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Wold v. Buss America

February 16, 1996

HENRY WOLF,

PLAINTIFF-APPELLANT,

v.

BUSS AMERICA, INCORPORATED,

DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 902--Suzanne B. Conlon, Judge.

Before WOOD, JR., ROVNER, and EVANS, Circuit Judges.

WOOD, JR., Circuit Judge.

ARGUED SEPTEMBER 27, 1995

DECIDED FEBRUARY 16, 1996

Alleging that his dismissal constituted unlawful age discrimination, Henry Wolf filed suit against his former employer, Buss America, Incorporated ("Buss America") pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. sec. 621, et seq. The district court granted Buss America's motion for summary judgment after it concluded that Wolf had failed to produce sufficient evidence demonstrating that Buss America's proffered reasons for his termination were pretextual. Upon review, we affirm the result achieved in the district court.

I. BACKGROUND

Wolf, a Swiss national, was born on November 27, 1938. He began working as an engineer for Buss AG, a Swiss company, in 1961. Buss AG manufactures and sells equipment used in the plastics industry. By all accounts, Wolf performed his job admirably and was promoted first to service manager and later to chief service engineer. Wolf's duties included overseeing the installation and start-up of production plants around the globe. He also rendered various consulting services to Buss AG's customers.

In light of Wolf's expertise and experience, the appellee--Buss AG's U.S. subsidiary--asked Wolf to transfer to the United States. Wolf initially declined, but negotiations were eventually entered into and Wolf subsequently began working for Buss America as a service engineer, at the age of 50, in September 1989. Then, in December 1991, when he was 53 years old, Wolf's employment with Buss America was terminated. Buss America asserted that a financial downturn compelled it to reduce its staff of service engineers from three to two. One of the remaining service engineers, George Bracikowski, was 34 years of age at the time of Wolf's termination. The third service engineer, Klaus Erlewein, was 51 years old at the time of Wolf's dismissal.

Wolf subsequently filed suit under the ADEA. While Wolf concedes that the financial downturn presented a legitimate reason to fire someone, he contends that Buss America's decision to fire him, and not Bracikowski, constituted an act of unlawful age discrimination. Buss America responded by filing a motion for summary judgment, in which it denied Wolf's allegations of discriminatory intent and proffered several nondiscriminatory reasons for Wolf's termination. Wolf filed a response, disputing Buss America's stated reasons. The district court granted Buss America's motion for summary judgment after it concluded that Wolf had failed to fully and adequately address the reasons proffered for his dismissal. This appeal followed.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment by considering all factual inferences in the light most favorable to the nonmoving party (herein Wolf) and determining de novo whether there exists any genuine issue of material fact requiring submission of the case to the finder of fact or whether judgment as a matter of law was appropriate. Fed. R. Civ. P. 56(c); Colburn v. Trustees of Indiana Univ., 973 F.2d 581, 585 (7th Cir. 1992). We note further that "[t]his standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993) (citations omitted).

III. DISCUSSION

In order to show a violation of the ADEA, Wolf must demonstrate that his age was "a determining factor" in Buss America's decision to terminate his employment. Smith v. Great Am. Restaurants, Inc., 969 F.2d 430, 434 (7th Cir. 1992) (citations omitted). Wolf need not demonstrate that age was the sole reason for his discharge; rather, he need only prove that but for Buss America's motive to discriminate against him on the basis of his age, he would not have been fired. La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1409 (7th Cir. 1984) (citation omitted).

There are two manners of proof available to an employee in this regard. First, the employee may allege that direct evidence proves that age was a determining factor in the employer's decision to terminate him. Id. (citations omitted). Alternatively, the employee may proceed under the indirect, burden-shifting method of proof first articulated for use in Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later adapted for use in age discrimination cases. Since Wolf has not introduced any direct evidence which might indicate that Buss America discriminated against him on the basis of age, Wolf's suit must rely on the indirect, burden-shifting method.

At the first stage of this method, the burden rests upon the employee to establish the four elements of a prima facie case of age discrimination. In a reduction in force case, such as this one, the employee must show that: (1) he was in the protected class (persons between the age of 40 and 70); (2) he was doing his job well enough to meet his employer's legitimate expectations; (3) in spite of his performance, he was discharged or demoted; and (4) the employer treated other persons, not in the protected class, more favorably. Oxman v. WLS-TV, 846 F.2d 448, 455 (7th Cir. 1988) (citations omitted). Buss America concedes, for the purpose of resolving its summary judgment motion, that Wolf can establish his prima facie case.

The establishment of a prima facie case creates a rebuttable presumption of discrimination. Weihaupt v. American Medical Ass'n, 874 F.2d 419, 426 (7th Cir. 1989) (citations omitted). The burden of production *fn1 then shifts to the employer to articulate a legitimate and nondiscriminatory reason for the employee's termination. Id. If the employer is able to dissolve the presumption of discrimination in this fashion, the burden shifts back to the employee to show, by a preponderance of the evidence, that the proffered reasons are pretextual. Sarsha, 3 F.3d at 1039 (citation omitted). Pretext means more than a mistake on the part of the employer; pretext "means a lie, specifically a phony reason for some action." Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). There are two methods of showing pretext: "Pretext may be established directly with evidence that [the employer] was more likely than not motivated by a discriminatory reason, or indirectly by evidence that the employer's explanation is not credible." Sarsha, 3 F.3d at 1039 (citations omitted).

Wolf has not introduced any direct evidence of pretext. We must therefore determine whether Wolf has, viewing the evidence in the light most favorable to him, succeeded in showing that Buss America's proffered reasons are not credible. This showing may be made by introducing evidence that demonstrates that (1) the proffered reasons are factually baseless; (2) the proffered reasons were not the actual motivation for the discharge; or (3) the proffered reasons were insufficient to motivate the discharge. Weihaupt, 874 F.2d at 428 (citations omitted).

It is not sufficient, however, for the employee to show that the employer acted incorrectly or undesirably by firing him; the employee must show that the employer did not honestly believe in the reasons it gave for firing him. McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992) (citations omitted). In an ADEA case, we "do[ ] not sit as a super-personnel department that reexamines an entity's business decisions. The question is not whether the [employer] exercised prudent business judgment, but whether [the employee] has come forward to refute the articulated, legitimate reasons for his discharge." Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986) (internal citations omitted), cert. denied, 479 U.S. 1066 (1987).

In this case, Buss America proffered six primary reasons in its motion for summary judgment to justify its decision to terminate Wolf, instead of either of the two other service engineers: (1) Wolf had trouble with the way things were done at Buss America and made complaints to the parent company; (2) Wolf was dilatory in obtaining a home telephone; (3) Wolf failed to write his service reports in a timely fashion; (4) Wolf behaved arrogantly towards customers; (5) Wolf failed to call Buss America often enough while he was out on service calls; and (6) Wolf was excessively talkative. On their face, these reasons are legitimate and non-discriminatory and thus sufficient to dissolve the presumption of discrimination.

Therefore, Wolf must raise an issue of fact regarding each of the reasons proffered for his dismissal or suffer the affirmance of the district court's grant of summary judgment. See Russell, 51 F.3d at 69 ("The fact that some of [the employer's proffered] reasons were successfully called into question by [the employee's] deposition or affidavit does not defeat summary judgment if at least one reason for [the adverse employment action] stands unquestioned."). Wolf may still prevail, however, even if he does fail to cast doubt upon all of the proffered reasons: "There may be cases in which the multiple grounds offered by the defendant for the adverse action of which the ...


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