Tommy Sharp v. Aker Plant Services Group, Inc

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0216p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
TOMMY D. SHARP,
-
Plaintiff-Appellant,
-
-
No. 11-5419
v.
,
>
-
Defendant-Appellee. -
AKER PLANT SERVICES GROUP, INC.,
-
N
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:09-cv-429—Charles R. Simpson, District Judge.
Argued: June 7, 2012
Decided and Filed: August 9, 2013
Before: COOK and STRANCH, Circuit Judges; LAWSON, District Judge.*
_________________
COUNSEL
ARGUED: Don C. Meade, PRIDDY, CUTLER, MILLER & MEADE, PLLC,
Louisville, Kentucky, for Appellant. Thomas Matthew Williams, STOLL KEENON
OGDEN PLLC, Louisville, Kentucky, for Appellee. ON BRIEF: Don C. Meade,
PRIDDY, CUTLER, MILLER & MEADE, PLLC, Louisville, Kentucky, for Appellant.
Thomas Matthew Williams, STOLL KEENON OGDEN PLLC, Louisville, Kentucky,
for Appellee.
*
The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 2
_________________
OPINION
_________________
LAWSON, District Judge. Plaintiff Tommy Sharp appeals the district court’s
order granting summary judgment in favor of his former employer, Aker Plant Services
Group, on his age-discrimination claim under the Kentucky Civil Rights Act. The
district court found that there was no evidence that Aker’s termination of Sharp was on
account of his age. We respectfully disagree. In reaching this decision, we address three
issues. First, whether Sharp’s supervisor, Mike Hudson, played a determinative role in
the layoff decision so as to attribute his motivation to the company; second, whether
Hudson’s remarks amounted to direct evidence of age discrimination; and third, whether
Hudson’s expression of age as a factor in his layoff decision was merely a proxy for a
legitimate business concern. We answer yes to the first two issues and no to the third.
Therefore, we must reverse the summary judgment in favor of Aker and remand for
further proceedings.
I.
Aker Plant Services Group provides technology products and engineering,
procurement, and construction management services for manufacturing companies. One
of Aker’s customers, E.I. du Pont de Nemours and Company (DuPont), operates a plant
in Louisville, Kentucky, where Aker maintains a team of employees. At the time
relevant to this litigation, Aker’s Louisville site team consisted of the site project
manager, Mike Hudson; four electrical and instrumentation (E&I) designers — Larry
Ash, Bill Kirkpatrick, plaintiff Tommy Sharp, and John Whitaker; three piping designers
— Richard Wright, Scott McCafferty, and Gary Stanfield; an estimator/scheduler, Dave
Cecil; and a drafter, Christian Claycomb, who was being groomed to become an E&I
designer.
Tommy Sharp began working for Aker as a contract employee in 2003. He was
hired as an Aker employee in January 2005 and worked exclusively at the Louisville
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 3
plant. In 2008 and 2009, several Aker employees — Carol Brown in 2008 and Sharp,
Cecil, Claycomb, Whitaker, and McCafferty in January 2009 — were laid off because
Aker’s customers canceled or postponed many of their projects. Sharp, who was 52
years old at the time, contends that he was fired because of his age. Sharp’s main
contention is that his termination is a direct result of Mike Hudson’s decision to train
Bill Kirkpatrick, and not Sharp, to replace Larry Ash as E&I design lead, and that
Hudson based that decision on Sharp’s age.
The key piece of evidence for Sharp consists of two conversations with Hudson
that occurred in 2009 after Sharp was told he would be laid off. Those conversations are
discussed below. But Sharp begins by pointing to evidence that dates to sometime
before June 2006, when Hudson allegedly made comments about the advancing age of
the design group and the need to bring in younger people. Before that, in 2005, Sharp
asked Hudson if Sharp could take on some of the extra work responsibilities performed
by Larry Ash, but Hudson declined because “Larry took care of all of that.” Then in
June 2006, when Bill Kirkpatrick, age 41, was brought to the Louisville site, Hudson
directed Ash to train Kirkpatrick to be Ash’s backup as part of Hudson’s unwritten
succession plan. Hudson described his “succession plan” as follows:
You want somebody that’s capable of stepping in and taking over for
somebody if they are off sick, if they are on vacation, if they get hurt, or
if they retire. So your succession plan may be for three days, three
weeks, three months, or whatever.
