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BERLETT v. CARGILL

December 9, 1991

BETTY JO BERLETT, Plaintiff,
v.
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. §§ 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.

 Facts

 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 ...


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