Raymond ANDERSON, Ralph Brown, Earl Lardner, James Lardner, Anton Wolf and Richard Wright, Plaintiffs, v. OTIS ELEVATOR COMPANY, a foreign corporation, Defendant, 923 F. Supp. 2d 1032

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT (ECF NO. 51) PAUL D. BORMAN, District Judge. This matter comes before the Court on Defendant Otis Elevator Company’s (“Otis”) Motion for

Summary Judgment. (ECF No. 54.) Plaintiffs filed a response (ECF No. 67) and Otis filed a reply (ECF No. 89). The Court held a hearing on February 7, 2013. For the reasons that follow, the Court GRANTS Otis’s motion. INTRODUCTION This action involves claims of age discrimination by six individuals, two of whom also assert claims of race discrimination, who were employed as mechanics by Defendant Otis Elevator Company (“Otis”) in the Detroit metropolitan area and were terminated in 2008-2009.

Otis claims that the six Plaintiffs were among 17 mechanics who were laid off, and whose duties were assumed by other Otis mechanics, as part of a broader workforce reduction necessitated by economic conditions. Otis claims that Plaintiffs were selected for lay off pursuant to a performance ranking system unrelated to the Plaintiffs’ age and/or race. Plaintiffs claim that they were terminated and replaced by younger, less qualified mechanics and argue that the reduction in force, and the ranking system utilized by Otis to select them for lay off, were a guise for both age and race discrimination.

Presently before the Court is Otis’s Motion for

Summary Judgment. I. BACKGROUND Plaintiffs in this action are six former Elevator Journeymen Mechanics who worked for Otis and were laid off between February, 2008 and October, 2009. Plaintiffs worked at Otis’s Detroit Branch Office which has three elevator departments-Modernization. (updating existing elevator equipment), Construction (installation of new elevator equipment), and Service (repair and maintenance of existing elevator equipment). (ECF No. 54, Def.’s Mot. Summ. Judg.

Ex. 2, March 9, 2012 Declaration of Joseph Steger ¶ 4.) In addition to performing work on elevators at various properties throughout the Detroit market, the Detroit Otis Office also contracts with Northwest/Delta Airlines to provide service and maintenance for elevators, escalators, moving walkways and an indoor tram system known as the Automated People Mover (“APM”) at the Detroit Metropolitan Airport-McN amara Terminal (“DTW”). (Id. ¶ 9.) Plaintiffs contend that they were terminated and replaced by younger workers and treated disparately compared to younger workers.

Plaintiffs Anderson and Wright additionally allege that they were discriminated against because they are African American. Plaintiffs contend that there was a “corporate culture” at Otis that devalued older workers, that certain Otis employees made “ageist” and racist remarks and that African American mechanics were under-represented in the workforce.

Otis responds that it eliminated 40 hourly employees in Detroit through rolling layoffs which began in January, 2009, including the lay off of 16 of its 72 mechanics in the relevant time period, as part of a workforce reduction, including the six Plaintiffs in this action, each of whom, Otis maintains, was among the lowest performing mechanics when terminated. (Def.’s Mot. Summ. Judg. Ex. 18, Interrogatory Resp. 5; Def.’s Mot. Summ. Judg. Ex. 17, March 6, 2012 Declaration of Elizabeth Ceriello ¶ 7.) Otis further responds that neither race nor age was a consideration in the decision to layoff the six Plaintiffs.

In selecting the six Plaintiffs (along with 11 other mechanics who are not plaintiffs in this lawsuit) for layoff, Otis purports to have relied, in part, on a ranking system, the Field Associate Ranking, colloquially referred to as the “Rack and Stack,” which was created by Otis on an annual basis to compare employee performance based on a pre-selected set of criteria to evaluate the workforce for possible layoffs. (Def.’s Mot. Summ. Judg., Ex. 2, Steger Decl. ¶ 14, Ex. B, 2009 Rack and Stack; ECF No. 83, Pis.’ Sealed Resp. to Mot. Summ. Judg. Ex.

T, 2007 Rack and Stack.) According to the testimony of several Otis witnesses, the Rack and Stack was intended to reflect in some measure the information reported by supervisors on employee performance evaluations, Field Associate Performance Evaluations (“FAPEs”). (ECF Nos. 115-119, Pis.’ Supplemental Brief Regarding

Summary of 2008 and 2009 FAPEs and Sealed Exhibits.) The FAPEs are prepared by supervisors to rate the performance of individual employees, scoring the employee on a given set of factors by assigning the employee a competency level (unsatisfactory, low/limited, medium and strong (or not applicable)) on the pre-selected set of factors.

For the most part, the performance factors considered by supervisors completing a FAPE, i.e. safety, ethics, focus on customer needs, customer relationship building, technical expertise, productivity, work quality, attitude, applying standard processes, dependability/reliability, communication, problem solving, results oriented, planning and organization, leveraging networks, troubleshooting skills, repair skills and availability for callbacks, are the same factors considered on the Rack and Stack. The competency levels on the FAPEs are not assigned numeric values.

On the Rack and Stack, the competency levels utilized on the FAPEs are assigned numeric values: 1-unsatisfactory, 2-low/limited, 3-medium, and 4-strong. Additionally, on the Rack and Stack, the factors are weighted, i.e. given a rating from one to five, 1-desired, 2-encouraged, 3-important, 4-necessary and 5-critical, corresponding to the criticality of each of the listed factors. The competency number assigned for a given factor is multiplied by the weight assigned to that factor and the sum of those values is the total point number assigned to a given employee on the Rack and Stack.

Employees scoring the lowest total points were generally selected first for work force reduction layoffs, although other considerations, such as a customer request or a specialized skill, could trump the Rack and Stack order in certain circumstances. When the Rack and Stack process originally began, the mechanics were ranked by department, i.e. Service, Construction and Modernization, separately. Beginning in 2009, the Rack and Stack ranked all mechanics from all departments for the entire Detroit Office.

Although the Rack and Stack is a tool used in the event of a lay off, a Rack and Stack is performed every year, regardless of the need for lay offs in that particular year. Plaintiffs contend that the Rack and Stack was somehow “rigged” against them because the Rack and Stack values did not, in every case, exactly mirror the corresponding competency levels on each employee’s FAPE.

Plaintiffs claim that the FAPE scores and the Rack and Stack values were supposed to completely align and that disparities between the scores on the individual FAPEs and the scores on the 2009 Rack and Stack demonstrate that the 2009 Rack and Stick was “rigged” by Otis to target older mechanics for layoff in favor of younger, less qualified mechanics. A. The Otis Supervisors and Management Personnel Involved in the Plaintiffs’ Terminations. 1.

Joe Steger Joe Steger (Caucasian DOB October 3, 1966) has been employed as a Field Operations Manager responsible for the Serviee/Maintenanee Department of Otis’s Detroit Office since 2002. (Steger Decl. ¶¶ 2-3.) ■ Steger reports to the General Manager of the Detroit Office, which was Tim Collins in 2007 and 2008 and Robert Olney in 2009. (Steger Decl. ¶ 2.) In his role as a Field Operations Manager (Maintenance), Steger oversaw Maintenance operations and provided technical support for the Detroit Office sales department. (Def.’s Mot.

Ex. 1, October 3, 2011 Deposition of Joseph Steger, 25.) Steger also was responsible for helping to prepare the budget for Maintenance operations based on monthly performance projections. {Id. at 28-29.) Steger would receive monthly reports from Otis’s corporate headquarters that would set forth the profit that Maintenance was expected to achieve. {Id. at 29-30.) The Maintenance Department did not meet budget in 2009. {Id. at 35.) In the latter half of 2008, Steger became aware that Otis experienced a significant decline in business due to the overall declining economy and particularly in Otis’s Construction and Modernization departments.

As a result of the decline in business, and in an effort to cut costs, the Detroit Office implemented a workforce reduction and laid off mechanics and apprentices on a rolling basis. (Steger Decl. ¶ 11.) In his role as the Field Operations Manager of the Detroit Office, Joe Steger oversaw the Rack and Stack ranking process and was the official, and sole, custodian of the final Rack and Stack document. (Def.’s Mot. Summ. Judg.

Ex. 1, Steger Dep. 100-01.) In this role, Steger oversaw the January 21, 2009 Rack and Stack meeting that resulted in the preparation of the 2009 Rack and Stack, pursuant to which Otis claims to have terminated each of the Plaintiffs, with the exception of Wolf, who was terminated earlier pursuant to - a different Rack and Stack, the 2007 Rack, and Stack. (Steger Dep. 93-95.) The 2009 Rack and Stack, for the first time, consolidated and ranked mechanics from all three of Otis’s departments, i.e. Construction, Modernization and Maintenance/Service, into one single Rack and Stack.