As a result of Hudson’s directive, Ash began training Kirkpatrick in writing function-test
procedures and having Kirkpatrick check Ash’s work.
Aker insists that its layoff decisions were based on performance, not age, and
there is evidence that Hudson and Ash considered Kirkpatrick a superior employee to
Sharp. Aker rates its employees on a scale from 1 to 5, 1 representing non-performance,
3 as full performance, and 5 as exceptional performance. Hudson rated Sharp’s 2006
overall performance at 3, comprised of the following performance standard ratings:
operational and financial results at 3 with a note that Sharp “[n]eeds to continue pushing
to complete projects when faced with upcoming deadlines,” technical results and quality
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 4
of work at 3, job knowledge and skills at 3+, health safety environmental results at 3,
people skills at 3, self-management at 3 with a note that Sharp should “[c]ontinue being
persistent in gathering information for projects,” customer and relationship results at 3,
and innovation and improvement results at 3. In 2006, Hudson rated Kirkpatrick an
overall 3+, giving him scores equal to or higher than Sharp in every individual
performance standard.
In his 2007 evaluation, Sharp’s overall performance was rated at 3, and most
performance standards were rated at 3 as well. The self-management performance
standard contained the only note, and it stated that Hudson “[w]ould like to see Tom take
more initiative in getting project information.” In 2007, Kirkpatrick’s overall
performance was rated at 3+, with six of the performance standards being rated at 3+ and
two being rated at 3.
Sharp never received his 2008 evaluation, but his scores were noticeably lower.
Hudson gave Sharp an overall rating of 2.7. His individual performance standards were
rated between 2.5 and 3, with various notes commenting on aspects of his job
performance.
Kirkpatrick’s 2008 evaluation was consistent with his 2006 and 2007
evaluations. Overall he was rated at 3.2, with individual performance standards scores
ranging from 3 to 3.3. The notes were generally positive, and in the leadership category
Hudson commented that Kirkpatrick “[h]as started to become a go-to guy for other
designs when questions or issues arise.” It is unclear whether Kirkpatrick ever received
his 2008 evaluation because it is not signed.
Aker suffered a business downturn in October 2008, learning that many of its
customers were postponing or cancelling their design projects. Management distributed
a “forced rating template” to site team leaders with instructions to rank each employee
against his/her peers in various categories. Hudson was asked to rank each of the nine
employees at the Louisville site from 1 to 9, with a score of 9 indicating the best
employee in that discipline, and a score of 1 indicating the worst. Although Hudson
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 5
was out on medical leave from the end of October to the beginning of January, he
completed the forced rankings from home in November 2008.
Steve Dellinger, Aker’s Mid-America regional manager, received Hudson’s
forced rankings on December 2, 2008, but sent it back to Hudson, directing him to
include John Whitaker in the rankings even though Aker already had decided to
terminate Whitaker’s position. Hudson ranked the Louisville site team as follows:
Name (age) Leadership Communication Growth Adaptability Critical Overall
Skills Skills Potential knowledge
Ash (55) 8 7 2 2 9 5.6
Stanfield (52) 4 1 6 3 5 3.8
Kirkpatrick (44) 9 8 7 9 6 7.8
McCafferty (58) 3 5 3 4 4 3.8
Cecil (37) 7 9 8 8 7 7.8
Claycomb (39) 4 6 9 7 1 5.4
Wright (55) 6 4 1 1 8 4.0
Sharp (52) 2 3 5 6 2 3.6
Whitaker (57) 1 2 4 5 3 3.0
Once Hudson submitted his forced ranking, he was asked to tell upper management
which employees Aker should retain and who Aker could release “if forced to reduce
headcount.” Aker decided that it would keep only two of its four E&I designers. Hudson’s
forced rankings placed Sharp and Whitaker as the two lowest ranked in that group. Once both
the forced rankings and the recommendations were received, Scott Atkins (Aker’s senior
manager of human resources) and Dellinger reviewed the lay-off recommendations to correlate
the recommendations with the forced ranking. It appears that Dellinger and Atkins relied
entirely on Hudson’s recommendations because neither had any interaction with the Louisville
site employees. Thereafter, Dellinger authorized Hudson to begin notifying the employees who
were to be fired.
