proffered explanation is unworthy of credence'" ( Burdine, 450 U.S. at 256).
Evidence of pretext permits but does not compel the ultimate conclusion that age motivated the dismissal ( Perfetti v. First Nat'l Bank, No. 90-3861, 950 F.2d 449, 1991 U.S. App. LEXIS 28576, at *8 n.4 (7th Cir. Dec. 6, 1991)). More to the point in the present context, once offered such evidence compels the denial of summary judgment if it is sufficient to persuade a reasonable trier of fact by a preponderance of the evidence that age motivated the dismissal ( Anderson, 477 U.S. at 252; Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989)). So while this Court may not evaluate the credibility of evidence on summary judgment ( Anderson, 477 U.S. at 249), to that extent it must evaluate the weight of evidence.
Application of the Law to the Facts
Arcata first argues that Childress failed to perform up to its legitimate expectations, so he has not made out a prima facie case.
Proving the prima facie case on that point may be the only easy thing for a discrimination plaintiff to do in this Circuit, and Childress has done it. For that purpose even a plaintiff's own testimony about his or her job performance may suffice ( Weihaupt, 874 F.2d at 428), even though without the slant required by Rule 56 such evidence may not look terribly persuasive ( Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990) and even though the same self-serving testimony cannot alone ultimately forestall summary judgment (see, e.g., McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir. 1989)).
As Grant v. Gannett Co., 538 F. Supp. 686, 689-90 (D. Del. 1982) has aptly put the matter, a plaintiff need only produce substantial evidence of satisfactory job performance. To require plaintiff to produce more at the first ping of the McDonnell Douglas-Burdine ping-pong match--to demand enough evidence to rule out the possibility of having been discharged for inadequate performance--would convert the prima facie case into the entire case.
Here we have Childress' own testimony and more. His improved performance against his sales plan in the two years before his termination makes his overall performance look at least minimally adequate. Moreover, that improvement came in part after the time when management refused Barrett's request to fire him for poor performance--suggesting that but for the RIF Childress might have been retained. Even the December 6 evaluation of Childress by Barrett,
though largely negative, hardly describes the sort of utter failure to meet basic job requirements that would show an inability to prove the prima facie case (see, e.g., Villa v. City of Chicago, 924 F.2d 629, 631 (7th Cir. 1991) and this Court's opinion in Nellis v. Service Web Offset Corp., 695 F.Supp. 398, 402 (N.D. Ill. 1988)). On the whole, seen from Childress' viewpoint, the evidence is quite like that found adequate in Shager: It paints a picture of a salesman who "in his zeal to sell. . . failed to attend as assiduously as he might have done to the drabber managerial aspects of his job, but his overall performance was. . . at least as good as that of his peers" (913 F.2d at 401 (emphasis in original)).
It is crucial, though, not to confuse the inquiry just concluded with the one about to begin. Given the very low hurdle posed by the prima facie case, an employer may well be able to proffer "legitimate, nondiscriminatory reasons" for a dismissal even if the employee "meets legitimate expectations" for purposes of the prima facie case.
As the courts have been compelled to repeat ad nauseam, the civil rights laws did not rewrite the basic American doctrine of employment at will. An employer may legally fire an employee who is performing well in some sense but not well enough in some other sense valued by the employer. "Of course it is not a violation of the age discrimination law to fire an employee for insufficient cause" ( id., 913 F.2d at 401; similarly, see Nellis, 695 F. Supp. at 403).
Clearly Arcata has proffered legitimate, nondiscriminatory reasons for its dismissal of Childress. Its business was in decline. To stem the decline it planned a RIF. Pursuant to the RIF it fired an employee who, though adequate in some respects and perhaps even excellent in a few, had caused his supervisor much grief in others.
