NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1041n.06 No. 11-3655 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
CHARL OTTE B ECK, Plaintiff-Appellant,

v. BU CKEYE PI PEL I

NE SERVI CES C O., Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OH I O

Be fore : CL AY and SUTTO N, Circuit J udg es; RI CE, District J udg e. *
SUTTON, Circuit J udg e. Charlotte Be ck sued her employ er, Buc key e Pipeline Service s Co., alleg ing that the company discriminated ag ainst her based on g ender and ag e when it discharg ed her

as part of a company -wide reduc tion in forc e. The district court g rante d summary judgme nt to Buc key e. We af

firm.

I
.
I n spring 2009, Buc key e assembled ten company leade rs as part of a “desig n team” to ref orm the company ’s org anizational structure
. R. 28-4 at 2 (Pag e I D #158). The new structure focuse d on dece ntralized, team-ba sed leade rship rathe r than centr alized, top-down control, id

. at 2–4 (Pag e I D

The Honor able Walter H erbe rt Rice, United States District Judge f or the Southern * District of Ohio, sitting by desig nation.No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. #158–60), and promoted “ac countability , flexibi l i t y , adapta bility , [and] teamwor

k” among employ ees. Id . at 3–4 (Pag e I D #159–60).
After reva

mping the company ’s org aniz at i o n , t h e desig n team cre ated a new sy stem for evaluating employ ees. Id

. at 3–4. The team assig ned eac h employ ee two rating s: an “A” rating that assessed the employ ee’ s “[s] kill [p] otential,” and a “B ” rating that assessed the employ ee’ s “[a]bil ity to [w] ork [i ]n and [p] romote [t ]he [n] ew [c] ulture,” which included things like whether the employ ee
was “[a] g ood listener and communicator,” “willing to work in a team,” “proa ctive and acc ountabl e , ” and able to “make g ood judgme nts about priorities without close supervision.” R.28-2 at 8–9 (Pag e I D #151–52). The team require d at least two people with knowledg e of the employ ee to prese nt their views and to “cite specific examp l es o f b ehaviors that supported a proposed g rade .” R.28-4 at 4 (Pag e I D #160). An employ ee could ear n a score rang ing from zero to four for eac h rating with four being the highe st. Id

. The matrix combined the score s by multipl y ing the A score by ten points and the B score by fiftee n points and adding the two values toge ther, creating one hundred potential points. Id

. at 9 (Pag e I D #152). The team decide d that the company would not reta in any employ ee who re ceive d few er tha

n six ty points. Id

.
I n late J u n e an d ear ly J uly 2009, the desig n team split into smaller g roups to conduct the employ ee e valuations. R.28-3 at 2–3 (Pag e I D #155–56); R.28-21 at 88–89 (Pag e I D #1129–39). Five people—Car l Ostach, Rick Bishop, Roge r Hatch, Mark J ohnson and Bill Serra —evaluated the employ ees who worke d at Buc key e’s L ima, Ohio locations, R.28-21 at 83 (Pag e I D #1124), which included Be ck, a twelve- hour operator at Buc key e’s L ima Station. Id

. at 6 (Pag e I D #162); R.28-12 - 2 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. at 49 (Pag e I D #605). At that time, Be ck, fifty y ear s old, had worked at Bucke y e for over six teen y ear s. R.28-13 at 17 (Pag e I D #760); R.28-14 at 2 (Pag e I D #764); R.28-4 at 6 (Pag e I D #162). She was the only

woman among

the eig ht twe lve-hour operators at L ima Station. R .29-1 at 127 (Pag e I D #1317); R.28-21 at 33–34 (Pag e I D #1074–75).
Three members of the five-pe rs on g roup—Ostac h, Bishop and J ohnson—provided information about Be ck’s perf ormanc e. R.28-21 at 1 0 0 , 1 0 6 , 110 (Pag e I D #1141, 1147, 1151). Ostach describe d Be ck as someone who “complained about the way things were scheduled, [ and] complained about direc tions that t he controllers wer e g iving in L ima,” and who resisted the implementation of new safe ty prog rams. R.28-21 at 100–05 (Pag e I D #1141–46). Bishop said that Be ck “wa s not much of a team-pla y er” beca use she fre quently ref

used to fill in for other operators, and she had twice failed to addre ss problems inherited from o t h er o pera tors, which had to be

corr ecte d afte r her shift. R.28-6 at 5–6 (Pag e I D #175–76). J ohnson said Be ck “wa s not particula rly cooper ative with the Control Center, and