When Hudson informed Sharp of his termination on January 15, 2009, Hudson
mentioned that age played a factor in the decision. Sharp described their conversation as
follows:
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 6
And then I asked him why Bill [Kirkpatrick] was staying and I was selected to
go. And at that point he said that he had been grooming Bill to be Larry’s
replacement, said that he was younger and that I was in the same age range as
Larry and that we would be retiring about the same time and that would leave
them needing someone else. And he said Bill was — he said, you want
somebody that will give you, you know, ten or so years after the last — the
other person leaves. . . . And I said, well you know, I said, Mike, . . . I’ve got
another 15 years to go before I retire. He said, well, we want someone younger.
He said Aker has a succession plan where you bring in younger people, train
them, so when the older people leave, that you’ll have younger people.
During this first conversation, Hudson said that Sharp’s performance had never been a problem.
Their conversation prompted Sharp to bring in an audio-recording device the following
Monday, January 19, 2009, to secretly record another conversation with Hudson. The parties
provided a rough transcript, identifying the participants by first names, which have been changed
here to last names for clarity. Sharp began the conversation by asking Hudson for a letter of
recommendation. Hudson agreed to write one. After discussing the layoff process and which
employees survived it, the conversation turned to the issue of age:
Sharp: It just concerns me that someone was brought in younger
specifically to take Larry [Ash]’s place. Like you said[,] it was
unfortunate for John [the other terminated E&I designer] and
myself.
Hudson: It is the fact that he is younger.
Sharp: Well[,] yeah, it is the fact that he is younger.
Hudson: Because you, and I and Larry, we’re all the same age.
Sharp: Yeah.
Hudson: And you’re gonna bring in the guy that’s going to give you
[sic] additional ten, twelve years or whatever, after, you know,
we’re gone or if Larry’s gone.
Sharp: Yeah.
Hudson: You know because we are, well, I don’t know, maybe I
shouldn’t be using the term age, it’s probably not HR, the right
way to say it. If I take somebody that is the same age as Larry,
like you or John, and train them. Well, we spend a lot of time
and effort to train them, and they may turn out to be just as
good as Larry, but then you are the same age and you can
retire.
Sharp: But I guess that’s true for anyone though, I mean . . .
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 7
Hudson: Oh yeah.
Sharp: Bill could, I mean, hit the lottery and leave anytime too.
Hudson: Sure, [a]bsolutely! Yeah.
Sharp: So I guess I find it a bit unfair, or unfortunate.
Hudson: Well, you want to find that person that’s five or ten years into
their career that may have the tools to come along and be the
next department head, or lead designer or whatever, and bring
them along, that’s the idea. Sometimes it works and
sometimes it doesn’t.
...
Sharp: Yeah, [l]ike I said Thursday, you know, it concerned me when
you all brought Bill in, in the first place[,] you know, and
said[,] you know, this is going to be Larry’s replacement.
Because I saw a definitely [sic] change in my status when you
all did that. I mean cause I was checking Larry’s packages, I
felt like I was the number two guy, at that point, and[,] you
know[,] at some point[,] you know[,] I stopped checking
Larry’s packages, because Bill was being groomed to do that.
Hudson: Yeah, and it was a matter of not that your ability all of a
sudden became any less.
Sharp: Right.
Hudson: [I]t’s a matter of his being available, and what I was told was
his abilities and everything was [sic] good from what they were
telling me at the office . . .
Sharp: Working towards grooming him.
...
Hudson: and his age, and where he was in his career, just all everything
just aligned right, that he was [sic] a good spot in his career to
do that.
Sharp: Yeah.
Hudson: And so it worked out well, for that.