Previously, the mechanics had been ranked only against other mechanics from their department. (Def.’s Mot. Ex. 1, Steger Dep. 57-58; Def.’s Mot. Ex. 2, Steger Decl. ¶¶ 12-14.) The consolidation across departments in 2009 was done on the recommendation of Otis’s Labor Relations Manager, Betsy Ceriello. (Steger Deck ¶ 14.) Steger was involved in the decisionmaking process that led to the lay offs of Brown, Anderson, E. Lardner, J.

Lardner and Richard Wright to the extent that Steger oversaw the January 10, 2009 Rack and Stack meeting at which each of the Detroit Office supervisors participated in the group ranking of mechanics based upon their evaluations of the mechanics whom they supervised. (Id. ¶ 16.) The written product of this meeting, the 2009 Rack and Stack, was then used in as a tool in making lay off decisions later in the year.

According to Steger, the 2009 Rack and Stack was no.t dispositive in his decision to recommend a certain mechanic for lay off, but was considered by him in addition to other information that he may have learned, or other manpower changes that might have been made, between the January meeting and the time' that lay off decisions were made. (Id. ¶¶ 16-17.) Each time Steger recommended a particular mechanic for lay off, this decision was reviewed by Betsy Ceriello, Otis’s Labor Relations Manager, to ensure compliance with all equal employment laws, union contracts and licensing laws. (Id. ¶ 17.) 2.

Phil Davis Phil Davis (DOB 5/6/75) was the Field Operations Manager at Otis’s Detroit Office from January, 2007 to May, 2011. (Def.’s Mot. Ex. 14, March 9, 2012 Declaration of Philip Davis ¶ 3.) Phil Davis testified that when the DTW contract was renegotiated in January, 2007, there were “significant” financial concessions that had to be given back to the airport, which was reflected in the monthly revenues that Otis received from Delta (Northwest at the time) for work performed at the DTW. (Def.’s Mot. Summ. Judg. Ex. 9, November 23, 2011 Deposition of Philip Davis 27-28; Def.’s Mot.

Ex. 14, Davis Deck ¶ 7.) Many cost cutting measures were put into place in early 2007 to compensate for the loss in revenue (approximately 10% of Otis’s total revenues) resulting from the DTW contract renegotiation, including the termination of one airport mechanic. (Def.’s Mot.

Ex. 9, Davis Dep. 27-28, 31.) In the summer of 2007, it became clear that in order to achieve the necessary savings, Otis would need to reduce its workforce. (Id. at 45-^46.) This decision was made by Davis, Steger and Tim Collins, then the General Manager of the Detroit Office. (Davis Deck ¶¶ 8-9.) Davis made the decision to lay off Plaintiff Tony Wolf who was the lowest ranked mechanic on the 2007 Rack and Stack comparing airport employees. (Davis Dep. 52, 125, 132; Davis Deck ¶ 10.) Davis testified that the Rack and Stack process was completed first and then the Rack and Stack values would be used to complete the FAPEs. (Davis Dep. 68-69.) It was Davis’s understanding that the Rack and Stack results were supposed to align with the FAPE for the following year. (Id. at 89-90.) Davis explained that because the Rack and Stack process utilizes numerical values and the FAPEs do not, there was some inherent variation between the two processes due to rounding up or down. (Id. at 92-93; 118.) Davis recalled that at the Rack and Stack meetings, there was always some disagreement among the group about almost every mechanic being discussed. (Id. at 96-98.) According to Davis, the FAPEs and the Rack and Stack scores were supposed to match but changes were sometimes made after discussions at the Rack and Stack meetings.

While it was unusual for someone to be marked from say a four to a one, i.e. from strong to unsatisfactory, it was not uncommon for a score to go from say a three to a two, i.e. from a medium to a low. (Id. at 205-09.) Because the entire labor force, beginning in 2009, was evaluated together, and the lowest ranked mechanics were the first to be considered for lay off, higher performing mechanics from one department could be transferred to another department when a lay off was necessary. (Id. at 150-51.) Mr.

Davis also made the decision to terminate Plaintiff Ralph Brown. (David Dep. at 159-60; Davis Decl. ¶ 14.) Brown was selected because he was the lowest ranking mechanic working on the APM at the time the General Manager (Robert Olney at the time) informed Mr. Davis that he needed to eliminate a mechanic. (Davis Decl. ¶ 14.) Phil Davis also selected Richard Wright for lay off because at the time the decision was made to eliminate another airport mechanic, Mr. Wright was the lowest performing mechanic on the 2009 Rack and Stack. (Davis Decl. ¶ 16.) Mr. Davis did not recall any new hires since Mr.

Wolfs lay off in 2008; all of his employees were transfers from other departments. (Id. at 217.) 3. Keith Hearns Keith Hearns, the supervisor who participated to some degree in the decisions to terminate Plaintiffs Earl Lardner, James Lardner and Ray Anderson, testified that “the Rack and Stack process is an internal management tool” that Otis used to rank its employees against each other, and that the Rack and Stack was used to select employees for lay offs when lay offs were mandated. (Def.’s Mot.

Ex. 11, October 4, 2011 Deposition of Keith Hearns 69-70, 73, 75, 97-99.) Hearns testified that he takes his FAPEs for the year into the Rack and Stack meeting and uses the FAPEs “as a guide” that only “loosely” informs the ultimate numeric figures on the Rack and Stack. (Id. at 79-80.) Hearns testified that there was no directive to make the FAPE “equal” to the Rack and Stack and there was no requirement that one be “an absolute map[ ]” to the other. (Id. at 80-82.) Specifically, Hearns explained: Q: [W]hen you first talk about the numbers for the mechanics for each performance factor, you’re talking about a number from one through four, correct?

A. In the rack and stack? Q: Yeah. A: No, it never — As a supervisor when I go to the rack and stack meeting, I go in with a strategy, all right. I go in with where I want my guys to fall ‘cause I have an idea of their strength and weaknesses, all right. So I go in not with twos. I may go I with 2.5’s or 2.6’s for certain things.... Because I know what the rack and stack is. It’s a rank ordering of our population and that’s what happens in that meeting. We rank order the population. * * * Q: This [FAPE] has no numbers and so this category in terms of numbers doesn’t have to be an absolute mapping one to one.

That’s my testimony. Q: And so you said you used [the FAPE] as a guide. How do you change the numbers when you go into the rack and stack? A: Since I said there are no numbers on the [FAPE], I have to apply a number. There’s no change in the number. {Id. at 73, 82) (colloquy omitted). Differences between the FAPE and the Rack and Stack, Mr.

Hearns explained, additionally would occur because the Rack and Stack meeting involved the input of “every field manager that has people on the list,” and although he brought his completed FAPEs with him to the Rack and Stack meeting, the numbers ultimately entered on the Rack and Stack were collectively agreed upon and changes to FAPE values would be made if there “was enough agreement.” {Id. at 85-87, 91-92, 95-96, 112-13.) Specifically, Hearns testified: Q: Okay. As I understand it, the process was that it [the rack and stack meeting] would go by each person.

Each mechanic would be sort of flashed up on the screen and the numbers would be put in; is that right? A: Well, they — Yes. Q: Okay. And then there would be a discussion about that individual or no? A: Yes. Q: Okay. And when — After all of the mechanics had been flashed on the screen and their numbers put in, did they resort the spreadsheet at that point in time so you could see who was marked the lowest and who was marked the highest? A: Yes. Q: So you had a visual while you were there? A: Yes.

Q: And then did people say well, so and so should be ranked higher than so and so and then there being haggling over the numbers or were the numbers not changed after that sort? A: Well, that’s — That characterization is not the words. You would say hey, I think this individual does better work than this one or has a better attitude than that one. Q: Okay. A: And so those discussions would take place, yes. Q: Okay. And so would the numbers be changed then after the sort by rank was reviewed?

A: If there was enough agreement, yes. {Id. at 91-92.) Hearns also explained that the Rack and Stack, unlike the FAPEs, is a weighted system and includes numbers that can be fractional, making their totals inherently different in some instances from the FAPEs. {Id. at 72-74.) Hearns testified that he did not believe that the numbers on the Rack and Stack were ever changed after everyone left the Rack and Stack meeting: “[A]s a management team we trust one another that they wouldn’t go behind our backs and change numbers we didn’t agree to.” {Id. at 93-94.) 4.

