                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 14a0476n.06

                                               No. 13-4355                                        FILED
                                                                                            Jul 02, 2014
                             UNITED STATES COURT OF APPEALS                            DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT

J. PHILIP LAWROSKI,                                            )
                                                               )
        Plaintiff-Appellant,                                   )
                                                               )
                                                                        ON APPEAL FROM THE
v.                                                             )
                                                                        UNITED STATES DISTRICT
                                                               )
                                                                        COURT FOR THE
NATIONWIDE MUTUAL INSURANCE                                    )
                                                                        SOUTHERN DISTRICT OF
COMPANY and LYNDA BUTLER,                                      )
                                                                        OHIO
                                                               )
        Defendants-Appellees.                                  )
                                                               )



BEFORE:         BATCHELDER, Chief Judge; KEITH and STRANCH, Circuit Judges.

        ALICE M. BATCHELDER, Chief Judge. Appellant J. Philip Lawroski filed this age

discrimination case against Nationwide Mutual Insurance Company and its Chief Financial

Officer of the Exclusive Channel Lynda Butler (“Nationwide”),1 alleging that Nationwide

discriminated against him on account of his age when it terminated him and failed to hire him for

a new position.      Because the district court found that no reasonable jury could find that

Nationwide’s legitimate business reasons for its actions were pretext for age discrimination, the

district court granted Nationwide’s motion for summary judgment as to Lawroski’s disparate

treatment claims. For the reasons set forth below, we AFFIRM the district court’s judgment.




1
 Throughout this opinion, we refer to Appellees Nationwide Mutual Insurance Company and Lynda Butler
collectively as “Nationwide.” However, we also refer to Lynda Butler individually as “Butler” where necessary.
No. 13-4355
Lawroski v. Nationwide Mut. Ins. Co.


                                               I.

        Nationwide is a mutual insurance company that is headquartered in Columbus, Ohio, and

sells property and casualty insurance, health insurance products, life and retirement savings

products, and asset management products. On October 31, 1994, Nationwide hired Lawroski as

a manager in the financial products department that supported Nationwide’s Enterprise Chief

Financial Officer (“CFO”). In early 2009, after serving in numerous different positions with

Nationwide, Lawroski accepted a position as a Financial Business Director on projects for the

company’s Exclusive Channel, Independent Agent Channel, and High-Risk Auto Channel

(Titan). Although Lawroski’s position provided work from all three channels, he reported

directly to the Exclusive Channel CFO, David Braun.         The “Financial Business Director”

(“FBD”) title was commonly used in the Exclusive Channel, and in fact, four FBDs (including

Lawroski) were listed as part of the channel on December 31, 2009.

        In April 2009, Nationwide replaced Braun with Lynda Butler, who assumed the title Vice

President of Finance and CFO of the Exclusive Channel. Also, a team reporting to Peter

Rothermel became part of Butler’s department. After this transition, Rothermel’s team was

responsible for providing financial support for staff sales operations, providing finance support

for Nationwide’s Distribution Excellence project, and creating and maintaining financial models

used to compare investments. While reporting to Butler, Lawroski performed several tasks in

relation to different projects corresponding to the three channels to which he was assigned. He

worked on sponsor relations, several different distribution programs, financial modeling, and

other work “for many different initiatives.”




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            Lawroski’s modeling projects were separate from those of Rothermel’s team, except for

the independent agency acquisition (“IAA”) model to which both contributed. Dan Dolsky, a

Senior Consultant on Rothermel’s team, also worked on some modeling projects. Dolsky’s role

was functionally the same as that of an FBD, except that he did not supervise anyone. When

Dolsky was terminated in April 2010 for performance reasons, his duties were assumed

temporarily by Rothermel and two of his direct reports.                        Michael Ligas, a participant in

Nationwide’s Financial Leadership Rotation Program (“FLRP”)2, also assisted with Dolsky’s

former duties, as he began his six-month rotation with Rothermel’s team in March 2010. One of

Ligas’ most important contributions during this FLRP rotation was his work on the “Lifetime

Value Model,” which Lawroski claims to have worked on at the same time.

