           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Rowan, et al. v. Lockheed                  No. 02-6160
        ELECTRONIC CITATION: 2004 FED App. 0076P (6th Cir.)                   Martin Energy Systems
                    File Name: 04a0076p.06
                                                                                            _________________
UNITED STATES COURT OF APPEALS                                                                   COUNSEL
                  FOR THE SIXTH CIRCUIT                                  ARGUED: David A. Burkhalter, II, BURKHALTER,
                    _________________                                    RAYSON & ASSOCIATES, Knoxville, Tennessee, for
                                                                         Appellants. Edward G. Phillips, KRAMER, RAYSON,
 ROSCOE C. ROWAN, III and         X                                      LEAKE, RODGERS & MORGAN, Knoxville, Tennessee,
 CHARLES A. WASHINGTON ,           -                                     for Appellee. ON BRIEF: David A. Burkhalter, II,
          Plaintiffs-Appellants, -                                       BURKHALTER, RAYSON & ASSOCIATES, Knoxville,
                                   -   No. 02-6160                       Tennessee, for Appellants. Edward G. Phillips, KRAMER,
                                   -                                     RAYSON, LEAKE, RODGERS & MORGAN, Knoxville,
            v.                      >                                    Tennessee, Kenneth M. Brown, Oak Ridge, Tennessee, for
                                   ,
                                   -                                     Appellee.
 LOCKHEED MARTIN ENERGY            -                                       MERRITT, J., delivered the opinion of the court, in which
 SYSTEMS, INC.,                    -                                     SUTTON, J., joined. FEIKENS, D. J. (p. 12), delivered a
           Defendant-Appellee. -                                         separate concurring opinion.
                                   -
                                  N                                                         _________________
       Appeal from the United States District Court
    for the Eastern District of Tennessee at Knoxville.                                         OPINION
   No. 00-00361—Thomas W. Phillips, District Judge.                                         _________________

                   Argued: January 29, 2004                                MERRITT, Circuit Judge.            Plaintiffs Rowan and
                                                                         Washington are former employees of Defendant Lockheed
              Decided and Filed: March 11, 2004                          Martin Energy Systems, Inc. (“Lockheed”) in Oak Ridge,
                                                                         Tennessee, at its uranium enrichment plant. They were laid
     Before: MERRITT and SUTTON, Circuit Judges;                         off by Lockheed in December 1999 when Lockheed
               FEIKENS, District Judge.*                                 conducted a “reduction in force” due to Department of Energy
                                                                         budgetary cutbacks. The plaintiffs allege that they were
                                                                         selected for termination because of age discrimination and
                                                                         that they were unlawfully denied alternative jobs at Lockheed
                                                                         which went to younger employees. The district court granted
                                                                         summary judgment for the defendant, and the primary
                                                                         problem on appeal is whether some statements about age and
    *
                                                                         retirement allegedly made by managers at the company raise
     The Honorab le John Feikens, United States District Judge for the
Eastern District of Michigan, sitting by designation.

                                  1
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a sufficient inference of age discrimination to send the case to   any event they failed to show that the reasons articulated by
the jury.                                                          the defendant were not a sham and a pretext for age
                                                                   discrimination. Although we disagree with the trial court as
      I. FACTS AND PROCEDURAL HISTORY                              to whether or not the plaintiffs made out a prima facie case,
                                                                   we AFFIRM the judgment because no reasonable jury could
  In 1996 Congress ordered the Department of Energy to             find that the reasons articulated by the defendant for why
conduct an inquiry into whether the nuclear workforce was          these two plaintiffs were laid off were a sham and a pretext.
prepared to deal with the possibility that many of its experts
might soon be retiring. Accordingly, the Department                              II. STANDARD OF REVIEW
established the “Chiles Commission” to look into the
problem. In 1998 this commission visited Lockheed’s Y-12              This Court reviews the District Court’s grant of summary
plant, where the plaintiffs worked. Lockheed reported to the       judgment de novo. Terry Barr Sales Agency, Inc. v. All-Lock
Chiles Commission that 39% of the employees with “critical         Company, Inc., 96 F.3d 174, 178 (6th Cir. 1996); Hartsel v.
skills” in nuclear science and technology were in immediate        Keys, 87 F. 3d 795, 799 (6th Cir. 1996). In doing so it must
danger to retire, and that a total of 78% would be eligible to     review all facts and draw all inferences in a light most
retire within 10 years. Meanwhile, the Department of               favorable to the non-moving party. Anderson v. Liberty
Energy’s budget had been steadily declining throughout the         Lobby, Inc., 477 U.S. 242, 255 (1986). That is not to say that
1990’s, causing contractors like Lockheed to make severe job       it only reviews evidence favorable to the non-moving party.
cuts. In one of these reductions in force the plaintiffs lost      Instead, it must review all the evidence in the record. Reeves
their jobs.                                                        v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148-49
                                                                   (2000).
