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,
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.
Matthews argues that he has made out a prima facie case and
contends that two questions of material fact exist.*fn1
Both relate to whether Killeen applied in good faith his stated
criteria in deciding whom to retain. If Matthews could show that
by the company's own criteria he should have kept his job, that
would be some evidence that age was a factor in the decision to
fire him. Matthews, however, fails to make this showing.
Killeen testified that he chose one engineer, a Mr. Artwohl
(Artwohl), over Matthews because Artwohl generally was better at
completing projects on schedule and within budget. Killeen Dep.
at 82. Specifically, Killeen testified that Matthews failed to
discover and fix design problems with the "World Truck Mast"
project. Id. Killeen personally observed the defects in the
design. Id. at 54. According to Killeen, Artwohl demonstrated his
superior ability by solving the mast problem which Matthews
failed to notice. Id. at 82.
Matthews argues that this "reason" for choosing Artwohl over
him is a fabrication because when Killeen fired Matthews he could
not have known that Artwohl had solved the problem. No evidence
supports this conclusion. Matthews points only to documents which
show that the company continued to test the new mast design after
Matthews left. E.g., Killeen Dep. Ex. 1-K. Matthews does not
dispute, however, that Artwohl had completed the redesign, and
that Killeen knew that he had done so, before Killeen decided to
fire Matthews. Plaintiff apparently argues that Killeen could not
rely on the apparent superiority of Artwohl's redesign until the
later tests confirmed it (as they apparently did).
Killeen was under no duty to wait. "The Age Discrimination in
Employment Act . . . was not intended as a vehicle for judicial
review of business decisions." Kephart, 630 F.2d at 1223.
Matthews' performance on the mast project relative to Artwohl's
was a legitimate basis for deciding whom to keep. When Artwohl
completed the redesign, Killeen judged it superior to the
defective design which Matthews failed to detect and correct.
Nothing indicates that his decision involved anything other than
his business and professional judgment. That was his call to
make. The court refuses to require employers to double-check
their evaluations of employees' relative skills.
Matthews next argues that Killeen should not have considered
Matthews' managerial abilities when he decided to fire Matthews.
See Killeen dep. at 52. Killeen testified that he considered
technical abilities and the "administration of such technical
competence in engineering a product that is functional, safe,
marketable, and profitable." Killeen Dep. at 10. Administration,
with an eye to the bottom line, is what most managers do.
Matthews' managerial shortcomings thus were relevant to Killeen's
stated criteria. Matthews also argues that the remaining jobs in
his department required no managerial skills. The court cannot
substitute its judgment for the company's as to what business
skills particular jobs require. Kephart, 630 F.2d at 1223.
The court need go no further. Matthews fails to provide any
evidence from which the court can infer that Allis-Chalmers more
likely than not fired him because of his age. He has not
established his prima facie case.
For the reasons stated above, the court grants defendant's
motion for summary judgment and enters judgment for the
defendant. Plaintiff shall bear defendant's costs.