Opinion
Case No. 6:17-CV-618-JDK
08-21-2019
Donald GILBREATH, Robert Steve Hicks, and Carey Stripling, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. BROOKSHIRE GROCERY COMPANY, Defendant.
William S. Hommel, Jr., Hommel Law Firm, Tyler, TX, for Plaintiffs. Eric J. Kolder, Stephen Miles Spitzer, Ramey & Flock, PC, Charles Duane Cowan, The Law Offices of C. D. Cowan, Tyler, TX, Clara B. Burns, El Paso, TX, for Defendant.
William S. Hommel, Jr., Hommel Law Firm, Tyler, TX, for Plaintiffs.
Eric J. Kolder, Stephen Miles Spitzer, Ramey & Flock, PC, Charles Duane Cowan, The Law Offices of C. D. Cowan, Tyler, TX, Clara B. Burns, El Paso, TX, for Defendant.
ORDER GRANTING DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT
JEREMY D. KERNODLE, UNITED STATES DISTRICT JUDGE
Plaintiffs are former employees of Defendant Brookshire Grocery Company ("Brookshire") who were terminated as part of a reduction in force ("RIF") in 2016. Plaintiffs claim they were terminated because of their age, in violation of the Age Discrimination in Employment Act of 1967 (ADEA). Brookshire moved for summary judgment. Docket Nos. 71–72. As explained below, the Court GRANTS Brookshire's summary judgment motions.
I.
Brookshire is a large regional grocery chain headquartered in Tyler, Texas. Docket No. 79, Ex. G at 2–4. Before the RIF in 2016, Plaintiffs Donald Gilbreath, Robert Hicks, and Carey Stripling worked in Brookshire's Logistics Department. Docket No. 1 at ¶¶ 25, 32, 40; see Docket No. 71, Ex. 3. Plaintiffs Keith Bejcek, Hope Reagan, Denise Ramey, Chris Hall, Leslie Wright, Charity Owens, and Michael Smith worked in Brookshire's Category Management and Marketing Departments. See Docket No. 72, Ex. 1. Each Plaintiff was forty years or older at the time of the RIF, and many had worked for Brookshire for decades. Docket No. 1 at ¶¶ 18, 32, 39; Docket No. 77, Ex. H at 3.
The RIF arose out of concern about the "financial condition of the company." Docket No. 77, Ex. A at 48:11–14. In 2016, Brookshire began "discussions of a strategy" to address this concern. Id . One strategy involved reducing the overall cost of business, including an "effort to reduce labor costs." Id. at 50:13–16. In the past, Brookshire had lowered labor costs by using a process called "leveling," by which the company reduced employees' titles and compensation instead of laying them off. Id. at 68:1–13. This time, the company wanted other ideas.
In mid-2016, Brookshire hired Capgemini, an independent consulting firm, to help streamline operations and find "ways to be more efficient and reduce [the] cost of doing business." Docket No. 71, Ex. 2 at 19:1–5. Following several months of analysis of company operations, Capgemini presented numerous recommendations, some with "high potential for savings" and some with low potential. Id. at 71:11–17. One recommendation was a reduction in force, a "RIF." Docket No. 77, Ex. A at 55:15–25. Capgemini did not recommend that Brookshire lay off any particular employee, only that it eliminate unnecessary positions. Docket No. 71, Ex. 3 at 58:20–22.
Brookshire decided to "in-source" the implementation of Capgemini's recommendations. Docket No. 77, Ex. A at 57:13–20. The Executive Vice President ("EVP") of each department within the company was responsible for finding "the savings or decid[ing] what's best for the business." Docket No. 71, Ex. 2 at 71:11–17. Each EVP had the discretion whether to implement, modify, or reject Capgemini's recommendations. Id. at 71:13–18. Although Brookshire's Chief Executive Officer Brad Brookshire retained ultimate veto power over the EVPs' decisions, he did not exercise this power in the decisions about Plaintiffs. Docket No. 72, Ex. 1 at 42:20–24. None of the EVPs decided to use "leveling" to reduce labor costs. Docket No. 77, Ex. B at 68:7–13; id. , Ex. C at 50:20–25.
Trent Brookshire was the EVP of Logistics. Based on Capgemini's recommendations, he concluded that his department had "too much overhead and too many layers within the decision-making matrix of our organizational structure." Docket No. 71, Ex. 3 at 67:4–7. As a result, he laid off Plaintiffs Gilbreath, Hicks, and Stripling. Id. at 66:18–20. Trent Brookshire described the choice to lay off these three employees as "pretty simple" because "[w]e had inefficiency in our organizational hierarchy ... [and] my business cases were rather cut and dry and a bit more straightforward than, you know, the complexity around some of the others." Id . at 66:5–20. After reviewing Capgemini's recommendations, Trent Brookshire explained, "it became pretty obvious to me that we were overstaffed" and that laying off Gilbreath, Hicks, and Stripling would reduce costs and simplify the organizational structure. Id . at 66:19–67:7.
