ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgment (doc. 11); Plaintiffs Response (doc. 14); and Defendant’s Reply (doc. 18). In addition, the Court held a hearing in this case on August 22, 2000 (doc. 19).
BACKGROUND
Plaintiff Rosa B. Brown brings this action against Defendant EG & G Mound Applied Technologies alleging that she was terminated from her employment in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. (hereafter “ADEA”) and Ohio’s state law counterpart, Ohio Rev.Code Ann. § 4112.02(N) (Anderson 2000) (doc. 1). Plaintiffs Complaint also alleges that Defendant’s actions constitute gender and race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (2000) and Ohio Rev.Code Ann. § 4112.02(A) (Anderson 2000) (Id.). Finally, the Complaint pleads claims for a breach of express or implied contract, promissory estoppel, and breach of public policy under Ohio law (Id.). In its Answer, Defendant denies Plaintiffs claims of discrimination, breach of contract, promissory estoppel, and wrongful discharge claims, asserting that the company rightfully terminated Plaintiffs employment for nondiscriminatory reasons and did not violate any express or implied contract claims (doc. 2).
Defendant is a corporation doing business in the State of Ohio (doc. 1). Plaintiff is a citizen of the State of Ohio (Id.). Jurisdiction of this case is proper pursuant to Title 28 U.S.C. § 1331 as this action arises under the laws of the United States. Jurisdiction of Plaintiffs state claims is proper pursuant to Title 28 U.S.C. § 1367(a) as the state claims are so related to the federal claims that they form part of the same case or controversy. See 28 U.S.C. § 1367(a) (2000). The following facts are drawn from the pleadings and documentary evidence in this case.
Plaintiff is an African-American female who was born August 20, 1943 (doc. 1). Plaintiff has been employed as a technician at the Mound Nuclear Energy Department (hereinafter “Mound facility”) for Defen
The Mound facility is a Department of Energy (“DOE”) site in Miamisburg, Ohio (doc. 14). Historically, the site was used for the production of nuclear weapons (doc. 11). In the late 1970s the Mound facility assumed responsibility for production of radioisotope thermoelectric ■ generators (hereinafter “RTGs”) (Id.). In October 1988, Defendant began its contract with the Department of Energy at the Mound facility in order to produce RTGs for the Cassini Mission, a project to send an unmanned space probe to the planet Saturn (doc. 14). In December 1994, when the weapons production budget was terminated at the site, the Mound facility converted to a safe shut-down mode to shift from weapons production to industrial production (Id., Morris Dep. at 9, Howell Dep. at 11). The site was to remain open, however, to continue on the Cassini Mission (Id.). Defendant contends that at this point DOE specifically instructed Defendant to begin closing the site (Id., Williams Dep. at 14).
According to Defendant; it began to anticipate layoffs and began evaluating which employees would have to be placed in an “unfunded” group (Id.). Employees were evaluated and ranked according to a performance matrix (Id.). Each employee was given points in a number of categories including productivity, ability to perform multiple jobs, and seniority (docs. 11 & 14).
In September 1996, Defendant offered a Voluntary Separation Payment Program (hereinafter “VSPP”) as an incentive for employees to leave their employment (doc. 11). In late 1996, a set of matrices was completed, and numerous employees were identified as unfunded and were placed in a “resource pool.” (docs. 11 & 14). Once the employees were identified as unfunded, Defendant contends that it began looking for funded positions for which the employees were qualified (doc. 11). There were discussions at Defendant’s daily meetings throughout the reductions in force period about minority over-representation in the “resource pool” (docs. 1 & 14, Higgins dep. at 30-32).
At the time that the matrices were prepared, there were three employees working under Plaintiffs supervisor, Mr. Howell (doc. 11). In addition to Plaintiff, David Kirk and Donna Wells worked under Mr. Howell (docs. 11 & 14). In September 1996, Mr. Kirk accepted the VSPP and left the company (Id., Howell dep. at 46). After Mr. Kirk left, Ms. Wells picked up some of his cleaning responsibilities (Id., Howell dep. at 39-40). Ms. Wells is a Caucasian female born August 14, 1948, and has worked at the Mound facility since 1977 (doc. 14, Wells dep. at 6-8). According to Defendant, Plaintiff received the lowest matrix score of these three individuals and accordingly her position was determined to be. unfunded (doc. 11). Defendant contends that on or about March 5, 1997, Plaintiff left a voice mail message for Mr. Howell in which she stated that she was not interested in another job and would take the VSSP (Id., Plaintiffs dep. at 37-38).. Defendant maintains that in spite of Plaintiffs request, it proceeded to consider Plaintiff for other funded positions (Id.). According to Defendant, no position was found (Id, Howell dep. at 126-27, Peterson dep. at 63). Plaintiff was laid off from her position on March 26, 1997 (Id, Morris dep. at 42, Plaintiffs dep. at 20). 'Ms. Wells currently performs Plaintiffs former duties (doc. 14, Wells dep. at 6).
