101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), which was analyzed under the McDonnell-Douglas indirect evidence framework. Id. 109 S. Ct. at 1788; see also id. at 1789, n. 12, 1791. Finally, both concurring opinions explicitly stated that "mixed-motive" cases such as Price Waterhouse are to be analyzed differently than "pretext" cases such as McDonnell-Douglas and Burdine. Id. 109 S. Ct. at 1796, 1805. The United States District Court for the Eastern District of Virginia has also found, as we do, that Price Waterhouse only applies to "mixed motive" cases. Adams v. Frank, 712 F. Supp. 74, 76-77 (E.D.Va. 1989).
As Justice O'Connor suggests in her plurality, id. 109 S. Ct. at 1805, in analyzing this case we first determine whether the McDonnell-Douglas or Price Waterhouse analysis applies. We find that plaintiff has failed to put forth any evidence that defendant considered his age in making the decision to offer him early retirement, so plaintiff has not satisfied the Price Waterhouse threshold. We thus analyze the case under the McDonnell-Douglas framework. Id. Under this framework, once plaintiff has made out a prima facie case of discrimination and the employer has countered by articulating a legitimate reason for its employment decision, the burden is on the plaintiff to demonstrate that the employer's asserted reason is a mere pretext for discrimination. We find that plaintiff has not made out a prima facie case and that, in any event, he has not produced any evidence demonstrating that defendant's stated reason was a "pretext" for discrimination. Summary judgment in favor of defendant is thus appropriate.
B. Plaintiff's Case Under Price Waterhouse
As noted above, to have his case analyzed under the Price Waterhouse framework so that defendant bears the burden of demonstrating that it would have made the same decision in the absence of discrimination, plaintiff must at least prove that age played a motivating part in the employment decision. Price Waterhouse, 109 S. Ct. at 1795. At the summary judgment stage, plaintiff has the burden of demonstrating that material issues of fact exist as to whether the decision to offer him early retirement was motivated by age considerations. See Beard v. Whitley County REMC, 840 F.2d 405, 409-10 (7th Cir. 1988). All reasonable inferences to be drawn from the evidence must be drawn in favor of plaintiff. Id. We find that plaintiff has produced no credible direct evidence that defendant's decision was motivated by considerations of age, and that plaintiff is thus not entitled to have his case analyzed under Price Waterhouse.
Most of the evidence produced by plaintiff in this case relates to his claims that he was qualified for the publisher position and that Jerrold France, defendant's executive vice-president, had a personal vendetta against him. Only two pieces of evidence even arguably suggest that age had anything to do with defendant's treatment of plaintiff. One is a statement allegedly made by Benjamin Kotsher in 1982 that the company could not fire plaintiff because of his age. Affidavit of Robert Bayless, paras. 8-9. Not only was this alleged statement made four years before the offer of early retirement, it suggests no animus toward plaintiff on account of his age. Rather it suggests that Kotsher tried to accommodate plaintiff because of his age and length of service. Id. The other evidence consists of plaintiff's own assertions, in his affidavit and depositions, that France had a "history of derisive comments about older employees." Plaintiffs Memorandum on Impact of Price Waterhouse Decision at 4. These assertions are unsupported by the testimony of anyone else, and in any event neither one of France's two alleged comments was made in relation to an employment decision. Affidavit of James D. Summers, paras. 29-30. Plaintiff has not made enough of a showing of age discrimination to satisfy the Price Waterhouse threshold.
C. Plaintiff's Case Under McDonnell-Douglas
As plaintiff has failed to produce direct evidence of age discrimination, as he must to make this a Price Waterhouse case, his case must be analyzed under the McDonnell-Douglas framework. Under McDonnell-Douglas, the plaintiff may make out a prima facie case with circumstantial evidence sufficient to raise a presumption that the employer has engaged in discrimination in making its employment decision. McDonnell-Douglass Corp v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984); Dorsch v. L.B. Foster Co., 782 F.2d 1421, 1424 (7th Cir. 1986). Once a plaintiff makes out a prima facie case, the employer has the opportunity to articulate a legitimate, non-discriminatory reason for its employment decision. Dorsch, 782 F.2d at 1424. Once the employer does so, the burden shifts back to the employee to prove that the employer's asserted reason is a mere pretext for discrimination. Id.
We find that plaintiff has not made out enough of a prima facie case of discrimination to withstand a motion for summary judgment. In age discrimination cases, a plaintiff can make out a prima facie case with a four-part showing: 1) that he was within the protected age group 2) that he was doing his job well enough to meet his employer's legitimate expectations 3) that in spite of his performance he was discharged and 4) that his employer sought a replacement for him. La Montagne, 750 F.2d at 1409.
The parties do not dispute plaintiff's proof with respect to steps one and four of his prima facie case. Plaintiff, who was 63 at the time he was offered early retirement, was within the projected age group at the time of the employment decision. See 29 U.S.C. § 631. It is similarly undisputed that defendant sought a replacement for him. Defendant contends that plaintiff cannot make a showing on step three because he chose voluntary retirement rather than being discharged. For purposes of plaintiff's prima facie case, however, we will assume that he was discharged. The biggest source of disagreement between the parties arises at step two of the analysis. The parties debate whether plaintiff was doing his job well enough to meet defendant's legitimate expectations. We find that plaintiff has failed to produce enough evidence on the issue of his job performance to withstand a motion for summary judgment. Plaintiff thus cannot make out a prima facie case of age discrimination.