Neal Leonhardt was the EVP of Sales and Marketing, which includes Category Management and Merchandising. Docket No. 72, Ex. 1 at 13:3–20. Leonhardt consulted the Capgemini recommendations and concluded that the positions held by Plaintiffs Bejcek, Reagan, Ramey, Hall, Wright, Owens, and Smith were inefficient or redundant. See id . at 27:22-28:8. For example, Leonhardt laid off Plaintiffs Ramey, Hall, and Smith because Brookshire already had a third-party vendor performing their function, which involved retail merchandising execution. Id. at 27:1–12; id. at 29:14–22; id. at 52:20–53:3. Similarly, Leonhardt laid off Plaintiff Owens because Brookshire hired a third party to perform her function, which "very much reduced" the need for Owens's position. Id. at 47:2–21. Leonhardt laid off Plaintiff Bejcek because the company was already using third-party vendors with more resources, and thus Bejcek's job was "no longer needed." Id. at 49:4–50:15. Leonhardt laid off Plaintiff Wright because another employee was also performing that function, meaning her position was also "no longer needed." Id. at 51:5–11. Finally, Leonhardt laid off Plaintiff Reagan because the company was using an outside firm for her job and thus, Leonhardt concluded that Reagan's job was not producing "much value." Id. at 56:18–25–57:1. Leonhardt stated that age was not a factor for any of these layoffs. Id. at 46:17–19, 50:16–18, 51:12–14, 57:2–3, 57:11–13.
All told, eighty-eight employees were laid off in the 2016 RIF. Docket No. 77, Ex. H at 7. Approximately 81% of those eighty-eight employees were over forty years old. Id . Brookshire's EVP of Human Resources at the time, Sheri Satterwhite, later agreed that this statistic was "concerning," but also stated that she could not recall ever notifying the CEO, any high-level officer, or any EVP about the number. Id. , Ex. D at 22:12–24:5, 29:5–21. Brookshire CEO Brad Brookshire also could not remember discussing the 81% statistic with Satterwhite. Id. , Ex. E at 13:3–5. Satterwhite believed the RIF was a "good faith effort" to comply with age discrimination laws. Id. , Ex. D at 27:12–16.
Part of the RIF included a downsizing of Brookshire's Bakery Department. See id. , Ex. I. In connection with that downsizing, Brookshire's Human Resources Department created a document entitled "Bakery Manufacturing Reduction in Force HR Plans." Id. The document states:
If the company offers a severance agreement to obtain a waiver of discrimination claims, the partners have 45 days to review it. The partner has seven days to revoke the agreement even after signing it. The laid-off partners must be told the job titles and ages of all laid off, so the partners can be better informed when deciding whether to sign the severance agreement and waive their age discrimination claims.
Id. In separation agreements provided to laid-off employees, Brookshire attempted to obtain a waiver but did not provide any laid-off employee with a list of the job titles and ages of all other laid-off employees. Id. , Ex. B at 84:11–86:24.
Following the RIF, Plaintiffs Gilbreath, Hicks, and Stripling timely filed charges with the Equal Employment Opportunity Commission (EEOC), alleging that Brookshire discriminated against them because of their age. See id. , Ex. K. The EEOC apparently took no action, and on September 21, 2017, Plaintiffs received a Notification of Right to Sue. Docket No. 1 at ¶ 5.
In October 2017, Plaintiffs filed this lawsuit as a collective action and alleged that Brookshire violated the ADEA in implementing the RIF. Docket No. 1 at ¶¶ 44–49. Plaintiffs Bejcek, Reagan, Ramey, Hall, Wright, Owens, and Smith filed consents to be party Plaintiffs and opted into the case. See Docket Nos. 21, 34, 52. The Court granted conditional certification of the collective action on September 18, 2018. See Docket No. 48.
Following sixteen months of discovery, including the depositions of at least one Plaintiff and six Brookshire officers and employees, Brookshire moved for summary judgment. Brookshire filed two motions: one motion against the original Plaintiffs—Donald Gilbreath, Robert Hicks, and Carey Stripling—and the second against the Opt-In Plaintiffs—Keith Bejcek, Hope Reagan, Denise Ramey, Chris Hall, Leslie Wright, Charity Owens, and Michael Smith. See Docket Nos. 71–72. The Court held oral argument on both motions on July 2, 2019.
II.
A.
Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998). A fact is material only if will affect the outcome of the case. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine only if the evidence could lead a reasonable jury to find for the nonmoving party. See id. In determining whether a genuine issue of material fact exists, the Court views all inferences drawn from the factual record in the light most favorable to the nonmoving party, here the Plaintiffs. Id. ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
After the moving party has made an initial showing that there is no evidence to support the nonmoving party's claim, the nonmoving party must assert competent summary judgment evidence to create a genuine fact issue. Matsushita , 475 U.S. at 586, 106 S.Ct. 1348. Mere conclusory allegations, unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Eason v. Thaler , 73 F.3d 1322, 1325 (5th Cir. 1996) ; Forsyth v. Barr , 19 F.3d 1527, 1533 (5th Cir. 1994). The nonmoving party must identify evidence in the record and articulate how that evidence supports his claim. Ragas , 136 F.3d at 458. Summary judgment must be granted if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial. Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548.