Paul Jellison Paul Jellison, the supervisor who communicated the termination decision to Plaintiff James Lardner, testified to his understanding from his training by Otis that the FAPE assessments and the numbers on the Rack and Stack were supposed to correlate and that, prior to 2010, the supervisors would generally try to transfer the information from the FAPE onto the Rack and Stack spreadsheet but they didn’t always match up exactly. (Def.’s Mot.

Ex. 12, October 4, 2011 Deposition of Paul Jellison 48-49.) Beginning in 2010, the final FAPEs for the year were completed and issued after the Rack and Stack meeting, to be certain that the two would match. (Id. at 56-57.) Specifically, Jellison testified as follows: A: When I first got to the office in '06 and '07, we didn’t lay people off often. So we would do an evaluation and it would not necessarily match up exactly with the rack and stack, but since then they — today they match very closely. I mean there’s always— Q: How do you know that?

A: Because we go in and before we will issue the final evaluations now, we will do the rack and stack, so we make sure that the numbers are the same. Q: Is that in 2010 or 2011? A: That’s in 2010. Q: Okay. So 2008, 2009 were you checking to see if they were close? A: In 2009, yes. In 2008 I’m not sure if we had started that procedure yet. Q: Okay. So maybe the process has been improved since 2009? A: It’s definitely been improved over the past few years. Specific dates, I don’t want to speak to those ‘cause I’m not sure, exactly when it started.

Q: And by improved you’re defining that as being more like the evaluations?

A: Correct. (Jellison Dep. 57-59.) Describing the Rack and Stack system prior to the 2010 changes, Jellison explained, as Hearns testified, that the numbers a supervisor would suggest from their FAPE could be changed based upon discussions at the Rack and Stack meeting, based upon the collective input of “a room full of supervisors with varying levels of experience.” (Id. at 64.) Jellison explained that he would “put up his numbers,” and “people might say blah, blah, blah, you know, not a three but a two, that kind of thing.” (Id. at 65.) There would be discussion and sometimes a change would be made that would result in a different evaluation on the Rack and Stack.

All of the Plaintiffs in the instant case were laid off under this system of evaluation as it existed prior to 2010: Q: Okay. So it’s not true that the performance evaluation ratings correspond. A: But then we would have to change our evaluation now. Q: Now you’d have to. I don’t care about now.

What I care about is 2009 when all my people were terminated. (Id. at 66.) Although each of the Plaintiffs was terminated because of their ranking in the bottom 25% of mechanics on the 2009 Rack and Stack, they were not terminated for poor performance but due to lack of work and their rankings on the Rack and Stack. (Id. at 69.) 5.

Gregory Testolin Gregory Testolin (Caucasian DOB 1/20/51), who supervised Plaintiff Earl Lardner, testified that he brought his FAPEs with him to the Rack and Stack meetings and that it was important that the numbers from the FAPEs go directly into the Rack and Stack and that the “goal” was that they be parallel. (Def.’s Mot. Summ. Judg. Ex. 13, October 5, 2011 Deposition of Gregory Testolin 52, 69-71, 75, 76.) Testolin confirmed that the numbers he would put up from his FAPEs could be changed by the group at the Rack and Stack meeting but that rarely happened. (Id. at 73-74.) 6.

Robert Olney Robert Olney (Caucasian DOB 10/10/73) was the general manager for the Greater Detroit Metro Otis offices and started with Otis in January, 2002. (Def.’s Mot. Summ. Judg. Ex. 15, November 28, 2011 Deposition of Robert Olney 12-13.) As the general manager, Olney was responsible for profit and loss, growing sales and controlling costs. (Id. at 16.) Olney testified to his understanding of the Rack and Stack process as follows: Q: Now describe to me, if you can, what you understand to be the rack- and-stack process....

A: I understood it to be a process in which field supervisors were gathered together to rank each employee and agree on — somewhat agree on where they fell in the total ranking of our office. Q: And how was that supposed to happen? A: By ranking a different number of factors. I don’t remember if there were five or 10 factors. But ranking a different number of factors to come up with a cumulative score.

They would put up a projector and a spreadsheet, and each employee would go through their individuals, and then you could re-sort the spreadsheet based on that cumulative value, and it would rank and file the employees. Q: And those scores — was there a lot of debate during the meetings that you were at about whether or not the immediate supervisors’ scores were reasonable? A: There was definitely discussion from multiple people in the room. Q: Do you remember there being a lot of changes to the scores that the immediate supervisors would place in the spreadsheet? A: No, not necessarily. Q: So was a change rare?

A: Yes, I guess so. There were times where it was discussed and times it was changed and times it wasn’t changed. And I wasn’t there for every one, so I don’t know. * * * Q: Okay. Were you aware that the results from the rack and stack had to align with the annual performance evaluations and other items that would be in the personnel file? A: I think it was generally accepted that the rack and stack should somewhat reflect the performance evaluation. Q: Okay. Somewhat or align? A: I think its tough to say align just because there’s differences. But I would say somewhat. (Def.’s Mot.

Ex. 15, Olney Dep. 43-47, 51-52.) Olney testified that either he or the general manager would have made Joe Steger aware of a need to reduce the workforce and explained that there would have been no computer or email trail regarding the need for a reduction in work force: Q: If you were the one who was telling him [Joe Steger], would you send him an e-mail? Would you — how would you— A: I mean, it’s — we talked a lot, so it would probably just be a conversation when I was there. Q: Okay. Don’t you think that there would be some piece of paper somewhere saying that, you know, “we need to make a reduction?” A: No.

Q: Not in any of the layoffs that were made through the years 2008, 2009. A: There could be or there could not be. Q: Okay, does the labor relations tell you to document things? A: No. Q: Okay. So lábor relations has never told you that it was important to keep a record of why these — why these layoffs were occurring? A: I can’t tell you that I’ve ever had that conversation with them, no. (Def.’s Mot.

Ex. 15, Olney Dep. 70-71.) Olney also testified that it did not surprise him that the layoffs did not proceed exactly according to the rankings on the Rack and Stack: “It wouldn’t surprise me that it wasn’t done in order just because there’s different factors. This [the rack and stack] is kind of a guide.” {Id. at 73.) Olney testified that a loss of business in one of the departments, i.e. Construction, Modernization or Maintenance, did not necessarily mean that the reductions would come from that affected department.

That is why, Olney explained, the Rack and Stack was done across departments, so that the lowest performers would be considered for lay off regardless of the department that employed them. {Id. at 75.) Olney testified that in 2008 he was managing a $50,000,000 office and by the time he left, at the end of 2010, the office was a $40,000,000 office due to loss of revenue on the Construction side and due to the unwillingness of customers to pay for their elevator service needs. {Id. at 75-77.) Olney testified that business had declined approximately 20% between 2008 and 2010 when he left Otis. (Olney Dep. 39.) Olney explained that Otis tried to promote diversity and that “every time [they] had to lay people off, [race] was one of the — one of the discussions points was, if they were a protected class, we wanted to talk with Betsy [Ceriello] and make sure that we had exhausted our options.” {Id. at 87.) Although he couldn’t recall specific discussions regarding Plaintiffs Wright or Anderson, he explained that there was a possibility that when told by Joe Steger who had been selected for lay off, he (Olney) may question whether the protected class discussion had taken place and make sure that the lay off was cleared through Betsy Ceriello. {Id. at 88.) Olney also explained that the financial documents that would support the reductions in work force would be the monthly “selected operating data” reports. {Id. at 108-09.) Olney was not aware of the existence of any “labor budget”' documents. {Id. at 78.) Olney also testified that he would not necessarily be surprised to see a big point differential between a FAPE and the Rack and Stack number as long as there was “some sort of consistency” between the two. {Id. at 91-93.) 7.

Betsy Ceriello Betsy Ceriello is a labor relations lawyer who has been employed by Otis as a labor relations manager since 2001. (Def.’s Mot. Summ. Judg. Ex. 16, December 2, 2011 Deposition of Elizabeth A. Ceriello 33, 69.) Her job duties include reviewing proposed lay offs and terminations of Otis employees for compliance with labor laws and company policies. She performed this function with respect to each Plaintiff in the instant case. {Id. at 75-76; 131-32; 133-34; Def.’s Mot.

Ex. 16, Ceriello Decl. ¶ 6.) In 2009, Otis laid off 40 employees, including 16 mechanics. (Ceriello Dep. 136; 277-79; Ceriello Decl. ¶7.) Ms. Ceriello explained that her two main objectives in reviewing lay off requests were (1) to retain the best performing workforce and (2) to ensure compliance with the collective bargaining contract and any licensing or equal protection laws. {Id. at 142.) Ms. Ceriello described her role as a “check and balance” on the Rack and Stack/lay off process. {Id. at 146.) According to Ms.

