Full opinion text
MEMORANDUM OPINION AND ORDER PAUL D. STICKNEY, United States Magistrate Judge. This is a consent case before the United States Magistrate Judge. The Motion for Summary Judgment of Defendants, The Dallas Morning News, Inc. (“TDMN”); Belo Corp. (“Belo”); Belo Benefits Administrative Committee (the “Committee”), as plan administrator for the G.B. Dealey Retirement Pension Plan (the “Pension Plan”); and Belo Savings Plan (the “Savings Plan”) (collectively, “Defendants”) (doc. 241) is under consideration. Plaintiffs are Larry Randall Powell, Lawrence William DeOre, Paula F. Watson, Gary Van West, Raul Prezas Reyes, Timothy Arthur O’Leary, Jan Michael Hubbard, Michael S. Coons, John Paul Chamless, Ira Hadnot Alexander, Deborah Sue Yoorhees, Linston Robert Lofley, Karen Patterson, Linda Jones, Gary Stratton, Ewina H. Schumacher, Paulette Ladach, and Stephen Wayne Yount. In their Third Amended Complaint (doc. 176), Plaintiffs allege that TDMN terminated their employment during a 2004 reduction in force (“RIF”). Seventeen of the Plaintiffs (all but Karen Patterson) (“ADEA Plaintiffs”) bring claims under the Age Discrimination in Employment Act (“ADEA”) based on theories of disparate impact and disparate treatment. Although TDMN was their former employer, the ADEA Plaintiffs bring the same ADEA claims against Belo, contending Belo was a “joint employer” with TDMN. All Plaintiffs (“Plaintiffs”) bring claims under § 502 of the Employee Retirement Income Security Act (ERISA) against Belo and the Committee, as administrators for the Pension Plan and the Savings Plan, for failure to timely provide them with copies of summary plan descriptions related to 2004 amendments to the Pension Plan and the Savings Plan. Pending Motions and Objections to Summary Judgment Evidence In addition to Defendants’ Motion for Summary Judgment, the following motions are before the Court for consideration: Plaintiffs’ Motion for Leave to File Consolidated Supplemental Appendix in Support of Plaintiffs’ Response to Defendants’ Objections to Plaintiffs’ Declarations, filed December 10, 2010 (doc. 287); Plaintiffs’ Motion for Leave to File Consolidated Supplemental Appendix in Support of Plaintiffs’ Response to Defendants’ Objections to Mischaracterization of Summary Judgment Evidence, filed December 10, 2010 (doc. 285); and Defendants’ Motion to Strike Appendix in Support of Declaration of Michael A. Campion [doc. 280], filed December 1, 2010 (doc. 283). The Court has considered the motions, the responses, and a reply. This case was filed in 2006. Defendants’ Motion for Summary Judgment was filed April 30, 2010. The Court granted the parties’ multiple requests for extensions during the summary judgment briefing period. The Court granted exceptions to the local summary judgment rules by permitting the parties to greatly exceed page limitations. The parties filed unlimited Appendices in support of the summary judgment, the response, and the reply. Defendants filed their reply in support of the summary judgment on October 14, 2010. However, the parties filed, and the Court granted, unopposed motions for extensions of time to file various responses and replies to objections. The filings continued until December 28, 2010. Plaintiffs’ motions (docs. 285 and 287), filed December 10, 2010, seek to change the summary judgment record because of mistakes and omissions in their responsive filings of August 29, 2010 (docs. 249, 250, & 252-61). The Court granted Plaintiffs two extensions of time to file their responsive pleadings. The Court finds that Plaintiffs’ motions are untimely and seek to expand the record with materials that should have been included in Plaintiffs’ August 29, 2010 responsive pleadings. Pursuant to the Court’s inherent power to control its docket and prevent undue delay, Plaintiffs’ motions (docs. 285 and 287) are DENIED. On November 17, 2010, without seeking leave of Court, Plaintiffs filed a supplemental declaration by their expert witness, Michael Campion, including it in an “Appendix in Support of Plaintiffs’ Response to Defendants’ Objections to the Declaration of Michael A. Campion Filed in Support of Plaintiffs’ Response to Defendants’ Motion for Summary Judgment (doc. 280). Defendants filed a Motion to Strike the supplemental declaration of Plaintiffs’ expert witness on December 1, 2010 (doc. 283). When Plaintiffs filed the supplemental declaration, Defendants had deposed Michael Campion and the discovery deadline had expired. The Supplemental Declaration attempts to bolster Campion’s credentials and show that the “reasonable HR practices” he described were based upon an acceptable approach to scientific inquiry. The Supplemental Declaration is in violation of the Local Rules, is untimely, and has already generated a request to reopen discovery and to depose Campion again (doc. 294). Pursuant to the Court’s inherent power to control its docket and prevent undue delay, Defendants Motion to Strike (doc. 283) is GRANTED. The Clerk is ordered to strike document 280, and the Court will not consider the supplemental appendix in reaching the decision on Defendants’ Motion for Summary Judgment. The parties filed objections to the summary judgment evidence, responses, and replies. Evidence on summary judgment may be considered to the extent that it is not based on hearsay or other information that is not admissible at trial. Fowler v. Smith, 68 F.3d 124, 126 (5th Cir.1995). Statements that are conclusory and based upon speculation will not be considered. See Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir.2003) (holding that unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment). Plaintiffs and Defendants object to each others’ evidence on the grounds that it is speculative or conclusory, both with respect to fact witnesses and expert witnesses. In evaluating all of the evidence, the Court has disregarded any speculative, conclusory, or hearsay evidence and has considered only competent summary judgment evidence in deciding Defendants’ summary judgment motion. Accordingly, any objections not specifically addressed are overruled as moot. Plaintiffs object to the declarations of the various decision-makers who recommended Plaintiffs for termination during the RIF, specifically to the decision-makers’ averments that they did not consider the employee’s age in recommending the employee for termination in the RIF. Plaintiffs’ object that the averments are vague, conclusory, lack a proper foundation, and fail to set forth how affiant has personal knowledge of the facts alleged. However, most of the evidence in question is not presented for the truth of the matter asserted; rather, it is submitted to show the decision-makers’ states of mind when they recommended Plaintiffs for termination. The decision-makers who decided which employees to terminate clearly had personal knowledge of the factors they considered in arriving at their recommendations. Plaintiffs’ objections to the decision-makers declarations are overruled. A court cannot consider an affidavit or declaration that contradicts prior testimony or admissions for the purposes of creating a fact issue because it is not competent summary judgment evidence. See e.g., Crowe v. Henry, 115 F.3d 294, 298 n. 4 (5th Cir.1997); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.1996); Schiernbeck v. Davis, 143 F.3d 434, 438 (8th Cir.1998). Under the “sham affidavit” doctrine, a “nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony.” Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir.1984); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894-95 (5th Cir.1980); In re CitX Corp., 448 F.3d 672, 679 (3d Cir.2006). Courts have consistently disregarded such sham affidavits as nothing more than an attempt to “manufacture a disputed material fact where none exists.” Albertson, 749 F.2d at 228. The rule applies to exclude affidavits which contradict prior deposition testimony of the affiant. Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir.1985). The Court sustains Defendants’ objections to any of Plaintiffs’ declarations and to the declarations of their expert witness which directly contradict the declarants’ previous testimony. With respect to Defendants’ Objections to the Declaration of Michael A. Campion, the Court sustains Defendants’ general objections in part and denies them in part as moot. As the Court will explain in examining Defendants’ Reasonable Factor Other than Age (“RFOA”) defense, the expert witnesses’ 20 Reasonable HR Practices that Defendants allegedly should have known about and used during the RIF are irrelevant. Plaintiffs can rebut Defendants’ RFOA defense only by demonstrating that the factors offered by Defendants are unreasonable. See, e.g., Smith, 544 U.S. at 243, 125 S.Ct. 1536 (noting RFOA does not permit rebuttal by showing that other reasonable methods not resulting in a disparate impact were available). There is no requirement under the RFOA prong of the ADEA that the least-discriminatory method be implemented. Smith, 544 U.S. at 243, 125 S.Ct. 1536. The Court sustains Defendants’ objection and excludes Campion’s testimony about his 20 Reasonable HR Practices as irrelevant and hence, inadmissable. Additionally, the Court sustains Defendants’ objection that Campions’ declaration testimony regarding “age stereotypes” exceeds the scope of his expert designation. When Defendants took Campion’s deposition in April 2010, Plaintiffs’ designations of subjects on which Campion would testify did not include using Campion as an expert on age stereotyping. Defendants had no notice and would be prejudiced if Plaintiffs were permitted to introduce this testimony by way of his declaration after the deposition had concluded. Extremely able counsel on both sides have thoroughly briefed every conceivable issue. The Court has considered all of the issues, arguments, and objections raised and overrules as moot any arguments and objections that are not addressed in this opinion. The Court also clarifies that it has not applied any presumptions based upon the age of the decision-maker or the fact that the decision-maker both hired and terminated an employee. Plaintiffs’ Claims Against Belo Under the ADEA Under the ADEA, a parent corporation like Belo, cannot be held liable for discriminatory employment actions unless it qualifies as an “employer” under the statute. See 29 U.S.C. § 623; Chapman v. The Dallas Morning News, L.P., No. 3:06-CV-2211-B, 2008 WL 2185389 *6 (N.D.Tex. May 27, 2008) (unpublished). The ADEA defines an employer only as “a person engaged in industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” 29 U.S.C. § 630(b). In Chapman, an age discrimination case based upon the same 2004 RIF that is the subjection of this action, the Hon. Jane J. Boyle, District Judge, granted the defendants’ summary judgment as to Belo because Belo did not meet the statutory definition of employer and thus was not an employer under the ADEA. Chapman, 2008 WL 2185389 at *6. The Court agrees that the statutory definition contains no basis for disregarding the venerable corporate law principle of limited liability or for otherwise extending liability to a parent corporation for the discriminatory acts of its subsidiary. However, Plaintiffs in this case allege that they are former employees of TDMN or Belo and assert that a “fact issue exists as to Belo’s status as a ‘joint employer’ under the ADEA.” (Defs.’ Br. at 225.) In support of this assertion, Plaintiffs cite Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019-20 (5th Cir.1990) for the proposition that the Fifth Circuit uses the hybrid economic realities/common law control test for determining the existence of an employment relationship under both Title VII and the ADEA. (Defs.’ Br. at 226.) Nevertheless, contrary to Plaintiffs’ assertion, the plaintiffs in Fields did not argue that the two potential employers in that case should be considered a single employer under a “joint employer” theory, and the Fifth Circuit Court of Appeals did not address that issue. Fields, 906 F.2d at 1019 n. 2. Other Fifth Circuit cases have used a “hybrid economic realities/common law control test” to resolve when companies will be considered single employers in ADEA suits. Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 296 (5th Cir.1994); Deal v. State Farm County Muh Ins. Co. of Texas, 5 F.3d 117, 118 (5th Cir.1993). Under the economic realities/common law control test, the right to control an employee’s conduct is the most important factor. Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir.1986). “If an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer/employee relationship is likely to exist.” Spirides v. Reinhardt, 613 F.2d 826 (D.C.Cir.1979). The Fifth Circuit explains in Schweitzer v. Advanced Telemarketing Corp., 104 F.3d at 761, 764 (5th Cir.1997) that the “hybrid economic realities/common control test” was first used in the context of determining whether a worker employed as an independent contractor should be considered the employee of an entity for the purposes of Title VII and extended to ADEA cases in Fields. However, the Fifth Circuit later extended the original test to determine if separate, related business entities could together be considered the employer of a plaintiff in a civil rights case. Id. (citing Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983)). The hybrid test developed to help determine when plaintiffs could be considered employees of business entities, not to help decide if different entities were so integrated as to constitute a single employer of a plaintiff. Schweitzer, 104 F.3d at 764. According to the Fifth Circuit Court of Appeals, although Trevino and the hybrid test are similar, the tests are not interchangeable. Id. The hybrid test should be used to determine if a plaintiff is an employee of the defendant or of one of the defendants in a multi-defendant case. Id. Then, if a question remains with respect to whether a second defendant is sufficiently connected to the employer-defendant to be deemed a single employer, the court should conduct a Trevino analysis. Id. The Trevino analysis will establish if the additional defendant is also an employer of the plaintiff. Id. In this case, it is not necessary for the Court to apply the hybrid test to determine if TDMN is Plaintiffs’ employer. Plaintiffs admit that they were employed by TDMN. (Defs.’ App. 2304; 592:19-23; 1832:7-8; 227:22-24; 2136:15-16; 1589:12-20; 1416:14-1417:9; 825:14-16; 1280:9-22; 1683:8-15; 371:15-17; 1062:3-6; 122:1-15; 1781:16-23; 1200:15-25; 1162:21-23, 1163:21-22; 471:5-8; 490:13-15; 708:3-5; 912:20-22.) The only question that remains is whether, under the Trevino test, Belo is sufficiently connected to TDMN for TDMN and Belo to be considered a single employer or joint employer. To determine whether a parent corporation and its subsidiary may be regarded as a “single employer” or “integrated enterprise” under the ADEA, the Fifth Circuit Court of Appeals applies the four-part analysis originally adopted by the United States Supreme Court in the context of labor disputes. Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 777-781 (5th Cir.1997) (citing Radio Union v. Broadcast Serv., 380 U.S. 255, 257, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965), and extended to civil rights actions by the Fifth Circuit in Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983)). The four factors to consider include: (1) interrelation of operations, (2) centralized control of labor or employment decisions, (3) common management, and (4) common ownership or financial control. Id. This analysis ultimately focuses on whether the parent corporation was a final decision-maker in connection with the employment matters underlying the litigation. Id.; see Chaiffetz v. Robertson Research Holding, Ltd., 798 F.2d 731, 735 (5th Cir.1986). All four factors are examined only as they bear on this precise issue. Id.; see Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 765 (5th Cir.1997). More specifically, the Court must determine which entity made the final decisions regarding employment matters relating to the individuals claiming discrimination. The only factor upon which Plaintiffs submit any evidence is the second one, centralized labor or employment decisions. According to Plaintiffs, Belo played a considerable role in the RIF at TDMN, which was an operating subsidiary of Belo in 2004. (Spitzberg Dep., Pis.’ App. 2102-2103.) The evidence shows that the economically driven RIF led to the termination of more than 125 jobs at TDMN and approximately 194 jobs across all of Belo’s media companies. (Daume Aff. ¶ 3, Defs.’ App. 2304.) Belo made the decision that there would be a RIF at TDMN rather than options such as pay cuts or other alternatives to layoffs. (Willey Dep., Pis.’ App. 2381, 2395.) The RIF Documents, which contained the instructions to rank the affected employees and the criteria by which to rank them, came from Marian Spitzberg at Belo. (Pis.’ App. 1054-1079.) Belo handled HR matters for TDMN. (Miller Dep., Pis.’ App. 1714-1715; see also Miller Dep., Pis.’ App. 1725.) Marian Spitzberg, Kim Cummings, and Sheila Hartley — all of whom held HR positions at Belo — provided input or review into the decision to terminate each Plaintiff. (See, e.g., Defendant The Dallas Morning News, Inc.’s Objections and Responses to Plaintiff John Paul Chamless’ First Interrogatories, Answer No. 2, Pis.’ App. 2628-2637; Cummings Dep., Pis.’ App. 1404-1405; Spitzberg Dep., Pis.’ App. 2103, 2104; Miller Dep., Pis.’ App. 1725.) When there was a position at TDMN that required a job description, the job description was created by Belo. (Miller Dep., Pis.’ App. 1716.) The performance evaluations which were required for each Plaintiff in 2003 and 2004 — and variously used by managers and supervisors when ranking employees in the RIF — were created by Belo. (Miller Dep., Pis.’ App. 1716.) Performance improvement plans were developed and implemented by Belo. (Spitz-berg Dep., Pis.’ App. 2105-2106.) Plaintiffs do not claim that Belo made the final termination decision with respect to any of the plaintiffs. Plaintiffs have not presented any evidence of the number of Belo employees or the number of Belo subsidiaries, the interrelation of operations among the parent and subsidiaries, or evidence with respect to common management, common ownership, or financial control. A strong presumption that a parent corporation is not the employer of its subsidiary’s employees arises from the doctrine of limited liability. Lusk, 129 F.3d at 778. This presumption can be rebutted only by evidence of control that significantly departs from the ordinary relationship between a parent and its subsidiary, similar to that which is sufficient to pierce the corporate veil. Id. Plaintiffs failed to present evidence sufficient to withstand summary judgment on Belo’s liability. The summary judgment evidence upon which Plaintiffs rely does not show that Belo had control over TDMN’s daily operations or that Belo made the decision to terminate any of the plaintiffs in this case. Plaintiffs’ evidence is not sufficient for the Court to disregard the corporate structure. Accordingly, Defendants’ motion for summary judgment on Plaintiffs’ ADEA claims against Belo is GRANTED. Statement of Facts Defendants set forth a statement of undisputed facts. In their response, Plaintiffs state generally that they “dispute the ‘undisputed facts’ ” as set forth by Defendants. However, they do not identify which facts they dispute or provide the court with a citation to the evidence showing that the fact is disputed. Rather, they set forth their own version of the facts, many of which are included in Defendants’ fact statement. Additionally, Plaintiffs refer the Court to: “specific examples of Defendants’ mischaracterization of the facts [ ] set forth [ ] in Plaintiffs’ ‘pretext’ argument.” Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998); see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir.1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disputed fact issues which are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. To the extent that Plaintiffs include additional facts which are relevant and material, the Court will consider these facts. On summary judgment, the Court must consider the facts in the light most favorable to Plaintiffs. Background Around 2004, a dramatic decline was happening in the American newspaper industry; this was largely the result of a significant loss of advertising revenue— particularly classified ads — to the internet and other media sources and continued decreases in print circulation. (Brisbane Aff. ¶ 5 at Defs.’ App. 2210-2211.) This generated a serious and well-documented concern that the newspaper industry would not survive. (Id.) Many major newspapers had filed for bankruptcy during this time. (Id.) Others experienced fluctuations in profits. (Id.) Stock prices of the major publicly-owned newspaper groups had dropped sharply. (Id.) Between 1999 and 2008, the total number of jobs in the American newspaper industry experienced a twenty-five percent decrease. (Brisbane Aff. ¶ 6 at Defs.’ App. 2211) (citing statistics from the U.S. Department of Labor), the American Society of News Editors published an April 2009 study which found that the number of journalism jobs declined by seventeen percent over the past ten years. (Id.) During the same period, many major newspapers engaged in reductions in force. (Id.) TDMN also experienced profound economic pressures, including significant revenue and circulation declines. (Brisbane Aff. ¶ 7 at Defs.’ App. 2211.) In 2001, TDMN had instituted an involuntary RIF due to economic necessities. On Monday, March 15, 2004, James M. Moroney III (“Moroney”), the publisher of TDMN, announced that beginning October 4, 2004, a team of fifteen employees of TDMN would begin designing the “Newspaper of the Future.” (Pis.’ App. 0338-0339; Grigsby Dep., Pis.’ App. 1489.) The design process followed several months of research. (Pis.’ App. 0338-0339.) The working sessions were described as “intense” and “continuous;” lasting until the week before Thanksgiving. (Id.) TDMN’s goal was to create a future, “instead of reacting to it.” (Id.) The 2004 Reduction In Force To cut expenses, Belo undertook a strategic alignment affecting most of its operating companies in early 2004. (Spitzberg Dep. at Defs.’ App. 1518:18-1519:13.) Due to continuing drops in advertising revenues and increases in operating costs, Belo decided that this overall alignment required another RIF. (Id.; Moroney Dep. at Defs.’ App. 1036:23-1037:3, 1048:6-1049:7.) TDMN also had experienced a combination of declining revenues and a concurrent increase in business costs, including escalating newsprint prices. (Moroney Dep. at Defs.’ App. 1036:14-1037:3, 1054-1055; Oct. 28, 200Jp Moroney E-Mail to TDMN Employees at Defs.’ App. 1059, 1054; see also Hubbard Dep. at Defs.’ App. 604:6-11.) In 2003, Belo announced that allegations of circulation overstatements at TDMN were under investigation. (Defs.’ Answer to 3d Am. Compl. ¶ 26.) Robert Decherd (“Decherd”), President of Belo Corp., Belo employees a letter concerning circulation overstatements and informed them of the investigation. (Defs.’ Answer to 3d Am. Compl. ¶ 24.) Ultimately, the 2003 circulation overstatement resulted in the refund of $26 million to advertisers about the same time that Belo announced that it would conduct an RIF. (Pis.’ App. 3042-3073.) On September 29, 2004, Decherd announced that Belo’s overall workforce would be reduced by approximately 250 positions. (Defs.’ App. 1537-1538, 1511.) Belo announced that the RIF at TDMN was part of a company-wide downsizing that affected the Belo corporate organization and most Belo operating companies. (Spitzberg Dep., Pis.’ App. 2110, Pis.’ App. 2156 (Ex. 6).) However, the majority of the planned reductions were scheduled to take place at TDMN. (Defs.’ App. 1537-1538, 1511.) Moroney made an additional announcement regarding the RIF to employees of TDMN at a September 29, 2004 meeting at the Dallas Convention Center. (Hubbard Dep. at Defs.’ App. 601:4-602:10; Ladach Dep. at Defs.’ App. 848:13-18; Patterson Dep. at Defs.’ App. 1173:21, 1174:22.) At this meeting, he informed the audience that employees who were terminated as a result of the RIF would be given one week of severance pay for each year of service. (Hubbard Dep. at Defs.’ App. 636:19-22.) In 2004, TDMN was an operating subsidiary of Belo. (Spitzberg Dep. at Defs.’ App. 1506:16-1507:3.) Plaintiffs were all employees of TDMN. (See Daume Aff. ¶ 4 at Defs.’ App. 2304; Hubbard Dep. at Defs.’ App. 592:19-23; West Dep. at Defs.’ App. 1832:7-8; Coons Dep. at Defs.’ App. 227:22-24; Yount Dep. at Defs.’ App. 2136:15-16; Stratton Dep. at Defs.’ App. 1589:12-20; Schumacher Dep. at Defs.’ App. 1416:14-1417:9; Ladach Dep. at Defs.’ App. 825:14-16; Reyes Dep. at Defs.’ App. 1280:9-22; Voorhees Dep. at Defs.’ App. 1683:8-15; DeOre Dep. at Defs.’ App. 371:15-17; O’Leary Dep. at Defs.’ App. 1062:3-6; Chamless Dep. at Defs.’ App. 122:1-15; Watson Dep. at Defs.’ App. 1781:16-23; Powell Dep. at Defs.’ App. 1200:15-25; Patterson Dep. at Defs.’ App. 1162:21-23, 1163:21-22; Had-not Dep. at Defs.’ App. 471:5-8, 490:13-15; Linda Jones Dep. at Defs.’ App. 708:3-5; Lofley Dep. at Defs.’ App. 912:20-22.) Defendants’ Five-Stage Plan for the Reduction In Force On September 8, 2004, a confidential communication (the “Spitzberg Memo”) was distributed to key individuals at Belo operating companies, including TDMN, notifying them about the upcoming RIF and providing directives and forms to be used for position eliminations, downsizings, and consolidations. (Spitzberg Dep. at Defs.’ App. 1516:24-1517:4, 1539-1564, 1516-1517.) The RIF directives and forms contained in the Spitzberg Memo had originally been developed for the 2001 RIF based on documents supplied by outside legal counsel. (Id. at Defs.’ App. 1519:14-23, 1521:7-10.) Belo’s Senior Vice President of Human Resources, Marian Spitzberg (“Spitzberg”), revised the original 2001 forms for use in the 2004 RIF. (Id. at Defs.’ App. 1518:10-16, 1520:12-14.) Specifically, Spitzberg revised the RIF documents and forms to clarify them for the managers who were required to fill them out. (Id. at Defs.’ App. 1521:1-8.) In both the 2001 RIF and 2004 RIF, Belo Human Resources concluded that in each operating company, managers and supervisors with direct knowledge of specific job positions could best determine where salary cuts could be made while retaining essential skill sets and manpower needs for the future. (Spitzberg Aff. ¶ 12 at Defs.’ App. 3268.) The only written communication from Belo management regarding the various methods for reducing the workforce was the Spitzberg Memo. (Spitzberg Dep. at Defs.’ App. 1524:6-19.) As stated, the memo was highly confidential and not to be released to, or shared with, anyone other than the managers and supervisors directly involved in the RIF. (Pis.’ App. 1054-1079.) Managers were instructed: “[D]o not write any notes, memos or emails about this process except on the attached forms. Do not retain any copies or give copies to anyone else because these documents contain highly confidential information.” (Pis.’ App. 1055 (emphasis in original).) According to the Spitzberg Memo, the goal of the 2004 RIF was to achieve adequate salary cost reductions while retaining requisite job skills and personnel levels to keep each operating unit viable in the future. (Spitzberg Aff. ¶ 12 at Defs.’ App. 3268; Spitzberg Dep. at Defs.’ App. 1539; 1516-1517.) The Spitzberg Memo stated in the “General Guidelines” that “we must retain those employees who have demonstrated the most productivity, the greatest adaptability and/or versatility, and who possess the skill sets best suited to our projected work.” (Pis.’ App. 1054-1055.) In late August or early September 2004, Spitzberg held a meeting to notify Human Resources (“HR”) representatives at TDMN, including David Skooglund (“Skooglund”) and Sandi Scott (“Scott”), of the impending RIF. (See Cummings Dep. at Defs.’ App. 325:16-25.) At that meeting, Spitzberg stressed that “uniform guidelines for employee selection” should be used during the RIF. (Id. at Defs.’ App. 326:12-19.) Spitzberg specifically instructed the HR representatives that they should “look at anything that would pertain to discrimination ... against race, color, creed, national origin, sex, sexual orientation, religious affiliation, [or] veteran status ... [and] age,” to ensure that discrimination did not occur in the RIF. (Cummings Dep. at Defs.’ App. 326:19-327:1.) The Spitzberg Memo also included this directive in the “General Guidelines” section. (See Spitzberg Dep. at Defs.’ App. 1539, 1516-1517.) The HR representatives were admonished specifically to pay particular attention to age, sex, and ethnicity, to look for patterns of discrimination, and to verify that all information provided as part of their RIF analyses was complete. (Cummings Dep. at Defs.’ App. 326:24-327:3, 327:16-21.) The RIF selection and review process involved five stages. Operational management performed the first stage, examining, among other things, prior performance ratings for each individual being reviewed as part of the RIF process. (Id. at Defs.’ App. 327:3-6.) After Bob Mong(“Mong”), TDMN’s Editor, and George Rodrigue (“Rodrigue”), TDMN’s Managing Editor, discussed which areas of TDMN could be downsized, and by how much, they reached a salary reduction targets for each department or area. (Rodrigue Dep. at Defs.’ App. 1359.1:20-1359.2:10.) They gave managers of each department or area salary reduction targets they had to meet. (Mong Dep. at Defs.’ App. 1027:23-1028:20.) Managers not only looked at employees’ overall performance ratings from the three years preceding the RIF, but also considered the ratings and written responses from sub-sections of the annual performance evaluations. (See, e.g., Rush Dep. at Defs.’ App. 1401:18-1402:18.) Specifically, if the overall performance ratings of comparable employees were equivalent, managers were instructed to look through the individual sections of the performance evaluations to see what ratings each employee received in each section. (Rush Dep. at Defs.’ App. 1377:21-24, 1386:6-1387:7.) Managers could conduct three different types of evaluations as part of the RIF- — • downsizings, eliminations, or consolidations — and the Spitzberg Memo described what each entailed. (Cummings Dep. at Defs.’ App. 327:10-15.) The Spitzberg Memo directed reviewers to “carefully review those functions performed by your company, department or work group and determine how headcount may be reduced through job eliminations, downsizing, or through job restructurings and consolidations.” (Spitzberg Dep. at Defs.’ App. 1539, 1516-1517.) The Spitzberg Memo specifically directed reviewers to consider the future needs of their department over the next twelve months. (Id. at Defs.’ App. 1547, 1516-1517.) When a position and all of its functions could be eliminated — with no need to reassign job functions — the Memo told managers to utilize the job eliminations form. (Id. at Defs.’ App. 1540, 1516-1517.) When the duties performed by a certain position could be fulfilled by fewer employees in that position, the Memo told managers to complete the position downsizings form. (Spitzberg Dep. at Defs.’ App. 1540-1541, 1516-1517.) Finally, the Memo directed that when managers decided to combine and restructure existing positions and reduce headcount, the Memo directed managers to use the form for consolidations. (Spitzberg Dep. at Defs.’ App. 1541, 1516-1517.) For a position elimination, a manager identified the position to be eliminated and listed the number and names of employees in that position. (Spitzberg Dep. at Defs.’ App. 1543, 1516-1517.) For a position downsizing, a manager had a manager or supervisor with direct working knowledge of the employees in that position evaluate and stack rank the employees based upon the employees’ skills, knowledge, past ability, and future needs of the position. (Spitz-berg Dep. at Defs.’ App. 1547, 1516-1517.) During the evaluation and ranking of employees for downsizings, managers also were directed to consider prior performance evaluations, recent salary increases, and whether the employee had any disciplinary issues in the three years preceding the RIF. (Spitzberg Dep. at Defs.’ App. 1549, 1516-1517.) For positions consolidations, managers had to first describe the essential functions of each position, identify the job titles and number of employees in each position, and then describe the essential functions of the consolidated position. (Spitzberg Dep. at Defs.’ App. 1553, 1516-1517.) Managers or supervisors with working knowledge of the employees then had to evaluate and rank the employees against the criteria applicable to their pri- or position and the newly-consolidated position. (Spitzberg Dep. at Defs.’ App. 1554, 1516-1517.) Evaluations of employees in connection with a consolidation were otherwise the same as for a downsizing. (Spitzberg Dep. at Defs.’ App. 1554, 1516— 1517.) Seniority was viewed as a positive factor which benefitted the employee, when employees were evaluated for both downsizings and consolidations. (Spitz-berg Dep. at Defs.’ App. 1550, 1560, 1516— 1517.) If no formal evaluation had been completed for an employee in the 2004 calendar year at the time of the RIF, managers were still required to provide an appraisal of the employee’s performance for 2004. (Spitzberg Dep. at Defs.’ App. 1547,1516-1517.) The 2004 RIF procedure prohibited bumping or transferring of employees. (Cummings Dep. at Defs.’ App. 327:16-21.) The no bumping, no transfer practices are standard procedure in most of Belo’s large-scale RIFs. (Id. at Defs.’ App. 342:10-15.) The Spitzberg Memo designated Kim Cummings (“Cummings”) and Sheila Hartley (“Hartley”), Belo’s two Regional Directors of Human Resources, as individuals to whom any questions could be directed. (Spitzberg Dep. at Defs.’ App. 1541, 1516-1517, 1508:6-8.) In turn, the HR Directors were instructed to ensure that: (1) the uniform guidelines for employee selection set forth by the Society of Human Resource Management were followed; (2) all documentation was complete and sufficient information was provided to differentiate between comparators with respect to objective characteristics such as work performance and work product; (3) an employee’s protected status was not taken into account during the selection process; (4) performance appraisals were considered in the review; and (5) performance documents provided by managers were reviewed and the managers contacted if questions arose regarding that documentation. (Cummings Dep. at Defs.’ App. 328:20-330:6.) As a general practice, questions from managers at TDMN came through Skooglund or Scott. (Id. at Defs.’ App. 331:5-332:13.) On September 8, 2004, Skooglund met with the Assistant Managing Editors (“AME’s”) at TDMN to distribute the Spitzberg Memo and explain its contents (the “Skooglund Training”). (Yates Dep. at Defs.’ App. 2022:11-15, 2022:21-25; Spitzberg Dep. at Defs.’ App. 1509:9-23 (discussing Skooglund’s position)). TDMN concluded, based upon its experience with previous RIFs, that the most effective way to determine critical skills and future needs for a position was to have managers or supervisors with a working knowledge of each position, including AMEs, conduct the RIF evaluations. (Spitzberg Aff. ¶ 13 at Defs.’ App. 3268.) Skooglund went through all of the RIF forms in the Spitz-berg Memo, explaining their purpose and meaning, and answering questions from the department heads who were in attendance. (Skooglund Dep. at Defs.’ App. 1492:18-1493:11; Yates Dep. at Defs.’ App. 2023:25-2024:5.) Skooglund stressed the importance of using objective criteria during the individual analyses, such as: (1) the existence of a performance improvement plan (“PIP”) for the employee, (2) the employee’s productivity levels, and (3) the results and comments in performance appraisals. (Kresl Dep. at Defs.’ App. 801:5-12.) That same day, Skooglund also met individually with the Newsroom AMEs to discuss the RIF process. (Skooglund Dep. at Defs.’ App. 1493:19-1494:8.) The second stage of the RIF process entailed managers, or department heads, forwarding their completed RIF reviews and evaluation paperwork to their HR manager who then answered any remaining questions raised by the managers and confirmed that the evaluation forms were complete and accurate. (Cummings Dep. at Defs.’ App. 336:17-337:11; Skooglund Dep. at Defs.’ App. 1497:12-24.) When the HR manager, in this case Skooglund, finished his review, he forwarded the RIF evaluation forms to Spitzberg for the third stage of the RIF process. At the third stage, Spitzberg divided up the forms and forwarded them for further impartial review to HR representatives who did not regularly work with TDMN. (Spitzberg Dep. at Defs.’ App. 1531:11-16.) With respect to the Plaintiffs in this lawsuit, those impartial reviewers were Cummings and Hartley who, after evaluating the forms, raised follow-up questions, and asked for further clarification and revisions on some of the forms. (Cummings Dep. at Defs.’ App. 333:19-334:7.) When Cummings and Hartley found that it was unclear why a manager ranked one employee higher than another, they followed up by asking the manager to explain what differentiated the employees, and, in some cases, also ask them to resubmit new evaluation forms. (Id. at Defs.’ App. 341.1:24-341.3:23.) In certain instances during the third stage, RIF forms were returned to managers to be redone in whole or in part. (Spitzberg Dep. at Defs.’ App. 1532.1:15-1532.2:10.) Some proposed terminations were reversed. (Id.) Joe Daume, Belo’s Human Resources Director provided demographic data which Cummings and Hartley also analyzed during their review. (Id. at Defs.’ App. 339:10-340:13.) The fourth stage of the RIF process required Cummings and Hartley to forward the RIF evaluations and rankings to outside legal counsel after they completed their review. (Cummings Dep. at Defs.’ App. 337:15-17; Spitzberg Dep. at Defs.’ App. 1528:20-24.) Outside legal counsel had additional discussion with internal reviewers at TDMN and analyzed age, sex, and ethnic classifications to look for and address any patterns of possible discrimination. (Cummings Dep. at Defs.’ App. 337:20-338:5.) The final and fifth stage of the RIF selection and review process, required an Executive Review Committee, consisting of senior operations executives from TDMN, to conduct a final review of all RIF forms. (Spitzberg Dep. at Defs.’ App. 1528:20-1529:2, 1531:11-20.) The Executive Review Committee analyzed all eliminations across each Belo property to ensure that they were fair, supported by justifiable business reasons, and nondiscriminatory. (Id. at Defs.’ App. 1531:21-1532:3.) Standard of Review A court shall render summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Crv. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Ragas, 136 F.3d at 458. A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When a court rules on a motion for summary judgment, the court must view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Ragas, 136 F.3d at 458. Further, a court “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Anderson, 477 U.S. at 254-55, 106 S.Ct. 2505. Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence that shows the existence of a genuine issue of material fact. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Mere conclusory allegations are not sufficient to defeat a motion for summary judgment because they are not competent summary judgment evidence. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996). Moreover, unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.1994). The party opposing summary judgment must identify specific evidence in the record and articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also Skotak, 953 F.2d at 915-16 & n. 7. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputed fact issues which are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. Analysis Age Discrimination in Employment The Age Discrimination in Employment Act authorizes two types of discrimination claims: disparate treatment and disparate impact. Age Discrimination in Employment Act of 1967, § 4(a)(l, 2), 29 U.S.C. § 623(a)(l, 2); Munoz v. Orr, 200 F.3d 291, 299 (5th Cir.2000); Smith v. City of Jackson, Miss., 544 U.S. 228, 240, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). Disparate treatment refers to deliberate discrimination in the terms or conditions of employment. Id. In this case Plaintiffs allege deliberate discrimination during their discharge in an RIF. Disparate impact claims do not require the intent to discriminate. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Plaintiffs’ Disparate Impact Claims Defendants move for summary judgment on Plaintiffs’ disparate impact claims. A plaintiff alleging a disparate impact claim under the ADEA cannot merely allege a disparate impact, or point to a generalized policy that leads to such an impact. Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 100, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008). Rather, the employee is “responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 104 L.Ed.2d 733 (quoting Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)) (emphasis added). The plaintiffs burden is heavy, not only to isolate and identify the specific employment practices, but to establish causation by introducing a “substantial statistical disparity between protected and non-protected workers” with respect to the employment practices in question, the functional equivalent of intentional discrimination. Munoz, 200 F.3d at 299-300 (citing Griggs, 401 U.S. at 431, 91 S.Ct. 849). To establish a prima facie case of age discrimination based upon disparate impact, a plaintiff must: (1) identify a specific facially neutral employment policy or practice; (2) establish causation by presenting “statistical evidence of a kind and degree sufficient” to show (3) that the practice caused an adverse employment action (4) that disparately affected workers forty years of age or older. Collins-Pearcy v. Mediterranean Shipping Co. (USA), Inc., 698 F.Supp.2d 730, 741-42 (S.D.Tex.2010). To rebut a prima facie case of disparate impact, the employer has the burden of production and persuasion to prove that the adverse impact was attributable to a