B.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination "on the basis of ... race, color, religion, sex, or national origin," not age. 42 U.S.C. § 2000e-2. In fact, "Congress considered and rejected proposed amendments that would have included older workers among the classes protected from employment discrimination." Smith v. City of Jackson , 544 U.S. 228, 232, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). Congress, however, directed the Secretary of Labor to study age discrimination. Gen. Dynamics Land Sys., Inc. v. Cline , 540 U.S. 581, 587, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004). The Secretary later issued a report concluding that age discrimination was a "serious problem," but a different problem than discrimination based on race, color, religion, sex or national origin. Id. The Secretary found that age discrimination resulted more from "arbitrary" discrimination, as opposed to a dislike or intolerance of older people. City of Jackson , 544 U.S. at 232, 125 S.Ct. 1536. The Secretary also found that "institutional arrangements" caused discriminatory effects on older workers. Id. at 255-56, 125 S.Ct. 1536 (citation omitted).
In 1967, Congress enacted the ADEA, which states in pertinent part:
It shall be unlawful for an employer-
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.
Age Discrimination in Employment Act of 1967, Pub. L. 90-202, 81 Stat. 602 (1967) (codified as amended at 29 U.S.C. §§ 621 et seq . (2000) ). The ADEA by its terms applies only to "individuals of at least 40 years of age." 29 U.S.C. § 631. Although the ADEA was enacted separately from Title VII, the two statutes are "similar in text, tone, and purpose." Barber v. CSX Distribution Servs. , 68 F.3d 694, 698 (3d Cir. 1995). As a result, courts "routinely look to law developed under Title VII to guide an inquiry under the ADEA." Id.
The Supreme Court has held that plaintiffs suing employers under the ADEA may bring both disparate impact and disparate treatment claims. See City of Jackson , 544 U.S. at 240, 125 S.Ct. 1536 (interpreting phrase "or otherwise adversely affect" in 29 U.S.C. § 623(a)(2) as prohibiting disparate impact discrimination); Meacham v. Knolls Atomic Power Lab. , 554 U.S. 84, 95, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008) ; see also Munoz v. Orr , 200 F.3d 291, 299 (5th Cir. 2000) ; Powell v. Dall. Morning News L.P. , 776 F. Supp. 2d 240, 257 (N.D. Tex. 2011), aff'd sub nom. Powell v. Dall. Morning News, L.P. , 486 F. App'x 469 (5th Cir. 2012). Disparate impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Int'l Bros. of Teamsters v. United States , 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). A disparate impact claim does not require a showing of discriminatory intent. See City of Jackson , 544 U.S. at 235–36, 125 S.Ct. 1536. A disparate treatment claim, in contrast, requires a showing "that age was the ‘but-for’ cause of the employer's adverse decision." Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) ; see also Hazen Paper Co. v. Biggins , 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (explaining that a disparate treatment claim "captures the essence of what Congress sought to prohibit in the ADEA").
The Fifth Circuit has held that the ADEA "was not intended to be a vehicle for judicial second guessing of business decisions, nor was it intended to transform the courts into personnel managers." Walther v. Lone Star Gas Co. , 952 F.2d 119, 123 (5th Cir. 1992) (quoting Thornbrough v. Columbus & Greenville R.R. Co. , 760 F.2d 633, 647 (5th Cir. 1985) ). Federal courts are "generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it." Watson v. Fort Worth Bank & Tr. , 487 U.S. 977, 999, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (quoting Furnco Constr. Corp. v. Waters , 438 U.S. 567, 578, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) ).
III.
Brookshire moves for summary judgment on both the disparate impact and disparate treatment claims brought by Plaintiffs. The Court addresses each in turn.
A.
Brookshire argues that Plaintiffs' disparate impact claim fails for two independent reasons. First, Plaintiffs failed to exhaust their administrative remedies because their EEOC charges neglected to "specifically include disparate impact discrimination allegations." Docket No. 71 at 5. And second, Brookshire argues, Plaintiffs cannot establish a prima facie case of disparate impact discrimination. Id. at 8–9. The Court agrees.
1.
A plaintiff may not bring an ADEA claim in federal court "until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission." 29 U.S.C. § 626(d) ; see also, e.g., Walton-Lentz v. Innophos, Inc. , 476 F. App'x 566, 569 (5th Cir. 2012) ("[An ADEA plaintiff] must exhaust her administrative remedies by filing a charge of discrimination with the EEOC."). This exhaustion requirement is not a procedural "gotcha." McClain v. Lufkin Indus., Inc ., 519 F.3d 264, 272 (5th Cir. 2008). Rather, the charge is intended to "trigger the investigatory and conciliatory procedures of the EEOC, in attempt to achieve non-judicial resolution of employment discrimination claims." Pacheco v. Mineta , 448 F.3d 783, 788–89 (5th Cir. 2006). The charge is "a mainstay of proper enforcement of Title VII [and ADEA] remedies" because it enables the EEOC to investigate and, "if appropriate, negotiate a resolution with an employer." McClain , 519 F.3d at 272–73. For this reason, the scope of the charge determines the scope of any subsequent litigation. See id. at 273 ("Courts should not condone lawsuits that exceed the scope of EEOC exhaustion, because doing so would thwart the administrative process and peremptorily substitute litigation for conciliation.").
