Citations
- 133 F. Supp. 3d 1034
Full opinion text
ORDER
HARRY S. MATTICE, JR., District Judge.
Before the Court are Defendant’s Motion in Limine to Preclude the Expert Testimony of Dr. Richard Tonowski (Doc. 102) and Plaintiffs Motion in Limine to Preclude the Expert Report and Opinion Testimony of Dr. David Griffin (Doc. 110). For the reasons discussed herein, the Court will DENY Defendant’s Motion (Doc. 102) and will GRANT IN PART and DENY IN PART Plaintiffs Motion (Doc. 110).
Also before the Court is Defendant’s Motion for Summary Judgment. (Doc. 93). For the reasons discussed herein, the Court will DENY Defendants’ Motion. (Doc. 93). Finally, Defendant’s Motion for Sanctions (Doc. 95) will be DENIED.
I. MOTIONS IN LIMINE
A. Background
On November 15, 2012, the EEOC filed this Age Discrimination in Employment Act (“ADEA”) action against Defendant Tepro, Inc. on behalf of a class of 25 former Tepro employees. (Doc. 1; see Doc. 105-2). The Complaint alleges that, in January or February 2009, Tepro began reclassifying employees in the protected age group — that is, those over the age of 40 — from “Tech II” to “Tech III” positions — sometimes through the use of false statements, coercion, or threats — and that this reclassification resulted in the reclassified employees losing their seniority dates and ultimately being laid off. The Complaint further alleges that, by the end of June 2009, more than 25 employees in the protected age group who had been reclassified as Tech III, as well as other Tech III employees in the protected age group, had been laid off. No employees outside of the protected age group were subject to the reclassification or lay off.
This case involves claims for disparate treatment in violation of the ADEA — spe-eifically, that Tepro engaged in a discriminatory workforce reduction. Both parties have offered statistical experts to offer opinions regarding Tepro’s employee reclassification efforts and reduction in force (“RIF”); each has now moved to have the other’s expert precluded from testifying as an expert. (See Docs. 102,110).
In the Sixth Circuit, when a workforce reduction is a factor in the decision to terminate, a plaintiff cannot establish its prima facie case “absent additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.1990); see also, e.g., Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 536-37 (6th Cir.2014); Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121, 1126 (6th Cir.1998) (noting that the typical fourth prong of the prima facie case — that the employee was replaced by someone outside the protected class or that similarly situated employees outside the protected class were treated more favorably — is supplanted in workforce reduction cases). “Appropriate statistical data showing an employer’s pattern of conduct toward a protected class as a group can, if unrebutted, create an inference that a defendant discriminated against individual members of the class” if the statistics “show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity.” Barnes, 896 F.2d at 1466. Thus, statistical evidence regarding Defendant Tepro’s workforce may be relevant evidence for Plaintiff to prove its prima facie ease of discrimination as to these former Tepro employees.
The parties presented argument at a hearing on their Motions on February 27, 2015. (Doc. 129). Both parties subsequently filed supplemental briefs with respect to Dr. Tonowski. (Docs. 131, 132). The parties’ evidentiary Motions are now ripe for the Court’s review.
B. Legal Standards
Each party seeks to exclude the expert testimony and/or reports of its opponent’s expert witness. The proponent of the expert evidence has the burden of establishing that the evidence is admissible. See Fed.R.Evid. 104(a); Donathan v. Orthopaedic & Sports Med. Clinic, PLLC, 2009 WL 3584263, at *20 (E.D.Tenn. Oct. 26, 2009). Such evidence is governed by Federal Rule of Evidence 702, which provides that a “witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.” Fed. R.Evid. 702; see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (noting that an expert is different from a lay witness and is accordingly “permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”). Additionally, under Rule 403, the Court has the authority to exclude any evidence as to which the “probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
An expert’s testimony may be admissible under Rule 702 if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed.R.Evid. 702.
The Supreme Court has clarified the language and scope of Rule 702, as well as the role of the district court in assessing the admissibility of expert testimony. In Daubert, the Supreme Court held that Rule 702 imposes an obligation upon district court judges to serve as “gatekeepers,” who “ensure that any and all scientific testimony ... is not only relevant, but reliable.” 509 U.S. at 589, 113 S.Ct. 2786. It noted that “[t]he subject of an expert’s testimony must be ‘scientific ... knowledge,’ ” clarifying that “[t]he adjective ‘scientific’ implies a grounding in the methods and procedures of science,” and that “the word ‘knowledge’ connotes more than subjective belief or unsupported speculation.” Id. at 589-90, 113 S.Ct. 2786.
The Court in Daubert noted that the relevance standard was “a liberal one” as defined in Rule 401. Id. at 587, 113 S.Ct. 2786 (“Relevant evidence is defined as that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”) (internal quotation marks omitted). The relevance consideration has been described as the “fit” requirement of Daubert — that is, the expert must “fit” the facts of the case into the principles and methodologies used to render his opinion. United States v. Smithers, 212 F.3d 306, 313, 325-26 (2000); see also, e.g., Galloway v. Big G. Exp., Inc., 590 F.Supp.2d 989, 997 (E.D.Tenn.2008) (finding methodology used by expert to be “sufficiently similar” to the facts of the case at hand to allow the expert’s opinion, noting that “[a]ny weaknesses in such an opinion caused by the differences ... may be addressed through cross-examination.”); Zuzula v. ABB Power T & D Co., Inc., 267 F.Supp.2d 703, 711 (E.D.Mich.2003) (noting that Daubert and Rule 702 require “that an expert’s opinion be based on a foundation grounded in the actual facts of the case, that the opinion is valid according to the discipline that furnished the base of special knowledge, and that the expert appropriately ‘fits’ the facts of the case into the theories and methods he or she espouses.”); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 152, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (noting that an expert’s testimony may be inadmissible if it does not “fit the facts” of the case).
