WEXLER v. WHITE'S FURNITURE, INC

KRUPANSKY, Circuit Judge, dissenting.

In this action commenced pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq, the plaintiff-appellant, Donald G. Wexler ("Wexler"), has challenged the district court's summary judgment for the defendant-appellee White's Fine Furniture, Inc. ("White's"), by which it resolved that the plaintiff had failed to proffer legally sufficient direct or circumstantial evidence to support his prima facie case. Alternatively, the trial court directed that, even assuming arguendo the existence of adequate circumstantial proof buttressing the plaintiff's age discrimination charge, the defendant had proffered a valid nondiscriminatory reason for its subject actions, whereas the plaintiff had not countered that reason with evidence of pretext legally sufficient to muster a triable jury question. On review, the en banc majority of this court has agreed with Wexler that the record evidence created a triable inference of discriminatory intent, as well as of pretextual motive, by White's.

With due deference to my learned colleagues, their conclusion is unsupportable in light of the entirety of the record proof, even when construed most favorably for the plaintiff, matched with the controlling legal pronouncements of the United States Supreme Court and long-standing Sixth Circuit precedent. An examination of the overall record and the existing legal precedent compels the inescapable conclusion that no rational, emotionally detached, and neutral jury could find in the plaintiff's favor, and therefore summary judgment for the defendant was mandatory. At bottom, the majority's decision is anchored not in the evidence and the law, but in dogma judicially legislated by the court majority. Cf. Lochner v. New York, 198 U.S. 45, 65, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting) (renouncing a result-oriented decision which was "decided upon an economic theory which a large part of the country does not entertain" and further commenting that "whether [the dissenter] agreed with that theory" was irrelevant to the judicial obligation to enforce otherwise-valid legislation duly enacted by the people's elected representatives).

At all times material to this action, White's owned and operated several retail furniture outlets in the Columbus, Ohio vicinity. On September 9, 1993, Gordon Schiffman ("Schiffman"), who was White's president, chief executive officer, and (together with his two sons) the controlling shareholder, hired Wexler to work as a sales representative at the predominantly family-owned company's Morse Road store. On that date, Wexler was 55 years old, and Schiffman was approximately 64 years of age. As a floor salesman, Wexler received White's standard compensation package, namely six percent commission on all delivered sales, with a guaranteed minimum annual salary of $20,000 (increased in 1996 to $25,000). Any periodic salary payment which exceeded accrued commissions was distributed as a draw or advance against unearned future commissions.

Wexler's satisfactory performance on the sales floor, as well as his prior experience in the retail furniture industry, prompted Schiffman, on February 13, 1995, to promote the then-57-year-old Wexler to manager of the Morse Road store. Shortly thereafter, the plaintiff attended four extensive formal managerial training sessions, and subsequently benefitted from ongoing informal instruction by corporate supervisors. Based on his training and experience, Wexler understood that his duties as a store manager included, among other things, the counseling and supervision of subordinate personnel, the identification and correction of employee performance problems, and the replacement of malperforming or uncooperative sales representatives; as well as the creation of attractive furniture displays, the maintenance of the facility's overall appearance, the accurate recording of sales transactions, and the promotion of positive customer relations including the mailing of a "thank-you" note to each buyer. Most importantly, the plaintiff conceded at deposition that he knew that, as a store manager, Schiffman would hold him personally accountable for his location's aggregate sales figures.

Commencing in August 1996, the overall sales volume of the Morse Road store, as well as Wexler's personal sales productivity, began a gradual decline. That cash flow problem alarmingly deteriorated between November 1996 and May 1997, when average monthly sales at Morse Road decreased 30.25%, and Wexler's personal sales declined 48% (or about $200,000), compared to the corresponding seven-month interval during the prior twelve-month period. In response to that continuing downward spiral, the defendant adjusted Wexler's remuneration formula, starting on March 1, 1997, to partially reflect the overall performance of the Morse Road store. White's reduced Wexler's commission on his personal sales from six to three percent, but concurrently entitled him, for the first time, to a commission of one and one-half percent on all delivered sales transacted by his subordinate staff members.

On June 9, 1997, Wexler, Schiffman, and David Lively ("Lively"), who was White's Executive Vice-President and owner of five percent of the concern's shares, met to discuss the Morse Road location's chronically low performance. During that meeting, Schiffman expressed extreme dissatisfaction with the store's 24% decline in sales during the five-month period January through May 1997, and further expressed his disappointment with Wexler's deficiencies in his managerial performance, including consistently sloppy paperwork, failure to counsel underperforming sales representatives, and inadequate store maintenance.

