Cerutti, Terry L. v. BASF Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3471 & 02-3700
TERRY CERUTTI, DANIEL ALLEN, RODNEY BRYANT,
ET AL.,
Plaintiffs-Appellants/Cross-Appellees,
v.
BASF CORPORATION, GERARD SABO,
KATHY REARDON, ET AL.,
Defendants-Appellees/Cross-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 8966—George W. Lindberg, Judge.
____________
ARGUED MAY 14, 2003—DECIDED NOVEMBER 21, 2003
____________
Before POSNER, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. In February 2000, BASF Corpora-
tion decided to restructure its styrenics operating unit. As
part of this corporate reorganization, BASF terminated 23
employees at its styrenics manufacturing plant in Joliet,
Illinois. Ten of those employees filed suit against BASF,
alleging that the company fired and declined to rehire them
2 Nos. 02-3471 & 02-3700
on the basis of age, race, or national origin in violation of the
Age Discrimination in Employment Act (“ADEA”) and Title
VII. Some of the plaintiffs also brought claims against three
individual BASF employees, alleging that they intentionally
interfered with the plaintiffs’ employment relationships
because of their race or national origin in violation of 42
U.S.C. § 1981. The defendants filed a motion for summary
judgment, which the district court granted. The defendants
also filed a motion for sanctions against the plaintiffs’
counsel, which the district court denied. The plaintiffs
appeal the district court’s decision granting the defendants’
motion for summary judgment, and the defendants cross-
appeal the court’s denial of their motion for sanctions. We
affirm.
I.
BASF Corporation is headquartered in Mount Olive, New
Jersey, and is comprised of 19 operating units, one of which
is devoted to the company’s styrenics production (“NPR
1
Unit”). The products for BASF’s NPR Unit are manufac-
tured at plants throughout North America, including one in
Joliet, Illinois, which manufactures various forms of poly-
styrene. As a result of financial losses suffered by the
company’s NPR Unit, BASF implemented a program of
“Site Process Optimization” in 1998, which was completed
in early 1999. Despite this program, the NPR Unit’s perfor-
mance for 1999 was still slightly negative and only a modest
return on assets was projected for 2000. This resulted in
BASF developing a new business plan that included the
reorganization of virtually the entire NPR Unit, the purpose
1
Styrene plastics are all-purpose plastics that can be found in
thousands of different products: automobiles, CD cases, packag-
ing, computer housing, monitors or printers (to name just a few).
Nos. 02-3471 & 02-3700 3
of which was to “reduce the number of personnel and
repopulat[e] the organization with individuals who dem-
onstrated specific behavioral skills and attributes that BASF
believed were necessary to [the unit’s] future success, and
who, going forward, ‘could do more with less’ in order to
achieve the necessary [return on assets].” In February 2000,
BASF formally notified the Joliet facility employees of its
intention to restructure the NPR Unit.
In the first phase of the restructuring process, BASF
offered a Voluntary Special Early Retirement Program
(“VSERP”) to all employees aged 53 or over who had ten or
more years of service with the company as of December
2000. During the second phase, all employees who desired
to continue their employment with the NPR Unit, young
and old alike, were assessed to determine whether they
possessed the “competencies” the company believed were
necessary to effectively restructure the unit. Employees who
lacked these competencies would be “deselected,” i.e.,
terminated. To assist it with the assessment process, BASF
retained the services of Development Dimensions Interna-
tional (“DDI”), a leader in the behavioral assessment field.
BASF began the restructuring process by categorizing all
of the employees from its NPR Unit into “job families.”
Nine of the plaintiffs were placed in the “Operators” Job
Family, i.e., hourly plant or lab workers, and one plaintiff,
Pearl Adams, was placed in the “Individual Contributor”
Job Family, which was designated for salaried, non-supervi-
sory employees. Key competencies for each job family were
then defined. Some of the competencies were developed
through the joint efforts of BASF and DDI, whereas others
were designed solely by BASF.
