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 made then, and the last few
months were merely a denouement during which Selsor was
"squeezed out" of his new job. We therefore assume for
argument's sake that Selsor has satisfied the fourth criterion
of his prima facie case.
The crux of Callaghan's position is that Selsor cannot
satisfy the second element, that is, that he cannot prove that
he was performing well enough to satisfy Callaghan's legitimate
expectations. Callaghan relies on the undisputed facts that
Cochran and Gold both grew increasingly unhappy with the
quality and quantity of Selsor's work. Callaghan emphasizes
that the employer's legitimate perceptions are controlling in
this analysis. See Huhn, 718 F.2d at 244.
The above uncontradicted evidence could likely support a
conclusion that Selsor was not satisfying Cochran's legitimate
expectations. While Selsor received satisfactory overall
reviews in the past, the criticisms of his work were consistent
even in these satisfactory reviews. Cochran's dissatisfaction
undeniably increased by the end of 1982. We may, like the
District Court in
Huhn, see 718 F.2d at 242, approach these facts in one of two
ways. On the one hand, we might conclude that the undisputed
facts show that Selsor was not performing well enough at the
time of his discharge and therefore cannot satisfy the second
element of his prima facie case. On the other hand, these facts
can be seen as an articulation by Callaghan of a legitimate
non-discriminatory reason for Selsor's discharge, thereby
rebutting Selsor's prima facie case. Although a finding against
Selsor under the first approach is probably appropriate on this
record, we will assume that he has made out his prima facie
case. But even under this assumption, it is clear that
Callaghan has met its burden of articulating lawful reasons for
Selsor has not contradicted Callaghan's evidence that, at the
time of his "discharge" (whether viewed as taking place in
January or April), he was not performing up to Callaghan's
expectations. Cochran's dissatisfaction with Selsor's work grew
over a two-year period and constitutes a legitimate
non-discriminatory reason for his discharge. Indeed, much
uncontested evidence in the record which we have not mentioned
above also supports this conclusion. Moreover, Selsor's
developing personality conflict with Gold provides a second
non-discriminatory reason for his discharge. A personality
conflict with a supervisor may be a legitimate reason for
discharge, if the conflict is not at all related to the
plaintiff's age. See Chamberlain v. Bissell, Inc., 547 F. Supp. 1067,
1077 (W.D.Mich. 1982).
Because the uncontroverted evidence supports a finding that
Callaghan has rebutted Selsor's prima facie case, it is up to
Selsor to show that Callaghan's articulated reasons are merely
a pretext for age discrimination. He can carry this burden "by
showing either that a discriminatory reason more likely
motivated the employer or that the employer's proffered
explanation is unworthy of credence." LaMontagne, at 1414.
Selsor cannot satisfy this burden. First, there is no evidence
that Callaghan's "proffered explanation," that Selsor was
performing below par, is not credible. To the contrary, a great
mass of undisputed evidence supports this explanation. Second,
there is no credible evidence that age at all motivated
Callaghan.*fn5 This second point requires some explanation.
Selsor argues that a genuine issue of fact exists on the
issue of pretext. He points to an affidavit he submitted with
his brief in response to Callaghan's summary judgment motion.
In that affidavit he swears that in his December 1982
conversation with Cochran, Cochran told him that he wanted to
fire him because he was 11 years older than Gold and was thus
much closer to retirement. Cochran supposedly said that he
wanted to implement his marketing policies with someone who
would be around longer. We agree with Selsor that this
evidence, if true, could prove that Cochran's proffered
explanations were pretextual. Indeed, this evidence might even
support a finding of age discrimination under a direct method
of proof. However, we must take this evidence in the context of
all the evidence in the record. It will soon become clear that
this evidence does not create a genuine issue of material fact.
Selsor's affidavit contains the first evidence that age
played a role in Cochran's decision. The affidavit contradicts
several admissions by Selsor in his deposition that to his
knowledge he could not point to any direct evidence that age
was a factor in Callaghan's decision. He was asked whether
Cochran told him that the firing decision was based on age.