On June 15, 1997, Schiffman and Lively advised Wexler that the company planned to reassign him to his former position as a floor sales representative. The two corporate officers emphasized to Wexler that, although they were dissatisfied with his performance as a store manager, they hoped that he would remain on White's sales staff. They expressed mutual confidence that he could contribute to the company in the future as a sales professional. In recognition of his loyalty, the defendant offered Wexler the most generous compensation package ever bestowed upon one of its salesmen: Wexler's managerial compensation would continue through the balance of June 1997, and thereafter, he would accrue an eight percent commission on each of his personally consummated sales, rather than the standard six percent allotted to each of White's other salespersons. Moreover, the company agreed to forgive $4,500 in past salary advanced to Wexler as a draw against his as-yet-unearned commissions, despite its long-standing policy and practice of debiting such excess payments against the employee's unaccrued future commissions. On the following day, June 16, 1997, Wexler accepted that generous offer, and continued working in that capacity without interruption at least until the date of oral argument before the initial panel on October 31, 2000.

As purported support for his allegation that Schiffman demoted him by reason of age-driven animus, Wexler testified that, near the start of the June 15, 1997 assembly:

Gordon [Schiffman] had a smile on his face, said he had read the paper that I had given him, and that most of what I had written was correct. However, they have decided to make a change.

He then said, you're 60 years old, aren't you, Don? I said, no, Gordon. I'm 59. I'll be 60 in January. He then said, well, we both have been in the business 117 years. You don't need the aggravation, stress of management problems, customer problems, taking care of all these salespeople's problems that keep calling you on the phone all day every day.

Mr. Lively then interjected that they were going to really be grinding their managers in the future, and if they had to sweep floors or stay there until 11:00 p.m., they would do so. And he said it was stuff that I don't think you'd want to be doing.

Wexler also testified that, immediately prior to the June 15 meeting, he had observed Schiffman and Lively speaking with a "young man." That person was John Neilson ("Neilson"), an individual in his early thirties.

As indicated, on June 16, 1997, Wexler accepted Schiffman's reassignment proposal and graduated commission offer. Schiffman responded that he was pleased by Wexler's decision to remain on White's employment roster. Later that evening, Schiffman telephoned Wexler to clear with him the highlights of his planned announcement to the company staff regarding Wexler's departure from management. It was mutually agreed that, to avoid Wexler any embarrassment, Schiffman would "just mention that you're getting older, although not as old as I am."

Three days later, on June 19, 1997, Schiffman convened his employees to announce Wexler's decision to resume his former non-supervisory sales position. Wexler tape recorded that meeting. He has relied upon the following excerpt from Schiffman's oral address:

I'm going to share with you a conversation that Don Wexler, David Lively and I started in January. Don came back to my office one day and said Gordon, I've been in my management [sic] for a bunch of years, and I'm not sure what I want to do. Maybe I should just be worrying about my own customer and not everyone else's customers. This is getting to be tiring.

At that time we were interviewing for managers, because we needed somebody for this store. But we did interview another guy that we thought was top drawer. We thought that he was just absolutely a terrific kid. He's about David's age, been in the furniture business about as long as David. He's about as intense as David is. He's a fine guy. His name is John Nielson [sic].

I think you will like him very much. He is a fine, proper young man. Don't be misled by his youth anymore than being misled by David Lively's youth.

Wexler conceded at deposition that Schiffman's June 19, 1997 presentation, during which he did not directly reference Wexler's age, was " gracious."

As additional evidence of the defendant's purported age-animated bias, Wexler attested that David Lively once, on an unspecified date, had offered, "out of respect for [Wexler's] age," to retrieve a pen from the floor which Wexler had dropped; had on another undated occasion described the plaintiff to an outside manufacturer's representative as "a bearded, grumpy old man;" and had occasionally addressed him as "pops" or "old man." However, Wexler conceded that he, in turn, had occasionally referred to Lively as "the kid."

Furthermore, Wexler challenged the veracity of White's stated reason for his demotion, namely significant long-term negative trends in sales at the Morse Road location, by offering his own testimony, together with affidavits from several co-workers, which attributed the sharp slump in sales figures primarily to factors extraneous to Wexler's mismanagement. According to the plaintiff, the major causes of his store's flagging profitability were a "soft market" in retail furniture, a reduction in company advertising featuring the Morse Road store in deference to concentration upon promotion of two recently opened White's outlets, and the assignment of an excessive number of inexperienced trainees to Wexler's store who would later be re-deployed at the two new locations.

