*3 (“Douthit”), the manufac- it head of DSEG’s SMITH, ; KING, Before JONES and turing Douthit that he be- division. testified Judges. Circuit gan by assessing RIF both the current staffing anticipated relation to levels JONES, Judge: EDITH H. Circuit ability product demand the relative adapt to satisfy Employment Opportunity employees Com- Equal DSEG (“EEOC”) changing technological rapidly court’s environment. appeals mission the district Instruments, Douthit to conclude summary judgment These led Texas assessments (“TI”) hourly em- lay TI should off its the merits EEOC’s that while Inc. seniority, manufacturing ployees in order of manufacturing supervisors claims that six independent- should be assessed discharged part company of a reduc- seniority. acknowledged ly Douthit age. tion in of their force because their seniority em- that the decision to consider asserts that a combination of favorable manufacturing supervisors ployee special the RIF of performance reviews and significant departure from TI’s traditional rated KPAs.2 rankings The KPA thus did favoring employees. policy senior provide TI with useful information con- cerning which employees cross-section of it abandoning protections Because of se- should retain. niority departure, pre- was such a Douthit Junkins, suggestion Jerry sented this Considering supervisor’s neither a seniori- TI, president Hayes, CEO and Hank ty KPA, nor his evaluation or president argued of DSEG. Douthit began process conducting difficult policy favoring that TI’s employees senior among RIF supervisors. its 45 Nine were impose significant would costs on the com- ultimately demoted; terminated and two were pany, supervisory staff was concentrated EEOC did not Furthermore, file suit on behalf of high pay grades. three of unwaver- ing seniority promised commitment to a re- who were over 40. Regarding *4 organized workforce that would not have the Supervisors represented by contemporary necessary skills to assimilate EEOC, TI contends that their terminations technologies.1 seniority preferences new If but, were not ages motivated their in- maintained, were the RIF would terminate stead, explained by can be legitimate, individ- disproportionate a employees number of summary ualized reasons. A brief of these college degrees, many with as senior em- reasons follows: ployees acquired had primarily their skills through experience. management TI con- Powell and Morrow: TI asserts curred with Douthit and decided to assess Morrow, Powell and manufacturing both su- manufacturing supervisors independently of pervisors at the Precision Automation Cen- seniority. goal decision, their The of this ter, discharged because their skills according management, provide to was to TI compared Billy were inferior when Wooley to expertise flexibility with the technical to (“Wooley”), a manufacturing third supervisor serve its current and future in an customers who was during retained the RIF. Lewis dynamic technological era of progress. Horn, head of the Precision Automation Cen- only Not TI did eschew reliance on seniori- ter, responsibilities decided consolidate the ty in RIF manufacturing supervi- of the single the three in position. sors, it also perfor- did not consider either Horn testified that he concluded that Powell mance company’s Key evaluations or the knowledge basic computer- (“KPAs”). Personal per- Assessments based programming numeric control and was formance in deciding evaluations did aid reluctant to learn manufacturing new tech- employees to terminate and which to nology. opined Horn also that Morrow retain because the evaluations were not de- requisite lacked the motivation and initiative signed among to make fine distinctions em- perform as supervisor; the sole Horn felt ployees or to comparatively; rate them with although supervisor Morrow was the exceptions, rare the evaluations clustered highest level, pay his ratings tightly group around the median. incommensurate with this level. Horn Likewise, KPAs, rejected top-to-bot- expect “would more grade out rankings employees tom of salaried in TIa responsibility than the he had.... department, [and because these assessments nor- expect would go] him to mally actively outside and employee’s rating correlated an with pay schedule; terms, responsibilities solicit[ ] his other highly just different besides paid employees invariably