Paluck, Vicki G. v. Gooding Rubber Co ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3703
VICKI G. PALUCK,
Plaintiff-Appellant,
v.
GOODING RUBBER COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2564--Harry D. Leinenweber, Judge.
Argued April 6, 2000--Decided July 26, 2000
Before POSNER, Chief Judge, and FLAUM and RIPPLE,
Circuit Judges.
RIPPLE, Circuit Judge. Vicki Golden Paluck was
employed by the Gooding Rubber Company
("Gooding") from November 1987 until her
termination in January 1997. Ms. Paluck alleges
that she was terminated in violation of Title
VII, 42 U.S.C. sec. 2000e et seq., as retaliation
for filing a sexual harassment complaint against
her supervisor. Further, she claims that she was
terminated because of her age, in violation of
the Age Discrimination in Employment Act
("ADEA"), 42 U.S.C. sec. 12101 et seq. The
district court granted Gooding’s motion for
summary judgment, and she now appeals. For the
reasons set forth in the following opinion, we
affirm the judgment of the district court.
I
BACKGROUND
A.
Vicki Golden Paluck began her career at Gooding
in 1987 as a purchasing clerk. She worked at the
company’s facility in LaGrange, Illinois./1 In
1991, she became a receptionist, and in 1992 she
became an administrative assistant/executive
secretary. She worked primarily for three Gooding
executives: John Mork, Kim Heis, and David
Lawrence. Ms. Paluck admits that, during her
employment with Gooding, she had some attendance
problems and that Mork and Heis repeatedly spoke
to her about her tardiness and her unproductive
use of time.
In January 1996, Heis, Gooding’s Operations
Manager, met with Ms. Paluck and rescinded a
raise he had given her the previous April. In
rescinding the raise, he told Ms. Paluck that he
did not think that her performance had improved
and, further, that he thought she had been making
more personal phone calls than before. That same
day, Heis also reduced the salary of Paulette
Miles, a coworker of Ms. Paluck’s. Ms. Paluck and
Miles believed that Heis’ actions were an effort
to induce them to leave Gooding because they were
aware of Heis’ alleged affair with another
employee.
Less than 10 days later, Ms. Paluck and Miles
requested a meeting with Mork, the company
president, to allege sexual harassment by Heis.
In response to the request, Mork met with Ms.
Paluck and Miles separately. Ms. Paluck and Miles
alleged that Heis frequently made vulgar comments
and used sexually explicit language. The January
1996 meeting was the first time Ms. Paluck had
raised allegations of sexual harassment, although
the incidents she cited dated back as far as
1989. Mork told Ms. Paluck that he would
investigate her complaints. He then spoke to Heis
about his conduct, and Heis responded with a
memorandum defending himself.
Mork later summarized his findings regarding the
allegations against Heis in a February
memorandum. In his memorandum, he determined that
some of Heis’ statements were inappropriate and
that some had been misinterpreted. Mork
reinstated Ms. Paluck to her previous pay level,
and also took her off of the probation on which
Heis had placed her. Mork also listed three
"[d]isciplinary actions" taken against Heis: he
was to cease the actions and comments alleged by
Ms. Paluck and Miles; he was to become "more
sensitive to the feelings of others" and to
"refrain from making inappropriate comments or
statements that can be misconstrued"; finally, he
was warned that "[i]f any harassment occurs in
the future additional disciplinary measures will
be taken." R.37, Ex.3. Mork also wrote that Ms.
Paluck would report directly to him and that he
would handle performance reviews, although she
would still report to Heis when Mork was out of
the office. Mork also spoke to Ms. Paluck and
told her that he would continue to meet with her
to follow up on her complaints, but she now
claims that he did not follow through on this
promise.
Miles voluntarily resigned on March 8, 1996. On
March 15, she was replaced by a woman named Tracy
Herring. Ms. Paluck says that she and Herring
frequently shared duties in the office.
In October, Mork informed the clerical staff
that he would be out of the office a great deal
and that they should report to Heis in his
absence. After Mork’s announcement, Ms. Paluck
expressed to Mork her reservations about working
closely with Heis. In November, Heis sent Ms.
