NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0572n.06 No. 10-5795 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT J OHN R. B L ANDF ORD, Plaintiff-Appellant,

v. EXXON MOBI L CORPOR ATI ON d/b/a EXXON MOBI L FUE L S MARKETI NG COMPANY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF TEN NESSEE

Be fore : GI BB ONS and SUTTON, Circ uit J udg es; DUGG AN, District Judge. *

DUGGA N, District J udg e. I n this suit, Plaintiff J ohn Bla ndford asser

ts claims of ag e d iscrimination under the Ag e Discrimination in Employ ment Act (“A DEA” ) and the Ten n es s ee Human Rights Act ( “THRA” ) ag ainst his employ er, Exx on Mobil Corporation (“Exx onMobil”). Bla ndford appea ls the district court’s g rant of summary judgme nt in favor of Ex x onMobil with respe ct to his claims. For the rea sons set forth below, w e af firm the district cour

t’s decision. I

. Ex x onMobil sale s repr esenta tives are known within the company as “Te rritory

Manag ers” (“TMs” ). The g ener al class of TMs can be further subdivided based on the ty pe of customers serve d. Two g roups of TMs that are particula rly rele vant to this suit are those who service “Company
The Honorable Patrick J

. Dug g an, United States District J udg e for th e E as tern District of * Michig an, sitting by

desig nation.No. 10-5795

Blandford v. Exx on Mobil Corp. Oper ated Retail Stores” (“CORS TMs”) and those who service independe nt distributors of Ex x onMobil products (“Distributor TMs”)

. The company has ty pically assig ned new r ecr uits and

rec ent colleg e g radua tes to the CORS TM position to allow them to le arn the business. R. 49-1 at 29-30. As these employ ees g ain experience , they often become Distributor TMs. Appellant App’x 53. At all times releva

nt to this litigation, B landford w as employ ed as a Distributor TM. Ex x onMobil considers sever al fac tors in deter mining employ ees’ compensa tion: the employ ee’ s (1) “c l assi fica tion level” (“CL ”); (2) perf ormanc e, repr esente d by a Rank Group Perce ntile; and (3) work ex perie nce, measure d in y ear s. R. 25 at ¶¶ 3- 4. Eac h CL corr esponds t o

a minimum and maxi mum salary

. The Rank Group Perce ntile and work experience values are used
to define a number of “sala ry ref ere nce curve s” within e ach CL

. Id. at ¶ 4. The curve s are define d

so that compensa tion rises at a decr easing rate as the employ ee g ains experience

. Thus, the trajec tory of the salary curve “fla ttens out.” See Appellee App’x 179. Ex x onMobil has also at times cre ated salary curve s for specific positions based on survey s of competitive data. R. 25 at ¶ 5. These salary

curve s follow the same ba sic trajec tory , with compensation rising at a de cre asing rate
. By J anuar y 2003, Ex x onMobil perc eived a need to alig n the pay of the TM job family more closely with the pay

offe red in the ma

rketplac e for compar able posit ions. To ac complish this, t he company conducte d internal studies and g ather ed competitive data from cons ulting org anizations Wil liam A. Merc er, I nc. and T ower s Perrin. Id. at ¶ 6. Throug h these eff orts, the company deter mined that the pay structure of the TM job f amily was not alig ned with the marke t. Appellee App’x 193. Ex x onMobil define d a new salary structure for the TM job family , which beca me known

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as t he “TM Salary Curve.” Id. at ¶ 8. T h e d ec i s i o n wa s made to apply the TM Salary Curve to a number of positions, including the CORS TM and Distributor TM positions. Appellee App’x 420. The TM Salary Curve was implemented i n J an u ar y 2 0 0 3

. Id. As a part of this chang e, positions in the TM job family wer e g iven a new CL with a salary rang e of $45,000 throug h $77,000. At the time, ma

ny TMs, including Bla

ndford, had salarie s above the $77,000 targ et maxi mum. R. 25 at ¶ 10-11. Ex x onMobil implemented a prog ram called “mer it transition,” wher e TMs with sal ar i es ab o ve the targ et maxi mum would obtain annual “mer it transition incre ases” of $800 to $1,200. Id. at ¶ 14. The merit transition increa se wa s expected to be smaller than the mer it r aises gi v en t o T Ms whose salarie s wer e below the maxi mum level. Appellant App’x 33. Be cause t h e salary rang es for eac h CL tended to incre ase from y ear to y ear , the result was that the salarie s of all TMs would eventua lly fa l l within the minimum and maxi mum rang e of the TM Salary Curve. Following the implementation of the TM Salary Curve, Bla ndford was g iven annual merit transition incre ases of