. . . was slow to respond to its reque sts.” R.28-3 at 3 (Pag e I D #155). He also said that, “[r]ather than working with the Control Center to find solutions to problems, Ms. Be ck tended to state that the problem was not her responsibility ,” which J ohnson thought meant Be ck “likely would not thrive i n the new environmen t, which placed a particula rly high value on teamwor

k.” Id

. Ba sed on this information, the five-pe rson gro up g ave Be ck an A

score of two and a B score of one, which added up to thirty -five points. R.28-2 at 5 (Pag e I D #148). Be cause Be ck’s sco re fell well below the six ty -point threshold for rema ining at Buc key e, the

- 3 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. company fired her (and 139 other employ ees) on J un e 2 0 , 2 0 0 9

. R.28-4 at 6 (Pag e I D #162). A y oung er, male employ ee with less experience was assig ned to Be ck’s position as a 12-hour operator.
B e c k s u ed Buc key e, alleg ing g ender and ag e discrimination under Ohio law. Ohio Rev. Co d e §§ 4112.02, 4112.99. The district cour t gr anted summary

judgme nt to Bucke y e.
I I
. Ohio courts apply the fede ral burden- shifting framework set forth in Mc Donnell-Douglas Corp. v. Gree n , 411 U.S. 792, 802 (1973), to discrimination claims filed under Ohio law. Helmick

v. Cincinnati W

ord Processing, Inc. , 543 N.E.2d 1 2 1 2 , 1 2 1 5 n .2 (Ohio 1989). For purposes of revie wing the district court’s summary judgme nt ruling , the parties ag ree that Be ck has made a prima fac ie case and that Buc key e has offe red a leg itimate, non-discriminatory rea son for firing Be ck: the company -wide reduc tion in forc e. Appellant Br
. at 13; Appellee Br
. at 18. That puts the burden on Be ck to show that Buc k ey e’ s p ro ffered rationale for firing her was a prete x t for discrimination, Upshaw v. Ford Motor Co. , 576 F.3d 576, 586 (6th Cir. 2009), a not inconsidera ble burde n g iven that in reduc tion-in-forc e case s “the most common leg itimate rea sons for the discharg e are the work forc e reductions” themselves. Barnes v. G enCorp, Inc. , 896 F.2d 1457, 1465 (6th Cir. 1990); see also Southworth v. N. Trust Sec. Inc. , 960 N.E.2d 473, 480 (Ohio Ct. App. 2011) (“[I ]n a [reduction i n fo rc e] , q ualified employ ees are g oing to be discharg ed.”)

. Acknowle dg ing that a reduc tion in forc e would be a leg itimate rea son to discharg e her, she cl ai ms nonetheless that “numer ous

- 4 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. circ umstances tend to show that [he r] t er m i n ation was motivated by ag e and/or g ender discrimination.” Appellant B r. at 20. We disag ree .
Be ck submits that the desig n team’s relianc e on “subjec tive cr i t eria” in selec ting her for termination p er m i t s t h e infere nce that she was “sing l[ ed] out” beca use of her ag e and g ender

. Appellant Br
. at 13. Subjective criter ia, it is true, sometimes make it difficult to distinguish betwee n lawful and unlawful employ ment actions, and they deser ve “ c a r e f u l[ ] s crutin[y ].” Rowe v. Cleveland Pneu ma t i c C o . , N

umerical Control, Inc. , 690 F.2d 88, 93 (6th Cir. 1982). But “fle x ibilit y in deter mining individual components of a matrix score does not indicate discrimination.” Browning

v. Dep’ t of the Army , 436 F.3d 692, 697 (6th Cir. 2009) (quoting Brown v. EG& G Mound Applied Tech., Inc. , 117 F. Supp. 2d 671, 680 (S.D. Ohio 2000)). The question “is whether the s ubjective criter ia wer e used to disguise discriminatory action.” Grano v. Dep’ t of Dev

. of Columbus , 699 F.2d 836, 837 (6th Cir. 1983).
Be y ond her g ener al conce rn about subjective criter ia, Be ck d o es n o t challeng e as discriminatory any of the specific criter ia the desig n team used to evaluate her: whether an employ ee
was “a g o o d l i s t en er and communicator[,]

