The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Callaghan & Company ("Callaghan") fired Albert Selsor
("Selsor") in 1983. Selsor was 58 years old then and had worked
for Callaghan for 12 years. He filed this lawsuit against
Callaghan, alleging that his dismissal violated the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et
seq. The parties have completed discovery, and Callaghan has
moved for summary judgment. For the reasons stated below, that
motion is granted.
The following material facts are undisputed.*fn1 Callaghan
is a publisher of legal books and research materials. It hired
Selsor in 1971 as Advertising Manager. Born February 21, 1925,
Selsor was 46 when hired.
Before 1979 Callaghan was fairly small, holding a fraction of
the legal publications market. In 1979 Callaghan became a
subsidiary of "International Thomson Organisation Limited"
("Thomson"), which planned to expand Callaghan's share of the
legal publications market. In February of 1981, Callaghan hired
Randy Cochran ("Cochran") as Vice-President of Marketing to
develop its policy of expansion. Cochran was a supervisor of
Selsor. Cochran made many changes, and Selsor concedes that
Cochran was effective.
Shortly after joining Callaghan, Cochran told Selsor that he
respected the years of service Selsor had given to the company,
and that he was looking forward to using his experience. In
June of 1981, Cochran evaluated Selsor. Selsor received a
satisfactory evaluation, which contained both praise and
suggestions for improvement. In particular, Cochran felt that
Selsor needed to solicit competitive bids for advertising and
become more cost effective. Among Selsor's strong points were
his "experience with Callaghan" and his "attitude." Following
this evaluation, Cochran told Selsor that he would monitor
Selsor's performance concerning cutting costs, and that this
was considered an important part of Selsor's job.
Cochran grew more dissatisfied with certain aspects of
Selsor's performance, especially with Selsor's failure to
expand the range of suppliers and solicit competitive bids.
Cochran met with Selsor on September 4, 1981, to review
Selsor's strengths and weaknesses, which were listed in a
memorandum given to Selsor. Cochran felt that Selsor had set
unrealistic timetables, was time-oriented rather than
task-oriented, had not solicited bids successfully and had not
been assertive enough with outsiders. Selsor understood that
Cochran felt that these were problems with his performance.
At the September 4 meeting, Cochran told Selsor that he was
planning to hire an Assistant Advertising Manager, who would
eventually assume Selsor's position. Cochran felt that Selsor
had weaknesses as a manager, but had strengths on the creative
side of advertising. Thus, Selsor would at some time work on
the creative end of the business. On December 14, 1981,
Callaghan hired Edwyn Gold ("Gold"), then 47 years old, as
Assistant Advertising Manager. Selsor was one of the people who
interviewed Gold, and he agreed that Gold was the best
applicant for the job.
Gold was an effective manager. He cut costs and streamlined
the advertising operation. Meanwhile, Cochran became
increasingly dissatisfied with Selsor's performance and his
attitude. He and Selsor had had several discussions in which
Cochran said that Selsor was not responding well to Cochran's
new system. Finally, at a marketing meeting on December 20,
1982, Cochran stated that two or three unnamed employees were
"coasting," and not responding to Cochran's programs. He called
for their resignations by the end of January 1983. Selsor
learned that he was one of these unnamed employees, and a few
days later he went to see Cochran. Cochran said, among other
things, that Selsor's attitude had been deteriorating, that he
and Gold had not been getting along,
and that he had not been giving "110 percent." Cochran told
Selsor that he was going to follow through on his plan of
naming Gold as Advertising Manager. Selsor would assume the
position of "Production Coordinator" and keep the same salary
and benefits. This change was made in January 1983. Selsor
admits that the change was a reasonable business decision.
Although Selsor's relationship with Gold had been good
initially, their rapport gradually deteriorated. They developed
a personality conflict. This conflict intensified when Gold
became Advertising Manager. Selsor had thought he and Gold were
to have equal authority. However, he found himself subservient
to Gold in his new position. Selsor became unhappy, according
to his deposition testimony, because he never actually received
creative work or a description of his new job. Instead, he was
given clerical and menial tasks. Meanwhile, Gold was
dissatisfied with Selsor's work and attitude. Gold felt that
Selsor had made several mistakes. Selsor does not deny that he
made mistakes, but says that they were easily corrected and
cost the company nothing. Selsor admits that Gold frequently
criticized him and yelled at him.
Finally, on April 1, 1983, Selsor was formally placed on
thirty days probation. His notice listed several mistakes and
deficiencies. He decided to take two weeks vacation then.
