NOT RECOMMENDED F OR PUBL I CATI ON File Na me: 12a1244n.06 No. 11-1779 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

GI RI SH SHAH, Plaintiff-Appellant,

v. NXP SEMI CONDUCTORS USA, I NC., Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE EASTER N DI STRI CT OF MI CHI GAN

Before: BOGG S and

WHITE , Circuit J udg es; and BLACK , District J udg e. * BLACK, District Judge

. G ir is h Sh a h ( “ Sha h”) appea ls the district court’s g rant of summary judgme nt in favor of his former employ er, NXP Semiconductors USA, I nc. (“N XP”), on his claims of ag e and national-orig in discrimination. For the following rea sons, we AF F IRM the judgme nt of the district court. I. BACK GR OUND F ACTS Plaintiff-Appellant Girish Shah tim el y ap p eals the order of the district court g ranting
summary judgme nt in favor of Def endant NXP Semi co n d uctors USA, I nc. Shah alleg ed ag e discrimination under the Ag e Discrimination in Employ ment Act, 29 U.S.C. § 621 et seq . (“A DEA” ) (Count I ), and the Michig an Elliot-L arse n Civil Rights Ac t , M C L § 37.2101 et seq . (“EL CRA”)

Hon. Timothy S. Bla ck, United Sta t es Di s t rict J udg e for the Southern District of Ohio, * sitti ng by desig nation.Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. (Count I I ), and national-orig in discrimination i n violation of Title VI I of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Count I I I ); and the Michig an EL CRA (Count I V). 2
NXP desig ns and sells semiconductors for use in elec tronic device s, including those used in the automotive industry

. NXP’s Automotive Americ as Group, which is based in Fa rming ton Hills, Michig an, is responsible for both selling semiconductors and for ensuring their quality ( i.e. , ensuring that the semiconductors perf orm as intended). Thus, the Automotive Americ as Group has sales and marke ting employ ees and a quality control subg roup. L eland Key is NXP’s Senior Direc tor of Sales and Marke ting for the Automotive Americ as Group. I n this capa city , Key overse es the Automotive Americ as Group.
I n Marc h 20 0 7 , NX P h i red Shah as a Field Quality Eng ineer (“F QE”) within NXP’s Automotive Americ as Group. FQE s are responsibl e for interfa cing with NXP’s automotive
customers to ensure that NXP’s semiconductors function proper ly

. At the time of his hiring , Shah, who is of I ndian desce nt, was 59 y ear s old. Shah joined four other FQE s who wer e alre ady working for NXP: Mauricio Acosta, J ohn Henning er, Mike L aituri, and Br ad Webber. As an FQE , Shah worke d on approximately 20-22 customer

acc ounts.

Ex cept for passing refer ence s to his natio n al orig in, Shah’s appellate brief focuse s only 2 on alleg ed ag e discrimination. Appellant Br

. at 39-40 (cla iming that even if the District Court did not err in finding that Knoell repla ced Shah, “t h e District Court still err ed in g ranting [NXP’s] Motion for Summary J udg ment on [S hah’s] claims of ag e discrimination beca use [S hah] prese nted sufficie nt additional circ umstantial evidenc e of ag e discrimination to satisfy the heig htened standard appl i ed t o R I F ca s es.”)

. “[I ]t is a settled appellate rule that issues adver ted to in a perf

unctory manner , unacc ompanied by some eff ort at deve loped ar g umentation, are deeme d waived.” Benge v. Johnson , 474 F.3d 236, 245 ( 6th Cir. 2007). -2-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. Until ear ly 2008, FQE s repor ted to Marty Michae ls, NXP ’s Quality Manag er. When Michae ls retired in e arly

2008, the FQEs beg an reporting to their re spective sa les manag ers: Shah
repor ted to Ken Rober

ts; the other FQ Es repor

ted to other sale s manag ers. I n Fe bruar

y 2009, Drue Fr eema

n, NXP’s Global Vice President of Quality & C u s t o mer Ex cellenc e for the Automotive & I dentifica tion bus in e s s li n e , asked Key to provide a written analy sis of his resour ces and how Key would handle a potential reduc tion in forc e. Key consul ted NXP’s written re d u ction in forc e (“RI F” ) policy , which g ives manag ers discretion to “dec ide which job functions and job cla ssifications are to be aff ecte d” based on a combination of fac tors enumer ated in the policy

. The policy states that “[i] n the event all of the [factors] are deeme d essentially equal, leng th of servic e may

be conside red.” Key ’s pref

err ed option wa s to maintain the curr ent hea dcount, but he dete rmined that if he had to eliminate one employ ee, Shah’ s position would be selected f or elimination. I n making this deter mination, Key testified that he “used the reduc tion in forc e policy as [hi s] g uideline.” Key testified that he had firsthand knowledg e of the quality of his employ ees’ work and deter mined that all five FQE s were about equal in te rms of job pe rfor mance . Thus, acc ording to K ey , the decision
to eliminate Shah’s position wa s based on the fac t that he had the least seniority among the five FQE s. Be cause Michae ls’s retire ment in ear ly 2008 cre ated a s u p er v isory void, NXP beg an interviewing re p l ac em ents

. Howeve r, the sear ch was interrupted when NXP’s manag ement instit uted a c ompany -wide hiring fre eze in J une 2008.

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Shah v. NXP Sem iconductors USA, Inc

. I n ear ly Marc h 2009, NXP lear ned th at Bo b Knoell was let g o by another company . Key knew Knoell and was impressed with his cre dentials and experience

. NXP deter mined that Knoell

was the top candida te to repla ce Michae ls but could not offe r him the position due to t he hiring fre eze that had be en implemented in June 2008. Also in Ma

rch 2009, Key deter

mined that NXP would benef it from a re org anization of the quality -control subg roup of its Automotive Americ as Group. Spec ifically , Key deter mined that it would be more eff

icient for the FQE s to repor t to one manag er instead o f s ev er al

. ( Id

. ) Key deter mined that none of the exis ting FQE s exhibi ted the nece ssary leade rship abilities and, instead, Knoell would be the be st candidate for the ne wly cre ated position. I n his deposition, Key stated:
I t was my opinion that by having a Quality M an age r i n place that we could drive eff iciencie s in our proce sses. Bob also was a well-known, I ’ll call him expert in my opinion, expert in semiconductor reliability and instrumen t al in the formation of a number of automotive quality o rganizations. So he would have been a g ood acquisition for the te am. Key also stated in an email that he “[saw] this as an opportuni t y t o upg rade our curr ent
org anization.” Acc ording to Key , he was informed b y h i s manag er, Drue Fre eman, that he could not hire
Kn o el l without terminating an exis ting employ ee. Pursuant to the analy sis perf ormed one month

ear lier at Fr eema

n’s reque st, Key deter

mined that Shah’s position would be eliminated beca use, all other fa ctors being equal, Shah ha d the least senior ity of the five FQE s. I n the same month, Fr eema n and Key exchang ed sever al email messag es. I n one, Fr eema n asked K ey

if Key could hire K

noell and fire Shah. Key

responde d:

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Shah v. NXP Sem iconductors USA, Inc

. You rea d my mind

. . . [si c] a s y ou know difficult to fire quickly here , need to build a case etc.