Ceriello, as of August 31, 2008, approximately 65% of the mechanics and apprentices in Detroit were over 40 years old. Following the lay offs in 2009, as of January 1, 2010, approximately 74% of the mechanics and apprentices in Detroit are over 40 years old. (Ceriello Decl. ¶ 8.) Following the 2009 lay offs, the following mechanics, all of whom were older than Plaintiffs, were retained by Otis: Orlando Asmat, Kevin Frush, Larry Kubert, JP Lagaeuex, Warren Morche, and Jim Whims. (Ceriello Decl. ¶ 8.) Ms.

Ceriello emphasized that in a lay off situation, which is how these Plaintiffs were terminated, all of the laid off mechanics were qualified — they were not terminated for poor performance. Their ranking at the lower end of the Rack and Stack was a reflection of where they fell among a group of qualified mechanics, not a finding by Otis that they were poor performers. (Id. at 147; 234.) Until she rolled out the “Paint One Picture” training program in mid-2009, which emphasized that the FAPEs and Rack and Stack should directly align, Ms.

Ceriello would hold informal, verbal training sessions with supervisors regarding the FAPE and Rack and Stack process. (Id. at 163-64; 181.) One of the objectives of the Paint One Picture training program was to improve the chance of prevailing on claims by hourly employees upon layoffs and terminations. (Id. at 182.) Ms.

Ceriello conceded that in creating the 2009 Rack and Stack, the first cross-departmental Rack and Stack, there were more discrepancies between the FAPEs and the Rack and Stack than she would like to see but that it was the first time the supervisors had done it across departments and that the alignment between the two improved in subsequent years. (Id. at 188-89, 203.) In a perfect world, the “final portrait” if you will, would perfectly align the FAPE, the Rack and Stack, their job completion rates and the contents of their personnel files. (Id. at 236.) Ms.

Ceriello explained that the reason behind Plaintiff Wolfs lay off was the tough renegotiation of the Otis contract with the DTW airport and the substantial cost concessions that Otis had to make to retain that contract. (Id. at 73-75.) She was told by Phil Davis that in order to meet the DTW cost concessions and retain the DTW contract, they had to “lose a person and restructure the workforce.” (Id. at 78.) Ms. Ceriello asked for the 2007 Rack and Stack and determined that Tony Wolf was the lowest performer. (Id. at 79.) Ms.

Ceriello testified that she would analyze the Rack and Stack herself, to get “a snapshot” of the employees on the Rack and Stack closest to the individual facing lay off to determine things like race and age. (Id. at 98-99; 108-09.) Ms. Ceriello does not conduct any independent analysis of the business justifications presented to her by the manager or supervisor requesting authorization to lay someone off. (Id. at 101.) Ms.

Ceriello did not ask the field supervisors or managers to document their reasons for a lay off but typically received their reasons in a telephone call. (Id. at 105.) On the issue of aligning or matching the figures on the Rack and Stack to the FAPEs, Ms. Ceriello testified as follows: Q: Did you promulgate a rule recently that the FAPE has to match exactly the rack and stack when they put it in? A: It’s — in the ideal world that’s how it would be. Q: Okay. A: In an ideal world. Q: Is there a rule now that that has to happen as opposed to in 2009 or 2010— A: They have to align— Q: —before that was a rule?

A: Sorry. They have to align. Q: ... Were the management employees ever told that they had to put their FAPE numbers into the rack and stack? A: They can do it one of two ways. They can either create the rack and stack with the numbers looking at the whole workforce at one time and do it that way and then go back and fill out the performance evaluations and make any other comments they’d like to do or they can take the performance evaluations they did and then correlate them onto the rack and stack. A: This evolved over time.

Back at the time frame that these layoffs happened ... they were just starting at my request to, as I called it, paint one picture. You could have — When you looked at an employee, the information you had on them would be consistent ‘cause it should be in the different places that you look. Q: Why should it be? A: Because if you’re looking to evaluate — There’s two things. When you individually rate an employee, you do that.

One supervisor sits down and based upon the 10/15/20 employees that they have, they’re kind of rating their employees within that group, but when you try to then put that all onto an office wide assessment of skills so you can move people around as you see best, there’s gonna be people that grade differently. There’s gonna be people that want to play their favorites. There’s gonna be all kind of things that come into play and you just want to make sure you have the best — it’s the best reflection that you can have of people’s performance individually and then as a group.

So, you know, that’s — that’s what I would ask them to do. (Def.’s Mot. Summ. Judg. Ex. 16, Ceriello Dep. 112-114.) “In end they have to produce this document called the FAP[E], It matters not to me if they do this [Rack and Stack] first and put it on there [FAPE] or do that [FAPE] first and put it on here [Rack and Stack]. So in Detroit I believe the first when they did this combined one, I believe they tried doing it the second way when they did that — produced that particular January '09 Rack and Stack.” (Id. at 174.) With regard to the 2009 Rack and Stack, and Plaintiffs’ terminations, Ms.

Ceriello explained that she did check several FAPEs of the lowest ranked employees against the Rack and Stack and was not concerned with the disparities between the two because this was the first time that the supervisors had been required to sit down and create a Rack and Stack that covered all departments. (Id. at 123-124.) She excused disparities because of the likelihood that different supervisors from the different departments had different grading systems: “It was the first time we were kinda putting them on to one big rack and stack.

So I would expect to see some deviation.” (Id. at 124.) Specifically, she testified as follows: A: When you put them [mechanics] up onto the rack and stack, I call it a horse trading session. They all sit down and go okay, you know, Joe, put yours up and Paul put yours up and they put them up there. I’m not usually in on these sessions. So they put them up there and they have to say oh, wait a second. This don’t look right. This guy is a much harder performer than that guy.

That guy, no he can’t do that as well and then they have to kind of come up with — I call it kind of calibration of different ways supervisors look at how they grade people or use the criteria that are — What’s a medium to some person might not be a medium to somebody else and you then begin to see that when you put different people’s ratings up there.

So they might actually — This is where you might see some differentiation from what’s on the performance appraisal being fact and the rack and stack, because they might actually when they do the rack and stack, actually make adjustments on the rack and stack after that are different from this, after the performance appraisal. That could happen especially since they had just done it for the first time there. They had not really as a group looked at it that way whether they did it under either one of those two systems.

So that’s where you might see a disparity. (Id. at 172-73.) Over time, Ceriello explained, they were looking to have it be more aligned, but she was not surprised that this first group at this point in time may have done it imperfectly. After looking at the FAPEs and the Rack and Stack in the case of each of the Plaintiffs, Ceriello was satisfied that those being laid off were among the lowest performers. (Id. at 126-27.) Ms.

Ceriello also testified that if a lay off was done some months after the Rack and Stack, there could be changes to the Rack and Stack if, for example, people’s performance had changed in the intervening months. (Id. at 286.) She indicated that the only person who would be able to explain why the FAPE and the Rack and Stack scores varied would have been the supervisors themselves who participated in the Rack and Stack meeting. (Id. at 198, 203.) In approving the lay offs of the Plaintiffs, Ms.

Ceriello did not conduct an analysis of whether the disparities between the FAPEs and the Rack and Stack disproportionately affected any protected group: Q: Yeah. So here’s another situation where whether you’re looking at 2008 or 2009 his scores [on the Rack and Stack] are like 50 points different than it would have been if you used the [FAPE] numbers. Is that within your definition of what align means? A: No, that they should be — Again, this is a tool. This is a tool meant to reflect this.

It was the first time they did it, again, the way they did it, and then they sit around and they have a conversation based upon performance vis-a-vis to each other. So this is ranking them against each other. This is ranked — That’s in the rack and stack. Q: What are you saying by this? A: The rack and stack is being ranked then against each other. Q: Uh-huh. A: This [FAPE] is being them ranked against the criteria. So you could have deviation when they’re sitting in a room vis-a-vis they make some adjustments. Everybody’s scores might have come down or changed that way. I mean you have to look at other people.

To make the kind of assumptions you’re making, you have to go back and look at other folks on here and look at higher ranking folks and I don’t know if the correlation is there — is still there. Q: Well I did. Actually, the higher ranking people don’t have any disparity. (Id. at 208-09.) Ms. Ceriello was not aware and could not explain why the Plaintiffs’ FAPE and Rack and Stack scores appeared at such variance from one and another: “I have no knowledge of how that would have happened.

