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December 9, 1991

CARGILL, INC., Defendants.

The opinion of the court was delivered by: MILTON I. SHADUR


 Betty Jo Berlett ("Berlett") has sued Cargill, Inc. ("Cargill"), asserting that she was denied employment in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. ยงยง 621-634. Each of Berlett and Cargill now moves for summary judgment under Fed. R. Civ. P. ("Rule") 56. *fn1" For the reasons stated in this memorandum opinion and order, Cargill's motion is granted and Berlett's motion is denied.


 Berlett was born on March 3, 1929 (Berlett Dep. 4). From 1975 to 1984 Berlett worked as a grain merchant *fn2" for Pillsbury Company ("Pillsbury") at its grain merchandising plant in Roberts, Illinois (id. at 5, 8). In September 1984 *fn3" Pillsbury sold the Roberts plant to Cargill, which owned and operated numerous grain merchandising plants in the area, including one in nearby Gibson City, Illinois (id. at 5-6, 25).

 At the time of the sale Pillsbury employed four office workers (D. 12(m) and P. 12(n) para. 12 *fn4" ):

 1. Andrew Schuler ("Schuler"), a 35-year-old office manager;

 2. Berlett, a 55-year old grain merchant;

 3. Rosemarie Fairley ("Fairley"), a 43-year-old bookkeeper; and

 4. Kathryn Hethke ("Hethke"), a 28-year-old clerk. Pillsbury also employed several individuals who worked in the physical plant (D. 12(m) and P. 12(n) para. 13). There was no requirement in the purchase and sale agreement between Pillsbury and Cargill for the continued employment of Pillsbury's employees (D. Ex. C para. 5), and all Pillsbury employees were terminated when the sale of the plant became effective (Berlett Dep. 18).

 David Raisbeck ("Raisbeck"), who worked out of Cargill's central office in Minneapolis, was its regional manager for the State of Illinois and was responsible for personnel decisions at the newly-acquired Roberts plant (D. 12(m) and P. 12(n) para. 14). Richard Schnittjer ("Schnittjer"), manager of Cargill's Gibson City plant, *fn5" also participated in the personnel decisions (Raisbeck Dep. 29, 74-75). Schnittjer and Raisbeck discussed both overall staffing needs and individual applicants as part of their decision making process (D. 12(m) and P. 12(n) para. 15; Raisbeck Dep. 28-33; Schnittjer Dep. 64-65, 70-72). *fn6" As part of that process, Schnittjer screened the former Pillsbury employees to determine what they had done while employed by Pillsbury and whether they were qualified for the positions that Cargill intended to fill, although Schnittjer was not at the time of the interviews completely certain which positions would be retained (Schnittjer Dep. 84-86, Raisbeck Dep. 34, 39-40).

 After the screening process was completed, Cargill hired Fairley and Hethke to fill the same positions they had filled under Pillsbury, but it did not hire Berlett and Schuler (D. 12(m) and P. 12(n) paras. 20, 21). Cargill transferred Clark Neighbors from its Schneider, Indiana plant to fill the grain merchant position (Raisbeck Dep. 44-45, 55) and relied on Schnittjer to manage the Roberts plant from Gibson City (id. at 92-93; Schnittjer Dep. 122). Cargill also hired some of Pillsbury's weighers, graders and other plant workers, but it did not hire two of Pillsbury's plant workers: Dennis Kaeding, who was in his late 30's, and Larry Bleich, who was in his early 40's (D. 12(m) and P. 12(n) para. 22).

 Applicable Legal Framework

 To succeed on her age discrimination claim, Berlett must prove *fn7" that she would have been hired "'but for' [her] employer's motive to discriminate against [her] because of [her] age" ( Karazanos v. Navistar International Transportation Corp., 948 F.2d 332, 1991 U.S. App. LEXIS 27075, at *8 (7th Cir.) (citation omitted)). There are now two essentially different frameworks through which an employee may prove her claim. One is the mixed-motives analysis announced in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), appropriate when both legitimate and illegitimate considerations played a role in an adverse employment decision, and the other is the familiar ping-pong approach dictated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-4, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) as rearticulated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), appropriate when "either a legitimate or an illegitimate set of considerations led to the challenged decision" ( Price Waterhouse, 490 U.S. at 247 (emphasis in original)). *fn8"

 If an employee offers direct evidence of age discrimination, Price Waterhouse immediately comes into play -- for if the employee can sustain his or her initial burden of proof on that score, the burden of proof shifts to the employer and the employee need not rebut the employer's claim in the first instance. On the other hand, the "entire purpose" of the McDonnell Douglas/Burdine framework is "to compensate for the fact that direct evidence of intentional discrimination is hard to come by" ( Price Waterhouse, 490 U.S. at 271 (O'Connor, J., concurring)). Hence it is normally triggered by an employee's lack of direct evidence -- and in that event the employee sustains the burden of proof throughout. *fn9" What that means in the context of summary judgment motions in a case such as this one, where the employee proffers any direct evidence of age discrimination, is that this Court should first determine whether there is any genuine issue of material fact under the mixed-motives analysis of Price Waterhouse.