. . . My thought is to eliminate the quality control eng ineer role (Girish’s position), and hire [Knoell] as a reg ional quality control mgr , (whe re he would also handle Girish’s acc ounts direc tly ), so we could then RI F Girish, rathe r than fire him. On April 2, 2009, Ke y

emailed Ka

pps, NXP’s Human Resourc es B usiness Partner: We see an o p p o rt unity to upg rade our curr ent org anization and would propose the follo wi ng : RI F an exis ting FQE from our Farming ton Hills office

. . . . The person in mind has ~ 2 y ear s of service with NXP. Create a new position – Au tomotive Reg ional Quality Manag er – and hire Bob Knoell for this role.

. . . Bob would p ro v ide some reg ional leade rship for the

. . . quality team

. . . but would also have some direc t acc ount responsibility

. Be fore terminating Shah, Key consulted with Kapps. The elimination of Shah’s position and the cre ation of the new manag ement-le vel position was revie wed and approve d by NXP’s Employ ee Termination Oversight Commi ttee (“ET OC”), a committee char g ed with revie wing proposed termination decisions to ensure that they comply with NXP’s anti-discrimination and RI F policies. The documentation revie wed by the ETOC contained cer tain personne l inf

ormation, including the
ag e and ethnicity of the two FQE s considere d for dism i s s al , Shah and Michae l L aituri. The document lists Shah as being Asian and 61.2 7 y ea rs o ld; it lists L aituri as being Whit e and 42.72
y ear s old. Randall McMills, a senior officia l in NXP’s Human Resource s depar tment a nd member of the ETOC, testified that the document revie wed by the ETOC lists employ ee ag es so that the ETOC

can make sure that it does not “eliminate all of [i ts] older worke rs and kee p only [i ts] y oung er worke rs.” Shah was terminated on May 1, 2009, due to a “re org anization and work forc e reduc tion.” Shah was 61 y ear s old at th e t ime of his termination. Following Shah’s termination, the four -5-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

.
re m ai n i n g FQE s took over around 20 of his 20-22 acc ounts. NXP has not hired any FQEs s i n ce Shah’s termination. Moreove r, one of the four FQE s who rema ined aft er Shah’s termination, Mauricio Ac osta, voluntarily resig ned in ea

rly 2010 and NXP has not hire d a re place ment. Knoell, who was then 53 y ear s old, beg an working for NXP in the newly -cr eate d position of Aut omotive Quality Manag er in May 2009. Knoell occupie s Shah’s former office and repor ts t o Key

. As Automotive Quality Manag er, Knoell spends the majo ri t y o f his time perf orming
manag ement functions. Knoell holds a l o ca l pay g rade of E5, which is the g rade g iven to NXP’s first-leve l manag ement positions. I n addition, Knoell service s five client acc ounts, three of which 3

wer e former ly service d by Shah. Knoell assumed these client acc ounts so that he could better rela te to the FQE s and bec ause he was fa miliar with the clients. II. STANDARD OF REVIEW This court revie ws a district court’s g rant of summary judgme nt de novo . Hollway v. Brush , 220 F.3d 767, 772 ( 6th Cir. 2000) (en ba nc). Summary judgme nt is appropr iate where there is no
g enuine issue as to any materia l fac t and the moving party is entitled to judgme nt as a matter of law. Fe d. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The moving party has the burden of proving the absenc e of a g enuine issue of materia l fac t and its entitlemen t t o s ummary judgme nt as a matter of law. Id. The evidenc e must be considere d in the light most favor able to the non-moving party , but there must be more than “some metaphy sical doubt as to the materia l fac ts.” Matsushita Elec. Indus. Co. v. Zenith Radio Cor p ., 475 U.S. 574, 586 (1986). That is, there must

Shah beg an his employ

ment at a pay g rade of E3. At the time of his termination, Shah held 3 a pay g rade of E4. -6-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. be more than a “mer e exis tence of a scintilla of evidenc e” to satisfy the plaintiff’s burden. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 252 (1986). This court also revie ws a district court’s denial of a motion for rec onsideration of a g rant of
summary judge ment de novo . Columbia Gas Transmissi on Corp. v. Ltd. Corp ., 951 F.2d 110, 112 (6th Cir. 1991). Howeve r, we revie w a district court’s ref usal to consider evidenc e produce d for the first time in a mot ion for reconsider ation (such as an af fi d av it) for an abuse of discretion. Huff v. Metro. Life Ins. Co. , 675 F.2d 119, 123 ( 6th Cir. 1982). III. ANALYSIS A plaintiff can make a prima facie case of ag e discrimination under the ADEA by showing that: (1) he was a member of a protected class; (2) he suffe red an adv er s e employ ment action; (3) he was qualified for the position; and (4) either he was repla ced by a signific antly y oung er person,

or a simil arly situated y oung er employ ee was not subje ct to the same adver se employ ment action. Martin v . Toledo Cardiol ogy Consultants, Inc. , 548 F.3d 405, 410 (6th Cir. 2008)

. An alleg ation 4 that the person was replace d by a y oung er individual supports an inferenc e of discrimination only if the ag e differ ence is signific ant. Blizzard v. Marian Technical Coll. , No. 11-3441, 2012 U.S. App.

