Girish Shah v. NXP Semiconductors USA, Inc.

NOT RECOMMENDED FOR PUBLICATION
File Name: 12a1244n.06
No. 11-1779 FILED
Dec 04, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
GIRISH SHAH, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
NXP SEMICONDUCTORS USA, INC., ) DISTRICT OF MICHIGAN
)
Defendant-Appellee. )
)
Before: BOGGS and WHITE, Circuit Judges; and BLACK, District Judge.*
BLACK, District Judge. Girish Shah (“Shah”) appeals the district court’s grant of summary
judgment in favor of his former employer, NXP Semiconductors USA, Inc. (“NXP”), on his claims
of age and national-origin discrimination. For the following reasons, we AFFIRM the judgment of
the district court.
I. BACKGROUND FACTS
Plaintiff-Appellant Girish Shah timely appeals the order of the district court granting
summary judgment in favor of Defendant NXP Semiconductors USA, Inc. Shah alleged age
discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”)
(Count I), and the Michigan Elliot-Larsen Civil Rights Act, MCL § 37.2101 et seq. (“ELCRA”)
*
Hon. Timothy S. Black, United States District Judge for the Southern District of Ohio,
sitting by designation.
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(Count II), and national-origin discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e (Count III);2 and the Michigan ELCRA (Count IV).
NXP designs and sells semiconductors for use in electronic devices, including those used in
the automotive industry. NXP’s Automotive Americas Group, which is based in Farmington Hills,
Michigan, is responsible for both selling semiconductors and for ensuring their quality (i.e., ensuring
that the semiconductors perform as intended). Thus, the Automotive Americas Group has sales and
marketing employees and a quality control subgroup. Leland Key is NXP’s Senior Director of Sales
and Marketing for the Automotive Americas Group. In this capacity, Key oversees the Automotive
Americas Group.
In March 2007, NXP hired Shah as a Field Quality Engineer (“FQE”) within NXP’s
Automotive Americas Group. FQEs are responsible for interfacing with NXP’s automotive
customers to ensure that NXP’s semiconductors function properly. At the time of his hiring, Shah,
who is of Indian descent, was 59 years old. Shah joined four other FQEs who were already working
for NXP: Mauricio Acosta, John Henninger, Mike Laituri, and Brad Webber. As an FQE, Shah
worked on approximately 20-22 customer accounts.
2
Except for passing references to his national origin, Shah’s appellate brief focuses only
on alleged age discrimination. Appellant Br. at 39-40 (claiming that even if the District Court did
not err in finding that Knoell replaced Shah, “the District Court still erred in granting [NXP’s]
Motion for Summary Judgment on [Shah’s] claims of age discrimination because [Shah] presented
sufficient additional circumstantial evidence of age discrimination to satisfy the heightened standard
applied to RIF cases.”). “[I]t is a settled appellate rule that issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived.” Benge
v. Johnson, 474 F.3d 236, 245 (6th Cir. 2007).
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Until early 2008, FQEs reported to Marty Michaels, NXP’s Quality Manager. When
Michaels retired in early 2008, the FQEs began reporting to their respective sales managers: Shah
reported to Ken Roberts; the other FQEs reported to other sales managers.
In February 2009, Drue Freeman, NXP’s Global Vice President of Quality & Customer
Excellence for the Automotive & Identification business line, asked Key to provide a written analysis
of his resources and how Key would handle a potential reduction in force. Key consulted NXP’s
written reduction in force (“RIF”) policy, which gives managers discretion to “decide which job
functions and job classifications are to be affected” based on a combination of factors enumerated
in the policy. The policy states that “[i]n the event all of the [factors] are deemed essentially equal,
length of service may be considered.”
Key’s preferred option was to maintain the current headcount, but he determined that if he
had to eliminate one employee, Shah’s position would be selected for elimination. In making this
determination, Key testified that he “used the reduction in force policy as [his] guideline.” Key
testified that he had firsthand knowledge of the quality of his employees’ work and determined that
all five FQEs were about equal in terms of job performance. Thus, according to Key, the decision
to eliminate Shah’s position was based on the fact that he had the least seniority among the five
FQEs.
Because Michaels’s retirement in early 2008 created a supervisory void, NXP began
interviewing replacements. However, the search was interrupted when NXP’s management
instituted a company-wide hiring freeze in June 2008.
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In early March 2009, NXP learned that Bob Knoell was let go by another company. Key
knew Knoell and was impressed with his credentials and experience. NXP determined that Knoell
was the top candidate to replace Michaels but could not offer him the position due to the hiring
freeze that had been implemented in June 2008.
Also in March 2009, Key determined that NXP would benefit from a reorganization of the
quality-control subgroup of its Automotive Americas Group. Specifically, Key determined that it
would be more efficient for the FQEs to report to one manager instead of several. (Id.) Key
determined that none of the existing FQEs exhibited the necessary leadership abilities and, instead,
Knoell would be the best candidate for the newly created position. In his deposition, Key stated:
It was my opinion that by having a Quality Manager in place that we could drive
efficiencies in our processes. Bob also was a well-known, I’ll call him expert in my
opinion, expert in semiconductor reliability and instrumental in the formation of a
number of automotive quality organizations. So he would have been a good
acquisition for the team.