Sharp: Yeah.
Hudson: [A]nd again[,] it’s not that your abilities all of a sudden ceased
to exist, or got worse, or anything like that, we just, I hate to
keep repeating myself, but we’re all of the same age and we’re
all going to retire and I had an opportunity to bring the next
generation in, so that’s what we decided to do. So ah.
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 8
Sharp: Ok, I know you got to go. If you can get the letter to me, I’ll
start trying to get my resume out.
Hudson: Sure, sure. I’ll try to make it sound good, but not too gushy.
Sharp: (laugh) Thanks, Mike.
Hudson: Hey, Tom. How many years? Six?
Sharp: It’ll be six in June.
Hudson explained his comments as an attempt to spare Sharp’s feelings by ascribing the
layoff decision to succession planning rather than job performance. However, Hudson and Ash
later wrote a letter of recommendation that described Sharp as a “key member of our design
group at the Louisville site,” attributed his layoff to “recent economic conditions,” represented
that he “performed all the tasks given him at a high level,” certified that he “strives for an error
free construction project,” and unequivocally “recommend[ed] Tom” as an “E&I Designer.”
Sharp was not replaced by another employee; rather, his duties were divided between
the remaining E&I designers at the Louisville site.
Sharp filed his complaint in Kentucky state court, alleging that Aker fired him based on
age in violation of the Kentucky Civil Rights Act, Ky. Rev. Stat. Ann. § 344.040. Aker removed
the case to federal court and filed a motion for summary judgment. The district court granted
Aker’s motion because it found that Sharp did not present direct evidence of discrimination and
could not show that he was singled out for an impermissible reason. The court believed that
Hudson’s comments did not reflect age bias, but rather a concern for maximizing the return on
training costs by retaining the employees who would stay with the company longer. The court
also found that Sharp did not satisfy the prima facie element of the McDonnell Douglas test, and
failed to show that the forced ranking was a pretext for age discrimination, particularly in light
of evidence that after the reduction in force, the average age of the Louisville team increased
from 49.9 to 51.5 years old.
Sharp timely appealed.
II.
“This court reviews a district court’s grant of summary judgment de novo and applies
the same standard as the district court.” Alexander v. CareSource, 576 F.3d 551, 557 (6th Cir.
2009). When “‘reviewing a summary judgment motion, credibility judgments and weighing of
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 9
the evidence are prohibited. Rather, the evidence should be viewed in the light most favorable
to the non-moving party. . . . Thus, the facts and any inferences that can be drawn from those
facts[] must be viewed in the light most favorable to the non-moving party.’” Biegas v.
Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 2009) (citations omitted) (quoting Bennett
v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005)); see also Rodgers v. Banks, 344 F.3d
587, 595 (6th Cir. 2003) (“In evaluating the evidence, we ‘draw all reasonable inferences
therefrom in a light most favorable to the non-moving party.’”) (quoting PDV Midwest Ref.,
L.L.C. v. Armada Oil & Gas Co., 305 F.3d 498, 505 (6th Cir. 2002)).
A.
Under the Kentucky Civil Rights Act, it is unlawful for an employer to “discharge any
individual[ ] or otherwise to discriminate against an individual with respect to compensation,
terms, conditions, or privileges of employment, because of the individual’s . . . age forty (40) and
over.” Ky. Rev. Stat. Ann. § 344.040(1)(a). Age discrimination claims brought under the
Kentucky Civil Rights Act “are ‘analyzed in the same manner’ as ADEA claims.” Allen v.
Highlands Hosp. Corp., 545 F.3d 387, 393-94 (6th Cir. 2008) (quoting Williams v. Tyco Elec.
Corp., 161 F. App’x 526, 531 & n.3 (6th Cir. 2006); Harker v. Fed. Land Bank of Louisville, 679
S.W.2d 226, 229 (Ky. 1984) (explaining that because “[t]he Kentucky age discrimination statute
is specially modeled after the Federal law,” courts “must consider the way the Federal act has
been interpreted”)).
