are minute and do not reflect bad faith on Hyatt's part. Specifically, Hyatt had added one year to the true age of 2 of the 5 oldest employees listed, and added 1 year to the age of Shaw (Krystof's successor). Although these errors are in Hyatt's favor, they do not alter the numbers of employees within the protected class, and Krystof fails to show how they materially change the relevant data. Krystof blithely implies, but fails to show, that Hyatt made these errors in bad faith in order to hide intentional discrimination.
In sum, absent other evidence of discrimination, Krystof's figures fall far short of showing any discriminatory motive on Hyatt's part.
II. Indirect Method.
When using the indirect method in a RIF case, the plaintiff must first set forth a "prima facie" case by establishing that (1) he was within the protected age group; (2) he was performing according to his employer's legitimate expectations; (3) that he was terminated; and (4) that others not in the protected class were treated more favorably. Oxman, 846 F.2d at 455. Showing a prima facie case establishes a rebuttable presumption of discrimination. McCoy, 957 F.2d at 371. The employer then bears the burden of articulating a "legitimate, nondiscriminatory reason for the employee's discharge." Id.
If the employer provides such a reason or reasons, the burden shifts back to the employee to show that the employer's proffered reasons are a pretext. Id.; See also, Gustovich v. AT & T Communications, Inc., No 90-C-2808, 1991 WL 1716 (N.D. Ill. Jan 7, 1991) (Duff, J.), aff'd, 972 F.2d 845 (7th Cir. 1992). In order to accomplish this, the plaintiff must establish "(1) that the proffered reasons had no basis in fact; (2) that the proffered reasons did not actually motivate his discharge; or (3) they were insufficient to motivate discharge." See Kier v. Commercial Union Insurance Companies, 808 F.2d 1254, 1259 (7th Cir. 1987). "If the plaintiff proves that the employer's proffered explanation is pretextual, the jury may infer discrimination from that proof alone." Perfetti, 950 F.2d at 451.
Krystof asserts that he can show age discrimination through the indirect, burden-shifting method. He fails, however, to succeed in this endeavor, because he does not show that Hyatt's proffered legitimate business reason for his discharge is pretextual.
For the purposes of this opinion, this court will assume that Krystof puts forth a prima facie case.
The burden then shifts back to Hyatt to articulate a legitimate business reason for his termination. Hyatt meets its burden by explaining that Krystof was discharged as the result of an economically-motivated RIF. Pursuant to this RIF, Hyatt selected Shaw, instead of Krystof, to fill the consolidated position of General Cashier/Food & Beverage Cashier Supervisor because Hyatt felt she was the better qualified employee.
The burden then shifts back to Krystof who must show that this reason is a pretext. Krystof incorrectly argues that he demonstrates pretext by making the requisite showing that he was performing according to Hyatt's "legitimate business expectations." This argument stems from Krystof's misunderstanding of Hyatt's proffered reason for his discharge and his misapplication of the holding in Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239 (7th Cir. 1992). In that case, the plaintiffs argued that their employer's employee evaluation program had unreasonable requirements and errors in its implementation which were evidence that this program was merely a means to fire older employees. Accordingly, the court found that "the issue of legitimate performance is best merged with the issue of pretext." Fisher, 979 F.2d at 1243. See also, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1571 (7th Cir. 1989). The court explained that the employer's legitimate expectations of employee performance were wholly dependent upon an evaluative performance program alleged to be a pretext for age discrimination. Id. at 1243. Merging performance issues with pretext issues made sense to the Fisher court since, if the employer's job requirements were "found to be illegitimate, it followed that [the employer's] expectations were likely pretextual, and vice versa . . . To hold otherwise would unnecessarily insulate [the employer] from the burden of articulating a nondiscriminatory reason for the discharge of [the employees]." Id.
Krystof likens his case to Fisher because he asserts that "deficiencies in his performance" were the proffered reason for his termination.
In fact, Krystof's case is distinguishable from that case because Hyatt mentioned Krystof's performance only as it related to whether he could show a prima facie case and as one element of the relative performance evaluation between Shaw and Krystof. Unlike in Fisher, demonstrating that Hyatt did not have legitimate expectations of Krystof fails to show that Hyatt's reasons for terminating him (i.e.: the economically-driven RIF and its preference for Shaw's performance) are dishonest.
In fact, Krystof presents absolutely no evidence that Hyatt's proffered reasons for his discharge are a pretext. Hyatt provides many reasons besides Krystof's "deficiencies" for the decision that Shaw was the more appropriate person for the consolidated position. In selecting between Shaw and Krystof for the consolidated job of General Cashier/Food & Beverage Cashier Supervisor, Barnish recommended retention of Shaw based on various factors including:
(1) Shaw had performed both jobs in the past, which included working as General Cashier when Krystof was on vacation but Krystof had never performed the job of Food & Beverage Cashier Supervisor; (2) the Food & Beverage Cashier Supervisor job involved supervising 30-40 cashier, as well as scheduling and evaluating employees, and implementing the responsibilities as General Cashier; (3) Shaw's recent job performance was better than Krystof's, and Krystof had been experiencing performance problems in the job of General cashier, which [fact] led Barnish to conclude that Krystof could not handle the increased workload of the combined jobs.