highly received production what he had with control.” argues employees 1. TI page that older at DSEG tend- assessment to oper- Douthit that TI’s future ed technological to have state-of-the-art ations demanded with enhanced ca- training, observing "supervisors that the older pabilities experimental design. statistics and on-the-job through who had learned their skill machinists, positions their former as found them- counter-intuitive, hardly 2. While this result is they kept selves dated skills unless with abreast suggests many who re- computer-based production of the new meth- high ceived actually per- marks on their KPAs Dial, manager ods.” Joe ing facility, site at a TI manufactur- deficiently. formed N concurred and concluded in a two-
H77 knowledge contrast, machining process; and possessed the techni- Wooley, by perform machine tools that the work. Rob- to function management skills cal as well as Anderson, reported, Rains testi- ert whom supervisor; effectively the consolidated as lacking in that Rains was all three areas fied Wooley kept excellent Horn observed seriously hampered ability and was clients, formulated customer with contact perform supervisor. Anderson rein- as a efficiently, had extensive proposals forced these criticisms an affidavit computer-based produc- knowledge of TI’s systems. inadequate knowledge Horn con- planning Because had an [Rains] tion knowledge machinery, and he had little Wooley the best candidate for sidered supervising as the the machine tools he was tech- position, he was retained consolidated repair. deficiencies are nicians to These supervisor: sole significant, part if a is not manu- because Billy Wooley outstanding employee anwas happens specification, occa- factured regarding quite knowledgeable who was supervisor sionally predictably, such but production planning computer-based fault must determine whether the Rains systems. were not as Powell and Morrow computer program, the ma- lies with the Additionally, proficient in these areas. chine, part. or the machine Rains’ skills good keeping close contact Wooley was experience were such that I could not customers, talented at formulat- *5 judgment regards in trust his these to the Thus, I deter- ing proposals. customer degree manufacturing su- same other shop in ... could mined that the work pervisors. by retaining Adrian best consolidated be Wooley laying off Powell and Mor- and and poor performance, his Rains Because of row. salary in failed to receive increase 1990. protested salary stagnation to Rains his it TI terminated Calhoun when Calhoun: who, personally investigating Douthit after Trinity facility, Cal- Mills where closed issue, perform concluded that Rains did employed.3 Much of the ma- had been houn par.4 testified that his below Douthit Trinity chinery machining and the work Gaylon I that conclusion was and what told to TI’s Lemmon Ave- Mills was transferred did, fact, performance prob- in have a he Trinity in facility Mills was closed nue when know, lem, you there was sufficient and Mills, October, Trinity had 1990. At Calhoun actually sleeping evidence that he had been shop charge in of the tool and was been job.... agreement our was on the So tools responsible for the fabrication of certain fix, go you going he was forth and employees. TI But the use other know, problems that had been work on the larger facility a much Avenue had Lemmon know, and, if you him see he laid out to already operation that was ade- shop tool know, correct, you some of the defi- could Because there were no va- quately staffed. him. pointed had been out to ciencies that positions in could serve cant which Calhoun super- “bumping” no of other TI and because super- employed as a Owens was Owens: policy, RIF permitted under TI’s visors was shop at the time at the Lewisville model visor he fired. was that he termi- layoff. of his TI contends was knowl- because of his lack of technical nated Rains, acknowledges that Rains: machining inadequate com- edge in and his from only manufacturing supervisor laid off Cooper, Mark Owens’s munication skills. Avenue, was terminated because Lemmon supervisor, former testified: performance. TI that a poor his demanded deficiency that he had primary was proficient in Owens’ supervisor such as Rains be machining knowl- and minimal technical computer programming, be- three areas: Further, lacking basic