Additionally, the plaintiff's evidence, including co-worker affidavits and his own self-serving attestations, lauded selected aspects of his managerial performance. The plaintiff and his witnesses generally asserted that the plaintiff had made some efforts to train and counsel his subordinates, to improve enforcement of store cleanliness and maintenance standards, to ensure the prompt completion of merchandise deliveries and the mailing of follow-up "thank you" notes, to elevate sagging worker morale, and to reduce the incidents of recordkeeping errors. The plaintiff's witnesses praised him for his purported hard work and managerial professionalism.

Finally, Wexler has contended that his immediate successor, John Neilson, performed even less effectively than he had as the Morse Road store manager, and exhibited comparatively inferior managerial prowess. Store revenues continued to decline during Neilson's administration. However, White's terminated Neilson's employment approximately five months after hiring him as the Morse Road store manager, in the face of continually decreasing revenues, which was the same reason that it had earlier permitted Wexler to resume his position as a salesperson. It bears emphasis that, unlike Wexler, Neilson was not re-assigned within the company organization.

On April 9, 1998, Wexler instituted his one-count complaint against White's in federal district court, by which he alleged that his demotion from store manager to floor salesman constituted age discrimination in employment. After discovery, the defendant moved for summary judgment. See Fed.R.Civ.P. 56. On July 15, 1999, following briefing, the district court granted that motion, ruling that the plaintiff's evidence failed to support his prima facie case; and further, even if he had proved the elements of a circumstantial discrimination claim, he had failed to refute, via proof of pretext, the defendant's tendered permissible motivation for reassigning him to salesperson status, namely its business judgment that the plaintiff was unfit for the managerial post, primarily because his store had experienced a long-term severe depression in its sales volume. The plaintiff's timely appeal followed.

A plaintiff may prove employment discrimination through either direct or circumstantial evidence of disparate treatment which had been driven by animus against a legally protected characteristic. See, e.g., Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000). "The direct evidence and circumstantial evidence paths are mutually exclusive; the plaintiff can meet [his] burden with either method of proof." Id. at 523 (brackets added; citation and note omitted). Nonetheless, irrespective of whether the plaintiff's proof of disparate treatment is direct or circumstantial, the ultimate liability question is the same — "`liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision.' That is, the plaintiff's age must have `actually played a role in the employer's decisionmaking process and had a determinative influence on the outcome.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (brackets omitted; parentheses in original) ( quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). "Mere personal beliefs, conjecture and speculation are insufficient to support an inference of age discrimination." Chappell v. GTE Products Corp., 803 F.2d 261, 268 (6th Cir. 1986) (citation omitted).

" Direct evidence [of employment discrimination] `is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.'" Weberg, 229 F.3d at 522 (emphasis and brackets added) ( quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). "Such evidence would take the form, for example, of an employer telling an employee, `I fired you because you are disabled [or elderly].'" Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998). If the plaintiff produces sufficient direct evidence of discrimination, "[t]he burden of persuasion then shifts to the defendant to show that it would have terminated the plaintiff's employment absent the discriminatory motive." Weberg, 229 F.3d at 522 ( citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)).

Employment discrimination claims of the Price Waterhouse genre are often described as "mixed-motive" cases, because, in the typical action, the overall evidence ultimately reflects a mixture of legitimate and illegitimate reasons for the employer's assailed adverse employment action against the plaintiff. Price Waterhouse, 490 U.S. at 247, 109 S.Ct. 1775. However, as unfolded below, in the cause sub judice, no Price Waterhouse mixed-motive analysis is warranted, because Wexler failed to surmount his initial burden of proffering probative direct evidence that any impermissible age-related discriminatory motive incited his ouster from management. See id. at 244-45, 109 S.Ct. 1775 (" once a plaintiff in a Title VII case shows that gender [or age] played a motivating part in an employment decision, [ then] the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender [or age] to play such a role.") (Italics and brackets added; note omitted).

In the litigation instanter, Wexler, via his briefs, has offered four statements by Schiffman, and two by Lively, as his foundational direct proof of White's alleged age-animated motivations for relieving him of his managerial responsibilities:

1. "I'll just mention [as the reason for Wexler's demotion] that you're getting older." (Gordon Schiffman).

2. Mr. Wexler is told as he is demoted: "You're sixty years old, aren't you, Don? You don't need the aggravation, stress of management problems, customer problems, taking care of all these salespeople's problems. . . ." (G. Schiffman).

