find that her performance was adequate at the time of discharge. Notably she does not refute the evidence Sears has presented indicating that for at least her last six months as 4C Manager her store was among the worst in credit solicitations -- indeed, she admits this fact to be true. Moreover, she remarkably also makes the further admission that she satisfied Sears' expectations "for all but the last six months of her employment." Response brief at 1.
The balance of plaintiff's evidence consists of references to her own deposition and citations to the depositions of co-workers other than her supervisor who complimented her abilities. This evidence is irrelevant; it is the opinion of the supervisors responsible for her performance that counts in establishing a prima facie case. Kephart, 630 F.2d at 1223. In light of the evidence Sears has introduced, a reasonable trier of fact could not find that she was meeting Sears' expectations. Accordingly, she cannot make out a prima facie case.
Even assuming arguendo she could do so, she has failed to present sufficient evidence to enable a reasonable factfinder to determine that her firing was pretextual. She asserts that her firing was motivated by an animus toward older employees -- specifically that she and other older workers were targeted for elimination as a means of cutting payroll. The only evidence she can point to in support of this theory is the speculation and opinion testimony of co-workers. No statistical evidence or other objective testimony is presented that would enable a reasonable jury to reach such a conclusion. Indeed, the only evidence in the record of this sort leads to the opposite conclusion. Sears replaced Watlington with an employee of virtually the same age (five months younger) and whose annual salary was $ 11,000 more than Watlington's, but who consistently received superior evaluations. Clearly, the only reasonable conclusion from this evidence is that Sears was motivated not out of a concern over age or payroll but rather the quality of its employees' performance. Whatever the business wisdom of Sears' decision in discharging Watlington, she has not presented sufficient evidence to allow a reasonable jury to find that it made that decision because of her age. Thus it is appropriate to grant Sears summary judgment on her claim.
Kilgore began working for Sears in September, 1949. On February 9, 1984 he was discharged at the age of fifty-three from his position as 4C Manager of Sears' Oak Brook store. Kilgore claims that he was fired as a result of a conscious effort by Sears to eliminate older workers. Sears moves for summary judgment arguing that he has not introduced sufficient evidence to enable a reasonable factfinder to find in his favor.
Sears claims it would be unreasonable to conclude that he was meeting the firm's legitimate expectations at the time he was fired. Notably, Sears points out, inter alia, that in the year before he was fired his supervisor, Mr. Logan, gave him five deficiency interviews and only a "fair" annual rating. The Credit Control Managers criticized his handling of the credit department in their overall review, and his store finished last in a contest among the Chicago stores in obtaining new credit applications. Moreover, Kilgore admitted on more than one occasion that he had failed to perform as required.
In response Kilgore cites the opinions of his co-workers. This does not create a basis upon which a reasonable factfinder could determine he was meeting his employer's expectations. See Williams v. Williams Electronics, Inc., 856 F.2d 920, 924 (7th Cir. 1988). For purposes of establishing a prima facie case the only assessments that matter are the assessments of those who are responsible for the decision to discharge. Dale, 797 F.2d at 465. Kilgore also cites evidence from the period prior to the year before he was fired. This, too, is irrelevant for, as noted above, the employer's expectations are measured at the time the employee is discharged. Grohs, 859 F.2d at 1287. Next, Kilgore notes that during 1983 he received a raise. Sears responds without contradiction however that the raise was a mistake and that it followed what was only a short-lived improvement in Kilgore's performance -- which deteriorated thereafter. Indeed, he received three more deficiency interviews to the Credit Manager's report and his store lost the credit application contest thereafter. Thus even if it were reasonable to find that at the time of his raise he was meeting his employer's expectations, such a finding would not be reasonable as of the time of his discharge.
Finally, Kilgore notes that the credit applications for his store exceeded the goal for the year. It is equally clear however that his supervisors nevertheless remained critical of his handling of these applications, set forth in the deficiency interviews and Credit Manager's report, and were as critical of the other aspects of his job as well. As the Seventh Circuit has noted, an employer:
"can set unrealistic standards and fire an employee for not being able to meet them; he can . . . try to force a square peg into a round hole -- and throw away the peg when it does not fit. He can be as arbitrary as he wants -- he just cannot treat an older employee more harshly than a younger one."
Palucki v. Sears Roebuck & Co., 879 F.2d 1568, at 1571 (7th Cir. 1989) (citations omitted). Clearly, when taken as a whole, the evidence in the record is insufficient to allow a reasonable jury to conclude that Kilgore was meeting the standards that Sears was setting. Thus he cannot establish a prima facie case.
Even if it were reasonable to find that Kilgore had done so, his supervisor's extensive criticism of his performance constitutes a legitimate reason for discharge. Moreover, Kilgore has failed to introduce sufficient evidence to allow a finding of pretext. He claims that his firing was part of a larger, overall plan Sears instituted to cut costs by targeting older workers for termination. Kilgore fails to introduce any credible evidence -- statistical or otherwise -- in support of this claim however. Instead, he relies on unsupported accusations, speculation and hearsay.
