William Grosjean v. First Energy Corporation; Toledo Edison Energy

*The Honorable Walter Herbert Rice, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0404P (6th Cir.)
File Name: 03a0404p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
WILLIAM GROSJEAN,
Plaintiff-Appellant,
v.
FIRST ENERGY CORPORATION;
TOLEDO EDISON ENERGY,
Defendants-Appellees.
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No. 02-3361
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 01-07213—James G. Carr, District Judge.
Argued: August 7, 2003
Decided and Filed: November 13, 2003
Before: BOGGS, Chief Judge; SILER, Circuit Judge; and
RICE, District Judge.*
2 Grosjean v. First Energy Corp., et al. No. 02-3361
_________________
COUNSEL
ARGUED: John D. Franklin, LAW OFFICES OF JOHN D.
FRANKLIN & ASSOCIATES, Toledo, Ohio, for Appellant.
Denise M. Hasbrook, ROETZEL & ANDRESS, Toledo,
Ohio, for Appellees. ON BRIEF: John D. Franklin, LAW
OFFICES OF JOHN D. FRANKLIN & ASSOCIATES,
Toledo, Ohio, for Appellant. Denise M. Hasbrook,
ROETZEL & ANDRESS, Toledo, Ohio, for Appellees.
_________________
OPINION
_________________
BOGGS, Chief Judge. William Grosjean appeals the
district court’s summary judgment for his employers, First
Energy Corporation and its Toledo subsidiary, Toledo Edison
Energy, (collectively “First Energy”), in his age
discrimination action against them. Grosjean had lost his
supervisory title and duties after his superior had rated him as
inadequate in dealing with his subordinates. The district court
granted summary judgment because Grosjean failed to
demonstrate that First Energy’s proffered reason for the
demotion, the unfavorable rating, was a mere pretext. We
affirm on the alternative basis that Grosjean failed to make his
prima facie case of age discrimination because he was not
replaced by a person significantly younger than himself.
I
First Energy hired Grosjean in 1970 as a plant helper, a
unionized position. Over the following two decades he was
steadily promoted until in 1990 he joined management as a
machine shop supervisor at First Energy’s Bayshore, Ohio,
power plant. In 1997, he was reassigned to a position as yard
supervisor. His new responsibilities included scheduling the

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No. 02-3361 Grosjean v. First Energy Corp., et al. 3
large coal trains that fed the power plant, supervising the
fourteen workers who unloaded the trains, and disposing of
the ash generated. Grosjean was instructed in these duties by
John Gallagher, an experienced yard supervisor. After six
months of training, Gallagher and Grosjean divided the shifts
between them. Both Gallagher and Grosjean worked
weekdays and would split weekend shifts. Their supervisor
during the relevant period was the director of production,
Kenneth Dresner.
During 1998, there appear to have been no significant
problems with Grosjean’s performance. However, during
1999, Dresner and Grosjean had a series of meetings to
discuss what Dresner felt were inadequacies in management
style. The common element of these complaints was that
Dresner considered Grosjean to be neither sufficiently strict
with the workers under his supervision nor loyal to Dresner.
In Dresner’s view, these meetings did not result in an
appreciable improvement in the problem areas. On March 2,
2000, Grosjean met with Dresner to discuss his performance
rating report for 1999, authored by Dresner. This report,
while praising Grosjean’s technical competence, was damning
with respect to his management role. On this basis, Dresner
recommended a performance rating of “does not meet
expectations.” As a result of this rating, Grosjean was
reassigned from his supervisory position to a newly-created
position of planner. As a planner, he would continue to
schedule trains and receive the same salary and benefits, but
he would no longer have supervisory responsibility for any
other employees. Grosjean’s supervisory duties were
returned to Gallagher on a temporary basis. As a
consequence Gallagher worked more than a thousand hours
overtime during the remaining ten months of the year.
Eventually, the position was filed by Richard Riley. At the
time of Dresner’s unfavorable performance rating, Grosjean
was 54 years old, Dresner was 41 years old, Gallagher was 48
years old, and Riley was 51 years old.
