OPINION AND ORDER
Plaintiff Lawrence W. Weller (Weller), a former employee of Defendant Titanium Metals (Timet) in Toronto, Jefferson County, Ohio, originally brought this action in the Common Pleas Court of that county against Timet and three of its supervisory employees. Weller alleged that his employment was wrongfully terminated in June 2001 in violation of rights under Ohio statutory law (Counts I and II), public policy (Count III), and representations that induced him to leave his prior employment (Count IV)- Comp., Doc. 1, Attch. The case was first removed to federal court on diversity grounds in October 2001 in Case No. C2-01-1007, but remanded by a different branch of the Court in that case on grounds that complete diversity was lacking.
The case was again removed to this Court in March 2002 on grounds that discovery had disclosed certain defendants were improperly joined and, consequently, there indeed loas complete diversity of the parties justifying the removal. Notice of Removal, Doc. 1. Propriety of that removal has since been confirmed by Order of the Court, Sept. 30, 2002, adopting the Report and Recommendations of the Magistrate *714 Judge denying the further Motion to Remand based findings that Plaintiff has no colorable claim against Defendants Blosser and Pieron. Doc. 25. Plaintiffs claim under Count IV has since been withdrawn (Pltfs. Res. to MSJ, Doc. 32, pp. 1-2) so that the case remained before the Court on Counts I, II, and III of the Complaint, primarily against Defendants Timet and Kearns. 1
In an Order of Certification (Doc. 36) and an Opinion and Order (Doc. 37), both filed February 28, 2003, this Court certified a question of state law to the Ohio Supreme Court under its Rule XVIII and ordered further consideration of Defendants’ Motion for Summary Judgment (Doc. 26) held in abeyance pending a response from that court. When the Ohio Supreme Court accepted the question for review, this Court, for administrative purposes, ordered the summary judgment motion dismissed without prejudice, subject to reactivation upon notice that an answer to the question had been announced. Doc. 40, 9-15-03. Upon notice filed by Defendants’ counsel (Doc. 41) that the Ohio Supreme Court had answered the question certified, this Court ordered the Defendants’ Motion for Summary Judgment reactivated (Doc. 42), and the case is now before the Court for further consideration of that motion.
This Court’s certified question in effect sought guidance from the Ohio Supreme Court whether indirect proof of age discrimination under Ohio law required that a plaintiff show he or she had been replaced by a person not in the age class protected by the law (as indicated by the syllabus in
Barker v. Scovill, Inc.,
In his notice of the Ohio Supreme Court’s answer to the certified question, counsel for Defendants correctly points out that his motion for summary judgment, which is now again before the Court, “asserted other, independent bases” for their argument that the motion should be granted. Doc. 41, p. 3. The Court therefore will proceed to consideration of the remainder of Defendants’ motion together with Plaintiffs response, Defendants’ reply, and various depositions, affidavits, and other documentary materials now on file in the record.
*715 The procedure for considering whether summary -judgment is appropriate is set forth in Federal Rule of Civil Procedure 56(c) as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
In ruling on such a motion, the evidence must be viewed in the light most favorable to the nonmoving party.
Adickes v. Kress & Co.,
In the
Street
opinion, the Sixth Circuit sets out a number of further principles now applicable to summary judgment practice, including the following. In responding to a summary judgment motion, the nonmoving party “cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must ‘present affirmative evidence in order to defeat a properly supported motion for summary judgment.’ ”
Ibid.
(quoting
Liberty Lobby, 477
U.S. at 257,
In this diversity case, this Court applies the substantive law of the State of Ohio as interpreted by its highest court. See
Northland Ins. Co. v. Guardsman Products, Inc.,
Plaintiffs first and second claims for relief (Counts I and II) are based on alleged age discrimination in violation of
*716
Chapter 4112 of the Ohio Revised Code (ORC).
