Luks, Peter v. Baxter Healthcare ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3866
PETER LUKS,
Plaintiff-Appellant,
v.
BAXTER HEALTHCARE CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2958—Matthew F. Kennelly, Judge.
____________
ARGUED APRIL 3, 2006—DECIDED NOVEMBER 3, 2006
____________
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit
Judges.
ROVNER, Circuit Judge. Peter Luks contends that Baxter
Healthcare Corporation (“Baxter”) discharged him on the
basis of age, in violation of the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”). The
district court granted summary judgment to Baxter. Luks
appeals, and we affirm.
I.
Luks began his employment with Baxter in 1982. Twenty
years later, at the time of his discharge, he had attained the
2 No. 05-3866
position of Senior Business Systems Consultant. He was
fifty-two years old when he was terminated.
In August 2000, Baxter hired John Goode as its Vice
President of Architecture, Technology and Planning, and
Luks began reporting to Goode. Goode prepared Luks’ year-
end evaluation for 2000. In the original draft of that
evaluation, Goode indicated that Luks did not meet expecta-
tions in two areas. After discussing the draft with Luks,
Goode revised the evaluation to indicate that Luks was
meeting expectations in those areas. However, the final
report was still critical of Luks in certain respects, observ-
ing for example that Luks did not provide sufficient leader-
ship, direction and managerial support to the team of
technical employees under him.
In March of the following year, Baxter hired Carol Kazl as
the Director of the company’s Program Office. That office
was responsible for coordinating all information technology
projects undertaken throughout the firm. Goode assigned
Luks to work in the Program Office as a Technical Consul-
tant under Kazl’s supervision. Luks’ first assignment was
to develop a process by which the Program Office would
evaluate and prioritize requests for information technology
work and then assign those requests to a team in the
Corporate Information Technology Department. Luks was
well into the development of this prioritization process in
late August of 2001, when Kazl gave him his mid-year
evaluation. Kazl rated Luks as meeting expectations
overall. She did suggest, however, that Luks needed to
make more of an effort to submit his status and time
reports in a timely manner, to be open to new ideas and
suggestions, to follow through on the implementation of his
ideas, and to more effectively discuss the prioritization
process on a broader (i.e., less technically detailed) level.
Kazl advised Luks that his title would change to that of
Senior Business Systems Consultant at the end of the year
No. 05-3866 3
as he began to implement and manage the prioritization
process he had been developing.
During the latter part of 2001, as Luks increasingly
focused on implementation and management of the priori-
tization process he had developed, Kazl became dissatisfied
with his performance. Kazl was concerned that the turn-
around time on project requests was too great, that the
database of pending information technology requests that
Luks had created was not kept updated, and that Luks
failed to follow through on offers of assistance. When she
completed her year-end evaluation of Luks’ performance,
Kazl concluded that Luks was not managing the prioritiza-
tion effectively and thus was not meeting expectations. Kazl
identified ten specific areas in which Luks needed to
improve. Kazl shared her evaluation with Goode, who
agreed with her assessment.
Kazl met with Luks in January 2002 to discuss the
evaluation. Luks voiced his disagreement with a number of
comments in the review as well as its overall negative tone.
Kazl made certain revisions to the report based on her
discussion with Luks, deleting some criticisms but leaving
others in place. She also drafted a set of performance
objectives for the new year that she had Luks review and
acknowledge. Luks subsequently complained to Goode that
he believed his year-end review was inaccurate and unfair.
Goode informed Luks that he would defer to Kazl’s assess-
ment. Goode gave Luks the impression that he did not need
to worry about the review.
Because she had given Luks an overall rating of “does not
meet expectations,” Kazl placed him on a thirty-day perfor-
mance improvement plan. The plan set forth cer-
tain observations about Luks’ prior performance and set
forth twenty-eight targets for improvement. Before she
imposed the plan, Kazl consulted with Goode as well as
Gretchen Nester, Baxter’s Human Resources Manager, both
4 No. 05-3866
of whom thought that the plan was appropriate. Kazl
presented the plan to Luks in late March 2002 and went
through it with him. After reviewing the plan at home, Luks
discussed it with Kazl a second time. Luks again expressed
his disagreement with Kazl’s assessment that his perfor-
mance was not meeting expectations. At the conclusion of
the discussion, Kazl admonished Luks that he was expected
to meet the objectives of the plan within the next thirty
days. Luks believed that he would be able to do so; he also
understood that he was subject to termination if he did not.