betwee n $800 and $1,200. R. 49-5. I n Aug ust 2006, Ex x onMobil conducted a “TM job fa

mily evalua tion wor

kshop” attended by sever al executives of the Fue ls Marke ting org anization. The workshop’s purpose was to revie w the applica t i on of t he TM Salary Curve. Human R esourc es ex ecutive Be njamin Buc kland s erve d

as the workshop’s fac ilitator. Workshop attendee s evalua ted and compar ed the positions subject to the TM Salary Curve to deter mine whether chang es should b e m ad e. Af t er this discussion, the executives rec ommended the remova l of several p o s i t i ons from the TM Salary Curve, but not the Distributor TM position. Appellee App’x 434.

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At some point, Bla

ndford raised a conce rn that th e TM Salary Curve was discriminatory based on ag e. I n October 2006, Bla ndford participa ted in a confe renc e call with Buc k l an d , Ar ea Manag er J im Coleman, and Distributor Business Manag er Kenda ll MacG ibbon to discuss this issue. R. 44-2 at 15. Bla

ndford was told that his conce rns wer e investiga ted, but that no discrimination was found. Id. at 16. During this phone call, Buc kland alleg edly stated, “intuitively

. . . we all know that the value of

experience g oes down with ag e.” R. 44-1 at 15. I n Aug ust 2008, Bla

ndford filed his complaint in the Circuit Court of Knox County , Tenne ssee, alleg ing ag e discrimination under the ADEA and THRA. Ex x onMobil remove d the case to the Easter

n District of Tenne ssee a

nd moved for summary judgme nt. The district c ourt g rante d Ex x onMobil’s moti on in an opinion dated June 3, 2010. Blandf ord now a ppeals that de cision. I I

. A district court’s g rant of summary judgme nt is revie wed de n o vo . Provenzano v. LCI Holdings, I

nc. , 663 F.3d 806, 811 (6th Cir. 2011)

. Summary judgme nt is appropr iate when “ther e is no g enuine disput e as to any materia l fac t and the movant is en t i tled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56( a). The moving party has the burden of proving the absenc e of a g enuine issue of materia l fac t and its entitlement to summary judgme nt as a matter of law. Celotex Corp. v. C a t r et t , 477 U.S. 317, 323 (1986). All fac ts, including infere nces, are viewed in the light m o s t favor able to the nonmoving party
. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). T h e centr al inquiry is “whe ther the evidenc e prese nts a sufficie nt disag ree ment to

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Blandford v. Exx on Mobil Corp. require submissi on to a jury or whether it is so one-sided that one party must pre vail as a matter of law.” Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 251-52 (1986).

I I I

. “The ADEA prohibits an empl o y er from failing or ref using to hire, discharg ing, or discriminating ‘ag ainst any individual with respe ct to his com p ensation, terms, conditions, or privileg es of employ

ment, beca

use of such individual’s ag e . . . .’” Geiger v. Tower Auto. , 579 F.3d 614, 620 (6th Cir. 2009) (quoting 29 U.S.C. § 623(a) (1))

. “A plaintiff may establish a violation of the ADEA by either direc t or circ umstantial evidenc e.” Id. (citing Martin v. T o l ed o Cardiology Consultant

s, Inc. , 548 F.3d 405, 410 (6th Cir. 2008)). “‘D irec t evidenc e o f d i s cr i mination is that evidenc e which, if believed, requi re s t h e conclusion that unlawful discrimination was at least a motivating fac tor in the employ er’ s actions.’” Id. (quoting W exle r v. W hite’s Fine Furniture, Inc. , 317 F.3d 564, 570 (6th Cir. 2003) (en banc) ). “‘Circ umstantial evidenc e, on the other hand, is proof that does not on its fac e establish discriminatory animus, but does al l o w a fac tfinder to draw a

rea sonable infere nce that discrimination occur red.’ ” Id. (quoting W

exle r , 3 1 7 F.3d at 570). “Reg ardle ss of the ty

pe of evidenc e submitt ed, the burden of persua sion rema ins on ADEA plaintiffs
to demonstrate ‘that ag e was the but-for cause of their employ er’ s adver se action.’” Provenzano , 663 F.3d at 811 (quoting Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 17 8 n.4 (2009))

. Ag e discrimination claims brought u nder the THRA are evalua ted using the same analy sis. Bende r v. Hec ht’s Dep’ t Stores , 455 F.3d 612, 620 ( 6th Cir. 2006). A. Disparate Tre atment Claim

