed on June 30, 2003.



                                          DISCUSSION

I.     Standard of Review

       We review a district court’s grant of summary judgment de novo. Hamby v. Neel, 368 F.3d

549, 556 (6th Cir. 2004)(citing Johnson v. Econ. Dev. Corp., 241 F.3d 501, 509 (6th Cir. 2001)).

Summary judgment is appropriate when there are no genuine issues of material fact. Id.; FED. R.

CIV. P. 56(c). In reviewing the district court’s grant of summary judgment, we view the evidence

and draw all reasonable inferences in the light most favorable to the non-moving party. Combs v.

Int’l Ins. Co., 354 F.3d 568, 576-77 (6th Cir. 2004)(citing Adickes v. S.H. Kress & Co., 398 U.S.

144, 157 (1970); Williams v. Int’l Paper Co., 227 F.3d 706, 710 (6th Cir. 2000); Smith v. Thornburg,


                                                 4
136 F.3d 1070, 1074 (6th Cir. 1998)). 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.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986).

II.    Legal Framework

       Under the ADEA, it is unlawful for employers to “fail or refuse to hire or to discharge any

individual with respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s age.” 29 U.S.C. § 623(a)(1). There are two different ways in which a plaintiff

may establish an age discrimination case. Rowan v. Lockheed Martin Energy Systems, 360 F.3d

544, 547 (2004).

       First, a plaintiff may present direct evidence of discrimination. “Direct evidence is evidence

that proves the existence of a fact without requiring any inferences.” Id. at 548. Once a plaintiff

presents direct evidence of an employer’s improper motive, “the burden shifts to the employer to

prove by a preponderance of the evidence that it would have made the same decision absent the

impermissible motive.” DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)(quoting Weigel v.

Baptist Hosp. of E. Tenn., 302 F.3d 367, 382 (6th Cir.2002)).

       A plaintiff who does not present direct evidence may establish a prima facie case of age

discrimination under the McDonnell-Douglas burden-shifting analysis. Rowan, 360 F.3d at 547.

A prima facie case of discriminatory discharge is established when a plaintiff demonstrates that (1)

he is a member of a protected age class; (2) he was discharged; (3) he was qualified for the position

he held; and (4) he was replaced by a younger worker. Id. (citing Cox v. DOT, 53 F.3d 146, 150 (6th

Cir. 1995)). Once a prima facie case is established, the burden shifts to the defendant to present a


                                                 5
legitimate, non-discriminatory reason for the termination. If the defendant does so, the burden shifts

back to the plaintiff to establish that the proffered non-discriminatory reason is pretextual. Summary

judgment in favor of the defendant is appropriate only where no reasonable jury could conclude that

the proffered explanation was a pretext for discrimination. Id. at 547-48.

        A further wrinkle exists where a defendant employer can show a “reduction in force”: that

“business considerations cause[ed] [the] employer to eliminate one or more positions within the

company.” Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). In a reduction in force

(“RIF”) case, the fourth prong of the McDonnell Douglas paradigm is modified. A plaintiff in an

RIF case need not show that she was replaced by a younger worker, but instead must present

“additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled

[her] out . . . for discharge for impermissible reasons.” Id.

III.    Direct Evidence of Age Discrimination

        Schuch argues that the district court erred in finding that comments made by two Savair

managers did not constitute direct evidence of age discrimination. Specifically, Schuch contends

that Fuga’s statements that Schuch “wasn’t open for new ideas,” “wasn’t open for change” and “was

set in his ways,” and Koltuniak’s reference to “a cultural change going from an older way of doing

inspection to moving into coordinate measuring machines,” demonstrate that Schuch was

terminated, at least in part, because of a negative perception of his attitude and abilities that was

based on stereotypes about his age.

        We do not agree with Schuch’s contention that Fuga and Koltuniak’s statements are direct

evidence of age discrimination. The statements referenced above are too ambiguous to constitute

direct evidence of age discrimination. In order for evidence to be considered direct, the factfinder,

                                                   6
without drawing any inferences, must be able to conclude that an employee’s termination was

motivated, at least in part, by discriminatory animus. Such a conclusion is impossible in this case

without taking a significant inferential leap. The district court was correct in finding that Schuch

had not presented direct evidence of age discrimination.

IV.    Prima Facie Case

       Schuch contends that, in determining that he failed to establish a prima facie case of age

discrimination, the district court erred in several respects, specifically: in finding that Schuch was

not replaced by a younger worker; in finding that this was a RIF case; and in finding that Schuch

failed to present probative statistical evidence of age discrimination.