Luks and Kazl were to meet regularly to evaluate his
progress, but it was otherwise Luks’ responsibility to
provide Kazl with updates.
Luks subsequently met with Goode to discuss the perfor-
mance plan. Luks read Goode a prepared statement ex-
pressing his reservations regarding Kazl. Luks asked that
he report directly to Goode instead of Kazl and/or that the
performance plan be removed from his file. Goode denied
these requests. He suggested that Luks try to comply with
the plan and indicated that his performance would be
reviewed in thirty days.
Although Kazl was initially encouraged with Luks’ efforts
to comply with the plan, at the end of the thirty-day period
she concluded that Luks had not sufficiently improved his
performance. Kazl believed that Luks’ performance was still
unacceptable in a number of respects. In fact, as she
updated the performance plan to reflect what Luks had
achieved, she concluded that Luks had met only nine of the
twenty-eight objectives in the plan. After meeting with
Nester, Kazl decided to terminate Luks. Goode subse-
quently reviewed the updated performance plan and
concurred in Kazl’s decision.
On May 2, 2002, Kazl and Nester met with Luks and
advised him that Baxter was terminating his employ-
ment for failure to satisfy the requirements set forth in
No. 05-3866 5
the performance plan. Kazl went through the plan with
Luks and discussed with him her assessment of his progress
as to each of the objectives included in the plan. Luks
registered his disagreement with a number of Kazl’s
observations.
Following Luks’ departure from the company, Baxter
initially posted his position as open, and two of his former
co-workers, Terri Stevens and Nathan Habeck, were
directed to assume his duties until the vacancy was filled.
Baxter subsequently concluded that budgetary con-
straints precluded the company from hiring anyone to
fill the position. At that point, Stevens took over the bulk of
Luks’ former responsibilities. The following year, organiza-
tional changes prompted Baxter to abandon the prioritiza-
tion process that Luks had spearheaded.
II.
Luks contends, contrary to the district court’s conclusion,
that he has presented sufficient evidence that he was
discharged because of his age so as to require a trial. Our
review of the district court’s summary judgment is de novo.
E.g., Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). We
are, of course, obliged to construe the admissible evidence
in Luks’ favor in deciding whether the record presents a
question of material fact that precludes summary judgment
in Baxter’s favor. Id.
A plaintiff can establish that he is the victim of age
discrimination through direct or indirect means. The
distinction between the two avenues of proof is “vague,”
Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d
900, 903 (7th Cir. 2006), and the terms “direct” and “indi-
rect” themselves are somewhat misleading in the present
context. For, as we recently explained in Sylvester, “direct”
proof of discrimination is not limited to near-admissions by
6 No. 05-3866
the employer that its decisions were based on a proscribed
criterion (e.g., “You’re too old to work here.”), but also
includes circumstantial evidence which suggests discrimina-
tion albeit through a longer chain of inferences. Id. at 902-
03; see also Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695
(7th Cir. 2006). The “indirect” method of proof involves a
subset of circumstantial evidence (including the disparate
treatment of similarly situated employees) that conforms to
the prescription of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973). See Sylvester,
453 F.3d at 902. Luks believes that he can establish age
discrimination through both means.
Luks has identified two sets of facts in an effort to
establish directly that he is the victim of age discrimination.
The first includes a series of remarks by Goode which, in
Luks’ view, evince a desire to rid Goode’s department of its
oldest employees, including Luks. The second is a series of
circumstances that, as Luks interprets them, suggest a plan
by Goode to make his wish a reality. We begin with the
second set of circumstances.
Luks cites a series of events, remarks, and documents
which Luks believes amount to what the cases describe as
a “mosaic” of facts bespeaking age discrimination. See id. at
903 (collecting cases). As Sylvester clarified, evidence of this
sort need not necessarily take the form of a convincingly
rich mosaic; it is enough that the circumstances give rise to
a reasonable and straightforward inference that the
employer has relied on a proscribed factor in taking action
against the employee. Id. at 904; see also Ptasznik, 464 F.3d
at 695. Luks relies on the following evidence to create this
mosaic.