Key also stated in an email that he “[saw] this as an opportunity to upgrade our current
organization.”
According to Key, he was informed by his manager, Drue Freeman, that he could not hire
Knoell without terminating an existing employee. Pursuant to the analysis performed one month
earlier at Freeman’s request, Key determined that Shah’s position would be eliminated because, all
other factors being equal, Shah had the least seniority of the five FQEs.
In the same month, Freeman and Key exchanged several email messages. In one, Freeman
asked Key if Key could hire Knoell and fire Shah. Key responded:
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You read my mind . . . [sic] as you know difficult to fire quickly here, need to build
a case etc. . . . My thought is to eliminate the quality control engineer role (Girish’s
position), and hire [Knoell] as a regional quality control mgr, (where he would also
handle Girish’s accounts directly), so we could then RIF Girish, rather than fire him.
On April 2, 2009, Key emailed Kapps, NXP’s Human Resources Business Partner:
We see an opportunity to upgrade our current organization and would propose the
following: RIF an existing FQE from our Farmington Hills office . . . . The person
in mind has ~ 2 years of service with NXP. Create a new position – Automotive
Regional Quality Manager – and hire Bob Knoell for this role. . . . Bob would
provide some regional leadership for the . . . quality team . . . but would also have
some direct account responsibility.
Before terminating Shah, Key consulted with Kapps. The elimination of Shah’s position and
the creation of the new management-level position was reviewed and approved by NXP’s Employee
Termination Oversight Committee (“ETOC”), a committee charged with reviewing proposed
termination decisions to ensure that they comply with NXP’s anti-discrimination and RIF policies.
The documentation reviewed by the ETOC contained certain personnel information, including the
age and ethnicity of the two FQEs considered for dismissal, Shah and Michael Laituri. The
document lists Shah as being Asian and 61.27 years old; it lists Laituri as being White and 42.72
years old.
Randall McMills, a senior official in NXP’s Human Resources department and member of
the ETOC, testified that the document reviewed by the ETOC lists employee ages so that the ETOC
can make sure that it does not “eliminate all of [its] older workers and keep only [its] younger
workers.”
Shah was terminated on May 1, 2009, due to a “reorganization and work force reduction.”
Shah was 61 years old at the time of his termination. Following Shah’s termination, the four
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remaining FQEs took over around 20 of his 20-22 accounts. NXP has not hired any FQEs since
Shah’s termination. Moreover, one of the four FQEs who remained after Shah’s termination,
Mauricio Acosta, voluntarily resigned in early 2010 and NXP has not hired a replacement.
Knoell, who was then 53 years old, began working for NXP in the newly-created position of
Automotive Quality Manager in May 2009. Knoell occupies Shah’s former office and reports to
Key. As Automotive Quality Manager, Knoell spends the majority of his time performing
management functions. Knoell holds a local pay grade of E5, which is the grade given to NXP’s
first-level management positions.3 In addition, Knoell services five client accounts, three of which
were formerly serviced by Shah. Knoell assumed these client accounts so that he could better relate
to the FQEs and because he was familiar with the clients.
II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary judgment de novo. Hollway v. Brush,
220 F.3d 767, 772 (6th Cir. 2000) (en banc). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party has the
burden of proving the absence of a genuine issue of material fact and its entitlement to summary
judgment as a matter of law. Id. The evidence must be considered in the light most favorable to the
non-moving party, but there must be more than “some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is, there must
3
Shah began his employment at a pay grade of E3. At the time of his termination, Shah held
a pay grade of E4.
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be more than a “mere existence of a scintilla of evidence” to satisfy the plaintiff’s burden. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
This court also reviews a district court’s denial of a motion for reconsideration of a grant of
summary judgement de novo. Columbia Gas Transmission Corp. v. Ltd. Corp., 951 F.2d 110, 112
(6th Cir. 1991). However, we review a district court’s refusal to consider evidence produced for the
first time in a motion for reconsideration (such as an affidavit) for an abuse of discretion. Huff v.
Metro. Life Ins. Co., 675 F.2d 119, 123 (6th Cir. 1982).
III. ANALYSIS
A plaintiff can make a prima facie case of age discrimination under the ADEA by showing
that: (1) he was a member of a protected class; (2) he suffered an adverse employment action; (3)
he was qualified for the position; and (4) either he was replaced by a significantly younger person,
or a similarly situated younger employee was not subject to the same adverse employment action.
Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008).4 An allegation
that the person was replaced by a younger individual supports an inference of discrimination only
if the age difference is significant. Blizzard v. Marian Technical Coll., No. 11-3441, 2012 U.S. App.
4
Only the fourth element of Shah’s prima facie case is in dispute. Shah is over the age of
40, is of Indian descent, his termination was an adverse employment action, and NXP concedes that
he was qualified for the FQE position. Shah was the oldest of the five Automotive FQEs and the
only one of Indian descent.