 Price Waterhouse Direct Method

 Price Waterhouse, 490 U.S. at 258 (adapted to the ADEA context) describes the route to be traveled in an employment discrimination case when the employee offers direct evidence of discrimination:

 We hold that when a plaintiff in [an ADEA] case proved that her [age] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's [age] into account.

 In other words, where it appears that the employer had mixed motives -- one legitimate and one illegitimate -- the ultimate burden shifts to the employer to prove that its decision would have been the same without the illegitimate motive.

 As for the employee's initial burden in a mixed-motives case, Price Waterhouse, id. at 250 (again adapted to speak in ADEA terms) elaborates:

 In saying that [age] played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was [over age 40].

 But it must be remembered that the just-quoted opinion was that of a four-Justice plurality, so that the majority ruling depended upon the concurrence of Justice O'Connor or Justice White or both. Hence the term "motivating part" must be read as requiring the unlawful motive to have been a substantial factor -- not just a factor -- in the adverse decision ( id. at 265 and 259). Visser, 924 F.2d at 658 restates the Price Waterhouse test in this way:

 Once the plaintiff in a civil rights case has shown that a forbidden purpose was a substantial factor in the decision to fire him, the burden shifts to the employer to persuade the court that the plaintiff would have been fired anyway, even if that purpose had not existed.

 Berlett offers one piece of direct evidence that Cargill impermissibly took her age into account in making its decision not to hire her. During her deposition she summarized that evidence (Berlett Dep. 52):

 In the course of conversation nearing the close of the interview Mr. Schnittjer said, and this is a direct quote, "I know I'm not supposed to ask you this, but how old are you?"

 Now, actually, I was smart enough to know I didn't have to answer, but I was so taken aback by the question, and the gentleman had been very cordial during the interview, that I just blurted out 55.

 Although Schnittjer admits to having adverted to Berlett's age, he portrays the scene somewhat differently (Schnittjer Dep. 91-92; see also id. at 99-102):

 In the very early part of the interview Betty Bertlett [sic] was -- seemed to me quite nervous, quite ill-at-ease. . . . I quickly read her employment application . . . noticed on the bottom of that application that what was very obvious, if I hadn't looked at the application, that we were somewhat in the same age group compared to other personnel; that we have been around probably a long time doing grain elevator work of one kind or another, probably; and I made some statement that we graduated approximately the same era.

 * * *

 And I said something to the effect that we must be close to the same age; and then I said, "I shouldn't ask you how old you are." And she proceeded to ask that question -- answer that question. That wasn't necessarily posed as a question. It was more of a statement.

  Even accepting Berlett's version of the interview, stray comments or questions regarding a plaintiff's age are not at all sufficient to establish under Price Waterhouse that age was a substantial factor in the employer's decision ( McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir. 1991); and see n.22 of this opinion). Berlett must also show that the question was related to Cargill's decision not to hire her ( id. at 686-87).

 In support of her theory that Schnittjer's question was related to Cargill's decision not to hire her, Berlett offers circumstantial evidence. *fn10" Berlett relates that several days after her interview Schnittjer told her that she would not be hired because Cargill had decided to handle merchandising out of its Gibson City office and would not be hiring a grain merchant for the Roberts office (Berlett Dep. 28-29). She contends that this statement was untruthful, because Neighbors was transferred to Roberts shortly after that to perform the merchandising function (id. at 55; Neighbors Dep. 28, 73; Raisbeck Dep. 44-45). *fn11"

 Two issues of material fact are thus unresolved as to Schnittjer's comment: the parties disagree both about the content of the conversation and about whether it influenced Cargill's ultimate decision. But those unresolved issues do not preclude the granting of Cargill's motion for summary judgment. Even if this Court draws the pro-Berlett inference that age did play a "motivating part" in Cargill's decision (however attenuated that inference may be), Berlett still cannot withstand Cargill's motion because there is no genuine issue of material fact to suggest that Cargill would not have made the same decision even if it had not taken Berlett's age into account.