The charge, however, does not need to "check a certain box or recite a specific incantation" to exhaust a particular claim. Pacheco , 448 F.3d at 792. Nor does the charge need to "allege a prima facie case." Id. Indeed, the Fifth Circuit has directed courts to construe an EEOC charge "liberally" because " ‘the provisions of Title VII [and the ADEA] were not designed for the sophisticated,’ and because most complaints are initiated pro se." Id. at 788 (quoting Sanchez v. Standard Brands, Inc. , 431 F.2d 455, 463 (5th Cir. 1970) ). Courts should consider both the "actual statement given by the plaintiff in the administrative charge" and "the scope of the EEOC investigation which can reasonably be expected to grow out of [it]." Hackney v. Tex. Dep't of Criminal Justice , 2009 WL 2391232, at *4 (E.D. Tex. Aug. 4, 2009) (quoting Pacheco , 448 F.3d at 789 ) (alteration in original). In doing so, courts should use "a ‘fact-intensive analysis’ of the administrative charge that looks beyond the four corners of the document to its substance." McClain , 519 F.3d at 273 (citing Sanchez , 431 F.2d at 466 ).
Pacheco is illustrative. There, the court held that the plaintiff failed to exhaust a disparate impact claim because his charge focused entirely on disparate treatment, not disparate impact, discrimination. See 448 F.3d at 791–92. Although the court read the charge "somewhat broadly," the court concluded that it was "facially a disparate-treatment claim ... alleging that [the plaintiff] was singled out for intentional discrimination because of his race." Id . at 792. The charge failed to identify "any neutral employment policy that would form the basis of a disparate-impact claim." Id. All three incidents mentioned in the charge, moreover, were "examples of disparate treatment discrimination." Id. The court thus concluded that "a disparate-impact investigation could not reasonably have been expected to grow out of [the] administrative charge." Id.
So too here. All three of the EEOC charges filed by Plaintiffs allege exclusively disparate treatment, not disparate impact, discrimination. None identifies a neutral employment policy, which is "the cornerstone of any EEO disparate-treatment investigation." Id. And none leads one to reasonably expect that a disparate-impact investigation might grow out of it. See id .
1. Donald Gilbreath. Plaintiff Gilbreath's three-page charge is the most detailed. It focuses almost entirely on the alleged intentional discrimination by his then-new boss, Trent Brookshire. Gilbreath alleges that he and other older workers in management were "concerned for a long time about Trent Brookshire" because Trent Brookshire had a reputation of joining a new department of the company and then having "long-term (25–35 years plus with the company) people" "demoted, fired, or moved to punitive schedules or positions where they would quit." Docket No. 77, Ex. K at 4. "After Trent Brookshire became my boss," Gilbreath contends, "I felt as if I immediately had a target on my back." Id. Gilbreath believed Trent Brookshire was running a "witch hunt" against "older members of management," was "openly hostile to us," and "wanted us ‘uncomfortable.’ " Id. "[W]e started being expected to work long days, weekends, nights, all holidays, and it was obvious Trent Brookshire hated us using any of our well-earned vacation time." Id. at 6. Gilbreath contends that this "was all punitive" and that "[i]t had become obvious the goal was to try and get us to quit, and that started immediately after Trent became our boss." Id. Eventually, Gilbreath learned that Brookshire was laying him off. Id. Trent Brookshire told Gilbreath that it was an "85-person employee layoff," but Gilbreath stated that the RIF "was a smaller group mainly in their mid-50's plus age-wise, particularly when taking into account those forced to retire prior to the layoff." Id.
Like the charge in Pacheco , Gilbreath's charge is "facially a disparate-treatment claim." Pacheco , 448 F.3d at 791. Nowhere does Gilbreath identify a neutral employment policy that creates a disproportionately adverse effect on older workers. See id. (citing Hebert v. Monsanto Co. , 682 F.2d 1111, 1116 (5th Cir. 1982) ). Gilbreath's brief mention of the RIF comes the closest, but read in context the RIF is alleged to be the final step in a series of discriminatory acts against older workers—"a smaller group mainly in their mid-50's plus age-wise," as Gilbreath put it. Docket No. 77, Ex. K at 6. Indeed, Gilbreath asserts that Trent Brookshire viewed employees over fifty "as past their prime and an impediment to progress" and as "inept, behind the times, and not knowing what we were doing." Id. at 4, 6. Interpreted "liberally," Gilbreath's charge would not reasonably be expected to trigger an EEOC investigation of a disparate impact claim. See Pacheco , 448 F.3d at 788, 792.
