NOT RECOMMENDED FOR PUBLICATION File Name: 20a0028n.06
Case No. 1 9

- 3422
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DONALD T. TSCHAPPATT , Plaintiff

- Appellant ,

v. CRESCENT METAL PRODUCTS, INC. , Defendant

- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: GUY , SUTTON, and GRIFFIN , Circuit Judges. SUTTON, Circuit Judge. Crescent Metal Products fired Donald Tschappat t for poor performance at work and assigned s omeone older to tak e his place

. C laiming he was fired due to
age, he sued. The district court granted summary judgment to the company . W e affirm.
Crescent makes commercial food service equipment . It sells the equipment to restaurants, schools, and hotels. In 2006 , it hired Tschappat t, then 46 , for a manufacturing position. Six years later , Tschappatt sought and obtained a position in the “ C lean and P ack” group. Th e group assembl e s Crescent’s products , clean s them , and pack s them for shipment

. Tschappa t t obtained several disciplinary and performance infractions in his last years

. H is supervisors informally disciplined him several times for “negative comments” about co

- workers and for “standing around and disappearing from the work area.” R. 22

- 2 at 3

– 4. That escalated t oCase No. 19

- 3422 , Tschappatt v. Crescent Metal

2 formal discipline when he took a 30

- minute bathroom break while on the clock. Tschappatt also made several assembly and packing errors , including failing to place “CAUTION SURFACE HOT” labels on ten unit s destined for a school. The last straw occurred in January 2015, when he incorrectly installed metal posts on a unit, leaving the problem for the next shift to fix. Crescent fired Tschappatt s oon after

. He was 55 at the time. Crescent assigned Bob Hunter , then 61, to Tschappa t t’s position, and Hunter has perform ed the duties “without incident .” Id. at 7. C laiming he was fired b ecause of hi s age, Tschappatt sued Crescent for age discrimination. After discovery, the district court granted summary judgment to Crescent. The Age Discrimination in Employment Act prohibits employers from “discharg[ing]” or “o therwise discriminat [ing] against any individual with respect to his compen sation, terms, conditions, or privileges of employment, because of such individual ’ s age.” 29 U.S.C. § 623(a)(1). Because Tschappa t t relies on circumstantial evidence , not direct evidence, to support his claim, we evaluate it under the three

- step framewo rk made famous by McDonnel l Douglas Corp. v.
Green , 411 U.S. 792, 802 (1973)

. Step one: T he plaintiff must show a prima facie case of discrimination. Step two: T he defendant must identify a non - discriminatory reason for the action

. Step three: T he plaint iff must show any explanations by the company for its action are pretext ual to avoid summary judgment

. Mickey v. Zeidler Tool & Die Co. , 516 F.3d 516 , 521

– 22 (6th Cir. 2008)

. Tschappat t ’s claim fails at the first step

. He must show that he (1) was at least 40 at the time of the alleged discrimination , (2) faced an adverse employment action , (3) was otherwise qualified for his position , and (4) was replaced by someone “ significantly ” younger or thatCase No. 19

- 3422 , Tschappatt v. Crescent Metal

3 similarly situated younger employees were treated more favorably. Grosjean v. First Energy Corp. , 349 F.3d 332, 33 5 (6th Cir. 2003) ; Mickey , 516 F.3d at 521. Tschappat t fail s to meet the fourth requi rement

— to show that he was replaced by someone
younger . All of the competent and relevant evidence indicates that the company replaced him with Bob Hunter, who was 61. Attempting to alter th is conclusion, h e relies on two affidavits . In one, a former C rescent employee claimed Tschappatt “ was replaced by two younger individuals. One was 20 years old and from Madison, Ohio. The other person was under 30 years old. ” R. 28

- 1 at 1. In the other, a former employee says Tschappatt was replaced by “at least two people under the age of 30,” who “all looked in their mid twenties.” R. 28

- 4 at 1. This evidence does not suffice . The role o f summary judgment is to determine whether a material fact dispute exist s for the jury to resol ve , “ not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit .” Lujan v. N at’l Wildlife Fed’n , 497 U.S. 871 , 888 (1990) ; see Fed. R. Civ. P. 56

. The standard ( “ replacement ” by someone “significantly you nger” ) implies a n identified person or persons , or at least a specific age and specific job duties, as a point of comparison. See Grosjean , 349 F.3d at 336