It is Plaintiffs assertion that she helped train Ms. Wells in many of the duties Ms. Wells later performed (doc. 14, Wells dep. at 39-40). Plaintiff asserts that she, like Ms. Wells was capable of performing material control duties
(Id,
Wells dep. at 29). Plaintiff also contends that unlike Ms. Wells, she was not considered for laser
Plaintiff recalls being told by Defendant that the Cassini Mission would be completed in 2005 (Id., Brown Dep. at 98). Plaintiff contends that she was given the impression that Defendant had adequate funding to support its employees through that date (doc. 14, Brown Dep. at 22).
This action was instituted on February 3, 1999 (doc. 1). Defendant filed a Motion for Summary Judgment (doc. 11); Plaintiff filed a Response (doc. 14); and Defendant filed a Reply (doc. 18).
STANDARD OF REVIEW
The narrow question that we must decide on a motion for summary judgment is whether there exists a “genuine issue as to any material fact and [whether] the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Supreme Court elaborated upon the appropriate standard in deciding a motion for summary judgment as follows:
[T]he plain language of Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett,
The moving party bears the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant’s case.
Id.
at 321,
As the Supreme Court stated in
Celotex,
the non-moving party must “designate” specific facts showing there is a genuine issue for trial.
Celotex, 477
U.S. at 324,
Summary judgment is not appropriate if the evidence is such that a reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc.,
DISCUSSION
The Parties’ briefs analyze the age, gender and race discrimination claims together. Because these claims involve similar elements, the Court will also analyze them together.
[i]t shall be unlawful for an employer to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.
Id. Title VII of the Civil Rights Act of 1964 declares that:
It shall be an unlawful employment practice for an employer ... (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin
42 U.S.C. § 2000e-2 (2000).
Federal courts analyze race, gender, and age discrimination claims under the shifting burden framework of
McDonnell Douglas Corp. v. Green,
Initially, if a plaintiff lacks direct evidence of discrimination, a plaintiff must establish a
pringa facie
case of race or gender discrimination claim pursuant to Title 42 U.S.C. § 2000e by showing by a preponderance of the evidence that: (1) she was a member of a protected class; (2) she was discharged; (3) she was qualified for the position; and (4) she was replaced by a person outside the class.
See Mitchell v. Toledo Hospital,
This framework has been modified somewhat in the case of age discrimination claims.
See O’Connor v. Consolidated Coin Caterers Corp.,
All of these tests are also modified, somewhat, in the case of a work-force reduction. A company engages in a workforce reduction when business decisions cause it to eliminate the total number of positions.
See Barnes v. GenCorp, Inc.,
To make a
prima facie
age or race discrimination claim in a reduction in force situation, the plaintiff must put forward, in addition to the respective first three elements, “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.”
Barnes,
Once a plaintiff has made a
prima facie
case, the burden switches to the defendant to articulate some legitimate, nondiserimi-natory reason for the decision.
See McDonnell Douglas Corp. v. Green,
In analyzing Plaintiffs claims, we look first to whether Plaintiff has produced enough evidence to make out a
prima facie
case of discrimination. This is not intended to be an onerous burden on the Plaintiff.
See Burdine,
For her argument, Plaintiff asserts that a substantially younger, less-qualified, Caucasian employee was retained by Defendant (doc. 14). Donna Wells took over the duties of Plaintiff when Plaintiff was terminated (Id., Wells dep. at 12). Ms. Wells is five years younger than Plaintiff (Id., Wells Dep. at 6). Plaintiff asserts that Plaintiff has training that Ms. Wells lacks and has more experience in mulliwatt generator work (Id., Hairston dep. at 37-38). In addition, Plaintiff trained Ms. Wells to perform certain duties (Id., Howell dep. at 105-106; Wells dep. at 20-21). Plaintiff contends that this evidence creates a question of fact as to whether a less qualified member of a non-protected class was retained over Plaintiff (Id.). Defendant maintains that this evidence is insufficient to create a presumption of discrimination (doc. 11).