  The plaintiffs’ work at the plant did not place them in the
critical skills category of workers. They each worked in the                           III. DISCUSSION
Clean Air section of the Environmental Compliance
Department, Rowan as an “air permit engineer” and                    Plaintiffs can establish an age discrimination case in two
Washington in a “technical support” role, both helping to          different ways. First, they can follow the McDonnell Douglas
ensure compliance with the Clean Air Act. Rowan, who was           burden-shifting analysis. Manzer v. Diamond Shamrock
57 when terminated, and Washington, who was 63, allege that        Chemicals Co., 29 F.3d 1078, 1081 (6th Cir. 1994) (citing
some of their supervisors made statements about the need to        McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)).
lower the average age at the plant in connection with the          According to this analysis, plaintiffs first establish a prima
layoffs. They also allege that their immediate supervisor          facie case of age discrimination. Id. At that point the burden
occasionally called them “old farts.” For its part, Lockheed       shifts to the defendant, who must give legitimate, non-
offers substantial evidence that its decisions were motivated      discriminatory reasons for the adverse employment decision.
by legitimate, non-age-biased reasons.                             LaPointe v. United Auto Workers Local 600, 8 F.3d 376, 379
                                                                   (6th Cir. 1993) (citing McDonnell, 411 U.S. at 802). If they
  The trial court judge awarded summary judgment to the            do so, the burden shifts back to the plaintiffs, who must
defendant on the grounds that the plaintiffs had failed to make    establish that the legitimate reasons offered by the defendant
out a prima facie case of age discrimination, and because in       were just a pretext for decisions actually motivated by an
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                                Martin Energy Systems                    Martin Energy Systems

unlawful bias against age. Id. This was the test followed by       because of their age. Instead, they point to several statements
the district court, who concluded that the plaintiffs had failed   allegedly made by various members of Lockheed’s
to make out a prima facie case, and that even if they had made     management about the general need to lower the average age
such a case they had failed to show that the reasons offered by    of their workforce. Even if such statements were made, they
the defense were only a pretext.                                   would not constitute direct evidence of age-based bias against
                                                                   these particular plaintiffs. They might, however, raise some
  In order to establish a prima facie case of age                  suspicion as to Lockheed’s motives, and to that extent we
discrimination, plaintiffs must show (1) that they were            disagree with the district court that the plaintiffs fail to make
members of a protected age class; (2) that they were               out even a prima facie case of discrimination. But even
discharged; (3) that they were qualified for the positions they    granting that the plaintiffs made out a prima facie case, when
held; and (4) that they were replaced by a younger worker.         understood in context these statements could not lead a
Cox v. DOT, 53 F.3d 146, 150 (6th Cir. 1995). However, in          reasonable jury to conclude that the numerous legitimate
“reduction in force” cases like this one, the fourth prong is      reasons offered by Lockheed were merely a pretext for age-
modified so that the plaintiffs must provide “additional direct,   biased discrimination.
circumstantial, or statistical evidence tending to indicate that
the employer singled out the plaintiff for discharge for              As the Supreme Court has pointed out, the ADEA “was
impermissible reasons.” Ercegovich v. Goodyear Tire &              prompted by [a] concern that older workers were being
Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998). If the              deprived of employment on the basis of inaccurate and
plaintiffs have made out a prima facie case of discrimination,     stigmatizing stereotypes” that productivity and competence
the defendant can be awarded summary judgment only if no           decline with age. Hazen Paper Co. v. Biggins, 507 U.S. 604,
reasonable jury could conclude that the reasons offered for the    610 (1993). Although the plaintiffs quote Hazen for the
plaintiffs’ dismissals were only a pretext hiding a                proposition that the ADEA “requires the employer to ignore
discriminatory motive.                                             an employee’s age,” id. at 612, they take that statement out of
                                                                   context. Employers may not consider an employee’s age for
  The Sixth Circuit also recognizes an alternative test not        its own sake, but the ADEA does not prohibit them from
discussed by the district court. If the plaintiffs can establish   considering other factors that correlate with age. Id. at 611.
direct evidence of discrimination, then they need not go           In Hazen the plaintiffs were allegedly fired to keep their
through the McDonnell Douglas burden-shifting analysis.            pensions from vesting, and although the vesting of pensions
Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1248-       correlates with age, the Supreme Court held that such a firing
49 (6th Cir. 1995). Direct evidence is evidence that proves        did not constitute discrimination under the ADEA (though it
the existence of a fact without requiring any inferences.          may violate other federal statutes, such as ERISA). Id. at
Manzer, 29 F.3d at 1081; Laderach v. U-Haul, 207 F.3d 825,         611-12. Since age and years of service are “analytically
829 (6th Cir. 2000); Jacklyn v. Schering-Plough Healthcare         distinct,” a decision based on years of service is “not
Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999).             necessarily ‘age-based.’” Id. at 611. By contrast, the ADEA
                                                                   protects against “inaccurate and stigmatizing stereotypes.” Id.