Most importantly, among the various memoranda, statistics and affidavits that so amply demonstrate Barrett's longstanding concern with Childress' performance there is not a wisp of a suggestion, let alone any explicit indication, that Barrett cared about Childress' age. All his initial concerns were age-neutral and closely linked to Childress' performance as compared with his job description, and as in Timms v. Frank, No. 91-1442, 953 F.2d 281, 1992 U.S. App. LEXIS 68, at *19 (7th Cir. Jan. 6, 1992) the ultimate decision to recommend Childress for termination appears to have been made in compliance with Doyel's written criteria for the selection of a RIF victim. Such a combination of economic exigency and rational concerns about performance surely provides legitimate and nondiscriminatory grounds for dismissal (see, e.g., this Court's opinion in Haynes v. Alumax Recycling Group, Inc., 719 F. Supp. 707, 711 (N.D. Ill. 1989), aff'd, 899 F.2d 16 (7th Cir. 1990) (where plaintiff's position was really eliminated, RIF is a legitimate and nondiscriminatory ground under ADEA)).
Even if this Court were to indulge an extreme pro-Childress viewpoint, the most that the evidence could be said to imply is that Barrett engaged in some sort of vendetta against Childress, consistently emphasizing the negative aspects of a mixed track record in order to turn upper management against him. Under the at-will doctrine embodied in ADEA case law, even such unsavory motives for dismissal must be considered legitimate and nondiscriminatory.
At that point then the burden reverts to Childress, who must offer proof of pretext. Childress does not purport to offer evidence that might directly persuade a trier of fact that a discriminatory reason more likely motivated Arcata. Instead he emphasizes that Arcata's explanation is "unworthy of credence" within the meaning of Burdine, as quoted and applied by our Court of Appeals in Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1364 (7th Cir. 1988)--that Arcata's proffered reasons lack any factual basis; that if they have a factual basis, they did not really motivate the termination; or, if they were factors in the termination, that they were not sufficient to motivate the discharge ( Smith, 876 F.2d at 1319). To that end Childress may offer two types of indirect evidence of pretext ( Perfetti, 950 F.2d 449, 1991 U.S. App. LEXIS 28576, at *5).
There is a third type of evidence that Childress might seek to tender (id. at *5-6):
direct evidence of pretext, such as a contradiction between the employer's proffered justification at trial and documentary evidence from the time of the decision, or a contradiction among the witnesses to the employment decision at issue.
There is no such evidence. Arcata's story is consistent across time and across witnesses.
Under Perfetti, id. at *6 Childress may also offer a fourth type of evidence:
circumstantial evidence of pretext, such as evidence that the proffered justification is not a genuine job requirement or has been inconsistently applied to other employees.
Childress' efforts at proof fall into that latter category.
Yet he obviously has not shown that the proffered reasons lack any basis in fact, which is the first avenue of proof on the Mechnig roadmap. Arcata has supplied ample, largely unrebutted evidence of its financial straits, its specific concerns with Childress' performance and the RIF policies and procedures.
Nor has Childress shown (in an effort to follow the second Mechnig avenue) that the proffered reasons did not actually motivate his discharge. To see why that is so, it is necessary to review Childress' own summary of the evidence (P. Mem. 11-12). Here are the eight points that he makes, urging that taken together they could at trial prove Arcata's explanation to be unworthy of credence.
1. Childress has satisfied his prima facie case. True but irrelevant. That gets Childress over an initial hump but cannot preclude summary judgment.
2. At the time of the purported RIF, Arcata "simultaneously acquired" two new and younger employees, Cibulka and Nuelle. Wrong. It is indisputable that a RIF in fact occurred. Childress' attempts to contest that fact have failed. For instance, he claims that Arcata was recruiting at the time of the RIF because it ran the ad in Printing Impressions. But the undisputed evidence is that Arcata cancelled the ad when the cutbacks began. Arcata hired Cibulka before the RIF, then actually considered him as a potential RIF victim and decided to retain him. It hired Nuelle after the RIF to do a job different from the one Childress had performed.
3. Childress was meeting Arcata's legitimate expectations. Agreed for prima facie purposes, but redundant of point 1 and equally irrelevant.
4. Arcata engaged in a "pattern and practice" of discharging older employees while hiring younger ones. Childress lists four employees over the age of 40 who were allegedly discharged under Barrett's direction: Childress, Fansler, Robb and Solt. Only Childress and Fansler were actually discharged, while Solt retired and Robb still works at Arcata. Childress also lists six younger employees hired. That list however omits Robb, who was 46 when hired and thus within the ADEA-protected class. So the real box score reads: two older workers fired, one older worker hired, six younger workers hired. No reasonable jury could find a net loss of one older worker probative of a "pattern or practice" of discrimination, especially when there is undisputed evidence that the one older worker other than Childress was fired for cause.
