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December 23, 1992



The opinion of the court was delivered by: SUZANNE B. CONLON

Judge Suzanne B. Conlon


 Plaintiff H. Robert Kotarski moves for reconsideration of this court's Memorandum Opinion and Order of November 25, 1992 ("the Memorandum Opinion") granting summary judgment in favor of defendant Binks Manufacturing Company ("Binks") on Kotarski's claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. ยง 621 et seq. Kotarski contends the court erred by failing to apply the proper standard for summary judgment, by applying the test for a prima facie case too rigidly, and by improperly determining that pretext alone cannot make out a prima facie case.


 Motions for reconsideration serve a limited function. Keene Corp. v. International Fidelity Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984). Accord Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985). A court will ordinarily grant a motion to reconsider to correct manifest errors of law or fact or to consider newly discovered evidence that could not have been adduced during the pendency of the previous motion. Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987); Kohl v. Murphy, 767 F. Supp. 895, 904 (N.D. Ill. 1991). Motions for reconsideration may not raise legal theories or arguments that could have been raised in the original motion. Id. at 904. Accord Woods v. Michigan City, 940 F.2d 275, 280 (7th Cir. 1991).

 I. Summary Judgment Standard

 Kotarski claims that the court improperly applied the standard for summary judgment by resolving credibility determinations in favor of Binks. As Kotarski points out, the proper question is whether the evidence presented on summary judgment, viewed in the light most favorable to him, could support a reasonable jury finding that Binks fired him because of his age. Shager v. Upjohn Co., 913 F.2d 398, 399 (7th Cir. 1990). Put another way, the court may grant summary judgment only if a trial at which the same evidence was presented would result in a directed verdict for Binks. Id. at 402, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). It is also true that for purposes of summary judgment, ambiguities in a witness' testimony must be resolved against the moving party. Shager, 913 F.2d at 402. But evidence must be qualitatively capable of creating a genuine issue of material fact to avoid summary judgment. Evidence that could in theory create an inference but that would not allow a rational finder of fact to draw that inference will not defeat summary judgment; Kotarski must do more than show that there is some metaphysical doubt as to the facts. Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

 Kotarski contends the court improperly resolved questions of credibility against him in concluding that he had not produced evidence that could show that he was performing according to Binks' legitimate expectations. To establish a prima facie case under the burden-shifting method, Kotarski was required to show that he was performing according to Binks' legitimate expectations. See Smith v. General Scanning, Inc., 876 F.2d 1315, 1318 (7th Cir. 1989). On this element, Binks came forward with unambiguous affidavits from Kotarski's supervisors that Kotarski's performance was unsatisfactory. See Memorandum Opinion at 7. Kotarski's own affidavit did not assert that he was performing satisfactorily. Instead, Kotarski relied on "inconsistencies" between his supervisors' affidavits and their deposition testimony and deposition testimony by Kotarski's subordinates to establish a genuine issue of fact.

 The court held that Kotarski's proffer did not establish a genuine issue, but not (as Kotarski claims) because issues of credibility were resolved in favor of Binks. The court determined that Kotarski's evidence could not qualitatively establish a genuine issue of material fact even if taken as true. None of the purported "inconsistencies" went to the fact at issue: Kotarski's overall performance as a combined toolroom / inspection supervisor at the time he was fired. *fn1" Neither did deposition testimony by Kotarski's subordinates, Wayne Maurer or Joseph Myles. The issue is not who was telling the truth. In order to create a genuine issue of material fact, Kotarski was required to offer evidence as to his performance from someone who was in a position to know. Maurer and Myles (both of whom worked for Kotarski) offered testimony that in their opinion, Kotarski was performing well and should not have been terminated. Just as the testimony of a hospital orderly could not rationally create an issue of fact as to the quality of a surgeon's performance, testimony from Kotarski's subordinates does not create a genuine issue of material fact as to whether Kotarski was performing in accordance with Binks' legitimate expectations. Even accepting their testimony as true, there is no genuine issue of material fact as to Kotarski's performance level. *fn2" More importantly, no testimony offered by Kotarski went to his ability to perform in the new combined position of toolroom / inspection supervisor. Because his old position is gone, that is the real question, and Kotarski has failed to provide any relevant evidence at all. *fn3" The court properly granted summary judgment after determining that there was no genuine issue of material fact as to Kotarski's performance.