Paluck a memorandum, copied to Mork, expressing
concern with Ms. Paluck’s attendance and with the
amount of time she spent on personal phone calls.
Ms. Paluck’s written response acknowledged
problems with her attendance and tardiness but
indicated her belief that she was being treated
unfairly. In that response she also asked if
Heis’ memo was a written warning and if she
should expect further disciplinary action. In a
reply memorandum, Heis reiterated his concerns
about Ms. Paluck’s performance. He further
confirmed that his first memorandum had been a
written warning and that management retained the
discretion to commence disciplinary action.
Soon thereafter Gooding suffered a financial
blow. One of Gooding’s largest clients was United
States Steel ("USX"). Gooding had contracts to
provide two product lines to USX, hoses and
conveyor belts. Mork and other Gooding employees
met with USX representatives in December. On
January 2, 1997, USX informed Mork that it would
no longer purchase hoses from Gooding. Mork then
sent a memo to employees stating that "the long
association between Gooding Rubber Company and
USX is ending." R.37, Ex.9. Gooding continued to
supply USX with conveyor belts. However, its
sales to USX dropped from approximately $1.6
million in 1996 to $650,000 in 1997.
On January 3, Gooding terminated Ms. Paluck’s
employment. At the time she was 41 years old.
Mork wrote a memorandum for Ms. Paluck’s
personnel file that read, "Effective today, Ms.
Golden [Paluck] was layed [sic] off. The reason
for this action is because of the loss of a
significant customer and lower than expected
revenues in 1996." R.37, Ex.10. Gooding
subsequently laid off several other employees,
although it retained Herring, then 26 years old,
who took over at least some of Ms. Paluck’s
duties.
B.
Ms. Paluck then brought this lawsuit. In her
complaint, she alleges that Gooding violated
Title VII by terminating her in retaliation for
her sexual harassment complaints against Heis.
Further, her complaint alleges that Gooding
discriminated against her because of her age, in
violation of the ADEA, when it chose to terminate
her and retain Herring.
At the close of discovery in the district court,
the court set a briefing schedule on Gooding’s
motion for summary judgment. After Gooding filed
its motion, Ms. Paluck responded and also filed
her own motion for summary judgment. The district
court struck Ms. Paluck’s motion for summary
judgment as untimely filed. The district court
then granted Gooding’s motion for summary
judgment. It determined that Ms. Paluck had not
made out a prima facie case of retaliatory
discharge because she could not show that her
discharge was caused by her engagement in
protected activity. Further, it concluded that,
even if she had made a prima facie case of
retaliatory discharge, she had not demonstrated
that Gooding’s stated reason for her discharge
was pretextual. The district court also granted
summary judgment for Gooding on Ms. Paluck’s age
discrimination claim, determining that she had
failed to show that a similarly-situated younger
employee had been treated more favorably./2
II
DISCUSSION
We review de novo the district court’s grant of
summary judgment for Gooding. See Williams v.
Chartwell Fin. Servs., 204 F.3d 748, 752 (7th
Cir. 2000); Tobey v. Extel/JWP, Inc., 985 F.2d
330, 332 (7th Cir. 1993). In doing so, we view
the record in the light most favorable to Ms.
Paluck, drawing all reasonable inferences in her
favor. See Krocka v. City of Chicago, 203 F.3d
507, 513 (7th Cir. 2000); Boulahanis v. Board of
Regents, 198 F.3d 633, 636 (7th Cir. 1999), cert.
denied, 120 S. Ct. 2762 (2000). Summary judgment
is appropriate only when no genuine issue of
triable fact exists regarding a material issue.
See Williams, 204 F.3d at 752; Krocka, 203 F.3d
at 513.