. . . willing to work in a team[,]

. . . acc epts
acc ountability [,]

. . . [and] works with speed, ener g y and eff iciency .” R.28-2 at 9 (Pag e I D #152). Nor c ould she. None of

these c riteria disc riminates base d on g ender or ag e.
Be ck instead arg

ues that application of these criter ia to her was a prete x t for discrimination beca use the de sign te am’s eva luation conflicte d with the assessment of her immediate supervisor,

- 5 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. Kevin Dansby

. Dansby was not a member of the desig n team, but Bishop solicited his opinion about the employ ees he supervised. Dansby , it is true, said Be ck was a good employ ee. B ut he said the

same thing about all of his char g es. He “told [Bishop]

. . . ever y body on the list that I thought wer e g ood perf ormers.” R.31 at 105 (Pag e I D #1524). And w hen “a sked if [he] had to phase out some employ ees, who would [he] phase out[ ,] . . . [ he] said none of them,” beca use “the y wer e all g ood perf ormers and

. . . [he] wouldn’t phase out any employ ee.” Id

. at 105–06 (Pag e I D #1524–25). “You’ re not being of much help here ,” Bishop eventua lly responde d. Id

. at 10 8

– 1 0 (P age I D #1527–29). Dansby ’s unwillingness to c riticize a ny of his e mploy ees in connec tion with a reduc tion in forc e does n o t cast doubt on the vera city of the experience s that Ostach, Bishop and J ohnson descr ibed when evaluatin g Be ck. Despite her argument to the contra ry , all three had persona lly worke d with Be ck. R. 28-2 at 4–5 (Pag e I D #147–148); R.28-6 at 2 (Pag e I D #172); R.28-3 at 3 (Pag e I D #155); cf. R.28-12 at 5 3 (P age I D #609). They said she complained often, resisted direc tion, responde d slowly , was uncooper ative and was not a team play er. R.28-21 at 100–11 (Pag e I D #1141–1152); R.28-2 at 4–6 (Pag e I D #147–49); R.28-3 at 3 (Pag e I D #155); R.28-6 at 5–6 (Pag e I D #175–76). S

ee Id emudia v. Chase , 434 F. App’x 495, 505 (6th Cir. 2011) (citing specific examples to support e mploy er’ s subjective evaluation). Dansby disag ree d with these asse ssments at his deposition but never share d his contra ry thoughts with Bishop befor e the team evaluated Be ck. R.31 at 105–10, 127–28 (Pag e I D #1524–29, 1546–47). Dansby ’s s atisfac tion with Be ck’s work under the old sy stem at any rate does not prove she would succe ed under the new sy stem. See Peters

- 6 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co.
v. Lincoln Elec. Co. , 285 F.3d 456, 474 (6th Cir. 2002). The desig n team, and only the desig n team,
was asked to decide what qualities to require of employ ees in Buc key e’s new manag ement sy stem.
Be ck has one other objection to the team’s evaluation. She say s the team knew Bishop had

s p oken to Dansby and expected Bishop’s evaluation comments to ref lect Dansby ’s opinion. By sharing an opinion that conflicte d with Dansby ’s, s he say s Bishop viol ated the team’s policies for conducting evaluations. Not true. The team understood Bishop would speak to Dansby , but did not expect him to be mere ly a conduit for Dansby ’s opinion: in Ostach’ s words, Bishop “would g ive his input ba sed on what his knowledge was of the employe e . . . as well as what the are a supervisor’ s[, Dansby ’s], i n p u t wa s.” R.28-21 at 84 (Pag e I D #1125) (empha sis added)

. The fac t that Bishop

comm u n icated a somewhat neg ative revie w to the team does not show, as Be ck arg ues, that he provided “fa lse information

. . . by claim[ing] that Dansby [said] Be ck [w] as a complainer and not
a team play er.” Appellant Br
. at 22. There is no evidenc e in the rec ord to support a fi n d i ng that Bishop told the team that Dansby believed that Be ck was a complainer and n o t a t ea m play er. Bishop said Dansby “tende d to be a high g rade r and was reluc tant to provide critica l comments about the employ ees under his supervision. At the same time, [he] wa s n o t ab l e to ref ute the specific examples of behavior s that Icited to him.” R.28-6 at 5 (Pag e I D #175). As a r esult, in presenting his own evaluation, Bishop was entitled to disre g ard Dansby ’s opinion, which “did not have much influence in the s coring rec ommendations” B ishop made to the team. Id . Be ck, to s ay nothing of

ever y other employ ee under Dansby ’s supervision, may wish t h at Bishop had adopted Dansby ’s opinion of her, but she c annot complain that he misre prese nted it.