            In Lawroski’s mid-year review, Butler noted that she was struggling to find projects to

“match [Lawroski’s] skills,” and by August 2010, she determined that there was insufficient

work for Lawroski to justify the cost of the position in her budget. At that time, Butler informed

Lawroski that his position would be eliminated in 2011. Although she attempted to secure

projects for Lawroski by reaching out to her peers, she was unsuccessful, and Lawroski’s

position was eliminated.            Nationwide gave Lawroski 60 days to attempt to secure another

position within the company.

            In November 2010, Nationwide considered applicants to fill the vacancy on Rothermel’s

team created by Dolsky’s termination. Lawroski, Ligas, and three others interviewed for the

position. At the time of the interview, Ligas was one of only two interviewees under 40 years

old.      All five applicants were interviewed by Lee Sheeran, Rothermel, and Butler.                    Each


2
    Nationwide created the FLRP as a way to attract candidates from colleges and universities.
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Lawroski v. Nationwide Mut. Ins. Co.


interviewer scored the applicants from 1 to 5 in a number of categories (e.g., professional

presentation, technical proficiency, etc.) and they tallied these scores to rank the applicants.3

Every interviewer ranked Ligas as first, and no interviewer ranked Lawroski as first or second.

        On November 17, 2010, Rothermel offered the position to Ligas, who was 34 years old at

the time.     He began work as an FBD on Rothermel’s team on December 27, 2010.                                 In

Rothermel’s announcement to the team regarding Ligas’ new position, Rothermel explained that

Ligas would “lead the modeling and analysis within [Rothermel’s] team, focusing on lifetime

value, distribution economics and ROI, Distribution Excellence, Maximizing Customer Equity,

marketing ROI, and acquisition funnel efficiency, among other things.”

        Because Lawroski was unable to secure a new position within the 60-day period, his

employment was terminated on April 16, 2011. In Butler’s paperwork with Human Resources,

she explained that Lawroski’s “[p]osition [was] a ‘special projects’ role for which there [was]

only a limited number of projects that need[ed] support,” and that eliminating his position saved

expenses. Upon his termination, Lawroski transferred several remaining projects to Eric Ryan,

who worked outside of the Exclusive Channel. Lawroski suggested that several of his on-going

projects in different finance departments outside of the Exclusive Channel were transferred to

other individuals within those finance departments after his termination.

        On December 1, 2011, Lawroski instituted this action under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 623(a), and the Ohio Revised Code 4112, alleging that

Nationwide terminated him and failed to award him the FBD position on Rothermel’s team



3
 For reasons unknown, Butler did not score any of the applicants in the categories of technical proficiency, cross-
departmental management, or direct management. She tallied the scores in the remaining categories to rank the
applicants.
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Lawroski v. Nationwide Mut. Ins. Co.


because of his age,4 and asserting claims of disparate treatment and disparate impact. On

November 1, 2013, the district court granted Nationwide’s motion for summary judgment on all

of Lawroski’s claims. Lawroski now appeals that decision regarding only his disparate treatment

claims.

                                                     II.

          We review de novo a district court’s grant of summary judgment. In re Southeastern

Milk Antitrust Litigation, 739 F.3d 262, 270 (6th Cir. 2014). “[T]here is no issue for trial unless

there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that

party. If the evidence is merely colorable, or is not significantly probative, summary judgment

may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal

citations omitted). Thus, “the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment.” Id. at 248. In

evaluating a summary judgment motion, we consider the evidence and draw all reasonable

inferences in favor of the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

          Lawroski has alleged two disparate treatment claims – termination and failure to hire – in

violation of the ADEA and Ohio’s analogous civil rights statute. The analysis of a claim under

the ADEA basically parallels that of a claim under the Ohio Revised Code. Ercegovich v.

Goodyear Tire & Rubber Co., 154 F.3d 344, 357 (6th Cir. 1998). The ADEA makes it unlawful

for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate




4
 Specifically, Lawroski brought his ADEA claims against Nationwide only, and he brought his Ohio state claims
against both Nationwide and Butler.
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Lawroski v. Nationwide Mut. Ins. Co.


against 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).