A. Title VII
Because she has presented no direct evidence of
discrimination, Ms. Paluck’s claim of retaliatory
discharge under Title VII must proceed under the
burden-shifting method set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, Ms. Paluck must make a prima facie case of
retaliatory discharge. The prima facie case
includes three elements: (1) that she engaged in
statutorily-protected expression by complaining
about discrimination covered by Title VII; (2)
that she suffered an adverse job action; and (3)
that there is a causal link between the protected
expression and the adverse job action. See Miller
v. American Family Mut. Ins. Co., 203 F.3d 997,
1007 (7th Cir. 2000); Sauzek v. Exxon Coal USA,
Inc., 202 F.3d 913, 918 (7th Cir. 2000). After a
prima facie case has been made, the employer, to
avoid liability, is obligated to produce a
legitimate, non-retaliatory reason for the
dismissal. See Sanchez v. Henderson, 188 F.3d
740, 746 (7th Cir. 1999), cert. denied, 120 S.
Ct. 1201 (2000). Once the employer has produced
its legitimate reason, the employee, to succeed
in her claim, must rebut the employer’s proffered
reason by demonstrating that it is a mere pretext
for discrimination. See Miller, 203 F.3d at 1007;
Sanchez, 188 F.3d at 746.
Gooding contends that Ms. Paluck has failed to
make out a prima facie case because she cannot
show that her protected conduct, making an
allegation of sexual harassment against Heis,
caused her termination. Ms. Paluck, however,
points to two considerations that she claims show
the requisite causation: (1) the timing of her
termination, and (2) the reception by Mork (the
decision-maker) of copies of Heis’ memoranda
criticizing her work. We address each of these
matters in turn.
1.
Ms. Paluck believes that the timing of her
firing gives rise to an inference of
discrimination. It is true that the timing of an
employee’s discharge may be circumstantial
evidence of a retaliatory motive. See Stagman v.
Ryan, 176 F.3d 986, 1001 (7th Cir. 1999), cert.
denied, 120 S. Ct. 446 (1999); Hunt-Golliday v.
Metropolitan Water Reclamation Dist., 104 F.3d
1004, 1011 (7th Cir. 1997). However, in order to
support an inference of retaliatory motive, the
termination must have occurred "fairly soon after
the employee’s protected expression." Davidson v.
Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th
Cir. 1998). Here, the protected expression, Ms.
Paluck’s sexual harassment complaint, occurred
nearly a full year before her termination. That
interval, standing alone, is too long for the
timing of Ms. Paluck’s firing to raise an
inference of discrimination. See Adusumilli v.
City of Chicago, 164 F.3d 353, 363 (7th Cir.
1998) (eight month interval too long), cert.
denied, 120 S. Ct. 450 (1999); Davidson, 133 F.3d
at 511 (five months); Juarez v. Ameritech Mobile
Communications, Inc., 957 F.2d 317, 321 (7th Cir.
1992) (six months). Of course, the fact that a
year passed between Ms. Paluck’s protected
expression and her termination does not mean that
she cannot prove that retaliation caused her
discharge; instead, it means that the timing of
her discharge, in itself, does not support an
inference of retaliation, and she must come
forward with other evidence. See Davidson, 133
F.3d at 511; Veprinsky v. Fluor Daniel, Inc., 87
F.3d 881, 891 n.6 (7th Cir. 1996).
Ms. Paluck claims, however, that there is
another dimension to the timing of her discharge
that supports her claim of discrimination: she
was terminated the day after Gooding announced
its loss of business from USX. She was the first
employee to be terminated after the announcement,
and, she claims, Gooding was "just waiting for an
excuse" to fire her. Appellant’s Br. at 22. We
believe that this assertion adds nothing
significant to her argument that the timing of
her discharge is suspicious. In considering
whether the timing of an adverse employment
action gives rise to an inference of
discrimination, the critical inquiry is, as we
have just noted, the time lapse between the
adverse action and the protected expression. See
Davidson, 133 F.3d at 511; McClendon v. Indiana
Sugars, Inc., 108 F.3d 789, 796-97 (7th Cir.
1997); McKenzie v. Illinois Dep’t of Transp., 92
F.3d 473, 485 (7th Cir. 1996). At the time of her
dismissal, her protected action had occurred
almost a year earlier. We thus decline to infer
retaliatory motive from the timing of Gooding’s
actions against her.