The Daubert Court also refined the reliability standard, noting that all scientific testimony or evidence must have a reliable “foundation” or “basis in knowledge and experience in [the expert’s] discipline.” Id. at 592, 597, 113 S.Ct. 2786. The Court explained that, in assessing admissibility under these standards, courts should focus “solely on principles and methodology, not on the conclusions that they generate.” Id. at 595, 113 S.Ct. 2786; see also Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 675 (6th Cir.2010) (“The important thing is not that experts reach the right conclusion, but that they reach it via a sound methodology”); Best v. Lowe’s Home Ctrs., Inc., 563 F.3d 171, 176-77 (6th Cir.2009) (“Daubert attempts to strike a balance between a liberal admissibility standard for relevant evidence on the one hand and the need to exclude misleading ‘junk science’ on the other.”). Nonetheless, the Court is not required “to admit opinion evidence ... if “there is simply too great an analytical gap between the data and the opinion proffered.”” Joiner, 522 U.S. at 146, 118 S.Ct. 512.
Thus, when faced with a Daubert challenge, this Court must first make a threshold determination as to whether the expert is testifying as to scientific knowledge and that such knowledge will assist the trier of fact. Following this determination, the Court must assess the additional factors set forth in Daubert to determine whether the expert testimony or evidence is sufficiently reliable to be admitted. These factors include:
1) whether the expert’s scientific technique or theory can be, or has been, tested; 2) whether the technique or theory has been subject to peer review and publication; 3) the known or potential rate of error of the technique or theory when applied; 4) the existence and maintenance of standards and controls; and 5) whether the technique or theory has been generally accepted in the scientific community.
United States v. Beverly, 369 F.3d 516, 528 (6th Cir.2004) (citing Daubert, 509 U.S. at 592-95, 113 S.Ct. 2786); but cf. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (noting that reliability standards set forth in Daubert are “flexible” and that the listed “factors neither necessarily nor exclusively applies to all experts or in every case.”); see also In re Countrywide Fin. Corp. Mortgage-Backed Sec. Litig., 984 F.Supp.2d 1021, 1036 (C.D.Cal.2013) (“The Daubert standard does not exist to ensure that only the most ideal scientific evidence is admissible in court proceedings, but instead to ensure that expert testimony is derived by the scientific method.”) (internal quotation omitted). Additionally, the United States Court of Appeals for the Sixth Circuit has held that district courts should consider whether the “expert testimony [was] prepared solely for purposes of litigation, as opposed to testimony flowing naturally from an expert’s line of scientific research or technical work.” Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir.2007) (noting that testimony prepared solely for litigation should be “viewed with some caution”).
In making these determinations, the district court may not weigh the evidence; instead, as the gatekeeper, the district court’s authority is limited to determining the admissibility of the expert evidence. United States v. Stafford, 721 F.3d 380, 394 (6th Cir.2013). District courts have “considerable leeway” in making admissibility determinations regarding expert testimony. Baker v. Chevron U.S.A. Inc., 533 Fed.Appx. 509, 520 (6th Cir.2013); Tamraz, 620 F.3d at 672 (noting that district courts have broad discretion over the admissibility of expert testimony because “where one person sees speculation ... another may see knowledge.”).
However, as a general matter, “rejection of expert testimony is the exception, rather than the rule.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir.2008). If the expert evidence and/or testimony are not excluded, there are many tools a party seeking to discredit evidence may utilize, such as “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. Furthermore, if the evidence is deemed admissible by a court but is ultimately found “insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment.” Id.; see Fed.R.Civ.P. 50.
C. Defendant’s Motion to Exclude the Testimony of Dr. Tonowski
The EEOC has designated Dr. Richard Tonowski as an expert to testify regarding alleged statistical disparities in Tepro’s workforce before and after its layoffs; specifically, Tonowski opines that age-related statistical disparities exist in Tepro’s workforce before and after its reduction in force. Tonowski’s initial report and opinion includes six “exhibits,” which show the statistical data he used and the statistical analyses that he performed. (Doc. 103-1). Specifically, Tonowski examined data contained in spreadsheets produced by Te-pro during discovery in this case. (Id.). He opines that the results of Tepro’s RIF did not meet the general expectation for an RIF based on overall seniority — that is, time of employment with the organization — as the average age of Tepro’s workforce decreased, rather than increased, following its RIF. (Id. at 5-6). He also opines that older employees were overrepresented at statistically significant levels in the reclassification efforts, as well as the RIF; his analysis shows a less than 1 in 10,000 chance that the significant difference in the age of employees who were reclassified versus those who were not reclassified was the result of chance alone. (Id. at 7-10).
Defendant Tepro has moved to exclude Tonowski’s testimony pursuant to both Rules 104 and 702 of the Federal Rules of Evidence. (Doc. 102). In its Motion and accompanying memoranda, Defendant attacks Tonowski’s opinions in numerous ways. The Court notes as an initial matter that the parties have not disputed that Tonowski is a qualified expert and that he is testifying as to a matter of scientific knowledge — that is, statistics. Indeed, Defendant concedes that the general principles and methods used by Tonowski are valid. (See Doc. 111). Instead, Defendant Tepro disputes the relevance and/or reliability of Tonowski’s expert opinions and exhibits.
1. Disparate Impact
Defendant first argues that Tonowski’s opinions do not assist the trier of fact in understanding the evidence or determining any fact at issue to the extent that they support or discuss a disparate impact claim. (Doc. 103 at 9-10). Specifically, it argues that the EEOC’s Complaint fails to include a disparate impact claim and that Tonowski’s report and testimony are thus irrelevant to the extent that he discusses and analyzes the impact of Te-pro’s reclassification efforts and layoffs. (Id. at 10-11). It notes that Tonowski testified that the type of theory pursued by the EEOC did not play a role in his analysis and argues that he inappropriately “alternates” between analyses that are relevant to disparate impact claims and those that are not. (Id.). In Response, the EEOC argues that Tonowski is a qualified statistical expert, whose testimony is admissible to show Tepro’s pattern of discriminatory conduct against employees over the age of 40, thus establishing Plaintiffs prima facie case of disparate treatment on the basis of age. (Doc. 108 at 1, 5). At the Daubert hearing in this matter, the EEOC clarified that it has not sought to pursue a disparate impact claim and that it has no intention of doing so in the future. Nonetheless, it argues that no precedent supports Tepro’s argument that different types of statistical analysis or evidence are required for disparate treatment claims and disparate impact claims. (Doc. 108 at 13-14).
