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DRISKELL v. CONTINENTAL CAS. CO.

March 17, 1997

MYRNA J. DRISKELL, Plaintiff,
v.
CONTINENTAL CASUALTY CO., an Illinois corporation d/b/a CNA INSURANCE COMPANIES, Defendant.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Myrna J. Driskell brings this action against her former employer, Continental Casualty Company, alleging that she was terminated on the basis of age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Continental has moved for summary judgment. For the reasons set forth below, the motion is denied.

 I. Background

 Myrna Driskell began working for the Continental Casualty Company in 1976, and held a number of different positions there prior to her termination in November 1994 at the age of 43. Def's 12(M) PP 4-5. From 1989 until her termination, Driskell served as a medical malpractice liability underwriter. Her responsibilities were to review applications for insurance, evaluate risks, review loss information, determine continued insurability for existing clients, perform audits, discuss underwriting issues with sales agents, and occasionally meet with agents in the field. Pl.'s 12(N) P 40. As a member of the "individual physicians program unit," Driskell's focus was on individual medical practitioners rather than health care institutions. Def.'s 12(M) P 4. Continental was satisfied with Driskell's performance of her duties as an underwriter: a formal performance review conducted in 1994 indicated that her technical skills, interpersonal skills, and her verbal and written communication skills all met--and sometimes exceeded--the company's expectations. See Def.'s 12(M) Ex. S-1.

 In August 1994, Continental hired James Macdonald as the Chief Operating Officer of its Professional Liability Division (of which Driskell's program unit was a part), and gave him a mandate to improve the Division's profitability and efficiency. Def.'s 12(M) P 7. Macdonald immediately began to formulate a restructuring plan intended to eliminate redundant positions, and sought to shift the Division's focus from individual medical practitioners to large health care institutions. Def.'s 12(M) P 8. One redundancy identified by Macdonald was the existence of separate positions for "liability underwriters" like Driskell and "account executives," who were responsible for certain sales and marketing tasks. Def.'s 12(M) PP 8-9. Macdonald concluded that combining these responsibilities in a single position called a "production underwriter" would be more efficient, and would enable the Division to reduce its total workforce by terminating some employees. Def.'s 12(M) PP 9-10. Once this restructuring plan was approved by senior management, Macdonald sought to identify which employees would be best equipped to perform in the new production underwriter position, considering such factors as technical skills, communication skills, problem-solving skills, and experience in dealing with institutional clients. Def.'s 12(M) P 11.

 After consultation with the supervisors in his division, Macdonald concluded that Driskell was not among the employees who deserved to be shifted into one of the new production underwriter positions. Def.'s 12(M) P 14. According to Macdonald, the supervisors felt that Driskell's technical and communication skills were adequate but not especially strong, and they were concerned about her lack of experience dealing with institutional clients. Id. Consequently, Driskell was terminated on November 7, 1994, along with 13 of her co-workers whose skills were likewise seen as inadequate or redundant. Def's 12(M) PP 12, 16; Pl's 12(N) P 42.

 Not all of the company's liability underwriters were terminated in this manner. In particular, Continental elected to retain Michelin Abrahamson as one of its new production underwriters. Def.'s 12(M) P 21. At the time of Continental's restructuring, Abrahamson was 23 years old and had worked at the company for only one month, plus 12 months of training. Pl.'s 12(N) P 36. Since November 7, Abrahamson has worked with Driskell's former clients and assumed most of her former responsibilities, though she has also been given additional sales and marketing responsibilities that had never been performed by Driskell. Def.'s 12(M) P 24; Pl.'s 12(N) PP 40-41; Johnson Dep. at 32-34.

 Driskell infers from this sequence of events that the real reason why Continental chose to terminate her rather than Abrahamson was the 20-year difference in their ages. Having filed a charge of discrimination with the EEOC and having received a right to sue letter, Driskell now brings this claim asserting that Continental has violated the ADEA. Continental contends that Driskell has failed to raise a genuine issue of material fact regarding its discriminatory intent and moves for summary judgment.

 "A district court must grant summary judgment where the record before it shows 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.'" Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir.1995) (quoting Fed.R.Civ.P. 56(c)). The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If this burden is carried, in order to defeat summary judgment the non-movant "must set forth specific facts showing that there is a genuine issue for trial," and cannot merely rest on the allegations contained in the pleadings. Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324. In deciding a motion for summary judgment we read the facts in a light most favorable to the non-moving party, Cuddington v. Northern Ind. Public Serv. Corp. (NIPSCO), 33 F.3d 813, 815 (7th Cir.1994), and draw reasonable inferences from those facts in the non-movant's favor. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).

 III. Discussion

 Under the ADEA, an employer may not terminate an employee between the ages of forty and seventy on the basis of age. See 29 U.S.C. §§ 623(a)(1), 631(a). The plaintiff in an ADEA case need not prove that age was the sole factor for the employer's decision, only that "age was a determining factor in the sense that [she] would not have been fired but for the employer's motive to discriminate on the basis of age." Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988).

 A plaintiff may prove intent to discriminate by either of two methods. First, a plaintiff may present "direct" evidence, meaning "evidence that can be interpreted as an acknowledgment of discriminatory intent by the defendant or its agents." Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 667 (7th Cir. 1995) (quoting Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994)). Alternatively, a plaintiff may create a presumption that her employer was motivated by discriminatory animus through the use of the burden-shifting procedure established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). This method of proving invidious discrimination requires the plaintiff to first put forth sufficient evidence of the elements of her prima facie case. Collier v. Budd Co., 66 F.3d 886, 889 (7th Cir. 1995). If the plaintiff can do this, a rebuttable presumption of discrimination arises, and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the termination. Smith v. Cook County, 74 F.3d 829, 830 (7th Cir. 1996). Once the defendant satisfies this burden of production, then the plaintiff must come forward with evidence showing that this explanation is actually a pretext for unlawful discrimination. Oxman, 846 F.2d at 452. Where the plaintiff cannot present ...


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