Sears does not deny that at the time Kilgore was fired it was implementing its "Store-of-the-Future" project to modernize its merchandising practices. Such a reorganization does not ipso facto constitute age discrimination even where it results in the termination of older workers, Dale, 797 F.2d at 465 n. 11. Instead the plaintiff must present evidence that would enable a factfinder reasonably to find that the reorganization resulted in an "abnormal shift" in the number of terminations of older workers. Id. See also Mechnig, 864 F.2d at 1367. Here Kilgore has failed to carry that burden, requiring the court to grant Sears summary judgment on his claim.
On July 31, 1984 Lorang retired as manager of the auto center at the Fox Valley Sears store in Aurora, Illinois. Lorang was fifty-one years old. He claims that he was "forced" to retire early or "effectively fired" from his job in violation of the ADEA. Sears moves for summary judgment on the grounds that he has failed to present enough evidence to enable a reasonable jury to find in his favor on this claim.
First, Sears argues that Lorang has failed to introduce evidence that he was constructively discharged -- i.e., that Sears had made his working conditions so intolerable so as to force him into involuntary resignation. Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 314 (7th Cir. 1986), cert. denied, 479 U.S. 1092, 94 L. Ed. 2d 160, 107 S. Ct. 1304 (1987). Lorang notes that he had always had an exemplary career, receiving as late as June of 1983 a "very good" overall rating from his supervisor, Robert Broadwell ("Broadwell"). Then the roof fell in: in August, 1983 Broadwell sent Lorang a letter informing him that his work was unacceptable; in January of 1984 Broadwell gave him an overall performance rating of "fair"; on February 21, 1983 Broadwell gave him his first memorandum of deficiency; and, on July 25, 1984, Broadwell gave Lorang his second memorandum of deficiency and told him a "fair" rating could not survive. Furthermore, he stated that Lorang could not survive and that Cliff Hooks ("Hooks"), Broadwell's supervisor, wanted Broadwell, Lorang and a third employee "out of here." The next day Lorang went to Broadwell and said that maybe it was time for him to take an early retirement -- a decision that he was required to make before July 31, 1984 to be entitled to certain benefits. On August 1, 1984 Broadwell's replacement, Mr. Stein ("Stein"), told Lorang that his decision to retire was a "wise choice."
Sears argues that it would be unreasonable to find, based upon these communications to Lorang, that he was constructively discharged. The Seventh Circuit has noted that employees
"must endure adverse reactions and other signs of displeasure when their productivity falls off. An employer's communication of the risks of the job does not spoil the employee's decision to avoid those risks by quitting. Were it otherwise, any employee about whom there was dissatisfaction would have a jury case under the ADEA, even if the dissatisfaction were supported by objective indicators (such as low productivity)."
Henn v. Natl. Geographic Society, 819 F.2d 824, 830 (7th Cir.), cert. denied, 484 U.S. 964, 108 S. Ct. 454, 98 L. Ed. 2d 394 (1987). Clearly, insofar as Lorang's productivity fell off, Sears was entitled to communicate its displeasure therewith. The August 1983 letter, the January 1984 performance rating, the memoranda of deficiency from February and July of 1985, and Broadwell's statement that a "fair" rating would not survive, were all plainly communications of the sort and therefore not actionable. Moreover, while Broadwell's other statements (that Lorang himself would not survive and that Hooks wanted him out) and those of Stein might raise an issue of fact as to whether Sears would have fired Lorang had he not retired, a reasonable jury could not conclude from them that Sears would have fired him because of his age. Thus Lorang has failed to state a prima facie case of constructive discharge. See Henn, 819 F.2d at 830.
Lorang attacks the various performance reviews as having no basis in fact -- i.e., that his productivity did not fall off and therefore the deficiency notices were merely fabricated as part of an overall plan to reduce the firm's staff of older full-time managers. The short answer to this argument is that Lorang has not established a prima facie case of age discrimination and therefore the court need not inquire as to whether Sears' evaluation of Lorang's performance was pretextual. Even assuming arguendo however that Lorang had introduced enough evidence to give rise to a "suspicion of discrimination -- enough so as to require the employer to explain his conduct," Henn, 819 F.2d at 828, Lorang has failed to demonstrate that the deficiency notices lacked any basis in fact, Kier, 808 F.2d 1254, 1259. Indeed, there is ample evidence that Lorang 's performance dropped over the period in question. Moreover, Lorang has failed to introduce any credible evidence that Sears, in fact, engaged in a plan to force older employees into early retirement. Thus it would not be reasonable for a factfinder to determine that Sears sent Lorang the memoranda, warnings and other communications complained of as part of a larger plot to eliminate him, one way or another, because of his age.
For the foregoing reasons, the court grants Sears summary judgment on the claims of Kilgore, Lorang, Watlington and Kuligoski.
IT IS SO ORDERED.
DATED: August 9, 1989
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