The crux of the plaintiff’s case necessarily focuses on the conduct of his supervisor,
Mike Hudson. The defendant argues that Hudson was not a decision maker because others in
the organization ultimately executed the terminations, Hudson was on medical leave at the time,
and therefore Hudson’s comments cannot be viewed as anything other than stray remarks that
have no bearing on Aker’s motivation.
An employer may be liable for a supervisor’s discriminatory animus if the “supervisor
performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause
an adverse employment action, and if that act is a proximate cause of the ultimate employment
action.” Staub v. Proctor Hosp., --- U.S. ---, 131 S. Ct. 1186, 1194 (2011) (footnote omitted).
The employer may escape liability if it conducts an investigation that uncovers justification for
the adverse employment action that is “unrelated to the supervisor’s original biased action.” Id.
at 1193. However, “the supervisor’s biased report may remain a causal factor[, making the
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 10
employer liable,] if the independent investigation takes it into account without determining that
the adverse action was, apart from the supervisor’s recommendation, entirely justified.” Ibid.;
Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 836 (6th Cir. 2012).
The facts in this case, when examined in the light most favorable to Sharp, justify the
conclusion that Aker is accountable for whatever age bias Hudson harbored, because Aker
terminated Sharp’s employment based on Hudson’s recommendation. Although Hudson was
not the ultimate decision maker, Dellinger and Atkins relied solely on Hudson’s forced rankings
and recommendation of who Aker could fire without disrupting current projects. That
“discriminatory information flow” began with Hudson and influenced the decisions made
downstream. Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 350 (6th Cir. 2012) (quoting
Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 678 (6th Cir. 2008)). Aker
contends that it conducted a multi-step, independent review of the layoff decisions; but that
review consisted simply of comparing information submitted by Hudson to other information
submitted by Hudson. Aker offers no evidence that it conducted any independent fact gathering.
Without considering information from an independent source, Aker’s review could not have
scrubbed Hudson’s alleged age bias from the forced rankings and recommendation.
Aker points to the impact analysis performed by upper management, showing an
increase in the average age of the Louisville site team following the layoffs. But that does not
assist Aker in avoiding liability at this stage of the case. Although the substance of the impact
analysis might be convincing evidence to rebut a disparate impact claim, it does nothing to rebut
the fact that Hudson’s recommendations served as the basis for the layoff decisions, and that
Hudson stated he made his decision based on an illegal factor: age.
B.
Aker argues that even if it is saddled with Hudson’s comments, those comments do not
constitute direct evidence that age was the but-for factor in the decision to fire Sharp. We cannot
agree. “Direct evidence of discrimination is that evidence which, if believed, requires the
conclusion that unlawful discrimination was [the] motivating factor in the employer’s actions.”
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc) (internal
quotation marks omitted). “It does not require the fact finder to draw any inferences to reach that
conclusion.” Amini v. Oberlin Coll., 440 F.3d 350, 359 (6th Cir. 2006) (citing Nguyen v. City
of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 11
“In assessing the relevancy of a discriminatory remark, we look first at the identity of
the speaker.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354 (6th Cir. 1998).
Discriminatory remarks by decision makers and those who significantly influence the decision-
making process can constitute direct evidence of discrimination. Bartlett v. Gates, 421 F. App’x
485, 489 (6th Cir. 2010); DiCarlo v. Potter, 358 F.3d 408, 417 (6th Cir. 2004); Rowan v.
Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir. 2004). But “‘only the most
blatant remarks, whose intent could be nothing other than to discriminate on the basis of age,’
satisfy this criteria.” Scott v. Potter, 182 F. App’x 521, 526 (6th Cir. 2006) (quoting Carter v.
City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)). “[T]o prevail on direct evidence at the
summary judgment stage, it seems that plaintiffs must prove ‘by a preponderance of the evidence
. . . that age was the “but-for” cause of the challenged employer decision.’” Bartlett, 421 F.
App’x at 488-89 (quoting Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009)).