- 7 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. When all is said and done, the us e of subjective e valuation cr iteria doe s not by itself show discrimination, particula

rly in a reduc tion in forc e case . The dissent’s thoughtf ul conclusion to the contra ry relies pr imarily

on the t heory that the reduction in forc e did not actua lly motivate Be ck’s discharg e. See Manzer v. Diamond Shamrock Chems. Co. , 29 F.3d 1078, 1084 (6th Cir. 1994). To preva il unde r this theor

y , Be ck “must show that the sheer weig ht of the circ umstantial e vidence of discrimination makes it more likely than not” that Buc key e terminated her based on a p re t ext. Abdulnour v. Campbell Soup Supply Co., LLC , 502 F.3d 496, 503 (6th Cir. 2007) (quotations omitted). But Be ck has no evidenc e that Buc key e terminated women or older worke rs at a disproportionately high rate during the reduc tion in forc e; that Buc key e deviated from its normal use of subjective evaluation proce dures; or that Bishop lied about Dansby ’s comments. I n the absenc e of any such evidenc e, the mere fac t that B uckey e used subjective c riteria c annot by itself establish prete x t. Browning , 436 F.3d at 697.

I I I
.
For these re asons, we a ffirm.

- 8 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. CLAY, Circ uit Jud ge, dissenting. The majority mischara cter izes the dissent’s arg ument
as well as the appropr iate leg al standard to be employ ed under the circ umstances of this c ase. The issue is not simply whether the use of subjective criter ia, in and of itself, demonstrates discrimination in a re duction-in-for ce c ase. Rathe r, t he is sue is whether there is enoug h evidenc e, cir cumstantial

or oth er wise, to sug g est that discrimination was at least one of the fac tors motivating Plaintiff’s t er mination, under circ umstances wher e discrimination could be masked under the cloak of subjectivity

. W

h i t e v. Baxter Healthcare Corp. , 533 F.3d 381, 400 (6th Cir. 2008); see Griffin v. F i n kb ei ner , 689 F.3d 584, 594 n.7 (6th Cir. 2012) (noting that “sing le-motive and mix ed-moti v e theories are not distinct claims, but rathe r differ ent way s of analy z i n g t h e s ame claim” and the decision about which theory the case involves “may not alway s occur befor e the summary -judg ment
s t age” ). See also Hedrick v. W estern Reserv e Care Sys. , 355 F.3d 444, 461 (6th Ci r. 2 0 0 4 ) (“[ S ] u b jective rea sons provide rea dy mecha nisms for discrimination.” (interna l quotation marks omitted)).
Plaint iff Charlotte Be ck, who was over fifty y ear s old and the only fema le twelve- hour operator at Def

endant’ s L ima plant, was terminated afte r six teen y ear s of well-re viewed, disciplinefre e perf ormanc e. To justify Plaintiff’s termination, De fenda nt used a sy stem heavily reliant on subjective criter ia. Def

endant then applied its sy stem to Plaintiff in a manner inconsistent w ith its

own established proce dures. Fur thermore , the rec ord demonstrates th a t D e f e n d a n t s o lic ited the input of P l ai n t i ff ’s direc t supervisor, then ignor ed his input when it failed to comport wit h the negative revie ws of Plaintiff produce d by Def endant’ s Desig n Team. Under these circ umstances, sufficie nt

- 9 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. evidenc e that Def

endant’ s decision was prete x tual rende rs this case inappropriate for dispositi on at summary judgme nt. For the se re asons, I respe ctfully

dissent.