Only the fourth element of Shah’s prima facie case is in dispute. Shah is ove r the a g e of 4 40, is of I ndian desce nt, his termination was an adver se employ ment action, and NXP conce des that he was qualified for the FQE position. Shah was the oldest of t he five Automotiv e FQ E s and the only one of I ndian desc ent. -7-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. L EXI S 21846, at *5-6 (6th Cir. Oct. 19, 2012). NX P t h en m ust articula te a leg itimate, non- 5 discriminatory rea son for its actions. Id. at 802-03. I f NXP satisfies that burden, Shah must produce sufficie nt e vidence to cre ate a g enuine issue of materia l f act that NXP’s proff

ere d justification is a prete x t for unlawf

ul discrimination. Id. at 804. I n this case , howeve r, there is a disag ree ment as to which elements make up the prima facie

case , beca use there is a dispute as to whether Shah was terminated as a result of a reduc tion in forc e (“RI F” ). Wherea s an ADEA or Title VI I plaintiff would ordinarily have to prove either that he was repla ced by a person outside the protec ted class or that a person outside the protec ted class who was simil arly situated was not subject to the same adver se employ ment action, when a plaintiff is terminated in the context of a RI F, that element need not be shown; ra t h er , t h e fourth element of McD onnell Douglas is modified (heig htened) to require some “additional direc t, circ umstantial, or statistical evidenc e tending to indicate that the e mploy er sing led out the plaintiff for discharg e for

NXP maintains that Shah’s ag e discrimination claim broug ht under the Michig an EL CRA 5 should be analy

zed under the same standard as his ag e discrimination claim brough t u n d er the ADEA. Howeve r, Plaintiff arg ues that in Gross v. RBL Financial Servic es, Inc. , 557 U.S. 167, 174- 75 (2009), the Supreme Court clar ified that there is a distinction betwee n what a plaintiff is require d to prove i n a d i s p arate trea tment claim under the ADEA as opposed to Title VI I

. “To establish a disparate -trea

tment claim under the plain lang uag e of the ADEA,

. . . a plaintiff must prove that ag e was the ‘but-for ’ cause of the employ er’ s adver se decision.” Id. at 176. That is in contra st to Title VI I , wher e a plaintiff can succe ed on a claim “in which an improper consideration was ‘a motivating fac tor’ for an adverse employ ment decision.” Id. at 174. The Court ne ed not re solve this conflict beca use under either standa

rd Shah fa ils to m ake a prima facie case .

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. impermissible rea sons.” Barnes v. GenCorp ., 896 F.2d 1457, 1465 (6th Cir. 1990). An employ ee 6 is not elimi nated a s part of a RI F whe n he is repla ced a fter be ing te rminated. Id. A. Whether P laintif f Was Replaced First, Shah arg ues that t h e d i strict court err ed in finding that no rea sonable jury could conclude that he wa s replac ed by Robert Knoell. This court has delineate d the circ umstances in w hich a RI F occur s and trig g ers a pplication of the modified f

ourth eleme nt of a prima facie case . A work forc e reduc tion situation occur s when business considera tions cause an employ er to eliminate one or m ore positi ons within the company

. An em ploy ee is not eliminated as part of a work forc e reduc tion whe n he or she is repla ced afte r his or her dis ch arge . Howeve r, a person is not repla ced when another employ ee is assig ned to perf

orm the plaintiff’s duties in addition to other duties, or when the work is redistributed among other e x isting employ ees a lrea dy perf orming rela

ted work. Barnes , 896 F.2d at 1465. “Eliminating a single job is sufficie nt to constitute a leg itimate reduc tion in forc e.” Lockett v. March USA, Inc. , No. 08-3413, 2009 U.S. App. L EXI S 26266, at *23 (6th Cir. Dec . 3, 2009). Shah claims that the district court, concluding that he was terminated as part of a RI F, viewed the evidenc e in a light most favor able to NXP, pointing to: (1) an excerpt from Knoell’s April 2010 deposition testimony in which Knoell alleg edly admitted that he spends as littl e as 20% of his time

on manag ement-r elated activities; (2) Shah’s decla ration, ex ecute d 12 day s afte r t h e d i strict court
g rante d NXP’s motion for summary judgme nt, in which he asser ts that he spent 80 to 90 perc ent of

“T h e p urpose of the additional evidenc e require ment is to ensure , in reduc tion of forc e 6 case s, that the pl aintiff has prese nted e v i d en ce to show that there is a chang e and the reduction in forc e is not the rea son for the termination.” Asmo v. Keane, Inc. , 471 F.3d 588, 593 (6th Cir. 2006). -9-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. his time servicin g t h e three acc ounts that Knoell took over; and (3) isolated e-ma ils alleg edly showing that NXP viewed Knoell as a candida te for a position as FQE and not Automotive Quality Manag er. A

ppellant B r. at 30-32. We will addr ess ea ch ar g ument in turn. 1. Shah ’s Job Responsib ilities The district court deter

mined that “as Automotive Qualit y M an age r, Knoell spends the majority of his time pe rfor

ming manag ement func tions.” Shah claims that this determination was improper, based on Knoell’s testimony that: “Well, let’s see, what did I say , 30 to 50, so that leave s about 20 to 40 perc ent [of my time] for manag ement res p o n s i b iliti es.” Howeve r, as the District Cour t n o ted, “Plaintiff ignor es Knoell’s testimony that he spends an additional 20% of his time serving as technica l liaison, a duty that Plaintiff did not pe rfor m as a FQE

. Thus, Knoell spends at least 40-60% of his time perf orming d u ties that wer e not perf ormed by [S hah].” For example, Knoell leads nine eng ineer s in NXP’s Europea n office s on a quality -improvement pr og ram. Moreove r, Knoell’s job responsibilities as a manag er are signific antly differ ent from those S h ah p er fo rm ed in his non-mana g ement FQE job. For example, Knoell supervises the FQE s, completes their perf

ormanc e revie ws , d e te rmines their salarie s and bonuses, spends time eac h month analy zing and providing repor

ts to Key about their a ctivities, and meets with e ach FQE reg ularly

. Shah did not perfor

m these mana g ement duties. Shah’s responsibil ity as an FQE was to interfa ce with customers to ensure they wer e satisfied w ith the NXP products they purcha sed. Shah and Knoell also have differ ent repor ting structure s. Shah repor ted t o Roberts, the NARA team acc ount manag er, and Knoell repor ts direc tly to Key