        A plaintiff bringing an ADEA claim must prove, by preponderance of the evidence, that

age was the “but-for” cause of the challenged adverse employment action.           Gross v. FBL

Financial Servs., Inc., 557 U.S. 167, 177-78 (2009). Although a plaintiff may use direct or

circumstantial evidence to establish “but for” causation, courts apply a burden-shifting

framework to cases wherein the plaintiff has presented only circumstantial evidence.          See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the McDonnell

Douglas burden-shifting paradigm, it is the plaintiff’s burden to establish a prima facie case of

discrimination. Id. at 802. “Once the prima facie case is made, a defendant may offer any

legitimate, non-discriminatory reason for the employment action, which the plaintiff may rebut

by evidence of pretext; however, the burden of proof always remains with the plaintiff.” Hartsel

v. Keys, 87 F.3d 795, 800 (6th Cir. 1996). Because Lawroski has presented only circumstantial

or indirect evidence to support his disparate treatment claims, the McDonnell Douglas burden-

shifting paradigm applies.

        A.       Prima Facie Case

        “[T]o establish a prima facie case of discrimination by the defendant, the plaintiff must

show (1) that he is a member of a protected group, (2) that he was subject to an adverse

employment decision, (3) that he was qualified for the position, and (4) that he was replaced by a

person outside of the protected class . . . [or] that similarly situated non-protected employees

were treated more favorably.” Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002)

(internal quotation marks omitted). If the employer’s adverse action arises as part of a reduction


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in force (“RIF”), the plaintiff must provide “additional direct, circumstantial, or statistical

evidence tending to indicate that the employer singled out the plaintiff for discharge for

impermissible reasons.” Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990).

        “A work force reduction situation occurs when business considerations cause an
        employer to eliminate one or more positions within the company. An employee is
        not eliminated as part of a work force reduction when he or she is replaced after
        his or her discharge.” A person is considered replaced “only when another
        employee is hired or reassigned to perform the plaintiff's duties.” A person is not
        considered replaced when his duties are absorbed by another person “or when the
        work is redistributed among other existing employees already performing related
        work.”

Geiger v. Tower Auto, 579 F.3d 614, 623 (6th Cir. 2009) (quoting Barnes, 896 F.2d at 1465). In

a RIF situation, “the most common legitimate reason for the discharge is the RIF itself.”

Brocklehurst v. PPG Indus., Inc., 123 F.3d 890, 896 (6th Cir. 1997). Because the RIF situation

here provided a legitimate reason for Nationwide’s adverse actions toward Lawroski, Lawroski

must show not only that he was replaced or that others were treated more favorably, but also that

Nationwide singled him out for discharge for impermissible reasons. See Barnes, 896 F.2d at

1464-66. The district court assumed arguendo that Lawroski had established a prima facie case

of age discrimination, and proceeded directly to the question of pretext. We will take the same

approach.

        B.       Legitimate Nondiscriminatory Reasons and Pretext

        Assuming Lawroski has established a prima facie case for his disparate treatment claims,

Nationwide is entitled to summary judgment because Nationwide has articulated legitimate

business reasons for terminating Lawroski’s employment and declining to hire him for a

different position and Lawroski has not shown those reasons to be pretext for age discrimination.

See Hartsel, 87 F.3d at 800. Nationwide stated that it terminated Lawroski due to both lack of

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Lawroski v. Nationwide Mut. Ins. Co.


work and potential cost savings to Butler’s department. Nationwide also explained that it did not

hire Lawrowski for the FBD position in Rothermel’s group because of the low scores Lawroski

received throughout the interview process, as well as Rothermel’s negative impression of

Lawroski. Nationwide’s reasons are legitimate and nondiscriminatory; Lawroski therefore bears

the burden to show that they are merely pretext for age discrimination. See Hartsel, 87 F.3d at

800.

        “[A] plaintiff can show pretext in three interrelated ways: (1) that the proffered reasons

had no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s

action, or (3) that they were insufficient to motivate the employer’s action.” Chen v. Dow Chem.

Co., 580 F.3d 394, 400 (6th Cir. 2009). To defeat summary judgment, the plaintiff “must

produce sufficient evidence from which a jury could reasonably reject [the defendant’s]

explanation of why [it] fired h[im].” Id. “[A]t bottom the question is always whether the

employer made up its stated reason to conceal intentional discrimination.” Id. at 400 n.4.