3
Under ORC Chapter 4112, it is unlawful for an employer to discharge without just cause or otherwise discriminate against an employee with respect to any matter related to employment because of age. See ORC § 4112.02(A). Further, an employer cannot discriminate against or discharge without just cause an employee “aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job.” ORC § 4112.14(A). In interpreting and deciding age discrimination claims brought under §§ 4112.02 and 4112.14, the Ohio Supreme Court generally follows the analytic framework established by federal case law for use under Title VII and the Age Discrimination in Employment Act (ADEA). See
Mauzy v. Kelly Services, Inc.,
The ultimate issue under ORC § 4112.02 is whether age was a determining factor in a termination. Absent direct evidence of age discrimination, proof of discriminatory intent is subject to a burden-shifting analysis established by the United States Supreme Court in
McDonnell Douglas Corp. v. Green,
As explained in the Court’s earlier Opinion and Order, the following facts of this case are not in dispute. In April 1997, Plaintiff Weller applied to work at Defendant Timet’s plant in Toronto, Ohio. In May, he was hired as Manager of Laboratory, Nondestructive Testing and Inspection at that location. This position involved managing the laboratory and supervising employees who tested Timet products to ensure that they met customer and internal requirements, as well as *717 requiring Plaintiff to arrange subcontracting or outsourcing of various laboratory tests that could not be completed internally. (Weller Dep. at 61-64)
In June of 1999, Plaintiff was promoted and his title changed to Manager of Laboratory, Nondestructive Testing and Quality Assurance. In this new capacity, Plaintiffs responsibilities expanded to include those of another employee who was moving to a different position. (Weller Dep. at 97). In addition to his former responsibilities, Plaintiff began managing the quality assurance function which included responsibility for the group that certified product to current specifications. (Weller Dep. at 98-99.) Accordingly, Plaintiffs promotion effectively made him responsible for work that previously had been assigned to two managers. Plaintiff delegated about seventy-five percent of the quality assurance duties to the Quality Assurance Supervisor, Nick Kaschak. (Weller Dep. at ISO-31)
In January 2000, Plaintiff received an annual performance review during which he received a set of written goals for the measurement of his year 2000 performance. (Weller Dep. at 140-41, Ex. 4) In April 2000, Defendant Michael Kerns, Vice President of Quality and Technology, became Plaintiffs immediate, direct-line supervisor. (Weller Dep. at 207) On June 21, 2000, Kearns gave Plaintiff a second, additional set of performance goals for 2000. (Weller Dep. at 220-21; Kearns Dep. I, pp. 176-78, Ex. 14).
By the time of his performance evaluation in January 2001, Plaintiff had not met all of the performance goals established by Kearns in late June, 2000. (Weller Dep. at 221-40, Ex. 15; Kearns Dep. I at 178) Based on his own observations and reports from other employees, Kearns gave Plaintiff a performance evaluation that included both “fully proficient” and “needs improvement” ratings. Plaintiff disagreed with the evaluation and presented a detailed response to the appraisal, contending that he had been measured for the entire year against goals that had been set in July. Further, Plaintiff contended that he was doing the work of two managerial employees without sufficient resources. (Weller Dep. at 253, Ex. 15) Plaintiff was given new and specific performance goals and was informed that he would be evaluated after the first quarter in 2001. (Weller Dep. at 242-43.)
Soon after he arrived, in the second quarter of 2000, Kearns had decided to fill a position of Quality and Technology Manager at a level between himself and Plaintiff Weller, which position had not previously existed at the Toronto plant. (Kearns Dep. II at 41, 43^47) In the spring of 2001, Mike Volas, age 47, whose general resume’ had been forwarded to Toronto by a friend working at another Timet plant, was contacted by Kearns and then interviewed in Toronto at the end of April for the Quality and Technology Manager position. (Volas Dep. at 6-8, 10-12). Volas had a Bachelor’s Degree in metallurgical engineering from the University of Michigan and a Masters Degree in business administration from the University of Phoenix. He had worked since 1975 in the gas turbine and titanium metals industries, currently as Manager of Research and Development for Allvac, a titanium producer in North Carolina. (Volas Dep. at. 5-8) Volas accepted the position formally offered in Timet’s letter dated April 30, 2001, and started work five weeks later on June 12. (Volas Dep. at 16-17, Ex. 43)
On May 11, 2001, Kearns conducted an evaluation of Weller’s progress on 2001 goals. (Kearns I Dep., Ex. 17) Plaintiff had admittedly failed to meet a number of the goals and deadlines established for him following his January 2001 performance evaluation. Kearns concluded that Plain *718 tiffs work performance needed “significant improvement.” (Pltfs. Res. to MSJ, Doc. 32, Ex. 13) In response, Plaintiff reiterated the same concerns that he had raised during his January 2001 appraisal and also asserted that he had expected to obtain some relief as a result of the hiring of the Quality and Technology Manager, which he had been advised would not happen right away. (Pltfs. Res. to MSJ, Doc. 32, Ex. 10; Weller Dep. at 144.)
