[sic] taking on more complex functions." A Special Review Committee reviewed Lubkeman's Separation Justification Form and approved his separation on August 13, 1992. On August 26, 1992, Lubkeman was terminated along with sixteen other individuals. Lubkeman's position was eliminated and his previous duties were assumed by various management and union personnel.
From 1986 through the date the complaint was filed, ComEd elevated five of the seven former Engineering Assistants in pay grade. Placko, born in March 1952, advanced to Supervisor, a grade level six. Rasmussen, born in July 1950, Ginn, born in April 1952, and Cichon, born in March 1956, were also promoted to Supervisor. Graessle, born in June 1947, was elevated to Work Analyst, a pay grade six position. With the exception of Cichon, all men were at least forty years old on the date Lubkeman was terminated. All five men continue to work for ComEd. Gosch, born in January 1934, retired in October 1991. Lubkeman never exceeded pay grade five.
On October 21, 1992, Lubkeman filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). On July 12, 1993, Lubkeman filed this action in the United States District Court for the Northern District of Illinois. He alleges that ComEd engaged in unlawful employment practices in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 21, et seq. In the single-count complaint, Lubkeman alleges that his age was the motivating factor in his termination. ComEd contends that Lubkeman's employment was terminated due to a reduction in force and that Lubkeman's poor performance ratings, not age, were the cause for his placement on the separation list.
Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Salima v. Scherwood South, Inc., 38 F.3d 929 (7th Cir. 1994). Summary judgment is not a discretionary remedy, it must be granted when warranted. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994) (per curiam). The burden rests with the moving party to demonstrate an absence of evidence to support the position of the non-moving party. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Associated Milk Producers, Inc. v. Meadow Gold Dairies, 27 F.3d 268, 270 (7th Cir. 1994), presenting merely a scintilla of evidence will not suffice to oppose a motion for summary judgment. Walker v. Shansky, 28 F.3d 666, 671 (7th Cir. 1994). Furthermore, a "metaphysical doubt" concerning the existence of a genuine issue of fact is not enough to preclude a summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986).
Moreover, the disputed facts must be those that might affect the outcome of the suit to properly preclude summary judgment, First Ind. Bank v. Baker, 957 F.2d 506, 508 (7th Cir. 1992); a dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). Accordingly, the non-moving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
The court now turns its attention to the merits of the motion. Congress enacted the ADEA primarily to "promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. § 621(b). "The ADEA, enacted in 1967 as part of an ongoing congressional effort to eradicate discrimination in the workplace, reflects a societal condemnation of invidious bias in employment decisions. The ADEA is but part of a wider statutory scheme to protect employees in the workplace nationwide." McKennon v. Nashville Banner Publishing Co., 1995 U.S. LEXIS 699, at *9, 1995 WL 20463, at *3 (S. Ct. Jan. 23, 1995). The ADEA makes it unlawful for employers to engage in the following conduct:
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.
29 U.S.C. § 623(a). The prohibitions under ADEA are limited to those who have attained the age of forty or older. 29 U.S.C. § 631(a). Any person who is at least forty years of age and is discriminated based on age may commence a civil action for legal or equitable relief. 29 U.S.C. § 626 (c)(1).
To establish liability under the ADEA, a plaintiff must prove that age accounted for the employer's decision to terminate the plaintiff--in other words, the issue is whether the same events would have transpired if the employee had been younger than forty all else was equal. Gehring v. Case Corp., 43 F.3d 340, 1994 WL 715285, at *1 (7th Cir. 1994). The plaintiff is, however, not required to prove that his or her age was the only factor in the employer's decision to discharge. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993). Rather, an ADEA plaintiff is only required to prove that he or she would not have been terminated "but for" his or her age. Fisher v. Transco Serv. Milwaukee, Inc., 979 F.2d 1239, 1243 (7th Cir. 1992).