designed; edge. Owens was product computer cause the explained fact received the lowest During deposition, 4. Rains in 3. his Joe Dial manufacturing supervi- significantly any rating to close down or down- TI intended of the 45 operations in at least three TI facilities: size performance evaluation conducted sors on the Mills, Springs, Trinity and the North Colorado layoff. prior to the Building. provided by TI to whether and was found to be abrasive determine there ‘people skills’ personnel.... dealings statistically significant relationship with other was a be- deficiencies, Owens’ he was not age supervi- Because of tween and the likelihood that a manufacturing supervi- other Claudy as critical as In part, sor terminated. would be was, of business decline sors in a time discharged had calculated while TI therefore, laid off. manufacturing age 38.9% of the older, company 50 and had terminated it Hillis stated that terminated Hillis: TI age 7.4% of the under high skills and lacked tech inter- because he conducting After three alternative statistical employees. poorly with other Hillis acted Claudy concluded there tests sta- shop the model lost his when closed tistically significant relationship between Building and consolidated at the TI’s North discharge disadvantage supervi- to the McKinney sites. Peter Lewisville fifty. Claudy sors admitted that his over DSEG, Loughlin, manager in testified that analysis specific did not consider the talents he Hillis be considered manufacturing supervisors. duties of [supervisor] the North the weakest shop. employed Building model He suggestion addition the statistical changing ‘high rapidly tech’ environment. discrimination, urges the EEOC little motivation to learn the Hillis showed departure seniority from its traditional packages that were available on software protections ignore as well as its decision to I him some- computer_ considered performance evaluations and the KPAs facili- out, shunned, sought than rather one who policy tated TI’s RIF challenges. shortcoming Hillis’ chief such directed that the first to be dis- he manner interacted was the charged disciplinary pro- be would those on supervisors.... shift Hillis with the other bation, followed those who unsatisfac- not arrive in advance of his typically did evaluations, volunteers, tory finally, then *6 super- from shift the second shift to learn job criticality rankings. those with lower operations proceeding, if were visor how Supervisors None of the Six had been on required spe- any problems were ‘hot’ and disciplinary probation; none had received an cial attention. unsatisfactory previous rating perfor- on his technologically evaluation; that he is Hillis admits develop mance and TI did not regarded sophisticated and that he himself “criticality ranking” of the before machinist; primarily he testified at his RIF, implementing though its RIF policy the deposition “I’m not that educated. that all required a ranking. such The EEOC asserts machining, and that I’ve been around doesn’t departure that TI’s from its established RIF computers so forth.” Hil- interface with and procedures ignore previ- and its decision computer capabilities lis also his described ous formal evaluations of Although TI that “[z]ero.” concedes Hillis company constitute that the evidence inten- satisfactory employee, it was a concluded tionally against Super- discriminated expendable in the RIF.5 that he was ages. visors because of their argues response, In EEOC The further contends that EEOC three particularized by TI suggested rationales age-based by managers comments TI articu- merely for pretexts company’s discriminatory late the intent. “statistical, anecdotal, EEOC refers Blair, personnel Fred director but not a permit other evidence to circumstantial decisionmaker, explained to Rains when reasonable factfinder to conclude Rains was informed of his termination that ” discharge was a in the decisions.... factor just you’ve “it’s reached that years bridge you on of service we can The which the statistical remaining two compiled was Dr. John retirement.” comments EEOC relies G. Claudy (“Claudy”). analyzed allegedly directed Claudy data to Casimir Tencza els, required Loughlin perfor- Hillis’ the downturn business me to "[w]hile concluded that my designate performer group, permitted the weakest mance would have him remain em- ployed appropriate at was lev- Hillis." had business remained instance, in For his most discharged in technical duties. (“Tencza”), supervisor another review, performance Hillis received recent that he allegedly told Tencza was the RIF. ratings in evaluations of his superior make TI “had to part because laid off safety. quality, knowledge, and younger supervisors” for some room Importantly, age got him.” that “his terminations, four of the Six After their however, represented is not Tencza Powell, Rains and Supervisors Morrow, — against claim and has settled charges of discrimina- their Calhoun —filed statements, From these company. 