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LEXIS 21846, at *5-6 (6th Cir. Oct. 19, 2012).5 NXP then must articulate a legitimate, non-
discriminatory reason for its actions. Id. at 802-03. If NXP satisfies that burden, Shah must produce
sufficient evidence to create a genuine issue of material fact that NXP’s proffered justification is a
pretext for unlawful discrimination. Id. at 804.
In this case, however, there is a disagreement as to which elements make up the prima facie
case, because there is a dispute as to whether Shah was terminated as a result of a reduction in force
(“RIF”). Whereas an ADEA or Title VII plaintiff would ordinarily have to prove either that he was
replaced by a person outside the protected class or that a person outside the protected class who was
similarly situated was not subject to the same adverse employment action, when a plaintiff is
terminated in the context of a RIF, that element need not be shown; rather, the fourth element of
McDonnell Douglas is modified (heightened) to require some “additional direct, circumstantial, or
statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for
5
NXP maintains that Shah’s age discrimination claim brought under the Michigan ELCRA
should be analyzed under the same standard as his age discrimination claim brought under the
ADEA. However, Plaintiff argues that in Gross v. RBL Financial Services, Inc., 557 U.S. 167, 174-
75 (2009), the Supreme Court clarified that there is a distinction between what a plaintiff is required
to prove in a disparate treatment claim under the ADEA as opposed to Title VII. “To establish a
disparate-treatment claim under the plain language of the ADEA, . . . a plaintiff must prove that age
was the ‘but-for’ cause of the employer’s adverse decision.” Id. at 176. That is in contrast to Title
VII, where a plaintiff can succeed on a claim “in which an improper consideration was ‘a motivating
factor’ for an adverse employment decision.” Id. at 174. The Court need not resolve this conflict
because under either standard Shah fails to make a prima facie case.
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impermissible reasons.” Barnes v. GenCorp., 896 F.2d 1457, 1465 (6th Cir. 1990).6 An employee
is not eliminated as part of a RIF when he is replaced after being terminated. Id.A. Whether Plaintiff Was Replaced
First, Shah argues that the district court erred in finding that no reasonable jury could
conclude that he was replaced by Robert Knoell.
This court has delineated the circumstances in which a RIF occurs and triggers application
of the modified fourth element of a prima facie case.
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. However, a person is not replaced when another employee is
assigned to perform the plaintiff’s duties in addition to other duties, or when the work
is redistributed among other existing employees already performing related work.
Barnes, 896 F.2d at 1465. “Eliminating a single job is sufficient to constitute a legitimate reduction
in force.” Lockett v. March USA, Inc., No. 08-3413, 2009 U.S. App. LEXIS 26266, at *23 (6th Cir.
Dec. 3, 2009).
Shah claims that the district court, concluding that he was terminated as part of a RIF, viewed
the evidence in a light most favorable to NXP, pointing to: (1) an excerpt from Knoell’s April 2010
deposition testimony in which Knoell allegedly admitted that he spends as little as 20% of his time
on management-related activities; (2) Shah’s declaration, executed 12 days after the district court
granted NXP’s motion for summary judgment, in which he asserts that he spent 80 to 90 percent of
6
“The purpose of the additional evidence requirement is to ensure, in reduction of force
cases, that the plaintiff has presented evidence to show that there is a change and the reduction in
force is not the reason for the termination.” Asmo v. Keane, Inc., 471 F.3d 588, 593 (6th Cir. 2006).
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his time servicing the three accounts that Knoell took over; and (3) isolated e-mails allegedly
showing that NXP viewed Knoell as a candidate for a position as FQE and not Automotive Quality
Manager. Appellant Br. at 30-32. We will address each argument in turn.
1. Shah’s Job Responsibilities
The district court determined that “as Automotive Quality Manager, Knoell spends the
majority of his time performing management functions.” Shah claims that this determination was
improper, based on Knoell’s testimony that: “Well, let’s see, what did I say, 30 to 50, so that leaves
about 20 to 40 percent [of my time] for management responsibilities.” However, as the District
Court noted, “Plaintiff ignores Knoell’s testimony that he spends an additional 20% of his time
serving as technical liaison, a duty that Plaintiff did not perform as a FQE. Thus, Knoell spends at
least 40-60% of his time performing duties that were not performed by [Shah].” For example,
Knoell leads nine engineers in NXP’s European offices on a quality-improvement program.
Moreover, Knoell’s job responsibilities as a manager are significantly different from those
Shah performed in his non-management FQE job. For example, Knoell supervises the FQEs,
completes their performance reviews, determines their salaries and bonuses, spends time each month
analyzing and providing reports to Key about their activities, and meets with each FQE regularly.
Shah did not perform these management duties. Shah’s responsibility as an FQE was to interface
with customers to ensure they were satisfied with the NXP products they purchased.
Shah and Knoell also have different reporting structures. Shah reported to Roberts, the
NARA team account manager, and Knoell reports directly to Key. Additionally, Knoell’s
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managerial position is classified internally at a higher corporate job grade and pay grade, whereas
Shah worked in a non-management job grade and non-managerial pay grade.