nonage factor that was reasonable. Meacham, 554 U.S. at 93-94, 128 S.Ct. 2395. Plaintiffs allege that Defendants unintentionally discriminated against them based on their ages by: (1) allowing undue subjectivity in the RIF termination selection process, and (2) executing a policy of rejuvenation by excluding two Belo subsidiaries, Quick and Al Dio, from the RIF. Defendants respond that Plaintiffs’ disparate impact claims fail because Plaintiffs: (a) have not adequately identified the specific policies or practices on which they base these claims; (b) failed to provide Defendants with fair notice of these claims; (c) cannot rely on excessive subjectivity in a RIF as a basis for these claims; (d) have not proven the existence of a policy or practice allowing managers to consider too much subjectivity when deciding who to terminate; and (e) have not demonstrated a disparate impact on ADEA-protected employees. Defendants assert that even assuming, arguendo, that Plaintiffs have demonstrated a genuine issue of material fact with respect to their disparate impact claims, it has presented undisputed summary judgment evidence that its RIF was based on nonage related reasons. Identifying Within the Selection Process for the RIF a Specific Facially Neutral Policy or Practice Which Has a Measurable Impact The Court will first consider Plaintiffs’ allegation that the RIF selection procedure was unduly subjective. With regard to specificity, Defendants contend that Plaintiffs’ disparate impact claim based on “the use of subjective criteria in the RIF” is equivalent to a claim that the selection process for the RIF created a disparate impact. The Court agrees. The United States District Court for the Northern District of Texas recently disapproved a disparate impact claim based upon the plaintiffs failure to identify, within the selection process for the layoff, a specific policy or practice responsible for purported statistical disparities. Oinonen v. TRX, Inc., No. 3:09-CV-1450-M, 2010 WL 396112, at *4-5 (N.D.Tex. Feb. 3, 2010). The Honorable Barbara M.G. Lynn, United States District Judge, pointed out that identifying a specific practice is not a trivial burden and is necessary to protect employers from potential liability when the statistical imbalances are the result of legitimate and non-discriminatory employment actions. Id. (citing Meacham, 554 U.S. at 101, 128 S.Ct. 2395). See also City of Jackson, 544 U.S. at 242, 125 S.Ct. 1536 (citing Wards Cove, 490 U.S. at 657, 109 S.Ct. 2115). Other courts agree that an ADEA plaintiff cannot rely on a broad unmeasurable policy as a basis for a disparate impact claim. See Mustelier v. Equifax, Inc., No. 08-1008, 2009 WL 890468, at *6 (D.P.R. Mar. 25, 2009) (holding plaintiff failed to identify a facially neutral rule in the restructuring process that was responsible for a disparity); Kourofsky v. Genencor Int’l Inc., 459 F.Supp.2d 206, 215 (W.D.N.Y.2006) (plaintiffs failed to identify any facially neutral policy); White v. Am. Axle & Mfg., Inc., No. 05-CV-72741-DT, 2006 WL 335710 *4 (E.D.Mich. Feb. 14, 2006) (holding plaintiff must identify the specific employment practice to give the defendant fair notice of what plaintiffs claim is and the grounds upon which it rests, not just termination selection procedures in a RIF). Many courts have held that a plaintiffs reliance on the undue subjectivity of the RIF termination process is not a proper basis for a disparate impact claim. See Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1270 n. 5 (8th Cir.1987) (noting that the RIF “was not implemented through some facially neutral procedure, such as a height and weight requirement or an aptitude test, but was conducted through a series of subjective decisions eliminating certain positions in order to cut costs;” therefore, a disparate impact claim was inappropriate given the lack of a “neutral policy, the impact of which could be measured”); Combs v. Grand Victoria Casino & Resort, No. 1:08-CV-00414-RLY-JMS, 2008 WL 4452460, at *3 (S.D.Ind. Sept. 30, 2008) (holding that a generalized policy such as subjective decision-making does not state a claim of disparate impact age discrimination or satisfy the requirement for a specific test, requirement, or practice) (citing City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536) (internal quotations omitted). In Watson v. Fort Worth Bank, the United States Supreme Court recognized that the disparate impact theory may apply to claims alleging discrimination based on an employer’s subjective decision making in a Title VII case. 487 U.S. at 989, 108 S.Ct. 2777. Nevertheless, the Court made clear that “an employer’s policy of leaving [termination] decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct.” Id.; see Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1292 (5th Cir.1994); Page v. U.S. Indus., Inc., 726 F.2d 1038, 1046 (5th Cir.1984). As the United States Supreme Court held in Wards Cove, a plaintiff may not “simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’ ” 490 U.S. at 656, 109 S.Ct. 2115 (quoting Watson, 487 U.S. at 994, 108 S.Ct. 2777) (emphasis added). A plaintiffs failure to identify the specific practice being challenged is the sort of omission that could “result in employers being potentially liable for ‘the myriad of innocent causes that may lead to statistical imbalances ....’” Wards Cove, 490 U.S. at 657, 109 S.Ct. 2115. See City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536. Additionally, policies can be facially neutral but applied in a discriminatory manner so that it impacts adversely on one group, and thus shows evidence of discrimination in disparate treatment cases. Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 827 (5th Cir. 1982). Plaintiffs’ Claims that Facially Neutral Policies Were Applied in a Discriminatory Manner In an attempt to specify a policy or procedure, Plaintiffs allege that managers or supervisors failed to follow TDMN’s policy, changed the policy, and applied TDMN’s RIF policy in a discriminatory manner. For example, Plaintiffs claim that the managers and supervisors (1) applied their own criteria to evaluate employees for the RIF; (2) violated Belo’s “no bumping” policy and disregarded the guidelines for position consolidations; (3) were inconsistent in using an employee’s proper performance evaluations; (4) added selective considerations to the selection process; (5) changed performance appraisal scores; (6) changed job titles so that some of the employees became a “class of one”; (7) used a “rubber stamp” approach to oversight of the RIF process; and (8) failed to conduct the required adverse impact analysis. (Pis.’ Resp. at 8-20.) Plaintiffs contend that managers or supervisors were implementing the Spitzberg instructions to “retain those employees who have demonstrated the most productivity, the greatest adaptability and/or versatility, and who possess the skill sets best suited to our projected work environment.” (Pis.’ App. 1054-55.) Judge Boyle dismissed as “not facially neutral” Plaintiffs’ disparate impact claim that was based upon defendants’ policy of “replacing managers over age 50 with managers at least 10 years younger and [creating] an environment in which managers made clear that they considered older employees to be lacking in passion, flexibility, and technical savvy, as well as lacking appeal to the ‘Newspaper of the Future’s’ target readers under age 40.” (Mem. Ord., doc. 30 at 21). For the same reason, Defendants are entitled to summary judgment. Plaintiffs’ purported discriminatory applications of the RIF policy are not facially neutral and are more properly considered as disparate treatment claims. With respect to the rejuvenation claim, Plaintiffs allege that Defendants “focused on hiring younger writers and editors to ‘rejuvenate’ the ‘Newspaper of the Future’; to create specific media products, including Quick, to appeal to readers under age 40; and hired and assigned younger writers and editors to work for that publication.” (Third Am. Compl. ¶ 62.) Plaintiffs Lofley, Ladach, and O’Leary testified in their depositions that they believed this alleged policy was intentionally discriminatory. (Defs.’ App. 966:17-967:4; 886:7-16; 1126:7-16.) An employer’s focusing on hiring younger “predominantly non-ADEA-protected employees” could constitute intentional discrimination and cannot serve as the basis for a disparate impact claim. Larkin v. State of Mich. Dep’t of Social Servs., 89 F.Sd 285, 289 (6th Cir.1996) (recognizing that “facially discriminatory actions are just a type of intentional discrimination or disparate treatment and should be treated as such”). The Court does not find that Plaintiffs allegations regarding “rejuvenation” set forth a facially neutral policy. Accordingly, Defendants are entitled to summary judgment on Plaintiffs’ disparate impact claim based upon a policy of rejuvenation. A court will not consider on summary judgment claims that are raised for the first time in response to a motion for summary judgment. See Dickerson v. United Parcel Service, Inc., 1999 WL 966430, *2 (N.D.Tex.1999). For this reason, the Court will not consider Plaintiffs’ belated attempt to support a disparate impact claim by arguing in response to Defendants’ Motion for Summary Judgment that Plaintiffs are not relying on the “RIF as a whole” for the first neutral policy or practice but “have only complained of the specific phase of the RIF in which the employees were evaluated under the Spitz-berg Memorandum criteria.” (Resp. to Mot. for Summ. J. at 40.) Moreover, even if the Court were to consider it, Plaintiffs make no attempt to isolate this “phase,” or the Spitzberg Memo’s impact, from the RIF termination selection process as a whole. Plaintiffs did not timely identify within the selection process for the layoff a specific measurable policy or practice responsible for purported statistical disparities. The broad claim of undue subjectivity in the RIF termination process is not a proper basis for a disparate impact claim in an ADEA case. Under Title VII, a plaintiff may challenge an overall decision-making process if it is not capable of separation for analysis; however, this exception is not permitted in ADEA cases. See City of Jackson, 544 U.S. at 241, 125 S.Ct. 1536. To the extent they are attempting to correct these deficiencies by claiming for the first time (in their response to summary judgment) that they are now relying on a certain “phase” or a certain “memo,” Plaintiffs’ disparate impact claims fail. They have not given Defendants sufficient notice of their disparate impact claims. The Court will now consider alternatively whether TDMN’s RIF policy was exclusively subjective. Whether the Summary Judgment Record Shows that TDMN’s RIF Policy Was Exclusively Subjective Alternatively, assuming subjectivity in a RIF termination process as a whole can be the basis of a disparate impact claim, such a claim can proceed only if the entire RIF process is entirely subjective. Durante v. Qualcomm, Inc., 144 Fed. Appx. 603, 605-607 (9th Cir.2005) (unpublished). Evidence that a RIF excessively, but not exclusively, relied on subjective criteria cannot be the subject of a disparate impact claim. Id. In this case, Plaintiffs do not even contend that the RIF was completely subjective. (Defs.’ Resp. at 38.) Plaintiffs set forth the following “evidence of the Policy, Process or Practice” to show that the RIF procedure was “overly subjective:” the RIF procedure required managers to rank employees without providing objective criteria or oversight because managers had the discretion to consider or ignore previous performance evaluations which themselves lacked adequate objective criteria. (Campion Dec., § 180, Pis.’ App. 0076-0078; Defs.’App. 3454.) TDMN specifically instructed decision-makers to rely primarily on objective factors such as past performance, raises, and disciplinary issues when they decided which positions to eliminate and which individuals to lay off. (Defs.’ App. 801:5-12; 1539-1564, 1516.) The deposed decision-makers testified they relied on prior performance evaluations, salary increases, and disciplinary infractions or reprimands. (Defs.’ App. 1967:5-19; 2027:18-24; 2245:7-2246:5; 17:24-18:6; 62:10-17*, 85:17-86:1; 137:23-138:11*; 120:6-121:5*; 806:l-4;444:14-24;453:3-15; 2488:5-10, 2120:9-20; 1970:10-20; 1263:3-5, 1268:4-10; 115:19-116:8*, 167:2-8*.) Additionally, they considered objective criteria not explicitly referenced in the RIF forms, such as measures of productivity, the number of stories published, and the employees’ skill sets. (Id.) Taking the facts most favorably to Plaintiff, even if some managers did not consider employees’ prior performances and two decision-makers failed to consider at least one of the four objective criteria, this does not show that the RIF process was entirely subjective or even overly subjective. Moreover, Plaintiffs’ complaint that Defendants failed to require managers to consider any objective factors when they decided to completely eliminate, rather than downsize or consolidate, positions in the RIF is not a proper basis for an age discrimination claim. Chapman, 2008 WL 2185389 at *7 (holding an employer’s decision to eliminate a job position in an economically driven RIF is a “legitimate, nondiscriminatory reason for terminating an employee”). The summary judgment record does not show that TDMN’s RIF policy was exclusively subjective. Plaintiffs disparate impact claim based upon undue subjectivity fails. The Court will now consider alternatively whether undue subjectivity cause a disparate impact on ADEA-protected employees. Whether the Summary Judgment Record Shows that Undue Subjectivity Caused a Disparate Impact on ADEA-Protected Employees Even if Plaintiffs had proved the first element of a prima facie case of disparate impact, they would need to present “statistical evidence of a kind and degree sufficient” to show that the specific identified practice caused an adverse employment action that disparately affected workers who were forty years of age and over forty. Collins-Pearcy, 698 F.Supp.2d at 741-42. Defendants contend that even assuming Plaintiffs may proceed with the