Ms. Paluck further submits that the timing of
her firing is suspicious because it came shortly
after she was returned to Heis’ supervision. This
argument, however, is not based on an entirely
accurate portrayal of the record. Ms. Paluck was
not returned to Heis’ supervision in October.
When Mork wrote his February 1996 memorandum
summarizing the "[d]isciplinary action" against
Heis, he nonetheless informed all parties that in
his absence, Ms. Paluck would report to Heis.
R.37, Ex.3. In October, Mork informed the office
staff that "he would be out of the office a great
deal, and that they should all report to Heis in
his absence." Appellant’s Br. at 9. Thus, the
record reflects that at all times after she filed
her sexual harassment complaint, Ms. Paluck
reported to Mork. Ms. Paluck, along with the rest
of the office staff addressed in Mork’s
directive, simply reported to Heis when Mork was
out of the office. There is no contention that
Heis, the company’s operations manager, was not
the individual to whom it might be expected that
general responsibility for the office staff would
be delegated in Mork’s absence.
2.
We next consider whether any reliance by Mork on
Heis’ memoranda criticizing Ms. Paluck’s
performance raises an inference of
discrimination. Normally, statements by a
nondecisionmaker do not satisfy a plaintiff’s
burden of proof in an employment discrimination
case. See Eiland v. Trinity Hosp., 150 F.3d 747,
751 (7th Cir. 1998); Larimer v. Dayton Hudson
Corp., 137 F.3d 497, 500 n.4 (7th Cir. 1998).
However, if a manager with a retaliatory motive
is involved in the decision to terminate an
employee, that retaliatory motive, in some
circumstances, may be imputed to the company,
even if the manager with a retaliatory motive was
not the ultimate decisionmaker. See Dey v. Colt
Constr. Co., 28 F.3d 1446, 1459 (7th Cir. 1994)
(collecting cases).
We assume for purposes of the following
discussion that Mork did rely on Heis’ memoranda.
Nevertheless, we do not think that, on this
record, any desire for retaliation on Heis’ part
may be imputed to Gooding because of Heis’
memoranda. In Heis’ memoranda, he made two
allegations about Ms. Paluck’s behavior: that she
had problems with attendance and tardiness, and
that she spent too much time on personal phone
calls. In Ms. Paluck’s response to Heis’ charges
against her, she conceded that his first
allegation was accurate, and she did not rebut
his second allegation. In this court, she does
not deny the truth of Heis’ allegations. Ms.
Paluck’s filing of a discrimination complaint
does not prevent her employer from issuing
written charges against her when her conduct
warranted disciplinary action. See Glover v.
South Carolina Law Enforcement Div., 170 F.3d
411, 414 (4th Cir. 1999) ("[E]mployees [may not]
immunize improper behavior simply by filing [a
discrimination] complaint. . . . Employers
retain, as they always have, the right to
discipline or terminate employees for any
legitimate, nondiscriminatory reason."), cert.
denied, 120 S. Ct. 1005 (2000); Brown v. Ralston
Purina Co., 557 F.2d 570, 572 (6th Cir. 1977)
("[A discrimination] complaint creates no right
on the part of an employee to miss work, fail to
perform assigned work, or leave work without
notice."). Because it is undisputed that Ms.
Paluck’s actions justified disciplinary measures,
we do not think a discriminatory motive
reasonably may be inferred from Heis’ taking such
measures. Thus, even if Mork did rely on Heis’
memoranda to terminate Ms. Paluck, no reasonable
finder of fact could conclude that his decision
to do so created a situation in which retaliatory
motive caused Ms. Paluck’s dismissal./3
Ms. Paluck has not provided evidence from which
a reasonable finder of fact could determine that
a desire to retaliate against her motivated her
termination. Thus, she has not made out a prima
facie case of retaliatory discharge. Because we
hold that Ms. Paluck has failed to make a prima
facie case, we need not address the question of
whether Gooding’s stated reason for the
termination was in fact a pretext for a
retaliatory motive. See Cowan v. Glenbrook
Security Servs., Inc., 123 F.3d 438, 445 (7th
Cir. 1997) ("We need not reach the issue of
pretext, as plaintiff has failed to state a prima
facie case of discriminatory discharge under
McDonnell Douglas."); Lewis v. Gillette Co., 22
F.3d 22, 25 (1st Cir. 1994) (per curiam)./4 We
now consider Ms. Paluck’s claim of age
discrimination.