4 Grosjean v. First Energy Corp., et al. No. 02-3361
On May 2, 2001, Grosjean filed a complaint against First
Energy in the United States District Court for the Northern
District of Ohio. In it he claimed that First Energy had
discriminated against him on the basis of his age, in violation
of the federal Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634, and the Ohio anti-
discrimination statute, Ohio Rev. Code § 4112.02. In
particular, Grosjean alleged that First Energy had demoted
him from his supervisory position, that he had been denied a
bonus for the year 1999, and that he had been denied a
promotion back to his old position. On February 22, 2002,
the district court granted summary judgment to First Energy
on the basis that Grosjean had presented insufficient evidence
that First Energy’s stated legitimate, non-discriminatory
reason for its actions, the unfavorable performance report,
was pretextual. Before this court now is Grosjean’s timely
appeal of that grant.
II
Age discrimination cases under the ADEA are analyzed
under the same framework as employment discrimination
cases under Title VII. Policastro v. Northwest Airlines, Inc.,
297 F.3d 535, 538 (6th Cir. 2002) (citing Mitchell v. Toledo
Hosp., 964 F.2d 577, 582 (6th Cir. 1992)). Proof in such
cases proceeds in three stages. Kline v. Tenn. Valley Auth.,
128 F.3d 337, 342 (6th Cir. 1997) (citing Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), and
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)). First, “[i]n order to prove a prima facie case of
discrimination, a plaintiff must show 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, 128 F.3d at 349 (citing Talley v.
Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6th Cir. 1995)).
In age discrimination cases, the protected class includes all
workers at least 40 years old and the fourth element is
modified to require replacement not by a person outside the

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No. 02-3361 Grosjean v. First Energy Corp., et al. 5
protected class, but merely replacement by a significantly
younger person. Kline, 128 F.3d at 352-53; O’Connor v.
Consol. Coin Caterers Corp., 517 U.S. 308, 311-13 (1996).
Second, “[i]f the plaintiff establishes [a] prima facie case, the
burden then shifts to the defendant to ‘articulate some
legitimate, nondiscriminatory reason for the employee's
rejection.’” Kline, 128 F.3d at 342 (quoting Burdine, 450
U.S. at 252-53). Third, after the defendant has met this
burden, “the plaintiff must produce sufficient evidence from
which the jury may reasonably reject the employer’s
explanation.” Manzer v. Diamond Shamrock Chems. Co., 29
F.3d 1078, 1083 (6th Cir. 1994). In some cases, plaintiff’s
evidence establishing the prima facie case can also be
sufficient to meet one or more of the elements necessary to
rebut the defendant’s proffered non-discriminatory reasons.
See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149
(2000).
We conclude that Grosjean was not replaced by a
significantly younger person. He therefore failed to make his
prima facie case and we need not address the legitimate-
reason and pretext parts of the McDonnell analysis, the bases
on which the district court decided the issue.
Grosjean argues that he was initially replaced by Gallagher,
who temporarily took over his duties in addition to his own.
However, Gallagher’s assumption of Grosjean’s duties does
not constitute replacement under the law of this circuit. A
“person is not replaced when another employee is assigned to
perform the plaintiff’s duties in addition to other duties, or
when the work is redistributed among other existing
employees already performing related work. A person is
replaced only when another employee is hired or reassigned
to perform the plaintiff’s duties.” Barnes v. GenCorp Inc.,
896 F.2d 1457, 1465 (6th Cir. 1990) (citing Sahadi v.
Reynolds Chem., 636 F.2d 1116, 1117 (6th Cir. 1980)); see
also Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992)
(“Spreading the former duties of a terminated employee
among the remaining employees does not constitute
6 Grosjean v. First Energy Corp., et al. No. 02-3361
1O’Connor clarifies the fourth part of a prima facie age
discrimination case; it does not eliminate it. The decision of a district
court within this circuit to the contrary is no t correct. Ligo n v. Triang le
Pac. Corp., 935 F. Supp. 936 , 941 (M .D. Tenn. 1996 ).
2In addition, here Gallagher was the obvious tem porary rep lacem ent,
as he had been doing exactly the same job as Grosjean. Thus our focus
is on the 3-year age difference with Riley in determining this issue,
though we also note that even the difference with G allagher was only 6
years.
replacement.”); Godfredson v. Hess & Clark, 173 F.3d 365,
372-73 (6th Cir. 1999) (reaffirming Barnes, 896 F.2d at
1465).
Grosjean was replaced, in both the colloquial and the legal
meanings of that term, by Riley. That Riley was as much part
of the protected class of workers over 40 as Grosjean does not
preclude the making of a prima facie case.
The fact that one person in the protected class has lost
out to another person in the protected class is . . .
irrelevant, so long as he has lost out because of his age.