As to this point, the Court agrees with the Plaintiff and finds that Tonowski’s opinions about the impact of the reclassifications and RIF are admissible. “While ‘[flunctionally the disparate treatment and disparate impact models have different aims,’ the same statistical evidence is often relevant to both disparate treatment pattern and practice claims and disparate impact claims.” Moore v. Napolitano, 926 F.Supp.2d 8, 18-19 (D.D.C.2013) (quoting Segar v. Smith, 738 F.2d 1249, 1266-67 (D.C.Cir.1984)); see also Siegel v. Inverness Med. Innovations, Inc., 2010 WL 1957464, at *3 (N.D.Ohio May 14, 2010) (finding that disparate impact statistics were relevant to an analysis of Plaintiffs prima facie case of disparate treatment); Barnes, 896 F.2d at 1466 (applying disparate impact statistics to find that the plaintiff had proven a prima facie case of disparate treatment); Laugesen v. Anaconda Co., 510 F.2d 307, 317 (6th Cir.1975) (finding that statistics regarding employer’s retention and termination of employees by age were relevant in an individual discrimination case, and noting that the plaintiffs arguments against those statistics “go mostly to the weight to be accorded them, an issue for the jury”). - Thus, while the EEOC has not pursued a disparate impact claim, statistical evidence regarding the impact of Tepro’s reclassification efforts and RIF on older employees may still be relevant to the issue of whether “the employer singled out the plaintiff for discharge for impermissible reasons,” which is an essential element of Plaintiffs prima facie case. See Barnes, 896 F.2d at 1465. Thus, Defendant’s Motion to Exclude To-nowski’s testimony and opinions will be DENIED with respect to this argument.
%. Exhibits & Opinions
Next, Tepro argues that the opinions contained in Tonowski’s initial report are unreliable and irrelevant. Defendant challenges each of Tonowski’s “exhibits”— that is, each of his individual statistical analyses — separately. As to Exhibit 1, it argues that: (1) he failed to use the correct population of employees when conducting his analysis, by using Tepro’s entire workforce from 2008 through 2010, as opposed to only Tech III employees who were subsequently reclassified to Tech II status and as opposed to the population of employees only for the time periods relevant to the reclassification and RIF in 2009; (2) Tonowski made arbitrary assumptions regarding “expectations” for a reduction in force, rather than relying upon any actual facts of this case; (3) his analysis “is unreliable because analysis of the correct population and facts undermines the EEOC’s theory of the case”— specifically, that a comparison of the average ages of the Tech II and Tech III employees after reclassification and RIF show no significant age disparity; and (4) he failed to account for employees who voluntarily resigned or retired, or those who were terminated for reasons other than the RIF. (Doc. 103 at 11-16). Tepro further argues that Tonowski’s opinions contained in Exhibits 2 and 3 are not relevant because his analysis fails to consider the factors of employee choice regarding reclassification or nondiscriminatory explanations for any disparities, such as the differences in job duties between classifications and the physical abilities of various employees. (Id. at 16-19). Tepro also argues that Tonowski’s opinions in Exhibit 4 are inadmissible as they are not based on statistical analysis and reference “misleading” data. (Id. at 19-20). Specifically, Tepro argues that Tonowski has repeatedly “grouped” the reclassification and the RIF decisions together in conducting his analysis and has failed to analyze the percentage of employees in the Tech II and Tech III positions over the age of 40 before and after the relevant decision times. (Id. at 20-22). As to Exhibits 5 and 6, Tepro argues that Tonowski’s opinions and analysis are subject to the same relevance objections as his other exhibits, as he again used the wrong pool of data, the wrong dates, and failed to account for other factors impacting the reclassification and RIF. (Id. at 20-23).
Plaintiff responds that Tonowski’s statistical analysis is relevant because it shows significant age disparities associated with Tepro’s reclassification efforts and RIF and eliminates random chance as an explanation. (Doc. 108 at 11-12). Plaintiff argues that Tonowski used a proper employee population and accepted scientific analysis to reach his conclusions, and that all of his exhibits are relevant to Plaintiffs claims. It argues that Defendant is, in essence, attacking only Tonowski’s conclusions, rather than his methodology, and is seeking to exclude Tonowski’s testimony because it does not fit within Defendant’s version of the facts and theories of the case. Plaintiff further notes that factual disputes exist regarding the basis for seniority used for the RIF and regarding the voluntariness of the reclassification. (Id. at 12-18). The EEOC contends that Tepro’s arguments “at best, relate[] to the weight that should be afforded to Dr. Tonowski’s testimony, not to its admissibility.” (Id. at 1).
As to Tonowski’s specific exhibits, Plaintiff argues that Exhibit 1 is relevant and probative as to whether Tepro singled employees out based on age, given that To-nowski has found a statistical correlation between age and seniority and that seniority played a crucial role in Tepro’s RIF. (Doc. 108 at 14-15). Plaintiff argues that it was not improper for Tonowski to use the employer’s entire workforce as the population for his statistical analysis based on binding precedent from this Circuit and that he did not make any improper assumptions about hypothetical RIFs, but rather based his conclusion on proper correlation principles. (Id. at 15-17). It further argues that Exhibits 2 through 6 are relevant, as they (1) demonstrate that older employees were overrepresented in both the reclassification and the RIF; (2) further eliminate the possibility of the disparities being the result of random chance; and (3) demonstrate that every employee subjected to the RIF was over the age of 40. (Id. at 17-25).
The Court finds that Tonowski’s analysis and opinions — individually and as a whole — are admissible under Daubert. Tonowski examined data contained in spreadsheets produced by Tepro during discovery in this case. Tonowski’s analysis shows that the mean age of Tepro’s workforce declined after the RIF and that the maximum aged employee also declined. Based on his knowledge of statistical correlation, Tonowski opines that the data following Tepro’s RIF does not comport with the data that would be present after an RIF based on seniority — that is, time with the organization. He also opines that older employees were overrepresented at statistically significant levels in the reclassification efforts, as well as the RIF; his analysis shows a less than 1 in 10,000 chance that the significant difference in the age of employees who were reclassified versus those who were not reclassified was the result of chance alone.
