ROSCOE C. ROWAN, III and CHARLES A. WASHINGTON v. Lockheed Martin Energy Systems, Inc.

*The Honorab le John Feikens, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0076P (6th Cir.)
File Name: 04a0076p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROSCOE C. ROWAN, III and
CHARLES A. WASHINGTON,
Plaintiffs-Appellants,
v.
LOCKHEED MARTIN ENERGY
SYSTEMS, INC.,
Defendant-Appellee.
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No. 02-6160
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 00-00361—Thomas W. Phillips, District Judge.
Argued: January 29, 2004
Decided and Filed: March 11, 2004
Before: MERRITT and SUTTON, Circuit Judges;
FEIKENS, District Judge.*
2 Rowan, et al. v. Lockheed
Martin Energy Systems
No. 02-6160
_________________
COUNSEL
ARGUED: David A. Burkhalter, II, BURKHALTER,
RAYSON & ASSOCIATES, Knoxville, Tennessee, for
Appellants. Edward G. Phillips, KRAMER, RAYSON,
LEAKE, RODGERS & MORGAN, Knoxville, Tennessee,
for Appellee. ON BRIEF: David A. Burkhalter, II,
BURKHALTER, RAYSON & ASSOCIATES, Knoxville,
Tennessee, for Appellants. Edward G. Phillips, KRAMER,
RAYSON, LEAKE, RODGERS & MORGAN, Knoxville,
Tennessee, Kenneth M. Brown, Oak Ridge, Tennessee, for
Appellee.
MERRITT, J., delivered the opinion of the court, in which
SUTTON, J., joined. FEIKENS, D. J. (p. 12), delivered a
separate concurring opinion.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Plaintiffs Rowan and
Washington are former employees of Defendant Lockheed
Martin Energy Systems, Inc. (“Lockheed”) in Oak Ridge,
Tennessee, at its uranium enrichment plant. They were laid
off by Lockheed in December 1999 when Lockheed
conducted a “reduction in force” due to Department of Energy
budgetary cutbacks. The plaintiffs allege that they were
selected for termination because of age discrimination and
that they were unlawfully denied alternative jobs at Lockheed
which went to younger employees. The district court granted
summary judgment for the defendant, and the primary
problem on appeal is whether some statements about age and
retirement allegedly made by managers at the company raise

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Martin Energy Systems
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a sufficient inference of age discrimination to send the case to
the jury.
I. FACTS AND PROCEDURAL HISTORY
In 1996 Congress ordered the Department of Energy to
conduct an inquiry into whether the nuclear workforce was
prepared to deal with the possibility that many of its experts
might soon be retiring. Accordingly, the Department
established the “Chiles Commission” to look into the
problem. In 1998 this commission visited Lockheed’s Y-12
plant, where the plaintiffs worked. Lockheed reported to the
Chiles Commission that 39% of the employees with “critical
skills” in nuclear science and technology were in immediate
danger to retire, and that a total of 78% would be eligible to
retire within 10 years. Meanwhile, the Department of
Energy’s budget had been steadily declining throughout the
1990’s, causing contractors like Lockheed to make severe job
cuts. In one of these reductions in force the plaintiffs lost
their jobs.
The plaintiffs’ work at the plant did not place them in the
critical skills category of workers. They each worked in the
Clean Air section of the Environmental Compliance
Department, Rowan as an “air permit engineer” and
Washington in a “technical support” role, both helping to
ensure compliance with the Clean Air Act. Rowan, who was
57 when terminated, and Washington, who was 63, allege that
some of their supervisors made statements about the need to
lower the average age at the plant in connection with the
layoffs. They also allege that their immediate supervisor
occasionally called them “old farts.” For its part, Lockheed
offers substantial evidence that its decisions were motivated
by legitimate, non-age-biased reasons.
The trial court judge awarded summary judgment to the
defendant on the grounds that the plaintiffs had failed to make
out a prima facie case of age discrimination, and because in
4 Rowan, et al. v. Lockheed
Martin Energy Systems
No. 02-6160
any event they failed to show that the reasons articulated by
the defendant were not a sham and a pretext for age
discrimination. Although we disagree with the trial court as
to whether or not the plaintiffs made out a prima facie case,
we AFFIRM the judgment because no reasonable jury could
find that the reasons articulated by the defendant for why
these two plaintiffs were laid off were a sham and a pretext.
II. STANDARD OF REVIEW
This Court reviews the District Court’s grant of summary
judgment de novo. Terry Barr Sales Agency, Inc. v. All-Lock
Company, Inc., 96 F.3d 174, 178 (6th Cir. 1996); Hartsel v.
Keys, 87 F. 3d 795, 799 (6th Cir. 1996). In doing so it must
review all facts and draw all inferences in a light most
favorable to the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). That is not to say that
it only reviews evidence favorable to the non-moving party.
Instead, it must review all the evidence in the record. Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148-49
(2000).
III. DISCUSSION
Plaintiffs can establish an age discrimination case in two
different ways. First, they can follow the McDonnell Douglas
burden-shifting analysis. Manzer v. Diamond Shamrock
Chemicals Co., 29 F.3d 1078, 1081 (6th Cir. 1994) (citing
McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)).
According to this analysis, plaintiffs first establish a prima
facie case of age discrimination. Id. At that point the burden
shifts to the defendant, who must give legitimate, non-
discriminatory reasons for the adverse employment decision.
LaPointe v. United Auto Workers Local 600, 8 F.3d 376, 379
(6th Cir. 1993) (citing McDonnell, 411 U.S. at 802). If they
do so, the burden shifts back to the plaintiffs, who must
establish that the legitimate reasons offered by the defendant
were just a pretext for decisions actually motivated by an