B. ADEA
1.
Ms. Paluck’s age discrimination claim also
proceeds under the McDonnell Douglas burden
shifting method. Here, both parties agree that
after her discharge, Ms. Paluck’s duties were
absorbed by other employees./5 Therefore, to
make a prima facie case for age discrimination,
Ms. Paluck must show that: (1) she was a member
of the protected class; (2) she was qualified for
her position; and (3) she was discharged while
other, similarly-situated employees who were not
members of the protected class were treated more
favorably. See Thorn v. Sundstrand Aerospace
Corp., 207 F.3d 383, 386 (7th Cir. 2000);
Bellaver v. Quanex Corp., 200 F.3d 485, 493-94
(7th Cir. 2000).
The district court concluded that Ms. Paluck had
failed to establish a prima facie case. The first
two elements of the prima facie case are not in
dispute: Ms. Paluck was over 40 and thus a member
of the protected class, and she suffered an
adverse employment action. At issue is the third
element. The district court determined that,
because Ms. Paluck and Herring held different
positions, they were not similarly situated
employees. It is not dispositive, however, that
Ms. Paluck and Herring had performed different
work while both were employed by Gooding. What
must be considered is whether Ms. Paluck was
"constructively replaced" by employees not in the
protected class. Bellaver, 200 F.3d at 495. In
this case, Ms. Paluck contends that she was
replaced constructively by Herring.
Herring testified at her deposition that she
became responsible for much of the work
previously performed by Ms. Paluck:
I kind of acquired, I should say, the things that
she used to do as far as typing proposals and
quotations for the salesmen, retrieving the EDI
daily, things like that, things of that nature.
R.33, Ex.D at 24. Counsel asked Herring, "So
basically all of the things that Vicki [Paluck]
did you took over?" Id. at 25. Herring responded,
"Yes, but we no longer used the dictaphone." Id.
Gooding contends that Ms. Paluck was "a
department unto herself" at the company,
Appellee’s Br. at 28, and that, after her
termination, her duties were dispersed among
several employees. Mork testified at his
deposition that Ms. Paluck’s duties were
redistributed among numerous employees, including
senior executives who began doing their own
typing. According to Gooding, much of Ms.
Paluck’s work was absorbed by employees who were
members of the ADEA’s protected class.
On this record, we believe that it reasonably
may be concluded that Herring effectively
replaced Ms. Paluck. The fact that their job
titles were different is not dispositive. See
Bellaver, 200 F.3d at 494. Thus, we are not bound
by Gooding’s classification of Ms. Paluck as "a
department unto herself." Our focus instead is on
the fungibility of the employees’ positions. See
Miller v. Borden Inc., 168 F.3d 308, 313 (7th
Cir. 1999); Gadsby v. Norwalk Furniture Corp., 71
F.3d 1324, 1331 (7th Cir. 1995). Further, "the
fungibility of jobs is implicit when the
terminated employee’s responsibilities are
absorbed by other employees." Gadsby, 71 F.3d at
1331. Herring testified that she took over all of
Ms. Paluck’s duties, other than dictation, which
was no longer performed. Although there is
evidence in the record from which it could be
concluded that Herring did not actually replace
Ms. Paluck, we cannot say that there is no
disputed issue of fact on this question. Thus, we
shall proceed on the basis that Ms. Paluck has
established a prima facie case of age
discrimination.
2.