Shortly thereafter, DDI assessed personnel at the various
NPR facilities nationwide. At the Joliet plant, 83 Operators
and 13 Individual Contributors were evaluated with iden-
4 Nos. 02-3471 & 02-3700
tical standard assessment techniques—i.e., problem-solving
exercises, role-plays and targeted interviewing. These as-
sessments were done over the telephone and DDI employ-
ees were not informed of the age, race or national origin of
the BASF employees being evaluated. DDI forwarded its
results to BASF for further consideration by the company’s
2
selection panels. The selection panels were committees
formed by BASF (and were comprised of individuals
selected for leadership roles in the new organization) to act
as the final arbiters on the competency levels of those
individuals currently employed by the company in its NPR
Unit. The six-member selection panel assembled to assess
the competencies of employees in the Operators Job Family
at the Joliet facility included: Kevin Biehle (a defendant in
this action), Lawrence Brandin, Rich Harris, Gerard Sabo
(also a defendant), Troy Shaner, and Thad Zdunich. The
five-member selection panel for the Individual Contributors
Job Family at the Joliet facility consisted of: Biehle, Brandin,
Sabo, Shaner, and Rick Lee. Katherine Reardon, a defendant
and BASF’s Director of Human Resources for the Polymers
Division (which includes the company’s NPR Unit), at-
tended all of the panel meetings held at the Joliet facility to
oversee the implementation of the selection process and to
ensure that the relevant guidelines were consistently
applied.
The purpose of each selection panel was twofold: (1) to
review DDI’s scores and integrate them with the panels’
collective knowledge of each employee’s workplace be-
havior and performance; and (2) to evaluate additional
2
The employees’ scores were reported to BASF on “profile
sheets” based on a three-point scale: “3” indicated a strength, “2”
indicated a proficiency, and “1” indicated a developmental need.
Nos. 02-3471 & 02-3700 5
competencies of each employee not considered by DDI. In
reviewing DDI’s competency evaluations, the selection
panels applied the same three-point scale utilized by DDI to
evaluate whether the scores given to an employee were
consistent with his or her actual exhibited workplace be-
havior and performance. If no panel member voiced dis-
agreement with a score assigned to an employee by DDI, it
became final for that particular competency. Panel members
who disagreed with a competency score were required to
identify specific instances of workplace conduct that called
into question the accuracy of the score given by DDI to the
employee. This was then followed by a panel discussion on
the behavioral examples cited by the objecting panel
member(s). If the panel reached a consensus that the DDI
score did not accurately reflect an employee’s on-the-job
behavior or performance, the score was increased or
3
decreased accordingly. The initial findings of the selection
panels were then reviewed by BASF’s legal department and
analyzed by Roland DeLoach, BASF’s Manager of Equal
Employment Opportunity, for possible adverse impact.
BASF was advised that the tentative results of the assess-
ment process employed by the company did not have a
statistically significant impact on any protected group.
Upon being so advised, BASF finalized the decisions made
by the selection panels, which were then conveyed to NPR
Unit employees on June 2, 2000.
Thereafter, Pearl Adams, Daniel Allen, Rodney Bryant,
Terry Cerutti, Richard Clinton, Steven Davis, Anita Krantz,
James Perona, Steve Real, and Michael Severado—all of
whom were terminated for having six or more developmen-
3
At the time the selection panels rendered their decisions, its
members were not aware that BASF had tentatively concluded
that all employees with 6 or more developmental needs (out of
the 14 competencies assessed) would be terminated.
6 Nos. 02-3471 & 02-3700
tal needs—filed suit against BASF, Kevin Biehle, Kathy
Reardon, and Gerard Sabo. All ten of the plaintiffs alleged
that BASF fired and declined to rehire them because of their
age in violation of the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff Steve Real
(who is Hispanic) and plaintiffs Pearl Adams, Daniel Allen,
and Michael Severado (all of whom are black), also filed
claims against BASF, alleging that the company fired and
declined to rehire them on account of their race or national
origin in violation of Title VII, 42 U.S.C. § 2000e et seq., and
against Biehle, Reardon, and Sabo, alleging that they
intentionally interfered with these plaintiffs’ employment
relationships because of their race or national origin in
violation of 42 U.S.C. § 1981. The defendants filed a motion
for summary judgment, which the district court granted.
The defendants also filed a motion for sanctions against the
plaintiffs’ counsel, which the court denied. The plaintiffs
appeal the district court’s decision granting the defendants’
motion for summary judgment, and the defendants cross-
appeal the court’s denial of their motion for sanctions.
II.