Additionally, where Shah had no control over the administration of any customer accounts,
Knoell’s duties include determining how to distribute accounts, including accounts that Shah
formerly serviced. Key stated in his deposition: “It was up to Bob [Knoell] how he wanted to do
that. I didn’t instruct him on what accounts to handle and what accounts not to handle.” Shortly
after Knoell joined NXP, he redistributed the overwhelming majority of Shah’s 20 accounts to the
four remaining FQEs. While Knoell did take over three of Shah’s accounts, he explained: “I know
a number of people at these customer sites (and they know me)” and taking over the accounts “will
give me a good idea as to what you all go through every day with your major accounts so I can
understand the horsepower required.”
Accordingly, the district court properly concluded that Knoell’s duties “are materially
different from those formerly performed by [Shah].” “[A] person is not replaced when another
employee is assigned to perform the Plaintiff’s duties in addition to other duties.” Barnes, 896 F.2d
at 1465.
2. Accounts Serviced
Next, Shah argues that it was not “by chance” that Knoell ended up with the Rosch, Bose,
and TRW accounts, which were his three largest accounts and took approximately 80-90% of his
time. Shah maintains that before Knoell was hired, NXP had already contemplated that Knoell
would service Shah’s former accounts.
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The district court found that “three of the five accounts serviced by Knoell were formerly
serviced by Shah. Knoell assumed these client accounts so that he could better relate to the FQEs
and because he was familiar with the clients.” Still, the court concluded that “Knoell supervise[d]
the FQEs; he is not himself a FQE. While it is true that Knoell’s job duties slightly overlap with
[Shah’s] job duties to the extent that Knoell took over three of [Shah’s] approximately 20-22
accounts, the vast majority of [Shah’s] accounts were redistributed among existing FQEs.” The
inquiry is not limited to how Shah spent his time, but also on the duties of the person who allegedly
replaced him, such that an employee who performs duties in addition to duties that Shah performed
is not a “replacement.” Geiger v. Tower Auto, 579 F.3d 614, 623 (6th Cir. 2009).
Accordingly, the fact that Knoell assumed responsibility for Shah’s three largest accounts,
given the other facts of Knoell’s employment, is insufficient to establish that he replaced Shah.
Moreover, the record is clear that in 2008, NXP interviewed Knoell to replace Marty Michaels,
NXP’s Quality Manager, but that the search was interrupted when NXP’s management instituted a
company-wide hiring freeze in June 2008.
3. Internal Emails
Finally, Shah argues that several emails show that Knoell replaced him, because they “reveal
that, despite the formal title that [Knoell] was ultimately given (Quality Manager), [he] was actually
being viewed as a candidate for a Quality Engineer position.” Appellant Br. at 32.
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In an April 14, 2009, email from Sankara Narayan (NXP’s Executive for “quality function”)
to Randy McMills (NXP’s Senior Vice President for Human Resources in the Americas), Ms.
Narayan made the following statement:
Two weeks ago Drue [Freeman] indicated that he would like to have a high caliber
person as Field quality engineer in the US to support automotive customers and also
said may be Bob [Knoell] from Visteon would be interested in that. I am aware of
this and also agreed with Drue that he can go ahead with this as a replacement to and
upgrading of a current [Field Quality Engineer] playing this role.
The district court held that the use of the term “replacement” by NXP’s employees “is not
controlling of the legal analysis.” Shah argues that while NXP’s internal references to Knoell as
Shah’s replacement is not controlling of the legal analysis, in that it does not require summary
judgment in his favor, a reasonable jury could conclude that NXP’s internal references to Knoell as
his replacement actually meant what was plainly indicated.
However, Narayan’s email does not mention Shah by name, nor did Shah produce any
evidence that Narayan knew either Shah’s or Knoell’s job responsibilities, age, or national origin.
Moreover, McMills testified that NXP uses the word “replacement” in reference to headcount as
opposed to comparisons of job duties.
The second email was an exchange between Freeman and Key, in which Key wrote that he
would like to “eliminate the quality engineer role (Girish’s position) and hire Bob as a regional
automotive quality mgr, (where he would also handle [Girish’s] accounts directly).” It is undisputed,
however, that Knoell did not take over all of Shah’s accounts. Moreover, even if Knoell had taken
all of Shah’s accounts, that hypothetical fact would not support a conclusion that Knoell “replaced”
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Shah in light of all of the additional management tasks and other duties that Knoell performs. See
infra Section III.A.2.
Finally, there is an email drafted by Mark Belloni, an NXP financial planning employee in
California, who wrote that Knoell “is replacing Girish.” However, Belloni knew nothing about
Shah’s or Knoell’s respective job duties. Appellant Br. at 32. Additionally, there is no evidence that
Belloni played a part in any decision affecting Shah’s employment or that he knew Shah’s or
Knoell’s age or national origin. Moreover, after McMills informed Belloni by email that Knoell “is
a Quality Manager for the Automotive [Business Unit.] He should be included in the quality
headcount,” Belloni responded that “[w]e need to be clear with these positions. They are not the
same. Girish Shah was a Quality Engineer and has been termed. Robert Knoell was hired as a
Quality Manager.”
Accordingly, Shah’s arguments are simply unsupported conjecture. In order to survive
summary judgment, a plaintiff “cannot rely on conjecture or conclusory accusations.” Arendale v.