21, 1991; on nei- with the EEOC June tion by TI discrimination imply EEOC seeks charges nor Hillis filed ther Owens employees. against its older directed noted, previously the EEOC agency. As Supervisors of the Six filed suit on behalf particu- questions the Finally, the EEOC 3,1993. fir- December by TI for suggested explanations larized summary of Supervisors. A brief ing the Six moved . TI answered the lawsuit and later agency’s criticisms contrasts the EEOC’s answer, amended for leave to file its first that of TI: position with seeking an affirmative defense that to add as untimely under the the EEOC’s claims were Morrow: The EEOC stresses Powell and of limitations. soon had outstand- relevant statute and Powell that both Morrow Further, summary judgment on that Mor- moved evaluations. ing performance skills, January, TI filed an addi- ground. while enjoyed technical row extensive summary judgment on the consistently generat- tional motion evaluated as Powell was district maintaining of the EEOC’s claims. The custom- merits profit for TI while ing a summary judgment on the granted court er satisfaction. TI’s motions for leave to merits but denied superior rat- received Calhoun: Calhoun summary judgment on limita- and for amend in the in his evaluations ings rulings appealed has tions. Each side Also, safety. knowledge” “job areas of unfavorable to it. technically compe- doubtlessly Calhoun Mills, super- and, Trinity tent while DISCUSSION machinery that was later vised some Lemmon Avenue when transferred to Review A. Standard of facility Trinity Mills closed. the dis court reviews de novo This Although EEOC concedes Rains: summary judgment, grant of trict court’s *7 discharged supervisor the sole Rains was in that criteria used employing the same evaluation, poor performance a who received Flint, Brown, v. Moore & court. Burfield interview, during exit that his it contends (5th Cir.1995). 583, Inc., 588 Sum Dial, super- of his assured one Rains was plead proper only “if the mary judgment is visors, “good performer.” that he had been a interrogatories, ings, depositions, answers to earlier, Further, alleged- Rains was as noted file, together with the and admissions age that ly told Blair that he had “reached genu affidavits, that is no any, if show there bridge you can years of service that we and any fact and that the as to material ine issue retirement.” a judgment moving party is entitled 56(c). Factual Fed.R.Civ.P. matter of law.” per- a favorable Owens received Owens: in the inferences are viewed questions and praised that his commu- evaluation formance Le light favorable to the nonmovant. most cooper- him and described as a nication skills 1268, Mfg. Corp., 18 F.3d melle v. Universal respected employee. In these and ative Cir.1994). (5th 1272 evaluations, fell below Owens never necessary performance” level “benchmark 56(e) moving requires the Although Rule satisfy job requirements. his genu of a the absence party to demonstrate fact, a dispute a about of material Contrary suggestion that ine issue to TI’s Hillis: only if the genuine evidence material fact is expertise, the EEOC Hillis lacked technical a jury could return that a reasonable indicated is such evaluations emphasizes See Celotex for the nonmovant. knowledge of his verdict thorough a that he had 1180 Catrett, 317, 323,
Corp.
banc,
v.
477 U.S.
Sitting
106 S.Ct.
en
recently
this court
2548, 2552,
(1986);
