Balderston, John v. Fairbanks Morse Eng ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1166
JOHN BALDERSTON and JOHN GABRIEL,
Plaintiffs-Appellants,
v.
FAIRBANKS MORSE ENGINE DIVISION
1
OF COLTEC INDUSTRIES,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 C 68—Barbara B. Crabb, Chief Judge.
____________
ARGUED NOVEMBER 13, 2001—DECIDED APRIL 17, 2003
____________
1
Although in their corporate disclosure statement defendants
have listed themselves as “Fairbanks Morse Engine Division,
Division of Coltec Industries,” parent company “Goodrich Cor-
poration,” according to Fairbanks’ web site, Fairbanks is cur-
rently a division of EnPro Industries, Inc., see http://www.
fairbanksmorse.com, a wholly-owned subsidiary of Goodrich
Corp. Coltec Industries, Inc., which is also a subsidiary of
Goodrich Corporation. See http://www.sec.gov/Archives/edgar/
data/42542/000095014402001786/0000950144-02-001786-
index.htm. Correctly identifying corporate ownership is crucial as
a division of a company cannot be sued. See Schiavone v. Fortune,
477 U.S. 21, 28 (1986).
2 No. 01-1166
Before HARLINGTON WOOD, JR., EASTERBROOK, and
KANNE, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. Plaintiffs John
Balderston (“Balderston”) and John Gabriel (“Gabriel”)
brought this action under the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. § 626(“ADEA”), against Fairbanks Morse Engine Division of
Coltec Industries (“Fairbanks”), challenging Fairbanks’
actions in terminating plaintiffs. Fairbanks maintains that
plaintiffs lost their jobs as a result of a company reorganiza-
tion and reduction-in-force (“RIF”). The district court
granted summary judgment in favor of Fairbanks, finding
that even if plaintiffs had established a prima facie case
of age discrimination, they had not offered sufficient
evidence to support a finding that Fairbanks’ stated reasons
for termination were not pretextual. Plaintiffs appeal. We
agree with the district court’s order and affirm.
I. BACKGROUND
A. Balderston
At the time in question, Fairbanks evidently was a
division of Coltec Industries, which is a wholly-owned
subsidiary of Goodrich Corporation. Fairbanks manufac-
tures large engines that are sold to private and public
sector customers for uses such as powering naval vessels
and generating electricity for businesses and utilities.
Balderston, born on June 25, 1939, began his career at
Fairbanks in 1971 as an engineer and eventually became
vice president and general manager of product installa-
tion and service. At the time of his termination on October
8, 1998, at age 59, Balderston was responsible for sales
and profits associated with product and customer service,
new engine installations, aftermarket parts sales, and
remanufactured products sales, in addition to overseeing
Fairbanks’ customer service centers in Houston, Texas;
No. 01-1166 3
Norfolk, Virginia; Seattle, Washington; Beloit, Wisconsin;
and Calgary, Canada.
Warren Martin, born on March 29, 1956, had been
with Fairbanks since 1989 and rose from director of parts
sales to vice president and general manager of parts
sales. Balderston stated that at a company meeting in
1996, Martin, then Fairbanks’ youngest vice president at
age 42, remarked that he favored eliminating all man-
agers over 55. Balderston, who had previously been told
he might be considered as a candidate for president of the
company, was already over 55. At the meeting, the execu-
tives that were present discussed the feasibility and eco-
nomics of offering an early retirement package to em-
ployees over age 55. It was decided that it would not be
economical to do so and could lead to the loss of key em-
ployees whose skills and experience the company wished
to retain. Martin left Fairbanks in 1997 to serve as presi-
dent of another division of Coltec but returned in June
1998, at age 44, as president.
Anticipating the reorganization, Martin had not consid-
ered promoting Balderston because Martin had a nega-
tive opinion of Balderston’s conduct and performance as
a result of his experience working with Balderston from
1989 to 1997. Martin believed that Balderston had en-
gaged in unnecessary travel, had failed to plan trips to
take advantage of low airfares, arrived for work late and
left early, could not always be found during the work day,
failed to treat others in an appropriate manner, failed to
organize work and administrative matters, did not train
field service personnel properly, and did not promote
the sale of full service engine maintenance contracts ade-
quately. Part of Martin’s impressions were also based on
his discussion with Balderston’s former secretary, who
stated that Balderston had verbally mistreated her on
several occasions, causing her to resign. Affidavits of for-
mer Fairbanks’ employees supported the beliefs of Martin
4 No. 01-1166
that Balderston arrived late for work, left early, and treated
others inappropriately.
On June 5, 1998, Martin wrote a memorandum to
Balderston in order to establish:
a specific set of rules, guidelines, and expectations for
your work habits, work ethic, treatment of personnel,
travel and business focus going forward. The need
for this meeting is brought about by my own personal
experience working with you, previous input from
Dick Dashnaw [former president of Fairbanks] and
John Bottorff [vice president of human resources], and
observations of others. I want to begin our business
relationship with you knowing very clearly the types
of expectations I have of you in these areas.