The plaintiffs argue that the district court erred in grant-
ing the defendants summary judgment for their age, race,
and national origin discrimination claims. We review de
novo the district court’s decision to grant summary judg-
ment, construing all facts, and drawing all reasonable
inferences from those facts, in favor of the plaintiffs, the
non-moving parties in this case. Peele v. Country Mut. Life
Ins. Co., 288 F.3d 319, 326 (7th Cir. 2002). Summary judg-
ment is proper when the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
Nos. 02-3471 & 02-3700 7
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56.
A plaintiff may prove employment discrimination under
the ADEA, Title VII, and § 1981, using either the “direct
4
method” or “indirect method.” Cianci v. Pettibone Corp., 152
F.3d 723, 727-28 (7th Cir. 1998). Under the direct method of
proof, a plaintiff may show, by way of direct or circumstan-
tial evidence, that his employer’s decision to take an adverse
job action against him was motivated by an impermissible
purpose, such as race, national origin, or age. Id. at 727.
Direct evidence is evidence that, if believed by the trier of
fact, would prove discriminatory conduct on the part of the
employer without reliance on inference or presumption.
Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003);
Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir.
1997). In short, “[d]irect evidence ‘essentially requires an
admission by the decision-maker that his actions were based
upon the prohibited animus.’ ” Rogers, 320 F.3d at 753(citation omitted). A plaintiff can also prevail under the
direct method of proof by constructing a “convincing
mosaic” of circumstantial evidence that “allows a jury to
infer intentional discrimination by the decisionmaker.” Id.;
see also Troupe v. May Dept. Stores, Inc., 20 F.3d 734, 736 (7th
Cir. 1994). That circumstantial evidence, however, “must
point directly to a discriminatory reason for the employer’s
action.” Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th
Cir. 2003).
If a plaintiff cannot prevail under the direct method of
4
We employ essentially the same analytical framework to em-
ployment discrimination cases whether they are brought under
the ADEA, Title VII, or § 1981. Robin v. Espo Eng’g Corp., 200 F.3d
1081, 1088 (7th Cir. 2000); Vakharia v. Swedish Covenant Hosp., 190
F.3d 799, 806 (7th Cir. 1999).
8 Nos. 02-3471 & 02-3700
proof, he must proceed under the indirect method, i.e., the
familiar McDonnell Douglas framework. Adams, 324 F.3d at
939. In the context of a large-scale workplace restructuring
or reorganization (i.e., where the employer is “cleaning
house” and essentially no one’s job is safe), a plaintiff
proceeding under the indirect method must, as an initial
matter, show that: (1) he is a member of a protected class
(e.g., race, national origin, age); (2) he was qualified to
be retained or rehired; (3) he was discharged, not rehired,
not promoted, or the like, as a result of the workplace re-
structuring or reorganization; and (4) similarly situated
employees outside of his protected class were treated more
5
favorably by the employer. Hartley v. Wisconsin Bell, Inc.,
124 F.3d 887, 889-90 (7th Cir. 1997); see also Paluck v. Gooding
Rubber Co., 221 F.3d 1003, 1011-12 (7th Cir. 2000). If the
plaintiff establishes a prima facie case of age, race, or
national origin discrimination, the employer, to avoid li-
ability, must then produce a legitimate, nondiscriminatory
reason for the adverse employment decision. Peele, 288 F.3d
at 326. If the employer offers a legitimate, nondiscrimina-
tory explanation for its decision, the plaintiff must then
“rebut that explanation by presenting evidence sufficient to
enable a trier of fact to find that the employer’s proffered
explanation is pretextual [i.e., a lie].” Id. A plaintiff does not
reach the pretext stage, however, unless he first establishes
a prima facie case of discrimination under the indirect
method. Id.5
An ADEA plaintiff who shows that someone “substantially
younger” was retained need not prove that the replacement is
outside the protected class. Balderston v. Fairbanks Morse Engine
Div. of Coltec Indus., 328 F.3d 309, 321 (7th Cir. 2003). This
variation of McDonnell Douglas, however, is not at issue in this
case because none of the plaintiffs attempts to make such a
showing.
Nos. 02-3471 & 02-3700 9
However, whether a plaintiff proceeds under the direct or
indirect method of proof, the ultimate standard is the same:
the plaintiff must demonstrate that the employer would not
have made the adverse employment decision in question
but for his membership in a protected class. Patton v.
Indianapolis Pub. Sch. Bd., 276 F.3d 334, 339 (7th Cir. 2002);
Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 571 (1998).