  The plaintiffs fail to offer any direct evidence of              at 610. Similarly here, a concern about impending
discrimination. They offer no facts which would tie the            retirements of nuclear scientists and skilled workers is not the
decision to select Rowen and Washington for termination            same as a bias against age. We see no relevant difference
No. 02-6160                   Rowan, et al. v. Lockheed       7    8       Rowan, et al. v. Lockheed                           No. 02-6160
                                Martin Energy Systems                      Martin Energy Systems

between a concern that important employees are about to              Seeing the average-age statements in their proper context
retire and a concern that employee pensions are about to vest.     of critical technological skills disposes of most of the
                                                                   plaintiffs’ evidence, since most of the statements alleged by
   Furthermore, the legislative history of the Act counsels        the plaintiffs were of this sort. For example, the allegations
against reading the statute as forbidding any consideration of     against Van Hook (the president of Lockheed) and Gustavson
age under any circumstances. As this Court has recognized,         (an executive vice-president) only include such average-age
the ADEA was not intended “to prevent an employer from             statements, and the plaintiffs do not even allege that Van
achieving a reasonable age balance in [its] employment             Hook and Gustavson were involved in the selection of the
structure.” Laugesen v. Anaconda Co., 510 F.2d 307, 312 n.4        plaintiffs for termination anyway. By the same reasoning we
(6th Cir. 1975) (quoting legislative history from the ADEA).       can also rule out one statement made by Eaton, their
Instead, Congress recognized that at times an industry may be      immediate supervisor, and all but one statement by Stone,
faced with the problem of an aging work force, and advised         another superior of the plaintiffs, whom they do allege was
that such situations be treated “on a case-by-case basis.” Id.     involved in their termination decision.1
   In this case, the evidence indicates that the concern for the      The plaintiffs also allege that Stone and Powell once
average age of the work force in the plant was entirely            commented on a golf course in 1992 that “the older people
motivated by the findings of the Chiles Commission, which          should go, bring in some new blood so that they will
concluded that the nuclear industry was in danger of having        understand the compliance findings.” While the content of
a high percentage of its most important, highly skilled            this statement cannot be dismissed as a legitimate concern
workers retire soon. The worry was not that older people           about the possibility of retirements, one stray statement
were less capable than younger workers. On the contrary, the       allegedly made seven years before the adverse decisions
concern was that most of the workers with critical skills were     obviously cannot count as direct evidence of unlawful age-
eligible or nearly eligible for retirement, and that when those    bias in those decisions, especially when the statement is as
people retired the nuclear industry could potentially suffer       tame as this one. And we agree with the district court that
dearly. Although the statements allegedly made referred to         even taking this evidence as true it could not support a jury
the average age in the plant, there is every indication that
concern for the average age was only motivated by a perfectly
legitimate concern about upcoming retirements. Being
                                                                       1
worried about one’s best workers retiring is a far cry from              W e point out in passing tha t the district court was too quick to
being motivated by “inaccurate and stigmatizing stereotypes.”      conclude that Stone was not a decision-maker. Although that might be
In this context, statements about average age do not amount        the most reasonable inference after a trial, for the purposes of summary
                                                                   judgment the facts and inferences must be inte rpreted in the light most
to direct evidence of discrimination. And while such               favorable to the no n-moving party, in this case the plaintiffs. Pow ell’s
statements might be suspicious enough to make out a prima          alleged statement that “between us [i.e., S tone and P owell] we certainly
facie case of discrimination, as we discuss below Lockheed         made the decisions” could lead a reasonable jury to conclude that Stone
offered overwhelming evidence that Rowan and Washington            was involve d in the d ecision -making pro cess with Powell. In the end, this
were selected from among their peers for entirely legitimate       error does not matter, since as we explain herein none of the statements
                                                                   alleged ly made by Stone constitute direct evidence of unlawful
reasons, and the plaintiffs fail to show that such evidence is     discrimination or are sufficient grounds for a finding that the lawful
just a pretext.                                                    reaso ns offere d by L ockheed are a sham and a p retext.
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                                Martin Energy Systems                   Martin Energy Systems

finding that the legitimate reasons offered by the defendant      314 (6th Cir. 1989). The plaintiffs may not simply substitute
were a pretext masking unlawful discrimination.                   their own business judgment for that of the defendant.