Or to put the point more concretely, there can be no
greater inference of age discrimination . . . when a
40-year-old is replaced by a 39-year-old than when a
56-year-old is replaced by a 40-year- old.
O’Connor, 517 U.S. at 312. However, “the prima facie case
requires evidence adequate to create an inference that an
employment decision was based on an illegal discriminatory
criterion.” Ibid. This “inference cannot be drawn from the
replacement of one worker with another worker
insignificantly younger.” Id. at 313.1 Therefore, the question
reduces to whether Riley, at age 51, was significantly younger
than Grosjean, at age 54.2
Age differences of ten or more years have generally been
held to be sufficiently substantial to meet the requirement of

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No. 02-3361 Grosjean v. First Energy Corp., et al. 7
the fourth part of age discrimination prima facie case. See,
e.g., Balut v. Loral Elec. Sys., 166 F.3d 1199, 1998 WL
887194, at *1 (2d Cir. 1998) (table) (replacement of 57-year
old with 47-year old was sufficient); Sempier v. Johnson &
Higgins, 45 F.3d 724, 729-30 (3d Cir. 1995) (replacement of
employee with two others, one “well over ten years younger,”
sufficient); Hollander v. Am. Cyanamid Co., 172 F.3d 192,
199 & n.3 (2d Cir. 1999) (transfer of duties from 58-year old
to two other employees, one 11 years and one 8 months
younger, sufficient); O’Connor v. DePaul Univ., 123 F.3d
665, 669-70 & n.2 (7th Cir. 1997) (replacement of 43-year old
by 32-year old sufficient); Barnett v. Dep’t of Veterans
Affairs, 153 F.3d 338, 341 (6th Cir. 1998) (replacement of
51-year old by employee “around 40" sufficient); EEOC v.
Bd. of Regents of Univ. of Wisc. Sys., 288 F.3d 296, 303 (7th
Cir. 2002) (termination of 47-year old while retaining
“woman in her twenties or thirties” sufficient; so was
termination of 54-year old while retaining 23-year old);
Rhymer v. Yokohama Tire Corp., 106 F.3d 391, 1997 WL
14143, at *3 (4th Cir. 1997) (replacement of a 54-year old by
a 41-year old sufficient); Brennan v. Metropolitan Opera
Ass’n, 192 F.3d 310, 317 (2d Cir. 1999) (stating that
replacement of a 47-year old by a 33-year old “may well have
met” the “de minimis burden of establishing a prima facie
case of age discrimination”); Mroz v. Elec. Data Sys. Corp.,
124 F.3d 198, 1997 WL 468331, at *4 (6th Cir. 1997) (table)
(31- and 33-year-old workers significantly younger than
47-year old plaintiff); Keathley v. Ameritech Corp., 187 F.3d
915, 923-24 (8th Cir. 1999) (replacement of salespersons over
45 by those under 35 created reasonable inference of age
discrimination); Cheng v. MINACT, 103 F.3d 128, 1996 WL
724372, at *5 n.2 (6th Cir. 1996) (table) (age disparity
between 60-year old teacher and teacher in mid-40s
sufficient); Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th
Cir. 1998) (replacement of 47-year old by 32-year old
sufficient); Simpson v. Kay Jewelers, 142 F.3d 639, 649 (3d
Cir. 1998) (Pollak, J., concurring that replacement of 57-year
old by 42-year old sufficient); Miller v. Borden, 168 F.3d 308,
314 (7th Cir. 1999) (replacement of man “approaching 60"
8 Grosjean v. First Energy Corp., et al. No. 02-3361
with two others in their 40s sufficient); Bunch v. Board of
Educ., 201 F.3d 440, 1999 WL 1206875, at *2 (6th Cir. 1999)
(table) (passing over of 53-year old for promotion eight times,
six times for persons under age 40, sufficient); Tichenor v.