at 1355. case, prima [I]n tandem with a facie allowing rejection employ proffered often, er’s reasons perhaps will Demonstrating B. Pretext usually, permit finding of discrimination Thus, without additional jury evidence. acknowledges and the district court as- presented issue will be plaintiff and a can prima sumed that the EEOC established a summary judgment avoid judgment against facie case of discrimination a matter of law if the evidence taken as a Supervisors simply by showing they (1) whole creates a fact issue as to whether were over were discharged, while each employer’s stated reasons was younger supervisors payroll. remained on the actually what employer motivated the Houston, Meinecke v. H R Block & creates reasonable inference that (5th Cir.1995). F.3d TI utilized its was a determinative factor in the actions of opportunity through deposi- affidavits and plaintiff which the complains. The em explain legitimate, tions to nondiscrimi- course, ployer, of will be entitled to sum natory reasons for each employment adverse mary judgment if the evidence taken as a action. The burden then fell on EEOC to jury whole would not allow a to infer that genuine, raise a material fact issue that those the actual reason discharge were not the reasons real reasons and for discriminatory. pretexts Id. As the district court concluded that EEOC’s evi- Rhodes, added). 75 F.3d at (emphasis burden, discharge dence did not summary plaintiff Whatever evidence a tenders must judgment granted. The court held: employer’s rebut each of proffered ratio- nales: [t]he EEOC has failed to demonstrate a cases, instance, [I]n some the fact that genuine issue for trial legitimacy about the one of the nondiscriminatory reasons in nondiscriminatory given by *8 reasons proved record has highly ques- to be discharge TI for [Supervi- of the [S]ix may tionable not be sufficient to cast doubt sors. by The three theories set forth remaining Likewise, on the reasons. an which, argues, pretext EEOC it show a for employer’s explanation proffer for its of a age discrimination are sup- either not pretextual may preclude reason a finding
ported by the evidence or are not sound of discrimination. legally. The court genu- concludes that no ine issue of material fact exists on (citing Id. at 994 Woods v. Friction Materi- question als, TI (1st of whether Cir.1994)) intended to dis- 30 F.3d 261 n. 3 against supervisors.6 criminate (concluding jury that a age could not infer 6. The "three theories" to (3) which the district court procedures; follow its own RIF statistical referred involved the efforts age of the EEOC to evidence of discrimination. EEOC also con- pretext (1) through demonstrate age- veracity use of tested the of TI's reasons for each indi- comments; (2) related TI's conscious failure to vidual termination. discrimination). age-based for an In order reason was proffered if the discrimination discrimination). employer’s probative of an comment to be for though not pretext, fact intent, discriminatory it must be direct on the stan another wrinkle There is jury to unambiguous, allowing a reasonable In the evaluating discrimination. for dards presump any inferences or conclude without force, is itself a reduction context of age impermissible an factor tions that nondiseriminatory reason legitimate, employee. Bo to terminate the the decision employee quali is an discharge, the fact that Inc., 5 F.3d v. Industries denheimer PPG em less relevant —some for his fied Cir.1993). (5th 955, 958 compe go despite may to be let ployees have by Gas allegedly v. Lone Star made performance. Walther The statement tent however, If, Co., the older stray at 124. 952 F.2d Rains is a remark does Blair to terminated that he was employee shows bias. Blair’s statement not demonstrate qualified indi clearly concerning less Rains’s younger, simply recognized a fact favor exists. viduals, imply material fact issue genuine, seniority, which did not an observation Walther, discharge. 12B. seniority 952 F.2d at This was the reason is consistent
interpretation of
statement
allegedly
Pretext
in which it was
Evidence
the context
C. The EEOC’s
with
made,
duty
explain
termi
as Rains’s
Age-Based
Comments
See,
employees.
packages
nation benefit
age-related
on three
(statement
first relies
Guthrie,
at 378-79
941 F.2d
e.g.,
by
made
allegedly
comments
company suggested to his son
that founder of
discriminatory motivation.7
proof of TI’s
himself with
that he needed “to surround
Blair,
per-
a TI
Plaintiff Rains testified
age”
direct evidence of
people his
is not
director,
the decision to ter-
explained
(com
Turner,
sonnel
discrimination);
statement about TI’s need to make room for
114
U.S.
S.Ct.