2. Robert Steve Hicks. Plaintiff Hicks's one-and-a-half-page charge similarly focuses on alleged intentional discrimination by Trent Brookshire. Hicks states:
I followed leadership off day policy, but Trent Brookshire was very upset because I took the day off. I was told by Scott Reily that I had a target on my back with Trent Brookshire. After May 30, 2016, Trent Brookshire turned up the heat trying to get me to quit. Weeks later the requirements for me was [sic] different from anyone else in Logistics.
Docket No. 77, Ex. K at 12. Hicks alleges several other examples of unfair treatment by Trent Brookshire, including an alleged incident of sexual harassment that he believes was an effort to "falsely accuse [him] of misconduct to give the company an excuse to terminate [him] because of [his] age." Id. Hicks concludes that "the elimination of my position was merely a pretext for my termination based upon my age." Id. at 13. Like Pacheco's and Gilbreath's charges, Hicks's charge facially asserts a disparate treatment claim, fails to identify a neutral employment policy, complains only of past incidents of discriminatory treatment, and would not reasonably be expected to trigger a disparate impact investigation. See Pacheco , 448 F.3d at 792–93.
3. Carey Stripling. Plaintiff Stripling's one-page charge is no different. Stripling states: "October 2016 I was told that my position was being eliminated. It was not due to my performance. I believe that the real reason was that the company was weeding out older management employees and I was part of that process." Docket No. 77, Ex. K at 18. A month before he was laid off, Stripling alleges, Brookshire "promoted 4 new VP's and two days after we were let go a raise was given to all warehouse workers, starting pay was raised, and all part time employees that had been there 6 months or longer were made full time." Id. Stripling concludes: "Myself and 2 other department heads were eliminated. We were the oldest, most senior management, and the highest paid in those areas." Id. Like Gilbreath and Hicks, Stripling contends that Trent Brookshire discriminated against older employees and believed that they "were targeted because [they] were associated with the old CEO and because of [their] age." Id.
All three charges focus exclusively on discriminatory treatment and, even read "liberally" or "broadly," would not reasonably trigger a disparate impact investigation. Pacheco , 448 F.3d at 788. Accordingly, Plaintiffs have failed to exhaust their administrative remedies, and Brookshire is entitled to summary judgment of the disparate impact claim for this reason alone. See, e.g. , id. at 791–92.
2.
Brookshire also argues that Plaintiffs "cannot establish a prima facie disparate impact case." Docket No. 71 at 8. Again, the Court agrees.
To prove disparate impact, Plaintiffs must do more than "simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact." City of Jackson , 544 U.S. at 241, 125 S.Ct. 1536. "Rather, the employee is ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’ " Id. (emphasis in original) (quoting Wards Cove Packing Co. v. Atonio , 490 U.S. 642, 656, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) ). This is a heavy burden, and it requires Plaintiffs "not only to isolate and identify the specific employment practices, but to establish causation by introducing a ‘substantial statistical disparity between protected and non-protected workers’ with respect to the employment practices in question, the functional equivalent of intentional discrimination." Powell , 776 F. Supp. 2d at 257 (quoting Munoz , 200 F.3d at 299–300 ). Plaintiffs must therefore: "(1) ‘identify the employment practice that has the allegedly disproportionate impact’ and (2) ‘establish causation by offering statistical evidence to show that the practice in question has resulted in prohibited discrimination.’ " Manley v. Invesco , 555 F. App'x 344, 348 (5th Cir. 2014) (quoting Stout v. Baxter Healthcare Corp. , 282 F.3d 856, 860 (5th Cir. 2002) ).
Plaintiffs have not satisfied either requirement here. First , Plaintiffs have not identified a neutral employment practice that would support a disparate impact claim. Plaintiffs argue that Brookshire's policy of cutting costs, which was implemented through the RIF, satisfies this element. Docket No. 77 at 10. But implementing a RIF to cut costs is the type of "generalized policy" that the Supreme Court warned against in City of Jackson . 544 U.S. at 241, 125 S.Ct. 1536. Indeed, courts have held that plaintiffs terminated in a layoff cannot "point to the layoff itself as the practice that disparately impacted older workers." E.g. , Oinonen v. TRX, Inc. , 2010 WL 396112, at *4 (N.D. Tex. Feb. 3, 2010) ; see also, e.g. , Davis v. District of Columbia , 925 F.3d 1240, 1250 (D.C. Cir. 2019) (plaintiffs may state viable claim only when they "go beyond the general concept of a ‘RIF’ to identify actionable practices" of the RIF); Leichihman v. Pickwick Int'l , 814 F.2d 1263, 1269 n.5 (8th Cir. 1987) ; Breen v. Chao , 253 F. Supp. 3d 244, 266 (D.D.C. 2017) ; Powell , F. Supp. 2d 240, 258–59; Zawacki v. Realogy Corp. , 628 F. Supp. 2d 274, 281 (D. Conn. 2009) ; Mustelier v. Equifax, Inc. , 2009 WL 890468, at *6 (D.P.R. Mar. 25, 2009) ; Kourofsky v. Genencor Int'l, Inc. , 459 F. Supp. 2d 206, 214–15 (W.D.N.Y. 2006) ; White v. Am. Axle & Mfg., Inc. , 2006 WL 335710, at *3–6 (E.D. Mich. Feb. 14, 2006).