Sec’y of Army, 181 F.3d 104, 1999 WL 357813, at *2 (6th
Cir. 1999) (table) (promotion of 38-year old over 53-year old
sufficient); Pope v. City of Cleveland, 22 Fed. Appx. 474,
475, 2001 WL 1355597, at *1 (6th Cir. 2001) (table)
(promotion of 38-year old over 54-year old sufficient);
Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 236
(3d Cir. 1999) (discharge of plaintiff while retaining
employees 8 and 16 years younger sufficient); Baron v. City
of Highland Park, 195 F.3d 333, 340 (7th Cir. 1999) (denial
of promotion to 47-year old while promoting 30-year old and
31-year old sufficient); Isenbergh v. Knight-Ridder
Newspaper Sales, 97 F.3d 436, 440 & n.1 (11th Cir. 1996)
(promotion of 44-year old over 60-year old sufficient); Weigel
v. Baptist Hosp., 302 F.3d 367, 375 (6th Cir. 2002) (44-year
old substantially younger than 60-year old); O’Connor, 517
U.S. at 312 (implying that difference between 56-year old and
40-year old is substantial); Roxas v. Presentation Coll., 90
F.3d 310, 316 (8th Cir. 1996) (denial of application for
sabbatical to 54-year old while approval of same to 37-year
old sufficient); Carlton v. Mystic Transp., 202 F.3d 129, 135
(2d Cir. 2000) (replacement of terminated employee with
employees 18 and 25 years younger sufficient); Ridley v.
Lucent Techs., 22 Fed. Appx. 571, 2001 WL 1563636, at *1
(6th Cir. 2001) (hiring of 31-year old over 49-year old
sufficient); Fester v. Farmer Bros. Co., 2002 WL 31323499,
at *5 (10th Cir. 2002) (table) (attempted replacement of
58-year old by man in late 30s sufficient); Abrams v. Millikin
& Fitton Law Firm, 267 F. Supp. 2d 868, 875 (S.D. Ohio
2003) (replacement of legal assistant of unspecified age, but
39 years of tenure at defendant, by 38-year old sufficient);
Banks v. Travelers Cos., 180 F.3d 358, 367 (2d Cir. 1999)
(replacement of 49-year old with 27-year old sufficient);
Staton v. Husky Computers, 176 F.3d 484, 1998 WL 808019,
at *2 (9th Cir. 1998) (table) (replacement of 55-year old with
33-year old sufficient); Byrnie v. Town of Cromwell, Bd. of

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No. 02-3361 Grosjean v. First Energy Corp., et al. 9
Educ., 243 F.3d 93, 102 (2d Cir. 2001) (hiring of 42-year old
over 64-year old sufficient); Koster v. Trans World Airlines,
181 F.3d 24, 32 (1st Cir. 1999) (retained 25-year old manager
“substantially younger” than furloughed 49-year old
manager); Fisher v. Wayne Dalton Corp., 139 F.3d 1137,
1141 (7th Cir. 1998) (passing over 63-year old for 39-year old
sufficient); Wexler v. White’s Furniture, 317 F.3d 564, 592
(6th Cir. 2003) (en banc) (Krupansky, J., agreeing in dissent
that replacement of 59-year old by man in his early 30s
sufficient); Nidds v. Schindler Elevator Corp., 113 F.3d 912,
917 (9th Cir. 1996) (replacement of 54-year old by 25-year
old sufficient); Krieg v. Kimball Intern., 33 F.3d 56, 1994 WL
459561, at *3 (7th Cir. 1994) (table) (55-year old
substantially older than man 30 years his junior).
The overwhelming body of cases in most circuits has held
that age differences of less than ten years are not significant
enough to make out the fourth part of the age discrimination
prima facie case. See, e.g., Girten v. McRentals, 337 F.3d
979, 981 (8th Cir. 2003) (stating that replacement of 63-year
old by 54-year old may be insufficient); Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 619 (7th Cir. 2000)
(termination of 53-year old while retaining 46-year old and
44-year old, without more, insufficient); Lesch v. Crown Cork
& Seal Co., 282 F.3d 467, 472 (7th Cir. 2002) (replacement
of 62-year old accountant by 53-year old insufficient);
Dunaway v. Int’l Bhd. of Teamsters, 310 F.3d 758, 767 (D.C.
Cir. 2002) (replacement of employee by other 7 years
younger insufficient without more); Richter v. Hook-SupeRx,
142 F.3d 1024, 1029 (7th Cir. 1998) (replacement of 52-year
old by 45-year old insufficient); Black v. Columbus Pub. Sch.,
124 F. Supp. 2d 550, 574-75 (S.D. Ohio 2000) (replacement
of 52-year old by 45-year old insufficient); Hartley v. Wisc.