                                                                  Rather, to survive a summary judgment motion they must
  The defendant offers overwhelming evidence that the             show that a reasonable jury could conclude that the actual
decision to discharge the plaintiffs specifically was not a       reasons offered by the defendant were a mere pretext for
pretext for age discrimination, much of which was detailed by     unlawful age-discrimination, not that other reasonable
the district court. For example, the 44-year-old Seeber, who      decision-makers might have retained the plaintiffs. In this
with Rowan held one of two “less technical” air permit            case no reasonable jury could reach that conclusion.
engineering positions, was retained over Rowan even though
they both performed air permitting support work. But Seeber          Finally, the plaintiffs allege that Eaton, their immediate
had longer company service than Rowan (25 years to 21             supervisor, called them “old farts” on a “fairly regular basis.”
years) and more time in position (9 years to 8 years). More       Unlike the statements about the average age in the plant,
importantly, Seeber had been responsible for more                 using such age-based slurs may well betray a bias that older
sophisticated work. For example, for years Seeber had             workers are less valuable or competent. However, such
provided air permit support to the Enriched Uranium               statements will not constitute direct evidence. Since the
Operations processing facility, the most complicated area of      plaintiffs do not allege that they were made in relation to the
the Y-12 plant, and an area in the midst of a crucial             decision to discharge the plaintiffs as part of the reduction in
“resumption program.” Seeber’s experience and expertise           force, an inference is required that such a bias may have
clearly exceeded Rowan’s, and were needed in order for the        played a role in the decision to select these plaintiffs. In fact,
plant to negotiate a Title V permit for the Enriched Uranium      the evidence does not support the conclusion that Eaton was
Operations. Similarly, Lockeed cites numerous legitimate          a decision-maker in connection with the discharges in the first
reasons for discharging Washington instead of his co-workers      place, and therefore whatever statements he made are
Skinner and Cunningham. Washington’s technical support            irrelevant anyway. “‘[S]tatements by non-decision makers,
position was being eliminated, and both Skinner and               or statements by decision makers unrelated to the decisional
Cunningham consistently received higher performance               process itself [can not] suffice to satisfy the plaintiff’s burden’
evaluations than Washington while doing more complex              of demonstrating animus.” Bush v. Dictaphone Corp., 161
work. Washington spent most of his time performing                F.3d 363, 369 (6th Cir. 1998) (quoting Price Waterhouse v.
activities unrelated to the Clean Air program. By contrast,       Hopkins, 490 U.S. 228, 277 (1989)).
Skinner was the Title V permitting lead, and Cunningham
was the coordinator of a program which involved radiological        Although Eaton was not involved in the decision to select
monitoring using unique regulations.                              Rowan and Washington for termination, the plaintiffs argue
                                                                  that he was involved in the decision not to transfer them to
  The plaintiffs allege that they had other qualifications that   other jobs within the plant that were filled with younger
Lockheed should have considered. In order to prove                workers. As evidence for this proposition they cite a
discrimination, though, the plaintiffs must directly confront     “smoking gun” memo dated October 7th, 1999 from Eaton to
the asserted justification for the discharge. Reeves v.           Powell in which Eaton writes, “How about you and I get
Sanderson Plumbing Products, Inc., 530 U.S. 133, 148              together the week of 10/25 to discuss assignment changes in
(2000); Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309,        prep for 11/12.” The plaintiffs argue that this memo
No. 02-6160                   Rowan, et al. v. Lockheed      11    12    Rowan, et al. v. Lockheed                     No. 02-6160
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demonstrates that Eaton was involved in transfer decisions                              _________________
related to the November 12th layoff. In fact, the memo shows
nothing of the sort. The October memo does not show that                                 CONCURRENCE
Eaton was involved in the decision to terminate the plaintiffs,                         _________________
as that decision had already been finalized in August. Nor
does it show that Eaton was involved in the decision not to        FEIKENS, District Judge.
transfer the plaintiffs. For one thing, “assignment changes”
are not the same thing as transfers. More importantly, the           I concur with the result that the Court reaches in this case.
transfers in question were not even being discussed at the
time of this memo. The specific jobs that the plaintiffs claim        I write separately to state that I fully agree with the Court’s
they should have been transferred to were filled either well       statement that the evidence in this case “indicates that the
before the reduction in force (the jobs filled by Fields and       concern for the average age of the work force in the plant was
Owens), or well after the plaintiffs had left the payroll (the     entirely motivated by the findings of the Chiles
reassignments of Cunningham, Evans, Duke and Beck). The            Commission...” I conclude from this that the statements
latter transfers were related to each other, and were set off by   related to the average age of the work force are not suspicious
a chain of events occurring between January and May of             and therefore do not make out a prima facie case of
2000, months after the plaintiffs’ positions had already been      discrimination. Therefore, I would affirm the District Court
eliminated, and months after the memo by Eaton that                on its conclusion in this regard.
plaintiffs speciously call a “smoking gun.” In short, the
plaintiffs fail to tie Eaton’s alleged age-bias to any adverse
decision affecting them.
  For all the reasons articulated above, the judgment of the
district court is AFFIRMED.