Martin met with Balderston that same day to discuss
his requirements for Balderston: (1) to work full days and
spend his time in a productive manner; (2) to pay atten-
tion to details and follow-up on the completion of projects
and assignments; (3) to devote the majority of his efforts
to the sale of full service engine maintenance contracts;
(4) to develop the remanufactured engine program at the
Houston facility; and (5) to develop and execute a compre-
hensive training program for all field service personnel.
Balderston was told his performance would be unsatisfac-
tory if he failed to meet the expectations outlined in the
memo. On June 8, 1998, in a memo placed in Balderston’s
personnel file, Bottorff noted that he had spoken with
Balderston about the possible outcomes of the reorgan-
ization, including demotion or replacement, and indicated
that Balderston was going to try and meet Martin’s expec-
tations.
Prior to Martin’s departure in 1997, Fairbanks’ sales
and marketing department was organized into three
areas with a vice president for each division: (1) engine
sales and related marketing under Barry Cockerham, born
No. 01-1166 5
on September 30, 1953; (2) parts sales and marketing un-
der Barry Hall, born on September 11, 1953; and (3) ser-
vice and product installation under Balderston. Upon his
return, Martin wanted to consolidate the three separate
areas of sales and marketing under one corporate execu-
tive, in order to create a more effective and efficient de-
partment which he felt would benefit the company as a
whole.
On June 26, 1998, Martin named Cockerham, age 45,
who had been vice president of engine sales since June
1997, as senior vice president of sales and marketing,
overseeing all three departments. Cockerham had more
than twenty years of successful sales and marketing
experience at the managerial and executive levels and had
experience with negotiating legal claims filed by Fair-
banks’ customers.
During the three-month period from July to September
1998 when Cockerham was developing the reorganization
plan, a number of incidents led Cockerham to believe
Balderston was not suited for a working-level manage-
ment position. For example, Cockerham was unhappy
with Balderston’s work on a settlement agreement con-
cerning a billing dispute with one of Fairbanks’ customers.
Balderston negotiated a financial settlement but had not
secured a formal agreement or a release of claims signed
by the customer.
Fairbanks had been trying to break into the govern-
ment market and was interested in obtaining more work
with the Military Sealift Command (“MSC”), which oper-
ated a fleet of vessels and was considered one of Fair-
banks’ important government customers. In a monthly
report to Cockerham in late August 1998, Balderston stated
that he was negotiating a contract with the MSC to mon-
itor and maintain the fleet’s operating condition, which
he valued at $304,000 a year. However, the contract
Balderston eventually secured was for $6,000 a year for
engine maintenance.
6 No. 01-1166
Cockerham was also not satisfied with a two-day meet-
ing/presentation in July 1998 with the MSC. Balderston
was in charge and assigned the task of organizing and
running the meeting to Gabriel. Cockerham attended
approximately two hours of the meeting and informed
Balderston that all of the presentations should have
been done in PowerPoint,2 instead of some PowerPoint and
some overhead projections, that Gabriel should not have
worn blue jeans, and that Balderston should have pre-
pared written follow-up. Cockerham later found out that
the MSC had agreed to prepare a written follow-up.
Balderston was also responsible for the Amocar project
in 1998, which involved remanufacturing two state-of-the-
art, fuel efficient, low emission EnviroDesign® engines. The
project was bid on a low profit margin in order to make
the sale yet stay within the customer’s budget. Several
problems caused cost overruns because Houston opera-
tions, which worked on the project, had no previous experi-
ence with remanufacturing an EnviroDesign® engine.
As vice president of product installation and services,
Balderston was responsible for controlling service cost
installations. Cockerham believed that Balderston had not
been sufficiently involved in overseeing the project and
held him accountable for the level of cost overruns.
In August 1998, Balderston traveled to Russia because
a Fairbanks’ engine that had been shipped to a customer
in Russia had been damaged during unloading and the
customer wanted someone from Fairbanks to evaluate
the condition of the engine. The customer’s shipping
agent stated that they would reimburse Fairbanks for
Balderston’s travel expenses. However, the shipping agent
eventually refused to pay, leaving Fairbanks responsible
2
PowerPoint is a Microsoft computerized graphics presenta-
tion program.
No. 01-1166 7
for $5,000 in travel expenses. Although Balderston had not
requested a purchase order or letter of credit for his
travel expenses, something which he had never been re-
quired to obtain for any of his previous travel, Cockerham
felt it was irresponsible of Balderston to have relied on
the shipping agent’s letter of reimbursement.
In August and September 1998, Balderston negotiated
for repair work and parts sales on the MV Nestos, a ship
which had suffered a major accident. Gabriel submitted
the initial bid but lost to a competitor. Balderston later
submitted a bid to replace the crankshaft. That job also
went to a competitor. Although Fairbanks may have lost
the bid on the crankshaft because it refused a request
made by the owner’s representative to inflate the price
of the crankshaft work for submission to the insurance
company, Cockerham still felt that Balderston should have
secured the contract for Fairbanks.