3. David Lively's references to Mr. Wexler's age, referring to him as an "old man" and a "grumpy old man."

4. Mr. Lively told Mr. Wexler as he was demoted that White's was really going to be "grinding" their managers, making them do "stuff I don't think you'd want to be doing."

5. The job was "getting to be tiring" for Mr. Wexler. (G. Schiffman).

6. Gordon Schiffman's repeated references to John Neilson's youth when announcing Mr. Wexler's demotion.

Even if those six bits of evidence are construed most favorably for Wexler, they do not collectively support any rational inference of age-related bias, especially in the full context of the entire record evidence. The proffered remarks by Schiffman and Lively simply did not evince prejudice, bigotry, or ill will towards the elderly, nor did they betray any adverse judgment(s) concerning Wexler's suitability for his managerial assignment which may have germinated from negative stereotypical assumptions against persons of advancing years.

To the contrary, Schiffman's statements revealed nothing more than a desire to furnish Wexler with a graceful exit supported by a dignified official predicate explanation for his reassignment. Indeed, Wexler characterized Schiffman's announcement to the employees regarding his job reassignment as "gracious." Furthermore, that announcement could not be reasonably construed to reveal any judgment by Schiffman that Neilson (Wexler's replacement) possessed superior assets or qualifications because of his comparative callowness; rather, Schiffman unambiguously expressed the opinion that Neilson was qualified for the management position despite his youth, which he believed should not be deemed a liability.

The mere recognition, by an employer, of the universally known truth that certain individuals (as opposed to every individual in the protected age-defined category) may experience declining personal capabilities as they approach the traditional age of retirement, is not illegal; nor does an employer's expression of belief that a youthful employment candidate is qualified for a particular job irrespective of his years constitute proof of bias against the elderly. Nothing in Schiffman's statements suggested, directly or indirectly, that he reassigned Wexler because of his age in the abstract, as opposed to his declining actual performance. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 88, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) ("the employer cannot rely on age as a proxy for the employee's remaining characteristics, such as productivity, but must instead focus on those factors directly.") (emphases added; brackets omitted) ( quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). Unlike the plaintiff in Ercegovich v. Goodyear Tire and Rubber Co., 154 F.3d 344 (6th Cir. 1998), Wexler has produced no evidence that any material decision-maker(s) had, by word or deed, evidenced a stereotype-driven bias or prejudice against members of his legally protected class which may have prejudiced the deliberative process underlying the adverse employment action.

To the contrary, the record evidence was uncontroverted that, during the final seven months of Wexler's managerial administration, the Morse Road outlet's total revenues declined 30.25%, and Wexler's personal sales decreased 48%, vis a vis the congruent period during the preceding twelve-month interval. Furthermore, Wexler has conceded his understanding that the company would deem him to be personally responsible for his store's transaction figures.

Federal law does not immunize elderly workers from all forms of unfair employment treatment per se; rather, it shields them only from unfair treatment incited by age-related prejudice. If the facts which form the basis of an employer's business judgment are not contested (in the case in controversy, Wexler's persistently plummeting sales figures), the defendant's business judgment conclusion derived from those facts (in the subject case, that the store's long-term unsatisfactory sales performance warranted the replacement of its incumbent manager) is not subject to judicial or juror reassessment. Stated differently, although the veracity of the employer's reasons for making a faulted business judgment may pose a jury question if those reasons are in factual controversy, the soundness of the employer's business judgment is beyond scrutiny. See, e.g., Godfredson v. Hess Clark, Inc., 173 F.3d 365, 369-72 (6th Cir. 1999); In re Lewis, 845 F.2d 624, 633 (6th Cir. 1988).

In the action instanter, the factual truthfulness of the demotion "trigger" offered by White's — long-term declining merchandise turnover at Morse Road — was conceded by Wexler. Moreover, despite the plaintiff's fervent speculations, no probative evidence, whether direct, hearsay, circumstantial, or inferential, gainsaid Schiffman's contention that he reassigned Wexler for his stated reason. Furthermore, the record is absent any impeachment evidence which might be construed to impugn, in any way, Schiffman's general character, personal integrity, or reputation of honesty and veracity. Accordingly, no credibility issue awaits juror resolution.