This has observed that an off individuals years with more than 15 “disregard hiring system of its own seniority does not gaining approval without conclusively improper president itself establish that company.” Douthit lament- discrimination occurred or that a nondiscrim ed that the seniority economic costs of the inatory explanation pretextu policy for an action is were extreme since “the mix of [TI’s] Aldridge, al.” Risher v. grades 889 F.2d becoming more and more (5th Cir.1989); also, Lilly see Moore v. end, Eli & higher concentrated towards the Co., Cir.), denied, 990 F.2d cert. driving average pay our up, which was Moreover, the cases on which the EEOC relies Tencza like to be used do so because the discrim- distinguishable inatory because the remarks in those animus that motivated those comments discriminatory provides cases demonstrated intent circumstantial evidence of discriminato- plaintiff's case; ry final decisionmaker in both the particular any possible intent in the parly’s third cases. See Shattuck v. Kinetic Con- inference of discrimination this case is far Inc., (5th Cir.1995). cepts, weaker and more remote from the decisionmak- non-parties ing process. Courts allow statements about *10 imizing making efficiency expertise the of driving up, which was us the our cost marketplace.” not, competitive remaining in the Addi- employees does without a less tionally, seniority rule would TI to discrimination, force TI’s clear nexus to create an infer number displace disproportionate a of em- of ence degrees since ma-
ployees college “the with jority degree people had less than of [TI’s] TI’s Particularized Criticisms Rea- of high years percent- ... a of service while sons greater years than 15 of people of [had] already This court has the summarized degrees.” Instead this [but -of no] service by of advanced the EEOC TI’s criticisms protection seniority, of expensive, inflexible discharging the reasons for each of Six Su- policy Douthit which would favored RIF pervisors. Rather demonstrate the than on a merit basis ... as make “those decisions reasons, likely falsehood of those EEOC re- to, know, you a fixed set opposed of rules that had supervisors each of the com- sponds flexibility make [TI] that did not allow to petent performance evaluations and KPAs by dictated business con- decisions were employee by and was an considered effective ditions.” Critically, TI. EEOC’s criticisms rest Douthit a merit-based retention advocated perfor- information annual found TI’s president policy to of TI and the of the CEO KPAs, mance evaluations and its measures Douthit organization. the DSEG document- misleading guides are to the RIF deci- supervisors present of ed the concentration TI to sions had make. higher grades, the skills that TI most pay RIF, to in its and- senior needed retain rejected performance use of the employees discharged if who would be se- determining evaluations and KPAs after niority protections compa- were The waived. report provided neither informa worthwhile ny agreed modify poli- its traditional RIF to partic comparative tion about the worth of a cy part technology had “[b]ecause (“Leven”), employee. Stephen ular Leven seniority changed. high had people lot of [A] TI, President Human Resources Vice of grounded ... skill sets that were attested technology. 1960s and 1970s Products of the performance completed evaluations [t]he require going future to 1980s and 1990s annually for employees TI’s have tended to technology. employees] senior [Some quite be uniform. It was intended not or ... make the to could not transition majority employees that the of vast would technologies required those new skills.” ratings, receive similar Before TI undertook difficult task performers only exceptionally good poor or selecting employees during of terminate deviating purpose from this norm. RIF, company recognized its its making rating common to avoid this fine seniority protection traditional would ham among employees per- distinctions who result, per performance. As a after future forming pending no adequately when busi- identifying compa vital to the skills most directly on such rat- ness decisions turn rapidly ny’s ability adapt changing to a ings. environment, technological TI waived its se instance, per- For the 135 evaluations niority protections and laid1off manufacturing on a group formed of 45 su- might who have otherwise been retained be years preceding pervisors during the three seniority. cause their decision RIF, only gave a two evaluations sum- replace seniority policy impede that would mary rating group median.9 ability max to reduce its workforce while below attempt ratings management variance in of these individuals to 9. TI’s did not make fine perfor- management in the enable these as tool in distinctions between utilize Smith, expert making regarding mance Whit an wit- evaluations. decision retention TI, opined ness layoff any supervisor. With individual exception, manufacturing supervisor one each analysis perfor- [a]n of the 1988 manager fully forty-five manufacturing was rated meet- mance for the reviews his/her or, ing exceeding, require- enough that there is some cases reveals *11 First, performance of the agency Another drawback eval- general makes assertions they provide is that no useful in- supervisors uations that the