At the time Cockerham terminated Balderston, Cocker-
ham believed that Balderston’s service group was $1 mil-
lion dollars below estimated earnings. In fact, the finan-
cial documents which Cockerham relied upon were incor-
rect due to a computer conversion that had started in July
1998. The error was not discovered until after Balderston
was terminated. The revised financial statements indi-
cated that as of September 30, 1998, Balderston’s depart-
ment was meeting the original budget and was within
$15,000 of meeting a revised budget.
As part of the reorganization, Cockerham eliminated
the three separate departments and reorganized sales
and marketing into six departments: government pro-
grams; marketing; sales; Latin American operations; ser-
vice; and Houston operations. Each department would be
supervised by a working-level director who reported to
Cockerham. During the restructuring, Cockerham would
eliminate and consolidate any positions he determined
8 No. 01-1166
were unnecessary. Balderston’s responsibilities were dele-
gated to others; his responsibilities (1) for service and parts
sales to commercial customers was transferred to the
director of sales, (2) for service and parts sales to Latin
America, South America, and Mexico was transferred to
the director of Latin America operations; (3) for technical
support was transferred to the director of marketing
and the director of government programs; (4) for manage-
ment of the Houston and Calgary operations was trans-
ferred to the director of Houston operations; and (5) for
supervising the Norfolk and Seattle service and support
personnel and warranty management was transferred to
the director of service.
Balderston, 59, and Hall, 44, vice president of parts
sales, were both demoted and no longer reported to the
president of Fairbanks but to Cockerham. In addition,
Cockerham was responsible for Balderston’s and Hall’s
performance assessments. Balderston’s salary was re-
duced from $119,150 to $102,600. Hall’s salary of $88,000
was already below the minimum salary for his grade level,
and was therefore not reduced further.
Hall was reassigned as director of Latin American
operations because he had significant experience in Latin
American sales with both Fairbanks and a former em-
ployer, had increased Fairbanks’ sales in Latin and South
American while vice president of parts sales, and was
familiar with the customers, customs, language, and
business needs of Latin America. Kurt Young, 54, was
offered the position of director of Houston operations.
Dennis Mowry, 42, was offered the position of director of
service, which included supervision of the Norfolk and
Seattle service centers and warranty management.
Following the elimination of Balderston’s position,
Cockerham felt that Balderston should not be retained in
a director-level capacity. Balderston felt he should have
No. 01-1166 9
been appointed director of Houston operations. Cockerham
did not appoint Balderston to any of the director posi-
tions because he thought, incorrectly, that Balderston had
not held a working-level management position for sev-
eral years. In fact, Balderston had served as a working-
level manager in Houston. Balderston maintains that
Cockerham told him that he would have a job when Fair-
banks further reorganized. However, shortly after Martin
and Cockerham had a meeting in September 1998 to dis-
cuss Balderston’s employment, Cockerham fired Balderston.
Mowry, 42, who had worked under Balderston as head
of the Houston facility, replaced Balderston as head of the
service department. Balderston was not considered for
Mowry’s former position in lieu of termination, even though
Balderston had previously worked in that position.
B. Gabriel
Gabriel, born on October 18, 1944, joined Fairbanks
in 1969 and since 1986 had been a manager in Beloit,
where Balderston was Gabriel’s supervisor. Gabriel’s pri-
mary responsibility was management of the MSC’s govern-
ment account.
In June 1997, Balderston reorganized the service de-
partment in Beloit and promoted Eric Ericson, born October
5, 1962, to installation and product service manager. From
1993 to 1997, Ericson had been responsible for oversight
technical support to Avondale Shipyards (“Avondale”),
which builds ships for the U.S. Navy and the MSC. Eric-
son had worked on site at Avondale in New Orleans for
a number of years managing the entire support and in-
stallation effort, supervising numerous employees, and co-
ordinating subcontractors and field support personnel.
He was also responsible for controlling installation costs.
Ericson continued as the company’s primary contact
with Avondale after the promotion to Beloit. Ericson had
10 No. 01-1166
excellent relations with the people at Avondale and Fair-
banks had received only positive feedback from Avondale
regarding Ericson’s performance.
Balderston believed that the change in Gabriel’s responsi-
bilities occurring in June 1997 resulted in a deterioration
of his attitude toward his job and patience with others.
Although complaints had been received from customers
stating that Gabriel could be confrontational and unco-
operative, Balderston was not aware of these facts.
Balderston had discussed with Gabriel the need to “soften
his approach” in working with others. Gabriel conceded
that he could be rude, terse, or inappropriate at times.
Other employees complained that Gabriel was difficult.
Cockerham believed only one person was needed to act
as manager of technical services for government accounts.
Cockerham asked Jan Connolly, who had been manager of
government programs and had worked with both Gabriel
and Ericson, to select the person she wanted to fill the
manager’s position as Cockerham had appointed her
director of government programs. Connolly selected Ericson.
Connolly believed that Avondale was a complex and
demanding client with numerous problems and based her
decision in part on her belief that it would be easier to
transfer MSC duties to Ericson rather than transferring
Avondale duties to Gabriel.
Gabriel, who had been second-in-command in the service
department, was fired twenty minutes after Balderston.
He was 54 and the employee with the most experience in
the service department. Gabriel maintains he was termi-
nated in favor of three younger employees, Ericson, Mark
Desing, and Tom Stull, and was denied consideration for
a fourth opening.