. Additionally , Knoell’s

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. manag eria l position is classified inter nally at a higher corpor ate job g rade and pay g rade , wher eas Shah worke d in a non-mana g ement job g rade and non-ma nag eria l pay

g rade

. Additionally , wher e Shah had no control over the administration of any customer acc ounts, Knoell’s duties include deter mining how to distribute acc ounts, including acc ounts that Shah former ly service d. Key stated in his deposition: “I t was up to Bob [Knoell] ho w he wanted to do that. I didn’t instruct him on what acc ounts to handle and what acco u n t s not to handle.” Shortly afte r Knoell joined NXP, he redistributed the overw helming majority of Shah’s 20 acc ounts to the four rema ining FQE s. Whil e Knoell did take over three of Shah’s acc ounts, he explained: “I know

a number of people at these customer sites (and they know me)” and taking over the acc ounts “will
g ive me a g ood idea as to what y ou al l go t h roug h ever y day with y our major acc ounts so I can understand the horsepowe r re quired.” Acc ording ly , the district court proper ly conclude d that Knoell’s duties “ar e materia lly d i ff er en t from those former ly perf ormed by [S hah].” “[A] person is not repla ced when another employ ee is assig ned to perf orm the Plaintiff’s duties in addition to other duties.” Barnes , 896 F.2d at 1465.

2. Acc ounts S ervic ed Next, Shah arg ues that it wa s not “ by chanc e” that Knoell ende d up with the Rosch, Bose , and TRW acc ounts, which wer e his three larg est acc ounts and took approximately 80-90% of his time. Shah maintains that befor e Knoell was h i red, NXP had alre ady contemplated that Knoell would service Shah’s forme r ac counts. -11-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. The distric t co u rt found that “thre e of the five acc ounts service d by Knoell wer e former ly service d by

Shah. Knoell assumed these client ac counts so that he could be tter rela te to the FQ Es and beca use he was familiar with the clients.” Stil l, the court conclude d that “Knoe ll supe rvise[d] the FQE s; he is not himself a FQE

. Whil e it is true that Knoel l ’s job duties slightly overla p with [S hah’s] job duties to the extent that Knoell took over three of [ S h ah ’s ] approximately 20-22

acc ounts, the vast majority of [S hah’s] acc ounts wer e redistributed among exis ting FQE s . ” T he inquiry is not limit ed to how Shah spent his time, but also on the duties of the person who alleg edly repla ced him, such that an employ ee who perf orms duties in addition to duties that Shah perf ormed is not a “re place ment.” Geiger v . Tower Auto , 579 F.3d 614, 623 ( 6th Cir. 2009). Acc ording ly , the fa ct that Knoell assumed r esponsibility for Shah’ s three la

rg est ac counts,
g iven the other fac ts of Knoell’s employ ment, is insufficient to establi s h t h at he repla ced Shah. Moreove r, the rec ord is clea r that in 2008 , NX P interviewe d Knoell to repla ce Marty Michae ls, NXP’s Quality Manag er, but that the sear ch was interrupted when NXP’s manag ement instit uted a company -wide hiring fre eze in J une 2008.

3. Internal Em ails Finally , Shah arg ues that sever al emails show that Knoell repla ced him, beca use they “re veal that, despite the formal title that [Knoell] was ultimately g iven (Qua lity Manag er) , [he] was actua lly being viewed a s a ca

ndidate for

a Qua lity Eng ineer position.” Appellant Br . at 32. -12-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. I n an April 14, 2009, email from Sankara Nar ay an (NXP’s Ex ecutive for “quality function”)
to Randy McMills (NXP’s Senior Vice Presi d en t fo r Hum an Resource s in the Americ as), Ms. Nar ay an made the following statement: Two we eks ag o Drue [Free man] indi cate d that he would like to ha ve a high caliber person as Field quality eng ineer in the US to support automotive customers and also said may be B ob [Knoell] from Visteon would be interested in that. I am aware of this and also ag ree d with Drue that he can g o ahea d with this as a repla ceme nt to and upg rading of a c urre nt [ Field Qua lity Eng ineer ] pl ay ing this role. The dist rict court held t hat t he use of t he term “re place ment” by NXP’s employ ees “is not controlling of the leg al analy sis.” Shah arg ues t h at whi le NXP’s internal ref ere nces to Knoell as Shah’s repla ceme nt is not controlling of the leg al analy sis, in t h at i t does not require summary judgme nt in his favor , a rea sonable jury could conclude that NXP’s internal ref ere nces to Knoell as his replac ement ac tually

meant wha t was plainly

indicated. Howeve r, Nar ay an’s email does not mention Shah by name, nor did Sha h produce any evidenc e that Nar ay an knew either Shah’s or Knoell’s job r esponsibiliti es, ag e, or national orig in. Moreove r, McMills testified that NXP uses the word “r ep l acement” in ref ere nce to headc ount as opposed to compar isons of job duties. The second email was an exchang e betwee n Fr eema n and Key , in which Key wrote that he would like to “eliminate the quality eng ineer role (Girish’s position) an d hire Bob as a reg ional automotive quality mgr , (whe re he would also handle [Girish’s] acc ounts direc tly ).” I t is undisputed, howeve r, that Knoell did not take over all of Shah’s acc ounts. Moreove r, even if Knoell had taken all of Shah’s acc ounts, that hy pothetical fac t would not support a conclusion that Knoell “re place d”

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. Shah in lig ht of all of the additional manag ement tasks and other duties that Knoell per forms. See infra Section I I I .A.2. Finally , there is a

n email draf

ted by Mark Be lloni, an NXP financia l planning e mploy ee in California, who wrote that Knoell “is re placing Girish.” Howeve r, Be lloni knew nothing about Shah’s or Knoell’s respe ctive job duties. Appellant Br

. at 32. Additionally , there is no evidenc e that Be lloni play ed a part in any decision aff ecting Shah’s employ

ment or that he knew Shah’s or Knoell’s ag e or national orig in. Moreove r, afte r McMills informed Be lloni by email that Knoell “is

a Qualit y M an age r for the Automotive [Business Unit.] He should be included in the quality headc ount,” Be lloni responde d t h at “[ w]e need to be clea r with these positions. They are not the

same. Girish Shah was a Quality Eng ineer and has been termed. Robert Knoel l wa s h ired as a Quality Manag er.” Acc ording ly , Shah’s arg uments are simply unsupported conjec tur e. I n o rder to survive
summary judgme nt, a plaintiff “ca nnot rely on conjec ture or conclusory acc usations.” Arendale v. City of Mem phis , 519 F.3d 587, 605 (6th Cir. 2008). Considering the fac ts in the light most favor able to Shah, we ag ree as a ma tter of law that Shah was not re place d. B. Prim a Facie

Case Under t he Heightened Analysis Next, Shah arg

ues that even if Knoell did not technica lly repla ce him, the district court still

err ed in g ranting NXP’s motion for summary judgme nt beca

use he pr esente d sufficie nt additional circ umstantial evidenc e of ag e discrimination to satisfy the heig h te n e d standard applied to RI F case s.