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“The u l t i m at e question in ever y employ ment discrimination case involving a claim of disparate trea tment is whether the plaintiff was the victim of intentional discrimination.” Ree ves v. Sanderson Plumbing Prods. , 530 U.S. 133, 153 ( 2000). I n an ag e discrimination ca se, this means that the plaintiff’s ag e “must have ‘ac tually play ed a role in [t he employ er’ s decisionmaking ] proce ss and had a deter

minative influence on the outcome.’” Id

. at 1 4 1 (quoting Hazen Paper Co. v. Biggins , 507 U.S. 604, 610 (1993)) ( altera tion in original). 1. Direc t Evidence Bla ndford arg ues t hat Buckland’s statement, “intuitively

. . . we a ll know t hat t he value of experience g oes down with ag e,” R. 44-1 at 15, is direc t evidenc e of ag e discrimination. When examining statements alleg edly showing employ er bias on the basis of ag e, courts should consider “whe ther the comments wer e made by a decision maker or by an age n t wi t h i n the scope of his employ ment; whether t h ey wer e rela ted to the decision-making proce ss; whether they wer e more than mere ly vag ue, ambig uous, or isolated rema rks; and whether they wer e proxi mate in time” to the challeng ed ac tion. Cooley v. Carmike Cinemas, Inc. , 25 F.3d 1325, 1330 ( 6th Cir. 1994). I t is undisputed that Buc kland wa s involved in neither the desig n nor the initial implementation of the TM Salary Curve. Bla ndford arg ues that Buc kland’s comment is signific ant, howeve r, beca

use Buc kland fac ilitated the 2006 workshop at which Ex x onMob il executives decide d
not to remove the Distributor TM position from the TM Salary Curve. Bla ndford thus conclude s that Buc kland has a “conne ction to the decision-making proce ss.” Appellant Br

. 29. This “conne ction” is te nuous at best. Buc kland may have had acc ess to the decision maker s, but the re is no evidenc e

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Blandford v. Exx on Mobil Corp. indicating that he influence d their decision in any meanin gfu l way . There is also no evidenc e sug g esting that these decision maker s share d Buc kland’s views with respe ct to ag e and experience

. Buc kland’s remark also does not ref lect a disc riminatory

attitude toward olde r worke rs, as Bla ndford sug g ests. By stating that “the value of experience g oes down with ag e,” Buc kland mere ly expressed the viewthat experience is subjec t to diminis hing returns. Put differe ntly , an employ ee can be expected to g ain m uch of the knowledge nece ssary to his position early in his assignment. Once the employ ee has develope d considera ble expertise, eac h additional y ear of experience makes less of a differ ence . This does not imply that older TMs are any les s ca p ab l e o f p erf orming their jobs; in fac t, it seems to sug g est the opposite. The pr emise for the diminishi ng return is that more experience d employ ee s h av e alre ady established expertise in their jobs, while less experience d employ ees are still developing their skills. This assumption appea rs to be one of the foundations of Ex x onMobil’s g ener al compensa tion sy stem, as its salary ref ere nce curve s t en d t o flatten out as experience incre ases. See Appellee App’x 179. Bla ndford testified that he does not believe that the g ener al compensat i on sy stem was discriminatory based on ag e. R. 26-1 at 5. I t is difficult, i f not impossibl e, to rec oncile this position with Bla ndford’ s asser

tion that Buc kland’s rema rk was fac ially discriminatory

. Buc kland’s rema rk was ambig uous at worst, and cer tainly does not require the conclu s i o n t hat unlawful discrimination motivated Ex x onMobil’s decision. The district court

corr ectly conclude d that Bla

ndford f ailed to pre sent direc t evidence of ag e discrimination.

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2. Circumstantial Evidence “The three -step fra

mework develope d in McD onnell Douglas Corp. v. Gree n and modified by Texas Dep’ t of Community Affairs v. Burdine g uides the analy sis of ag e discrimination claims based upon circ umstantial evidenc e.” Provenzano , 663 F.3d at 811-12 (citations omitted). “I n the fi rst step, the employ ee car ries the initial burden of establishing a prima fac ie case of age discrimination; if the employ ee meets this burden, the second step require s the employ er to respond by articula ting some leg itimate, nondiscriminatory rea son for t h e ad verse employ ment action at issue.” Id. at 812 (c iting McD onnell Douglas , 411 U.S. 792, 802 (1973)). “ Third, assuming such

a response is made, the employ ee then bear s the burden of rebutting this proff ere d rea son by proving that it was pretext desig ned to mask discrimination.” Id. (citing McD onnell Douglas , 411 U.S. at 804). “At all times, the ultim ate bur den of pe rsuasion re mains on the plaintiff to de monstrate that ag e was the ‘but-for ’ cause of their employ er’ s adver se action.” Id. (citing Burdine , 450 U.S. 248, 253 (1981))