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No. 02-6160 Rowan, et al. v. Lockheed
Martin Energy Systems
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unlawful bias against age. Id. This was the test followed by
the district court, who concluded that the plaintiffs had failed
to make out a prima facie case, and that even if they had made
such a case they had failed to show that the reasons offered by
the defense were only a pretext.
In order to establish a prima facie case of age
discrimination, plaintiffs must show (1) that they were
members of a protected age class; (2) that they were
discharged; (3) that they were qualified for the positions they
held; and (4) that they were replaced by a younger worker.
Cox v. DOT, 53 F.3d 146, 150 (6th Cir. 1995). However, in
“reduction in force” cases like this one, the fourth prong is
modified so that the plaintiffs must provide “additional direct,
circumstantial, or statistical evidence tending to indicate that
the employer singled out the plaintiff for discharge for
impermissible reasons.” Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998). If the
plaintiffs have made out a prima facie case of discrimination,
the defendant can be awarded summary judgment only if no
reasonable jury could conclude that the reasons offered for the
plaintiffs’ dismissals were only a pretext hiding a
discriminatory motive.
The Sixth Circuit also recognizes an alternative test not
discussed by the district court. If the plaintiffs can establish
direct evidence of discrimination, then they need not go
through the McDonnell Douglas burden-shifting analysis.
Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1248-
49 (6th Cir. 1995). Direct evidence is evidence that proves
the existence of a fact without requiring any inferences.
Manzer, 29 F.3d at 1081; Laderach v. U-Haul, 207 F.3d 825,
829 (6th Cir. 2000); Jacklyn v. Schering-Plough Healthcare
Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999).
The plaintiffs fail to offer any direct evidence of
discrimination. They offer no facts which would tie the
decision to select Rowen and Washington for termination
6 Rowan, et al. v. Lockheed
Martin Energy Systems
No. 02-6160
because of their age. Instead, they point to several statements
allegedly made by various members of Lockheed’s
management about the general need to lower the average age
of their workforce. Even if such statements were made, they
would not constitute direct evidence of age-based bias against
these particular plaintiffs. They might, however, raise some
suspicion as to Lockheed’s motives, and to that extent we
disagree with the district court that the plaintiffs fail to make
out even a prima facie case of discrimination. But even
granting that the plaintiffs made out a prima facie case, when
understood in context these statements could not lead a
reasonable jury to conclude that the numerous legitimate
reasons offered by Lockheed were merely a pretext for age-
biased discrimination.
As the Supreme Court has pointed out, the ADEA “was
prompted by [a] concern that older workers were being
deprived of employment on the basis of inaccurate and
stigmatizing stereotypes” that productivity and competence
decline with age. Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993). Although the plaintiffs quote Hazen for the
proposition that the ADEA “requires the employer to ignore
an employee’s age,” id. at 612, they take that statement out of
context. Employers may not consider an employee’s age for
its own sake, but the ADEA does not prohibit them from
considering other factors that correlate with age. Id. at 611.
In Hazen the plaintiffs were allegedly fired to keep their
pensions from vesting, and although the vesting of pensions
correlates with age, the Supreme Court held that such a firing
did not constitute discrimination under the ADEA (though it
may violate other federal statutes, such as ERISA). Id. at
611-12. Since age and years of service are “analytically
distinct,” a decision based on years of service is “not
necessarily ‘age-based.’” Id. at 611. By contrast, the ADEA
protects against “inaccurate and stigmatizing stereotypes.” Id.
at 610. Similarly here, a concern about impending
retirements of nuclear scientists and skilled workers is not the
same as a bias against age. We see no relevant difference