With the foregoing principles in mind, we now consider the
merits of the plaintiffs’ respective claims.
A. ADEA Claims
All ten plaintiffs allege that they were terminated and not
rehired by BASF because of age discrimination. Specifically,
the plaintiffs argue that they offered evidence sufficient to
establish age discrimination under either the direct or
indirect method of proof. In support of their direct method
argument, the plaintiffs contend that: (1) the early retire-
ment offer made by BASF to certain older employees in the
first phase of the restructuring process was discriminatory
and not truly voluntary; (2) either Jay Kline, the head of the
NPR Unit, or Kathy Reardon, the director of human re-
sources for the NPR Unit, stated at a restructuring meeting
with employees: “There’s no other way; it’s going to be out
with the old and in with the new”; and (3) several ageist
statements were made by Thad Zdunich and Troy Shaner to
plaintiff Daniel Allen (e.g., “[Allen] is going to handle the
young pups” and “How is the old man doing today?”). For
the reasons that follow, we conclude that the preceding
evidence, even when viewed in its most favorable light, is
insufficient to allow the plaintiffs to maintain claims against
the defendants for age discrimination under the direct
method.
10 Nos. 02-3471 & 02-3700
To begin with, the plaintiffs’ argument that BASF engaged
in age discrimination simply by offering some of its older
workers early retirement packages is a nonstarter. Robinson
v. PPG Industries, Inc., 23 F.3d 1159, 1163 (7th Cir. 1994)
(holding that “[t]ruly voluntary retirements do not give rise
to an inference of age discrimination”). Rather, “an offer of
incentives to retire early is a benefit to the recipient, not a
sign of discrimination.” Henn v. National Geographic Soc., 819
F.2d 824, 828 (7th Cir. 1987). Nor is it reasonable to infer that
the retirement program offered by BASF in the first phase of
the restructuring process was discriminatory or involuntary
merely because some of the employees who accepted the
company’s offer did so out of a fear that they would not
make the grade after being assessed. Id. at 828-29. The
ADEA was not enacted to immunize older employees (i.e.,
those 40 and over) from being terminated for legitimate
reasons (e.g., poor social skills, bad attitude, incompetency),
but was instead designed to protect them from being
discriminated against on the basis of their age. Mullin v.
Raytheon Co., 164 F.3d 696, 703 (1st Cir. 1999) (noting that
“ ‘[t]he ADEA was not intended to protect older workers
from the often harsh economic realities of common business
decisions and the hardships associated with corporate
reorganizations, downsizing, plant closings and relocations’ ”)
(citation omitted); Allen v. Diebold, Inc., 33 F.3d 674, 677 (6th
Cir. 1994) (same).
The plaintiffs’ reliance on the “out with the old, in with
the new” statement allegedly made by either Kline or
Reardon is also misplaced. First, neither Kline nor Reardon
was involved in the decisionmaking process that resulted in
the plaintiffs’ terminations (and served as the basis for their
not being rehired). Kline was not a member of either
selection panel and Reardon merely sat in on the selection
panel meetings as a moderator of sorts. Thus, any statement
Nos. 02-3471 & 02-3700 11
made by either of these individuals “ ‘that amount[s] to
mere speculation as to the thoughts of the decisionmaker
[is] irrelevant’ to an inquiry of discrimination.” O’Regan v.
Arbitration Forums, Inc., 246 F.3d 975, 986 (7th Cir. 2001)
(citation omitted); see also Chiaramonte v. Fashion Bed Group,
Inc., 129 F.3d 391, 397 (7th Cir. 1997) (same). Second, even if
Kline and Reardon could be characterized as decision-
makers for purposes of the plaintiffs’ ADEA claims, there is
nothing inherently discriminatory about the colloquialism
“out with the old, in with the new,” and the plaintiffs offer
no evidence upon which a reasonable jury could infer that
this phrase was used by Kline or Reardon in a discrimina-
tory manner. Rogers, 320 F.3d at 753.
Finally, the stray workplace remarks that the plaintiffs
attribute to Shaner and Zdunich offer no support to their
claims of age discrimination. Although Shaner and Zdunich
both participated in the decisionmaking process that led to
6
the plaintiffs’ terminations, they did so as members of
selection panels—the actual decisionmakers in this case.
