                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0655n.06

                                           No. 11-3108                                    FILED

                          UNITED STATES COURT OF APPEALS
                                                                                     Jun 20, 2012
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


ROBERT TRAPP,                                    )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    SOUTHERN DISTRICT OF OHIO
TSS TECHNOLOGIES, INC.,                          )
                                                 )
       Defendant-Appellee.                       )
                                                 )


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


       COOK, Circuit Judge. Plaintiff-Appellant Robert Trapp sued his former employer, TSS

Technologies, Inc. (“TSS”), claiming that he was discharged because of his age, in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. After discovery, TSS

successfully moved for summary judgment. This appeal followed. We affirm.


                                                 I.


       TSS hired Trapp in 1989 to work as a machinist. Eventually, TSS moved him off the shop

floor and Trapp began working as a buyer, a job that entailed purchasing all the parts necessary for

the manufacture of a given item. Trapp had no purchasing experience prior to his time at TSS. He

worked as a buyer for two to three years before being moved to shop scheduler. Several promotions

followed, and Trapp ultimately became TSS’s Corporate Purchasing Manager.
No. 11-3108
Trapp v. TSS Technologies, Inc.


       Around 2005, TSS reorganized its purchasing operations and eliminated Trapp’s position.

The company nonetheless retained Trapp, making him a buyer/planner for TSS’s medical division

in the reorganized purchasing department.        The district court described buyer/planners as

“responsible not only for purchasing all of the parts needed to manufacture the item, but also for

planning and managing the inventory of parts for that item so that the parts are on hand when

needed.” Trapp maintained his buyer/planner job until his discharge in 2009. Dean Phillips

supervised Trapp during Trapp’s final year at TSS.


       The district court summarized the undisputed facts regarding TSS’s business environment

at the time of Trapp’s discharge and the circumstances surrounding his termination:


               Beginning in about 2008, TSS experienced significant declines in sales and,
       while [Trapp] disputes that he was terminated in a [reduction in force, or “RIF”], the
       record does reflect a more or less ongoing process of staff reductions through and
       beyond the date of [Trapp]’s termination. Despite the overall downturn in sales, TSS
       picked up the Siemens Symbia business, which was a multi-million dollar account,
       in early 2009. Siemens required, however, that TSS assign two buyer/planners to the
       Symbia account. In order to fulfill this requirement, in February 2009, Phillips hired
       Andrew Wood and Robert Reid. Wood was 44 years old at the time and Reid was
       41 years old. Phillips stated that he hired Wood and Reid for the Symbia account
       because of their previous experience as purchasers for businesses more sophisticated
       than TSS and because of their familiarity with advanced enterprise resource planning
       (“ERP”) software.


               In the midst of this activity, TSS was also planning to transition to a new ERP
       system called Dynamics X. Phillips stated that Dynamics X was an advanced and
       sophisticated Windows-based system that focuses on materials requirements planning
       (“MRP”). In order to properly utilize Dynamics X, the buyer must be proficient in
       using Windows Excel. TSS’s old ERP software was called Visibility and was a
       DOS-based system with limited functionality and flexibility. The decision to switch

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Trapp v. TSS Technologies, Inc.


       to Dynamics X occurred in late 2008 or early 2009, but TSS did not go “live” with
       the system until 2010. All of the buyers, including Wood and Reid, received
       mandatory training on Dynamics X at the end of 2009.


               Phillips testified that in April 2009, he received a directive from his manager,
       John McGuire, to reduce his staff by two persons. Phillips selected [Trapp] and
       Kevin Tate, who was in the SIE division, for termination. Phillips testified and stated
       in his affidavit that he chose to retain Wood and Reid, rather than [Trapp], because
       of their greater experience with advanced ERP systems and because of their
       experience purchasing for sophisticated organizations. In other words, Phillips
       wanted to retain Wood and Reid for essentially the same reasons he hired them.
       Phillips also testified that he wanted to keep Reid because he did not want to alarm
       Siemens by making significant changes in their purchasing team. On the other hand,
       Phillips stated that he believed that [Trapp]’s skills with ERP systems was [sic]
       weaker and, he noted, all of [Trapp]’s purchasing experience was with TSS. Thus,
       Phillips stated that he felt that Wood and Reid were best suited to fulfill the
       purchasing role for TSS going forward. Accordingly, Phillips elected to terminate
       [Trapp].


               For his part, [Trapp] conceded that he was never subjected to derogatory
       remarks about his age by anyone at TSS. [Trapp] did testify that Phillips stated that
       another buyer, Kris Rowland, was “old and inflexible” after she was terminated in
       staff reduction that occurred a couple of months before his termination. Rowland
       was age 65 at the time. . . .