There are two methods of proof available to a plaintiff to demonstrate unlawful age discrimination. The first method of proof, the direct method, is to adduce direct or circumstantial evidence tending to evince that his or her age was a substantial factor in the discharge decision. Konowitz v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir. 1992). The second method of proof, commonly known as the burden-shifting or inferential method as outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), is to establish a prima facie case, creating a rebuttable presumption of discrimination. Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 336 (7th Cir. 1993). While the burden-shifting method was originally framed by the McDonnell Court to address actions arising under the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the method was adopted by the Seventh Circuit to govern ADEA claims. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Ayala v. Mayfair Molded Prods. Corp., 831 F.2d 1314, 1318 (7th Cir. 1987); Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1212 (7th Cir. 1985). The Seventh Circuit has continuously rejected a proposed third method of proving age discrimination which attempts to demonstrate that a reduction in force had a disparate impact on all older employee's of a company as opposed to disparate treatment of one individual. Gehring, at *1; EEOC v. Francis W. Parker School, 41 F.3d 1073 (7th Cir. 1994); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994).
In the instant motion, ComEd argues that there is no direct or circumstantial evidence of age discrimination; therefore, Lubkeman can only prevail under the burden-shifting analysis. The court agrees. No direct or circumstantial evidence exists to indicate that Lubkeman's age was a "but for" factor in ComEd's decision to terminate him. Thus, the direct method of proof is inapplicable in the instant case and the court uses the McDonnell Douglas burden-shifting analysis.
There are three phases to the burden-shifting method. The initial burden of satisfying the first phase is on the plaintiff. The plaintiff must establish a prima facie case of discriminatory discharge by demonstrating that "(1) he was a member of the protected class (persons over forty), (2) he was performing his job well enough to meet his employer's legitimate expectations, (3) he was discharged, and (4) the employer sought a replacement for him." Sarsha, 3 F.3d at 1039. However, in a reduction-in-force situation, the fourth element may be satisfied by establishing that younger employees were treated more favorably than the plaintiff based on age. Smith v. Gen. Scanning, Inc., 876 F.2d 1315, 1318 (7th Cir. 1989); Oxman, 846 F.2d at 453.
Once a prima facie case is established, a rebuttable presumption is created that the employer's decision to terminate was the result of impermissible factors. Rand v. CF Indus., Inc., 42 F.3d 1139, 1994 WL 712929, at *5 (7th Cir. 1994). This rebuttable presumption shifts the burden of production to the employer to "articulate a legitimate reason for the discharge." Weiss, 990 F.2d at 336. This is the second phase of the shifting method. The employer "need not persuade the court that it was actually motivated by its proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981). The employer is only required to submit any lawful justification for the termination in question. Id. If the employer fails to offer a legitimate, non-discriminatory reason for its decision to terminate, judgment must be entered against the employer and in favor of the plaintiff. Id.
If, however, the employer satisfies the second phase, the rebuttable presumption is dissolved and the burden of persuasion, not merely production, shifts back to the plaintiff for the third phase. Loyd v. Phillips Bros., Inc., 25 F.2d 518, 533 (7th Cir. 1994). The third phase requires the plaintiff to show that the employer's proffered explanation for the termination amounts to nothing more than a mere pretext for discrimination. Fisher, 979 F.2d at 1243. To meet this burden of production, the plaintiff is not required to produce direct evidence to contradict the proffered reason. The plaintiff may either persuade the court that, more likely than not, the discriminatory reason motivated the employer or that the purported explanation is unworthy of credence. Burdine, 450 U.S. at 257, 101 S. Ct. at 1095-96. Thus, under the burden-shifting approach, if a plaintiff convinces the trier of fact that it is more likely than not that the employer did not act for its proffered reasons, then the employer's decision remains unexplained and the inferences from plaintiff's evidence may be sufficient to prove the ultimate fact of discriminatory intent. Oxman v. WLS-TV, 12 F.3d 652, 657 (7th Cir. 1993) (quoting Ayala, 831 F.2d at 1319). However, in a case in which two or more motives were said to be operative in the employer's decision to fire an employee, the employee cannot prevail in a suit against the employer if a lawful reason alone would have sufficed to justify the firing. McKennon, at *4 (citing Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 284-87, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977).