Plaintiffs filed suit in the district court alleging that
Balderston’s and Gabriel’s terminations were part of a
systematic elimination of older employees through the
No. 01-1166 11
use of RIFs and sought relevant statistical data of the
terminations of older employees beginning with Martin’s
initial hiring in 1989 until the termination of Balderston
and Gabriel. The court limited the parameters of the data
requested. Fairbanks filed a motion for summary judg-
ment accompanied by numerous affidavits. Plaintiffs de-
posed Fairbanks’ key affiants and responded with a memo-
randum and affidavits of their own. Fairbanks replied
and attached thirteen new affidavits. Plaintiffs moved
to strike the reply affidavits, or, alternatively, requested
permission to depose the new affiants and then file a
response. The district court denied plaintiffs’ motion and
granted summary judgment in favor of Fairbanks, ruling
that plaintiffs had not established that the decision-
makers did not honestly believe the subjective conclusions
given as the reasons for terminating plaintiffs.
Plaintiffs appeal (1) the order refusing to strike the
thirteen affidavits submitted with Fairbanks’ reply and
refusing leave to take discovery with respect to the new
affidavits, (2) the court’s order denying plaintiffs’ motion
to compel discovery in order to access statistical data, and
(3) the order granting summary judgment in favor of
Fairbanks.
II. ANALYSIS
A. Evidentiary Issues
1. Motion to strike affidavits
A district court’s refusal to strike or disregard portions
of an affidavit in a motion for summary judgment is
reviewed for an abuse of discretion. Adusumilli v. City of
Chicago, 164 F.3d 353, 359 (7th Cir. 1998).
Fairbanks filed a motion for summary judgment along
with affidavits. Plaintiffs filed a response to that motion
with their own affidavits. Fairbanks then filed a reply
12 No. 01-1166
to plaintiffs’ response including additional affidavits.
Plaintiffs moved to strike the affidavits filed with the re-
ply, or, in the alternative, requested “permission to de-
pose the affiants on the new material and to file a re-
sponse.” Plaintiffs challenge the district court’s refusal to
strike the affidavits in the reply, contending that the
district court “relied in part on the new material asserted
in the thirteen affidavits” in granting summary judgment.
Under FED. R. CIV. P. 56(a), either party may make a
motion for summary judgment, with or without supporting
affidavits. The district court may grant judgment if “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c). The nonmoving
party may respond, with or without affidavits, and “must
set forth specific facts showing that there is a genuine
issue for trial.” FED. R. CIV. P. 56(e). Summary judgment
should not be entered “until the party opposing the mo-
tion has had a fair opportunity to conduct such discovery
as may be necessary to meet the factual basis for the
motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).
Under Rule 56(a), Fairbanks was correctly allowed to
submit affidavits with its motion for summary judg-
ment. Plaintiffs were then allowed to submit affidavits
with their response to the summary judgment motion
under 56(c). There is no blanket prohibition from filing
additional affidavits when a movant for summary judg-
ment files a reply brief following a nonmovant’s response.
See Egger v. Phillips, 710 F.2d 292, 295 (7th Cir. 1983),
overruled on other grounds by Feit v. Ward, 886 F.2d 848,
856 (7th Cir. 1989).
However, plaintiffs did not request a continuance “to
permit affidavits to be obtained or depositions to be taken
No. 01-1166 13
or discovery to be had,” as allowed by Rule 56(f). A Rule
56(f) motion requires a party to set forth a justification
for the continuance, which includes providing a com-
pelling argument why discovery should be continued. See
Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1056-57
(7th Cir. 2000). Plaintiffs failed to make a Rule 56(f) mo-
tion and failed to provide a compelling justification to
continue discovery as to the new affidavits.
The district court judge believed that she was “required
to consider new information that does not contradict
deposition testimony and I have done so.” See Buckner v.
Sam’s Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996) (“As a
general rule, the law of this circuit does not permit a
party to create an issue of fact by submitting an affidavit
whose conclusions contradict prior deposition or other
sworn testimony.”); Kalis, 231 F.3d at 1055-56. The dis-
trict court noted that although plaintiffs’ affidavits in
response to the summary judgment motion did not con-
tradict plaintiffs’ deposition testimony, the affidavits
added “entirely new matters to ‘flesh out’ the deposition
testimony.” For instance, in his deposition, Balderston
had stated that he never thought he should have been
considered for Cockerham’s position. But in plaintiffs’
response to summary judgment, Balderston alleged that
he could have been but was not considered for Cocker-
ham’s position and that Cockerham was not qualified.
Many, if not all, of the plaintiffs’ affidavits were submit-
ted to refute statements and assertions made in Fairbanks’
motion for summary judgment. The district court felt
this was “something of an ambush” for the moving party,
and, therefore, allowed all of the affidavits, those of both
plaintiffs and defendants, in order to make a fair determi-
nation of the facts. However, in denying plaintiffs’ motion
to strike the affidavits accompanying Fairbanks’ reply,
the court correctly identified the new affidavits filed
with Fairbanks’ reply as providing cumulative informa-
14 No. 01-1166
tion supporting allegations in defendant’s answer to plain-
tiffs’ complaint that there were problems with both Bald-
erston’s and Gabriel’s performance. These did not rep-
resent “new” arguments as plaintiffs suggest.