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No. 02-6160 Rowan, et al. v. Lockheed
Martin Energy Systems
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between a concern that important employees are about to
retire and a concern that employee pensions are about to vest.
Furthermore, the legislative history of the Act counsels
against reading the statute as forbidding any consideration of
age under any circumstances. As this Court has recognized,
the ADEA was not intended “to prevent an employer from
achieving a reasonable age balance in [its] employment
structure.” Laugesen v. Anaconda Co., 510 F.2d 307, 312 n.4
(6th Cir. 1975) (quoting legislative history from the ADEA).
Instead, Congress recognized that at times an industry may be
faced with the problem of an aging work force, and advised
that such situations be treated “on a case-by-case basis.” Id.
In this case, the evidence indicates that the concern for the
average age of the work force in the plant was entirely
motivated by the findings of the Chiles Commission, which
concluded that the nuclear industry was in danger of having
a high percentage of its most important, highly skilled
workers retire soon. The worry was not that older people
were less capable than younger workers. On the contrary, the
concern was that most of the workers with critical skills were
eligible or nearly eligible for retirement, and that when those
people retired the nuclear industry could potentially suffer
dearly. Although the statements allegedly made referred to
the average age in the plant, there is every indication that
concern for the average age was only motivated by a perfectly
legitimate concern about upcoming retirements. Being
worried about one’s best workers retiring is a far cry from
being motivated by “inaccurate and stigmatizing stereotypes.”
In this context, statements about average age do not amount
to direct evidence of discrimination. And while such
statements might be suspicious enough to make out a prima
facie case of discrimination, as we discuss below Lockheed
offered overwhelming evidence that Rowan and Washington
were selected from among their peers for entirely legitimate
reasons, and the plaintiffs fail to show that such evidence is
just a pretext.
8 Rowan, et al. v. Lockheed
Martin Energy Systems
No. 02-6160
1W e point out in passing that the district court was too quick to
conclude that Stone was not a decision-maker. Although that might be
the most reasonable inference after a trial, for the purposes of summary
judgment the facts and inferences must be inte rpreted in the light most
favorable to the no n-moving party, in this case the plaintiffs. Powell’s
alleged statement that “between us [i.e., S tone and P owell] we certainly
made the decisions” could lead a reasonable jury to conclude that Stone
was involve d in the d ecision-making pro cess with Powell. In the end, this
error does not matter, since as we explain herein none of the statements
alleged ly made by Stone constitute direct evidence of unlawful
discrimination or are sufficient grounds for a finding that the lawful
reaso ns offered by L ockheed are a sham and a p retext.
Seeing the average-age statements in their proper context
of critical technological skills disposes of most of the
plaintiffs’ evidence, since most of the statements alleged by
the plaintiffs were of this sort. For example, the allegations
against Van Hook (the president of Lockheed) and Gustavson
(an executive vice-president) only include such average-age
statements, and the plaintiffs do not even allege that Van
Hook and Gustavson were involved in the selection of the
plaintiffs for termination anyway. By the same reasoning we
can also rule out one statement made by Eaton, their
immediate supervisor, and all but one statement by Stone,
another superior of the plaintiffs, whom they do allege was
involved in their termination decision.1
The plaintiffs also allege that Stone and Powell once
commented on a golf course in 1992 that “the older people
should go, bring in some new blood so that they will
understand the compliance findings.” While the content of
this statement cannot be dismissed as a legitimate concern
about the possibility of retirements, one stray statement
allegedly made seven years before the adverse decisions
obviously cannot count as direct evidence of unlawful age-
bias in those decisions, especially when the statement is as
tame as this one. And we agree with the district court that
even taking this evidence as true it could not support a jury