Therefore, whether Schiffman's decision was fundamentally sound, in the sense of being rational or fair, is not relevant to this case; nor did the alleged comparative deficiencies in the performance of the younger managers who succeeded Wexler retroactively transmute the employer's earlier unbiased business judgment into ageist discrimination. Likewise, conjecture that Schiffman might have treated the plaintiff more generously if he had been younger was unfounded in any admissible proof, and hence no genuine and material, and thus triable, jury question existed on that issue. See Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002) (ruling, in an employment retaliation case in which no evidence had contradicted the testimony of the employer's decision-makers that they did not know about the plaintiff's protected activity when they imposed the faulted adverse employment action against him, that summary judgment for the defendant was mandated, because "the inferences plaintiff sought to draw from evidence were akin to flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from personal experience."). (Citation, brackets, and quotation marks omitted).

A rational jury cannot simply discredit or ignore stipulated, uncontested, or unimpeached material evidence merely because it supports the cause of a disfavored litigant. See Reeves, 530 U.S. at 151, 120 S.Ct. 2097 (directing that a jury must credit evidence "that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."); NLRB v. Garon, 738 F.2d 140, 142 (6th Cir. 1984) (recognizing that a credibility issue for fact-finder resolution exists only when the record contains conflicting evidence). Although Schiffman was an "interested witness," the majority's suggestion that a jury might elect to disbelieve Schiffman's stated reason for reassigning Wexler, irrespective of Wexler's concession of the objective factual truth of his store's declining sales, which is a facially sufficient justification for Wexler's reassignment, invites impermissible jury nullification of the law and a concordant wrongful imposition of a monetary penalty against an employer for merely not making the business decision which the jurors think, in hindsight, that he should have made.

Of greater concern, however, is the conveyed inference to jurors that, in age discrimination cases, it is permissible to conduct twelve-vote plebiscites on the social, political, and economic evils of age-related employment discrimination, and consequently return a politicized verdict fashioned as a voice-of-the-common-man-style "message" to employers. To the contrary, the only permissible objective of a jury verdict is the effectuation of a just and lawful resolution of an actual case in controversy between specific litigants. If a "rational" jury could, in the case now before this court, justifiably discount or ignore the mountain of undisputed proof supportive of the defendant, and draw liability-triggering inferences against the defendant based upon exceedingly weak or nonexistent proof, then there is no age discrimination in employment case that any over-forty worker could invent which would not pose an essential jury question unresolvable by pre-trial summary procedures.

Contrary to the en banc majority's conclusion, an employee's reassignment instigated by the employer's subjective business judgment, supported by objective evidence, that the employee's actual performance was substandard, should constitute an insurmountable affirmative defense to a "direct evidence" or "mixed-motive" charge of age-inspired intentionally disparate treatment, irrespective of whether the employer may have believed that the perceived inadequacy of the plaintiff's actual job performance may have been influenced, in whole or in part, by age-related disabilities. See Ang v. Procter Gamble Co., 932 F.2d 540, 549 (6th Cir. 1991) (positing that an employee is not qualified for his job if he "was not performing to his employer's satisfaction."). Congress did not intend to protect the job of an employee whose productivity or performance is unsatisfactory to the employer.

Moreover, the conclusion that the four averred remarks by Schiffman, and two by Lively, were facially insufficient to directly prove age-motivated employment discrimination, is powerfully reinforced by the incontrovertible counter-inferences which any rational trier of fact would be compelled to make on the total proof sub judice, especially given two uncontested material facts: (1) Wexler was 55 years old at the time of his initial hiring as a White's sales representative, and was 57 years old when elevated to management less than one and one-half years later; and (2) Schiffman, who was almost ten years older than Wexler, made all decisions pertinent to Wexler's employment, including his initial hiring, his promotion to management, and his reassignment to a sales representative slot following his unimpressive two-year-and-four-month stint as a store manager. Those undisputed facts germinate two powerful evidentiary inferences — (1) the "same-actor" inference, which supports the conclusion that a person who hired an age-protected employee, but who later demotes or discharges that same employee, probably was not motivated by ageist bias; and (2) the "same-group" inference, which buttresses the conclusion that an age-protected decision-maker who hires, and subsequently demotes or discharges, an age-protected employee, probably did not discriminate against the employee by reason of age.

"[W]here the hirer and firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer." Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th Cir. 1995). "It is simply incredible that the company officials who hired an employee at age fifty-one had suddenly developed an aversion to older people two years later." Id. (ellipse and brackets omitted) ( quoting Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 175 (8th Cir. 1992)). See also Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) ("In short, employers who knowingly hire workers within a protected group seldom will be credible targets for charges of pretextual firing"). That already potent pro-defendant inference is magnified when, as in the case at bench, the material decision-maker was himself older than the plaintiff, and hence was himself a member of the protected class.