I n absenc e of direc t evidenc e of discrimination, the plaintiff must first make out a prima facie

case for discrimination by showing that (1 ) s h e i s a member of a protec ted class, (2) she was
s u bjected to an adver se employ ment action, (3) she was qualified, and (4) she was repla ced b y someone outside of the protec ted class. Geiger v. Tower Auto. , 579 F.3d 614, 622 ( 6th Cir. 2009); Helmick v. Cincinnati W

ord Processing, In c. , 543 N.E.2d 1212, 1215 n.2 (Ohio 1989) (applying McD onnell Douglas Corp. v. Gree n , 411 U.S. 792, 802 (1973), to discrimination claims filed under Ohio law). Be cause Plaintiff’s termination arose as part of a work forc e reduc tion, “this [C ]ourt has modified the fourth element to r equire the plaintiff to pr ovide ‘additional direc t, c ircumstantial, or statistical evidence tending to indicate that the e mploy er singled out the pl aintiff for discharg e for impermissible rea sons.’” Geiger , 579 F.3d at 623 (quoting Barnes v. GenCorp , 896 F.2d 1457, 1465 (6th Cir. 1990)); see also Campbell v. PMI Food Equip. Group, Inc. , 509 F.3d 776, 785–86 (6th Cir. 2007). After the p l ai n tiff has made out a prima facie case of discrimination, the employ er must prese nt a leg itimate, non- discriminatory rea son for the termination. Geiger , 579 F.3d at 626. The burden of production then shifts back to the p laintiff to show that the employ er’ s proff ere d nondiscriminatory

rea son was pre text
. Id

. Def endant in the instant case conce des that Plaintiff made out her prima facie case , and the parties ag ree that the reduc tion in force s at i s fi es Def endant’ s burden of production. See Bec k v. Buck eye Pipe Line S

e r v s. Co. , No. 3:10-cv-319, 2011 WL 2076487, at *3 (N.D. Ohio May 25, 2011).

- 10 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. Acc ording ly , the sole issue for our revie w is whether Plaintiff ha s met her burden of production as to prete x t. The majority conclude s that Plaintiff fa i l ed to satisfy this burden. I n so holding, the majority confuse s Plaintiff’s burden of production with a b u rden of persua sion, and imposes a “pre text -plus” standa

rd firmly reje cted by

the Supreme Court a

nd this Court’s prece dents.

I n Ree ves v. Sanderson Plumbing Prods., Inc. , the Supreme Court established that judgme nt
as a matter of law for a defe ndant in an employ ment discrimination c ase may be appropr iate under

cer tain circ umstances even if the plaintiff satisfies her burdens to show a prima facie case and prete x t. 530 U.S. 133, 148 (2000). Of course , depending on the circ umstances, a prima facie case and a showing of

prete x t can a lso support judgment for the plaintiff. Id . at 147–48. According ly , “bec ause a prima facie case and sufficie nt evidenc e to reje ct the employ er’ s explanation may permit

a finding of liability ,” a court “er r[s] in proce eding from the premise that [t he] plaintiff must alway s intr o d u c e a d d it iona l, independe nt evidenc e of discrimination.” Id

. at 149. Rather, whether judgme nt is appropr iate rema ins a heavily -conte x t driven inquiry that “depe nds on a number of fac tors
. . . [i ncluding ] the streng th of the plaintiff’s prima facie case , the probative value of the proof that the employ er’ s explanation is false, and any other evidenc e that supports the employ er’ s case and that proper ly may be conside red on a

motion for judgme nt as a matter of law.” Id . at 148–49.

I n Blair v. Henry Filters, Inc. , we extended the rationale of Ree ves to the summary judgme nt stag e and conclude d that “to s u rv i v e summary judgme nt a plaintiff need only produce enoug h evidenc e to support a prima facie case and to re but, but not to di sprove, the de fenda nt’s proff ere d rationale .” 505 F.3d 517, 532 (6th Cir. 2007). Acc ording ly , we held that a plaintiff “d[oes] not need - 11 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. to produce additional evidenc e to support a f inding of prete x t; the evidence that [she] produce d in support of [ her] prima facie case may , but will not nece ssarily , suffice to show a genu i ne is sue of materia l fac t conce rningprete x t.” Id