5. Arcata "expressly eliminated" younger salespeople from consideration as RIF victims. Doyel sent Barrett five-year sales data for all salespersons with a five-year track record. But he did not instruct Barrett that younger salespeople were immune from the RIF, and Barrett did in fact evaluate those salespeople as possible targets of the RIF.
6. Barrett gave Cibulka a better performance review than Childress, even though the younger man had not yet begun work as a salesman. Barrett reviewed Cibulka according to the criteria given him by Doyel. If a salesperson had no track record, Barrett was to make an evaluation based on his best estimate of the person's potential. And he made such evaluations both for Cibulka (age 34) and Robb (age 46).
7. Arcata replaced Childress with the younger Cibulka. Arcata hired Cibulka in the fall of 1989, pursuant to a policy of corporate expansion. It fired Childress on January 5, 1990, pursuant to a more recent policy of corporate retrenchment. There was no linkage between the two actions.
8. Arcata did not give Childress the chance to fill the position given to Nuelle. Arcata had no obligation under contract, statute or case law to retrain Childress or give him priority consideration for new positions. Childress cites only one case for the proposition that Arcata had such an obligation-- Metz v. Transit Mix, Inc., 828 F.2d 1202, 1209-10 (7th Cir. 1987)--but it says nothing of the kind. Metz does suggest that an employer who fires an older worker specifically to avoid paying his or her high salary must instead pursue less-detrimental alternatives, such as "continued employment. . . in a different position" ( id. at 1208). But Metz--which flatly forbids the firing of older workers simply on the grounds that they earn more than a younger replacement would--applies only where the fired worker is replaced with a younger person ( id. at 1211). There was no replacement hired here, so Metz does not apply. Metz does open up another possible argument that bears brief discussion. On March 31, 1988, around the time he first attempted to have Childress dismissed, Barrett told Childress that he had to meet certain performance standards in light of his experience and the investment that Arcata had made in him in the form of salary and benefits (Barrett Aff. Ex. B at 7). If this Court were to credit for the moment Childress' supposition that Cibulka was hired to replace him, that memorandum might be thought highly probative of discrimination under Metz. There the majority stressed that higher performance standards nominally based on the higher pay and benefits accorded to senior employees may violate ADEA, given the strong correlation between seniority and age (828 F.2d at 1209).
But courts may find that an employer used pay and benefits as a proxy for age only "on a case by case basis where the facts support [their] use" ( id. at 1208). This is not such a case. Barrett's memorandum simply states that after five years with the company an employee ought to achieve at least $ 3 million in annual sales. Each employee's sales plan was contingent on experience and past performance, not age. Doyel's list of five-year veterans (Doyel Aff. Ex. B at 3) included Mark Rowlett and Gary Abraham, both of whom were under 40 (P. Ex. 3) but had sales plans of at least $ 3 million between 1987 and 1989 (P. Ex. 2 at 34). John DiMasi, a 32-year-old colleague of Childress who had performed exceptionally well in his first two years with Arcata, had an $ 11 million sales plan in 1989 (P. Ex. 2 at 34). There is no rational basis to infer that Barrett's announced $ 3 million standard for veterans was in fact a proxy for weeding out older workers.
Finally, Childress offers nothing to satisfy the third Mechnig alternative: that the proffered reasons were insufficient to motivate termination. Arcata's proffered reason is its RIF program. By having shown that the RIF program actually existed and was carried out according to its own stated terms, Arcata has ipso facto shown reasons sufficient to motivate termination.
D. Mem. 13 says "the singular, critical issue here (once again) is whether 'reduction in force' is a credible explanation for the defendant's action in causing the plaintiff's discharge." It is. There is no genuine issue of material fact, and Arcata is entitled to a judgment as a matter of law. This action is dismissed.
Milton I. Shadur
United States District Judge
Date: January 22, 1992