– 39 (collecting cases) ; Mickey , 516 F.3d at 522

. But Tschappatt’s affidavits do not provide those details. As we held in an analogous race discrimination case, plaintiffs’ failure to “ identify any specific employees who replaced them ” means they cannot make out a prima facie case. Vaugh n v. Watkins Motor Lines,
Inc. , 291 F.3d 900 , 907 (6th Cir. 2002). T he plaintiffs had a “full opportunity for discovery , ” and there was “no indication” that the defendant “ failed to respond to discovery requests. ” Id

. TheCase No. 19

- 3422 , Tschappatt v. Crescent Metal

4 same goes here. Tschappa t t had plenty of time and an array of discovery tools to answer a straightforward question : W ho , if not Bob Hunter, replaced him ? He never answered the question

. Making matters worse for Tschappatt , Crescent put in plenty of evidence that Bob Hunter, age 61, replaced Tschappatt. Crescent reassigned Hunter to Tschappatt’s position, and Hunter has been “able to successfully reach the same production goals ” and “perform all of the duties” of the position “witho ut incident.” R. 22

- 2 at 7

. Two of Tschappatt’s supervisors testified on the point in their depositions, and followed it up with to

- like

- effect affidavits. Tschappatt never directly respond ed to the evidence that Hunter replaced him, instead relying on indirect and non

- specific affidavits. Even if his affidavits raised “some metaphysical doubt as to the material facts” (they do not), they do not show a genuine dispute for trial. Matsushita Elec. Indus. C o. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986)

. Nor , for related reasons, has Tschappatt created a genuine fact dispute over whether the company treated younger employee s better than it treated him

. Mickey , 516 F.3d at 522. To be meaningful, the comparison must be between employees “similarly situated” to the plaintiff in all relevant respects. Mitchell v. Toledo Hosp. , 964 F.2d 5 7 7, 583 (6th Cir. 1992)

. Factors include whether the younger individual w as under the same supervisor, had a similar prior disciplinary

recor d , or engaged in comparably serious misconduct. Ercegovich v. Goodyear Tire & Rubber
Co. , 154 F.3d 344, 352 (6th Cir. 1998). How can we consider these factors without a specific
person in mind? We have no idea. Neither does Tschappat t

. O nce again, his affidavits merely offer general assert ions that younger employees were not disciplined for the violations that Tschappatt was disciplined for. Consider: “I have seen other younger people go to the bathroom for up to 45 minutes or an hour and no one was e ver written up for that except Mr. Tschappat t ,”
R. 28

- 4 at 1, and “Mr. Tschappatt was being punished for minor mistakes that other people,Case No. 19

- 3422 , Tschappatt v. Crescent Metal

5 including younger people, routinely make ,” R. 28

- 3 at 2. It never gets more specific than that. That means we canno t tell whether any of these supposed younger employee s w ere “similarly situated” to Tschappatt, and th at means he cannot make out a prima facie case of discriminatory unfavorable treatment

. See Noble v. Brinker Int ’ l. , Inc

. , 391 F.3d 715, 730

– 31 (6th Cir. 2004); c f. Mitchell , 964 F.2d at 583

– 84. Tschappat t insists that he has no obligation to offer such evidence. B ecause he did not raise the prima facie issue in his opening appellate brief, he says, the issue is “not properly presented on appeal , ” and we thus cannot consider it. Reply Br. 6

– 7

. That is n ot true. We can affirm a district court’s decision for any reason in the record , including alternative grounds raised below and here

. EA Mgmt. v. JP Morgan Chase Bank, N.A. , 655 F.3d 573 , 575 ( 6 th Cir. 2011)

. Tschappatt’s cases do not alter this conclusion. I n Lanier , the court chose not to address various merits arguments (“wholly different substantive law questions”) because the district court
dismissed the case on personal

- jurisdiction grounds. Lanier v. Am. Bd. o f Endodontics , 843 F.2d 901, 911

– 12 (6th Cir. 1988). Bu t t he court did not say that its choice was mandatory. T he circumstances differ here anyway. T he district court did reach the “substantive law question[]” ( whether Crescent discriminated against Tschappatt) and the specific argument at issue ( whether Tschappatt show ed a pri ma facie case )

. Id. Wu v. Tyson Foods , Inc. , offers no help either

. 189 F. App’x 375 (6th Cir. 2006). There , the court did not reach some of the appellee’s arguments
because it was able to affirm for another reason. Id. at 381. That is not this case. Having failed to make out a prima facie case of age discrimination , Tschappat t ’s claim must fail

. We affirm

.