.
A plaintiff can demonstrate prete x t by one of the following three showing s: “th at the employ er’ s stated rea son for the adver se employ ment action (1) ha[d] no basis in fac t; or (2) was not the actua l rea son; or (3) was insufficient to explain the employ er’ s action.” W hite , 533 F.3d at 393. The first cate g ory implicates evidenc e “that the proffere d bases f o r t h e plainti ff’ s discharg e never happene d,” while the second cate g ory require s that the plaintiff “admit[] the fac tual basis underlying the employ er’ s proff

ere d explanation and further admit[ ] that such conduct coul d motivate dismiss al.” Manzer v. Diamond Shamrock Chems., Co. , 29 F.3d 1078, 1084 ( 6th Cir. 1994). The third cate g ory of prete x t c onsists of evidenc e that other employ ees, particula rly employ ees outside the protec ted class, wer e not subjected to the same adver se employ ment decision even though they eng ag ed in substantially identical conduct to that which alleg edly motivat ed t h e plaintiff’s termination. Id.

I n the instant case , Plaintiff proce eded primarily down the second of these paths. She has not disputed that De fenda

nt was experiencing a company -wide reduc tion in forc e at the time of her termination. Howeve r, she questions whether the reduc tion was the rea l basi s fo r her dismiss al, g iven t hat Defenda

nt never produce d a satisfactory explanati o n fo r wh y Plaintiff was selected for terminatio n i n s t ea d of one of her y oung er, male colleagues. I n contesting Def endant’ s explanation—that Plaintiff wa s t er m i n ated beca use she rec eived low assessment score s from the - 12 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. Desig n Team—Plainti ff r aises seve ral compelling challeng es t o her evaluation. These cha lleng es
cre ate at least a materia l issue of fac t about whether “an illega l motivation was more likely than [t he

rea son] offere d by

[Defenda nt] .” Id

. First, Plaintiff points out that the Ohio courts find it “suspicious” when an employ er chooses “to fi re a qualified, older employ ee [whil e] reta in[ ing] y oung er ones” in a reduc tion in forc e. Hoffman v. C

HSHO, Inc. , No. C A2 0 04-09-072, 2005 WL 1799307, at *4 (Ohio C t. App. Aug. 1, 2005) (citing W

oodhouse v. Magnolia Hosp. , 92 F.3d 248, 253 (5th Cir. 1996)). Under these circ umstances, the Ohio courts require the Def endant “to articula te rea sons fo r s i ng ling out an
em p lo y e e w ho is within the statutorily -protec ted class for termination, while reta ining [an] employ ee who is outside that class.” Id . Def endant ha s not met this s tandar d.
As a star ting point, it bear s mentioning that Def endant has never contende d that Plaintiff’s termination was justified beca use she was either lacking , or fell appre ciably behind her colleag ues, in terms of her objective ski lls or qualifications. T h i s , toge ther with the ot her probative evidence

o f di scrimination in the case, shoul d establish a triable issue as t o prete x t. Under ou r p re ce d en t s , when a plaintiff demon s trates that she is “as qualified as if not better qualified than [her reta ined colleagues],” summary judgme nt is inappropriate. Provenzano v. LCI Holdings, Inc. , 663 F.3d 806, 815 (6th Cir. 2011) (interna l citations omit ted). Significa ntly , this conclusion is only bolstered by the fac t that Def endant has all but admitted that the decision to terminate Plaintiff was based entirely on subjective criter ia. The Desig n Team’s

- 13 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. evaluation proce ss contained two components: an objective qualifica tion component (worth roug hly forty per ce n t o f the employ ee’ s score ), and a subjective component (worth the rema ining six ty perc ent). Bec k , 2011 WL 2076487, at * 1 –2. The objective portion, known as the “A” score , measure d the em p l o y ee’ s “tec hnical ability or the phy sical ability to perf orm a particula

r task;” wher eas the “B ” score repr ese n t ed whether the employ ee would “fit in” with Def endant’ s “new culture,” as judge d by “being acc ountable for [one’s] actions, taking initiative, being a team play er, [and] having an entre prene urial outlook.” Id

. Def endant conce ded at oral argument that Plaintiff’s “A” score was within the rang e of the employ ees who wer e reta ined by the company . Howeve r, Def end an t p ro vided no explanation for why it valued its subjective component over the objective component, or why it chose this substantially subjective approac h over al t er n ati ves t hat would be less open to criticism. Rather, it is appar ent from the rec ord that Defen d ant deliberately used a sy stem which did not emphasize objective fac tor s , s uch as educa tion or training cre dentials, seniority in the company , or simple technica l skills. Any of these fac tors, or a simple rec alibration of the “A” and “B ” scor es mig ht have r emoved or reduc ed subjec tivity

in the selec tion process.
This Court has repe atedly emphasized t h at d ec i s ions made on the basis of subjective criter ia, such as whether an employ ee is a team play er or whether she would fit into a new corpor ate culture, can “provide a rea dy mecha nism for discrimination,” and thus should be “ca ref ully scrutinized.” Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc. , 690 F.2d 88, 93 (6th Cir. 1982); see also Hedrick