Shager v. Upjohn, 913 F.2d 398, 405 (7th Cir. 1990) (noting
that a committee can act as a decisionmaker in the employ-
ment discrimination context). Thus, the plaintiffs’ evidence
of Shaner or Zdunich’s alleged animus toward older
workers is relevant only if there is other evidence from
which a reasonable jury could infer that their animus
influenced the selection panels’ deliberations to such a
degree so as to result in the plaintiffs’ terminations. Shager,
913 F.2d at 405. In sum, the plaintiffs were required to show
a causal link between the prejudicial views allegedly ex-
pressed by Shaner and Zdunich and the plaintiffs’ termi-
6
Shaner and Zdunich were both on the six-member “Operators”
selection panel, and Shaner was also on the five-member
“Individual Contributors” selection panel.
12 Nos. 02-3471 & 02-3700
nations—i.e., that “the committee’s decision to fire [them]
was tainted by . . . [this] prejudice.” Id. The plaintiffs have
presented no such evidence, however, and therefore they
cannot rely on any statements made by Shaner and Zdunich
to support their age discrimination claims. But even if the
plaintiffs could make use of the stray remarks they attribute
to Shaner and Zdunich (e.g., “How’s the old man doing
today?”), it would do them little good because these
statements are clearly not sufficient to establish cases of age
7
discrimination under the direct method of proof. Adams,
324 F.3d at 939 (7th Cir. 2003) (noting that circumstantial
evidence under the direct method “must point directly to a
discriminatory reason for the employer’s action”) (emphasis
added); Cianci, 152 F.3d at 727 (noting that “ ‘before seem-
ingly stray workplace remarks will qualify as . . . evidence
of discrimination [under the direct method of proof], the
plaintiff must show that the remarks were related to the
employment decision in question’ ”) (citation omitted).
The plaintiffs also argue, however, that they presented
evidence sufficient to establish prima facie cases of age dis-
crimination under the indirect method. As with most cases
proceeding under the McDonnell Douglas framework, only
7
We also note that many of the allegedly ageist remarks at-
tributed to Shaner and Zdunich are so dated that they have no
temporal proximity to the plaintiffs’ terminations, and thus may
not be used to support their age discrimination claims. Markel v.
Board of Regents, 276 F.3d 906, 910 (7th Cir. 2002) (holding that
statements made two months before termination were not con-
temporaneous, and therefore did not constitute circumstantial
evidence under the direct method of proof); Gleason v. Messirow
Fin., Inc., 118 F.3d 1134, 1140 (7th Cir. 1997) (holding that
statement made “as much as three months” before termination
was not contemporaneous).
Nos. 02-3471 & 02-3700 13
the second and fourth requirements of the test are at issue
here—i.e., the “legitimate expectations” and “similarly
situated” prongs. The plaintiffs contend that they were
qualified to be retained or rehired by BASF and that simi-
larly situated younger employees were treated more fa-
vorably by the company in the workplace restructuring or
reorganization process. We disagree. It is undisputed that
BASF established six or more developmental needs as the
standard for being “unqualified” to remain with the com-
pany, and that each of the plaintiffs was terminated after the
selection panels concluded that they possessed six or more
developmental needs. The plaintiffs do not contest either of
these facts, but instead maintain that they were qualified to
be retained by BASF because: (1) the methodology used by
the company to measure the competency of its employees
was inherently flawed; (2) their prior positive performance
reviews demonstrate that they were qualified to be retained;
(3) many of them were found to be competent in areas by
DDI, but had their scores lowered by the selection panels;
and (4) there is no appreciable difference between the job
duties of employees in the restructured organization and
those performed by employees under the former regime.
Almost all of these arguments, however, are merely an
attempt by the plaintiffs to characterize the assessment
process utilized by BASF in restructuring its NPR Unit as a
pretext for age discrimination. But a plaintiff is not entitled
to call into question the veracity or motives of his employer
unless he first demonstrates that he was meeting the em-
ployer’s legitimate workplace expectations. Peele, 288 F.3d
at 328 (noting that “[i]f a plaintiff fails to demonstrate that
she was meeting her employer’s legitimate expectations, the
employer may not be ‘put to the burden of stating the
reasons for [her] termination’ ”) (citation omitted); Coco v.
Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir. 1997)
(same). “A plaintiff does not reach the pretext stage [of
McDonnell Douglas], however, unless she first establishes a
14 Nos. 02-3471 & 02-3700
prima facie case of discrimination.” Peele, 288 F.3d at 326. To
the extent the plaintiffs’ contentions could possibly be
interpreted as arguments that they were qualified to be
retained or rehired by BASF, or that the company applied its
legitimate employment expectations in a discriminatory
8
manner, we will address them.
At the outset, we note that one of the primary purposes of
the restructuring process implemented by BASF was to
determine whether its current employees possessed the
skills necessary to perform prospectively in a manner con-
sistent with the company’s newly devised, increased work-
place expectations. That BASF chose to make such determi-
nations by utilizing a process that did not take into account
the plaintiffs’ prior written performance evaluations is of no
import. Scott v. Parkview Memorial Hosp., 175 F.3d 523, 525
(7th Cir. 1999) (emphasizing that employers are not required
“to prefer paper-heavy evaluations over contextual assess-
ments by knowledgeable reviewers, or to exalt an assessment
of past conduct over a prediction of future performance”) (em-
phasis added). Indeed, whether the plaintiffs or this court
believe that BASF’s prescribed methodology for gauging the
prospective abilities of its employees was fair, prudent, or
wise is beside the point. Employers, not employees or
courts, are entitled to define the core qualifications for a
position, so long as the criteria utilized by the company are
of a nondiscriminatory nature. Leisen v. City of Shelbyville,
8
We have held that “[w]hen a plaintiff produces evidence suf-
ficient to raise an inference that an employer applied its legiti-
mate employment expectations in a disparate manner (i.e., ap-
plied expectations to similarly situated . . . younger employees in
a more favorable manner), the second and fourth prongs
merge—allowing the plaintiff to stave off summary judgment for
the time being, and proceed to the pretext inquiry.” Peele, 288
F.3d at 329.
Nos. 02-3471 & 02-3700 15
153 F.3d 805, 808 (7th Cir. 1998). And there is certainly
nothing inherently discriminatory about an employer’s
decision to use criteria other than past performance evalua-
tions to determine whether its employees can meet the
increased workplace expectations that often coincide with
a corporate reorganization. Gorence v. Eagle Food Centers,
Inc., 242 F.3d 759, 765 (7th Cir. 2001) (noting that “[w]hat the
qualifications for a position are, even if those qualifications
change, is a business decision, one courts should not
interfere with”). Indeed, we have repeatedly held that
“ ‘prior job performance evaluations, standing alone, [do
not] create a genuine issue of triable fact when . . . there have
been substantial alterations in the employee’s responsibilities . . .
in the intervening period.’ ” Peele, 288 F.3d at 329 (citation
omitted) (emphasis in original); see also Fortier v. Ameritech
Mobile Communications, Inc., 161 F.3d 1106, 1113 (7th Cir.
1998); Grohs v. Gold Bond Bldg. Products, 859 F.2d 1283, 1287
(7th Cir. 1988). Nor is there anything discriminatory about
BASF’s decision to allow selection panels comprised of
management and supervisors to make the final decision as
to whether its employees were competent in a given cate-
9
gory (rather than leaving that to consultant DDI).
9
Plaintiffs Allen, Cerutti, Clinton, Davis, and Real also claim that
they satisfy the “legitimate expectations” prong of McDonnell
Douglas because the DDI assessors concluded that they had no
developmental needs. The DDI assessment, however, was but one
component of the restructuring process implemented by BASF,
and the DDI evaluators were only asked by the company to
evaluate some of the 14 competencies at issue. More importantly,
the selection panels, and not DDI, were charged with making the
ultimate determination of whether an employee possessed the
necessary skills and attitude to work in the restructured organiza-
tion. Therefore, the initial scores given to employees by DDI have
(continued...)
16 Nos. 02-3471 & 02-3700
The plaintiffs also imply that BASF applied its legitimate
workplace expectations in a disparate manner because the
company fired the plaintiffs yet retained two individuals
with six or more developmental needs—Andrew Partilla
and Helynne Smith. What plaintiffs’ counsel neglects to
mention, however, is that both Partilla (51) and Smith (42)
are not outside the protected class. Furthermore, it does not
appear that Partilla or Smith are substantially younger than
any of the plaintiffs (as plaintiffs make no such argument).
It is also worth noting that BASF terminated every em-
ployee under the age of 40 with six or more developmental
needs.