Sometime “[i]n the April-May time frame” of 2001, Greg Judy, age 40, also applied in response to an internet ad, and was interviewed by Kearns, for the position of Quality and Technology Manager. (Judy Dep. at 7, 11-12, 14; Weller Dep. at 43-45) Judy had graduated from high school and attended some college; but did not have a degree. (Judy Dep. at 8-9) However, he had more than 20 years technical, testing, and marketing experience with various employers, including as Corporate Quality Engineer/Laboratory Engineer with RMI Titanium Company from 1992 to 1997 (Judy Dep., Ex. 40). He had previously applied at Timet in January of 2000 for the position of Laboratory Manager, but had withdrawn to take a position elsewhere instead. (Judy Dep. at 10-11)
Judy was not offered the Quality and Technology Manager position because of the hiring of Mike Volas (Judy Dep at 14), but apparently sometime between May 11, 2001 and June 1, 2001, Kearns called to offer the position of Laboratory Manager. 5 Judy received a written offer of employment confirming previous communications, by e-mail dated June 1, 2001 (Id., Ex. 41), which he then accepted June 11, 2001. (Id., Ex. 42) This position, which included part of Plaintiffs responsibilities, was never advertised or posted as vacant, and Timet neither took applications for it nor conducted any interviews. (Judy Dep. at 20; Pltfs. Res. to MSJ, Doc. 32, Ex. 14.) Judy began work on July 9, 2001. (Judy Dep. at 24, Ex. 42)
On June 29, 2001, Plaintiff was advised that his employment had been terminated based on a review of his skills and recent performance. Timet letter to Weller, 6-29-01, Blosser Depo. Ex. 33. Plaintiff was 60 years old when he was terminated. He holds a Bachelor of Science degree with minors in Chemistry and Physics from The Ohio State University and a Bachelor of Engineering degree from Youngstown State University. He came to Timet with “manufacturing, engineering and management expertise and experience in the forging and metals industries [including] with titanium.” Pltfs. Res. to MSJ, Doc. 32, Exs. 1, 2.
On essentially these facts, Defendant continues to assert that “(1) Plaintiff still cannot establish a prima facie case of age discrimination because he cannot show that he was qualified for his position.” Defs’ Notice, Doc. 41, p. 3. This Court does not agree. Ruling on summary judgment granted in a factually similar case of alleged age discrimination under Ohio law, our circuit found that the plaintiff had established a prima facie case, based on the following reasoning:
.... [T]he plaintiffs burden at “step one” is relatively light under the McDonnell Douglas/Burdine paradigm. See Barker v. Scovill, Inc.,6 Ohio St.3d 146 ,451 N.E.2d 807 (1983); Cline v. Catholic Diocese of Toledo,206 F.3d 651 , 660 (6th Cir.2000). In Cline we cautioned that district courts must not use the “qualified” element of the prima fa-cie case to heighten the plaintiffs initial burden. In an effort to ensure that the first two stages of the McDonnell Doug *719 las inquiry remain analytically distinct, and that a plaintiffs initial burden not be too onerous, we held that the “qualified” prong of the prima facie case must be evaluated in light of the plaintiffs employment record “prior to the onset of the events that the employer cites as its reason” for its decision.206 F.3d 651 , 662-63. We further instructed that the legitimate non-discriminatory reason offered by the employer at the second stage of the McDonnell Douglas inquiry may not be considered in determining whether the employee has produced sufficient evidence to establish a prima fa-cie case. Id. at 660-1.
Peters v. Lincoln Electric Co.,
Applying this law to the facts presented here, this Court concludes that Plaintiff Weller has met the requirements of step one of the McDonnell Douglas test by offering evidence that 1) he was a member of a class protected under the Ohio statute, 2) he was subject to an adverse employment action, 3) he was arguably qualified for the position from which he was removed, and 4) Defendant Timet replaced him in that position with two persons whom a jury might find were “substantially younger.”