At step two of his prima facie case, a plaintiff must demonstrate that he was "doing his job well enough to meet his employer's legitimate expectations." La Montagne, 750 F.2d at 1409. The employer's "legitimate expectations" depend on the nature of the employer's business at the time the employment decision is made. See Dorsch, 782 F.2d at 1425. In this case, defendant has produced evidence demonstrating that it needed its publishers to increase the number of advertising pages in its directories, as opposed to merely maintaining the number of pages at past levels. Summers Dep. at 343; France Affidavit, para. 9. Defendant also introduced evidence that Kotsher set a specific performance quota for plaintiff. Defendant's Exhibit 35. Plaintiff does not dispute defendant's contention that he did not increase advertising sales, and he admits that he did not meet the quota set by Kotsher. Summers Dep. at 185. Further evidence of plaintiff's poor performance comes from the series of memos from Kotsher criticizing plaintiff's performance as Publisher of Industrial Directories. Defendant's Exhibits 32, 35, 38. In addition, plaintiff admits that Kotsher continually expressed displeasure with plaintiff's performance, beginning in November of 1984. Summers Dep. at 385. This criticism began long before the decision was made to offer plaintiff early retirement.
Plaintiff seeks to establish step two of his prima facie case with sales and income records from the time he was the Publisher of Industrial Directories. Exhibits F, G, and H to Plaintiff's Response to Motion for Summary Judgment. Plaintiff has not aided the court in interpreting these figures. Viewing them in the light most favorable to plaintiff, they seem to indicate that, where comparisons with his predecessor or successor were possible, in some cases plaintiff outperformed these persons and in some cases he did not. Id. In making out a prima facie case, however, plaintiff must demonstrate that he was "doing his job well enough to meet the employer's legitimate expectations." La Montagne, 750 F.2d at 1409. As noted above, it is undisputed that plaintiff was not performing up to defendant's expectations. The issue, then, is whether Kotsher's expectations were "legitimate." Plaintiff contends that they were not. He has not, however, presented any evidence to rebut defendant's contention that economic and other factors made these expectations necessary and realistic. It is not our duty to "determine the validity of the defendant's business decision as long as the decision was made in good faith." Dorsch, 782 F.2d at 1426. Plaintiff calls Kotsher's expectations "unrealistic." He has not, however, produced any evidence to support this argument, let alone evidence that the expectations were not formed in good faith. Because plaintiff has not put forth enough evidence from which a jury could reasonably infer that he was performing his job adequately, he cannot make out a prima facie case of age discrimination.
We also find, however, that even if plaintiff could make out a prima facie case of age discrimination, summary judgment in favor of defendant would be appropriate. If plaintiff had made out a prima facie case, defendant would have had the obligation to articulate a legitimate, non-discriminatory reason for its offering plaintiff early retirement. As discussed above, defendant produced a substantial body of evidence tending to show that it offered plaintiff early retirement because of his poor performance. With this showing, defendant would have successfully shifted the burden of proof back to plaintiff to demonstrate that defendant's asserted reason for offering plaintiff early retirement was a mere pretext for discrimination. We find that plaintiff is unable to satisfy this burden.
Where an employer claims that an employee was fired because of poor performance, one type of evidence an employee may use to demonstrate that the employer's asserted reason was pretextual is evidence that he did in fact perform his job satisfactorily. Such evidence by itself, however, is not enough. In this case, even if plaintiff could prove that he was performing his job satisfactorily, he would not be able to prove that defendant's asserted reason for firing him was pretextual. Simply showing that an employer mistakenly believed that an employee was a poor performer does not necessarily mean that the employer used his alleged poor performance as a pretext for discrimination. Brown v. M & M/Mars, 883 F.2d 505, slip op. at 6, (7th Cir. 1989). The employee must combine the evidence of his satisfactory performance with some evidence that the employer improperly considered age in making its employment decision. Brown, slip op. at 9; see Parker v. Federal National Mortg. Ass'n, 741 F.2d 975, 980 (7th Cir. 1984).
Plaintiff has not, however, put forth any evidence from which one can reasonably infer that he was offered early retirement because of his age, and he thus cannot make a showing that defendant's asserted reason was a mere pretext for age discrimination. In discussing plaintiff's case under Price Waterhouse, we found that he had produced virtually no evidence connecting his offer of early retirement with his age. We do not believe that a plaintiff should be required to produce enough evidence to satisfy the Price Waterhouse threshold, or even any direct evidence of age discrimination, to make a "pretext" showing at the summary judgment stage. A plaintiff must, however, produce some evidence, either direct or indirect, from which a jury could reasonably infer that defendant's employment decision based on the plaintiff's age. See Parker, 741 F.2d at 980. Plaintiff has failed to meet even this lesser burden. Most of the evidence proffered by defendant was offered to counter defendant's contention that advertising sales declined under his supervision, or to demonstrate Jerrold France's general hostility towards him. Of the few alleged statement by officers of defendant which mentioned age, one was innocuous and the others had no connection whatsoever to any employment decision, let alone the 1986 decision to offer plaintiff early retirement. Bayless Affidavit, paras. 8-9; Summers Affidavit, paras. 29-30.
Because plaintiff has failed to produce any evidence from which a jury could reasonably infer that his age had anything to do with defendant's decision to offer him early retirement, he cannot demonstrate that defendant's asserted reason for offering him early retirement was a mere pretext for discrimination. See Parker, 741 F.2d at 979-980. Even if plaintiff had made out a prima facie case of discrimination, defendant would have been able to shift the burden back to plaintiff to demonstrate that defendant's asserted reason for offering him early retirement was a mere pretext for discrimination. As plaintiff would not be able to satisfy this burden, summary judgment in favor of defendant is appropriate. Given this disposition of the case, we do not need to rule on defendant's contention that plaintiff was not discharged.
For the above reasons, defendant's motion for summary judgment is granted.
DATED: February 7, 1990
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