face, this opinion need only focus on whether Lubeck has raised a genuine and material factual issue as to whether Comet's proffered reason is a pretext for the type of discrimination prohibited by ADEA.
Lubeck's responsive memorandum, filed by counsel who was later replaced by another lawyer, is one of the rare lawyer's products that fits the adjective as well as the noun "brief": It runs just two pages (and obviously advances few arguments in opposition to Comet's motion). Despite the possibility of waiver created by such a limited presentation, this Court has independently reviewed the record to determine whether any genuine and material issue calls for the denial of Comet's motion. What follows is a look at all of the evidence referred to in Lubeck's Memorandum, GR 12(n) statements, affidavits or deposition
that casts light on that question.
1. Was Lubeck Replaced by Cummings and Pestano?
Lubeck Mem. 2 argues that both Cummings and Pestano replaced him, implying that Comet's statement that it fired him due to a decline in business is false. That position is simply without merit.
When Lubeck was fired he was Comet's only full-time free-hand mill machinist, and it is undisputed that since then not only has Comet had no one doing that work on a full-time basis, but also the total volume of that work has not been enough to occupy the full time of an engraver.
That alone is enough to dispose of this facet of Lubeck's argument--neither Cummings nor Pestano nor both combined took over the labor (as opposed to the management) functions that Lubeck fulfilled at Comet.
Cummings did assume Lubeck's position as Department foreman, and while he does some free-hand mill work it is clearly not full-time: He continues to work on pantograph machines, and he also does layout and camera work (Pajak Dep. 38). Pestano never did free-hand mill work while Lubeck was at Comet, and there is no evidence that he did any after Lubeck was fired. Nor does Lubeck offer anything that suggests the later firing of Pestano on June 26, 1992 reflected any preferential treatment on account of his age
--and it is entirely consistent with Comet's explanation that it was facing a continuing decline in business that required the trimming of its labor force.
2. Should Cummings or Pestano Have Been Fired Instead?
Lubeck also contends that Cummings and Pestano should have been fired before he was considered for a similar fate. He bases that contention on his claimed ability to operate the pantograph machines and his assertedly superior skills and greater seniority than those of either of the other two men.
As to the first ground, Lubeck says that he was "capable of competently operating the pantograph machine" when he was fired (P. 12(n)(2) P B) because (1) he supervised the other employees who worked on those machines and therefore must himself have had the requisite knowledge of their function (P. 12(n)(2) P K) and (2) the pantograph machines in 1991 were the same ones that he had worked on "consistently" up until 1970 (P. 12(n)(2) P J). As for the first point, it appears to be a non sequitur: Donlin himself has served as supervisor of the engraving department for a time, but he has never operated or been trained on the pantograph machine (Donlin Supp. PP 4-6). And as to the second point, it should be noted that Lubeck's earlier ability to work on the pantograph machines and the quality of that earlier work are not germane here ( Samuelson, 976 F.2d at 1114 ("an employee's past performance is not indicative of present performance")). What is relevant instead to the pretext inquiry is whether Lubeck "was meeting his employer's expectations at the time of the discharge" ( Anderson v. Stauffer Chem. Co., 965 F.2d 397, 401 (7th Cir. 1992) (emphasis in original)).
In that respect Lubeck claims that he was categorically more skilled than Pestano and that compared with Cummings he was more skilled in operating the free-hand machine and was just as skilled in "other tasks" (P. 12(n)(2) PP S-U). However, his "own self-interested assertions concerning [his] abilities are not in themselves sufficient to raise a genuine issue of material fact" that Comet's reason for his discharge is pretextual ( Williams v. Williams Elec., Inc., 856 F.2d 920, 924 (7th Cir. 1988)). What controls instead is the "perception of the decision maker" ( Karazanos, 948 F.2d at 337-38) and whether that decision maker "honestly believes in the reasons [he] offers" for the discharge ( McCoy, 957 F.2d at 373). Consequently, on summary judgment an employer's personnel decisions are reviewed only to see that there was a genuine and honest effort to make them based on "performance-related considerations" ( Williams, 856 F.2d at 924).
Donlin was the only decision maker. It was his belief that Pestano was "more skilled, qualified and productive than Mr. Lubeck in the operation of the pantograph machines" (Donlin Supp. Aff. P 14; D. 12(n) P S) and that Cummings was "more skilled, qualified and productive" than Lubeck generally (Donlin Supp. Aff. P 13). Although Comet acknowledges that Cummings had less experience in supervising Department and in operating the free-hand mill machine (D. 12(n) P T), it also points out that Cummings operated other machines and performed other functions that Lubeck did not (id.).