As required by Mauzy and McDonnell Douglas where such a pri-ma facie ease is thus presented, Defendants here have articulated a legitimate, nondiscriminatory reason for Plaintiffs discharge — “continued poor work performance” 6 as evidenced by his latest evaluations by Defendant Kearns — about which the Defendants claim there is no genuine dispute “because Plaintiff cannot show [this] explanation for his discharge was pretextual.” Defs.’ MSJ Memo., Doc. 26, p. 15.
Pretext can be established by (1) a direct evidentiary showing that a discriminatory reason more likely motivated the employer or by (2) an indirect evidentiary showing that the employer’s explanation is not credible. Carney v. Cleveland Heights-University Heights Sch. Dist.,143 Ohio App.3d 415 , 428,758 N.E.2d 234 , 245 (2001). However, “[m]ere conjecture that [the] employer’s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.” Carney,758 N.E.2d at 245 .
Peters at 470. In this case, Plaintiff concedes that “there is no direct evidence of age discrimination” Pltfs. Res. to MSJ, Doc. 32, p. 13. Thus, Plaintiff must rely on some type of “indirect evidentiary showing” that Timet’s explanation is not credible, i.e., that it is “a pretext for intentional discrimination.”
In
Reeves v. Sanderson Plumbing Products, Inc.,
.... There we held that the factfinder’s rejection of the employer’s legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff.509 U.S. at 511 ,113 S.Ct. 2742 . The ultimate question is whether the employer intentionally discriminated, and proof that “the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiffs proffered reason ... is correct.” Id., at 524,113 S.Ct. 2742 . In other words, “[i]t is not enough ... to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.” Id. at 519,113 S.Ct. 2742 ,
Reeves
at 146-47,
The Sixth Circuit’s Peters opinion, cited above, further analyses application of McDonnell Douglas under Ohio’s age discrimination law in light of the Supreme Court’s Reeves opinion.
We recently revisited the question of what is a discrimination plaintiffs evi-dentiary burden at the pretext stage in light of Reeves in Gray v. Toshiba Am. Consumer Prod.,263 F.3d 595 (6th Cir.2001), and concluded in that case that Reeves bolstered the rebuttal framework we established in Manzer v. Diamond Shamrock Chem. Co.,29 F.3d 1078 , 1081 (6th Cir.1994). In Gray we stated:
This circuit ... has held that “[t]he jury may not reject an employer’s explanation [of its action] unless there is sufficient basis in the evidence for doing so.” Manzer,29 F.3d at 1083 (emphasis in original).
To make a submissible case on the credibility of his employer’s explanation, the plaintiff is required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge.
Id. at 1084 (internal quotations and emphasis omitted). The first type of rebuttal, we said, consists of evidence that the reasons given by the employer simply did not happen. Id. The third type, “ordinarily consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the *721 employer contends motivated its discharge of the plaintiff.” Id. The first and third types of rebuttals, we held, “are direct attacks on the credibility of the employer’s proffered motivation for firing the plaintiff, and if shown, provide an evidentiary basis for what the Supreme Court has termed a ‘suspicion of mendacity.’ ” Id.
Peters at 471-72 (quoting Gray, in turn quoting from Manzer).
In this case, as noted above, the Defendants have articulated a non-diseriminato-ry reason for terminating Plaintiff, specifically, “a review of your skills and recent performance [which] indicates that a position with TIMET will no longer be available for you.” Timet letter to Weller, 6-29-01, Blosser Depo. Ex. 33. An “ongoing effort directed at improving the organization’s ability to respond to customer needs and implement rapid and sustained continuous improvement” is also referred to. Ibid. The record indicates, and Plaintiff does not dispute, that he did receive the less than “fully proficient” employee performance evaluation from Defendant Kearns for the year 2000 (Kearns Depo. I, Ex. 14) and the less-than-fully-successful interim goals achievement evaluation from Kearns in May 2001 (Kearns Depo. I, Ex. 17). Thus, Plaintiff cannot present the first type of rebuttal evidence identified in Peters, viz., “that the reasons given by the employer simply did not happen.” Fair and justified or not, it is undisputed that Plaintiff did receive those evaluations upon which Defendants rely as reasons for Plaintiffs discharge.
Neither does Plaintiffs case contain evidence to support the third type of rebuttal showing identified in
Peters,
i.e., that the less-than-fully-successful evaluations were “insufficient to motivate [Plaintiffs] discharge,” as might be shown by Defendants’ different treatment of other but substantially younger employees in comparable circumstances or, perhaps, by established company criteria for terminating employees that exclude the identified evaluation circumstances of Plaintiffs case.