        1.       First Type of Rebuttal

        The first type of rebuttal of pretext – that the proffered reasons had no basis in fact –

generally “consists of evidence that the reasons given by the employer simply did not happen.”

Peters v. Lincoln Elec. Co., 285 F.3d 456, 471 (6th Cir. 2002). Although Lawroski does not

challenge the reasons given for Ligas’ hire as factually false, he does challenge the reasons given

for his own termination as factually false. Specifically, he avers that there was sufficient work

for him to do, but that work was transferred to Ligas. Lawroski attempts to show that Ligas was

not hired to replace Dolsky, but rather, to replace Lawroski. However, the record supports

Nationwide’s claim that Ligas took over Dolsky’s modeling work. Dolsky’s Senior Consultant


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Lawroski v. Nationwide Mut. Ins. Co.


position was functionally the same as an FBD position, except that the latter position also

supervised at least one other employee. Although Lawroski claims that Dolsky’s modeling

work, particularly the Distribution Excellence (“DE”) model, was actually Lawroski’s work, the

record does not support this claim because, in a performance review, the DE model was listed as

Dolsky’s work, and Lawroski admitted that during the same period he was working on several

other projects.

        Lawroski also asserts that his termination did not achieve cost savings because the

number of FBDs in Butler’s department was not reduced. The record clearly shows, however,

that in the year following Lawroski’s termination, the number of employees in Butler’s

department was reduced from 26 to 22, and the number of FBDs fell from three to two. Thus,

none of the evidence presented by Lawroski provides a basis for a reasonable inference that

Nationwide’s explanations for Lawroski’s termination were false.

        2.        Third Type of Rebuttal

        We next address the third type of rebuttal of pretext, as it bears striking similarities to the

first type. Like the first type, it “is a direct attack on the credibility of the employer’s proffered

motivation for taking the adverse action against the plaintiff.” Gulley v. Cnty. of Oakland, 496 F.

App’x 603, 610 (6th Cir. 2012). To show that a defendant’s reasons for subjecting an employee

to an adverse action were insufficient to motivate that action, the plaintiff normally offers

“evidence that other employees, particularly employees not in the protected class, were not fired

even though they engaged in substantially identical conduct to that which the employer contends

motivated its discharge of the plaintiff.” McKinley v. Skyline Chili, Inc., 534 F. App’x 461, 465

(6th Cir. 2013) (internal quotation marks omitted). Lawroski contends that Ligas was similarly


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situated to himself, and that Nationwide treated Ligas more favorably when it decided to hire

Ligas instead of Lawroski. But the record shows that Lawroski and Ligas were not similarly

situated; Ligas was the highest rated of the five interviewees, whereas Lawroski was the lowest

rated. Additionally, Ligas’ resume demonstrates that he was qualified for the FBD position, and

Ligas was hired according to the FLRP guidelines.

        Lawroski also avers that Nationwide’s reasons for his termination were insufficient to

motivate his discharge because he had sufficient work, his work was transferred to Ligas, and his

termination did not achieve cost savings. But the record does not support these inferences either,

particularly because it is undisputed that Lawroski worked as a shared resource for three separate

channels, whereas Ligas was hired to work only for the Exclusive Channel, and no one was hired

as a shared resource for the three channels after Lawroski’s termination. Thus, none of the

evidence presented by Lawroski provides a basis for a reasonable inference that Nationwide’s

explanations of why it terminated Lawroski were insufficient to motivate its adverse actions

toward Lawroski.

        3.       Second Type of Rebuttal

        Finally, the second type of rebuttal of pretext – that a defendant’s proffered reasons did

not actually motivate its action – “is of an entirely different ilk” than the other types. Allen v.

Highlands Hosp. Corp., 545 F.3d 387, 396 (6th Cir. 2008) (internal quotation marks omitted).

Any endeavor to establish this type of rebuttal is based upon an admission of “the factual basis

underlying the employer’s proffered explanation and further [admission] that [those facts] could

motivate” the adverse employment action. Mischer v. Erie Housing Auth., 168 F. App’x 709,

715 (6th Cir. 2006) (internal quotation marks omitted). To attempt to “indict the credibility of


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Lawroski v. Nationwide Mut. Ins. Co.


the employer’s explanation,” the plaintiff normally offers circumstantial evidence that “tend[s] to

prove that an illegal motivation was more likely than that offered by the defendant.” Id. (internal

quotation marks omitted).