City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008). Considering the facts in the light most favorable
to Shah, we agree as a matter of law that Shah was not replaced.
B. Prima Facie Case Under the Heightened Analysis
Next, Shah argues that even if Knoell did not technically replace him, the district court still
erred in granting NXP’s motion for summary judgment because he presented sufficient additional
circumstantial evidence of age discrimination to satisfy the heightened standard applied to RIF cases.
1. RIF as Additional Evidence of Discrimination
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Shah maintains that NXP never implemented the “planned” RIF which contemplated an
overall reduction in headcount of one person, because Knoell filled the vacancy created by Shah’s
termination. Moreover, in February 2009, Key’s clear preference was for no changes to occur and
for all employees to be kept in place. As of February 2009, Key testified that NXP “had the requisite
number of quality people necessary to support the needs of our business.” Key’s February 2009 RIF
plan/analysis did not contemplate a reorganization (with the elimination of a “Quality Engineer”
position and the creation of a “Quality Manager” position). JoAnn Knapps, an employee in NXP
Human Resources, confirmed that, prior to Knoell becoming available, there were no discussions
about eliminating a FQE position. However, one month later, when Knoell became available, Key
wanted to conduct a RIF and reorganize his department.7 Shah argues that, when the facts are
viewed in a light most favorable to him, a reasonable jury could conclude that this sudden change
in Key’s opinion was actually a reflection of NXP’s desire to terminate him and hire a younger
employee.
However, Shah ignores the change in circumstances that took place between February and
March 2009. Key indicated in February 2009 that he preferred to maintain his existing headcount,
but he also noted that Shah would be the next employee to be terminated in the event of a further
workforce reduction. One month later, Knoell unexpectedly was looking for a new job and Key
seized upon the opportunity to hire Knoell into a new management position, that required Key to
eliminate a position within his organization. Key decided to eliminate Shah’s position in accordance
7
Key admitted that neither his boss nor anyone in human resources directed him to
implement the alleged reorganization/RIF.
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with NXP’s RIF Policy because he had the least seniority among the FQEs. NXP alleges that by
hiring Knoell to fill the supervisory void that resulted from Michaels’s retirement, Key felt that he
could improve operational efficiencies by returning to an organizational structure in which all four
FQEs would report to one manager who could better oversee their work and ensure they were
implementing best practices as a group. Moreover, Key was already familiar with Knoell’s work at
Visteon, one of NXP’s customers. Indeed, Key recommended Knoell to his superiors to fill
Michaels’s position in early 2008, and after subsequent interviews of several candidates, Knoell
emerged as NXP’s top candidate to fill that position until the unanticipated hiring freeze prevented
NXP from formally offering him the job. Therefore, while the RIF standing alone may have served
as additional evidence of discrimination, even when considering all of the facts in the light most
favorable to Shah, we cannot find it to be so in this case.
2. Longevity as Additional Evidence of Discrimination
Additionally, Shah claims that the group of NXP employees -- Roberts, Michaels, Webber,
and Laituri -- who interviewed him and other candidates for the FQE position in 2007, purportedly
considered the respective candidates’ longevity8 in making a decision about which candidate to hire.
Both of the other candidates were younger than Shah. Only after both of the younger candidates
declined to take the position was Shah offered the job, which he accepted. However, as the district
court noted, Shah “pointed to nothing in the record to suggest that those involved in hiring him were
8
Wharton v. Forman-Rupp Co., 309 F. App’x 990, 991 (6th Cir. 2009) (holding that a
statement made by vice president regarding “longevity” constituted direct evidence of age
discrimination).
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involved in his termination.” Specifically, Michaels retired in 2008, Roberts had no role in NCP’s
reorganization decision, and Webber and Laituri were non-management FQEs, just like Shah. See
Geiger, 579 F.3d at 620-22 (“[A]ny discriminatory statements must come from decision makers to
constitute evidence of discrimination.”).9
C. Legitimate Nondiscriminatory Reasons and Pretext
Even if Shah were able to make out a prima facie case, NXP would still prevail because Shah
failed to establish that NXP’s reason for termination was pretextual. An employer’s proffered reason
is not pretextual unless it is shown both that the reason was false and that discrimination was the real
reason. Harris v. Metro. Gov’t of Nashville & Davidson Co., 594 F.3d 476, 486 (6th Cir. 2010). An
employer is entitled to summary judgment “if the plaintiff created only a weak issue of fact as to
whether the employer’s reason was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 148 (2000). Evidence of an employer’s business restructuring, which may include the
elimination of jobs or termination of otherwise competent employees based on seniority, satisfies
the employer’s burden of producing a legitimate, non-discriminatory reason for a plaintiff’s
termination. Aldridge v. City of Memphis, 404 F. App’x 29, 39 (6th Cir. 2010) (holding that
defendants’ elimination of plaintiffs’ jobs during reorganization satisfied their burden of producing
9
Additionally, Shah has not alleged that the “cat’s paw” theory discussed in Staub v. Proctor
Hosp., ___ U.S. ___, 131 S. Ct. 1186 (2011), has any application to the present facts. There is no
evidence that Key or anyone else relied on any supposedly biased statements that were purportedly
made when Shah was hired two years earlier.