8
As a result, as it was in the
Peters
case, Plaintiff here is left with only the second
Manzer
rebuttal option' — -a showing “that the employer’s articulated reason did not actually motivate the discharge.”
Peters,
As to this particular type of rebuttal, however, Peters further quotes Gray, again quoting Manzer’s holding that,
[i]f the bare bones elements of plaintiffs prima facie case were sufficient to make this showing, ... the entire ‘burden shifting’ analysis of McDonnell Douglas and its successors would be illusory ... Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence, but must, instead, introduce additional evidence of [prohibited] 9 discrimination.
Ibid.;
see also
Hedrick v. Western Reserve Care System,
... [W]e conclude that Manzer has been modified by Reeve’s holding that only in “appropriate circumstances” may the trier of fact reasonably infer that a false *722 explanation is a pretext, i.e., a cover-up for discrimination. Simply put, proof of pretext does not always constitute proof of intentional discrimination required for avoidance of a summary judgment or a directed verdict.
Id. at *4.
In this case, Plaintiff relies on various evidence to argue in effect that Defendants’ decision to discharge him was so unfair and unreasonable and so suspicious in the way it was earned out that a jury could conclude it was a pretext for allowing substitution of new and younger employees, i.e., for age discrimination. Pltfs. Res. to MSJ, Doc. 32, pp. 12-25. The Court does not agree. To begin with, Plaintiffs evidence is not particularly persuasive as to pretext, alone. Generally, the soundness of an employer’s decision to discharge based on evaluation of job performance may not be questioned as a means of showing pretext. See, e.g.,
Brocklehurst v. PPG Industries Inc.,
.... An age discrimination action is not “a device which permits the jury to examine an employer’s reasons for discharge and determine that the employer’s business judgment or policies do not appeal to its sensibilities.” Elliott v. Group Med. & Surgical Service,714 F.2d 556 , 567 (5th Cir.1983).
Ibid. Nor can Plaintiff show pretext by his previous good evaluations or the good opinions of co-workers or previous supervisors. As observed about such evidence in Peters:
It is simply stating the obvious to observe that what may have satisfied one management regime does not necessarily satisfy its successor, and Plaintiffs proffered evidence does not serve to rebut ... current management’s views regarding ... [plaintiffs] insufficient skills to continue performing in ... [his former] position.
Assuming for the purposes of this analysis, however, that Plaintiffs proffered evidence might make a case for the jury in other circumstances, the Court finds it does not do so here. Because there is no additional evidence of prohibited age discrimination offered, beyond the “bare bones” prima facie showing of replacement by persons who are arguably substantially younger, under the above holding of Peters there is not sufficient evidence of prohibited discrimination to avoid summary judgment in the evidential circumstances of this case. 11
*723 In Hapner, quoted above, the Ohio appellate court was considering alleged gender discrimination in a discharge that the employer asserted was based on misconduct and in which a prima facie case had been conceded. Nevertheless, the court’s observations at least suggest it also would agree with applicability of the Peters’ holding in the circumstances of this case as well. Hapner states:
.... In cases where the conduct upon which a discharge is predicated is subject to factual dispute, merely persuading the finder of fact that the facts are as claimed by the employee, without more, is not sufficient to establish a claim of unlawful discrimination, assuming that the discharged employee is within a legally protected class. Otherwise, every time a member of a protected class were discharged, that discharged employee could obtain judicial review of the grounds for his discharge. That is not the intent of laws prohibiting discrimination in employment. An employer may make a reasonable factual conclusion concerning an employee’s conduct, and the mere fact that a jury might reach a different factual conclusion, without more, is not sufficient to make out a claim of unlawful employment discrimination. It is only when the employer’s conclusion of fact is so unreasonable that it independently supports an inference of discrimination, or when an employer’s conclusion of fact with which a jury subsequently disagrees, together with other evidence, supports a finding of discrimination, that a jury may reasonably find that the employer’s proffered legitimate grounds for the adverse action is a pretext for unlawful discrimination. That is consistent with our understanding of Reeves, supra.