The Court agrees that this evidence is insufficient to create an inference of dis
Plaintiff next asserts that she has satisfied her burden by presenting additional evidence that she was treated differently than comparable employees outside of the protected class (doc. 14) 1 . In support of her proposition, Plaintiff offers evidence consisting of an analysis of the employees retained as well as those terminated on March 26, 1997.
According to Plaintiff, of the 17 employees considered unfunded on March 26, 1997, ten were retained (doc. 14). Two of the seven employees terminated were African American females over the age of 40 (Id., Morris Ex. 5). Seven of the ten employees retained were Caucasian (Id.). Plaintiff then goes outside the unfunded group to point out that several Caucasian women were retained over Plaintiff even though their matrix scores were lower than Plaintiffs, including Donna Wells, Sue Brindle and Pat Stidham (Id.). Next Plaintiff notes that six of the retained employees were males, including three Caucasian men who were retained despite lower matrix scores (Id., Bonelli Ex. 1, Howell Ex. 1). Finally, Plaintiff notes that all of the terminated employees had reached the age of 40, while three of the ten retained employees were not within the protected age class. Plaintiff concludes from these statistics that Plaintiff was treated differently than comparable non-protected employees (Id.).
Defendant maintains that these statistics do not establish a
prima facie
case of discrimination for several reasons. First, Defendant asserts that these statistics are from an insufficient sample to have any statistical meaning (doc. 18)
See Simpson v. Midland-Ross Corp.,
Defendant offers evidence from its February 26, 1997 layoff to supplement the statistics presented by Plaintiff (doc. 18 at 15). In February 1997 there were sixteen employees in the resource pool labeled for termination
(Id.).
All sixteen of these employees were terminated
(Id.)
Only one of these employees was a member of a protected class
(Id.).
At the end of March 1997 there had been thirty-three employees who were considered unfunded, six of whom were members of a racial minority or 18%. Of the total number of employees terminated in the February and March 1997 layoffs, three were members of a racial minority. This equates to 13%. This is exactly the percentage of minorities
Statistical proof, if unrebutted, can demonstrate that a defendant has engaged in a pattern of impermissible conduct toward a protected class as a group.
See Barnes,
does not differ greatly from other types . of proof.... Statistics gain relevance in one of two ways: the statistics, standing alone, reasonably lead to a particular conclusion validated by human existence, or comparative statistics point out discrepancies in behavior that would cause the average person to scrutinize the employer’s motives.
Id. at 944. In particular, statistical evidence must be derived from a sufficient sample size to demonstrate an inference of discrimination See Id.
Even assuming the statistics the Plaintiff produced are accurate, they still do not meet the fourth requirement for establishing a
prima facie
case for discrimination based on age, sex, or race for two reasons. .As an initial matter, we doubt that the statistical evidence put forward is based on a sufficient sample to have any probative value.
See Simpson,
Furthermore, even if the sample size were sufficient, the statistics are inconclusive at best. The total percentage of minorities working for Defendant is 13% (doc. 18). Plaintiff has not articulated to the Court the significance of any of the statistics presented. Plaintiff has failed to present to the Court any analysis of these numbers demonstrating how they establish evidence of discrimination. In particular, Plaintiff has failed to demonstrate -what statistics would be expected for an employer of Defendant’s size. Instead, Plaintiff relies on the Court to determine the significance of ■ the numbers presented to it. For all of the claims presented, Plaintiff has failed to present evidence of any methodology used in her analysis. Plaintiff has only provided a “snapshot” of Defendant’s demographics. While this might be more persuasive if the statistics were more egregious, it is insufficient to carry Plaintiffs burden of production. As explained earlier, with the use of a larger sample size, the statistics are certainly more favorable to the Defendant. .
Having reviewed this matter and the facts presented by the Parties, the Court finds that the statistics cited are from an insufficient sample to be probative of Plaintiffs cáse. Plaintiff has failed to show any additional evidence of race, gender, or age discrimination in order to establish a prima facie case. The Court determines that Plaintiff has presented insufficient evidence to carry her burden for her discrimination claim.