Bell, 124 F.3d 887, 892 (7th Cir. 1997) (age difference of 6 or
7 years presumptively insufficient); Woodsmall v. Eclipse
Mfg. Co., 249 F. Supp. 2d 918, 923-24 (E.D. Tenn. 2002)
(implying that replacement of 59-year old with 53-year old
insufficient); Wassel v. Mutual Life Ins. Co., 164 F.3d 633,
1998 WL 700537, at *1 (9th Cir. 1998) (table) (replacement
10 Grosjean v. First Energy Corp., et al. No. 02-3361
by person 6 years younger insufficient); Kalagian v. Carwein,
57 F.3d 1077. 1995 WL 323801, at *1 (9th Cir. 1995) (table)
(replacement of 50-year old with two 44-year olds
insufficient); Mroz, at *4 (6th Cir. 1997) (table) (41-year-old
worker not significantly younger than 47-year-old plaintiff);
Cramer v. Intelidata Techs. Corp., 168 F.3d 481, 1998 WL
911735, at *3 (4th Cir. 1998) (table) (replacement of
employee with person 5 years younger insufficient); Wellman
v. Wheeling & Lake Erie Ry. Co., 134 F.3d 373, 1998 WL
25005, at *4 (6th Cir. 1998) (table) (replacement of 46-year
old with 41-year old insufficient); Cianci v. Pettibone Corp.,
152 F.3d 723, 728 (7th Cir. 1998) (replacement of 47-year old
by 42-year old, even combined with supervisor’s comment
that plaintiff was “getting too old for the job,” insufficient);
Schiltz v. Burlington N.R.R., 115 F.3d 1407, 1412 & n.6 (8th
Cir. 1997) (where six positions that 48-year old plaintiff
applied for were filled by persons aged 43, 46, 51, 55, 48, and
47 no prima facie age discrimination case exists); Bush, 161
F.3d at 368 (6th Cir. 1998) (replacement of 46-year old by
41-year old insufficient); Steiner v. Envirosource, 134 F.
Supp. 2d 910, 917 (N.D. Ohio 2001) (termination of 62-year
old while retaining 57-year old and 59-year old insufficient);
Brown v. EG & G Mound Applied Tech., 117 F. Supp. 2d
671, 677-78 (S.D. Ohio 2000) (replacement of 57-year old by
52-year old insufficient); Bennington v. Caterpillar Inc., 275
F.3d 654, 659 (7th Cir. 2001) (replacement of 57-year old
with 52-year old insufficient); Scott v. Parkview Memorial
Hosp., 175 F.3d 523, 525 (7th Cir. 1999) (age difference
between group aged 32 to 46 and group aged 42 to 48 not
substantial); Clevidence v. Wayne Savings Cmty. Bank, 143 F.
Supp. 2d 901, 907-08 (N.D. Ohio 2001) (replacement of
46-year old by 43-year old insufficient); Hoffmann v.
Primedia Special Interest Publ’ns, 217 F.3d 522, 525 (7th
Cir. 2000) (replacement of 42-year old with 39-year old
insufficient); Williams v. Raytheon Co., 220 F.3d 16, 20 (1st
Cir. 2000) (“three year age difference is too insignificant to
support a prima facie case of age discrimination”); O’Connor,
517 U.S. at 312-13 (implying that difference between 68-year
old and 65-year old is not substantial); Munoz v. St.

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No. 02-3361 Grosjean v. First Energy Corp., et al. 11
Mary-Corwin Hosp., 221 F.3d 1160, 1166 (10th Cir. 2000)
(holding “that because plaintiff's replacement was only two
years his junior–an obviously insignificant difference–the
necessary inference of discrimination was precluded, and he
failed to establish his prima facie case”); Hillman v. Safeco
Ins. Co. of Am., 190 F. Supp. 2d 1029, 1038 (N.D. Ohio
2002) (replacement of 54-year old by 54-year old
insufficient); Lovas v. Huntington Nat. Bank, 215 F.3d 1326,
2000 WL 712355, at *3 (6th Cir. 2000) (table) (demotion and
termination of 48-year old officer where older officers were
retained insufficient).
One of our sister circuits made use of this apparent
bifurcation of the case law to adopt a bright-line rule for
prima facie age discrimination cases. Hartley v. Wisc. Bell,
124 F.3d 887 (7th Cir. 1997). The Seventh Circuit
“considers a ten-year difference in ages (between the plaintiff
and her replacement) to be presumptively ‘substantial’ under
O’Connor.” Id. at 893. “[A]ny age disparity less than ten
years is ‘presumptively insubstantial.’” Kariotis v. Navistar
Int’l. Transp. Corp., 131 F.3d 672, 676 n.1 (7th Cir. 1997)
(citing Hartley, 124 F.3d at 893). Hence, that circuit defines
“substantially younger” as 10 years younger. Ibid. Accord
Balderston v. Fairbanks Morse Engine, 328 F.3d 309, 322
(7th Cir. 2003); EEOC v. Bd. of Regents of Univ. of Wisc.