The district court’s findings, taken from the parties’
proposed findings of fact, carefully took into considera-
tion all of the permissible evidence in determining which
facts were material and undisputed. We do not find it
unreasonable that the district court refused to strike the
new affidavits filed with Fairbanks’ reply to plaintiffs’
response. See Adusumilli, 164 F.3d at 359 (holding that
decisions “that are reasonable, i.e., not arbitrary, will not
be questioned”) (citation omitted). In addition, in this
type of situation similar to a Rule 56(f) motion, reversal
of a district court’s denial is made only where there is
an abuse of discretion which results in actual and sub-
stantial prejudice to the party seeking additional discov-
ery. See Kalis, 231 F.3d at 1055-56. We find no actual
and substantial prejudice and no abuse of discretion.
2. Motion to compel discovery
The standard of review of the district court’s discovery
decisions to not allow additional pretrial discovery is
abuse of discretion. Olive Can Co., Inc. v. Martin, 906 F.2d
1147, 1152 (7th Cir. 1990). In order to succeed on a claim
that the district court erroneously limited discovery, the
appellant must show that “the decision resulted in ac-
tual and substantial prejudice.” Stagman v. Ryan, 176
F.3d 986, 994 (7th Cir. 1999) (citation omitted).
Plaintiffs in this case have alleged a company-wide
“campaign to elevate its more youthful employees be-
cause of their age.” Plaintiffs requested discovery of exten-
sive statistical data in order to show a pattern or practice
of discrimination. See Adams v. Ameritech Serv., Inc., 231
F.3d 414, 423 (7th Cir. 2000). Although statistical evidence
No. 01-1166 15
can be relevant to prove a pattern or practice of discrim-
ination, it is not usually sufficient in itself. See id. at 423.
The Supreme Court has emphasized the importance of
looking to the proper base “group” when making stat-
istical comparisons and examining all of the surrounding
facts and circumstances which create the statistics them-
selves. See Hazelwood Sch. Dist. v. United States, 433 U.S.
299, 308, 312 (1977) (citation omitted). The defendant
must then be allowed to rebut any inference of discrimina-
tion indicated by the statistics. Id. at 310. In Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 614 (7th Cir. 2000), the
Seventh Circuit upheld summary judgment for an em-
ployer in an ADEA case where the employee’s prima facie
case was primarily composed of statistics showing that
older employees were treated less favorably than younger
employees in various RIFs. The appellate court deter-
mined that the statistics were flawed in a number of
ways and that the plaintiff had no other sufficient evi-
dence to support his case. Id. at 619-20. In order to be
considered, the statistics must look at the same part of
the company where the plaintiff worked; include only
other employees who were similarly situated with respect
to performance, qualifications, and conduct; the plaintiff
and the other similarly situated employees must have
shared a common supervisor; and treatment of the other
employees must have occurred during the same RIF as
when the plaintiff was discharged. Id. at 617-18.
Plaintiffs sought company-wide personnel information
“on any present or former employees at the supervisor
level or above,” and personnel records of all employees in
the parts department who were laid off, terminated, or
retired between 1989 and 1998. The magistrate judge to
whom the discovery issue was assigned limited the scope of
plaintiffs’ discovery request to employees who were simi-
larly situated to the plaintiffs. Plaintiffs filed a motion
asking the district court to modify the magistrate judge’s
16 No. 01-1166
order but the district court declined. When requesting
discovery in an age discrimination suit, the “other employ-
ees’ circumstances [must be] close enough to [plaintiff]’s to
make comparisons productive.” Gehring v. Case Corp., 43
F.3d 340, 342 (7th Cir. 1994). District court judges
“have substantial discretion to curtail the expense and
intrusiveness of discovery” in limiting an adverse party’s
request for broad discovery of personnel files. Id. (citation
omitted).
The district court limited discovery to the rele-
vant corporate department, similarly situated employees,
time period, and decisionmakers. Where the district court
was uncertain as to possible relevance, the judge con-
ducted an in camera review of the documents, after which
a determination was made. There was no abuse of dis-
cretion.
B. Summary Judgment
1. Standard of review
We review de novo a district court’s ruling on a motion
for summary judgment. Gordon v. United Airlines, 246
F.3d 878, 885 (7th Cir. 2001) (citations omitted). To suc-
ceed on a motion for summary judgment, the moving
party must show, through the pleadings and other record
materials, such as depositions, answers to interrogatories,
admissions, and affidavits, that there is no genuine issue
of material fact and that the moving party is entitled to
judgment as a matter of law. See FED. R. CIV. P. 56(c);
Celotex, 477 U.S. at 322-23. All evidence and inferences
must be viewed in the light most favorable to the nonmov-
ing party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). However, the nonmoving party must set forth
specific facts, more than mere conclusions and allegations,
sufficient to raise a genuine issue for trial; “the mere
existence of some alleged factual dispute between the
No. 01-1166 17
parties will not defeat an otherwise properly supported
motion for summary judgment . . . .” Id. at 247-48 (empha-
sis in original); see Celotex, 477 U.S. at 323-24.