                [Trapp] admitted in his deposition that he had no specific basis for believing
       that Phillips discriminated against him because of his age other than he felt that he
       could perform the purchasing duties as well as Wood and Reid. [Trapp] further
       admitted that he could not say that his education, purchasing experience, and
       experience with ERP systems was superior to Wood and Reid’s. Finally, [Trapp]
       testified that it was his understanding that Wood and Reid were hired specifically to
       handle the Siemens Symbia account.


At the time of his discharge, Trapp was 60 years old with nine years of purchasing experience.



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       Trapp timely filed a complaint with the EEOC alleging that TSS terminated him because of

his age. TSS denied the charge of discrimination and the EEOC did not act on Trapp’s complaint

within 60 days, entitling him to sue in federal court under the ADEA. 29 U.S.C. § 626(d)(1).

Trapp’s ensuing district court complaint alleged that his discharge violated the ADEA and the Ohio

Civil Rights Act. Following discovery, TSS moved for summary judgment, the district court granted

TSS’s motion, and this appeal followed.


                                                II.


       The ADEA prohibits an employer from discharging an employee “because of such

individual’s age.” 29 U.S.C. § 623(a)(1). “The ultimate question in every employment discrimination

case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional

discrimination.” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)). Where the plaintiff’s claim relies on

circumstantial rather than direct evidence of discrimination, ADEA cases proceed under Title VII’s

traditional burden-shifting framework, with the plaintiff bearing the initial burden to make out a

prima facie case of discrimination. See Schoonmaker v. Spartan Graphics Leasing, 595 F.3d 261,

264 (6th Cir. 2010). Assuming the plaintiff carries that burden, it is then up to the employer to

articulate a legitimate nondiscriminatory reason for the adverse employment action. Id. If the

employer advances a legitimate justification, “the burden of production shifts back to the plaintiff

to show that the employer’s explanation was a mere pretext for intentional age discrimination.” Id.


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Trapp v. TSS Technologies, Inc.


ADEA plaintiffs can establish pretext by demonstrating that the proffered non-discriminatory reason

“(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was

insufficient to warrant the challenged conduct.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d

564, 576 (6th Cir. 2003) (en banc) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.

2000)).


          The district court assumed for the purposes of its opinion that Trapp could make out his

prima facie case, but granted TSS’s motion for summary judgment because Trapp did not meet his

burden of production on pretext. We proceed under the same assumption and reach the same

conclusion. As the district court observed, TSS’s non-discriminatory justifications for terminating

Trapp include 1) Trapp’s inferior experience (as compared to Wood and Reid) with advanced ERP

systems, to which TSS was switching at the time of Trapp’s termination, and 2) TSS’s desire to

avoid alarming a new client (Siemens) by terminating the buyers that had been assigned to its

account. Rather than attempting to rebut these asserted justifications, Trapp sidesteps TSS’s actual

explanations.


          First, Trapp argues that he presented evidence sufficient for a juror to conclude that he

possessed “superior qualifications for his job,” specifically highlighting his experience with the

Visibility software that TSS continued to use for several months following his discharge. But TSS

did not ground its decision on overall buying/planning experience or proficiency with MRP software

such as Visibility. Rather, TSS says that it preferred Wood and Reid because their superior


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Trapp v. TSS Technologies, Inc.


familiarity with advanced ERP systems better positioned them to handle the work TSS’s

buyer/planners would do in the future. Trapp does not dispute that he lacked proficiency in

Microsoft Excel, a critical skill in using ERP software. TSS’s decision to transition to ERP software

prior to Trapp’s discharge obviates his allegedly superior skill with the soon-to-be-replaced Visibility

software.


       ADEA plaintiffs cannot rebut an employer’s proffered explanation by proposing their own

rubric of relevant qualifications and testing the employer’s conduct against it. See Schoonmaker, 595

F.3d at 268-69 (“[A plaintiff’s] subjective views in relation to other coworkers, without more, are

insufficient to establish discrimination.”); Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)

(holding in a Title VII case that when analyzing a plaintiff’s pretext argument, “[w]e look to the

employer’s motivation, not the applicant’s perceptions, or even an objective assessment, of what

qualifications are required for a particular position”); Browning v. Dep’t of the Army, 436 F.3d 692,

696-97 (6th Cir. 2006) (quoting Wrenn with approval in an ADEA case). Plaintiffs must instead

show that the explanation actually advanced has no basis in fact, did not actually motivate the

employer, or was insufficient to justify termination. See Wexler, 317 F.3d at 576. Here, Trapp cites

no evidence calling into question TSS’s assertion that it was switching to ERP software and that his

proficiency with advanced ERP systems lagged well behind Wood’s and Reid’s.