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Martin Energy Systems
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finding that the legitimate reasons offered by the defendant
were a pretext masking unlawful discrimination.
The defendant offers overwhelming evidence that the
decision to discharge the plaintiffs specifically was not a
pretext for age discrimination, much of which was detailed by
the district court. For example, the 44-year-old Seeber, who
with Rowan held one of two “less technical” air permit
engineering positions, was retained over Rowan even though
they both performed air permitting support work. But Seeber
had longer company service than Rowan (25 years to 21
years) and more time in position (9 years to 8 years). More
importantly, Seeber had been responsible for more
sophisticated work. For example, for years Seeber had
provided air permit support to the Enriched Uranium
Operations processing facility, the most complicated area of
the Y-12 plant, and an area in the midst of a crucial
“resumption program.” Seeber’s experience and expertise
clearly exceeded Rowan’s, and were needed in order for the
plant to negotiate a Title V permit for the Enriched Uranium
Operations. Similarly, Lockeed cites numerous legitimate
reasons for discharging Washington instead of his co-workers
Skinner and Cunningham. Washington’s technical support
position was being eliminated, and both Skinner and
Cunningham consistently received higher performance
evaluations than Washington while doing more complex
work. Washington spent most of his time performing
activities unrelated to the Clean Air program. By contrast,
Skinner was the Title V permitting lead, and Cunningham
was the coordinator of a program which involved radiological
monitoring using unique regulations.
The plaintiffs allege that they had other qualifications that
Lockheed should have considered. In order to prove
discrimination, though, the plaintiffs must directly confront
the asserted justification for the discharge. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 148
(2000); Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309,
10 Rowan, et al. v. Lockheed
Martin Energy Systems
No. 02-6160
314 (6th Cir. 1989). The plaintiffs may not simply substitute
their own business judgment for that of the defendant.
Rather, to survive a summary judgment motion they must
show that a reasonable jury could conclude that the actual
reasons offered by the defendant were a mere pretext for
unlawful age-discrimination, not that other reasonable
decision-makers might have retained the plaintiffs. In this
case no reasonable jury could reach that conclusion.
Finally, the plaintiffs allege that Eaton, their immediate
supervisor, called them “old farts” on a “fairly regular basis.”
Unlike the statements about the average age in the plant,
using such age-based slurs may well betray a bias that older
workers are less valuable or competent. However, such
statements will not constitute direct evidence. Since the
plaintiffs do not allege that they were made in relation to the
decision to discharge the plaintiffs as part of the reduction in
force, an inference is required that such a bias may have
played a role in the decision to select these plaintiffs. In fact,
the evidence does not support the conclusion that Eaton was
a decision-maker in connection with the discharges in the first
place, and therefore whatever statements he made are
irrelevant anyway. “‘[S]tatements by non-decision makers,
or statements by decision makers unrelated to the decisional
process itself [can not] suffice to satisfy the plaintiff’s burden’
of demonstrating animus.” Bush v. Dictaphone Corp., 161
F.3d 363, 369 (6th Cir. 1998) (quoting Price Waterhouse v.
Hopkins, 490 U.S. 228, 277 (1989)).
Although Eaton was not involved in the decision to select
Rowan and Washington for termination, the plaintiffs argue
that he was involved in the decision not to transfer them to
other jobs within the plant that were filled with younger
workers. As evidence for this proposition they cite a
“smoking gun” memo dated October 7th, 1999 from Eaton to
Powell in which Eaton writes, “How about you and I get
together the week of 10/25 to discuss assignment changes in
prep for 11/12.” The plaintiffs argue that this memo

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No. 02-6160 Rowan, et al. v. Lockheed
Martin Energy Systems
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demonstrates that Eaton was involved in transfer decisions
related to the November 12th layoff. In fact, the memo shows
nothing of the sort. The October memo does not show that
Eaton was involved in the decision to terminate the plaintiffs,
as that decision had already been finalized in August. Nor
does it show that Eaton was involved in the decision not to
transfer the plaintiffs. For one thing, “assignment changes”
are not the same thing as transfers. More importantly, the
transfers in question were not even being discussed at the
time of this memo. The specific jobs that the plaintiffs claim
they should have been transferred to were filled either well
before the reduction in force (the jobs filled by Fields and
Owens), or well after the plaintiffs had left the payroll (the
reassignments of Cunningham, Evans, Duke and Beck). The
latter transfers were related to each other, and were set off by
a chain of events occurring between January and May of
2000, months after the plaintiffs’ positions had already been
eliminated, and months after the memo by Eaton that
plaintiffs speciously call a “smoking gun.” In short, the
plaintiffs fail to tie Eaton’s alleged age-bias to any adverse
decision affecting them.
For all the reasons articulated above, the judgment of the
district court is AFFIRMED.
12 Rowan, et al. v. Lockheed
Martin Energy Systems
No. 02-6160
_________________
CONCURRENCE
_________________
FEIKENS, District Judge.
I concur with the result that the Court reaches in this case.
I write separately to state that I fully agree with the Court’s
statement that the evidence in this case “indicates that the
concern for the average age of the work force in the plant was
entirely motivated by the findings of the Chiles
Commission...” I conclude from this that the statements
related to the average age of the work force are not suspicious
and therefore do not make out a prima facie case of
discrimination. Therefore, I would affirm the District Court
on its conclusion in this regard.

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