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March 9, 1995


The opinion of the court was delivered by: JAMES B. ZAGEL

 Certain words resonanate badly in the ear of an employee. Fire, dismiss, remove. Terminate. Eliminate. Or, to use the euphemistic verb favored by employers in the 90s, Downsize. But no matter which word is used, the unavoidable byproduct is the same: people are put out of work.

 The point at which a business' financial imperatives intrude on an individual's ability to earn a livelihood is often the point at which the individual invokes the protection of the law. It is axiomatic that businesses seeking to maximize their efficiency and their profits must keep up with the times, adapting to the current demands of an increasingly competitive and specialized marketplace. This adaptation may manifest itself through structural changes in the business. And these changes, by their very nature, may result in the elimination of specific job titles, positions, functions, sometimes while departments. Those people who experience the effects of "downsizing" most directly and most viscerally are those employees who--like Patricia Gould, the plaintiff in this case--have lost their jobs through a Reduction-in-Force (RIF).

 Patricia Gould was born in 1933. When she lost her job at Kemper National Insurance Companies and Lumbermens Mutual Casualty Company in 1993, she was just several months shy of her sixtieth birthday. Gould brings suit against Kemper because she believes her dismissal and her age were intrinsically related.

 Gould had worked at Kemper since 1971, when she joined its Corporate Education Department. The Department trained Kemper employees to improve their performance and develop their careers. As a Program Developer/Instructional Designer and later as Manager of Instructional Design, Gould's duties involved designing study materials, classroom courses and training sessions.

 In 1989, Kemper hired Barbara Brooks (born 1945) as Director of Corporate Education. Gould reported directly to Brooks, who in turn reported directly to Anthony Catania (born 1942), the Vice President of Human Resources. Aside from Gould, Brooks supervised nine employees. Seven of the nine exceeded forty years of age.

 Gould spent a significant amount of time creating and administrating the CDRC. She was responsible for the planning and maintenance of the physical Resource Center facility, which was to be built in Long Grove, and the resources to be housed in the facility, in addition to related administrative tasks. Betsey Norris (age 37) joined Gould at the CDRC, as a training instructor.

 In January 1992, the CDRC "Task Force" on which Gould sat added Kathie Murphy (age 46), to co-author with Gould the final CDRC proposal. Murphy, who had an M.A. and Ph.D. in Counseling, assumed responsibility for counseling Kemper employees. The final proposal, submitted by Gould and Murphy in September 1992, contained a clear division of duties in operating the CDRC. Gould would implement and administer all physical resource aspects of the facility; Murphy would supply individual employees with career counseling.

 In the summer of 1992, Kemper's Expense Committee executives met to discuss ways to save costs in each department. The Committee told Human Resources Vice President Catania to supervise an RIF, and cut at least one "educator" within Corporate Education. Brooks did not learn of the RIF until a subsequent meeting with Catania.

 Catania had the power and the discretion to find the most likely target for cuts. Since it was the only project that had not moved beyond the developmental state, the CDRC stood out as riper for cutting than more fully-realized projects. Under company policy, the elimination of an entire corporate function meant the elimination of all employees associated with that function. When the CDRC terminated, so too did the positions within it held by Patricia Gould and Betsey Norris. *fn1" The performance of neither woman apparently factored into Catania's decision.

 After Gould and Norris left, Murphy continued to provide career counseling elsewhere at a reduced level, and she resumed her prior training work. Gould was never considered for Murphy's position since she lacked both Murphy's training and experience in counseling. Catania made attempts to find something for Gould in another department, but could find no space for her. After Gould's departure, the Corporate Education Department employed twelve persons, eight of whom were over 40 years old, two of whom were older than Gould.

 Gould now claims that Kemper let her go because it thought she was too old to work there, and that it used the RIF merely as a pretext to cover up this discriminatory purpose. Kemper is liable to her, Gould claims, because its actions violate the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634.

 Kemper refutes this, claiming its decision to eliminate the CDRC was legitimately motivated by the prudential business considerations of increased efficiency and maximized profits. Gould's age, Kemper maintains, simply did not factor into its decisions. Claiming Gould can produce no evidence to the contrary, Kemper moves for summary judgement.


 Summary judgment must be granted when there is no genuine issue of material fact within the record and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When faced with a motion for summary judgment, all reasonable inferences must be drawn in the light most favorable to the nonmovant. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 400 (7th Cir. 1992). However, Gould cannot rely solely on her pleadings in the hope of avoiding summary judgment, but rather must affirm specific facts showing a genuine issue of material fact for trial. Catrett, 477 U.S. at 324. A dispute about a material fact's genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson, 477 U.S. at 248. Unless the jury could do this, "there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1363 (7th Cir. 1988).

 The ADEA makes it unlawful for an employer "to discharge or otherwise discriminate against any individual because of such individual's age. . . . " 29 U.S.C. § 623(a). An ADEA plaintiff's ultimate burden is to prove that her age was a determining factor in the termination decision--i.e., that she "would not have been fired but for the employer's motive to discriminate on the basis of age". McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992), quoting Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984).

 Age discrimination may be proven via (1) direct or circumstantial evidence that age was a determining factor, or (2) the indirect, burden-shifting method of proof originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and later applied to ADEA claims. McCoy, 957 F.2d at 371. Therefore, summary judgment will be granted only if there is no genuine issue of material fact as to whether Kemper's motivation for discharging Gould was based on her age. Although courts are less likely to grant this motion in discrimination cases due to the need to weigh defendant's motive and intent, see United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983), the Seventh Circuit has affirmed grants of summary ...

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