As the Oinonen court explained, plaintiffs terminated in a RIF or layoff must identify a "specific test, requirement, or practice in the layoff selection process that is allegedly responsible for the purported statistical disparities." 2010 WL 396112, at *4. Otherwise, employers could be held liable "for ‘the myriad of innocent causes that may lead to statistical imbalances.’ " City of Jackson , 544 U.S. at 241, 125 S.Ct. 1536 (quoting Wards Cove Packing Co. , 490 U.S. at 657, 109 S.Ct. 2115 ). The closest the plaintiffs came in Oinonen was alleging that the employer may have "disfavored employees who had been in their positions for longer lengths of time," which "could have led to a disproportionate termination of older workers." 2010 WL 396112, at *5. But, the court held, "the ADEA does not prohibit an employer from considering years of service when terminating an employee, its incidental effect notwithstanding." Id . (citing Hazen Paper Co. v. Biggins , 507 U.S. 604, 612, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) ). Plaintiffs do no better here. Brookshire's alleged cost-cutting policy underlying the RIF is not the kind of test, requirement, or practice that could give rise to a disparate impact claim. See Oinonen , 2010 WL 396112, at *4 ; Powell , 776 F. Supp.2d at 258-59 (holding that plaintiff "cannot rely on a broad unmeasurable policy as a basis for a disparate impact claim").
Plaintiffs argue that Brookshire could have used a "leveling" approach as the company apparently did in 2012, instead of a RIF. Docket No. 77 at 3. The ADEA, however, "was not intended to be a vehicle for judicial second guessing of business decisions, nor was it intended to transform the courts into personnel managers." Walther , 952 F.2d at 123 (quoting Thornbrough , 760 F.2d at 647 ). Further, a "reduction of a work force is a legitimate, nondiscriminatory reason for termination." Powell , 776 F. Supp. 2d at 264. Without more, the Court will not second-guess Brookshire's decision to use a RIF to cut costs.
Second , Plaintiffs present no evidence that the cost-cutting policy underlying the RIF disparately affected workers forty years of age or older. To satisfy this requirement, Plaintiffs must show a "substantial ‘statistical disparity’ " between older and younger workers. Stout , 282 F.3d at 860–61 (quoting Munoz , 200 F.3d at 299–300 ). In most cases, a plaintiff provides "statistical evidence comparing the effects of a challenged policy on protected and unprotected groups of employees." Id. For example, in McClain v. Lufkin Indus., Inc. , the plaintiffs' expert created pools of employees who would be eligible for promotion and testified that, during the relevant period, black employees "received 127 fewer hourly promotions and 8.85 fewer salaried promotions than should have been expected given their representation in these pools." 519 F.3d 264, 279–80 (5th Cir. 2008). The expert then opined "that these differences were statistically significant at 7.61 standard deviations for hourly promotions and at 2.02 standard deviations for salaried promotions." Id.
Here, the only evidence provided by Plaintiffs is a document indicating that 81% of the employees terminated during the RIF were over forty years old. See Docket No. 77, Ex. H at 7. Plaintiffs argue that this lone statistic is sufficient to satisfy the second requirement of their disparate impact claim. The problem, however, is that nothing in the record indicates the number of employees over forty years old in the departments before the RIF. There is therefore no way to know whether older workers were in fact disproportionately affected by the RIF. If, for example, at least 81% of the employees in those departments were over forty before the RIF, then the RIF did not have a disparate impact on employees over forty. Without more information or context, the 81% statistic is not enough to survive summary judgment. See Pippin v. Burlington Res. Oil & Gas Co. , 440 F.3d 1186, 1201 (10th Cir. 2006) (holding that plaintiff's statistical evidence had "little significance" when plaintiff did not provide any evidence of "comparables"); see also, e.g. , United States v. Valencia , 600 F.3d 389, 425 (5th Cir. 2010) ("Evidence of mere correlation, even a strong correlation, is often spurious and misleading when masqueraded as causal evidence, because it does not adequately account for other contributory variables."); Collins-Pearcy v. Mediterranean Shipping Co. (USA) , 698 F. Supp. 2d 730, 746–47 (S.D. Tex. 2010) (holding that plaintiffs failed to show causation in part by not presenting any evidence "addressing possible nondiscriminatory reasons" for the alleged discriminatory employment practice).
Because Plaintiffs failed to exhaust their administrative remedies and failed to establish a prima facie case, summary judgment is proper on Plaintiffs' disparate impact claim.
B.
Brookshire argues that Plaintiffs' disparate treatment claim also fails for two independent reasons. First, Plaintiffs cannot establish a prima facie case of disparate treatment. Docket No. 71 at 13. And second, Brookshire argues, Plaintiffs cannot rebut Brookshire's nondiscriminatory reasons for their termination. Id. at 13–14. The Court agrees.