. Bla ndford’ s p ri ma fac ie case require s him to show that he: (1) is a member of a protec ted class; (2) was qualified for his position; (3) suffe red an adver se employ ment action; and (4) suffe red such action under circ umstances g iving rise to an infe renc e of unla wful discrimination. See Macy

v. Hopkins County Sch. Bd. of Educ. , 484 F.3d 357, 364-65 (6th Cir. 2007). T h e d i s t rict court conclude d that Bla

ndford sa tisfied the first three elements, but not the four th. Bla ndford has prese nted statistical analy sis indicating that older worke rs are trea t ed less favor ably as a result of the TM Salary Curve. “‘A ppropriate statistical data showing an employ er’ s

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pattern of conduct toward a protec ted class as a g roup can, if unrebutted, cre ate an infere nce that a defe ndant discriminated ag ainst individual members of the class.’” Bende r , 455 F.3d a t 6 2 2 (quoting Barnes v. GenCorp., Inc. , 896 F.2d 1457, 1466 (6th Cir. 1990) ) (citation omitted). “‘To do so, the statistics must show a signific ant disparity and eliminate the mo s t co mmon nondiscriminatory explanations for the disparity .’” Id. (quoting Barnes , 896 F. 2 d at 1466) (citation omitted). Bla ndford’ s analy sis shows that Distributor TMs tended to be, on aver ag e, older than CORS TMs. This is easily explained, a s the CORS TM position wa s often used to train new r ecr uits and rec ent colleg e g radua tes. R. 49-1 at 29-3 0

. Bla ndford’ s analy sis also establishes that afte r the implementat ion of the TM Salary Curve, Distributor TMs’ raises wer e, on aver ag e, smaller than those g iven t o CORS TMs . This disparity is not surprising, be cause the TM Salary Curve limited the raises g iven to TMs whose salarie s wer e above the maxi mum of the salary rang e. Acc ording to Bla ndford, the aver ag e Distributor TM’s salary in 2001 was $86,600, which was alre ady above the $77,000 targ et ceiling of the T M Salary Curve. Appellant Br

. 12. This prese nts an obvious explanation for the statistical disparity - the raises g iven to m any Distributor TMs wer e limit ed beca use those employ ees’ salarie s wer e alre ady above th e t arg et ceiling

. “[T] here is no disparate
trea tment under the ADEA when the fac tor motivating the employ er is some fea ture other than the employ ee’ s ag e,” ev en wher e the motivating factor is corr elated with ag e. Hazen Paper Co. , 507 U.S. at 608-09. Ag e discrimination plaintiffs must establish that they wer e d i s criminated ag ainst “bec ause they wer e old, not beca use they wer e expensive.” Allen v. Diebold, Inc. , 33 F.3d 674, 677 (6th Cir. 1994). B landford’ s statisti cal a naly sis fails to satisfy

this burden.

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Bla ndford points to documents create d prior to adoption of the TM Salary Curve in which it was projec ted t hat t his chang e would result i n signific ant cost saving s for Ex x onMobil. This is irrele vant, as “[t] he ADEA was not intended to protec t older worke rs from the often harsh economic

rea lities of common busines s d ec i s i o n s .” Id. Bla ndford also notes that Ex x onMobil’s preimplementation analy sis i n cl uded data on the number of employ ees in various ag e g roups. See Appellant App’x 4 4

. Discriminatory intent cannot be implied based solely upon Ex x onMobil’s

awa rene ss of its employ ees’ ag es, as it does not nece ssarily follow that ag e motivated the company ’s compensa tion decisions. Bla ndford asser

ts that the Merc er survey was not the most appropr iate benchma rk for the TM Salary Curve, and Ex x onMobil’s decision to rely on this survey is evidenc e of discriminatory intent. Appellant Br

. 49-50. “I n deciding whether an employ er rea sonably relied on the particula rized fac ts then befor e it, we do not require that the decisional proce ss used by the employ er be optimal or that it lef t no stone unturned.” Smith v. Chrysler Corp. , 155 F.3d 799, 807 (6th Cir. 1998). “[T] he key inquiry is whether the employ er made a rea sonably informed and considere d decision befor e taking

an adver se employ

ment action.” Id. (citing Burdine , 450 U.S. at 256). Be fo re cr eating the TM Salary Curve, Ex x onMobil obtained compensa tio n s u rv ey s that contained data from a varie ty of businesses, including oil and g as companies. R. 25 at ¶ 6-7. Ex x onMobil compar ed its own salarie s with those identified in the survey s and desig ned the TM Salary Curve to confor m with competitive benchma rks. Id

. at ¶ 10. The company also re- evalua ted the positions subject to the TM Salary Curve in 2006 to deter

mine whether application of the curve to those positions was appropr i at e.

