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September 5, 1984


The opinion of the court was delivered by: Decker, District Judge.


Plaintiff, Dean Matthews (Matthews), brought this suit against his former employer, Allis-Chalmers Corp. (Allis-Chalmers or the company). Matthews claims that Allis-Chalmers violated the Age Discrimination in Employment Act (ADEA) when the Company fired him from his position as an engineer in November, 1982. The case is before the court on defendant's motion for summary judgment.

I. Factual Background

Allis-Chalmers hired Matthews as a designer in 1957. The company promoted him to engineer and twice promoted him to Chief Engineer, only to demote him back to engineer after each promotion. Matthews was always on salary. On November 12, 1982, Matthews' supervisor, Richard Killeen (Killeen), fired Matthews. Killeen told Matthews that the discharge was for economic reasons. Matthews was 54 years old.

Between January 4, 1980, and December 30, 1983, Allis-Chalmers reduced its salaried work force by 221. Eighty of these were forty or older. Matthews' termination came on the same day on which the Company discharged thirteen other employees. Six of these were over 40.

Matthews complains only of his firing. Matthews Dep. at 40. He testified at his deposition that only Ed Northrup (Northrup), a supervisor at Allis-Chalmers, discriminated against him on the basis of his age: "My belief is that Ed Northrup. This I have no evidence to back up, this is my belief." Id. at 41. Matthews bases his opinion on two other "facts": that he would have been eligible for early retirement at 55, id. at 53, and that "they [Allis-Chalmers] have done the same thing to other people." Id. at 43. Matthews knew nothing else that led him to believe that Allis-Chalmers had discriminated against him. Id. at 46.

II. Discussion

In setting forth the elements of a prima facie case of age discrimination, the United States Court of Appeals for the Seventh Circuit has applied the standards of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). Green was a case of alleged racial discrimination in hiring. The Court held that the elements of a prima facie case are that the plaintiff belongs to the protected class, that he was qualified for the job, that he was not hired, and that the employer continued to seek applicants for the job. 411 U.S. at 802, 93 S.Ct. at 1824. The Court added the caution that "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13.

In age discrimination discharge cases, courts have required the plaintiff to show that he is in the protected age group, that he was satisfying the legitimate business expectations of the employer, that he was nevertheless fired, and that he was replaced by a younger person. See, e.g., Loeb v. Textron, 600 F.2d 1003, 1014 (1st Cir. 1979). The last element has no role in a reduction-in-force case such as this one; by definition, when the employer reduces his work force he hires no one to replace the ones he lets go. See Williams v. General Motors Corp., 656 F.2d 120, 128 (5th Cir. 1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). The question is whether to require plaintiffs to show more than their age, qualifications, and termination.

The purpose of a prima facie case is to eliminate the most common nondiscriminatory reasons for the plaintiff's discharge. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). "[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not that the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race." Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The focus of the prima facie case is on causation: the plaintiff must show enough to make it appear more likely than not that age was a factor in the discharge. See Huhn v. Koehring Co., 718 F.2d 239, 243 (7th Cir. 1983) ("[T]o establish a cause of action under the ADEA, a claimant must show that he was discriminated against because of his age").

Unlike the employer who passes over a qualified minority applicant, the employer who fires a qualified older employee as part of a reduction-in-force does nothing inherently suspicious. One expects nondiscriminating employers to hire qualified applicants rather than keep looking. To do otherwise raises a fair inference of discrimination. In the reduction-in-force case, the employer often must discharge qualified employees. The nondiscriminating employer will choose whom to discharge on the basis of their relative contributions to the business. That the one chosen happens to be older by itself raises no fair inference of discrimination — those who remain may be more productive. The age discrimination plaintiff in this type of case must show more.

One court which has faced the question required the plaintiff to show "some other indirect evidence from which a logical inference of discrimination can be made . . . [s]uch [as] statistics showing a pattern or practice of age discrimination or statements indicating that age was a factor in the employment decision." Bobbitt v. PBA, Inc., 31 FEP Cases 366, 367 (D.Minn. 1983). This is a reasonable burden to place on the plaintiff. Again, he is not entitled to recover unless he can prove that he was fired because of his age. Huhn, 718 F.2d at 243. He simply must show some evidence of causation.

Matthews points to no discriminatory statements by Allis-Chalmers employees. Statistics show that Allis-Chalmers' reduction in force affected younger employees more severely than older ones, particularly in Matthews' Department. Exhibits A and B to Defendants' Motion for Summary Judgment. Matthews identifies no less productive younger employees whom Allis-Chalmers retained instead of him.

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