In summary, the plaintiff has failed to prove, by direct evidence, that White's intentionally discriminated against him because of his age. The evidence reflected that Schiffman, the pertinent decision-maker, elected to re-assign the plaintiff because of his store's unacceptably dismal long-term sales record. No evidence of ageist bias by Schiffman against Wexler, or anyone else, has been offered. The absence of direct material proof in support of Wexler's charge of disparate treatment is compounded by the compelling inference of a non-discriminatory motive for Schiffman's action, given his own age and the relatively short interval separating his elevation of the over-forty plaintiff to the manager's desk from his restoration of the plaintiff to the sales floor. Finally, even if the tendered direct evidence could be construed by a rational fact-finder to support an inference of age-driven disparate treatment (which it does not), the defendant's proof that Schiffman exercised legitimate business judgment by replacing Wexler with a new manager because of the Morse Road store's persistent under-performance and profitability decline independently justified the subject adverse employment action, thereby dissipating any purported discriminatory taint. On the subject record, the "business judgment" affirmative defense is unassailable.

Precisely the same failures of the plaintiff's material proof, coupled with the same overwhelming uncontroverted evidence favorable to the defendant, are fatal to the plaintiff's circumstantial case. To prove a prima facie case of age discrimination in employment founded upon circumstantial evidence, the plaintiff must satisfy the standards first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) — he must evince:

1) that he is a member of a protected group, 2) that he was subject to an adverse employment decision, 3) that he was qualified for the position, and 4) that he was replaced by a person outside of the protected class.

Kline v. Tennessee Valley Authority, 128 F.3d 337, 349 (6th Cir. 1997) (citations omitted). See also Gagné v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 313 (6th Cir. 1989).

If the plaintiff proves those four circumstantial elements by a preponderance of evidence, the burden of production (but not the burden of proof, see note 10 above) then shifts to the defendant to submit "a legitimate, nondiscriminatory reason" for taking the assailed adverse employment action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). "This burden is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ( quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Once the defendant "has met this burden by offering admissible evidence sufficient for the trier of fact to conclude that petitioner was fired because of" a legitimate, nondiscriminatory reason, such as, for example, his "failure to maintain adequate attendance records," the plaintiff-friendly presumptions of the McDonnell Douglas circumstantial evidence paradigm disappear. Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (citations omitted).

At that point, "the sole remaining issue [is] discrimination vel non." Id. at 143, 120 S.Ct. 2097 (citation omitted). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (citations omitted). To meet his or her ultimate burden of proof, the plaintiff must persuade the fact-finder, via direct, circumstantial, or statistical evidence, that the defendant's tendered legitimate, nondiscriminatory rationale for subjecting the plaintiff to an adverse employment action was a mere pretext masking an actual discriminatory intent. Id. at 255-56, 101 S.Ct. 1089. "A plaintiff can demonstrate pretext by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct." Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000) (citation omitted). However, although proof that the employer's offered reason was unworthy of credence may be highly probative circumstantial evidence of an actual discriminatory motive, it is not necessarily sufficient to prove actual discrimination, as the plaintiff's ultimate burden is to prove that the defendant intentionally discriminated against him. Reeves, 530 U.S. at 147-48, 120 S.Ct. 2097.

As developed above, the record evidence must be construed in the light most favorable to Wexler, the opponent of summary judgment. By that standard, no dispute exists that he can provide sufficient evidence to support at least three elements of his circumstantial case — he was a member of the protected class (age 59), he was subjected to an adverse employment action (demotion from management), and he was replaced by a person who was significantly younger than him and not a member of the protected class (Neilson, a man in his early 30s). However, whether the plaintiff could prove, to the satisfaction of a rational jury, the remaining prima facie element, namely that he was qualified for the managerial post from which he was eliminated, is open to debate. In any event, as developed below, even assuming for the sake of analysis that Wexler had produced sufficient evidence to satisfy a rational jury on all four elements of his prima facie case, he did not meet his burden of proffering sufficient proof at the "pretext" stage.