, 355 F.3d at 461 (6th Cir. 2004). Although being a “tea m play er” may have b ee n an im portant consideration for Defe ndant i n car rying out its reduc tion in forc e, it should n o t

- 14 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. be trea ted as an absolute defe nse to what may amount to unlawful discrimination. Idem udia v. Chase , 434 F. App’x 495, 504–505 (6th Cir. 2011) (citing W exle r v. W

hite’s Fine Fu r n iture , 317 F.3d 564, 576 (6th Cir. 2003)). Additionally , the majorit y h as far too quickly dismiss ed the inconsistencies committed by the Desig n Team in perf orming Plaintiff’s assessment. Plaintiff has provided cre dible evidenc e from which to infer that she did not rec eive a revie w b y t h e required number of individuals, that the individuals who revie wed her wer e not sufficie ntly familiar with her work per f o r ma n c e , a n d —most damning of all—that the Desig n Team solicited, and then deliberately disreg arde d, a favor able revie w of Plaintiff’s perf ormanc e by her direc t supervisor when they found they had insufficien

t information to complete Plaintiff’s revie w under the Desig n Team proce ss. The majority ’s abrupt discharg e of t h i s last piece of evidenc e is particula rly problematic, beca

use it ignor es the leg itimate possibili ty that Plaintiff’s supervisor—who was a supervisor over only twelve employ ees—g ave all of his employ ees favor able revie ws simply beca use they all wer e perf

orming favor ably , and not beca

use he was incapa

ble of p ro perly evaluating them. Yet in spite of this evidenc e, the majority claims that Plaintiff has not shown that Def endant “deviated from its normal use of subjec tive evaluation procedur es.” Ma j. Op. at 8.
The majority further faults Plaintiff for failing to prove “that Buc key e terminated women or older worke rs at a disproportionately high rate during t h e re d u ct ion in forc e.” Id

. Whil e such evidenc e would have been benef icial to Plaintiff’s case , it is simply not require d in light of the other evidenc e that she has put forwa rd to rebut Def

endant’ s proff

ere d rationale for terminating her. See Geiger , 579 F.3d at 623 (re q u i ri n g a plaintiff in a reduc tion-in-forc e case to adduce “additional

- 15 -No. 11-3655

Bec k v. B ucke

ye P ipeline Serv ices Co. direc t, circ umst an t i al , or statistical evidenc e tending to indicate that the employ er single d out the plaintif f fo r d i schar g e for impermissible rea sons” (empha sis added) (interna l quotation marks omitted)). Despite citation to Rowe ’s require ment of car eful scrutiny in subjective-c riteria case s, the majority does nothing to embra ce Rowe ’s char g e to car efully scrutinize employ ment decisions based

on subjective evaluations “ in or der to preve nt a buse.” 690 F.2d at 93. I nstead, the majority g libly

acc epts Def

endant’ s emphasis on subjective c riteria a s a valid business judgme nt. The majority ’s inattention to Def

endant’ s use of subjective criter ia is only mag nified by the proce dural posture of this case . After

all, the validity

of a subjec tive revie w is an issue of f act ultimately

best left t o the fac t-finder

. Ray v . Oakland Cnty. Circuit Court , 355 F. App’ x 873, 885–86 (6th Cir. 2009). And if we view the fac ts in Pl a in ti f f ’ s favor —as we must on summary judgme nt—the competing acc ounts about Plaintiff’s subjective qua lifications sug g est the nee d for a far more dilig ent inquiry

than has been indulg ed by

the majority

here

. Given the above, clea

r disputes of mater ial fac t rema in as to prete x t. Be cause Plaintiff should not be shouldering the entire burden of proving actua l intentional discrimination at t h e summary judgme nt stag e, this case was pre maturely decide d. Acc ording ly , Irespe ctfully dissent.

- 16 -