"No, I don't think he's that dumb." Selsor Deposition at 134.
Similarly, Selsor denied that anyone at Callaghan ever told him
that he was fired for being closer to retirement than Gold:
Q. Did anyone at Callaghan & Company ever do or
say anything that would lead you to believe
that you were terminated or one of the reasons
for your termination was you were closer to
retirement age than Ed Gold was?
A. Did anyone say that?
Q. Did anyone say that?
A. No, no.
Selsor Deposition at 470. Selsor also denied knowing of any
direct evidence of age discrimination:
Q. Mr. Selsor, did anyone employed by Callaghan &
Company ever say to you that age was a factor
in your being put on probation?
Q. Or in your alleged termination?
Q. Did anyone at Callaghan & Company ever
disparage you because of your age?
Q. Or because they said you were too old or
anything like that?
Q. Do you believe Randy Cochran would
discriminate you because of your age?
A. As the facts turned out, yes.
Q. As the basis for that belief, are you
including any facts other than those appearing
in response to Interrogatory No.7?*fn6
Q. Did anything ever happen to you while you were
employed by Callaghan & Company that suggested
in any way that anybody at Callaghan & Company
thought you were too old to do your job
Q. And finally, did anyone at Callaghan & Company
tell you you were too old for your job?
A. No, they didn't tell me I was too old for my
Selsor Deposition at 430-31. In addition, Selsor's own lawyer
asked him several broad questions at the deposition about why
he believed age was a factor in his dismissal. Selsor gave no
specific evidence in response and never mentioned the
statements he now attributes to Cochran in his affidavit.
Selsor Deposition at 455-63.*fn7
Finally, Selsor ended his deposition as follows:
Q. I am asking you if you contend that there are
now additional facts supporting your
allegation that you were terminated because of
your age. Have all of those facts been brought
out during the two days of deposition that you
A. To the best of my knowledge, yes.
Q. In addition to those, in addition to your
specific answer to Interrogatory No. 7 and the
testimony that will appear that you gave
during your deposition, there are no other
facts upon which you rely in support of your
allegation that you were discriminated against
because of your age, is that correct?
Selsor Deposition at 479. In sum, Cochran's statements about
Selsor's age first appeared in Selsor's affidavit responding to
the summary judgment motion, despite several previous denials
that such evidence existed.
No reasonable person could possibly believe that in his
deposition Selsor would have omitted to mention Cochran's
alleged statements if they were actually made. Although our
duty in ruling on this summary judgment motion is to resolve
issues of credibility in Selsor's favor, this duty extends only
to plausible issues of credibility. Where, as here, "an offer
of evidence . . . is too incredible to be believed," the court
may disregard it. 10A C. Wright, A. Miller & M. Kane,
Federal Practice & Procedure, § 2727 (1983), at 169-70; see
also 598 Cases, Each Containing 24 Cans, More or Less, of
Tomatoes v. United States, 211 F.2d 249, 251 (7th Cir. 1954)
(resolve conflicting evidence in favor of party opposing
summary judgment unless evidence creating the conflict is "too
incredible to be accepted by reasonable minds"). Selsor's new
"evidence," which directly contradicts his extensive deposition
testimony, cannot now be used to conjure up a genuine factual
In sum, we conclude that no genuine factual dispute exists on
the issue of whether Callaghan's articulated reasons for firing
Selsor were pretextual. Selsor cannot carry his burden of
proving pretext, and therefore we may properly grant
Callaghan's motion for summary judgment. In reading parts of
Selsor's deposition we noticed him complaining that Callaghan
treated him shabbily and unfairly. This might very well be, and
if so, by this opinion we do not intend to condone such
treatment. However, it does not warrant relief under the ADEA
absent evidence of age discrimination. We will therefore enter
a judgment of dismissal. It is so ordered.