Under prior Sixth Circuit authorities, the plaintiff must prove, at the prima facie stage, "that he was performing his job at a level which met his employer's legitimate expectations," in order to prove that he was "qualified" for the job in controversy. Godfredson v. Hess Clark, Inc., 173 F.3d 365, 372 (6th Cir. 1999) ( quoting McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir. 1990)). Conversely, proof supplied by the defendant that an employment discrimination plaintiff had not satisfied his employer's subjective legitimate expectations surmounted, at the prima facie stage, any evidence offered by the plaintiff to prove that he or she was "qualified" for the job at issue. See, e.g., Ang v. Procter Gamble Co., 932 F.2d 540, 549 (6th Cir. 1991); McDonald, 898 F.2d at 1160. Of course, a mere allegation by the employer that the plaintiff had not satisfied its legitimate expectations does not constitute evidence, and therefore such an allegation is not relevant at the prima facie stage, but instead may comprise a sufficiently-proffered legitimate nondiscriminatory reason for the faulted adverse employment action, which the plaintiff must disprove at the pretext stage. See Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660-61 (6th Cir. 2000) ("when assessing whether a plaintiff has met her employer's legitimate expectations at the prima facie stage of a termination case, a court must examine plaintiff's evidence independent of the nondiscriminatory reason `produced' by the defense as its reason for terminating plaintiff.").

However, the en banc majority has elected to alter the law of this circuit, which, of course, is its prerogative, as long as it does not violate the constitution or contradict Supreme Court precedent. See, e.g., United States v. Washington, 127 F.3d 510, 517 (6th Cir. 1997). The new rule set forth herein is that "[a]t the prima facie stage, a court should focus on a plaintiff's objective qualifications to determine whether he or she is qualified for the relevant job. The prima facie burden of showing that a plaintiff is qualified can therefore be met by presenting credible evidence that his or her qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field. Although the specific qualifications will vary depending on the job in question, the inquiry should focus on criteria such as the plaintiff's education, experience in the relevant industry, and demonstrated possession of the required general skills." Majority Opinion, at 575. (Citations and parentheticals omitted; emphasis in original).

Conceding arguendo that an employer's subjective dissatisfaction with the plaintiff's performance should not be considered with regard to the plaintiff's job qualifications at the prima facie stage, the defendant's proffer of "performance dissatisfaction" remains a sufficient "legitimate nondiscriminatory reason" justifying an adverse employment action, which erases the presumption of discrimination created by the plaintiff's proof of his prima facie circumstantial case, and which allegation the plaintiff must disprove. The circuit majority has conceded that much. However, it has incorrectly concluded that a fact question remains for trial concerning whether Schiffman's "business judgment" that Wexler was no longer suited for a managerial assignment was a mere pretext masking actual discrimination.

To the contrary, the instant record evidenced beyond refutation that Schiffman's election to permit Wexler to revert to a salesperson status constituted an exercise of unreviewable business judgment, as has also been fully unfolded supra. Accordingly, a fortiori, the "business judgment" justification is a sufficient legitimate reason for White's faulted actions, which Wexler must disprove. At the pretext stage, the jury may not simply elect to disbelieve the employer's proffered legitimate nondiscriminatory explanation; rather, the plaintiff's evidence must be sufficient to disprove it. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir. 1994) ("The jury may not reject an employer's explanation, however, unless there is sufficient basis in the evidence for doing so. To allow the jury simply to refuse to believe the employer's explanation would subtly, but inarguably, shift the burden of persuasion from the plaintiff to the defendant, which we must not permit."). (Emphasis in original).

In the action instanter, the plaintiff could not prove that White's articulated reason for demoting him was pretextual, because he could not prove that White's reason (1) had no basis in fact [as demonstrated by the cascading escalation in the declining sales at the Morse Road store], (2) did not actually motivate the defendant's challenged conduct [as no evidence contradicted Schiffman's unimpeached testimony that he demoted Wexler primarily for that reason], or (3) was insufficient to warrant the challenged conduct [as an extended major downturn in store profitability is facially a legitimate business reason to relieve the store's manager of his duties]. See Dews, 231 F.3d at 1021. Whether that business judgment was sound, in hindsight or otherwise, is irrelevant. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) ("as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied `on the particularized facts that were before it at the time the decision was made.'") (citation omitted); Brocklehurst v. PPG Industries, Inc., 123 F.3d 890, 898 (6th Cir. 1997) ("The soundness of the employer's business judgment . . . may not be questioned as a means of showing pretext.") (citation omitted).