       1. Was Plaintiff replaced by a younger worker, or is this a true reduction in force case?

       Schuch argues that the district court erred in determining that he was not replaced by a

younger worker and that this was not a RIF case. If Schuch is correct on the issue of replacement

by a younger worker, we must necessarily conclude that this case does not involve a reduction in

force. As we have held, “an employee is not eliminated as part of a work force reduction when he

or she is replaced after his or her discharge.” Barnes, 896 F.2d at 1465.

       Schuch contends that Savair replaced him with Maley, who was hired three days after

Schuch’s termination. However, Maley was not hired to fill Schuch’s position. His duties did not

include any of Schuch’s supervisory obligations, and, as the district court noted, he was responsible

for operating the FARO arm machine, which Schuch did not know how to use. We agree with the

district court that Schuch was not replaced by Maley.




                                                  7
       We also agree with the district court that this is a true reduction in force case. Savair

presented un-rebutted evidence that, pursuant to a cost reduction plan, five “indirect labor” positions

(including Schuch’s) and nine “direct labor” positions were eliminated in September 2001. This

evidence establishes that that “business considerations cause[ed]” Savair “to eliminate one or more

positions within [the] company.” Id.

       2. Has Plaintiff presented sufficient additional evidence of discrimination?

       As explained above, because this is a reduction in force case, Schuch must offer additional

direct, circumstantial, or statistical evidence that Savair terminated his employment for

impermissible reasons. This requirement replaces the fourth prong of the McDonnell Douglas

framework for establishing a prima facie case of discrimination, which ordinarily would require

Schuch to prove that he was replaced by a younger worker.

       Schuch contends that he has presented sufficient statistical evidence to satisfy the modified

fourth prong of the prima facie analysis. We note that this evidence has taken various forms

throughout this litigation. First, in Plaintiff’s brief opposing Defendant’s motion for summary

judgment, Schuch alleged that at the time Borst, Fuga, and Koltuniak were hired in May 2001, there

were thirteen people in management or supervisory positions at Savair, eight of whom were over

the age of fifty. Schuch further claimed that all eight of these managers or supervisors were either

removed from their managerial/supervisory positions or laid off by the end of September 2001,

whereas every manager or supervisor under the age of fifty was retained. The district court found

these “statistics” unreliable because two of the eight employees over fifty were not laid off or

removed but instead resigned, and because there was no showing that the thirteen employees shared

similar qualifications.

                                                  8
       Before this Court, Schuch has offered two more sets of “statistics.” In Plaintiff’s brief, it is

alleged that were eleven people in managerial or supervisory positions in May 2001, seven of whom

were over the age of fifty, and that seven people had been removed from their

managerial/supervisory positions by September 2001, all of whom were over age fifty.2 Two of the

people listed as removed from their positions are President Richard Schmidt and Vice-President

Richard Chambers; however, the district court credited evidence presented by Savair that Chambers

resigned in December 2000 and that Schmidt resigned in June 2001, and no evidence to the contrary

was ever offered by Schuch.

       Finally, Schuch presents an even smaller statistical sample in his reply brief, listing seven

supervisors employed by Savair prior to September 25, 2001, five of whom were over the age of

fifty. According to Schuch, all five of these employees were removed from supervisory positions

or laid off by September 25, 2001, while both of the under-fifty employees (each age forty-one)

remained as a supervisor.

       While we recognize that this evidence is far from convincing statistical proof of

discrimination, we do not agree with the district court that it is insufficient to satisfy the modified

fourth prong of the McDonnell-Douglas test. Savair relies on two decisions of this Court, Simpson

v. Midland-Ross Corp., 823 F.2d 937 (6th Cir. 1987) and Tinker v. Sears, Roebuck, & Co., 127 F.3d

519 (6th Cir. 1997), in support of the contention that Schuch’s statistical evidence is too unreliable

to make out a prima facie case of discrimination.



       2
        A comparison of the list of the seven people over fifty in supervisory/managerial roles in
May 2001 with the list of the seven people over fifty removed from supervisory/managerial
positions reveals a disparity: a name on the first list is not accounted for on the second, and vice
versa.

                                                  9
       In Simpson, we held that for statistics to be valid in a discrimination case, “‘both the

methodology and the explanatory power of the statistical analysis must be sufficient to permit an

inference of discrimination’” (quoting Segar v. Smith, 738 F.2d 1249, 1274 (D.C. Cir. 1984)). 823

F.2d at 944. In Tinker, we noted that “a sample which is too small can undermine the probative

value of the statistical evidence” (citing Simpson, 823 F.2d at 943) and that “statistical evidence is

rendered suspect when the sample includes persons leaving their employment under incentive

programs or to take new jobs.” 127 F.3d at 524.