So you’d have to ask who that might have been done by.” (Id. at 211.) She testified that she never changed the Rack and Stack numbers and that Joe Steger would have been the last person with access to those numbers after the Rack and Stack meeting. (Id. at 212.) B. The Plaintiffs’ Terminations 1. Ray Anderson Plaintiff Ray Anderson is African American and was born on April 7, 1956. (ECF No. 1, Compl. ¶¶ 12, 13.) Anderson was originally employed by Otis in 1975 and, after several years working elsewhere, was rehired by Otis again in 2003 when Otis acquired the company that employed Anderson. (Def.’s Mot.

Ex. 3, June 28, 2011 Deposition of Raymond Anderson 144; Compl. ¶¶ 15, 16.) Anderson worked for Otis as an elevator journeyman mechanic assigned to Harper Hospital for several years but was reassigned to a different position upon his return from a medical leave in 2008. (Anderson Dep. 45-47, 50, 60; ECF No. 18, Otis’s Supplemental Interrogatory Resp. 5.) According to Otis, Anderson was terminated in 2009 because there was a downturn in business and several individuals were selected for layoff. (Def.’s Mot. Summ. Judge.

Ex. 11, Hearns Dep. 102-03.) Anderson’s supervisor, Keith Hearns (African American DOB 8/6/56), communicated the lay off decision to Mr. Anderson at the direction of Joe Steger. (Id. at 144-45, 149, 152.) Hearns, also an African American, testified that Anderson had expressed to Hearns his opinion that the elevator industry in the 1970’s was racist but that he, Hearns, had never heard any racially derogatory comments while working for Otis. (Id. at 154-55.) Betsy Ceriello, Otis’s Labor Relations Manager for the Midwest Region, explained that at her request, Mr.

Anderson, an African American, was once or twice passed over for lay off in part to promote Otis’s policy of encouraging diversity in the work force. (Def.’s Mot. Ex. 16, Ceriello Dep. 142-43; Def.’s Mot. Ex. 17, Ceriello Deck ¶ 3.) While Anderson was on medical leave, Roy England (Caucasian DOB 11/28/62) performed his job duties at Harper Hospital. (Defi’s Mot. Ex. 1, Steger Dep. 162; Def.’s Mot. Ex. 18, Otis’s Supp. Interrog. Resp. 5.) Anderson was terminated on June 16, 2009 and Matt Cole (Caucasian DOB 4/14/61), who was returning from leave, replaced Anderson. (Def.’s Mot. Summ. Judg.

Ex. 3, Anderson Dep. 43; Compl. ¶ 21.) Cole’s move to Anderson’s position was made because Ron Nanney (Caucasian age 38), the third highest ranking mechanic in Detroit, whose position servicing the Oakwood Hospital account was eliminated when Otis lost that account, assumed Cole’s position when Cole went on leave. Nanney, a high performer, was retained in Cole’s position after Cole’s return. When Cole returned from leave, Anderson was terminated and Cole was placed in Anderson’s position at Harper Hospital. (ECF No. 69, Pis.’ Resp. Sealed Ex. D, EEOC Proceedings Excerpt at 2; Def.’s Mot.

Ex. 2, Steger Decl. ¶¶ 20, 21; Def.’s Mot. Ex. 3, Anderson Dep. 49-52.) Mr. Cole ranked 22 places higher on the 2009 Rack and Stack than Anderson and was only five years younger than Anderson. (ECF No. 69, Pis.’ Resp. Sealed Ex. D, EEOC Proceedings Excerpt at 3.) 2. Ralph Brown Plaintiff Ralph Brown is Caucasian and was born on April 13, 1958. (Def.’s Mot.

Ex. 4, September 7, 2011 Deposition of Ralph Brown 35-36.) Brown worked almost exclusively at the DTW on the tram but also did some traditional service work at the DTW. (Id. at 31.) Brown was terminated on August 11, 2009. (Id. at 12.) Following his termination, Brown’s job duties were performed by Kerry Kimlin (Caucasian age 47), who had advanced from the position of apprentice to mechanic in the summer of 2009, and who was performing the same work as Brown prior to Brown’s termination. (Def.’s Mot. Ex. 9, Davis Dep. 19Í-92; Def.’s Mot. Ex. 4, Brown Dep. 12, 73-75; Def.’s Mot.

Ex. 14, Davis Decl. ¶ 13.) Davis “selected Brown for layoff based on [his] review of the 2009 rack and stack. Given the other 2009 layoffs that had already occurred, Brown was the lowest ranked remaining mechanic working on the APM.” (Def.’s Mot. Ex 14, Davis Decl. ¶ 14.) Brown testified that he was aware that other Otis mechanics also were being laid off at the time of this termination. (Def.’s Mot. Ex. 4, Brown Dep. 15.) Kerry Kimlin ranked 16 places higher than Brown on the 2009 Rack and Stack and was 49 at the time of Brown’s termination, three years younger than Brown. (ECF No. 70, Pis.’ Resp. Sealed Ex.

E, Excerpts from EEOC Proceedings.) Brown testified that sometime in 2000 (Brown was 42 at the time) two of his supervisors, both of whom were the same age or older than he, gave him a bow tie to wear and said this is what the old timers wore, put it on. (Brown Dep. 33-36.) Brown also testified that his supervisor, John Mosella, would make comments about Brown being older and not able to move so fast and precluding Brown from “riding the bike” to service the tram, which required a quick service turnaround time.

He also testified that his co-worker on his shift, Harry Marshall, who was older than Brown by about ten years, was permitted to “ride the bike” while Brown handled the control panel. Id. at 37-41. Brown also testified that he viewed a training video that warned about the propensity for older workers to experience a greater number of accidents on the job. Id. at 40-43. Brown testified that he believed the FAPEs were the arbitrary opinion of a supervisor but was unable to point to any portion of the FAPE that actually was designed to be adverse just to older workers. Id. at 56-57.

Brown was terminated by Phil Davis and was told that he was being laid off due to lack of work. Id. at 65-66. 3. Earl Lardner Plaintiff Earl Lardner is Caucasian and was born on May 2, 1952. Earl Lardner was terminated on August 20, 2009 and his duties were assumed by Ed Idyle (Caucasian DOB 5/8/66). (Def.’s Mot. Ex. 5, August 1, 2011 Deposition of Earl Lardner 12, 29-30; Def.’s Mot. Ex. 13, Testolin Dep. 38.) Mr. Idyle was working for Otis at the time Earl Lardner was laid off and had been working there prior to Lardner’s termination.

Idyle was a long term Otis employee and was not hired as a new employee to replace Earl Lardner. (E. Lardner Dep. 43; Testolin Dep. 117.) Mr. Idyle ranked 45 places higher than Earl Lardner on the 2009 Rack and Stack. (ECF No. 71, Pis.’ Resp. Sealed Ex. F, Excerpts from EEOC Proceedings.) Earl Lardner was dissatisfied with his March, 2009 FAPE from his supervisor, Greg Testilon. (Def.’s Mot. Ex. 5, E.

Lardner Dep. 23.) He felt that there was no standard for the evaluation for a particular skill and that the basis for the numbers assigned to them was never explained. (Id. at 28-29.) Earl Lardner testified that his supervisor, Greg Testilon, who was close in age to Mr.

Lardner, asked him what his plans were for retirement but that Lardner thought nothing of the questions at the time. (M at 30-31.) Testilon never suggested to Lardner that he was too old or physically incapable of performing his job duties. (Id. at 32.) Testolin was involved in terminating Earl Lardner’s employment in the sense that he was responsible for the evaluation that determined Earl Lardner’s ranking on the 2009 Rack and Stack. (Def.’s Mot. Summ. Judg.

Ex. 13, Testolin Dep. 78-81.) Like the other Plaintiffs, Lardner recalls seeing a training video that discussed the fact that older workers are more prone to work place injuries. (Id. at 33-34, 37.) 4. James Lardner Plaintiff James Lardner is Caucasian and was born on March 2, 1956. James Lardner was terminated on October 9, 2009 and his job duties were assumed by Bryan Morche (DOB 8/26/71), who was at that time an Otis employee working in service. (Def.’s Mot. Summ. Judg. Ex. 6, August 5, 2011 Deposition of James Lardner, 9, 57; ECF No. 73, Pis.’ Resp. Sealed Ex.

H, Excerpts from EEOC Proceedings 2.) Lardner was. terminated by Paul Jellison (Caucasian DOB 8/2/77) who both participated in the decision to lay off James Lardner and delivered to him the news that he had been laid off. (Def.’s Mot.