       Trapp further posits that Reid could not have developed a “significant relationship” with

Siemens by the time of Trapp’s discharge, given that the discharge occurred just a few weeks after


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TSS hired Reid. Here too, Trapp misses the point. As the district court noted, TSS’s reasoning

regarding Symbia focused not on the depth of Reid’s relationship with Siemens or experience with

Symbia, but rather on TSS’s desire to avoid alarming Siemens—a relatively new client—by making

changes to the TSS’s staffing of the Symbia project so soon after Reid’s initial assignment to it.

Trapp’s focus on the length of Reid’s contact with Symbia does not refute TSS’s asserted

justification.


        Trapp also points to inconsistencies in TSS’s discharge explanations, calling its “shifting

rationale” evidence of pretext. We find no support for this contention in the record. Trapp primarily

relies on a letter that TSS’s counsel sent to the EEOC in response to Trapp’s complaint, in which

TSS noted a number of deficiencies in Trapp’s performance record. Trapp cites this letter as

evidence that TSS initially argued that Trapp was fired for poor performance, but then changed its

explanation to focus on Trapp’s relative ERP proficiency and TSS’s wish to avoid alarming Siemens.


        Viewed in context, however, the EEOC letter provides no basis for viewing TSS’s

justifications as inconsistent. TSS’s counsel submitted the letter in response to Trapp’s assertion in

his EEOC charge that “there were no issues with [his] performance” as a TSS employee. The

function of the 290-word EEOC letter was not to provide a detailed explanation of the circumstances

surrounding Trapp’s termination, but rather to broadly deny Trapp’s EEOC charge and highlight

aspects of his record inconsistent with the assertions in his charge—including his claim that TSS had

no concerns about his performance.        Regardless, TSS’s letter also states that the retained


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Trapp v. TSS Technologies, Inc.


buyer/planners “were more highly qualified” than Trapp, and that his discharge was part of a

“reduction in force due to the recession and its impact on sales,” both of which remain central to

TSS’s explanation for terminating Trapp. Even in the letter, then, TSS presented its reasons for

terminating Trapp as multifold. Though later explanations expanded on the four-paragraph EEOC

letter, TSS neither backtracked nor offered reasons inconsistent with any statements in the letter.

The district court thus did not err in concluding that “TSS’s reasons for terminating [Trapp] and

retaining Wood and Reid have been consistent.”


       Moreover, a plaintiff cannot show pretext unless he demonstrates both that the employer’s

asserted reason was false, and that discrimination was the real reason. See, e.g., St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Even if Trapp had presented evidence refuting TSS’s stated

reasons, he produced little evidence pointing to age as the real reason for his discharge. The only

evidence Trapp cites suggesting age-motivation is his own deposition testimony that he overheard

Phillips refer to another employee as “old and inflexible.” Assuming Phillips made this statement,

we find this isolated remark insufficient to satisfy Trapp’s burden of production on pretext.


       As the district court noted, this case is materially indistinguishable from our decision in

Schoonmaker. The district court explained that, for reasons similar to those in Schoonmaker,

Trapp’s arguments cannot save his claims from summary judgment:


              In this case, like the employer in Schoonmaker, TSS used a somewhat
       informal process for implementing the RIF and neither Maguire nor Phillips
       consulted the layoff policy in deciding to terminate [Trapp]. Also like the employer

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Trapp v. TSS Technologies, Inc.


       in Schoonmaker, TSS gave additional reasons for [Trapp]’s termination to the EEOC
       but nevertheless has consistently maintained that Wood and Reid’s qualifications
       were superior to [Trapp]’s. Finally, like the supervisor in Schoonmaker, Phillips had
       to determine the best way for his department to function going forward and decided
       to value Wood and Reid’s prior experience with sophisticated businesses and
       advanced ERP systems over [Trapp]’s long-term but relatively cloistered experience
       purchasing for TSS. Phillips was entitled to make that judgment and the record does
       not support an inference that this was an insufficient basis to motivate his decision.
       This record does not support an inference that [Trapp] was terminated because of his
       age.


       Trapp’s opening brief makes no effort to rebut the district court’s analysis of Schoonmaker,

and his efforts to distinguish it in his reply brief miss the mark. While Trapp argues that the

employer in Schoonmaker followed its written layoff policy “as a practical matter,” that does not

disturb Schoonmaker’s point that informal layoff procedures do not inherently raise the specter of

discrimination.


                                                III.


       Because Trapp neither cited evidence sufficient to call into question TSS’s legitimate non-

discriminatory reasons for terminating him, nor pointed to evidence suggesting that age was the true

reason for his discharge, we affirm the district court’s judgment.




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