1. RIF as Addi tional Evi dence of Discrim ination -14-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. Shah maintains that NXP never implemented the “planne d” RI F which contemplated an

overa ll reduction in hea dcount of one person, beca use Knoell filled the vaca ncy cre ated by

Shah’s termination. Moreove r, in Fe bruar y 2009, Key ’s clea

r pref ere nce was for no chang es to oc cur and for all employ ees to be kept in place

. As of Fe bruar y 2009, Key testified that NXP “had the requisite number of quality people nece ssary to support the needs of our business.” Key ’s Fe bruar y 2009 RI F plan/analy sis did not contem p l at e a reor g anization (with the elimination of a “Qua lity Eng ineer ” position and the cre ation of a “Qua lity Manag er” position). J oAnn Knap p s , an employ ee in NXP Human R esourc es, confirmed t hat, prior to Knoell becoming available, there were no disc u s s ions about eliminating a FQE position. Howeve r, one month later, when Knoell beca me available , Key wanted to conduct a RI F and reor g ani z e h i s d epartment. Shah arg ues that, when the fac ts are 7 viewed in a

light most favor able to him , a reasonable jury could conclude t hat t his sudden chang e i n Key ’s opinion was actua lly a ref lection of NXP’s desire to terminate him and hire a y oun ger employ ee. Howeve r, Shah ig nores the c hang e in circ umstances that took place betwe en F ebrua ry and Marc h 2009. Key indicated in Fe bruar y 2009 that he pref

err ed to maintain his e x isting headc ount, but he also noted t hat S hah wo u l d b e t h e n ex t employ ee to be terminated in the event of a further workfor ce reduc tion. One month later, Knoell unexpectedly was looking fo r a new job and Key seized upon the opportunity to hire Kno el l i n to a new manag ement position, that require d Key to eliminate a position within his org anization. Key decide d to eliminate Shah’s position in acc ordanc e

Key admitted t h at neither his boss nor any one in human resour ces direc ted him to 7 implement the alleg ed re org anization/R I F. -15-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. with NXP’s RI F Policy beca use he had the least seni o ri t y am o n g the FQE s. NXP alleg es that by hiring Knoell to f

ill the supervisory void that resulted from Michae ls’s retire ment, Key felt that he could improve opera

tional eff iciencie s by returning to an org anizational structure in which all four FQE s would repor

t to one m anag er who could better overse e their work and ensure they wer e implementing best prac tices as a g roup. Moreove r, Key was alre ady familiar with Knoell’s work at Visteon, one of NXP’s customers. I ndeed, Key rec omm en d ed Kn o ell to his superiors to fill Michae ls’s position in ear ly 2008, and afte r subsequent interviews of s ev er al ca n didates, Knoell

emer g ed as NXP’s top candida te to fill that position until the unanticipated hiring fre eze preve nted NXP from formally offe ring him the job. There fore , while the RI F standing alone may have serve d

as additional evidenc e of discri mination, even when considering all of the fac ts in the light most favor able to Shah, we cannot f ind it to be so in t his case. 2. Longevity as Add itional E vidence of Discrim ination Additionally , Shah claims that the g roup of NXP employ ees -- Roberts, Michae ls, Webber, and L aituri -- who interviewe d him and other candida tes for the FQE position in 2007, purportedly considere d the respe ctive candida tes’ longe vity in making a decision about which candida te to hire. 8 Both of the other candida tes wer e y oung er t h an S hah. Only afte r both of the y oung er candida tes declined to take the position was Shah offe red the job, which he acc epted. Howeve r, as the district
court noted, Shah “pointed to nothing in the rec ord to sug g est that those involved in hiring him wer e

W harton v. Forman-Rupp Co. , 309 F. App’x 990, 991 (6th Cir. 2009) (holdi n g that a 8 statement m ad e b y vice president reg arding “long evity ” constituted direc t evidenc e of ag e discrimination). -16-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. involved in his termination.” Specifica lly , Michae ls retire d in 2008, Roberts had no role in NCP’s

reor g anization decision, and Webber and L aituri wer e non-mana g ement FQE s, just like Shah. See Geiger , 579 F.3d at 620-22 (“[A]ny discriminatory statements must come from decision maker s to constitute evidenc e of discr imination.”). 9
C. Legitim ate N ondi scrim inatory Reasons and Pre text Even if Shah wer e able to make out a prima facie case , NXP would still preva il beca use Shah failed to establi s h that NXP’s rea son for termination was prete x tual. An employ er’ s proff ere d rea son is not prete x tual unless it is shown both that the rea son was false and that discrimination was the rea l

rea son. Harris v. Metro. Gov’ t of Nashville & Davidson Co. , 594 F.3d 476, 486 (6th Cir. 2010). An employ er is entitled to summary judgme nt “if the plaintiff cre ated only a wea k issue of fac t as to whether the employ er’ s rea son was untrue and there was abundant and uncontrove rted independe nt evidenc e that no discrimination had occur red.” Ree ves v . Sanderson P lu mbing Prods., Inc. , 530 U.S. 133, 148 (2000 ). Evidence of an employ er’ s business restruc turing , which may include the elimination of j obs or t ermination of otherw i s e competent employ ees based on seniority , satisfies the employ er’ s burden of producing a leg itimate, non-discrim i n at ory rea son for a plaintiff’s termination. Aldri d

g e v. City of Mem

phis , 404 F. App’x 29, 39 (6th Cir. 2010) (holding that defe ndants’ elimination of plaintiffs’ jobs during reor g anization satisfied their burden of producing

Additionally , Shah has not alleg ed that the “cat’s paw” theory discussed in Staub v. Proctor 9 Hosp. , ___ U.S. ___, 131 S. Ct . 1186 (2011), ha s any application to the pre sent fac ts. There is no evidenc e that Key or any one else relied on any supposedly biased statements that wer e purportedly made whe n Shah was hire d two y ear s ear lier. -17-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

.
a leg itimate, non-discriminatory rea son for plaintiffs’ termination). There fo re , S h ah bore the 1 0 burden of establishing a g enuine issue of materia l fac t that NXP’s proff ere d rea son for terminating him was not t he true rea son, but was inst ead a pretex t for intentional discrimination. Texas Dept. of Cmty. Affairs v. Burdine , 450 U.S. 248, 256 (1981).