Gooding’s stated reason for the discharge is a
reduction in force ("RIF"). Ms. Paluck may show
pretext by demonstrating that Gooding did not
honestly believe that a RIF was the reason she
was fired and that age tipped the balance in
favor of her discharge. See Pitasi v. Gartner
Group, 184 F.3d 709, 718 (7th Cir. 1999). Pretext
may be shown by demonstrating that the reduction
in force was an excuse to get rid of workers
belonging to the protected group. See Matthews v.
Commonwealth Edison Co., 128 F.3d 1194, 1197 (7th
Cir. 1997). Even if the reduction was otherwise
bona fide, a plaintiff may show pretext by
demonstrating that the specific reasons given for
including her in the reduction were pretextual.
See Watkins v. Sverdrup Tech., Inc., 153 F.3d
1308, 1316-17 (11th Cir. 1998); Benson v. Tocco,
Inc., 113 F.3d 1203, 1209-10 (11th Cir. 1997). To
show pretext, Ms. Paluck must show that Gooding
did not honestly believe the reasons it gave for
her termination. See Pitasi, 184 F.3d at 718;
Roberts v. Separators, Inc., 172 F.3d 448, 453
(7th Cir. 1999).
a.
Ms. Paluck argues that the entire reduction in
Gooding’s workforce was a pretext for age
discrimination. She claims that, because Gooding
lied about the extent of the business it was
about to lose, it was lying about its need for a
RIF. Further, she says, the fact that the RIF
disproportionately affected older workers
indicates that it was an excuse to eliminate
older employees.
Ms. Paluck must show that Gooding was lying when
it said that a loss of USX business motivated it
to reduce its payroll. Ms. Paluck’s obligation to
show pretext requires her to show that Gooding
offered a "phony reason for some action." Green
v. National Steel Corp., 197 F.3d 894, 899 (7th
Cir. 1999); Russell v. Acme-Evans Co., 51 F.3d
64, 68 (7th Cir. 1995). The action here was the
reduction in its workforce; the reason given for
that reduction was the loss of USX business. Ms.
Paluck concedes that Gooding lost a substantial
portion of its USX business and that a loss of
business is a legitimate reason to lay off
employees. Although the record is devoid of any
evidence indicating that the savings realized
through layoffs corresponded to the loss of
business experienced by Gooding, Ms. Paluck has
not argued that the RIF was too far reaching to
cover the anticipated loss of business.
Ms. Paluck argues that Gooding lied about how
much business it lost when USX did not renew its
contract. More precisely, she points out that, in
explaining to all of the company’s employees that
the company faced difficult times because of the
loss of USX business, Mork did not disclose that
the company, although losing its hose business,
would retain the conveyor belt business. Yet, the
fact remains that Ms. Paluck simply is unable to
show that Gooding did not honestly believe that
the anticipated loss of its revenue from USX did
not require the reduction in staff that the
company undertook. Indeed, she acknowledges that
the loss of some USX business may have been
sufficient for the company to initiate layoffs.
Ms. Paluck has made no showing, in her effort to
establish pretext, that Gooding did not exercise
honest business judgment in determining that
personnel cuts of this magnitude were an
appropriate business response to the situation it
faced.
Ms. Paluck claims that Gooding did not actually
undertake a RIF at its LaGrange plant because it
continued to hire employees even as the RIF was
supposedly in progress. Evidence that an employer
continued hiring during a purported RIF may
suggest that the RIF was pretextual. See Pierce
v. Atchison, Topeka & Santa Fe Ry. Co., 65 F.3d
562, 573 (7th Cir. 1995). In support of this
argument, Ms. Paluck refers to a record document
listing Gooding’s hirings and terminations in
1997. Ms. Paluck has not explained with any
specificity how this document supports her
assertion that no actual RIF took place. Without
an explanation from Ms. Paluck, our ability to
interpret this document is limited./6 From our
own review of the document, we do not think that
it necessarily supports Ms. Paluck’s argument
that Gooding was taking on full-time employees
during its purported RIF. During 1997, Gooding
terminated 17 people at its LaGrange facility who
had worked for the company prior to 1997. Gooding
also hired 11 people at LaGrange during 1997 who
remained with the company at the end of the
year./7 The terminations occurred almost
exclusively in the first half of the year, right
after Gooding lost its hose business with USX;
almost all of the hirings, in contrast, took
place in the second half of the year./8 The
document does not distinguish between full-time
and part-time employees, or describe any of the
duties performed by the discharged employees. Nor
does it contain salary data. From this document
alone it cannot reasonably be inferred that
Gooding continued hiring new employees in the
midst of its purported RIF. The burden was on Ms.