 In support of its decision to transfer Neighbors rather than to hire Berlett, Cargill articulates three wholly non-age-related reasons:

 1. Cargill was trying to cut costs by consolidating positions and reassigning existing Cargill employees (Raisbeck Aff. para. 20).

 2. Cargill prefers to fill exempt positions with individuals who have been trained under Cargill's management training program (Raisbeck Aff. para. 19), as Neighbors had been (Raisbeck Dep. 135, 141).

 3. Cargill has a policy of promoting employees from within whenever possible (D. Ex. E para. 3; D. Ex. F at 2-1; D. Ex. G at 2 *fn12" ).

 All those themes were sounded throughout the period of Cargill's acquisition of the Roberts plant.

  In an internal memorandum dated August 23 (predating the September 14 purchase of the Roberts facility by nearly one month), Raisbeck stated his belief that Cargill could reduce the number of employees at Roberts by 50% and his intention to "utilize existing management, merchants and the elevator superintendent at Gibson City to operate and merchandise the grain for Roberts" (D. Ex. A at 3; see also id. at 2). Both Schnittjer's and Raisbeck's depositions also reflect that Cargill intended to reorganize the office structure at Roberts to make it more efficient (Schnittjer Dep. 121-22), to reduce the total number of employees at Roberts (id. at 66; Raisbeck Dep. 124-25) and to move employees between its own plants as part of that process (Schnittjer Dep. 68). Those depositions also express Cargill's intention to fill the merchant position with someone already employed by Cargill (Raisbeck Dep. 33, 44-45, 52, 62, 125; Schnittjer Dep. 66-68, 132). *fn13" Thus both Raisbeck and Schnittjer testify that even before Berlett's interview they did not intend to hire someone from outside Cargill to fill the grain merchant position (Raisbeck Dep. 33-34; Schnittjer Dep. 66-67, 88-89). In fact, Raisbeck directly states (Dep. 34) that "there was no position available . . . I did not consider Betty for any position."

 Berlett attempts to discredit Cargill's non-age-related explanations through two arguments. Neither carries with it any real degree of persuasiveness.

 First, Berlett contends that the fact that Schnittjer took an employment application from her (Schnittjer Dep. 80), interviewed her on September 10 (id. at 83) and did not tell her until after the interview that her position would not be retained for her (Berlett Dep. 27-29) indicates that Cargill was in fact considering her for that position. Cargill counters that the application and interview did not imply that it was considering Berlett for employment or had a position that she might fill. Instead Raisbeck stated, "as a consideration former [sic] employees, we allowed them to fill out applications and to be screened" (Raisbeck Dep. 85; see also id. at 34). Cargill admits that at the time of the interviews Raisbeck and Schnittjer were not absolutely certain which positions they would be retaining, and it explains that one purpose of the screening process was to help make that determination (Schnittjer Dep. 84-86, 117, 120; Raisbeck Dep. 39-40). *fn14" Thus Schnittjer also interviewed Schuler even though Cargill did not intend to hire him and specifically expected that his position would be filled by Schnittjer (Schnittjer Dep. 66, 117; Raisbeck Dep. 90).

 Any such dispute is irrelevant in any event, however. Even if this Court were to credit Berlett's argument that Cargill did consider Berlett for the position and ultimately decided to choose Neighbors, *fn15" that does not raise a question of material fact about whether it made that choice for an age-based reason.

  Second, Berlett contends that in addition to the grain merchant position she was qualified for and interested in the bookkeeper and clerk positions, for which Cargill did hire former Pillsbury employees (P. Mem. 5; P. R. Mem. 5). *fn16" Berlett's application stated that she was applying for "grain merchandiser/originator or whatever I may qualify for" *fn17" (P. Ex. A). Although Schnittjer admits that he had Berlett's application at the time of her interview (Schnittjer Dep. 83), he says that he did not realize that Berlett was interested in any position other than merchant (Schnittjer Dep. 87-88). *fn18" Raisbeck, who says that he never saw Berlett's application, also says that he did not know that Berlett was applying for more than her own position (Raisbeck Dep. 120-21).