Ex. 12, Jellison Dep. 9-11.) Jellison testified that James Lardner was terminated because there was a consolidation of routes and Jellison had to eliminate one mechanic. (Id. at 33-34.) Although routes were consolidated, Jellison testified that the total number of mechanics under his supervision did not decrease but that there was a net loss of one mechanic because there was an elimination of a full time equivalent of two thousand hours (one mechanic for one year) across the board. (Id. at 36-38.) Morche ranked 35 places higher than James Lardner on the. 2009 Rack and Stack.

James Lardner was called back by Otis after his October 9, 2009 termination to help out with service maintenance on an elevator machine in Bay City. (Def.’s Mot. Ex. 6, J.

Lardner Dep. 9.) James Lardner testified that he was aware that there was a slowdown in business at Otis’s Detroit Office in 2009. (Id. at 13.) He also testified that in his opinion the FAPEs were not fairly designed because the supervisors filling them out were never with the employees and because one of the factors, technical competence, favored younger workers because the older workers were not trained on the new equipment. (Id. at 46-^47.) James Lardner testified that another Otis employee, perhaps one of his supervisors but he couldn’t be sure, once teased him. about being slow, walking up the stairs.

Other than that comment, and questions regarding his intentions of retiring, none of his supervisors ever told him he was too old to perform his job duties. (Id. at 61-66, 79-81.) Like the other Plaintiffs, James Lardner recalled viewing the Otis safety training video that included the safety pyramid suggesting that older workers were more prone to injury. (Id. at 67.) James Lardner testified that he witnessed Joe Steger comment, sometime in 2002, that he did not want black people working for him.

Lardner testified that Steger was laying off a black helper sometime in 2002 named Van Wiley but in fact was supposed to lay off another worker who was not black. Lardner testified that Steger told him that was “all right because I don’t want any blacks working for me.” (Id. at 73-76.) Steger denies ever having made the remark. (Def.’s Mot. Ex. 1, Steger Dep. 12.) 5. Richard Wright Richard Wright is African American and was 58 years old when terminated by Otis on September 9, 2009. (Def.’s Mot. Summ. Judg.

Ex. 8, August 10, 2011 Deposition of Richard Wright, Sr. 9-10.) Wright was principally assigned to the DTW, doing traditional service work (elevators, escalators, moving sidewalks) and with some experience assisting with the control panel for the airport tram (APM). (Wright Dep. 17-18, 59-60, 23-26.) Wright was terminated by Phil Davis who selected Wright for termination, with input from Joe Steger, because “given the layoffs that had already occurred in 2009, [Mr. Wright] was the lowest ranked remaining Airport Mechanic.” (Def.’s Mot.

Ex. 14, Davis Decl. ¶ 16.) Following Wright’s termination, Kirk Rosiek (Caucasian age 41) was transferred to the DTW to work on the APM after completing a Modernization assignment. (Def.’s Mot. Ex. 9, Davis Dep. 198-202.) Rosiek’s transfer to the APM resulted in the reassignment of another mechanic with traditional service work experience, Yves Levesque (Caucasian age 44), to absorb Wright’s traditional service work duties. (Id. at 201-02.) Mr.

Wright testified in his deposition that he did not believe that either of his supervisors, Phil Davis or John Mosella, ever discriminated against him on the basis of his age or his race. (Id. at 31-32, 33-34.) Regarding his claim that he had suffered racial discrimination, Mr. Wright testified that a temporary “helper” once stated to Mr. Wright that he did not have to take orders from a “nigger.” (Id. at 35.) Apart from this comment, Mr. Wright did not recall any other racially discriminatory remarks. (Id. at 37.) Mr. Wright never had a conversation of substance with Mr. Steger but after Mr.

Wright was terminated he was told by James Lardner that Mr. Steger had once said that he did not want any black people working for him. (Id. at 39-40.) Other than comments that Mr. Wright perceived to be a joke from an older co-worker, Mr. Wright never experienced remarks from Otis supervisors relating to his age or ability to physically perform his job duties. (Id. at 41-43.) Mr. Wright testified that he was aware at the time he was laid off that other mechanics also were being laid off and were in the same position as he— looking for call-back work. (Wright Dep. 10, 20.) 6.

Tony Wolf Plaintiff Tony Wolf is Caucasian and was born on December 26, 1956. Tony Wolf was laid off on February 1, 2008, prior to the time that the other Plaintiffs were terminated and pursuant to a different 2007 Rack and Stack. (Def.’s Mot. Summ. Judg. Ex. 7, July 29, 2011 Deposition of Anton Wolf, 7.) Wolf worked on the APM (Automated People Mover/Tram) at the DTW. (Id. at 34.) Wolf was terminated by Phil Davis, who told Wolf that he was being laid off because of lack of work. (Id. at 29-30.) Davis “selected Mr.

Wolf for layoff because he was the lowest ranked Mechanic on the 2007 rack and stack comparison of Airport employees. At the time of Mr. Wolfs layoff, the 2008 rack and stack meeting for the airport had not occurred and the 2008 comparative rankings were not available.” (Defi’s Mot. Summ. Judg. Ex. 14, Davis Decl. ¶ 11.) “Mr. Wolfe’s job duties were assumed by a combination of Bert Thompson (age 42), Ed Bezy (age 50), and Michael McNally (42).” (Id. ¶ 12.) Mr. Thompson was an apprentice at the time and Bezy and McNally were mechanics who continued to perform their own job duties and also assumed some of Mr.

Wolfs duties. (Id.; Def.’s Mot. Ex. 9, Davis Dep. 23-24.) Mr. Wolfe testified that he was not aware of ageist comments directed to him personally but, like the other Plaintiffs, he did watch the Otis training video that suggested that older workers were more prone to injury. (Def.’s Mot. Ex. 7, Wolf Dep. 34-35.) Mr. Wolf admitted that he was aware that the industry suffered the highest number of layoffs in history since Mr. Wolf was terminated. (Id. at 51-52.) II.

STANDARD OF REVIEW Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim, or cross-claim is asserted may “at any time, move with or without supporting affidavits, for a

summary judgment in the party’s favor as to all or any part thereof.” Fed.R.Civ.P. 56(b).

Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party’s case on which the non-moving party would bear the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and- identifying those portions of ‘the pleadings, deposition's, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548; See also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987). A fact is “material” for purposes of a motion for

summary judgment where proof of that fact “would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties,” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (quoting Black’s Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Conversely, where a reasonable jury could not find for the non-moving party, there is no genuine issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). , In making this evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). “ ‘The central issue is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Binay v.

Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir.2005)). If this burden is met by the moving party, the non-moving party’s failure to make a showing that is “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,” will mandate the entry of

summary judgment. Celotex, 477 U.S. at 822-23, 106 S.Ct. 2548. The non-moving party may not rest upon the mere allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The rule requires the non-moving party to introduce “evidence of evidentiary quality” demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir.1997); see Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (holding that the non-moving party must produce more than a scintilla of evidence to survive

summary judgment). “Rule 56(e)(2) leaves no doubt about the obligation of a

summary judgment opponent to make [his] case with a showing of facts that can be established by evidence that will be admissible at trial ____In fact, ‘[t]he failure to present any evidence to counter a well-supported motion for

summary judgment alone is grounds for granting the motion.’ Rule 56(

e) identifies affidavits, depositions, and answers to interrogatories as appropriate items that may be used to support or oppose

summary judgment.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting Everson v. Leis, 556 F.3d 484, 496 (6th Cir.2009)). III. ANALYSIS A. Plaintiffs’ Age Discrimination Claims 1. The evidentiary framework. The Age Discrimination Employment Act, 29 U.S.C. § 621-634 (the “ADEA”) prohibits employers from discharging an employee “because of such individual’s age.” 29 U.S.C. § 623(a)(1).

A plaintiff may proceed on a claim of age discrimination on the basis of direct or circumstantial evidence. “If a plaintiff cannot prove discriminatory intent by direct evidence, he may do so by making a prima facie case of age discrimination through indirect or circumstantial evidence.” Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 725 (6th Cir.2012). “The burden-shifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and further refined in Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), applies in the present case because [Plaintiffs] presented no direct evidence of discrimination.” Browning v. Department of the Army, 436 F.3d 692, 695 (6th Cir.2006).

Where, as here, a plaintiff lacks direct evidence and chooses to proceed on the basis of circumstantial evidence, he must prove that: “(1) he was at least 40 years old at the time of the alleged discrimination; (2) he was qualified for the job; (3) he suffered an adverse employment action; and (4) he was replaced by someone substantially younger.” Id. “An allegation that the plaintiff was replaced by a younger individual supports an inference of discrimination only if the age difference is significant.” Blizzard v. Marion Technical College, 698 F.3d 275, 283 (6th Cir.2012) (citing Grosjean v.