Aker contends that Hudson’s tape-recorded remarks do not constitute direct evidence
of age discrimination because they were stray remarks that were unrelated to the decision-
making process. It is true that “general, vague, or ambiguous comments do not constitute direct
evidence of discrimination because such remarks require a factfinder to draw further inferences
to support a finding of discriminatory animus.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696,
708 (6th Cir. 2008) (citing Blair v. Henry Filters, Inc., 505 F.3d 517, 524-25 (6th Cir. 2007)
(evidence that supervisor removed employee from account because he was “too old” did not
constitute direct evidence of age discrimination because it was not related to his termination),
overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 n.4 (2009));
Rowan, 360 F.3d at 548-49 (employer’s nebulous remarks about general need to lower average
age of workforce and stray comment that “the older people should go, bring in some new blood,”
made years before employees’ termination, were not direct evidence of unlawful age bias)).
However, Hudson’s comments were not so vague, general, or ambiguous as to qualify as stray
comments. To the contrary, Hudson’s remarks were offered to explain the very decision at the
heart of this lawsuit. They specifically described Hudson’s — and Aker’s — rationale in
choosing which employees to fire and which to retain. See Bobo v. United Parcel Serv., Inc.,
665 F.3d 741, 755 (6th Cir. 2012) (holding that a supervisor’s statement, “I did not want
[plaintiff] volunteering for additional military duty when he was needed at UPS,” was sufficient
direct proof of anti-military animus under Uniformed Services Employment and Reemployment
Rights Act, 38 U.S.C. § 4311(c)(1)).
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 12
Aker also challenges the connection between Hudson’s comments and the adverse
employment action, making much of the fact that the tape-recorded conversation occurred after
the layoff decision and after Sharp had been notified. Aker’s argument ignores the fact that
Atkins and Dellinger relied solely on Hudson’s input when they decided which employees to let
go. Hudson’s comments were a retrospective description of the decision-making process that
led to the terminations. They were both “temporally [and] topically related” to the decision to
choose Sharp to lay off. See Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 725 (6th Cir.
2012). If we are to take Hudson at his word, he kept the younger Kirkpatrick and fired the older
Sharp because Sharp was “of the same age [as Hudson] and we’re all going to retire and I had
an opportunity to bring the next generation[] in, so that’s what we decided to do.” If there ever
was a window into the mind of an employment decision maker, that was it.
C.
But Aker says that although Hudson mentioned Kirkpatrick’s younger age, he did not
mean to discriminate unlawfully because of Sharp’s age. Instead, Aker insists that Hudson
merely was trying to articulate — inartfully, as it turns out — a legitimate business purpose
distinct from age. The Supreme Court has taught that an aspect of employment that could
correspond to age, such as years in service, could be a legitimate basis to distinguish among
employees for employment privileges and benefits, say in the area of pensions, as long as the
other feature is “analytically distinct” from age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611
(1993). To advance its argument, Aker cites one Sixth Circuit case and two cases from other
circuits.
The only case binding on this panel, Woythal v. Tex-Tenn Corp., 112 F.3d 243 (6th Cir.
1997), is easily distinguished. Woythal was a 68-year-old male who worked at Tex-Tenn as its
chief engineer, answering only to Tex-Tenn’s president. However, the president also created the
job of operations manager, the duties of which included supervising Woythal and his department.
Just as Tex-Tenn’s business started to expand rapidly, rumors circulated that Woythal was
planning to retire. The president asked Woythal several times about his desire to work for Tex-
Tenn and his retirement plans. And each time Woythal responded that he wanted to continue
working until age 70. But the president found Woythal’s answers “evasive,” and he thought
Woythal was “unwilling to participate in the process of planning . . . growth and expansion.”
Id. at 245. The operations manager met with Woythal, but it is not clear what transpired because
the parties could not agree on the substance of the meeting. Regardless, the president was
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 13
unsatisfied and asked the operations manager to secure a definite commitment from Woythal on
his plans. Woythal and the operations manager met again, and the meeting resulted in Woythal
believing that he had been fired. The president told Woythal he was sorry that Woythal had
decided to leave and told Woythal he could come back to work any time. In an effort to
demonstrate that Tex-Tenn’s legitimate business reasons — that Woythal resigned when offered
the choice between shaping up or shipping out, and he had a negative attitude and lack of interest
in the company — were a pretext, Woythal argued that the continued questions about his
retirement were an attempt to pressure him into retiring. We found Woythal’s argument
unavailing, in large part because no one at Tex-Tenn made direct references to Woythal’s age.