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a legitimate, non-discriminatory reason for plaintiffs’ termination).10 Therefore, Shah bore the
burden of establishing a genuine issue of material fact that NXP’s proffered reason for terminating
him was not the true reason, but was instead a pretext for intentional discrimination. Texas Dept.
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
1. Internal Emails
Shah argues that the district court improperly viewed internal emails on the issue of
fabrication (pretext) in a light most favorable to NXP. Shah maintains that these emails reveal that
NXP fabricated a scheme to terminate him, “redefine the role,” and then hire Knoell, in order to
claim that he was terminated through a reorganization and RIF.
In a series of email exchanges dated March 12, 2009, between Freeman and Key, Freeman
inquired of Key: “Could you hire [Knoell] and fire Girish? Sorry had to ask.” Key responded: “You
read my mind . . . [sic] as you know difficult to fire quickly here, need to build a case etc. I’d planned
to discuss with our local HR. My thought is to . . . hire Bob as a regional automotive quality mgr,
(where he would also handle Girish’s accounts directly), so we could then RIF Girish, rather than
fire him.”
Shah argues that these internal emails both reveal that the RIF was fabricated. In Reeves, the
Court explained:
It is permissible for the trier of fact in an employment discrimination case to infer the
ultimate fact of discrimination from the falsity of the employer’s explanation; proof
10
See also EEOC v. Sara Lee Corp., 237 F.3d 349, 354-55 (4th Cir. 2001) (employer’s
seniority policy favoring individuals with longer tenure at the company was “legitimate and non-
discriminatory” and “a prime example of a policy that a company is entitled to respect”).
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that a defendant’s explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination, and it may be
quite persuasive [evincing guilt] . . . once the employer’s justification has been
eliminated, discrimination may well be the most likely alternative explanation,
especially since the employer is in the best position to put forth the actual reason for
its decision.
Reeves, 530 U.S. at 147-48. Shah argues that NXP’s method of working backwards (first
determining to hire Knoell and then determining to terminate Shah through a claimed
reorganization/RIF) casts serious doubt on NXP’s motivations, and that a reasonable jury could
conclude that NXP’s conduct in this regard was actually an attempt to conceal the true motivation
for terminating Shah – illegal discrimination.
However, nothing about the Freeman-Key email chain supports the proposition that NXP’s
proffered reason for terminating Shah’s employment was false and that discrimination was the real
reason. Importantly, neither Key nor Freeman referred to Shah’s or Knoell’s age or national origin,
nor to any desire to eliminate older employees or those of Indian descent, nor to any desire to hire
younger, white employees. Additionally, Shah does not argue that he was more qualified than the
other FQEs and could not identify any of his co-workers who, in his opinion, should have been
terminated instead of him. Moreover, considering the facts in the light most favorable to Shah, the
email chain does not, on its face, contradict NXP’s purported reason for termination.
2. Shifting Justifications11
11
Shah’s contention that NXP changed its justification for termination is not properly before
the court, because the issue was first raised in Shah’s motion for reconsideration. Accordingly, Shah
has waived this argument. See infra Section III.D. Nevertheless, as explained herein, even if this
issue were properly before the court, it would still fail.
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Next, Shah argues that NXP’s stated justification for terminating him changed during the
course of this litigation, which is evidence that the RIF was for discriminatory reasons. “Shifting
justifications [for a plaintiff’s termination] calls the credibility of those justifications into question.
By showing that [a] defendants’ justification for firing [a plaintiff] changed . . . a genuine issue of
fact [is created] that the defendants’ proffered reason was not only false, but that the falsity was a
pretext for discrimination.” Cicero v. Borg-Warner Auto. Inc., 280 F.3d 579, 592 (6th Cir. 2002).12
Shah was originally informed (pre-litigation, at his termination meeting) that he was being
terminated through an RIF due to an “economic downturn;”13 however, NXP’s headcount remained
the same and its expenditures actually increased after the reorganization/RIF. After the litigation
ensued, Shah maintains that NXP changed its justification for conducting the alleged
reorganization/RIF, stating that the RIF was the result of a desire to have one “Quality Manager”
overseeing the various “Quality Engineers” – essentially a “centralized leadership” justification.
However, the evidence indicates that NXP never changed its justification. Shah testified:
12
In Cicero, the defendant acquired a division of the plaintiff’s former employer, of which
the plaintiff was a management team member. Id. at 583. The defendant initially claimed that it
terminated the plaintiff’s employment because it wanted to put into place its own management team.
Id. at 592. During discovery, however, the defendant asserted for the first time that it terminated the
plaintiff for poor performance. Id. The defendant changed its justification yet again at summary
judgment, claiming that it had only fired members of management who dealt directly with its
headquarters in Chicago. Id. The court found these shifting justifications sufficient to create a
genuine issue of material fact as to whether the defendant’s proffered reason for the plaintiff’s
termination truly motivated its actions. Id. Unlike Cicero, where the defendant’s shifting
justifications were wholly unrelated to one another and did not stem from one central fact, no similar
facts exist here.
13
Roberts informed Shah that the termination “was due to the economic downturn and the
resultant . . . misfortunes of companies like NXP, reductions in sales volume, et cetera, et cetera.”