Paluck to show that Gooding’s RIF was pretextual
because it continued hiring new employees during
its purported RIF, and these unexplained
statistics do not demonstrate pretext.
Finally, we cannot conclude that the RIF was a
pretext for age discrimination solely because the
RIF disproportionately affected employees
protected by the ADEA. "Our court generally has
not found that statistical evidence concerning
terminated employees, without more, is relevant
to our analysis of whether the articulated
reasons for discharging [a] plaintiff were
pretextual or discriminatory." Adreani v. First
Colonial Bankshares Corp., 154 F.3d 389, 400 (7th
Cir. 1998); see also Testerman v. EDS Tech.
Prods. Corp., 98 F.3d 297, 305 (7th Cir. 1996).
As we have discussed, Ms. Paluck has offered no
other evidence to show that Gooding could not
properly undertake a RIF. Thus, we conclude that
Ms. Paluck has not shown that Gooding’s decision
to undertake a RIF was a pretext for age
discrimination.
b.
We next consider whether Ms. Paluck was properly
included in the RIF. Even if Gooding’s RIF had a
legitimate purpose, summary judgment would be
inappropriate if Ms. Paluck can show that
Gooding’s reasons for including her in the RIF
were pretextual. See Watkins, 153 F.3d at 1316-
17; Benson, 113 F.3d at 1209-10. Gooding’s
proffered explanation for including her in the
RIF is that Mork did not think he could justify
keeping an executive secretary, and he wanted to
show leadership in making budget cuts. We must
decide whether there are facts in the record
suggesting that Gooding did not honestly believe
this reason. See Jordan v. Summers, 205 F.3d 337,
343 (7th Cir. 2000); Roberts, 172 F.3d at 453.
The basic methodology of Gooding in conducting
the RIF is discernable from the record. Decision-
making responsibility was vested in the company’s
president rather than, as is often the case, a
committee. However, he consulted subordinate
managers before making decisions. Gooding says
that, in making decisions, Mork looked at "whose
job functions were affected by the impact of the
loss of the USX business" and "other factors."
R.33 at 10. More precise and objective criteria
may have been possible. The "even-handed
application of . . . objective criteria" is an
indication that discrimination was not present.
Cable v. Ivy Tech State Coll., 200 F.3d 467, 478
(7th Cir. 1999). Nonetheless, any lack of
precision in the articulated standards does not
mean that Ms. Paluck’s inclusion in the RIF was
necessarily a pretext for age discrimination. See
Bashara v. Black Hills Corp., 26 F.3d 820, 825
(8th Cir. 1994) (lack of objective criteria does
not show that RIF was motivated by discrimination
when other evidence shows that RIF was bona
fide). The dispositive question is whether Ms.
Paluck has shown that Gooding’s stated reason for
including her in the RIF--that Mork sought to
show leadership by eliminating the executive
secretary position--was pretextual.
Ms. Paluck argues that discriminatory intent is
shown by the fact that she was fired January 3,
1997, the day after the reduction in business
from USX was announced. She points out that no
other employees were terminated for several weeks
after her firing. However, Mork’s later
consultations and decisions do not show that his
reason for terminating Ms. Paluck was pretextual.
In evaluating whether Gooding’s stated reason is
pretextual, we must consider whether Gooding
honestly believed that reason "at the time of
[Ms. Paluck’s] discharge." Michas, 209 F.3d at
695; cf. Cullen v. Olin Corp., 195 F.3d 317, 324
(7th Cir. 1999) (finding that district court
abused its discretion by admitting evidence of
post-RIF job performance that "had no bearing on
management’s state of mind at the time the
decision to terminate [the plaintiff] was made"),
cert. denied, 120 S. Ct. 1423 (2000). No evidence
in the record suggests that, on January 3, 1997,
Mork did not honestly believe that Gooding needed
to cut costs and that he should show leadership
by terminating his own executive secretary. Thus,
Ms. Paluck has not shown pretext.