1. Internal Em ails Shah argue s that the district court improperly viewed internal emails on the issue of fabr ication (pre text ) in a light most favor able to NXP. Shah maintains that these emails reve al that NXP fabr icated a sch em e t o terminate him, “re define the role,” and then hire Knoell, in order to claim that he wa s terminated throug h a re org anization and RI F. I n a ser ies of email exchang es dated Marc h 12, 2009, betwee n Fr eema n and Ke y , Fr eema

n inquired of Key : “Could y ou hire [Knoell] and fire Girish? Sorry had to ask.” Key responde d: “You

rea d my mind

. . . [si c] as y ou know difficult to fire quickly here , need to build a case etc. I ’d planned to discuss with our local HR. My thought is to

. . . hire Bob as a r eg ional automotive quality mgr , (whe re he would also handle Girish’s acc oun ts direc tly ), so we could then R I F Girish, rathe r t han fire him.” Shah arg ues that these internal emails both reve al that the RI F was fabr icated. I n Ree ves , the Court expl ained:
I t is permissible for the trier of fac t in an employ ment discrimination case to infer the ultimate fac t of discrimination from the falsity of the employ er’ s explanation; proof

S ee also EEOC v. Sara Lee Corp. , 237 F.3d 349, 354-55 (4th Cir. 2001) (employ er’ s 1 0 s en i o ri t y policy favor ing individuals with longe r tenure at the company was “leg itimate and nondiscriminatory ” and “ a prime e x ample of a policy that a compa

ny is entitled to respec t”). -18-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. that a defe ndant’s explanation i s u nworthy of cre dence is simply one form of circ umstantial evidenc e that is probative of intentional discrimination, and it may be quite persua sive [evincing g uilt]

. . . o n ce the employ er’ s justification has been eli minated, discrimination may well be the most likely alterna tive explan at i o n , espec ially since the employ er is in the best position to put forth the actua l rea son for its decision. Ree ves , 530 U.S. at 147-48. Shah arg ues that NXP ’s method of working backw ards (first deter mining to hire Knoell and then d et er m i n i n g to terminate Shah throug h a claimed

reor g anization/ R I F) casts serious doubt on NXP’s motivations, and that a rea sonable jury could conclude that NXP’s conduct in this reg ard w as ac tually an attempt to conc eal the tr ue motivation for ter minating Shah – illeg al discrimination. Howeve r, nothing about the Fr eema n-Ke y email chain supports the proposition that NXP’s proff ere d rea son for terminating Shah’s employ ment was false and that discrimination was the rea l

rea son. I mportantly , neither Key nor Fr eema n ref err ed to Shah’s or Knoell’s ag e or national orig in, nor to any

desire to e liminate older employ ees or those of I ndian desc ent, nor to any desire to hire
y oung er, white employ ees. Additionally , Shah does not arg ue that he was more qualified than the other FQE s and could not identify any of his co-w orker s who, in his opinio n , s h o u l d h av e been terminated instead of him. Moreove r, considering the fac ts in the light most favor able to Shah, the email cha in does not, on its face , contra dict NXP’s purporte d rea son for ter mination. 2. Shi ftin g Justif

ications 1 1

Shah’s contention that NXP chang ed its justification for termination is not proper ly befor e 1 1 the court, beca

use the issue was first raised in Shah’s motion for rec onsideration. Acc ording ly , Shah has waived this arg ument. See infra Section I I I .D. Neve rtheless, a s expl ained he rein, e ven if this issue wer e prope rly

befor e the c ourt, it would stil l fail. -19-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. Next, Shah arg ues that NXP’s stated justificati o n fo r terminating him chang ed during the

course of t his litigation, which is evidenc e that the R I F was for d i s cr iminatory rea sons. “Shifting justifications [for a plaintiff’s termination] calls the cre dibilit y of those justifications into question. By showing that [a] defe ndants’ justification for f iring [a plaintiff] chang ed . . . a g enuine issue of fac t [i s cre ated] that th e defe ndants’ proffer ed reason was not only false, but that the falsity was a prete x t for discrimination.” Cicero v. Borg-W arner Auto. Inc. , 280 F.3d 579, 592 (6th Cir. 2002). 1 2 Shah was orig inally informed (pre -litiga tion , at his termination meeting ) that he was being terminated throug h an RI F due to an “ec onomic downturn;” howeve r, NXP’s headc ount rema ined 1 3 the same and its ex p en ditures actua lly incre ased afte r the reor g anization/R I F. After the litigation ensued, Shah maintains that NXP chang ed its justification fo r co nducting the alleg ed

reor g anization / R I F, s t ati ng that the RI F was the result of a desire to have one “Qua lity Manag er”

overse eing the var ious “Quality Eng ineer s” – esse ntially

a “c entra liz ed lea dership” justifica tion. Howeve r, the e vidence indicates that NX P never c hang ed its justification. Shah testified:

I n Cicero , the defe ndant acquir ed a division of the plaintiff’s former employ er, of which 1 2 the plaintiff wa s a m anage ment team member. Id. at 583. The defe ndant initially claimed that it terminated the plaintiff’s employ ment beca use it wanted to put into place its own manag ement team. Id. at 592. During discovery , howeve r, the defe ndant asser ted for the first time that it terminated the plaintiff for poor perfo rm an ce . Id. The defe ndant chang ed its justification y et ag ain at summary judgme nt, claiming that it had only fired members of manag ement wh o dealt direc tly with its headquart er s i n C h icag o. Id. The court found these shifting justifications sufficie nt to cre ate a g enuine issue of materia l fac t as to whether t h e defe ndant’s proff ere d rea son for the plaintiff’s termination truly motivated its actions. Id. Unlike Cicero , wher e the defe ndant’s shifting justifications wer e wholly unrela ted to one another and did not stem from one centr al fac t, no simil ar fac ts ex ist here.

Roberts informed Shah that the termination “wa s due to the economic downturn and the 1 3 resultant . . . misfortunes of companies like NXP, reduc tions in sales volume, et cete ra, e t ceter a.”