2. ADEA Claim
The ADEA makes it unlawful for an employer “to fail
or refuse to hire or to discharge any individual or other-
wise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of em-
ployment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1).
Under a disparate treatment theory, plaintiffs must
prove that their age “actually played a role in [the em-
ployer’s decisionmaking] process and had a determinative
influence on the outcome.” Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 141 (2000) (citation omitted). To
succeed on an ADEA claim, a plaintiff must establish that
he would not have been terminated “but for” his employ-
er’s intentional age-based discrimination. See Chiaramonte
v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir.
1997).
A plaintiff in an age discrimination case may prove
discrimination by presenting either direct or circumstantial
evidence. See Adreani v. First Colonial Bankshares Corp.,
154 F.3d 389, 393 (7th Cir. 1998). Direct evidence usually
requires an admission by the decisionmaker that his ac-
tions were based on age. See Troupe v. May Dep’t Stores Co.,
20 F.3d 734, 736 (7th Cir. 1994). Plaintiffs have not pre-
sented any direct evidence of discrimination.
Where circumstantial evidence of discriminatory intent
is relied on, generally the burden-shifting method of proof
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), is applied. Reeves, 530 U.S. at 142 (noting that
McDonnell Douglas framework applies in ADEA cases
18 No. 01-1166
when parties do not dispute it). The plaintiff must first
establish a prima facie case of discrimination, then the
defendant may state one or more legitimate, nondiscrimina-
tory reasons for its actions, after which the plaintiff has
an opportunity to show that the defendant’s reasons are
pretextual. See Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 252-53 (1981).
To establish a prima facie case, a plaintiff must demon-
strate that he was in the protected age group (40 years
of age and older, pursuant to 29 U.S.C. § 631(a)), was
performing his job satisfactorily, suffered an adverse em-
ployment action, and was replaced by a similarly situated
individual outside the protected class. McDonnell Douglas,
411 U.S. at 802; O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 310 (1996); Gordon, 246 F.3d at 885-86(applying McDonnell Douglas test to race and age claims).
However, in the case of a RIF, the fourth factor is altered
slightly because “the employer decides whom from a de-
fined group it will ‘re-hire’ or retain, considering all exist-
ing employees as roughly like applicants for retention.”
Adams, 231 F.3d at 422; see also Thorn v. Sundstrand
Aerospace Corp., 207 F.3d 383, 386 (7th Cir. 2000) (holding
the McDonnell Douglas test is appropriate in RIF cases).
The employer must then produce evidence that “having
decided in good faith that he should reduce the size of
his workforce, [the employer] included the plaintiff with-
in the class of workers to be laid off for reasons unrelated
to any discriminatory considerations.” Thorn, 207 F.3d at
386. An ADEA plaintiff who shows that someone “substan-
tially younger” was retained instead of the plaintiff need
not prove that the replacement is outside the protected
class. See O’Connor, 517 U.S. at 312. In the age discrim-
ination context, the fact that a plaintiff is replaced by
someone “substantially younger” is a reliable indicator of
age discrimination. Id. at 313; see Michas v. Health Cost
Controls of Ill., Inc., 209 F.3d 687, 693 (7th Cir. 2000). The
No. 01-1166 19
Seventh Circuit has defined “substantially younger” as
generally ten years younger. See Hartley v. Wisconsin Bell,
Inc., 124 F.3d 887, 893 (7th Cir. 1997).
a. Balderston
1. Prima facie case
There is no dispute that Balderston belongs to a pro-
tected class or that he suffered an adverse employment
action. And, viewed in a light favorable to Balderston, it
could be inferred that he was performing his job satisfacto-
rily. Therefore, we need examine only whether similarly
situated employees outside the protected class were treated
more favorably. Gordon, 246 F.3d at 886.
The plaintiff must show that he is similarly situated with
respect to performance, qualifications, and conduct, and
that “the retained or transferred younger employees
possessed analogous attributes, experience, education,
and qualifications relevant to the positions sought, and
that the younger employees obtained the desired positions
around the same time as the [RIF].” Radue, 219 F.3d at
617-18 (citations omitted).
Balderston contends that Hall and Cockerham were
substantially younger and that Martin promoted Cocker-
ham with the intent to terminate Balderston because of
Balderston’s age. Cockerham was 44 at the time and
Balderston was 59. Balderston presented no evidence
that he and Cockerham were similarly situated with re-
spect to their qualifications, experience, skills, or abilities.
See Radue, 219 F.3d at 618. Balderston’s claim that Cocker-
ham was unqualified for the position was based only on
Balderston’s own affidavit. There was no showing that
Balderston had any personal knowledge of Cockerham’s
qualifications nor was there any evidence presented that
Cockerham suffered from the same complaints, such as
20 No. 01-1166
tardiness and personnel difficulties, that Martin had found
with Balderston, therefore, making Balderston mate-
rially different than Cockerham. See id. at 618-19.