Such opinions are relevant to the issue of whether a pattern of behavior by Te-pro existed that would allow the fact finder to draw an inference that Plaintiffs class of employees was targeted or singled out based on age. Specifically, his opinions are relevant to the factfinder’s consideration of whether Tepro created and implemented a systematic scheme of reclassifying older workers in order to justify terminating them through an eventual RIF. Tonowski’s statistical analysis and correlating conclusions that older employees were overrepresented in the reclassification efforts and RIF are relevant to whether the members of the Plaintiff class are entitled to an inference of age discrimination. Tonowski’s opinions and analysis are certainly relevant to the factual and legal issues at issue in this case under the “liberal” standard of Daubert, and the Court finds them to be reliably reached based on scientific standards and generally accepted statistical standards.
Defendant’s arguments for exclusion do not, at their core, relate to the relevance or reliability of Tonowski’s expert statistical opinions and analysis. Defendant’s arguments are flawed in that an expert’s opinion does not become irrelevant or unreliable simply because it fails to account for Defendant’s theory of the case. Instead, such arguments go to the weight and significance of those opinions, which is a factual matter for the jury to decide; Defendant remains free to challenge Tonowski’s statistical conclusions at trial, and it remains free to present other explanations for any disparities. The Court simply does not And Tonowski’s statistical analysis and related opinions to be so lacking in relevance or reliability as to render it the “exception to the rule” for exclusion of expert testimony. Accordingly, Defendant’s Motion to exclude Tonowski’s expert testimony and reports (Doc. 102) will be DENIED.
D. Plaintiffs Motion to Exclude the Affidavit and Opinion Testimony of Dr. Griffin
Tepro designated Dr. David Griffin as an expert to testify in response to Dr. Tonowski’s opinions. According to Griffin, he was asked by Tepro to review Tonowski’s report and its underlying materials and offer an opinion as to whether the “various studies described in that report answer two simple questions: (1) were age-protected employees in the Tech-II job statistically significantly more likely than their younger counterparts to have been reclassified to the Teeh-III job in January/February 2009?; and (2) were age-protected employees in the Tech-II and Tech-III jobs statistically significantly more likely than their younger counterparts to have been designated for layoff?” (Doc. 111-8 at 2).
Griffin has submitted an affidavit contending that Tonowski’s report answers neither question. Specifically, Griffin opines that Tonowski’s opinions and analysis are not relevant to this ADEA suit because he does not compare reclassification or layoffs “between the age-protected and non-protected employee groups” — that is, employees under and over 40 years of age. (Id. at 2-3, 7-8, 10-12). He argues that, if such analysis had been performed, it would have resulted in no significant disparity between older and younger employees using the “4/5s” or “80% Rule.” (Id. at 9, 12-14). Griffin contends that “age sub-group” analysis is not probative in ADEA cases because the data can be “mined” “in order to determine the particular point in the age distribution which maximizes the adverse disparity” between “older” and “younger” “employees.” (Id. at 4). He also offers several “hypotheti-eals” to demonstrate why average age comparisons are “unsuitable” for consideration in ADEA cases. (Id. at 4-5). Griffin opines that Tonowski’s exhibits which include employees from numerous job classifications are of no relevance to the claims at issue. (Id. at 7). He argues throughout that Tonowski erred in not considering voluntary choice as a factor in the reclassification. (See generally id.).
Plaintiff has moved to preclude Griffin’s testimony pursuant to Fed.R.Evid. 402, 403 and 702. (Doc. 110). Specifically, the EEOC contends that Griffin: (1) opines on disparate impact and the adverse impact ratio, which are not at issue in this disparate treatment case; (2) provides opinion statements that are contrary to Sixth Circuit case law; (3) opines on legal issues and engages in legal analysis; (4) attempts to resolve factual disputes; and (5) provides opinions that are speculative and lack the rigor required of an expert statistician, as he used no scientific methods or procedures to reach his conclusion, did not conduct any independent statistical analysis, and did not explain how his experience led him to his specific conclusions. (Doc. 111).
In Response, Tepro argues that, as a rebuttal expert, Griffin has no responsibility or requirement to perform independent statistical analysis. (Doc. 119). It argues that Griffin’s testimony is admissible and relevant to rebut Tonowski’s testimony and explain the flaws in Tonowski’s analysis. (Id.).
Rebuttal experts can properly “responde] to the content of [the original] expert witness’ report and opinions.” Express Energy Servs. Operating, L.P. v. Hall Drilling, LLC, 2015 WL 3743795, at *3 (E.D.Ohio June 15, 2015). However, rebuttal experts “cannot exceed the scope of simply responding” to the original expert’s testimony and opinions. Id.; see Fed.R.Civ.P. 26(a)(2)(D)(ii) (setting disclosure deadline for expert whose “evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party”); see also Campos v. MTD Prods., Inc., 2009 WL 2252257, at *10 (M.D.Tenn. July 24, 2009) (excluding plaintiffs rebuttal expert, in part, because his “rebuttal” was “simply an initial expert report” that did not specifically rebut information from the defense expert but rather, responded generally to the allegations of the defense).
The Court agrees with Tepro that Griffin is not required to conduct independent statistical analysis in his role as a rebuttal expert. Instead, Griffin’s rebuttal may properly respond to the scope of Tonow-ski’s original expert opinion and reports. As a general proposition, the Court believes that Griffin’s testimony is reliable and relevant to the issues in this action, and specifically, to the weight and credibility of Tonowski’s expert statistical analysis and opinions.
The Court, however, believes that portions of Griffin’s report may exceed the scope of simply responding to Tonowski’s expert opinions. Specifically, the Court takes- issue with Griffin’s use of “hypothetical” layoff scenarios as a means of challenging Tonowski’s analysis and opinions. Additionally, any testimony or opinions regarding a disparate impact claim are non-responsive to Tonowski’s expert report, as no such claim was discussed or analyzed therein (and indeed, no such claim exists in this action). Nonetheless, the Court finds that exclusion of Griffin’s testimony is unwarranted; Griffin is a qualified rebuttal expert who will be permitted to testify in response to Tonowski’s expert testimony, and any matters regarding the arguably excessive scope of Griffin’s rebuttal testimony can be adequately dealt with at trial through objections and rigorous cross-examination.