First, Cynthia Overby, Manager of Web Services, had
a meeting with Goode in late 2001 or early 2002 in
which Goode expressed dissatisfaction with the performance
of Glen Jurmann and Larry Helsith, both of whom reported
No. 05-3866 7
to her. Overby herself was satisfied with the work of both
men and told Goode so. Nonetheless, Goode subsequently
directed Overby to put Helsith and then Jurmann on
performance plans. Overby disagreed with the need for such
plans. When she told Goode that she did not believe that a
plan for Jurmann was necessary (she believed his perfor-
mance was excellent), Goode told her that if she was
unwilling to implement such a plan, she should find a
position for Jurmann elsewhere in the company; Overby
later succeeded in having Jurmann transferred to a differ-
ent department. Overby did implement a plan for Helsith
(whose work she regarded as above average) in consultation
with both Goode and Nester but became convinced that they
were intent on fabricating a reason for Helsith’s discharge.
In an effort to prevent that from happening, Overby
provided Nester with performance appraisals documenting
Helsith’s satisfactory performance. When Goode found out
what Overby had done, he fired her. Helsith was subse-
quently terminated as part of a reduction in force.
Second, there are three documents which, in Luks’ view,
bespeak a plan to get rid of Helsith, Jurmann, and himself.
Overby testified that when she met with Goode in late 2001
or early 2002 and he expressed his dissatisfaction with
Helsith and Jurmann, she happened to observe that Goode
had a sheet of paper in his notebook which had not only
their names but Luks’ name written on it. (Overby could not
recall what else was written on the paper.) Next, not long
after Kazl became Luks’ supervisor, she discovered some
sort of blank performance plan in Luks’ personnel file that
appeared to envision certain action vis-à-vis Luks’ employ-
ment; the plan had the names of Helsith, Jurmann, and
Luks written on it. Kazl mentioned the document to Nester
and showed it to Luks; neither of them knew anything
about it. When Luks himself reviewed his personnel file
days later, the document was no longer there. Finally, a
blank “Performance Objective Template” produced by
8 No. 05-3866
Baxter in discovery likewise bore the names of Luks,
Helsith, and Jurmann. A handwritten note at the bottom of
the template, dated February 8, 2001, reflects a meeting
between Goode and someone else concerning efforts to
document Luks’ performance. It was around this same time
that Goode began keeping a log of “various issues” involving
Luks. Goode Dep. 214.
Third, Luks contends that the criticisms included in his
2001 year-end review, the observation items that were later
incorporated into his performance plan, and the reasons
given for his termination either were factually inaccurate,
failed to comprehend Luks’ role in the Program Manage-
ment Office, or were unsupported with examples. Luks adds
that Kazl was unreceptive to a dialogue about the accuracy
of these criticisms, as was Goode. To Luks’ mind, Kazl,
consistent with Goode’s wish to get rid of him, was simply
fabricating a list of reasons to justify his discharge. Luks
points out that Overby had the same impression. Overby
testified that she had discussed Luks’ performance improve-
ment plan with Kazl, who came to her for guidance knowing
that Overby had been asked to put together similar plans
for Helsith and Jurmann. According to Overby, Kazl was
not quite sure how to proceed with the plan, was “extremely
frustrated” by the task, and was not quite sure what “they”
wanted. Overby Dep. 41, 44-45. Overby herself had worked
with Luks and had a favorable impression of his skills.
Overby surmised that Luks, like Helsith and Jurmann, was
being set up for discharge.
We may assume for the sake of argument that these
bits of evidence, individually and collectively, are consistent
with there being a wish and a plan by Goode to get rid of
Luks along with Helsith and Jurmann irrespective of their
actual performance. The factfinder arguably could infer
from the testimony of Overby, as Helsith’s and Jurmann’s
immediate supervisor, that they were being targeted for
termination for reasons unrelated to their performance. The
No. 05-3866 9
inference is somewhat less plausible as to Luks, in that it
depends largely on his own subjective assessment (with a
second from Overby and certain of his co-workers) that his
performance was adequate. We shall have more to say
about that below with respect to pretext, but we will put
that aside for now. The documents, which mention Luks as
well as Helsith and Jurmann and which appear to have pre-
dated the implementation of any of the performance plans,
likewise could be seen as being consistent with a precon-
ceived plan to get rid of all three employees.
But, as the district court reasoned, nothing in this mosaic
of evidence supports the inference that Goode’s apparent
wish to terminate these three employees was motivated by
their age. Luks does point out that the three of them were
the oldest employees in Goode’s chain of command. That
fact is certainly consistent with age being the reason why
Goode may have singled them out, but it does not affirma-
tively suggest that Goode was seeking to oust them because
of their age.