Balderston stated that Hall was similarly situated
and received more favorable treatment. Hall was not a
similarly situated employee as his salary was already
substantially lower than Balderston’s, nor was he in the
“general manager” classification as Balderston was. Hall
also had far more extensive experience with Latin Ameri-
can sales than Balderston.
Balderston also claims that Mowry, age 42, was sim-
ilarly situated and received more favorable treatment in
that Mowry replaced Balderston when Balderston was
terminated. Mowry did not replace Balderston. Balderston’s
duties were divided between Cockerham and six new
directors. Mowry was given the supervision of the Norfolk
and Seattle service centers and warranty management.
Although it is true Mowry was a much younger employee
whom Balderston had previously supervised, Balderston
has offered no evidence as to Mowry’s qualifications,
education, experience, skills, or abilities. See Radue, 219
F.3d at 618. Nor did Balderston show that Martin and
Cockerham had a negative opinion of Mowry, as they did
of Balderston, making Mowry materially different than
Balderston. See id. at 619.
2. Pretext
Although we need not proceed further due to the fact
that Balderston has failed to satisfy the fourth prong of
his prima facie case, because the district court assumed,
for purposes of summary judgment, that Balderston could
demonstrate he was similarly situated to Mowry, we
briefly address the issues of Fairbanks’ “legitimate, nondis-
criminatory reasons” for its actions and Balderston’s abil-
No. 01-1166 21
ity to show that Fairbanks’ reasons were pretextual. See
Burdine, 450 U.S. at 252-53.
Cockerham has stated that he chose not to retain
Balderston due to Cockerham’s negative opinion of him as
a result of Balderston’s obtaining only a minimal con-
tract with the MSC, the loss of the bid to repair the MV
Nestos, the Amocar project involving the EnviroDesign®
engine, the travel expenses for Balderston’s trip to Rus-
sia, the perceived failure to meet budget predictions, and
Cockerham’s belief that Balderston had not held a work-
ing-level manager position for several years. Because
Cockerham failed to state in his deposition that his opin-
ion of Balderston was also influenced by Balderston’s
failure to secure a release of claims for a settlement
agreement, what Cockerham viewed as problems at the
two-day MSC meeting, and service installation cost over-
runs, given the fact that we must view the evidence in the
light most favorable to the plaintiff, those three proffered
reasons are not considered.
To show that an employer’s proffered reason is pretextual,
a plaintiff must do more than demonstrate that the em-
ployer made a mistake or that the employer’s reason was
not good enough to support its decision. See Reeves, 530
U.S. at 147. Plaintiffs must provide “evidence tending
to prove that the employer’s reasons are factually base-
less, were not the actual motivation for the discharge in
question, or were insufficient to motivate the discharge,”
Testerman v. EDS Technical Prods. Corp., 98 F.2d 297, 303
(7th Cir. 1996) (citation omitted), and that plaintiff would
not have been let go but for his age. See Burdine, 450 U.S.
at 256; EEOC v. G-K-G, Inc., 39 F.3d 740, 746 (7th Cir.
1994). In this instance, what must be provided is “proof
of intentional discrimination based on an examination of
all the evidence in the record viewed in the light favorable
to the nonmoving party.” EEOC v. Bd. of Regents of the
Univ. of Wis. Sys., 288 F.3d 296, 302 (7th Cir. 2002). “Where
22 No. 01-1166
an employer offers multiple independently sufficient jus-
tifications for an adverse employment action, the plaintiff-
employee must cast doubt on each of them.” Lesch v. Crown
& Cork Seal Co., 282 F.3d 467, 473 (7th Cir. 2002) (citation
omitted). The only concern in reviewing an employer’s
reasons for termination is the honesty of the employer’s
beliefs. Id. at 474.
Balderston has failed to provide evidence showing
that Cockerham did not honestly believe in the reasons
he stated which led him to believe Balderston’s perform-
ance was not satisfactory, therefore dismissing Balderston
when his position was eliminated as part of a reorganiza-
tion and RIF of the company. Balderston’s own belief that
he was the best candidate is irrelevant to the question of
pretext. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446,
1460 (7th Cir. 1994) (finding that employee’s self-interested
assessment of her own job abilities is insufficient to raise
an issue of fact).
Cockerham’s reasons may have been “foolish or trivial
or even baseless.” Hartley, 124 F.3d at 890 (citation omit-
ted); Koski v. Standex Int’l Corp., 307 F.3d 672, 678 (7th Cir.
2002) (“employers may terminate competent employees
older or otherwise because they do not like them”). How-
ever, there has been no showing, other than Balderston’s
own statements, that Cockerham did not honestly believe
his assessment of Balderston. See Uhl v. Zalk Josephs
Fabricators, Inc., 121 F.3d 1133, 1137 (7th Cir. 1997)
(“Facts, not an employee’s perception and feelings, are re-
quired to support a discrimination claim.”).
The reasons for Balderston’s termination are not scruti-
nized as to whether they were right or wrong, but only
“whether the reason for which the [employer] discharged
the [employee] was discriminatory.” Giannopoulos v. Brach
& Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997).