Conclusion
For the foregoing reasons, the judgment of the
district court is affirmed./9
AFFIRMED
/1 The LaGrange facility was the largest of
Gooding’s four locations; as of December 1996, 50
of the company’s 80 employees worked there. The
company’s 1996 sales were approximately $23
million.
/2 Ms. Paluck contends that the district court
improperly struck facts from her Rule 12
statements without explanation. In ruling on
Gooding’s motion to strike certain facts, the
district court stated that it would "only resolve
objections to statements that are material to the
present claim" to avoid resolving disputes over
irrelevant or unnecessary facts. R.47 at 2. The
district court provided a summary of the facts
but did not say that it had struck any of the
facts in Ms. Paluck’s Rule 12 statements. Because
the district court said that it would explain its
decision to strike any facts and then offered no
explanation for striking any facts, we may assume
that no facts were struck. Further, on appeal we
have considered the entire record without
striking any facts put forward by Ms. Paluck.
/3 Ms. Paluck also contends that Heis was involved
in the decisionmaking process based on a
conversation he had with Mork prior to Ms.
Paluck’s being informed of her termination.
However, in the testimony cited by Ms. Paluck,
Heis said only that Mork informed him of Ms.
Paluck’s termination before informing her.
/4 We note that we reach the issue of pretext in
considering Ms. Paluck’s age discrimination
claim. In analyzing that claim, we conclude that
Ms. Paluck is unable to show pretext.
/5 When a terminated employee’s duties were absorbed
by other employees, rather than eliminated from
the company altogether, we do not require the
former employee plaintiff to make out the prima
facie case normally required for reduction in
force cases. See Michas v. Health Cost Controls
of Ill., Inc., 209 F.3d 687, 693-94 (7th Cir.
2000). For purposes of deciding the proper prima
facie case requirements to apply, our inquiry is
dependent not on the number of employees
terminated, but "on whether [Gooding] still
needed [Ms. Paluck’s] job responsibilities to be
performed." See id. at 694. Thus, when a
particular terminated employee’s duties still
were performed by employees of the company, as
they were here, the reduction in force prima
facie case standard is inappropriate even if the
company terminated numerous other employees.
/6 See Anderson v. Douglas & Lomason Co., 26 F.3d
1277, 1295 (5th Cir. 1994) ("[O]ur review of the
record has been unduly hampered by the
plaintiffs’ failure to establish whether their
statistics were meaningful or significant in
light of the particular facts of this case.");
cf. Plemer v. Parsons-Gilbane, 713 F.2d 1127,
1138 (5th Cir. 1983) ("[The plaintiff] has the
burden to give her raw statistics relevance and
meaning by accounting for basic factors likely to
affect the evidence’s probative value."
(quotations and citation omitted)).
/7 Seven people were hired during 1997 and then
terminated during the same year. Five of the
seven worked at Gooding for less than a month.
Another one was listed as having been hired
December 15, 1997, but terminated October 14,
1997.
/8 Not including employees who served less than a
month with the company, 14 of the 17 terminations
took place on May 14 or earlier, and two more
occurred before June 30. All 11 people hired who
remained with the company at the end of the year
were hired May 21 or later, and eight of the 11
were hired October 7 or later.
/9 Ms. Paluck argued that the district court
improperly struck her motion for summary
judgment. The decision to strike a motion is
generally committed to the discretion of the
district court. See Maldonado v. U.S. Bank, 186
F.3d 759, 768 (7th Cir. 1999). Even if the
district court abused its discretion in striking
Ms. Paluck’s motion, our own de novo review of
the record convinces us that summary judgment for
Gooding is appropriate and, consequently, that
summary judgment for Ms. Paluck would be
improper.