Notwithstanding the admissibility of Griffin’s rebuttal testimony, Plaintiff correctly notes that there are numerous flaws in Griffin’s affidavit. First, Griffin bases his attack on Tonowski’s statistical analysis in large part based on an assumption that Tepro’s version of the facts of this action is true or undisputed. Dr. Griffin also unequivocally states that it is “a fact,” and not simply his opinion, that Tonowski’s report does not demonstrate any statistical significance in age disparities for the reclassification and RIF. Additionally, Dr. Griffin’s report contains several conclusory statements of “fact” regarding disputed issues in this litigation (i.e., stating that “[ejmployees electing the reclassification option did so voluntarily,” when Plaintiff has challenged the voluntariness of the reclassification by alleging that employees were threatened or coerced into reclassification), although he concedes in his deposition that he has no independent knowledge of such facts. Further, Dr. Griffin frequently discusses legal standards, setting forth statements of law and concluding that Dr. Tonowski’s report and opinions do not comply with those legal standards. He even concedes in his deposition that his report, at times, offers “lay” opinions. Dr. Griffin’s report also contains numerous statements that cannot be classified as “expert” opinion and that appear to merely be an effort to insult and/or undermine Plaintiff and its expert (i.e., stating that “Dr. Tonowski and the EEOC should know better” and that certain conclusions of Tonow-ski’s are “misplaced if not disingenuous”).
Griffin may provide contrasting expert opinions to those provided by Tonowski, which account for additional factors that may have impacted Tepro’s decision making or affected the reliability of Tonowski’s analysis and conclusions. He may challenge the methodology utilized by Tonow-ski in reaching his conclusions. He may not, however, testify as to the truth of any factual matter. He also may not testify as to any legal standards or conclusions, as it is the sole province of the Court to instruct the jury on the state of the law. The Court also will not permit Griffin to offer non-expert opinions such as those identified above as potentially inflammatory. Such statements are not relevant to the jury’s consideration of the facts and would simply serve to prejudice the jury against Plaintiff and Dr. Tonowski. Accordingly, while the Court finds no basis upon which to exclude Griffin from testifying, the Court will exclude these improper portions of Griffin’s affidavit from consideration on summary judgment and at any trial of this matter, and Plaintiffs Motion (Doc. 110) will thus be GRANTED IN PART and DENIED IN PART.
E. Defendant’s Request to Exclude Tonowski’s Rebuttal Report
After Griffin’s report was filed, Tonowski offered a rebuttal report, in which he again opines that age was a statistically significant factor in Tepro’s reclassification efforts and layoffs. (Doc. 103-2). In response to Griffin’s criticism regarding age-seniority correlation based on date of hire, Tonowski calculates age-seniority correlation based on time in position, and opines that this analysis too demonstrates a correlated relationship between age and seniority. (Id. at 6). He also responds to numerous statements and opinions expressed in Griffin’s affidavit, arguing that Griffin’s views on the law and the facts of this case do not involve the application of statistical principles or methodology and thus do not undermine Tonowski’s statistical analyses and opinions. (Id. at 6-9). In response to Griffin’s argument that the only age group comparison that is meaningful in this ADEA action is that between employees over and under 40 years of age, Tonowski conducted an analysis of both the reclassification and the RIF based on these age groups. (Id. at 7-8). Tonowski notes that the conclusions in his expert report are not changed by these calculations, which he argues support his previous conclusions that age was a statistically significant factor in Tepro’s reclassification and RIF. (Id. at 8).
Defendant has requested that the Court exclude Tonowski’s rebuttal report because it “actually contains new opinions, rather than merely a rebuttal to Tepro’s report,” and because the report was provided after Tonowski’s deposition and after the discovery deadline in this action had passed. (Doc. 103 at 2 n. 4). Plaintiff argues that Tonowski’s report is a proper rebuttal, that Tepro has failed to identify any “new opinions” contained in the supplemental report, and that it was timely filed pursuant to Fed.R.Civ.P. 26(a)(2)(D)(ii). (Doc. 108 at 8-10). Defendant did not address Tonowski’s rebuttal report in its reply brief. (See Doc. 112).
“Federal Rule 26(a)(2)(B) requires parties to make mandatory disclosures about their experts.” Matilla v. S. Ky. Rural Elec. Co-op. Corp., 240 Fed.Appx. 35, 42 (6th Cir.2007). The Rule requires that a party’s retained expert furnish a written report containing “a complete statement of all opinions to be expressed and the basis and reasons therefor.” Fed. R.Civ.P. 26(a)(2)(B). In relevant part, Rule 26(a)(2), which governs expert disclosures, specifically provides a party with 30 days to disclose “evidence ... intended solely to contradict or rebut evidence on the same subject matter identified by another party.” Fed.R.Civ.P. 26(a)(2)(D)(ii). Indeed, the Sixth Circuit has noted that Rule 26 contemplates that an expert may “supplement, elaborate upon, [and] explain” his expert report. Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir.2006). However, “courts should not permit experts to testify as to a wholly new, previously unexpressed opinion.” In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 45 F.Supp.3d 724, 760 (N.D.Ohio 2014) (internal citation and quotation marks omitted).
The Court finds in this case that Tonow-ski’s rebuttal report does not include “wholly new, previously unexpressed opinions.” Rather, his second report is a proper and timely rebuttal to Griffin’s expert affidavit. Tonowski’s rebuttal report was filed within 30 days from the date that Tepro disclosed Griffin’s expert affidavit, which comports with Rule 26(a). Further, Tonowski does not express “new opinions” in his rebuttal report. Although he does offer several new statistical analyses, he does so solely to rebut claims and arguments made by Griffin regarding the correct correlation or age comparison groups. Ultimately, he reaffirms the conclusions in his original report regarding the statistical significance of age in Tepro’s reclassification and RIF efforts and merely argues that the analyses promoted by Griffin support, rather than undermine, those conclusions. Accordingly, the Court finds no reason to exclude Tonowski’s rebuttal report.
