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Sirvidas v. Commonwealth Edison Company

July 25, 1995






Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 93 C 4141--Paul E. Plunkett, Judge.

Before POSNER, Chief Judge, BAUER and KANNE, Circuit Judges.

KANNE, Circuit Judge.



Robert Sirvidas sued his former employer, Commonwealth Edison Company ("ComEd"), alleging that he was terminated because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. secs. 621-634. ComEd argues that it discharged Sirvidas because of his record of poor performance and limited abilities. The district court granted summary judgment in favor of ComEd. The issue on appeal is whether Sirvidas presented enough evidence to survive a summary judgment motion by showing that ComEd's rationale for firing Sirvidas was a pretext for age discrimination. We affirm.


Sirvidas was born in April 1940. ComEd hired him in 1969 for an entry level bargaining unit position. Over the years, Sirvidas received several promotions and moved into management. In 1989, he became a Quality Control Inspector at the Zion Nuclear Generating Station. As an inspector, Sirvidas monitored the work performed by other Zion station employees to ensure compliance with internal procedures and governmental regulations and prepared detailed reports of his inspections.

In the spring of 1992, ComEd faced serious financial problems including the loss of anticipated rate increases totaling $400 million, a court order to refund almost $250 million to its customers, an increase in operating costs and a 50 percent decrease in stock value. ComEd undertook a reduction in force as one of several cost-cutting measures. It told local station management to identify positions to be eliminated and personnel to be involuntarily terminated.

Thomas Joyce, Zion's station manager, formed a committee with four other senior managers to examine all positions at the station to determine which could be eliminated or consolidated and to review all personnel to decide who might take early retirement or leave voluntarily. *fn1 The committee also compiled a list of the poorest performers based on their "Performance Planning and Review" ("PPR") ratings. Another list named the employees whose job responsibilities had been specifically tailored to their limited abilities. The committee then combined the lists and sought input from the line managers regarding the performance of each person on the list.

ComEd's PPR system provides the means to evaluate each employee's performance on an annual basis. A supervisor gives the employee a numerical rating from 1 to 9. A rating from 1 to 3 indicates that the employee's performance is below acceptable and needs improvement; a rating from 4 to 6 means that the employee is "meeting expectations"; a rating of 7 or 8 signifies that the employee's performance is exceptional; and a rating of 9 indicates that the employee's performance is exceptional plus.

Sirvidas' name was on the list of poor performers because he received a PPR rating of 3 in 1989, 1990 and 1991. *fn2 When the committee approached the quality control supervisor Carl Schultz in 1992, Schultz identified Sirvidas as the least valuable contributor to the department. Schultz based his determination on his personal knowledge of Sirvidas' skills, Sirvidas' PPR ratings, and the opinions of his senior staff. According to Schultz, Sirvidas was not assigned the most difficult or most critical tasks in the department. Moreover, since 1986 Sirvidas' evaluations continuously noted his poor writing skills and the lack of thoroughness of his reports and recommended that he take a writing class.

Accordingly, Sirvidas' name remained on the final list of employees recommended for involuntary termination. The "Separation Justification" form stated:

Position eliminated. Limited skills and abilities to effectively perform job. He requires continual supervision to assure tasks are completed. These limitations preclude opportunities within other station departments. Work production is below his peers. He is the least valuable contributor in his work group.

ComEd terminated Sirvidas in August 1992.

Sirvidas filed this action in July 1993. The district court granted summary judgment in ComEd's favor because Sirvidas did not come forth with any evidence showing that ComEd's proffered reasons for termination were a pretext for age discrimination.


A grant of summary judgment is reviewed de novo. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994). Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, does not establish a genuine issue of material fact and judgment is proper as a matter of law. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994).

There is no direct evidence of age discrimination in this case. Instead, Sirvidas relies on the burden-shifting method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and which has been applied to ADEA claims. Schultz v. General Elec. Capital Corp., 37 F.3d 329, 333 (7th Cir. 1994), cert. denied, 63 U.S.L.W. 3890 (U.S. June 19, 1995) (No. 94-1852). To establish a prima facie case of age discrimination under the ADEA, the plaintiff must show that he is a member of the protected age group, that he was performing to his employer's legitimate expectations, that he was subject to a materially adverse employment action, and that younger employees were treated more favorably. Roper v. Peabody Coal Co., 47 F.3d 925, 927 (7th Cir. 1995); Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir. 1994). Once a prima facie case is established, the burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. Schultz, 37 F.3d at 333. If a legitimate explanation is provided, the presumption of discrimination dissolves, and the burden shifts back to the plaintiff to show that the employer's proffered reasons are a pretext for age discrimination. Id. Thus, the ultimate burden of persuasion remains with the plaintiff. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2749 (1993). To defeat a summary judgment motion, the employee need only produce enough evidence from which a rational fact-finder could infer that the company's proffered reasons ...

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