Sys., 288 F.3d 296, 302 (7th Cir. 2002). “In cases where the
disparity is less, the plaintiff still may present a triable claim
if she directs the court to evidence that her employer
considered her age to be significant.” Hartley, 124 F.3d at
893.
No other circuit, including this circuit, has previously
adopted such a bright-line rule. See Cicero v. Borg-Warner
Auto., 280 F.3d 579, 588 (6th Cir. 2002). Nevertheless, only
a handful of cases in a few categories have been decided
contrary to the Hartley rule. Age differences of 8 or 9 years
have been held to be sufficient. See Cicero, 280 F.3d at 588
(leaving the question of whether 43-year old was substantially
younger than 51-year old to jury); Tarshis v. Riese Org., 211
12 Grosjean v. First Energy Corp., et al. No. 02-3361
F.3d 30, 38 (2d Cir. 2000) (replacement of 67-year old with
59-year old sufficient); Fisher v. Vassar Coll., 66 F.3d 379,
1995 WL 527804, at *29 (2d Cir.) (table) (48-year old and
44-year old professors were substantially younger than
53-year old), republished as amended, 70 F.3d 1420, 1450-51
(2d Cir. 1995) (same).
The Ninth Circuit has not settled on a standard for
substantial age difference and its case law is accordingly
inconsistent. Compare Douglas v. Anderson, 656 F.2d 528,
533 (9th Cir. 1981) (replacement by person 5 years younger
sufficient), and Estate of McGough v. Lockheed Martin, 2001
WL 275007, at *3 & n.2 (9th Cir. 2001) (table) (implying that
replacement of 48-year old by 41-year old sufficient)
with Wassel, at *1 (holding replacement by person 6 years
younger insufficient while citing Douglas), and Kalagian, at
*1 (replacement of 50-year old with two 44-year olds
insufficient).
The Eleventh Circuit set an early precedent allowing age
discrimination cases to proceed with as small an age
difference as three years and subsequent decisions have been
bound by that precedent. Carter v. City of Miami, 870 F.2d
578, 583 (11th Cir. 1989) (replacement of 49-year old with
46-year old sufficient); Carter v. DecisionOne Corp., 122
F.3d 997, 1003 (11th Cir. 1997) (replacement of 42-year old
with 39-year old sufficient, citing Carter v. City of Miami);
Damon v. Fleming Supermarkets, 196 F.3d 1354, 1359-60
(11th Cir. 1999) (replacement of 42-year old by 37-year old
sufficient, citing Carter v. City of Miami).
Finally, the Second Circuit in an unpublished opinion found
a one-year age difference to be sufficient, but based that
conclusion on a supervisor’s ageist comments. Nembhard v.
Memorial Sloan Kettering Cancer Ctr., 104 F.3d 353, 1996
WL 680756, at *3-4 (2d Cir. 1996) (table). Nembhard is
consistent with Hartley because under Hartley smaller age
differences may still present a triable claim where there is
evidence that the employer considered age to be significant.

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No. 02-3361 Grosjean v. First Energy Corp., et al. 13
Given this array of authority, and our circuit’s precedent,
we hold that, in the absence of direct evidence that the
employer considered age to be significant, an age difference
of six years or less between an employee and a replacement
is not significant. This rule will assist district courts in
making a firm determination, yet does not encroach on our
precedent holding that eight years can be a significant age
difference. The standard is also at least as lenient towards
plaintiffs as all decisions of our sister circuits with the
exception of the standard-less Ninth Circuit and the three-
year-standard Eleventh Circuit.
As Grosjean was not more than six years older than Riley
or Gallagher and he presents no direct evidence that First
Energy considered age to be significant, his federal age
discrimination claim fails. “Under Ohio law, the elements
and burden of proof in a state age-discrimination claim
parallel the ADEA analysis.” Ercegovich v. Goodyear Tire
& Rubber Co., 154 F.3d 344, 357 (6th Cir. 1998) (citing
McLaurin v. Fischer, 768 F.2d 98, 105 (6th Cir. 1985), and
Barker v. Scovill, Inc., 451 N.E.2d 807, 808 (Ohio 1983)).
Therefore, as Grosjean’s federal claim failed, so must his state
law claim.
III
For the foregoing reason, we AFFIRM the judgment of the
district court.

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