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Shah v. NXP Sem iconductors USA, Inc

. Q. Did either Ke n [R oberts] or L eland [Key ] say why it was y our particula r position that should be eliminated? A. I t was re org anization and work for ce r eduction. There fore , Shah knew at the time of his termination that the decision was based on a reor g anization and cor responding RI F. I n sum, the rec ord evidenc e shows that: (1) in mid-2008, Knoell emer g ed as the leading candida te to take over Michae ls’s highe r-r anking job as Quality Manag er for all of North Americ a,
not just as a manag er for the Automotive FQE s; (2) Key cre ated the Automotive Quality Manag er 1 4 position in 2009 to fill the supervisory void in the Quality sub-g roup result i n g fr om Michae ls’ retire ment and the subsequent hiring fre eze; (3) Key believed that hiring Knoell would be an upg rade
to the Automotive Americ as g roup and communicated that point contempora neously to many of his colleag ues, all of whom concur red with his proposal when Knoell unexpectedly was laid off by Visteon ; (4) NXP require d that Key not incre ase his headc ount in the Automotive Americ as g roup,

1 5

I t i s n o t ab l e t h at Knoell and Shah had previously worke d toge ther at Visteon prior to 1 4 Shah’s employ

ment wi th NXP. They both started as eng ineer s, but Visteon promoted Knoell in 1997 to T echnic al Specialist, a job w ith a L eade rship L evel job g rade of L L 6, which was an entry

level supervisory position. Knoell continued working as a Tec hnical Specialist for the next 12 y ear s. Shah also continued to work fo r Vi s t eo n , but in a non-super visory job at a lower rate of pay . Additionally , unlike Shah, Knoell was one of the four founder s of the Au t o m o tive Electronic s Council (“A EC”). The AEC “wa s orig inally established by Chry sler, For d, and GM for the purpose o f e s t a b l i s h i n g c o m m o n p a r t

- q u a l i f i c a t i o n a n d q u a l i t y - s y s t e m s t a n d a r d s . ” S e e http:// www.a ecounc il.com (last visited July 31, 2012). Unlike Shah, Key considere d Knoell to be an expert in semiconductor reliability

based on his wor

k for the A EC. Key believed that the Aut o m o t i ve Quality Manag er position would produce cer tain 1 5 eff iciencie s, such as having a centr alized repor ting structure for the FQE s. He also envisioned that the Automotive Quality Manag er wo u l d b e able to “identify and centr alize rec ommended ‘best prac tices’ for FQE ’s on quality issues and take steps to ensure that those best prac tic es wo u ld be -21-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

.
so Key could not hire Knoell without terminating someone else in the g roup; (5) Shah admitted that all the Automotive FQE s wer e perf orming satisfac torily at the time of his termination; (6) Shah had the least seniority ; (7) Knoell perf orms manag ement duties that differ from Shah’s former duties; 1 6 and (8) Shah could not identify any other FQE who was not perf orming satisfac torily or who, in his mind, should have bee n terminated instea d of him. Ba sed on this evidence , the district court c oncluded that: [T] he two rea sons g iven by Def endant in support of t h e re d u ct ion in forc e are not inconsistent. Def

endant wanted to hire Knoell in order to upg rade [i ts] org anization (i.e. provide

. . . reg ional leade rship)

. . . but f or economic rea sons, c ould not do so without terminating an exis ting employ ee . . . Thus the two rational es g iven by Def endant underly ing the reduc tion in forc e (ec onomic nece ssity and improving its manag ement structure ) are intertwined: due to economic considerations, Def endant could not improve its m anag ement structure in the desired manner without terminating Plaintiff. Acc ording ly , Shah’s ar g ument that NXP’s shifting justifica tion developed out of a need to de fend its conduct is not supported by t h e re co rd. Conversely , the rec ord indicates that the two rea sons g iven by NXP in support of the RI F a re not inconsistent. There fore , Shah failed to produce evidenc e that NXP’s rea son for termination was a prete x t for discrimination. The evidenc e supports a finding th at Key simply exercised his business judgme nt
to seize upon the opportunity to hire Knoell into a new manag ement position, which in turn require d Key to eliminate a position elsewher e within NXP.

implemented by all the FQE s as a g roup.” Key considere d whether any of the exis ting FQE s could fill the manag er r ole, but deter mined that none of the m exhi bited the nec essar y leade rship skills. I t is notable that in many circ umstances, seniority would in fac t g ive pref ere n ce to 1 6 individuals in t he prote cted a g e g roup. -22-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. D. Motion for Reconsideration Finally , Shah maintains that the district court err ed when it denied his motion for

rec onsideration.
I t is well-settled that “par ties cannot use a motion for rec onsi d eration to raise new leg al
arg uments that could have been raised befor e a judgme nt was issued.” Roger Miller Music, Inc. v. Sony/ATV Publ’g. , 477 F.3d 383, 395 (6th Cir. 2007). Additionally , rec onsideration motions cannot be used as “an opportunity to re- arg ue a case .” Fur thermore , a party may not introduce evidenc e for the first time in a motion for rec onsideration wher e that evidenc e could have been prese nted ear lier. See, e.g., Sommer v. Dav i s , 3 1 7 F. 3 d 686, 691 (6th Cir. 2003); CGH Transp., Inc. v. Quebe cor W orld, Inc. , 261 F. Appx. 817, 824 (6th Cir. 2008) (af firming denial of rec onsideration and stressing : “It i s hard to imag ine how an aff idavit from one of [pl aintiff’s] own witnesses would have been previously unavailable to [pl aintiff], and [pl aintiff] has not explained why it failed to introduce this evidenc e in o p position to summary judgme nt.”). Shah’s motion suffe rs from the exact same defic iencies discusse d in these ca ses. Specifica lly , Shah’s motion for rec onsideration cited new excerpts from Knoell’s deposition and a new de clar ation that Shah signe d 12 day s after the di strict court gra

nted s ummary judgme nt for NXP. On appea l, the only alleg ed err or Shah assig ned to the district court on rec onsideration was striking his decla

ration. As in Sommer , there is nothing in Shah’s decla ration that was not within 1 7 his persona l knowledg e in J une 2010 when he filed hi s opposition to NXP’s m otion for s ummary

I n the declara tion, Shah attested t h at he spent 80 to 90 perc ent of his time servicing the 1 7 three acc ounts that Knoell eventua lly took over. -23-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. judgme nt, and Shah offe rs no explanation a s to why he failed to pr esent his de clar ation in a timely fashio n . “B y b ri ng ing the issue [of sever ability ] befor e the District Court in such an untimely