F. Conclusion
The parties have primarily used these Motions in Limine as vehicles to set forth their own theories of the case and the facts supporting those theories. There is clearly no “junk science” at issue. That the opposing party believes that different data should have been used, additional factors considered, or alternate conclusions reached does not render contrary expert opinions irrelevant and unreliable. Instead, it reinforces the importance of allowing both parties to present expert testimony, of allowing each party an opportunity to vigorously cross-examine the expert testimony offered by its opponent, and of allowing the finder of fact to weigh the credibility and opinions of both experts. In a case such as this one, the Court finds the extreme sanction of exclusion of expert testimony to be inappropriate. The Court concludes that the parties have not met their burden of persuading the Court that either expert must be excluded under the standards set forth in Daubert and its progeny. Accordingly, Defendant’s Motion in Limine (Doc. 102) will be DENIED, and Plaintiffs Motion in Limine (Doc. 110) will be DENIED IN PART and GRANTED IN PART, as detailed above.
II. MOTION FOR SUMMARY JUDGMENT
A. Background
For the purposes of summary judgment, the Court will view the facts in the light most favorable to Plaintiffs. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Tepro is a manufacturer of rubber products for the automotive industry. (Doc. 94-2). Tepro’s production process consists of two divisions: extrusion and finishing. (Id.). Finishing consists of cutting, debur-ring, molding, trimming, assembling, and packing. (Id.). Finishing employees were classified as “Tech II” or “Tech III” employees. Employees classified as Tech III were “responsible for the cutting, trimming, clipping, and packing of the final product.” (Id. at 1-2). Tech II employees perform all of the same functions as Tech III employees, but they perform the additional function of molding. (Id. at 2). Molding is a “fundamental step” in Tepro’s finishing process “and without it other production jobs ... would not exist.” (Id. at 1). Molding is “more physically demanding and requires additional skill and training”; therefore, Tech II employees are paid $0.67 more per hour than Tech III employees. (Id. at 2).
Tepro’s sales began to decline from 2006 to 2007 due to quality and production issues. (Id. at 2). In November 2007, Te-pro’s HR Division Manager, Debbie Faulkner, was asked to advise Tepro’s President, Takashi Tanabe, and Vice President of Administration, Pies “Buck” Castle, how many employees age 60 and over were currently employed at Tepro. (Doc. 105-3 at 5, 23). Faulkner advised Tanabe via email that Tepro had 34 employees aged 60 and above and that she had made a list of these employees. (Id.). Although Faulkner made a list detailing the names, dates of birth, and other information regarding these employees, she testified that Tanabe only asked for a number of employees; he did not ask her to create such a list, nor did he ask to see the list after she advised him that it had been created. (Id. at 5). In January 2008, Faulkner created another list of employees, listed by date of birth; she made a handwritten notation marking those employees currently over the age of 60 and another that stated “Stop! Those born in '48 will be 60 in 2008!” (Id. at 5, 24-26).
During 2008, Tepro’s sales decreased more drastically as a result of the great recession, which caused car sales to decline, which in turn affected automobile manufacturers and suppliers. (Doc. 94-2 at 2-3; Doc. 94-19 at 6). Specifically, the car manufacturer Nissan, which constituted 80 percent of Tepro’s business, experienced a reduction in sales, which caused a reduction in Tepro’s own sales. (Doc. 94-2 at 2-3; Doc. 94-19 at 4; Doc. 94-33 at 15).
As a result of Tepro’s decreased sales, Tepro instituted various cost savings measures, including shutting down the cafeteria, changing the company’s bonus structure, eliminating overtime, and reducing insurance benefits. (Doc. 94-2 at 3; Doc. 94-13 at 69, 74-76; Doc. 94-33 at 36). Salaried employees were also forced to take days off without pay. (Doc. 94-2 at 3; Doc. 94-13 at 73; Doc. 94-33 at 21, 35, 38-39).
These efforts, however, proved insufficient and Tepro determined that it needed to reduce its head count — that is, its number of employees. (Doc. 94-13 at 66, 70). First, Tepro reduced its number of temporary employees from over 100 to less than a dozen. (Id. at 72). After reducing temporary employees, Tepro began offering voluntary retirement and/or layoffs to its employees. Tepro’s January and February 2008 Monthly Reports contained a “Profitability improvement (proposal)” for February and March, with certain goals under Faulkner’s responsibility. (Doc. 105-6 at 3; Doc. 105-7 at 5). It included reduction of approximately 18 low-performing employees and reduction of approximately 12 “elderly direct employees (older than 60),” through proposed voluntary retirement. (Id.; Doc. 105-3 at 8). Indeed, in February 2008 Tepro began offering a voluntary retirement program to those employees age 60 and over. (Doc. 105-3 at 7, 27-28). Tepro’s monthly reports noted that, as of February 22, nine elderly employees had agreed to voluntary retirement under the program. (Doc. 105-6 at 3; Doc. 105-7 at 5). According to Faulkner, approximately 40 people ultimately accepted voluntary layoff or retirement, including at least 10 employees under the age of 40. (Doc. 94-2 at 4).
In May 2008, Tanabe requested that Faulkner prepare an “EEO Job Group Analysis by Age.” (Doc. 105-3 at 10, 29-32). This document shows, for each of calendar years 2006 through 2008, the age distribution of employees in particular positions within the company (i.e., during each year, how many of Tepro’s technicians, engineers, executives, etc. were under 30 years old, between 30 and 40 years old, between 40 and 50 years old, between 50 and 60 years old, between 60 and 65 years old, and over 65 years of age). (Id. at 29-32).
During 2008, Tepro’s sales forecast continued to decline. (See id. at 9). In October 2008, Faulkner again advised all employees that Tepro was offering early voluntary retirement and voluntary layoffs before the company was forced to implement any mandatory layoffs. (Id. at 33).
Tepro’s employee handbook provides that “length of service is one of many factors which [it] consider^] when making decisions regarding ... layoffs.” (Doc. 94-13 at 156). The handbook provides the following definitions regarding length of service:
Length of service at TEPRO is based on two factors: Your time since employ1 ment by TEPRO and you[r] time since assignment to a new job position.
Upon completion of your introductory period (90 days), your length of service is the date that you first worked at TEPRO as a regular, full-time employee.
(Id.). The handbook also provides as follows:
In the unlikely event of a reduction in work force, normally those employees with the shortest term of employment will be affected first. The reorganization for the remaining positions will be in response to production requirements, overall company needs, and with regard for length of service in position so far as is practical.