Because no court considering an employment discrimination case should "sit as a super-personnel department that reexamines an entity's business decisions" ( Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)), it is important to recognize that Comet legitimately viewed work on the pantograph machine as more vital to its future than free-hand mill work--as already stated, it is uncontroverted that the decline in demand that Comet was experiencing in the 1990-91 period was particularly marked in the free-hand mill work area (D. 12(m) P 14). It is also uncontested that Lubeck had worked on the pantograph machines only once or twice in 1990 and only occasionally in 1991, and that he spent the vast bulk of productive time during those two years supervising Department and working as a free-hand mill machinist, while Pestano and Cummings performed functions that Lubeck either did not do at all or did not do on a continuous basis.
In effect Lubeck is arguing that despite his near-complete lack of the most relevant work in comparison with that performed by Pestano and Cummings, Donlin should have divined that Lubeck actually had superior skills. But simply put, that counter intuitive argument cannot override the more logical conclusion that Donlin reached. Lubeck has offered nothing that would even remotely suggest that Donlin was not genuine in determining that Lubeck was less skilled than the other two, a determination that clearly supports his decision to discharge Lubeck before the other two.
As for Lubeck's attempted reliance on his greater seniority than Pestano and Cummings (P. 12(n)(1) P 23; P. 12(n)(2) PP S, U), such seniority is irrelevant where the employer's decision to fire an employee is wholly based on other criteria ( Williams, 856 F.2d at 924). Once again, Donlin decided to terminate Lubeck (1) because of the lack of sufficient free-hand mill work for a worker who was doing such work full-time and (2) because of his opinion that overall Lubeck was less skilled than either Pestano or Cummings.
Lubeck's emphasis on his comparative seniority essentially mischaracterizes the purpose of ADEA. That statute prohibits differential treatment ("discrimination") only when it is based on age, not just because the differential in treatment (which is not in fact motivated by the prohibited reason) may have a greater impact on an older employee (a proposition unanimously confirmed by the Supreme Court only last year in Hazen Paper Co. v. Biggins, 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1705-08 (1993)). Because seniority is so likely to correlate to age (though it does not always do so), Lubeck's position would essentially undermine Hazen Paper by promoting the nonstatutory goal of guaranteeing individuals over the age of 40 preferential treatment over their younger co-workers ( Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1224 (7th Cir. 1991) ("ADEA is not a tenure statute; a plaintiff must show that his age was the cause of his termination")).
Once again a court must always be mindful that it does not "sit as a super-personnel department" ( Dale, 797 F.2d at 464, frequently quoted in such cases as Konowitz v. Schnadig Corp., 965 F.2d 230, 233 (7th Cir. 1992)). Comet's decision to discharge Lubeck for legitimate business reasons rather than to be controlled by Lubeck's greater seniority does not indicate that those business reasons are either a pretext or that they somehow evidence an age-based animus. Thus the seniority issue also does not help Lubeck in his claim of an ADEA violation.
3. Was Lubeck Set Up?
Comet says that it fired Lubeck after he was unable or unwilling to find enough work at the firm to keep himself busy on a full-time basis. Lubeck responds that although Comet gave him the "opportunity" to use other machines, the "work wasn't there" (Lubeck Dep. 62) and that he was never assigned specific tasks other than what he was already doing (P. 12(n)(2) P M). His implicit argument is that Comet's stated reason is somehow improper because he made an effort to reduce his non-productive time but the company failed to supply the work.
Clearly an employer cannot set an impossible task for an employee and then legitimately use the employee's inevitable failure to accomplish that task as a basis for discharge. But it is undeniably proper for a company to fire employees when it no longer has sufficient work to justify their continued employment in an economic sense. Here Comet's economic problems are undisputed, and it is equally undisputed that before his termination Lubeck had a seriously disproportionate amount of non-productive time on his hands.
That he attempted but failed to find other things to do at the firm in no ways undermines the credibility of Comet's reason for his dismissal. If anything it reinforces the legitimacy of that reason, for Lubeck himself admits that he did not have enough work to keep him busy on a full-time basis. Companies are not in business to employ more workers than they need, and ADEA cannot be used to force them to do so.
No one at Comet specifically told Lubeck what work he should take on to fill up his working day. Lubeck also claims that Comet had an oral policy requiring supervisors (such as himself) first to assign work to their subordinates, so that when there was a shortage of work he was left without any (P. 12(n)(2) P H).
But neither of those points aids Lubeck, because all aspects of company policy and actions other than age discrimination are beyond ADEA's reach--although this Court does not suggest that Comet merits any such pejorative characterizations, its success on the current motion follows a fortiori from the principle that ( McCoy, 957 F.2d at 373 (brackets in original), quoting Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560 (7th Cir. 1987)):
No matter how medieval a firm's practices, no matter how highhanded its decisional process, no matter how mistaken the firm's managers, [the ADEA does] not interfere.