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Blandford’s evidenc e indicates that Ex x onMobil’s decision was perha ps unwise and that a more appropr iate benchma

rk could have been found. I t does not demonstrate, howeve r, that the decision was so poorly

informed a s to sugg est discriminatory intent. The district court corr ectly conclude d that Bla nd fo rd failed to demonstrate an adver se employ ment action under circ umstances g iving rise to an infere nce of unlawful discrimination. He has not established a prima fac ie case of disparate trea tment on the basis of ag e, and for this rea son, summary judgme nt in Ex x onMobil’s favor w as appr opriate. B. D isparate I mpact Claim “‘Claims that stress disparate impact involve employ ment prac tices that are fac ially neutra l in their trea tment of differ ent g roups but that in fac t fall more harshly on one g roup than another .’” Allen v. Highlands Hosp. Corp. , 545 F.3d 387, 403 (6th Cir. 2008) (quoting Smith v. City of Jack son , 544 U.S. 228, 239 (2005)). In City of Jackson , the Supreme Court he ld tha t A DEA plaintiffs may

rec over under a disparate impact t heory

. 544 U.S. at 240. The scope of disparate impact l iability under the ADEA is narr ower than under Title VI I , beca use “ag e, unlike rac e or other classifica tions protec ted by Title VI I , not uncommonly has rele vance to an individual’s capa city to eng ag e in cer tain ty pes of employ

ment.” Id. at 240. The plaintiff must identify “‘spe cific employ ment prac tices that

are alleg edly responsible for any observe d statistical disparities.’” Id. at 241 (quoting W ards Cove Pack ing Co. v. Atonio , 490 U.S. 642, 656 (1989)). I f the plaintiff is able to demonstrate dispar ate impact, the employ er may esca pe liability by showing that “the differ entiation is based on rea sonable fac tors other than ag e.” 29 U.S.C. § 623(f) (1). An employ er seeking to defe nd on this basis “must

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not only produce evidenc e raising the d ef en se, but also persua de the fac tfinder of its merit.” Meac ham v. Knolls Atomic Power Lab. , 554 U.S. 84, 87 (2008). Wit h respe ct to Bla

ndford’ s disparate impact claim, the district court conclude d that Ex x onMobil had demonstrated that its employ ment prac tice was based on rea sonable fac tors other than ag e. Bla

ndford disa gre es wi t h this analy sis. He arg ues that Ex x onMobil considere d and reje cted the use of a Senior Terr itory Manag er Salary Curve, despite the fac t that the proposed curve would have lessened the impact on older employ ees. Un d er t h e ADEA, the proper inquiry is whether the employ er’ s differ entiation based on a fac tor other than ag e was rea sonable, not whether another course of action would have a voided a dispar ate impac t. See City of Jac kson , 544 U.S. at 243 (“U nlike the business nece ssity test, which asks whether there are other way s for the employ er to a chieve its g oals that do not r esult in a disparate impact on a protec ted class, the rea sonablene ss inquiry includes no such require ment.”). I t is there fore irrele vant that Ex x o n M o b i l re jected the proposed Senior Terr itor y Manag er Salary Curve. Bla ndford also takes iss ue with Ex x onMobil’s decision to ba se the TM Salary Curve on the Merc er sur vey data, but for

rea sons discussed above , the evidenc e supports a conclusion that this decision was rea sonably informed and considere d. Bla ndford ha s failed to esta

blish grounds f

or re versing

the district court’s decision with respe ct to his disparate impac t claim. I V. Bla ndford arg

ues in his reply brief that the district court err ed in apply ing the Mc Do n nell Douglas burden- shifting fra mework to his THRA claims. Reply Br

. 14-19. Bla ndford points to the

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Tenne ssee Supreme Court’s decision in Go s s et t v. T ractor Supply Co. , 320 S.W .3d 777 (Tenn. 2010), wh i ch held that the McD onnell Douglas fra mework was inapplicable at the summary judgme nt stag e beca

use it conflicte d with the Tenne ssee Rules of Civil Procedur e. Bla ndford failed
to raise this ar g ument in his opening br ief, whic h was filed afte r t he Gossett decision was issued. This court has consistently held that arg uments raised for the first time in a reply brief are waived. Sanborn v. Parke r , 629 F.3d 554, 579 ( 6th Cir. 2010). V. For the re asons set for

th above, we aff

irm the district court’s g rant of summar y judgme nt.

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