Nonetheless, even assuming that Plaintiff can make a prima facie case, summary judgment is still proper because Defendant has established a legitimate, nondiscriminatory reason for Plaintiffs termination. Defendant asserts that this termination was the result of a legitimate, nondiscriminatory reduction in force (doc. 11). According to Defendant, employees were assigned points in several categories including:
1)performance on specific tasks and responsibilities assigned to the individual; 2) knowledge of performance towardmeeting overall programmatic goals; 3) productivity; 4) team contribution; 5) performance rating from previous evaluation; 6) seniority; and 7) additional consideration for contributions outside the Testing area
(doc. 14; Howell dep. Ex. 1). Defendant contends that Plaintiff was one of three employees under the supervision of Mr. Howell, Plaintiffs supervisor (Id.). Defendant also asserts that since Plaintiff was the lowest ranking member of the group, her position was deemed unfunded and she was ultimately terminated (Id.). Plaintiff does not dispute that this procedure took place, but instead contends that the procedure itself was subjective and allowed Defendant to use it as a pretext for discrimination (doc. 11).
The Court finds that Defendant has met its burden in establishing a valid non-discriminatory reason for Plaintiffs discharge. Plaintiff has put forth* no proof of deficiencies in the procedure used by Defendant. Plaintiff instead relies on the flexibility that managers have in evaluating various components of the matrix combined with her statistics to argue that the procedure was a pretext for discrimination. The Court finds this unpersuasive. The Court concludes that the Defendant has met its burden of articulating a legitimate, non-discriminatory reason for Plaintiffs discharge.
This does not end our analysis, however. Plaintiff now has the opportunity to demonstrate that this proffered reason is not the actual reason for the discharge, but is a pretext for discrimination. Plaintiff may do this in one of three ways.
See Manzer v. Diamond Shamrock Chem. Co.,
Plaintiff presents arguments under each of these categories. First, Plaintiff asserts that the proffered reason has no basis in fact (doc. 14). In support of this proposition, Plaintiff maintains that Plaintiff was more experienced in certain duties than Ms. Wells, who was not terminated. Plaintiff asserts that the method used to evaluate employees for the resource pool was subjective (Id., Hairston dep. at 36-37). According to Plaintiff, because Defendant has not proffered any objective reasons for Plaintiffs lower matrix score, the scores were used as a pretext for discrimination (Id.). Plaintiff also asserts that Defendant knew that minorities were over represented in the resource pool (doc. 14 at 16). Defendant does not dispute this fact, but asserts that it is irrelevant (doc. 18). Defendant maintains that its discussions add nothing in terms of evidence of pretext.
We agree. The fact that Defendant had discussions about possible over representation in the resource pool does not establish that it was intentionally conducting discriminatory firing. In addition, the fact that Plaintiff has offered some evidence of skills she possessed that Ms. Wells did not, does not demonstrate pretext. Plaintiff has offered no proof that these were the skills that Defendant would find useful in the future. Plaintiff has also failed to demonstrate that the matrix score was inaccurate in the skills and attributes that it did measure. Plaintiff also offers no evidence suggesting that the evaluation matrix used by the Defendants was invalid, other than to suggest that some of its component measurements were susceptible to subjective determinations. Plaintiff faults the employee matrix used by Defendant as “subjective”, however, she offers no evidence indicating that this subjectivity was used as a pretext for discrimination. The fact that individual managers had flexibility in determining individual components of a matrix score, does not indicate discrimination.. Accordingly, the Court finds that Plaintiff has not overcome Defendant’s articulated reason for the discharge and has accordingly failed to demonstrate a pretext for discrimination.
We agree that Plaintiff has offered no evidence that these employees were similarly situated to Plaintiff. The only evidence presented by the Plaintiff is that these employees were comparable is that they were all labeled technician. Plaintiff has put forth no evidence describing the job duties, qualifications or skills of these other employees. For these reasons, the Court finds that Plaintiff has failed to carry her ultimate burden of persuasion regarding Defendant’s proffered reason for Plaintiffs termination.
The Court finds that there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. Having reviewed this matter, the Court concludes that the Plaintiff has failed to demonstrate a prima, facie case of race, gender or age discrimination. In addition, Defendant has articulated a legitimate, non-discriminatory reason for the termination and Plaintiff has been unable to demonstrate that this proffered reason is a pretext for impermissible discrimination.
Accordingly, the Court hereby GRANTS Defendant’s Motion for Summary Judgment (doc. 11). Plaintiffs federal claims are hereby DISMISSED WITH PREJUDICE. The Court will not retain jurisdiction of Plaintiffs pendant state-law claims. Therefore, Plaintiffs pendant state law claims are hereby DISMISSED WITHOUT PREJUDICE. Accordingly, the Final Pretrial Conference scheduled for November 2, 2000, is hereby VACATED.
SO ORDERED.
Notes
. Plaintiff relies on
Ercegovich v. Goodyear Tire & Rubber Co.,