 II. Requirements of Prima Facie Case

 Kotarski also claims the court erred by holding that in order to establish a prima facie case under the burden-shifting method, Kotarski was required to show that he was replaced by someone outside the protected group. In his view, ADEA plaintiffs in cases involving a reduction in work force need not show anything regarding a replacement -- discrimination may always be inferred without this evidence. Kotarski urges that Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985) supports his position. *fn4"

 The burden-shifting framework may not be rigidly applied in reduction-in-work force cases to require that a plaintiff show that he was replaced by an employee outside the protected class. Stumph, 770 F.2d at 96. Where a person's job is eliminated, even though there can be no showing of replacement by a younger employee, a plaintiff may nonetheless have been terminated because of his age. Id. It would thus have been error to hold that Kotarski could not make a prima facie showing solely because he could not show he was replaced by an employee outside the protected class. Cf. id. at 97.

 But that is not what this court held. The court noted that the only utility of the burden-shifting framework is that it eliminates the most common nondiscriminatory reasons for a plaintiff's discharge; the method has no per se legal significance. See Texas Dept. of Comm'y Affairs v. Burdine, 450 U.S. 248, 254 (1981). Therefore, a plaintiff need not show the fourth element of a prima facie case so long as he comes forward with evidence of some other nexus between the defendant's employment action and age discrimination. For example, a plaintiff could offer statistical evidence of a discriminatory pattern in the work force reductions, or evidence that a defendant's articulated criterion for choosing which employees to lay off was a close proxy for age. See Pace v. Southern Ry. Sys., 701 F.2d 1383, 1386-88 (11th Cir.), cert. denied, 464 U.S. 1018 (1983). Because Kotarski failed to offer any evidence in lieu of the replacement element of the burden-shifting method, the court properly found Kotarski failed to raise a genuine dispute as to whether he had established a prima facie case.

 Kotarski argues the court nonetheless committed error because Stumph dispenses with the fourth element outright. Admittedly, Stumph could be read to suggest as much. See Stumph, 770 F.2d at 96-97. But the court declines to read Stumph as broadly as Kotarski suggests. That reading would severely undercut the efficacy of the burden-shifting method. Eliminating the replacement element in cases involving work force reductions would mean any protected employee who could show he was performing satisfactorily and was laid off would have a prima facie case. Certainly such a limited showing does not eliminate the most common nondiscriminatory reasons for discharge, but the burden-shifting method must do just that to be effective. See Burdine, supra. While the method must be applied flexibly, it must not be altered so much that it loses all utility as a reliable method of proof. Providing a prima facie case for virtually all protected employees who lose their job as a result of work force reductions goes too far. Accord Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1220-21 (7th Cir. 1991) (ADEA plaintiff in corporate reorganization case had to show favorable treatment for those outside of class and carried a greater burden of demonstrating pretext).

 III. Proof by Pretext Alone

 Kotarski also faults the court for holding that any showing regarding pretext is irrelevant because Kotarski failed to raise a genuine issue of fact on his prima facie case. According to Kotarski; if he proves that the employer's proffered explanation is pretextual, the jury may infer discrimination from that proof alone. Kotarski claims Perfetti v. First Nat. Bank, 950 F.2d 449 (7th Cir. 1991), cert. denied, 112 S. Ct. 2995 (1992), holds just that. But Kotarski's claim is plainly incorrect. Though Perfetti addresses the issue of pretext, that decision recognizes that pretext only becomes an issue after a plaintiff makes out a prima facie case. Id. at 450-51.

 In any case, the court also determined that there was no genuine issue of material fact regarding pretext. Binks' evidence demonstrated that Binks was involved in a cost-cutting program, that Kotarski's supervisors felt he was performing poorly, and that Kotarski's position as inspection foreman was eliminated. Each of these is a valid nondiscriminatory reason for discharge. Kotarski claims the evidence suffers from inconsistencies. But it takes contrary evidence, not qualitative criticisms, to create a dispute. Fed. R. Civ. P. 56(e).


 Plaintiff's motion to alter or amend judgment is denied.


 Suzanne B. Conlon

 United States District Judge

 December 23, 1992

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