competent employ were ees, regarding ability formation of an em- but it directly challenge does not TI’s adapt changing ployee technology. explanations individualized retaining for not that explained Supervisors. Leven agency Six The showed only that the qualified, were performance typi- the written evaluations they clearly that qualified better cally respect individual with than rate an to the currently performs, retained the RIF. or she but See he are Mary Walther, supra;10 respect to the value to TI see also silent with (5th 1089, 1096 Corp., ville Sales job they performing, are or the 27 F.3d usefulness n. 5 — Cir.1994), denied, -, applied opera- cert. of their skills future U.S. (1995). technology. Second, S.Ct. tions and L.Ed.2d 133 showing premised EEOC’s per on the tendency Given the these evaluations to KPAs, formance evaluations and data irrele performance employee ratings cluster Thus, vant to the RIF decisions. while some company’s their lack of focus on the future of TI’s criticisms of supervisors’ individual needs, technological legitimate TI had a busi- performances appear to be contradicted rely on ness basis not to the evaluations in ratings and comments on their annual conducting RIF. evaluations, the record demonstrates that the The KPAs were also deficient for TI’s RIF annual designed evaluations were not to com explained decisions. Leven pare or among employees, differentiate performed annually pro- KPA is [t]he critical management task for conducting a “top ranking exempt vides to bottom” Third, RIF. the EEOC has not offered organization, employees including in each proof logic to indict abandoning ei manufacturing operations, according to ther the performance KPAs of the evalua KPAs, perceived their value. The howev- tions. er, closely salary are tied determina- tions and reflect considerations addition performance. (4) Statistical Evidence Indeed, rankings the KPA simply were often finally The EEOC contends that its statis- TI; pay gradations reiterations of the at tical indicating tests signifi- was a greater pay, higher Also, the KPA. predictor cant layoff per- likelihood of they merely top-to-bottom because rank- genuine mit a pretext. inference of ings, provide the KPAs do not information summarily rejected district court this conten- proper mix spe- about the tion, reasoning rarely statistics will cialties that should be retained a RIF. As rebut an- employer’s particularized, legiti- explained Douthit deposition, it is “en- mate, nondiscriminatory reasons for the
tirely you conceivable could have some- employment adverse decision. body KPA, high you that would be on the know, good performer, may but reside in a The district court extensively relied on this category longer skill nowas or was not opinion court’s in Walther v. Lone Star Gas critical to the success of the business.” Co., (5th Cir.1992). 977 F.2d In sum, proof Walther, the EEOC’s fails to explained this court that statistical legitimate, undermine TI’s usually non-discriminato employer’s cannot rebut the ry, and individualized reasons for terminat nondiscriminatory articulated reasons. The ing Supervisors for several reasons. court observed that rating ments and plaintiff standards. This juiy 10. "... a can his case to a take consistently given manufacturing to each qualified evidence that he was better clearly than supervisor, even in those cases in which the younger employees who were retained." Walth few improvement need ... was er, identified citing Thornbrough F.2d v. Colum through manager's Managers comments. Co., bus & Greenville R. appear any supervisor to be reluctant to rate Cir.1985). expectations.... meeting added).
(emphasis States, *12 disparities resulting from tional Bd. Teamsters v. United 431 gross statistical of 324, 340, 1843, 1856-57, in force or similar evidence a reduction U.S. 97 52 S.Ct. intent, discriminatory (1977). of may probative be 396 L.Ed.2d might purpose. Such statistics motive provide adequate cir- unusual case an case, In the instant the statistical that an individual em- cumstantial evidence sup evidence offered EEOC does discharged part larger of a ployee was port an inference that TI’s reasons for termi layoffs targeting employ- pattern of older nating Supervisors merely pre say This is not to that such statistics ees. Importantly, expert, textual. Dr. Daniel valid, enough are to rebut a nondiscrimi- (“Hamermesh”), S. Hamermesh showed natory discharging ‘particular reason a for only statistically sig the EEOC’s results are not_ Generally, they are employee. subgroup nificant for a of over pretext, discriminatory hence [PJroof of of 50, although protected class includes all intent, by chal- statistics alone would be a employees years 40 over old. Hamermesh lenging endeavor. layoffs statistically found that the were not added)
Walther,
(emphasis
977 F.2d
162
significant
ages
for
40 and
between
45 and
(citations omitted). Other circuits have ex
52;
layoffs
statistically
those above
had a
skepticism
ability
pressed similar
about the
significant impact only
ages
through
for
46
employer’s
to rebut the
nondis
of statistics
Rains,
Supervisors, only
51. Of the Six
Ow-
See,
criminatory
e.g., LeBlanc v.
reasons.
ens,
subgroup
and Hillis fall in
(1st
Co.,
6 F.3d
848
Great American Ins.
statistically significant
a
result was deduced.