Moreover, because BASF did not rely on prior perfor-
mance evaluations in the restructuring process to ascertain
whether its current employees were qualified to be retained,
the plaintiffs may not use those evaluations as a basis for
arguing that the company applied its legitimate workplace
expectations in a discriminatory manner (by comparing
their evaluations with those of younger employees who
were retained). Finally, the plaintiffs were not qualified to
be rehired by the company for the same reason that they
were not retained—they lacked the necessary competen-
10
cies.
9
(...continued)
no bearing on the question of whether the plaintiffs were
qualified to be retained in the absence of any evidence that the
selection panels lowered their scores for discriminatory reasons.
This is evidence the plaintiffs do not have, and therefore the only
scores that matter were those assigned to the plaintiffs by the
selection panels.
10
Plaintiffs do not identify anyone under the age of 40 or sub-
stantially younger who was terminated for having six or more
developmental needs and was then subsequently reemployed.
Nos. 02-3471 & 02-3700 17
For all of the preceding reasons, we conclude that the
plaintiffs have not demonstrated that they were qualified to
be retained or rehired by BASF, and thus they cannot make
out prima facie cases of age discrimination under the
indirect method. Peele, 288 F.3d at 328; Coco, 128 F.3d at
1179. We, therefore, need not address the plaintiffs’ remain-
ing arguments as to whether substantially younger employ-
ees were treated more favorably by BASF, or engage in any
11
type of pretext inquiry. Coco, 128 F.3d at 1179-80.
B. Race and National Origin Claims
Plaintiffs Pearl Adams, Daniel Allen, Michael Severado
(all of whom are black), and Steve Real (who is Hispanic)
also contend that the district court erred in granting the
defendants summary judgment for their race and national
origin discrimination claims under Title VII and § 1981. In
support of these claims, these plaintiffs assert that they
worked in an environment replete with racist comments and
where minority workers were treated as second-class
citizens. Several of the racist comments referenced by the
plaintiffs, however, are either extremely dated or were made
by individuals who had no involvement or influence over
the decisionmaking process that led to their terminations.
Therefore, these comments cannot be used by the plaintiffs
to support claims of race or national origin discrimination
11
Plaintiffs also attempt to support their age discrimination
claims using a disparate impact theory, but we have held that
such claims are not permissible under the ADEA. Miller v. City of
Indianapolis, 281 F.3d 648, 651 (7th Cir. 2002)
18 Nos. 02-3471 & 02-3700
12
under the direct method. Swanson v. Leggett & Platt, Inc.,
154 F.3d 730, 733 (7th Cir. 1998) (noting that “[o]nly evi-
dence on the attitudes of the employees involved in the
decision to fire the plaintiffs is relevant”). The only “racist”
acts attributed to anyone involved in the decisionmaking
process concern Thad Zdunich (a member of the Operators
selection panel) and Kevin Biehle (a member of both
selection panels). According to the plaintiffs, Zdunich
“made hundreds of racial statements to Plaintiff Daniel
Allen between 1998 and 2000,” such as “it’s got to be a black
thing”; “for brothers only”; “brothers’ meeting today?”; and
“what you mean, brothers’ meeting?” As for Biehle, the
plaintiffs claim that he “treated [Steve] Real with less
cordiality than he treated Caucasian workers,” told Pearl
Adams “the reason you’re here is because you don’t fit into
our new family and you have been deselected,” and in-
formed Lori Washington, the other black Individual Con-
tributor at the Joliet facility Job Family, “that a white
employee would be taking over her duties on the same day
that he [told Adams that she had been deselected].”
However, as we have already explained, the selection
panels are the relevant decisionmakers in this case, and
therefore Zdunich and Biehle’s alleged animus toward
blacks and Hispanics is, without more, not enough to es-
tablish the convincing mosaic of circumstantial evidence
needed for the plaintiffs to prevail under the direct method
of proof. To do so, the plaintiffs needed to present evidence
12
For example, plaintiff Pearl Adams alleges that a co-worker
told her to “get her black ass in the corner where you belong,”
that sometime back in the “1990s” she was called a “coon” by a
supervisor, and that on another occasion a contractor not em-
ployed by BASF used the term “nigger-rigged” in her presence.