Whether completely fair and justified or not, Defendants’ articulated reasons for Plaintiffs discharge as supported by their proffered evidence clearly cannot be said to be so unreasonable as to independently support an inference of prohibited age discrimination,- and there is no other such evidence here, but the ages of Plaintiffs replacements.
“The isolated fact that a younger person eventually replaces an older employee is not enough to permit a rebuttal inference that the replacement was motivated by age discrimination.” Chappell v. GTE Prods. Corp.,803 F.2d 261 , 267 (6th Cir.1986) (citing LaMontagne v. American Convenience Prods., Inc.,750 F.2d 1405 , 1413 (7th Cir.1984)).
Hedrick,
A claim of wrongful discharge in violation of public policy, commonly referred to in Ohio cases as a Greeley claim, requires a prima facie showing of each of the following elements: (1) a clear public policy manifested in the Ohio or United States Constitutions, a statute or administrative regulation, or the common law (the “clarity element”); (2) that the dismissal of employees under similar circumstances would jeopardize the public policy (the “jeopardy element”); (3) that the discharge was motivated by conduct related to the public policy (the “causation element”), and (4) that the employer lacked a legitimate overriding business justification for the plaintiffs discharge (the “overriding justification element”).
Collins v. Rizkana,
A claim for wrongful discharge in violation of public policy embodied in statute prohibiting discriminatory practices will fail if the underlying discrimination claim fails.
Howard v. Contech Construction Prods., Inc.,
Case No. CA2003-01-018,
Consistent with the foregoing, Defendants’ Motion for Summary Judgment (Doc. 26) is GRANTED. The Clerk is directed to enter JUDGMENT in favor of each of the Defendants and dismissing this case.
IT IS SO ORDERED.
Notes
. Plaintiff’s counsel in effect concedes the lack of a colorable case against Defendant Blosser, but does argue briefly against granting summary judgment in favor of Defendant Pieron. Pltfs. Res. to MSJ, Doc. 32, pp. 26-27.
. The Ohio Supreme Court also notes that "[t]he term 'substantially younger’ as applied to age discrimination in employment cases defies an absolute definition and is best determined after considering the particular circumstances of each case.” Id., syllabus, ¶ 2.
. In footnote 1 to their Notification of Decision by Ohio Supreme Court (Doc. 41), the Defendants assert that Plaintiff here relies only on ORC § 4112.02, while the decision in question addresses a question raised under' § 4112.14. This Court is not inclined to read Plaintiffs Counts I and II so narrowly. In any case, however, the Ohio Supreme Court has said that the analysis is the same for state claims of age discrimination under §§ 4112.02 and 4112.14. See
Byrnes v. LCI Communication Holdings Co.,
. It appears that the Ohio courts interpret this term as "a person or persons” in appropriate cases. See
Byrnes v. LCI Communication,
. Judy expresses some doubt and possible confusion concerning the exact dates involved, but the sequence of events described over several pages makes this much virtually certain. Judy Dep. 17-20.
. In deposition, Defendant Kearns testified: "Mr. Weller was dismissed because he had poor overall performance in terms of day-today planning and advance planning. He had poor execution of tasks being asked of him. And his staff development was also lacking." Kearns Depo. I at 23.
. The Fifth Circuit in
Reeves
had "proceeded from the assumption that a prima facie case of discrimination, combined with sufficient evidence ... to disbelieve the defendant's legitimate, nondiscriminatory reason for its decision, is insufficient as a matter of law to sustain a jury’s finding of intentional discrimi
*720
nation,”
Id.
at 146,
. Also as in Peters, Plaintiff here does not rely on numerical or statistical evidence to show a pattern or practice of terminating of older employees in favor of retaining younger ones.
. The word "prohibited” in brackets was inserted by the Peters court. In the Gray opinion the word in brackets is "gender,” the discrimination alleged in that case.
. Plaintiff's hearsay objection as to such testimony has no merit. The Federal Rules of Evidence define hearsay as an out of court statement “offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). The hearsay rule does not apply to statements offered merely to show that they were made or had some effect on the hearer, their obvious purpose here. See
United States v. Gibson,
. The Court is aware of the emphasis placed by our circuit on tire potential value of evidence relevant to the reasonableness of the employer’s decision in "shedding light on whether the employer's proffered reason for the employment action was its actual motivation,”
Wexler v. White's Furniture, Inc.,