Before leaving, he asked to be placed in another position at
Callaghan. When he returned, he was told that no jobs were
available. His last day at Callaghan was April 23, 1983. No one
was hired to replace him as Production Coordinator. He filed
this lawsuit later that year, alleging that he was discharged
because of his age.
Section 623 of the ADEA makes it illegal for an employer "to
discharge any individual . . . because of such individual's
age." 29 U.S.C. § 623(a). As plaintiff, Selsor bears the burden
of proving that age was a determining factor in Callaghan's
decision to fire him; that is, he must prove that "but for" his
age, Callaghan would not have fired him. See, e.g., LaMontagne
v. American Convenience Products, Inc., 750 F.2d 1405, 1409
(7th Cir. 1984). Selsor may take two tacks in proving age
discrimination. First, he may prove by direct or circumstantial
evidence that he was dismissed because of his age. Id. Selsor
has not relied on this approach. He has chosen the second, much
more common approach, based on the burden-shifting tests of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973).
Under the McDonnell Douglas approach, as modified for the
context of an ADEA case,*fn2 Selsor may make out a prima facie
case of age discrimination by showing (1) that he was in the
age group protected by the ADEA, that is, between 40 and 70
years old; (2) that he was doing his job well enough to satisfy
Callaghan's legitimate expectations; (3) that he was fired; and
(4) that Callaghan sought a replacement for him. LaMontagne, at
1409-10; Huhn v. Koehring Co., 718 F.2d 239, 242-43 (7th Cir.
1983). If Selsor meets this burden, he enjoys a presumption
that he was dismissed because of his age. However, Callaghan
may rebut this presumption by articulating a lawful reason for
the discharge. This is merely a burden of production. The
burden of proof always rests on the plaintiff. See, e.g.,
LaMontagne, at 1409, citing Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
If Callaghan dissolves the presumption, to prevail Selsor must
prove that the articulated reasons are a pretext, by showing
either that Callaghan was more likely motivated by a
discriminatory reason or that its justification is not
credible. Id. Under this indirect method of proof, it is
possible to prove age discrimination without introducing any
evidence that age motivated the employer. Id. at 1409-10.
Our present task in applying the above standards is to decide
judgment is appropriate. Summary judgment is unusual in an
employment discrimination case because so much often depends on
an employer's credibility and his or her hidden or unconscious
motives. However, summary judgment may be appropriate where no
evidence suggests that motive and intent are involved. See
Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1218
(7th Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67
L.Ed.2d 383 (1981); see also Parker v. Fed'l National Mortgage
Assn., 741 F.2d 975, 979-81 (7th Cir. 1984) (affirming district
court entry of summary judgment because of failure to prove
pretext); Huhn, 718 F.2d at 243-45 (affirming entry of summary
judgment because of failure to prove prima facie case). The
usual summary judgment standards apply. Summary judgment may be
granted only if the record shows that "there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
As the moving party, Callaghan must show that no genuine issue
of material fact exists. Korf v. Ball State University,
726 F.2d 1222, 1226 (7th Cir. 1984). We must view the evidence, and
the reasonable inferences drawn from the evidence, in the light
most favorable to Selsor, the party opposing the motion. Big O
Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th
Cir. 1984). If Callaghan fails to meet its "strict burden of
proof," we must deny summary judgment. Id. But if Callaghan
does meet its initial burden, we must see whether Selsor has
met its resulting burden of creating a genuine issue as to that
fact. To meet this burden, Selsor cannot rest on bare pleadings
or bald assertions. Fed.R.Civ.P. 56(e); Big O, 741 F.2d at 163.
With these standards in mind, we turn to the merits.
Because Selsor has presented no direct evidence of age
discrimination,*fn3 we will evaluate the undisputed facts in
light of the McDonnell Douglas criteria spelled out earlier.
The parties agree that Selsor meets two of the criteria. At 58
when fired, Selsor falls within the ADEA's protected age group.
Secondly, he was fired.*fn4 The parties disagree over whether
Selsor meets the other two criteria. First, Callaghan contends
that Selsor was never replaced as Productions Coordinator and
therefore cannot satisfy the fourth element of his prima facie
case. Although Selsor was never replaced as Productions
Coordinator, one might reasonably infer from the facts that
Selsor was in reality "discharged" when Ed Gold replaced him as
Advertising Manager in January 1983. Looking at the facts in a
light most favorable to Selsor, it is reasonable to infer that
the decision to fire Selsor was ...