Nos. 02-3471 & 02-3700 19
from which a reasonable jury could infer that Zdunich and
Biehle’s prejudicial views influenced their fellow panel
members to such a degree that it resulted in their being
13
terminated. Swanson, 154 F.3d at 733; Shager, 913 F.2d at
405. This is evidence the plaintiffs simply do not have.
Moreover, as with the age discrimination claims, it is clear
the incidents referenced by the plaintiffs in support of their
racial or national origin discrimination claims would not
permit a reasonable juror to infer racial or national origin
discrimination under the direct method of proof. See Adams,
324 F.3d at 939; Traylor v. Brown, 295 F.3d 783, 788 (7th Cir.
2002); Pafford v. Herman, 148 F.3d 658, 666 (7th Cir. 1998).
The plaintiffs also cannot prevail on their race and national
origin claims under the indirect method because, as with
their age discrimination claims, the evidence shows that
they were not qualified to be retained or rehired by BASF,
and that the company did not apply its qualifications in a
14
disparate manner.
13
In this respect, the plaintiffs’ arguments regarding Richard
Harris, a black supervisor who they claim “occupies a position on
the organization chart where no one reports to him,” and Lori
Washington, a black Individual Contributor who allegedly had
her duties reduced as part of the restructuring process, are like-
wise insufficient to establish claims of race or national origin
discrimination under the direct method.
14
Here, the only evidence these plaintiffs offer to support their
allegation that BASF applied its expectations/qualifications in a
discriminatory manner is that the company retained one white
operator, Andrew Partilla, who was found by the selection panel
to have six developmental needs. This is true, but as the defen-
dants point out, Adams, Allen, Real, and Severado all had more
than six developmental needs. Moreover, the Operators Selection
panel changed a number of DDI’s assessment scores to improve
(continued...)
20 Nos. 02-3471 & 02-3700
Finally, the remaining arguments offered by the plaintiffs
in support of their race and national origin discrimination
claims appear to be premised on a disparate impact theory.
A disparate impact claim exists “when an employer has
adopted a particular employment practice that, although
neutral on its face, disproportionally and negatively impacts
members of one of Title VII’s protected classes.” Bennett v.
Roberts, 295 F.3d 687, 698 (7th Cir. 2002). To establish a
prima facie case of disparate impact, a plaintiff must isolate
and identify the specific employment practices that are
allegedly responsible for any observed statistical disparities.
Id. Although the plaintiffs imply that BASF’s restructuring
process had such an effect, the numbers tell otherwise. Black
employees in the company’s NCR Unit were not
disproportionally and negatively impacted by the restruc-
turing process, and at the Joliet facility every Hispanic but
Real was retained. Indeed, even the plaintiffs’ own statisti-
cal expert witness conceded that the company’s termina-
tions did not have a statistically significant disparate impact
on any protected group.
C. Defendants’ Cross-Appeal for Sanctions
In their cross-appeal, the defendants argue that the district
court abused its discretion when it denied their motion for
sanctions against the plaintiffs’ counsel. Our review of the
14
(...continued)
the ratings of several black employees and lower those of white
employees. Therefore, it would seem that if BASF applied its
qualifications in a disparate manner, it did so in favor of employ-
ees inside rather than outside the protected classes in question.
Finally, there is no evidence that any white employee terminated
by BASF for having six or more developmental needs was
subsequently rehired by the company.
Nos. 02-3471 & 02-3700 21
district court’s denial of the defendants’ motion for sanc-
tions is deferential, and we will disturb the denial only if we
conclude the court abused its discretion. Smith v. Chicago
Sch. Reform Bd. of Trustees, 165 F.3d 1142, 1144 (7th Cir.
1999).
In denying the defendants’ motion, the district court
reasoned that plaintiffs’ counsel had already been sanc-
tioned when the court precluded her from deposing two
witnesses, and noted that “[while the [plaintiffs’] other
motions to strike may be meritless, they do not warrant
sanctions under 28 U.S.C. § 1927.” The defendants contend,
however, that the plaintiffs’ attorney should have been
sanctioned by the court for “unreasonably and vexatiously
multiplying the proceedings by filing two utterly frivolous
motions to strike.” Although we find many of plaintiffs’
counsel’s actions in this case to be less than professional, the
defendants have not presented us with sufficient evidence
from which we can conclude that the district court abused
its discretion in declining to impose sanctions on her, and
we therefore decline to disturb its ruling.
III.
For the reasons noted herein, we AFFIRM the district
court’s judgment in all respects.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-21-03