—
denied,
Cir.1993),
-,
114
cert.
U.S.
did not sue on behalf of
47 or
EEOC
49-
1398, 128
(noting that
S.Ct.
L.Ed.2d 72
year
old
who were laid off.
company’s
employment
“a
overall
statistics
specific
bearing
have little direct
on the
will
recognized, “particularly
As this court has
employer
dismissing
intentions
when
discrimination cases where innumera-
individual.”);
particular
GenCorp.,
Barnes v.
groupings
possible
ble
are
ac-
(6th
Inc.,
Cir.),
cert.
896 F.2d
cording
ages
and divisions within the
denied,
211, 112
111 S.Ct.
U.S.
structure,
corporate
easily
ma-
statistics
(1990) (when
the defendant of
L.Ed.2d
nipulated
may
deceptive.”
be
Walther
reasons,
particularized
fers
this “cannot be
Co.,
119, 124
v. Lone Star Gas
rebutted
reference
the statistics al
(5th
(5th
Cir.),
rehearing,
on
H87 force, showing discharged employ in that a when cumulated. See not do so alone does clearly qualified younger, better than Corp., 901 ee was Holmberg v. Baxter Healthcare Cir.1990) (“the necessary employees is retained create sum of F.2d genuine fact. issue material See EEOC nondiseriminatory episodes does four 1089, 1096 Corp., n. Manville Sales viewing the anymore than support case [a] (5th Cir.1994). agency’s separately”). The episodes four case, sum, quarrel confused I am not comfortable with the treatment company’s business decision —a merits majority opinion plaintiffs evi- plays the ADEA no role— quarrel which age-based But if dence of comments. even illegal age discrimination. with a case of probative accord comments we those some value, not, they independently or in do either OF LIMITATIONS
STATUTE conjunction with the other evidence case, than constitute more the scintilla re- July sought leave to amend its Boeing. ferred to expand plea of limitations as answer and *14 original answer an affirmative defense. non-willful ADEA viola-
asserted Later that month
tions were time-barred. court had ruled on the before the district
but amend, summary moved for
motion grounds that the EEOC’s
judgment on the day untimely.
claims were On same summary judg- granted TI
the district court claims, MERRIMAN, Plaintiff- of the EEOC’s Sandra J. ment on the merits Defendant, for leave Counter district court denied TI’s motion judg- summary to amend as moot and denied limitations. ment on Smith; Todd A. Law Offices of Charles cross-appeal this attempted TI has deni- Noteboom, Movants-Appellants M. summary judgment and the court’s re-
al of Even if fusal to rule on its motion amend. jurisdiction in- appellate have over these we COMPANY OF INSURANCE SECURITY orders, unnecessary to dis- terlocutory it is HARTFORD, Defendant-Counter complaint timeliness of EEOC’s be- cuss the Claimant-Appellee cause, lead, following we the district court’s alternatively on the merits. have ruled Elledge, Defendant. Connie
CONCLUSION No. 95-10991. reasons, foregoing district For summary judgment TI on award of court’s Appeals, United States Court brought claims the merits of the Fifth Circuit. EEOC is AFFIRMED. Dec. KING, Judge, specially concurring: Circuit judgment affirming
I concur
grant summary judgment for the defen- view, my there is insufficient evi-
dant. nondiseriminatory reasons
dence that layoffs
proffered TI for the at issue here layoffs to
were not the real reasons for those jury.
send the case to the majority panel
I do not understand that, holding
be the context of reduction