Balderston’s statement that he secured a $6,000 contract
No. 01-1166 23
with the MSC does not refute Cockerham’s belief that
Balderston should have secured a more valuable contract.
Nor does Balderston’s statement that he did not per-
sonally perform the audit on the Amocar project refute
Cockerham’s opinion that Balderston held the ultimate
responsibility as project supervisor. “[A] reason honestly
described but poorly founded is not a pretext as that term
is used in the law of discrimination.” Kariotis v. Navistar
Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (cit-
ation omitted). Even if it may be true in the present case
that Cockerham did not check on the validity of all of his
facts and had a mistaken belief, as with the erroneous
budget figures, there has been no showing the dismissal
was based on illegal discrimination. See id. at 677-78.
Although Balderston might wish us to review Fairbanks’
decision on the merits, “this court does not sit as a super-
personnel department that reexamines an entity’s business
decisions.” Dale v. Chicago Tribune Co., 797 F.2d 458, 464
(7th Cir. 1986); accord Debs v. Northeastern Ill. Univ., 153
F.3d 390, 396 (7th Cir. 1998). There has been no evidence
to show that Cockerham did not honestly believe he was
dismissing a poorer performing, less suitable candidate
and Fairbanks is therefore not liable for intentional dis-
crimination.
We also find that Martin’s comment at the 1996 execu-
tive meeting was not sufficient evidence, particularly
standing alone as the only statement regarding age as a
determining factor, to allow a finding of pretext. A state-
ment of discriminatory animus must be made by a de-
cisionmaker and relate to the action at issue. Sanghvi v.
St. Catherine’s Hosp., Inc., 258 F.3d 570, 574 (7th Cir. 2001)
(citation omitted); Hunt v. City of Markham, 219 F.3d 649,
652 (7th Cir. 2000) (holding that discriminatory comment
must be made by a decisionmaker “(1) around the time of,
and (2) in reference to, the adverse employment action
complained of”). In the face of all of defendant’s evidence
24 No. 01-1166
as to legitimate reasons for dismissing Balderston, Mar-
tin’s statement, made several years prior to the RIF, as the
only indication of age discrimination, is insufficient to
conclude that Fairbanks’ reasons were pretextual.
b. Gabriel
Gabriel maintains that he was discriminated against
in favor of Ericson, Desing, and Stull. Although there is
no dispute that Gabriel meets the first three elements of
his prima facie case, he fails to meet the fourth prong
with regards to Desing and Stull in showing he was re-
placed by a similarly situated individual outside the
protected class. McDonnell Douglas, 411 U.S. at 802.
Gabriel stated that Desing, age 44, and Stull, age 38,
were treated more favorably when, as part of the reorgan-
ization, they were transferred to the positions of service
specialists as part of the technical services group under the
marketing department, whereas Gabriel was discharged.
The service specialists were to provide technical service
information about commercial engines and parts and ser-
vice for all product lines to both Fairbanks’ employees and
Fairbanks’ customers. Desing and Stull were selected be-
cause of their extensive knowledge of the EnviroDesign®
engine and its installation and commercial applications, in
addition to their ability to supervise and troubleshoot
installation of the engine. Gabriel, whose primary focus
had been MSC’s government account, has not shown that
he had experience with the EnviroDesign® engine or
more experience with its commercial applications. There-
fore, Gabriel was not similarly situated to Desing and Stull.
Viewing the evidence in a light most favorable to Gabriel,
the district court found that there was sufficient evidence
to meet the fourth prong of Gabriel’s prima facie case
with regard to Ericson. Although we believe the evidence
shows that Gabriel and Ericson were not similarly sit-
No. 01-1166 25
uated, we agree with the district court’s finding that
Gabriel failed to show that Connolly’s proffered reasons
for choosing Ericson were pretextual. See Burdine, 450 U.S.
at 252-53. Connolly stated that the primary factor in her
decision was based on Ericson’s experience with one of
Fairbanks’ largest and most difficult accounts, Avondale.
Connolly knew that Avondale was a complex and demand-
ing client and that Ericson, during his many years of
working with Avondale, had continually pleased Avondale’s
management and personnel. On the other hand, Connolly
was aware that an Avondale representative had complained
about Gabriel’s “rude and uncooperative” attitude. Connolly
focused on Ericson’s extensive and positive working rela-
tionship with Avondale. Even Balderston’s evaluations
support Ericson’s skill in working with Avondale. Gabriel
has produced no factual evidence that Connolly’s decision
to appoint Ericson instead of Gabriel was intentional age
discrimination. See Uhl, 121 F.3d at 1137.
Gabriel also maintained that although he was qualified,
he was not considered for the position of a program admin-
istrator in the government programs department. The
position was offered to Tom Hennis, age 48. The six-year
age difference does not rise to the level of a “substantially
younger,” similarly situated person, as required by the
Seventh Circuit in cases where the replacement is not
shown to be outside the protected class. See Hartley, 124
F.3d at 893.
Summary judgment was properly granted on both
Balderston’s and Gabriel’s claims of age discrimination.
III. CONCLUSION
For the above-stated reasons, we AFFIRM the judgment of
the district court.
26 No. 01-1166
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-17-03