       Savair correctly observes that many of the potential problems with statistical evidence noted

by this Court in Simpson and Tinker are present here: the three sample sizes of thirteen, eleven, and

seven employees are all small; there is no explanation of the methodology of the statistical analysis;

and the sample includes people who left voluntarily (although it is not clear from the record whether

that was either under incentive programs or to take new jobs).

       However, we hasten to point out that in neither of those cases was the statistical evidence

analyzed in the context of an effort to make out a prima facie case. In Tinker, the court held that

the plaintiff’s statistics failed to raise a material issue of fact regarding pretext. 127 F.3d at 524.

In Simpson, the court concluded that the plaintiff’s “statistical evidence, even if arguably supporting

an inference of discrimination to establish a prima facie case, has insufficient probative value to

support a jury verdict on the ultimate question of discrimination.” 823 F.2d at 943 (emphasis

added). Simpson, then, makes clear that the showing required to make out a prima facie case is less

than that required to support a jury verdict.

       While we acknowledge that Schuch’s “statistical” evidence is flawed, we note that the

requirement under the McDonnell Douglas scheme is that he show additional direct, circumstantial,

                                                  10
or statistical evidence. It is our view that the evidence presented by Schuch is at least sufficient

circumstantial evidence to satisfy the fourth prong of the McDonnell Douglas test and to make out

a prima facie case.

V.      Has Plaintiff Established that Defendant’s Proffered Legitimate, Non-discriminatory
        Reason for Plaintiff’s Discharge is Pretextual?


        Because Schuch established a prima facie case of age discrimination, the burden shifts to

Savair to present a legitimate, non-discriminatory reason for Schuch’s termination. Rowan, 360 F.3d

at 547. We find that Savair has done so by presenting evidence that Schuch’s position was

eliminated as part of a cost-saving reorganization effort.

        The burden therefore shifts back to Schuch to establish that Savair’s proffered non-

discriminatory reason is pretextual. Id. This burden is met if Schuch establishes that the proffered

reason: 1) had no basis in fact; 2) was not the actual reason; or 3) was insufficient to explain Savair’s

actions. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 (6th Cir. 2000)(citing Wheeler v.

McKinley Enters. 937 F.2d 1158, 1162 (6th Cir. 1991)).

        Plaintiff first contends it is untrue that Schuch was terminated as a cost-saving measure

because Savair could have cut costs by reducing his salary rather than by terminating his

employment. We do not agree that this makes Savair’s proffered reason “false,” as Schuch argues:

Savair might have chosen to reduce costs in a number of different ways, but that does not establish

that a cost-reduction effort was not the actual reason for Schuch’s termination.

        This argument leads to Schuch’s next claim of pretext: that Savair’s explanation for why

Schuch was terminated, rather than hired for the new non-supervisory inspector position filled by

Maley, is also pretextual. Savair has presented evidence that Maley was hired rather than Schuch

                                                   11
because he had training in the use of the FARO arm machine, because of Schuch’s higher

compensation, and because of what Savair perceived as problems with Schuch’s attitude and

performance.

       In his brief, Schuch makes much of the fact that Savair claimed to have hired Maley instead

of Schuch because of his “experience” with the FARO arm machine; Schuch points out that Maley

had been trained to use the FARO arm machine but did not have experience operating it. Savair’s

brief in support of its motion for summary judgment states that Maley “had extensive training and

work experience with the FARO Arm and similar coordinate measuring machines.” (Joint Appendix

at 56). Schuch is correct that this misrepresents the evidence, which showed that Maley had several

years experience with coordinate measuring machines and recent training on the FARO arm

machine, but no work experience on the FARO arm machine.                  Nonetheless, we find this

inconsistency insufficient to establish pretext, as it has some basis in fact and does not genuinely

undermine Savair’s claim that Maley was hired because he could operate the FARO arm machine.

       Finally, Savair’s brief in support of its motion for summary judgment cites concerns about

Schuch’s attitude and past disciplinary problems as another reason that he was discharged rather

than reassigned. Specifically, Savair cited two incidents, one in January 2000 in which Schuch

skipped a management meeting and one in August 2000 in which Schuch was insubordinate to Gary

Cronn, one of his supervisors, and shouted an obscenity at him. Schuch does not argue that these

incidents did not occur, but rather that he was not the subject of discipline in the fifteen years

preceding these episodes or in the following thirteen months prior to his termination. We find that

Schuch has not established that Savair’s reference to his attitude and disciplinary problems has no

basis in fact, is not the actual reason for his termination, or (when coupled with the other legitimate,


                                                  12
non-discriminatory reasons for his discharge discussed above) is insufficient to explain Savair’s

actions. Schuch has failed to establish that Savair’s proffered non-discriminatory reasons for

Schuch’s termination are pretextual, and we conclude that summary judgment in favor of Savair was

appropriate.




                                        CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to

Defendant.




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