Id. at 247. That is a far cry from what occurred in the present case: Hudson informed Sharp he
had picked Kirkpatrick because he was younger than Sharp.
The other two cases are not persuasive, either. One involved employer inquiries into the
employee’s retirement plans, and there was no direct discussion of age. Colosi v. Electri-Flex
Co., 965 F.2d 500, 502 (7th Cir. 1992) (refusing to infer age bias from two retirement inquires,
noting that “a company has a legitimate interest in learning its employees’ plans for the future”).
The other, Moore v. Eli Lilly & Co., 990 F.2d 812 (5th Cir. 1993), was decided just ten days
after the Supreme Court decided Hazen Paper Co. v. Biggins, makes no mention of the Supreme
Court’s decision, and runs counter to Hazen Paper’s holding. The employer in Moore told its
supervisors not to recommend people over 35 for sales positions. The Fifth Circuit held that
making training investments based on age, which could predict long-term employment, was a
legitimate business decision. 990 F.2d at 818. But in Hazen Paper, the Supreme Court
sanctioned employment decisions based on factors that correlate with age only if they are
analytically distinct from age. 507 U.S. at 611 (explaining that pension status is distinct from
age because an employer under forty may be close to having vested pension rights). Put another
way, the proposed age-correlated factor cannot be a proxy for age, else it is unlawful. Hudson’s
comments, when viewed in the light most favorable to Sharp, boil down to one theme: Aker
picked Kirkpatrick because he is younger. Aker’s asserted business concern — potential
longevity with the company — is nothing more than a proxy for age.
When the district court agreed with Aker, it relied heavily on Lee v. Rheem
Manufacturing Co., 432 F.3d 849 (8th Cir. 2005), to hold that Hudson’s comments “reflected
legitimate business concerns about the plaintiff’s expected years of service rather than
discriminatory animus.” Sharp v. Aker Plant Servs. Grp., Inc., No. 09-429, 2011 WL 864952,
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 14
at *4 (W.D. Ky. Mar. 11, 2011). But once again, the case is readily distinguished, and it does
not, we believe, support the district court’s ruling. In Lee, the plaintiff worked for Rheem as its
human resource manager for twenty-three years until he was diagnosed with chronic fatigue
syndrome and voluntarily retired in 1995 or early 1996. Then in 2002, Rheem advertised an
open position in the human resources department; the position’s listed requirements were
commensurate with Lee’s previous employment with Rheem. Lee, 63 years old at the time,
applied but was not selected. Instead, Rheem hired a 39-year-old. Lee believed he had direct
evidence of age bias, because his interviewers told him that
“things have changed a lot,” asked Lee if he thought he would be able to “grasp
these new processes” in the plant, and stated that Rheem had to “plan for the
future.” [One interviewer] made the analogy of Lee returning to a basketball
team during a new season with a new coach and finding himself on the bench.
In addition, both [interviewers] asked Lee how long he intended to work if
hired.
Lee, 432 F.3d at 853. The court reasoned that although Lee’s expected years of work was related
to his age, his expected longevity merely correlated with age and did not implicate “the
prohibited stereotype.” Ibid.
Unlike the present case, the comments in Lee only obliquely referenced the plaintiff’s
age. An inquiry about how long an employee intends to work if hired has been held to reflect
a legitimate employer concern that is analytically distinct from age. Of course, Lee is not
binding precedent in this circuit, and to the extent that Lee holds that longevity and age can be
confounded, as the district court seems to have read it, the case appears to have stretched the
Supreme Court’s reasoning in Hazen Paper beyond its logical limits. In holding that an
employer could make employment decisions based on pension status, the Hazen Paper Court
relied on the fact that an employee’s pension status was analytically distinct from his age. As
the Court explained:
On average, an older employee has had more years in the work force than a
younger employee, and thus may well have accumulated more years of service
with a particular employer. Yet an employee’s age is analytically distinct from
his years of service. An employee who is younger than 40, and therefore
outside the class of older workers as defined by the ADEA . . . may have
worked for a particular employer his entire career, while an older worker may
have been newly hired. Because age and years of service are analytically
distinct, an employer can take account of one while ignoring the other, and thus
it is incorrect to say that a decision based on years of service is necessarily “age
based.”
