Opinion
Case No. 3:01CV7214
August 24,2002
ORDER
This is an age discrimination case in which the defendant has filed a motion for summary judgment. For the reasons that follow, the motion shall be granted.
The plaintiff, Dennis Myers, is an "End Line Maintainer" at the defendant, Ball Metal Beverage Container's, Findlay, Ohio, plant. His duties include maintaining the equipment, including presses, which makes the tops and bottoms of aluminum cans.
The End Line Maintainers are supervised by a Chief Maintainer. Plaintiff had expressed an interest in being promoted to a Chief Maintainer's position, and had taken training and other steps to prepare himself for consideration for such promotion.
In February, 2000, Chief Maintainer positions for three of defendant's four shifts became open. In October, 1999, when it appeared that one of the openings would be occurring, plaintiff spoke with Steve Pickenbrock, defendant's Production Manager, about his interest in the position. Pickenbrock asked plaintiff how old he was; when plaintiff said told him he was forty-nine, Pickenbrock stated, "Oh, you're at that borderline age." In addition, Pickenbrock referenced plaintiff's age several times during the course of this conversation.
When the three openings arose the following February, plaintiff applied for the Chief Maintainer's position for his shift. Prior to the posting of the positions, plaintiff's shift supervisor, Paul Greer, had been asked by his superior, Hank Fackler, to name two individuals whom Greer thought should be considered for promotion to Chief Maintainer. Greer told Fackler in a memo that Mike Steffan and Mike McIntosh were his picks for Chief Maintainer.
When Greer communicated his preferences to Fackler, Steffan was forty-five years old, and McIntosh was forty-nine years old (though a few months younger than the plaintiff).
Once the openings were posted, plaintiff, Steffan, McIntosh, and two other members of their shift applied for the promotion. Greer interviewed all five, and recommended Steffan and McIntosh. As the plaintiff points out, the process followed by Fackler and Greer did not conform to the defendant's employee handbook, in that Fackler had contacted Greer for his recommendations before the positions were posted and interviews were conducted.
After the recommendations for the three openings had been received from the shift supervisors, Pickenbrock met with his department managers, Fackler and Walt Jones, to select the employees to be promoted. They chose Steffan to be Chief Maintainer for plaintiff's shift. The persons selected to fill the vacancies in the two other shifts were thirty-one and thirty-four.
Defendant alleges, and plaintiff does not dispute that: 1) the group that made the selections did so from the lists submitted by the shift supervisors; and 2) plaintiff was not a candidate for Chief Maintainer in any shift other than his own.
To present a prima facie case, plaintiff must show that the person selected for the position that he sought was substantially younger than he. Godfredson v. Hess Clark, Inc., 173 F.3d 365, 371 (6th Cir. 1999). The facts of this case, with regard to the age differential between plaintiff and Steffan, replicate those in Bush v. Dictaphone Corp., 161 F.3d 363 (6th Cir. 1998), in which a forty-one year old individual replaced the forty-six year old plaintiff. "In the absence of any proof to the contrary," the court stated in Bush, "no reasonable jury could find that [the] replacement was `substantially younger' than Bush . . . ." Id. at 368.
In response to Bush, the plaintiff argues that Pickenbrock's October, 1999, ageist comments are "proof to the contrary" with regard to the factors that motivated his consideration of the candidates for promotion to Chief Maintainer. In other circumstances, this argument might be well-taken. Here, however, Pickenbrock and the others in the group who made the decision did so on the basis of recommendations submitted by the shift supervisors.
As a result, the group, including Pickenbrock, never considered the plaintiff, because he had not been one of the two persons whom Greer had recommended for promotion. There is no evidence that Greer was aware of, much less took cognizance of or acted in response to, Pickenbrock's views as to plaintiff's age when he made his promotion recommendations. The process, even if not in compliance with the employee handbook, and the results it reached were not, and could not have been tainted by any age bias on Pickenbrock's part.
Plaintiff cannot prevail, accordingly, because the successful candidate was not substantially younger than he. There is, moreover, no basis for finding that considerations of age tainted the selection process. In any event, as defendant argues, there is no basis for finding that the legitimate reasons articulated by Greer for his choice of Steffan and McIntosh over the plaintiff were pretextual. He considered each to be better qualified for promotion; indeed, he had noted Steffan's suitability for promotion to Chief Maintainer in earlier performance review reports.
In light of the foregoing, it is
ORDERED THAT defendant's motion for summary judgment be, and the same hereby is granted.
So ordered.