If there is a need to make reductions in a particular work group ..., the reduction' may be made without regard to length of continuous service.
(Id. at 166). •
Around this same time in late 2008, a Tech II employee complained to Faulkner that she knew that another employee was being paid the same hourly rate despite the fact that the other employee did not mold, while the complaining employee did mold. (Doc. 94-2 at 4). Faulkner investigated the complaint and determined that “many employees [were] receiving the Tech II molding pay who were not molding”; in essence, she discovered that some employees were actually Tech III employees because they did not mold but they were nonetheless being compensated as Tech II employees. (Id.; Doc. 94-13 at 98; Doc. 94-33 at 81-82). According to Faulkner, Tepro “did not want to pay employees for work they were not performing, particularly in the troubling economic climate.” (Doc. 94-2 at 4).
After Faulkner discussed the situation with Manufacturing Division Manager Jon Tate, Tate determined that a form would be prepared and disseminated to all Tech II employees. (Id.; Doc. 94-33 at 76-77, 81, 83-84). Specifically, the form provided Tech II employees two options: (1) the employee could choose to perform molding work and remain classified a Tech II employee at his or her current salary level or (2) he could choose to not perform molding work, being reclassified as a Tech III, and accept the salary reduction commensurate with that reclassification. (Doc. 94-33 at 78-79). According to Tate, Tech IIs who chose not to reclassify to Tech III positions would be required to train to mold, if they did not already know how to mold. (Id. at 88-91). Tepro had not hired anyone into the Tech III position for a number of years before the reclassification began. (See Doc. 105-3 at 13; Doc. 105-4 at 2).
The forms were distributed in January 2009; the form was discussed with each employee, and Tate received numerous questions from employees. (Doc. 94-33 at 83-85). Tate testified that the form itself discussed the decreased pay resulting from the reclassification, but he did not instruct his managers to discuss seniority with the finishing employees. He did, however, confirm that the managers and supervisors who distributed the forms to the finishing employees should have known that reclassification from Tech III to Tech II could cause some employees to lose their seniority. (Id. at 101-02).
When Faulkner reviewed the forms, she found that 150 employees chose to be Tech II employees and perform molding functions. (Doc. 94-2 at 4-5). Of the 150 employees who chose to be Tech II, at least 102 were over the age of 40; all 48 employees under the age of 40 chose to be Tech II. (Id. at 4-5). Therefore, there were no Tech III employees under the age of 40 after the reclassification. Forms were returned for 29 employees — all over the age of 40 — indicating a desire to “step down” into the Tech III classification so that they would not have to mold. (Id. at 4).
Included in this group were the claimants in the instant case, who, at the time, ranged in age from their early 40s to their mid-60s:
Name_Date of Birth
Myrtle Breccia July 18,1957
Harvey Brewer December 17,1944
Karen Burch May 14,1961
Charlotte Childress September 25, 1945
Kojeana Cole May 20,1956
James Davis September 5,1945
Maria Esparza May 25,1959
Brenda Farries October 21,1954
Jeana Gattis July 6,1962
Sandra Kelley August 7,1953
Tina Kennerly October 4,1961
Vera Knox August 15,1954
Kathleen Matthews August 5,1951
James Miller September 13, 1957
Kay Mitchell December 13,1957
Williams Parsons April 20,1943
Debra Prance March 20,1966
Doris Prince January 5,1948
Lisa Pryor March 27,1962
George Rogers October 12,1947
Ida Stovall July2,T950
Anita Tate January 20,1950
Rosa Tinoco October 11,1954
JoAnn Wiley September 24, 1955
Ella Wilkerson November 19,1945
The parties dispute whether the claimants voluntarily accepted or chose reclassification. The majority of the claimants testified that they were not advised that that the reclassification would affect their seniority or length of service, and that, if they had known that reclassification would affect their seniority or subject them to a layoff, they would have chosen to mold instead of choosing to be reclassified. (See Docs. 105-5, 105-14 through 105-37). Only Stovall testified that she was told that those who chose not to mold would lose seniority. (Doc. 105-33 at 3). Kelley testified that she was specifically told that that her seniority would not be affected by the classification and that she would not be laid off if she accepted reclassification; Kennerly testified that she was told that her job would not be in jeopardy if she became a Tech III employee. (Doc. 105-22 at 4; Doc. 105-23 at 5). Eleven of the claimants testified that they felt in some way pressured, forced, or manipulated into signing the form; however, in some of these instances, the claimants testified that they felt coerced or pressured into molding — that is, remaining Tech II employees — rather than feeling coerced or pressured to accept reclassification. (See Doc. 105-16 at 4; Doc. 105-17 at 3; Doc. 105-18 at 2-3; Doc. 105-21 at 10, 13; Doc. 105-22 at 6; Doc. 105-23 at 3-4; Doc. 105-26 at 1-2; Doc. 105-29 at 2; Doc. 105-31 at 5-6; Doc. 105-36 at 7; Doc. 105-37 at 3). However, numerous claimants testified that they made their own choice with respect to reclassification and that they were not encouraged, coerced, or threatened into reclassifying as a Tech III employee. (Docs. 105-15 at 3; Doc. 105-19 at 3; Doc. 105-20 at 3; Doc. 105-23 at 3; Doc. 105-28 at 2; Doc. 105-31 at 3; Doc. 105-34 at 3; Doc. 105-36 at 5).
Sometime in late 2008 or early 2009, Tepro determined that it would permanently layoff at least 30 employees by the end of March 2009; by early March, Tepro determined that it would be necessary to reduce its workforce by at least 40 employees. (Doc. 105-9 at 2-3; Doc. 105-10 at 6; see Doc. 94-33 at 128-31). Tate testified that, while he was instructed to eliminate a certain number of employees by Castle, Tate himself made the ultimate decision of “what group we were going to pull from” to accomplish the workforce reduction. (Doc. 105-4 at 6). During this time, someone at Tepro created a spreadsheet of Tepro’s Tech II and Tech III employees. (Doc. 105-3 at 11-12, 35-44). This list included only the name, department, job classification, and age for each employee.