Luks has, however, identified a separate collection of facts
that he believes support this very inference. These include
a series of remarks related to age that, in Luks’ view,
indicate that Goode was averse to older employees like
Luks.
First, in the course of discussions between Goode and
Overby regarding the implementation of performance plans
for Helsith and Jurmann, Goode remarked at one point that
he wanted to get rid of the “good old boys” and bring an end
to the “good old boys club.” See Overby Dep. 20-21. (Accord-
ing to Baxter, Goode made those remarks not during a
discussion of Helsith and Jurmann, but rather in reference
to individuals on a technical leadership team who had been
with the company for long periods of time. But we accept
Luks’ construction as accurate for present purposes.) Goode
also indicated to Overby that he was looking for “higher
energy” employees. Overby Dep. 23.
10 No. 05-3866
Second, Human Resources Manager Nester reported
complaints from both Jurmann and Helsith that Goode was
“disrespectful” and “lacked professionalism” in his interac-
tions with people and more specifically that he had made
remarks to them about “old timers.” Nester Dep. 46-47, 52.
Helsith had indicated to Nester that Goode used that term
in reference to long-time Baxter employees.
Third, in April or May 2002, around the time of Luks’
termination, Goode introduced Luks to a new secretary
at Baxter as “the old guy in the department.” Luks Dep.
235-36.
Ultimately, none of these remarks supports the inference
that Luks was discharged because of his age. With respect
to the “good old boy” references, we have previously held
that a nearly identical remark, uttered by another Baxter
employee, was not evidence of age discrimination. Lindsey
v. Baxter Healthcare Corp., 962 F.2d 586, 588 (7th Cir.
1992) (“No weight can be attached to an overheard comment
that Baxter does not like to promote ‘good old boys,’ since
any competent user of the English (or rather the American)
language knows that to be a good old boy one need not be
old, or for that matter good.”). Goode’s expressed interest in
“higher energy” employees, although potentially consistent
with age discrimination, is not by itself direct evidence of
such discrimination. E.g., Fortier v. Ameritech Mobile
Communications, Inc., 161 F.3d 1106, 1113 (7th Cir. 1998);
Svenson v. William Wrigley, Jr. Co., No. 95 C 4198, 1996
WL 705250, at *4-*5 (N.D. Ill. Nov. 27, 1996) (Williams, J.).
Nester’s testimony as to what Helsith and Jurmann told her
about Goode’s remarks amounts to inadmissible hearsay, as
the district court reasoned. Luks has made no effort to
surmount that problem. Finally, Goode’s reference to Luks
as the “old guy in the department,” even if construed as a
reference to his age rather than his tenure, does not suggest
that age was a factor in the decision to fire Luks. Beyond
the fact that the remark (which Luks admits was “kind of
No. 05-3866 11
a joke,” Luks Dep. 237) was made close in time to Luks’
discharge, nothing links Goode’s remark to Baxter’s decision
to let Luks go. Indeed, the record indicates that it was Kazl,
not Goode, who made the decision to fire Luks. It was Kazl
who concluded at the end of 2001 that Luks’ performance
was unsatisfactory, who then drafted a performance plan
for Luks, and who concluded ultimately that Luks should be
terminated for failing to achieve the objectives of that plan.
Goode, it is true, approved Kazl’s decisions at each step of
this process and testified that he “coached” her in the
implementation of the performance plan to ensure that she
was taking the correct steps procedurally. Goode Dep. 58.
But the record does not support the inference that Goode
had any role in the events culminating in Luks’ termination
other than signing off on and supporting Kazl’s independent
decisions. In short, there is no evidence that Goode’s dislike
of older workers, if that is what his remarks reveal, played
any role in Luks’ termination.
Luks is left with trying to establish discrimination under
the McDonnell Douglas framework. Under that framework,
Luks must first establish a prima facie case of discrimina-
tion by showing, among other things, that he was meeting
Baxter’s legitimate performance expectations. Assuming
that Luks makes out a prima facie case, Baxter must then
articulate a legitimate, nondiscriminatory reason for his
discharge. Luks is then obliged to establish that the reason
articulated for his discharge is pretextual. The district court
proceeded directly to the subject of pretext, assuming that
Luks had made a prima facie showing of discrimination and
that Baxter had articulated nondiscriminatory reasons for
Luks’ termination. We shall do the same.