 Once again any such difference in the parties' positions is irrelevant. Although Berlett's contention would leave unexplained Cargill's choice of Fairley and Hethke over Berlett for the positions of bookkeeper and clerk (a "choice" that Cargill says it never made), any such purported "choices" do not contribute in any way to a finding that Cargill violated ADEA. After all, Cargill hired both Fairley and Hethke to fill the same positions that they had held under Pillsbury after Cargill determined that they had been adequately performing their duties (Raisbeck Aff. paras. 12, 13). *fn19" As this Court has previously stated in Zick v. Verson Allsteel Press Co., 644 F.Supp. 906, 913 (N.D.Ill. 1986), aff'd, 819 F.2d 1143 (7th Cir. 1987), an employer is not required under ADEA to "fire a younger employee holding any job for which [plaintiff] was qualified. . . . The fact an employer fails to find some way of retaining an older employee, even at the expense of firing a younger one, is not evidence of a discriminatory motive."

 Nor does Cargill's hiring of Fairley and Hethke, two ex-Pillsbury employees, indicate that Cargill did not in fact adhere to its stated hiring policies (as Berlett argues at P. R. Mem. 2). First, Cargill's preference for transferring already-existing employees is not negated by the fact that it did not do so in every case. Moreover, the position of merchant is a more senior position than either bookkeeper or clerk (Raisbeck Dep. 32-33, 120; Berlett Dep. 57) and is therefore quite clearly a more fertile ground for promotion than either of those positions. Indeed, the preference for employees who had been through Cargill's management training program applied only to the more senior "exempt" positions (Raisbeck Aff. para. 19) and not to "non-exempt" positions such as bookkeeper or clerk (see n.6).

 In fact, quite contrary to Berlett's proposed reasoning, the only former Pillsbury employee whose employment status was comparable to Berlett's is the 35-year-old Schuler. Like Berlett, Pillsbury's former manager Schuler was in a more senior "exempt" position. Like Berlett, Schuler applied for more than one position (his application indicated he was interested in working as manager or merchandiser, D. Ex. D). And, like Berlett, Schuler was not hired but was replaced by an already-existing Cargill employee (Schnittjer). And of course the fact that Schuler was not in the ADEA-protected over-40 age bracket cuts directly against Berlett's contention that what was at work in Cargill's election not to hire her was an age-motivated decision. *fn20"

 Thus there is no genuine issue of material fact as to Cargill's reasons for not hiring Berlett. Berlett has offered no factual evidence contradicting the existence of the policies that Cargill enumerates. Nor do any of her arguments cast doubt on those policies. Thus even indulging every reasonable pro-Berlett inference, Berlett cannot withstand Cargill's motion for summary judgment.

 McDonnell Douglas/Burdine Indirect Method

 Under the McDonnell Douglas/Burdine framework, an employee must first establish a prima facie case of discrimination by showing ( McDonnell Douglas, 411 U.S. at 802):

 (i) that he belongs to a [protected class]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

 Once the employee establishes a prima facie case of discrimination, the burden of production shifts to the employer to rebut the presumption of discrimination by articulating "a legitimate, nondiscriminatory reason" for its decision ( Burdine, 450 U.S. at 254). If the employer meets that burden, then the employee must prove that the proffered reason was a pretext for discrimination ( id. at 253).

 But as this Court has previously observed in Nellis v. Service Web Offset Corp., 695 F.Supp. 398, 402 (N.D.Ill. 1988), the McDonnell Douglas/Burdine matrix can be reduced to a single step when the employer's proffered nondiscriminatory reason for not hiring the employee parallels the second element of the employee's prima facie case (see also Shager v. Upjohn Co., 913 F.2d 398, 400-01 (7th Cir. 1990) and Holmberg v. Baxter Healthcare Corp., 901 F.2d 1387, 1391 (7th Cir. 1990) *fn21" ). Because Cargill's articulated nondiscriminatory reason for not hiring Berlett -- that it was not seeking applicants for the position for which she applied -- also rebuts the second element of her prima facie case, that principle also holds true in this case. That being so, the only necessary focus in the indirect approach is once again on Cargill's stated non-age-based reason for not hiring Berlett.

 There is no need to labor the discussion further -- the just-completed analysis has already established as a matter of undisputed fact that (even if this Court indulges the pro-Berlett inference that age was a substantial factor in the equation *fn22" ) Cargill's decision was based on nondiscriminatory reasons. That completes the McDonnell Douglas/Burdine analysis as well. By sustaining its greater burden (one of persuasion and not merely production) under the Price Waterhouse approach, Cargill has also met the less burdensome McDonnell Douglas/ Burdine requirements.


 There is no genuine issue of material fact here -- more specifically, no material fact supports Berlett's claim that Cargill violated ADEA by failing to hire her. Cargill is entitled to a judgment as a matter of law, and Berlett's cross-motion under Rule 56 is of course denied. This action is dismissed in its entirety.

 Milton I. Shadur

 United States District Judge

 Date: December 9, 1991

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