The en banc majority's disposition could be persuasive if the plaintiff had been an aging manager whose performance had not appreciably deteriorated during his managerial tenure; or if material evidence existed which could support a finding that management had concluded that, irrespective of his performance, the plaintiff was no longer suited for a managerial role simply because he had celebrated some disqualifying number of birthdays. However, that plaintiff is not before this court. At bottom, the record evidence, when construed most favorably for Wexler, can lead to but one sustainable conclusion — that an unbiased, objective, rational fact-finder, knowledgeable in the applicable law, and uninfluenced by sympathy, passion, or personal interest, could not, in the absence of impermissible speculation or conjecture, conclude that White's had intentionally treated Wexler disparately because of animus against the elderly.

Ultimately, just as "[t]he 14th Amendment does not enact Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U.S. 45, 65, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting), the Age Discrimination in Employment Act did not dignify, with the stature of law of the land, the notion that any person who recognizes that a cause-and-effect relationship may exist between a formerly productive employee's objectively-measurable progressive skills diminution and that employee's advancing age deserves to be punished in civil damages for that "wrongthink." Nonetheless, exhibiting a disregard for foundational constitutional separation of powers precepts, the circuit majority has exercised legislative authority by judicially amending the ADEA. See Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (explaining that jurists, when reviewing ordinary economic and social legislation, are not charged with judging "the wisdom, fairness, or logic of legislative choices," nor does "the judiciary sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations;" rather, the courts must enforce a constitutionally-valid statute as drafted by the legislature). (Citations and bracketed material omitted).

The prescription which the circuit majority has engrafted upon the ADEA was unimagined by its framers. It transforms any written, spoken, or even implied expression by an employer's decision-maker, made in any context or for any reason, which references the age of an over-forty worker who is subsequently the subject of an adverse employment action, into proof of the speaker's personal belief that all persons over age forty are enfeebled incompetents. So potent is the exogenously-imported "age reference" talisman that, like some mystical incantation, the employer's singular utterance of the forbidden words, or even fleeting contemplation of the censored concept — videlicet that it may be possible that an objectively faltering employee's work product has deteriorated because he/she is no longer as young as he/she used to be — can bring ruin to the hapless speaker or thinker, irrespective of his or her true, entirely innocent or immaterial, purpose or intentions. When all is said and done, the en banc court is remanding Wexler's case for a jury trial not because there is any evidence that Schiffman did anything unlawful, but exclusively because the court's en banc majority has interpreted non-existent evidence to buttress an inference that Schiffman had said, and thought, certain things which the court majority has deemed offensive.

Although a close scrutiny of the full potential implications of the circuit majority's decision, including the specter of a future Orwellian world of "thought crime" proscriptions enforced by the "thought police," is frighteningly breathtaking in its sprawling dimensions, the more immediate ramification resides in the risk of the chilling effect that the court majority's new stricture will necessarily impose upon employers within this circuit's geographical boundaries. An honest assessment by, and open, free, and frank discussions among, business decision-makers about the merits and demerits of employees who happen to be above age forty will be critically stifled, to the absurd point that a decision-maker will be required either to avoid mention of the employee's age, or speak at his and his company's peril if he makes even a passing reference to the age of a worker who is manifestly suffering from some evidently age-related, performance-inhibiting infirmity, ranging anywhere from Alzheimer's disease to mild hearing loss. Stated differently, it appears that, because a majority of the judges of this circuit may consider age references in the employment context to be offensive, employers will now be subject to penalization for stating the obvious.

To the contrary, Congress intended to punish employers who have unfairly deprived older persons of employment opportunities solely by reason of "inaccurate and stigmatizing stereotypes." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). Congress' exclusive, and commendable, purpose underlying the ADEA was to penalize, and thereby deter, unfounded, irrational employment discrimination against persons which was animated purely by bias, prejudice, and ignorance. Absolutely no evidence, apart from speculation, conjecture, illogical "inferences," innuendo, hunches, intuitions, empty theorizing, and creative guesswork, tended to prove that White's committed that transgression. It was not Congress' intention to bestow immunity upon over-age-forty employees against any and all adverse employment decisions which a judge or juror may subjectively deem unwise, unfair, or ill-considered; nor was it Congress' desire to punish employers for recognizing that a faltering employee may be the unfortunate victim of some age-connected debilitating condition.

This case is fundamentally one in which "the evidence . . . is so one-sided that one party [the defendant] must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is difficult to imagine a more compelling textbook exemplar of a paradigm age-discrimination-in-employment case which begs for the approval of the district court's decision.

Accordingly, I would affirm the district court's summary judgment for White's.

BOGGS, Circuit Judge, dissenting.

I agree with the legal analysis and the analysis of the factual record contained in Judge Krupansky's dissenting opinion. I therefore respectfully dissent.