Tate ultimately decided to reduce Te-pro’s Tech III workforce, based on seniority within the Tech III position because eliminating Tech III employees would cause the least hurt to the company as a whole. (Id. at 10-11, 13).- Tate based the layoff decision on the employees’ seniority within -the Tech III classification. (Doc. 94-33 at 54, 141, 143, 168-69).
In late March 2009, 16 of the current claimants — that is, Breccia, Cole, Esparza, Kennerly, Knox, Matthews, Mitchell, Parsons, Prance, Prince, Pryor, Rogers, Sto-vail, Tate, Tinoco, and Wiley — were called into small group meetings with Tate and Faulkner to be informed that they were being laid off because Tepro needed to reduce its workforce; Wilkerson was terminated several weeks later. (Doc. 105-2; Doc. 105-4 at 7, 13; see Doc. 105-3 at 17-18). The employees were “shocked” and at least one employee became angry and called Tate a “liar.” (Doc. 105-4 at 13; Doc. 105-3 at 17-18).
Another round of layoffs took place in late June 2009, wherein Brewer, Burch, Childress, Davis, Farris, Gattis, and Kelley were terminated. (Doc. 105-2; Doc. 105-4 at 8). Tate does not recall how the decision to do a second round of layoffs was made, but stated that the reason was the same as the March layoffs — that that sales continued to decline — and confirmed that he was again the person who selected who would be subject to the reduction. (Doc. 105-4 at 8-11). He again selected Tech III employees, for the same reason he selected them for the March layoff — namely, that he believed that eliminating these employees would cause the least amount of harm to the company as a whole. (Id. at 10-13). According to Faulkner, Miller was supposed to be a part of the June 2009 layoffs, but “due to a clerical error, he was not.” (Doc. 105-13; Doc. 94-2). Because he had less seniority than other employees who were laid off in June 2009, Faulkner terminated Miller when she discovered the error in January 2010. (Id.). According to Faulkner, Miller acknowledged that he should have been laid off sooner. (Id.).
In total, 35 Tech III employees were laid off, with 3 additional Tech III employees electing voluntary layoff or retirement. (Doc. 94-2 at 6). Tepro retained five Tech III employees, who ranged in age from 45 to 62 years old. (Id.). According the Faulkner, laying off Tech III employees “by date of employment [rather than seniority within classification] would not have made a difference,” and the 35 Tech III employees laid off in March and June 2009 would still have been laid off. (Doc. 94-2 at 8).
A total of nine charges of discrimination were filed against Tepro with the EEOC in late 2009 and early 2010, including those by Burch, Brewer, and Miller. (Doc. 94-2 at 7). Robert Trail was assigned to investigate the charges on behalf of the EEOC, and EEOC attorney Mark Chen was also involved in the witness interviews. (Id.). In late 2010, the EEOC issued determination letters indicating that there was reasonable cause to believe that the charges against Tepro were true. (Id.).
The EEOC then issued conciliation agreements on behalf of 55 former Tepro employees; this group included Castle (who, by then was the former Vice President of Tepro), hourly production employees, those who took voluntary retirement or layoff, those subject to the RIF and those who were terminated for performance reasons; a separate ’ conciliation agreement was submitted for Miller. (Id. at 7). The EEOC’s total demand exceeded 5 million dollars, and it requested a response from Tepro within 7 days. (Id.). According to Faulkner, Tepro asked to meet with the EEOC because she “did not understand the class the EEOC was addressing.” (Id.). However, the EEOC denied the request for a meeting, and the Tepro received notice on September 24, 2010 that conciliation had failed; Tepro later received a separate conciliation failure notice as to Miller. (Id.). The EEOC then instituted the instant lawsuit on November 15, 2012. (Doc. 1).
B. Summary Judgment Standard
Federal Rule of Civil Procedure 56 instructs the Court to grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). As previously noted, when ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir.2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmov-ing party’s case.” Id. at 325, 106 S.Ct. 2548. Where the movant has satisfied this burden, the nonmoving party cannot “rest upon its ... pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009) (citing Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; Fed.R.Civ.P. 56). The non-moving party must present sufficient probative evidence supporting its claim that disputes over material facts remain and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505 (citing First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)); see also White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475-76 (6th Cir.2010). A mere scintilla of evidence is not enough; there must be evidence from which a jury could reasonably find in favor of the non-moving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Moldowan, 578 F.3d at 374. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
C. Analysis
Under the Age Discrimination in Employment Act (“ADEA”), employers are prohibited from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a). A plaintiff may establish a violation of the ADEA by offering either direct or circumstantial evidence. Blizzard v. Marion Tech. College, 698 F.3d 275, 283 (6th Cir.2012). “The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir.2010) (citation and internal quotation marks omitted).
Defendant has moved for summary judgment as to Plaintiffs ADEA claims. (Doc. 93). Defendant argues that: (1) Plaintiff has no direct evidence of discrimination; (2) Plaintiff cannot meet its burden of establishing a prima facie case of discrimination under the McDonnell Douglas analysis because it did not show that Te-pro treated similarly situated younger employees more favorably or that age was the “but for” reason for the termination of the class employees; and (3) even if Plaintiff can demonstrate a prima facie case, it cannot establish that Defendant’s legitimate nondiscriminatory reason for the layoffs were pretext for age discrimination. (Doc. 94 at 23-34). Defendant further argues that several individual class members should be dismissed because they either were not subject to the RIF or because their testimony demonstrates that age was not the “but for” reason for their termination. (Id. at 34-35). Finally, Defendant presents two affirmative defenses, arguing (1) that Plaintiffs action is barred by the doctrine of laches, and (2) that Plaintiffs claims should be dismissed because it failed to conciliate the claims in good faith. (Id. at 35-38).
In Response to Defendant’s Motion, Plaintiff has alleged that it has both direct and circumstantial evidence supporting its ADEA claims. (Doc. 105 at 20-36). It further argues that genuine issues of material fact remain as to whether Tepro’s layoffs were a pretext for unlawful age discrimination. (Id. at 36^46). Plaintiff also argues that Tepro’s arguments regarding the individual class members and its affirmative defenses are wholly lacking in merit. (Id. at 46-52).
The Court will address Plaintiffs argument that it has presented direct evid