1 8 fashion, defe ndants eff

ectively waived their arg ument on sever abil i t y and have no basis to assig n failure to sever as an err or on this app ea l

. ” A m. Me at Inst. v. Pridgeon , 724 F.2d 45, 47 (6th Cir. 1984). Moreove r, even if we did consider the decla ration, it would not chang e the outcome. I n the decla ration S hah asserts that the t hree customer accounts

– Bo s ch , Bose , and TRW -- that Knoell took ove r afte r Shah’s termination alleg edly consumed 80-90 perc ent of Shah’s time while he was employ ed by NXP. Howeve r, the pertinent evidentiar y inquiry is not simply how the plaintiff spent his or her time, but rathe r the duties of the person who alleg edly repla ced the plaintiff, such that an employ ee who perf

orms duties in addition to duties that the plaintiff perf ormed is not a repla ceme nt. Geiger , 579 F.3d at 623. The rele vant inquiry , as expressed by the dis t ri ct co u rt , i s “how Knoell spends his time, not how [ Shah] spent his time.” IV. CONCLUSION For the fore g oing rea sons, we AF F IRM the district court’s g rant of summary judgme nt for NXP Semiconductors USA, I nc.

“To constitute ‘new ly discovere d evidenc e,’ t h e evidenc e must have been previously 1 8 unavailable .” GenCorp, Inc . v. Am. I nt’l Underwriters , 178 F.3d 804, 834 ( 6th Cir. 1999). -24-Case No. 11- 1779

Shah v. NXP Sem iconductors USA, Inc

. HELE NE N. WHITE , Circuit Judge, concur ring in part and dissenting in part. I join the majority in affir ming the dismissal of Shah’s na tional-orig in discrimination claim. As to the ag e-d i s crimi nation claim, I respe ctfully dissent. I conclude that Shah prese nted sufficie nt evidenc e from which a rea sonable jury could conclude that NXP’s purported reduc tion in forc e (RI F) was not bona fide, and that the district court thus err ed in apply ing the heig htened prima 1 facie standard applicable in RI F case s. Soon afte r Bob Knoell informed Key that Visteon had let him
g o, Key emailed Fr eema

n that it “ would be g ood to g et Bob on the team.” Fr eema n responde d the

same day , “Could y ou hire him and fire Girish [S hah]? ” Key immediately responde d, “You rea d my mind

.. . as y ou know difficult t o fi re quickly here , need to build a case etc. My thought is to eliminate the quality eng ineer role (Girish’s position), and hire Bob as a reg ional automotive quality
mgr , (whe re he would also handle Girish’s acc ounts directly ), so we c ould then RI F Gir ish, rather than fi re h i m . ” A rea sonable jury could infer from these communications that 1) the decision to “RI F” Shah was not based on an economic downturn, contra ry to what NXP told Shah, and 2) NXP
manag ement s o u gh t t he cover of NXP’s RI F policy beca use either it was easie r to discharg e an employ ee under an RI F than to “build a case ” ag ainst an employ ee, and/or NXP manag ement believed that a termination labeled as pursuant to an RI F would fend off litigation. A rea sonable jury

Even if a jury wer e to conc lude that there was a bona fide RI F, Key did not follow NXP’s 1 RI F policy as the district court conclude d. I t is undisputed that Key did not revie w the perf ormanc e evalua tions, produc tivity or qualifica tions of the FQE s befor e selec ting Shah for termination. The NXP RI F policy provides that employ ees are selec ted based on a combination of fac tors, including job function, prese nce or absenc e of critica l skills, past perf ormanc e and productivity , qualifica tion, attendanc e/punctuality , and cor rec tive action status.

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Shah v. NXP Sem iconductors USA, Inc

. could also conclude that there simply was no RI F; afte r all, the headc ount in Key ’s depar tment did not decr ease . Even i f Knoell did not repla ce Shah, under the traditional McD onnell Douglas burdenshifting analy sis, Shah established a prima facie case of ag e discrimination by showing membership in a protec ted class, an adver se employ ment action, that he wa s qualified for the position, a

nd that

a s imilarly situated y oung er employ ee (L aituri) was not subject to the same adver se em p l o y m en t action. See Martin v. Toledo Cardiology Consultant s, Inc. , 548 F.3d 40 5 , 410 (6th Cir. 2008) (apply ing McD onnell Douglas burden- shifting fra mework in ADEA case ). Reg arding prete x t, as discussed, Shah prese nted evidenc e from which a rea sonable jury could conclude that the purported
R I F wa s n ot bona fide or t hat t here was no RI F at all, or bot h. Thus, Shah satisfied hi s bu rd en t o produce sufficie nt evidence from which a jury could reasonably reje ct hi s employ er’ s explanation for firing him. Blizzard v. Marion Technical Coll. , 689 F.3d 275, 285 (6th Cir. 2012). “[P] rete x t is a commonsense inquiry : did the employ er fire the em p l o y ee for the stated reason or not? ” Id. , quoting C h en v. Dow Chem. C o. , 580 F.3d 394, 400 n.4 (6th Cir. 2009). Whether S hah can m eet his burden under the ADEA to show that ag e was the but -for cause of NXP’s adver se action is an

o p en q u es t i o n. See Blizzard , 689 F.3d at 283. Nonethele ss, viewing the fac ts in a light most favor able to Shah, NXP wa s not entitled to summ ary judgme nt. Finally , I conclude that Shah’s claim under Michig an’s Civil Rights Act, Mich. Comp. L aws § 37.2010 et seq ., was also i m p ro perly dismiss ed, as the McD onnell Douglas burden- shifting framework applies and, unlike the ADEA, a p l ai n t i ff n eed show only that ag e was a motivating fac tor in the adver se employ ment action. See Hazle v. Ford Motor Co. , 628 N.W.2d 515, 522 (Mich.

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. 2001) (once the employ er articula tes a leg itimate, nondiscriminatory rea son for its ad v er se employ ment action, “in order t o survive a motion for summary dispositi on, the plaintiff must demonstrate that the evidenc e . . . , when construed in the plaintiff’s favor , is sufficie nt to permit a

rea sonable trier of fac t to conclude that discrimination was a motivating fac tor for the adver se action”) (interna l quotations and citation omitt ed).

-27-