First Energy Corp., 349 F.3d 332, 336 (6th Cir. 2003)). An age difference of fewer than six years is not significant as a matter of law, age differences greater than ten years are generally considered significant and differences that fall between six and ten years are to be judged on a case by case basis.

Blizzard, 698 F.3d at 284. “[W]hen a termination arises as part of a work force reduction, the fourth element of the McDonnell Douglas test is modified or heightened to require the plaintiff to provide ‘additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.’ ” Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 265 (6th Cir.2010) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.1990)).

Not every termination carried out pursuant to a reduction in force (“RIF”) qualifies as a legally cognizable RIF: It is important to clarify what constitutes a true work force reduction case. A work force reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge.

However, a person is not replaced when another employee is assigned to perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiffs duties. See Sahadi [v. Reynolds Chem.], 636 F.2d 1116 (6th Cir. 1980) ] at 1117 (“[pjlaintiff was not replaced; his former duties were assumed by Alexander, who performed them in addition to his other functions”).

Barnes, 896 F.2d at 1465. “If a plaintiff satisfies his burden at the prima facie stage, the burden of production shifts to the employer to set forth a legitimate, non-discriminatory reason for the adverse employment action. If the employer meets this burden, the burden of production shifts back to the plaintiff to show that the employer’s explanation was a mere pretext for intentional age discrimination.

The burden of persuasion, however, remains on the AREA plaintiff at all times to demonstrate that age was the “but-for” cause of their employer’s adverse action.” Schoonmaker, 595 F.3d at 264 (internal citations and quotation marks omitted).

Once an employer rebuts a stated prima facie case with a legitimate, non-discriminatory reason for the adverse employment action, “the presumption of discrimination no longer exists, and [plaintiff] must prove that the reasons offered by the [employer] were in fact pretextual in order to prevail.” Browning, 436 F.3d at 695. “For a plaintiff to show pretext, he must show the employer’s given reason for its conduct ‘had no basis in fact, did not actually motivate the defendant’s challenged conduct, or was insufficient to motivate the defendant’s challenged conduct.’ ” Lefevers, 667 F.3d at 725 (citing Schoonmaker, 595 F.3d at 268).

To demonstrate pretext at the

summary judgment stage, a plaintiff must produce sufficient evidence from which a jury could reasonably reject the employer’s explanation for the adverse employment action. Schoonmaker, 595 F.3d at 268; Browning, 436 F.3d at 696. The burden of persuading the trier of fact remains at all times with the plaintiff. Browning, 436 F.3d at 696 (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). “An employer is entitled to

summary judgment ‘if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.’ ” Chen v. Dow Chemical Co., 580 F.3d 394, 400 n. 4 (6th Cir.2009) (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). .A plaintiff cannot establish that the employer’s stated reason for termination did not actually motivate the decision where the employer actually retained employees of roughly the same age as plaintiff. “Lefevers has not shown that GAF’s stated reason for his termination did not actually motivate the challenged conduct. The evidence that bears most strongly on this issue is that GAF retained employees near or above Lefevers’s age in positions analogous to his own....

We have held, in similar circumstances, that there is no inference of age discrimination.” Lefevers, 667 F.3d at 726. 2. Plaintiffs’ prima facie case. Each of the Plaintiffs in the instant case has satisfied the first three prongs of the prima facie case. Plaintiffs are all over the age of 40, their lay offs were adverse employment actions and they were qualified to do the work. A dispute exists, however, regarding the fourth prong and more specifically whether Otis has sufficiently established the existence of a RIF so that the Plaintiffs’ burden on the fourth prong is enhanced as required under Barnes.

Plaintiffs argue that Otis has not sufficiently supported the claim that Plaintiffs were laid off pursuant to a RIF and thus argue that their burden on the fourth prong is met if they can establish that they were replaced by persons outside the protected class or that persons outside the protected class who were similarly situated were not subject to the same adverse employment action.

Otis argues that they have offered sufficient evidence that Plaintiffs were laid off along with several other mechanics due to a downturn in Otis’s business and that Plaintiffs must therefore produce “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Barnes, 896 F.2d at 1465. a.

Plaintiffs were terminated pursuant to a RIF, so that Plaintiffs’ burden on the fourth element of their prima facie case is heightened under Barnes. “A work force reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge.

However, a person is not replaced when another employee is assigned to perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work.” Barnes, 896 F.2d at 1465. “ ‘Eliminating a single job is sufficient to constitute a legitimate reduction in force.’ ” Shah v. NXP Semiconductors USA, Inc., 507 Fed.Appx. 483, 488 (6th Cir.2012) (quoting Lockett v. Marsh USA, Inc., 354 Fed.Appx. 984, 992 (6th Cir.2009)).

Plaintiffs argue that Otis has failed to present sufficient evidence of the financial necessity for a RIF and also failed to demonstrate that the number of mechanics actually was reduced. In response to Plaintiffs’ discovery requests seeking evidence of the economic necessity for the RIF, Otis produced its monthly plan to performance figures for the years 2008 and 2009, which demonstrate that Otis failed to meet the plan goals in the majority of those months.

Plaintiffs do not dispute the accuracy of this information but rather attack the fact that Otis did not produce other information, such as documents reflecting “labor costs,” from which Plaintiffs apparently hoped to dispute the fact that Otis actually faced an economic need to reduce its workforce.

The Court previously denied without prejudice Plaintiffs’ motion for spoliation on this issue, finding no. evidence that Otis failed to produce the documents that had been requested or ordered to be produced on this issue during discovery. (EOF No. 103.) Otis maintains that it has produced all documents and evidence on which it intends to rely to establish the economic necessity for a workforce reduction — i.e. the performance to plan documents and testimony regarding the overall economic downturn in the industry at the time of Plaintiffs’ lay offs, a fact to which several witnesses, including many of the Plaintiffs, testified to during discovery.

Plaintiffs have presented no credible evidence to dispute the fact that each of the terminations at issue in this litigation was carried out pursuant to a corporate directive to eliminate mechanics at Otis’s Detroit office due to financial concerns in the Detroit elevator market. In support of their claim that Otis had no real need to reduce its workforce, Plaintiffs direct the Court to a page from Otis’s 2009 Annual Report, indicating that Otis employs 60,781 people across the globe and reported revenues of $11.8 billion and operating profits of $2.4 billion worldwide 2009.

The utter lack of probative value of this evidence to the economic issues faced in Otis’s Detroit office in .2009 is patently clear. Plaintiffs have, not produced sufficient evidence to create a genuine issue of material fact regarding the economic necessity for a reduction in force at Otis’s Detroit office in 2008-2009. Nor have Plaintiffs presented evidence to rebut Otis’s evidence that it did in fact lay off 17 of its 72 mechanics between January, 2008 and December, 2009, pursuant to an economically motivated reduction in force.

Plaintiffs make the unsupported statement that in fact there was no reduction in the mechanic labor force and that the repair side of the business (the Maintenance department where Plaintiffs were employed) was not suffering the same economic downturn as the Construction and Modernization departments. (ECF No. 67, Pis.’ Resp. 19).

Plaintiffs concede that the evidence demonstrates a slow-down on the Construction and Modernization end of the business in the Detroit market but note that none of the Plaintiffs worked in those departments. (Pis.’ Resp. 1.) Otis explained in its position statements to the EEOC that as the economy continued to decline and layoffs were needed, the “company’s management made a number of transfers and reassignments among its departments in an effort to retain as many employees as possible, particularly its superior mechanics in the Construction and Modernization departments.” (Pis.’ Resp. Ex. F, Excerpt from E.

Lardner’s EEOC Statement.) Plaintiffs argue that their terminations were not made pursuant to a bona fide reduction in force because Otis “bumped” Maintenance mechanics “in favor of Construction and Modernization refugees” as part of its workforce reduction, thus replacing Plaintiffs with other Otis employees doing related work rather than eliminating their positions. The Sixth Circuit has recognized, however, that such “reshuffling” of the workforce in an effort to achieve an overall cost savings is a legitimate means of carrying out a RIF and is consistent with the mandate of Barnes. In Brocklehurst v.

PPG Indus., Inc., 123 F.3d 890 (6th Cir.1997), the Sixth Circuit reversed the district court’s denial of PPG’s renewed motion for

summary judgment as a matter of law challenging the sufficiency of the evidence in support of the jury’s verdict on plaintiffs age discrimination claim, and remanded to the district court with instructions to enter judgment in favor of PPG on plaintiffs age discrimination claim. In Brocklehurst, it was undisputed that PPG was seeking to reduce costs and increase profitability, in part by terminating approximately 130 employees. Id. at 895. Performance was to be the sole criteria for determining who would be terminated and the employees were ranked against each other to accomplish this purpose. Id. at 893.