As noted above, Luks contends that the criticisms cited in
his adverse year-end review for 2001 and the ensuing
performance plan were inaccurate and/or unfounded. He
adds that we should not credit Kazl’s testimony that he
ultimately failed to meet the goals of the performance plan,
12 No. 05-3866
because Kazl acknowledged that Luks showed significant
improvement during the first two weeks of the thirty-day
period but was largely out of the office for the rest of that
period. Moreover, two of the co-workers who worked most
closely with Luks during the year preceding his termina-
tion, Stevens and Habeck, testified that they were unaware
of any issues with Luks’ performance and believed that he
was doing a good job. Habeck, it turns out, shared responsi-
bility with Luks for certain aspects of the prioritization
process (for example, keeping the database of pending
project requests updated), yet unlike Luks Habeck was
never criticized by Kazl for the shortcomings she perceived
in those areas. And like Luks, Habeck and also Stevens
were expected to give Kazl weekly updates on their job
responsibilities. Both Stevens and Habeck said that they
occasionally failed to provide Kazl with those reports, yet
neither was ever rated negatively by Kazl for those failures.
The problem is that none of this suffices to establish
pretext. Luks’ own opinion that he was doing the job
satisfactorily is beside the point. See, e.g., Jackson v. E.J.
Brach Corp., 176 F.3d 971, 985 (7th Cir. 1999). His asser-
tions as to purely factual matters within his per-
sonal knowledge might establish questions of fact on
those points, Payne v. Pauley, supra, 337 F.3d at 771-73,
but the relevant question is not whether the criticisms of
his performance were right or wrong but whether his
supervisor honestly believed them. E.g., Gusewelle v. City of
Wood River, 374 F.3d 569, 576 (7th Cir. 2004). At most,
Luks’ disagreement with the criticisms levied against
him, coupled with the purported unwillingness of either
Kazl or Goode to discuss his disagreement, shows that Kazl
may have been mistaken in her assessment and that both
she and Goode were bull-headed in their refusal to consider
that possibility; but it does not show that Kazl was untruth-
ful in her negative evaluation of Luks. The fact that Kazl
thought he was doing well on the performance plan initially
No. 05-3866 13
does not undercut her ultimate conclusion that he did not
meet all of the plan’s objectives. Kazl herself agreed at end
of the thirty-day period that Luks had met some of the
objectives but believed that he had failed to achieve others.
The fact that she was not in the office for a portion of the
thirty-day period does not call into question the honesty of
that conclusion. Finally, the fact that Luks’ coworkers
thought he was doing a good job is beside the point. They
were not charged with the responsibility of monitoring and
evaluating Luks’ work performance; Kazl was.
Potentially more relevant is the evidence that two of the
people who worked with Luks—Habeck and Stevens— were
not evaluated negatively despite the fact that Habeck’s
duties overlapped with those of Luks on aspects of the
prioritization process that Kazl found wanting and that
Habeck and Stevens both engaged in conduct (namely,
failing to submit weekly reports) for which Kazl criticized
Luks. Given that Habeck and Stevens worked in the same
department as Luks and reported to Kazl, the disparate
treatment might call into question the reasons Kazl gave for
concluding that Luks was not performing up to snuff. Still,
there are two problems with this evidence. First, Luks was
the individual responsible for the development and imple-
mentation of the prioritization process, and Kazl arguably
would be entitled to hold Luks to a higher standard of
conduct based on his leadership position. That point aside,
the testimony of Habeck and Stevens calls into question
some but not all of the grounds on which Kazl concluded
that Luks was not meeting expectations. As such, the
evidence does not support the inference that the overall
basis for Luks’ discharge was pretextual. See Wolf v. Buss
(America) Inc., 77 F.3d 914, 920 (7th Cir. 1996).
Even if we take into account the other circumstantial
evidence that Luks has cited as direct evidence of discrimi-
nation, including in particular the evidence suggesting that
Goode had a wish to get rid of Luks, the case for pretext
14 No. 05-3866
still comes up short. The evidence of record indicates that
it was Kazl, not Goode, who found Luks’ performance
wanting and who ultimately made the decision to fire him.
Goode, as we have said, supported Kazl but (so far as the
evidence reveals) did not direct or urge her to make that
decision. To the extent one can infer that Goode had an
intent to terminate Luks irrespective of his work perfor-
mance, there is no evidence that Kazl was a party to that
plan and concocted false criticisms of Luks’ work in an
effort to carry the plan out.
III.
We AFFIRM the entry of summary judgment against Luks
and in favor of Baxter.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-3-06