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Q. Did either Ken [Roberts] or Leland [Key] say why it was your
particular position that should be eliminated?
A. It was reorganization and work force reduction.
Therefore, Shah knew at the time of his termination that the decision was based on a reorganization
and corresponding RIF.
In sum, the record evidence shows that: (1) in mid-2008, Knoell emerged as the leading
candidate to take over Michaels’s higher-ranking job as Quality Manager for all of North America,
not just as a manager for the Automotive FQEs;14 (2) Key created the Automotive Quality Manager
position in 2009 to fill the supervisory void in the Quality sub-group resulting from Michaels’
retirement and the subsequent hiring freeze; (3) Key believed that hiring Knoell would be an upgrade
to the Automotive Americas group and communicated that point contemporaneously to many of his
colleagues, all of whom concurred with his proposal when Knoell unexpectedly was laid off by
Visteon15; (4) NXP required that Key not increase his headcount in the Automotive Americas group,
14
It is notable that Knoell and Shah had previously worked together at Visteon prior to
Shah’s employment with NXP. They both started as engineers, but Visteon promoted Knoell in
1997 to Technical Specialist, a job with a Leadership Level job grade of LL6, which was an entry-
level supervisory position. Knoell continued working as a Technical Specialist for the next 12 years.
Shah also continued to work for Visteon, but in a non-supervisory job at a lower rate of pay.
Additionally, unlike Shah, Knoell was one of the four founders of the Automotive Electronics
Council (“AEC”). The AEC “was originally established by Chrysler, Ford, and GM for the purpose
of establishing common part-qualification and quality-system standards.” See
http://www.aecouncil.com (last visited July 31, 2012). Unlike Shah, Key considered Knoell to be
an expert in semiconductor reliability based on his work for the AEC.
15
Key believed that the Automotive Quality Manager position would produce certain
efficiencies, such as having a centralized reporting structure for the FQEs. He also envisioned that
the Automotive Quality Manager would be able to “identify and centralize recommended ‘best
practices’ for FQE’s on quality issues and take steps to ensure that those best practices would be
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so Key could not hire Knoell without terminating someone else in the group; (5) Shah admitted that
all the Automotive FQEs were performing satisfactorily at the time of his termination; (6) Shah had
the least seniority;16 (7) Knoell performs management duties that differ from Shah’s former duties;
and (8) Shah could not identify any other FQE who was not performing satisfactorily or who, in his
mind, should have been terminated instead of him.
Based on this evidence, the district court concluded that:
[T]he two reasons given by Defendant in support of the reduction in force are not
inconsistent. Defendant wanted to hire Knoell in order to upgrade [its] organization
(i.e. provide . . . regional leadership) . . . but for economic reasons, could not do so
without terminating an existing employee . . . Thus the two rationales given by
Defendant underlying the reduction in force (economic necessity and improving its
management structure) are intertwined: due to economic considerations, Defendant
could not improve its management structure in the desired manner without
terminating Plaintiff.
Accordingly, Shah’s argument that NXP’s shifting justification developed out of a need to defend
its conduct is not supported by the record. Conversely, the record indicates that the two reasons
given by NXP in support of the RIF are not inconsistent.
Therefore, Shah failed to produce evidence that NXP’s reason for termination was a pretext
for discrimination. The evidence supports a finding that Key simply exercised his business judgment
to seize upon the opportunity to hire Knoell into a new management position, which in turn required
Key to eliminate a position elsewhere within NXP.
implemented by all the FQEs as a group.” Key considered whether any of the existing FQEs could
fill the manager role, but determined that none of them exhibited the necessary leadership skills.
16
It is notable that in many circumstances, seniority would in fact give preference to
individuals in the protected age group.
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D. Motion for Reconsideration
Finally, Shah maintains that the district court erred when it denied his motion for
reconsideration.
It is well-settled that “parties cannot use a motion for reconsideration to raise new legal
arguments that could have been raised before a judgment was issued.” Roger Miller Music, Inc. v.
Sony/ATV Publ’g., 477 F.3d 383, 395 (6th Cir. 2007). Additionally, reconsideration motions cannot
be used as “an opportunity to re-argue a case.” Furthermore, a party may not introduce evidence for
the first time in a motion for reconsideration where that evidence could have been presented earlier.
See, e.g., Sommer v. Davis, 317 F.3d 686, 691 (6th Cir. 2003); CGH Transp., Inc. v. Quebecor
World, Inc., 261 F. Appx. 817, 824 (6th Cir. 2008) (affirming denial of reconsideration and stressing:
“It is hard to imagine how an affidavit from one of [plaintiff’s] own witnesses would have been
previously unavailable to [plaintiff], and [plaintiff] has not explained why it failed to introduce this
evidence in opposition to summary judgment.”). Shah’s motion suffers from the exact same
deficiencies discussed in these cases.