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 15
Hazen Paper Co., 507 U.S. at 611. Lee, however, seems to suggest that age-based comments
by a decision maker can be ignored if those comments also invoke a concern about an
employee’s expected longevity with the company. That is not what Hazen Paper held.
In contrast, Hudson’s remarks in this case, taken in the light most favorable to the
plaintiff, disclose no analytical step between computing an employee’s potential longevity with
the company and his age. Instead, Hudson stated in essence that Aker’s succession plan was to
hire or retain younger workers at the expense of older workers because it was more likely that
the former would stay with the company longer than the latter. That reasoning suggests no
analytical path that strays from an age-based rationale. It certainly cannot be said to be
“analytically distinct” from age. Sharp therefore has offered evidence that Hudson used potential
longevity with the company as a proxy for age.
Aker also argues that Sharp acknowledged, and Hudson agreed, that Hudson’s comments
could apply to anyone because a younger individual could leave at any time. Assuming that is
true, potential longevity is no measuring stick at all. It simply becomes another way to “artfully”
say: “We’ve chosen the younger candidate because, well, he is younger.” That constitutes direct
evidence that age was the reason for terminating Sharp, and summary judgment in favor of Aker
should not have been granted.
D.
Aker also argues that it would have made the same decision to discharge Sharp absent
an impermissible motive because Sharp was an inferior performer compared to Kirkpatrick.
Perhaps, but the jury should decide that question. Although Aker has offered evidence that
supports its argument, a genuine issue of material fact exists as to whether Sharp was an inferior
employee. For instance, Aker argues that Sharp submitted nothing more than his subjective view
of his own qualifications. That misstates the record. Sharp offered two critical pieces of
evidence: Hudson’s and Ash’s letter of recommendation and the transcript of Hudson’s
conversation.
Hudson’s and Ash’s letter of recommendation states that Sharp “performed all the tasks
given him at a high level,” “ha[d] shown his ability to communicate with our client and his
peers,” and was “aware of details and [strove] for an error free construction project.” Although
not a glowing recommendation, it is enough to establish that Sharp was a competent worker.
No. 11-5419 Sharp v. Aker Plant Services Group, Inc. Page 16
But the most important piece of evidence on this point, once again, is the transcript of
Hudson’s conversation with Sharp. When discussing why Aker chose to fire Sharp and not
Kirkpatrick, Hudson stated:
[I]t’s not that your abilities all of a sudden ceased to exist, or got worse, or
anything like that, we just, I hate to keep repeating myself, but we’re all of the
same age and we’re all going to retire and I had an opportunity to bring the next
generation[] in, so that’s what we decided to do.
Although Hudson asserted that he framed his comments that way to avoid discussing Sharp’s
inferior performance to spare Sharp’s feelings, at the summary judgment stage the Court is
prohibited from making credibility judgments and weighing the evidence. Biegas, 573 F.3d at
374.
Aker also relies on Sharp’s performance evaluations to establish his inferior capabilities.
However, those performance evaluations were completed by Hudson, and the value of his
opinion is undermined by his comments ascribing his decision to Sharp’s age. Grano v. Dep’t
of Dev. of City of Columbus, 699 F.2d 836, 837 (6th Cir. 1983) (“Courts have frequently noted
that subjective evaluation processes intended to recognize merit provide ready mechanisms for
discrimination.”).
III.
We conclude that Sharp has offered direct evidence that, if believed by the jury, proves
that age was the reason Aker fired him. Certainly there are other explanations, but the true
reason for termination is a question that cannot be answered as a matter of law. Therefore,
summary judgment for the defendant is REVERSED, and the case is REMANDED for further
proceedings.