The court next looks to whether Lubkeman met his burdens under the inferential or burden-shifting method. ComEd concedes that Lubkeman met the first and third element of his prima facie case. However, ComEd argues that Lubkeman failed to perform his duties satisfactorily and that Lubkeman's former job was eliminated. Furthermore, ComEd asserts, Lubkeman's previous position was not filled with a younger employee nor was Lubkeman treated unfavorably based on his age.
The court finds that Lubkeman has failed to satisfy the second and fourth elements of his prima facie case. Lubkeman did not perform his job well enough to meet ComEd's expectations. Furthermore, ComEd did not seek a replacement for him or did not treat Lubkeman less favorably than younger employees.
The facts show that Lubkeman had not performed his job satisfactorily since 1984, the year he initially became an Engineering Assistant. LaFontaine, Lubkeman's supervisor in 1984 and 1985, stated that Lubkeman was "the worst performer on his staff because his writing skills were poor, he did not pay attention to detail, and his general attitude towards improving his performance was indifferent." In 1985, LaFontaine recommended to higher management that Lubkeman not receive a raise.
In late 1987, Lubkeman was reassigned as a Procedure Writer under the supervision or Hansen. Using the newly developed PPR, Hansen rated Lubkeman's performance in 1988 between "needs improvement" and "unacceptable performance." Hansen attributes the poor rating to Lubkeman's careless and incorrect performance of his duties. In 1989, Hansen rated Lubkeman a "3" on a nine-point scale; this rating equated to a below-acceptable evaluation.
In 1990, although Lubkeman's new supervisor, Cook, commented on Lubkeman's improvement, Lubkeman still received a rating of "4," the lowest number in the "meeting expectations" category. However, during the next year, Cook determined that Lubkeman did not perform his duties competently. In support of this determination, Cook cites several examples of different occasion in which Lubkeman failed to perform various job tasks. This unacceptable work performance was evidenced by Lubkeman's 1991 performance rating, a "3." This rating was the lowest rating assigned to an employee within the department.
In 1992, a new supervisor, Loeber, became dissatisfied with Lubkeman's job performance as well. Loeber removed 40% of Lubkeman's job tasks as a result of Lubkeman's lack of attention to detail. By 1992, when ComEd's separation lists were compiled, Lubkeman was the lowest rated employee in his entire department. Moreover, Lubkeman had the weakest performance record in the whole department.
In addition to Lubkeman's poor performance evaluations and history of poor performance, Lubkeman remained at pay grade five. Of the seven Engineering Assistants Lubkeman worked with in 1984, Lubkeman was the only person not to be promoted. Lubkeman did not advanced in rank, pay, or position. It is clear from the evidence that Lubkeman did not perform his job well enough to meet his employer's expectations. In fact, Lubkeman was effectually demoted; Lubkeman's supervisor significantly diminished his job tasks in 1992. Therefore, Lubkeman failed to produce any evidence of sufficient job performance necessary to satisfy the second requirement of the first phase.