Specifically, Shah’s motion for reconsideration cited new excerpts from Knoell’s deposition
and a new declaration that Shah signed 12 days after the district court granted summary judgment
for NXP. On appeal, the only alleged error Shah assigned to the district court on reconsideration was
striking his declaration.17 As in Sommer, there is nothing in Shah’s declaration that was not within
his personal knowledge in June 2010 when he filed his opposition to NXP’s motion for summary
17
In the declaration, Shah attested that he spent 80 to 90 percent of his time servicing the
three accounts that Knoell eventually took over.
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judgment, and Shah offers no explanation as to why he failed to present his declaration in a timely
fashion.18 “By bringing the issue [of severability] before the District Court in such an untimely
fashion, defendants effectively waived their argument on severability and have no basis to assign
failure to sever as an error on this appeal.” Am. Meat Inst. v. Pridgeon, 724 F.2d 45, 47 (6th Cir.
1984). Moreover, even if we did consider the declaration, it would not change the outcome. In the
declaration Shah asserts that the three customer accounts – Bosch, Bose, and TRW -- that Knoell
took over after Shah’s termination allegedly consumed 80-90 percent of Shah’s time while he was
employed by NXP. However, the pertinent evidentiary inquiry is not simply how the plaintiff spent
his or her time, but rather the duties of the person who allegedly replaced the plaintiff, such that an
employee who performs duties in addition to duties that the plaintiff performed is not a replacement.
Geiger, 579 F.3d at 623. The relevant inquiry, as expressed by the district court, is “how Knoell
spends his time, not how [Shah] spent his time.”
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment for
NXP Semiconductors USA, Inc.
18
“To constitute ‘newly discovered evidence,’ the evidence must have been previously
unavailable.” GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).
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HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I join the
majority in affirming the dismissal of Shah’s national-origin discrimination claim.
As to the age-discrimination claim, I respectfully dissent. I conclude that Shah presented
sufficient evidence from which a reasonable jury could conclude that NXP’s purported reduction in
force (RIF) was not bona fide,1 and that the district court thus erred in applying the heightened prima
facie standard applicable in RIF cases. Soon after Bob Knoell informed Key that Visteon had let him
go, Key emailed Freeman that it “would be good to get Bob on the team.” Freeman responded the
same day, “Could you hire him and fire Girish [Shah]?” Key immediately responded, “You read my
mind .. . as you know difficult to fire quickly here, need to build a case etc. My thought is to
eliminate the quality engineer role (Girish’s position), and hire Bob as a regional automotive quality
mgr, (where he would also handle Girish’s accounts directly), so we could then RIF Girish, rather
than fire him.” A reasonable jury could infer from these communications that 1) the decision to
“RIF” Shah was not based on an economic downturn, contrary to what NXP told Shah, and 2) NXP
management sought the cover of NXP’s RIF policy because either it was easier to discharge an
employee under an RIF than to “build a case” against an employee, and/or NXP management
believed that a termination labeled as pursuant to an RIF would fend off litigation. A reasonable jury
1
Even if a jury were to conclude that there was a bona fide RIF, Key did not follow NXP’s
RIF policy as the district court concluded. It is undisputed that Key did not review the performance
evaluations, productivity or qualifications of the FQEs before selecting Shah for termination. The
NXP RIF policy provides that employees are selected based on a combination of factors, including
job function, presence or absence of critical skills, past performance and productivity, qualification,
attendance/punctuality, and corrective action status.
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could also conclude that there simply was no RIF; after all, the headcount in Key’s department did
not decrease.
Even if Knoell did not replace Shah, under the traditional McDonnell Douglas burden-
shifting analysis, Shah established a prima facie case of age discrimination by showing membership
in a protected class, an adverse employment action, that he was qualified for the position, and that
a similarly situated younger employee (Laituri) was not subject to the same adverse employment
action. See Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008)
(applying McDonnell Douglas burden-shifting framework in ADEA case). Regarding pretext, as
discussed, Shah presented evidence from which a reasonable jury could conclude that the purported
RIF was not bona fide or that there was no RIF at all, or both. Thus, Shah satisfied his burden to
produce sufficient evidence from which a jury could reasonably reject his employer’s explanation
for firing him. Blizzard v. Marion Technical Coll., 689 F.3d 275, 285 (6th Cir. 2012). “[P]retext
is a commonsense inquiry: did the employer fire the employee for the stated reason or not?” Id.,quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009). Whether Shah can meet
his burden under the ADEA to show that age was the but-for cause of NXP’s adverse action is an
open question. See Blizzard, 689 F.3d at 283. Nonetheless, viewing the facts in a light most
favorable to Shah, NXP was not entitled to summary judgment.
Finally, I conclude that Shah’s claim under Michigan’s Civil Rights Act, Mich. Comp. Laws
§ 37.2010 et seq., was also improperly dismissed, as the McDonnell Douglas burden-shifting
framework applies and, unlike the ADEA, a plaintiff need show only that age was a motivating
factor in the adverse employment action. See Hazle v. Ford Motor Co., 628 N.W.2d 515, 522 (Mich.
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2001) (once the employer articulates a legitimate, nondiscriminatory reason for its adverse
employment action, “in order to survive a motion for summary disposition, the plaintiff must
demonstrate that the evidence . . . , when construed in the plaintiff’s favor, is sufficient to permit a
reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse
action”) (internal quotations and citation omitted).
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