1.
"To establish a disparate-treatment claim under the plain language of the ADEA ... a plaintiff must prove that age was the ‘but-for’ cause of the employer's adverse decision." Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Liability thus "depends on whether ... age ... actually motivated the employer's decision." Smith v. City of Jackson , 351 F.3d 183, 186 (5th Cir. 2003). In cases where the plaintiff presents only circumstantial evidence of age discrimination, the Fifth Circuit has adopted the burden-shifting analysis from McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Sandstad v. CB Richard Ellis, Inc. , 309 F.3d 893, 896–97 (5th Cir. 2002). That approach requires the plaintiff to "carry the initial burden under the statute of establishing a prima facie case of [age] discrimination." McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817. To establish a prima facie case when a plaintiff is discharged during a RIF, the plaintiff must show that:
(1) the plaintiff is within the protected age group under the ADEA; (2) he or she was adversely affected by the employer's decision; (3) he or she was qualified to assume another position at the time of the discharge or demotion; and (4) evidence, either circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching its decision.
Woodhouse v. Magnolia Hosp. , 92 F.3d 248, 252 (5th Cir. 1996).
If the plaintiff presents a prima facie case, then "the burden of production, rather than persuasion, shifts to the defendant to proffer a legitimate nondiscriminatory reason for its decision." Sandstad , 309 F.3d at 897 (citing McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817 ). An "economically-motivated RIF constitutes a legitimate, nondiscriminatory reason for an employee's termination." Powell , 776 F. Supp. 2d at 273 (citing EEOC v. Tex. Instruments Inc. , 100 F.3d 1173, 1181 (5th Cir. 1996) ). If the defendant satisfies its burden of production, then "the presumption of discrimination created by the prima facie case disappears, and the plaintiff is left with the ultimate burden of proving discrimination." Sandstad , 309 F.3d at 897. The plaintiff must present "a genuine issue of fact as to whether the reasons articulated by the [defendant] for discharging him were pretextual." Amburgey v. Corhart Refractories Corp. , 936 F.2d 805, 813 (5th Cir. 1991) (alteration in original) (quoting Thornbrough , 760 F.2d at 641 ). A plaintiff may show that the defendant's articulated reasons were pretextual in two ways: (1) "directly by persuading the court that a discriminatory reason more likely motivated the employer;" or (2) "indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. (quoting Thornbrough , 760 F.2d at 639 ).
Here, Brookshire argues that Plaintiffs have not established a prima facie case because they have not satisfied—and cannot satisfy—the fourth element: that Brookshire intended to discriminate against older workers in implementing the RIF. See Docket No. 71 at 13. To satisfy this element, Plaintiffs must produce evidence that would lead a jury "reasonably to conclude either (1) that [Brookshire] consciously [terminated] a plaintiff because of his age, or (2) that [Brookshire] regarded age as a negative factor in such consideration." Amburgey , 936 F.2d at 812. Plaintiffs have no such evidence here. The only deposition testimony cited by Plaintiffs is Brookshire officers and employees testifying that they terminated Plaintiffs to reduce costs, inefficiencies, and redundancies—not because of Plaintiffs' ages or because they viewed age as a negative factor. Docket No. 77, Ex. A at 50:13–51:15, 53:2–7, 53:25–54:7, 55:15–25; id. , Ex. D at 27:12–16; id. , Ex. F at 44:2–18. Plaintiffs also rely on the document discussed above indicating that 81% of the employees terminated in the RIF were older than forty. Docket No. 77, Ex. H at 7. Plaintiffs argue that this document shows that Brookshire intended to discriminate against older employees because it knew that 81% of the employees terminated in the RIF were over forty. Docket No. 77 at 9–11. But the 81% statistic by itself does not tell us anything without knowing, at a minimum, the ages of the other employees in the affected departments before the RIF. See supra , part III.A.2; see also, e.g., Pippin , 440 F.3d at 1201. Further, the record indicates that the EVPs who implemented the RIF were not aware of the 81% statistic until this litigation. Docket No. 77, Ex. D at 29:5–21.
Plaintiffs do not cite or rely on their own testimony or statements to prove a prima facie case of discriminatory treatment. See Docket Nos. 77 & 79.
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Plaintiffs also mention a Brookshire-created document entitled "Bakery Manufacturing Reduction in Force HR Plans." Docket No. 77 at 5; id. , Ex. I. This document stated that any laid-off employee being offered a severance agreement with a waiver of discrimination claim "must be told the job titles and ages of all laid off, so the [employee] can be better informed." Id. , Ex. I. Plaintiffs argue that "the applicable ADEA statute and regulations require these disclosures," but that Brookshire failed to provide them. Id . at 5; see also Docket No. 77, Ex. B at 86:20–24; id. , Ex. J. This failure was apparently an "error or an oversight." Id. , Ex. B at 86:20–24. It is not, however, evidence of discriminatory intent. At most, the failure to provide this information would render any waiver of discrimination claim potentially unenforceable because the employees were not fully informed. See Chaplin v. NationsCredit Corp. , 307 F.3d 368, 375 (5th Cir. 2002). But Brookshire is not seeking to enforce any such waiver here, and Plaintiffs do not explain how unintentionally withholding this information from the laid-off employees demonstrates Brookshire's discriminatory intent.