Lubkeman not only fails to satisfy the second element, but also fails to adduce any evidence to prove the fourth element of a prima facie case--viz., that the employer sought a replacement for him. Since ComEd completely eliminated Lubkeman's former position and redistributed the former tasks among the remaining workers, the employer sought no replacement. ComEd eliminated Lubkeman's job position due to financial constraints and was not financially able to hire another employee. Moreover, Lubkeman did not establish that younger employees were treated more favorably than he was based on age. While Lubkeman need not prove that persons who are not members of the protected class replaced him or that they received favorable treatment, Kralman v. Ill. Dept. of Veterans' Affairs, 23 F.3d 150, 154-55 (7th Cir. 1994), he must at a minimum prove that employees younger than he, who may or may not be over forty years of age, replaced him or received favorable treatment. In this case, no such evidence exists. Five older employees, Cook, Hansen, Loeber, LaFontaine, and Graessle, all remained employed after the date of Lubkeman's termination. Lubkeman cannot establish the fourth element simply because younger employees, such as Placko, Rasmussen, Ginn, and Cichon, continued to work for ComEd after he was terminated. The simple fact that the age differences between the men and Lubkeman (four years, two years, four years, and six years respectively) were "fairly marginal" weakens Lubkeman's claim. See Rand, 1994 WL 712929, at *8; Kralman, 23 F.2d at 155-56. Lubkeman produced nothing to show that the men remained because of their age as opposed to their abilities and employment history. On the other hand, ComEd affirmatively produced information showing that the four younger men had above average job performance. Such performance resulted in promotions to higher pay grade levels. Lubkeman's failure to put forth evidence that he was treated unfairly due to age results in a failure to satisfy the fourth element. Accordingly, the court holds that Lubkeman has failed to establish a prima facie case and his claim must fail.
Even if Lubkeman could state a prima facie case, Lubkeman cannot show that ComEd's explanations for Lubkeman's early discharge was pretext for age discrimination. ComEd and Lubkeman agreed that ComEd was forced to make many drastic changes due to its poor financial condition and economic constraints. Both parties agree that terminating 1,250 employees was one of the necessary measures to reduce operating costs. Therefore, the court finds that ComEd satisfied its burden of presenting a legitimate, non-discriminatory reason for Lubkeman's termination; in meeting this burden, ComEd has successfully dissolved any presumption of discrimination.
The burden, thus, shifts to Lubkeman to show that the employer's stated reason for discharge is pretextual. "The ADEA commands that 'employers are to evaluate [older] employees . . . on their merits and not their age.'" Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1706, 123 L. Ed. 2d 338 (1993) (quoting Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 105 S. Ct. 2743, 2756, 86 L. Ed. 2d 321 (1985). Lubkeman must produce evidence that ComEd's decision to terminate him was due, in part, to age.
No evidence exists in the record to support Lubkeman's contention that ComEd offered a pretextual reason to this court. The only evidence which Lubkeman alludes to was that several performance evaluations were incorrect and that they did not fairly represent his true achievements. Had he been given his deserved performance evaluations, Lubkeman argues, he would not have been placed on the separation list and would not have been terminated. Unfortunately, this argument is without merit and misplaced in rebutting the issue or pretext.
These arguments are directed towards the wisdom of ComEd's actions, not the factual basis for the decision. Rand, 1994 WL 712929, at *6. The issue of pretext does not focus on the correctness or desirability of the reasons offered by the employer. Kralman, 23 F.3d at 156-57. Instead, the issue of pretext focuses on the question of whether the employer honestly believes in the reasons it asserts. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). The Seventh Circuit has reasoned as follows:
We do "not 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)]. "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." Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560 (7th Cir. 1987). Rather, our inquiry is limited to "whether the employer gave an honest explanation of its behavior."
Id.; Smith, 876 F.2d at 1321 (quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)) (brackets in original). To establish that the employer's reasons for the termination is a pretext for discrimination, "it is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible . . . . [rather] he must show that the explanation is 'a phony reason.'" Pignato v. Am. Trans Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994). Lubkeman cannot establish that ComEd's legitimate, non-discriminatory reason of downsizing was "phony." As a result, Lubkeman's failure to show that the ComEd's proffered explanation amounted to nothing more than mere pretext is fatal to his claim under the ADEA.
The court holds, first, that Lubkeman failed to establish a prima facie case and, second, that he failed to prove the proposed explanation for ComEd's employment decision to terminate Lubkeman was a pretext for age discrimination. Accordingly, the court finds that ComEd did not engage in unlawful age discrimination in terminating Lubkeman as a matter of law.
For the foregoing reasons, the motion of ComEd for summary judgment is granted.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, Sr., Judge
United States District Court
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that summary judgment is granted in favor of defendant, Commonwealth Edison and against plaintiff, Arnold L. Lubkeman.