        Lawroski avers that many different pieces of circumstantial evidence in the record show

that his age was the more likely motivation for Nationwide’s failure to hire him, rather than

Nationwide’s explanation that Ligas was more qualified for the position.          Specifically, he

contends that he was not chosen for the position because he was the oldest interviewee, the cost

of his pension benefits was high, and Butler was attempting to assemble a younger workforce.

Although Lawroski was the oldest interviewee, he was one of three interviewees over age 40,

while the other two interviewees were under age 40. That Ligas was selected from a pool of

applicants of various ages does not show intentional age discrimination. See Mischer, 168 F.

App’x at 715. Moreover, the costs of Lawroski’s pension were not tied to his age, but rather to

his salary, and Ligas was hired at the same salary range as Lawroski’s.          And Lawroski’s

allegations regarding Butler’s motivations in assembling a younger workforce do not provide

anything from which a reasonable jury could infer age animus because Butler’s department

continued to employ individuals much older than Lawroski and very few individuals under the

age of 40.

        Lawroski further argues that Ligas was not qualified for the FBD position and that Ligas

did not fulfill the requirements of the FLRP. But the evidence upon which Lawroski relies

shows that Ligas had the ten years of experience in accounting, finance, insurance, or

administrative business functions required for the FBD position. And Ligas completed the FLRP

in accordance with its guidelines. Because Ligas was in his third and final FLRP rotation when


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Lawroski v. Nationwide Mut. Ins. Co.


he applied for and was offered the FBD position, his hiring process was not improper. Thus,

none of the circumstantial evidence presented by Lawroski tends to show that Nationwide had an

improper motive for failing to hire him for the FBD position.

        Lawroski also avers that many different pieces of circumstantial evidence in the record

show that his age was the more likely motivation for his termination, rather than Nationwide’s

explanation that there was insufficient work to justify the costs of Lawroski’s position.

Specifically, he asserts that his work was transferred to Ligas, and therefore, his position was not

eliminated as part of a reduction in force. Although Lawroski has introduced evidence showing

slight similarities between his work and Ligas’ work, he has not produced evidence from which a

reasonable jury could infer it was the same work. Lawroski was hired as a shared resource for

three separate channels, whereas Ligas was hired as a resource for only the Exclusive Channel.

That Ligas worked on projects with titles similar to those of Lawroski’s projects with the other

two channels does not show that they were the same projects.

        For example, Rothermel’s group was involved in a project for the Independent Agent

channel, specifically, purchasing independent agents and converting them to exclusive agents

(the “IAA model” project). Ligas was involved in this project during his rotation in Rothermel’s

group and after his hire as FBD. But the fact that Ligas’ channel occasionally interacted with

other channels does not mean that he worked as a shared resource for those channels. Although

Lawroski too was involved in the IAA model project, his position also required him to work on

other projects for the Independent Agent channel, whereas Ligas’ position did not. Lawroski

ignores this essential difference between the two positions.




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         Moreover, the record supports Nationwide’s legitimate business reason for terminating

Lawroski – that it needed to reduce its workforce. In the year following Lawroski’s termination,

the employees in Butler’s department were reduced from 26 to 22, and the number of FBDs fell

from three to two. “It is not the prerogative of courts to engage in post-hoc management of the

employer’s internal affairs by second-guessing how personnel could have been more equitably

allotted, or cost-savings better realized.” Norbuta v. Loctite Corp., 1 F. App’x 305, 314 (6th Cir.

2001).    And the elimination of one or more positions is recognized as a sufficient, non-

discriminatory reason for terminating employment. See Barnes, 896 F.2d at 1465. Thus, none of

the circumstantial evidence presented by Lawroski has provided a basis upon which a reasonable

jury could find that Nationwide had an improper motive for terminating him.

         Lawroski has failed to produce sufficient evidence from which a jury could reasonably

reject Nationwide’s reasons for its adverse actions toward him. Nationwide, therefore, is entitled

to summary judgment. See Chen, 580 F.3d at 400; Anderson, 477 U.S. at 249-50.

                                               III.

         For the foregoing reasons, we AFFIRM the judgment of the district court.




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