The uncontroverted evidence in the record in fact demonstrates that the EVPs who implemented the RIF did not have discriminatory intent. The EVPs, for example, eliminated positions, not individuals, to reduce costs and improve efficiency, which is what Capgemini recommended. Docket No. 71, Ex. 3 at 66:15–20; Docket No. 72, Ex. 1 at 50:6–15, 51:4–11, 52:1–19, 56:15–57:1; Docket No. 71, Ex. 3 at 58:15–22. Trent Brookshire testified that it was a "black and white decision to eliminate the positions" of Plaintiffs because it was "obvious" that the Logistics Department was "overstaffed." Id. at 66:15–20. Leonhardt, EVP of the Sales and Marketing Department, also testified repeatedly that the "positions" eliminated during the RIF were not needed or were redundant. See, e.g. , Docket No. 72, Ex. 1 at 50:6–15, 51:4–11, 52:1–19. Plaintiffs do not raise any genuine issues of material fact to suggest otherwise.
Because Plaintiffs have not presented a prima facie case of discriminatory treatment, summary judgment is proper on this claim for this reason alone. See, e.g. , Powell , 776 F. Supp. 2d at 272–73.
2.
Brookshire also argues that, even if Plaintiffs could make a prima facie case of discriminatory treatment, it has provided a legitimate and nondiscriminatory reason to discharge Plaintiffs—which Plaintiffs have not shown was pretextual. See Sandstad , 309 F.3d at 897 (citing McDonnell Douglas , 411 U.S. at 802, 93 S.Ct. 1817 ).
Brookshire contends that it implemented the RIF for legitimate economic purposes. The Court agrees. Capgemini recommended the RIF "to be more efficient and reduce [the] cost of doing business." Docket No. 71, Ex. 2 at 19:1–5. There was "too much overhead and too many layers within the decision-making matrix of our organizational structure." Id. , Ex. 3 at 67:4–7. Departments at Brookshire were "overstaffed." Id. at 66:15–20. The "positions" eliminated during the RIF were not needed or were redundant. See, e.g. , Docket No. 72, Ex. 1 at 50:6–15, 51:4–11, 52:1–19. And the RIF simplified the organizational structure and reduced costs. Id . at 66:19–67:7. Indeed, the Fifth Circuit has said that a RIF "is itself a legitimate, nondiscriminatory reason for discharge." Texas Instruments , 100 F.3d at 1181. Similarly, "[a]n employer's decision to eliminate a job position ... has been recognized as a legitimate, non-discriminatory reason for terminating an employee." Chapman v. Dall. Morning News, L.P. , 2008 WL 2185389, at *7 (N.D. Tex. May 27, 2008).
Because Brookshire presented a legitimate, nondiscriminatory reason for its RIF, Plaintiffs must show that Brookshire's legitimate reason was pretextual. Amburgey , 936 F.2d at 813. Plaintiffs have not done so. Plaintiffs again rely on the 81% statistic, which by itself is insufficient evidence of intent, does not address the reasons for the RIF, and does not show that Brookshire's cost-savings rationale was pretextual. Docket No. 77 at 12–13. Plaintiffs also assert that "Capgemini did not make specific recommendations regarding which individuals would lose their jobs in the RIF." Id . But both Trent Brookshire and Neal Leonhardt testified that they followed Capgemini's recommendations to eliminate unnecessary or redundant "positions," not individuals, to reduce overhead. See Docket No. 71, Ex. 3 at 66:15–20; Docket No. 72, Ex. 1 at 50:6–15, 51:4–11, 52:1–19, 56:15–57:1. Finally, Plaintiffs say that Brookshire should have used "leveling" to reduce costs, but the only evidence in the record demonstrates that the RIF was chosen because there was "too much overhead and too many layers within the decision-making matrix of our organizational structure." Id. , Ex. 3 at 67:4–7. Further, as noted above, a RIF "is itself a legitimate, nondiscriminatory reason for discharge." Texas Instruments , 100 F.3d at 1181.
Because Plaintiffs have not shown that Brookshire's reasons for the RIF were pretextual, summary judgment on their disparate treatment claim is proper for this additional reason. See, e.g. , Amburgey , 936 F.2d at 813–14.
CONCLUSION
Plaintiffs have failed to present a genuine issue of material fact as to either their disparate impact or disparate treatment claim. Brookshire is therefore entitled to summary judgment as a matter of law. Accordingly, the Court GRANTS Brookshire's Motions for Summary Judgment (Docket Nos. 71–72) and ORDERS that all claims by Plaintiffs against Brookshire are DISMISSED . So ORDERED and SIGNED this 21st day of August, 2019.