Brocklehurst' was ranked near the bottom of employees in his peer group and therefore was identified as an employee who should be terminated as part of the RIF. Id. Brocklehurst was terminated and his position was filled by another PPG employee who was promoted to Brocklehurst’s position following Brocklehurst’s termination. The position previously occupied by Brocklehurst’s replacement was filled by another PPG employee and that employee’s position was left unfilled. Id. at 895.

Concluding that Barnes could not be interpreted to disqualify a termination as part of a RIF if the affected employee’s position is not eliminated, the Sixth Circuit held: PPG could not eliminate the director of marketing for the Ford and Mazda accounts. Therefore, PPG had to promote another employee to fill the vacancy left by Brocklehurst’s discharge. That promotion, however, does not mean that PPG did not discharge Brocklehurst as part of its overall RIF.

It is undisputed that, as part of the overall reshuffling, Brocklehurst’s discharge resulted in the elimination of one employment position and accomplished cost savings for PPG, the goal of any RIF. To accept the district court’s reading of Barnes is tantamount to saying that a business must restrict its work force reductions to employees who occupy non-essential positions. We do not believe that is the law of this circuit. We therefore find that PPG terminated Brocklehurst as part of its RIF. 123 F.3d at 895. In Douglas v. Int’l Automotive Components Grp. North America, Inc., 483 Fed.

Appx. 178 (6th Cir.2012), the Sixth Circuit applied the logic of Brocklehurst in a case involving a reduction in force that “reshuffled” valued employees to replace employees who were terminated following a directive to reduce costs. In Douglas, the plaintiff was terminated and his position was filled by another employee who did related but not identical work but who was deemed to be critical to the upcoming launch of a particular project. Id. at 180.

Rejecting plaintiffs contention that the RIF was not the true reason for his discharge because his position was filled by another existing employee, the Sixth Circuit relied on Brocklehurst and held that the “reshuffling” of employees, which resulted in an overall cost savings, was a legitimate means to accomplish a RIF: “[T]he “reshuffling” resulted in the elimination of a position and cost savings, ‘the goal of any [reduction in force].’ ” Id. at 181 (quoting Brocklehurst, 123 F.3d at 895) (second alteration in original).

Thus, Otis’s decision to retain its more valued Construction and Modernization mechanics does not disqualify the Plaintiffs discharges as having been accomplished pursuant to a RIF. Plaintiffs also suggest that the fact that there were rehires and even new hires after Plaintiffs were laid off indicates that there was no bona fide need to reduce the workforce. Phil Davis testified, however, that there may have been new hires or rehires but that the overall number of mechanics definitely reduced over the relevant period of time. (Def.’s Mot. Ex. 9, Davis Dep. 150-51).

This testimony is consistent with the documentary evidence that demonstrates that Otis employed 72 mechanics on January 20, 2009 and employed 57 mechanics on June 30, 2010. 0Compare Def.’s Mot. Ex. 2, Steger Deck ¶ 14, Ex. B, January 21, 2009 Rack and Stack with Pis.’ Resp. Ex. O, List of Mechanics in Detroit office as of June 31, 2010.) This evidence is unrebutted. Plaintiffs suggest that because the number of employees in the Maintenance/Repair department did not decrease over the period that included the RIF, Otis did not in fact decrease its number of mechanics.

Otis has explained, however, that the workforce was evaluated as a whole, not just by department, i.e.

Construction, Modernization and Repair, and that while there may have been a few new hires, there was definitely a greater number of layoffs overall. (Davis Dep. 150.) As Brocklehurst makes clear, evidence that Otis preferred to retain its Construction and Modernization mechanics, and to transfer some of them to the positions previously occupied by Plaintiffs, is simply insufficient as a matter of law to permit the Court to conclude that plaintiffs’ terminations were therefore not pursuant to a bona fide RIF. “[A] project-specific or employee-specific increase in work cannot rebut [Otis’s] aggregate data demonstrating a companywide downturn in [elevator] work and decrease in workforce.” Copeland v.

Regent Electric, Inc., 499 Fed. Appx. 425, 430 (6th Cir.2012). In Copeland, just days before laying off the African American plaintiff, the employer had transferred five white employees from other projects to the plaintiffs project. The Sixth Circuit held that even assuming another employee took on the work previously performed by plaintiff, the lay off still fell under Barnes’s definition of a RIF: Regent, facing a companywide decrease in work, reduced its workforce and diverted some of its senior employees and a lower-wage apprentice to one of its work-heavy projects, laying off a junior employee instead.

Prior to the transfer, each of these five transferees performed the same sort of electrical work as Copeland on other Regent projects — four, of them even held the same job title as Copeland. Given this record, a jury could only conclude that Regent redistributed the electrical work available companywide among employees performing “related work.” Because the legal definition of “reduction in force” foreclosed the district court from inferring that a mere replacement occurred, the court correctly required “additional evidence” of discrimination. Copeland, 499 Fed.Appx. at 432.

Plaintiffs have not attempted to establish that any of the mechanics who assumed the Plaintiffs’ job duties were not previously performing “related work.” The mere fact that they were elevator mechanics in different departments working on different projects does not inescapably lead to the conclusion that they were performing unrelated work. Indeed, the fact that all mechanics across all departments are ranked on the same Rack and Stack demonstrates that Otis believes their skill sets to be to some degree related or fungible.

Under the reasoning of the Sixth Circuit’s decisions in Brocklehurst, Douglas and Copeland, Otis’s business decision to redeploy its existing workforce to meet any labor demands created by its lay off decisions does not disqualify the lay offs as a RIF. It is true that if Plaintiffs had been able to demonstrate a genuine factual dispute regarding the existence of the RIF, applying the additional evidentiary burden required in the case of a RIF would be inappropriate.

In the instant action, however, although Plaintiffs’ contest the “legitimacy” of Otis’s reduction in force, Plaintiffs have failed to adduce concrete evidence to dispute the “existence” of the reduction. “Ultimately, whether one characterizes [Otis’s] restructuring as a replacement or an elimination of a position, the fact that an employer facing a work shortage shifts the available work to some employees and lays off the rest (including [African Americans and older workers])— without more — fails to establish a prima facie case of discrimination.” Copeland, 499 Fed.Appx. at 432.

Accordingly, under Barnes and its progeny, the Plaintiffs bear the burden at the prima facie stage of producing additional direct, circumstantial or statistical evidence in this case that the Plaintiffs were singled out for termination because of their age. b. Plaintiffs have not met their heightened burden of production under Barnes.

Because Plaintiffs were terminated pursuant to a RIF, they must do more than simply demonstrate that each of them was replaced by a younger worker — they must produce “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons” in order to satisfy the fourth prong of their prima facie case.

Barnes, 896 F.2d at 1465. ' While each Plaintiffs’ claim ultimately must be analyzed individually under the McDonnell Douglas burden shifting framework, see Barnes, 896 F.2d at 1470, Plaintiffs suggest that an inference of discrimination as to the entire group is sufficiently demonstrated by certain “statistical” evidence and that this showing would satisfy the heightened fourth prong of the prima facie case as to each Plaintiff.

In addition, Plaintiffs point to other circumstantial evidence that they assert generally demonstrates that they were targeted for termination due to their age, i.e. the alleged disparities between the FAPE values and the Rack and Stack numbers, the alleged subjectivity of the FAPEs, and a “corporate culture” that devalued older workers. i.

Plaintiffs’ “statistical” evidence does not tend to indicate that Otis singled Plaintiffs out for discharge because of their age. “Appropriate statistical data showing an employer’s pattern of conduct toward a protected class as a group can, if unrebutted, create an inference that a defendant discriminated against individual members of the class.

To do so, the statistics must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity.” Barnes, 896 F.2d at 1466 (citations omitted). “[B]oth the methodology and the explanatory power of the statistical analysis must be sufficient to permit an inference of discrimination.” Id. (citing Simpson v. Midland-Ross Corp., 823 F.2d 937, 944 (6th Cir.1987)). Plaintiffs’ “statistical evidence” falls far short of the type of statistical evidence that the court in Barnes and in subsequent cases relied on by Plaintiffs, such as Scott v.

Goodyear Tire & Rubber Co., 160 F.3d 1121 (6th Cir.1998), found sufficient to establish a prima facie case under the heightened standard applicable in a RIF. Neither the methodology nor the explanatory power of Plaintiffs’ “statistical” analysis is sufficient to permit an inference of discrimination at the prima facie stage. Barnes cautioned that any data relied on to support an

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