The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Peter Luks has sued his former employer, Baxter Healthcare
Corporation, for age discrimination under the Age Discrimination
in Employment Act, 29 U.S.C. § 621. Baxter has moved for summary
judgment. For the reasons stated below, the Court grants Baxter's
Luks was born on October 30, 1949 and is therefore a member of
the class protected under the ADEA. He claims he was subject to
age discrimination in the form of adverse changes to his job,
disciplinary actions, adverse performance evaluations, and
Luks worked for Baxter from September 1982 through May 2, 2002.
In August 2000, Luks was a technical consultant assigned to work
for John Goode, Baxter's Vice President of Architecture,
Technology, and Planning. In March 2001, Goode told Luks he was
being transferred to the newly created program office. At the
Program Office, Luks reported to the Director, Carol Kazl, who in turn reported to Goode. The Program
Office was responsible for the management of information
technology projects across Baxter entities. Luks was a Senior
Business Consultant in the Program Office, and as such, he was
responsible for developing and operating a prioritization process
in which all of Baxter's information technology projects were
evaluated and inventoried.
Baxter employees receive mid-year and year-end reviews. Before
2001, Luks had never received a "does not meet expectations"
overall rating on any review. In his first review completed by
Goode, however, Luks received a "does not meet expectations"
rating on two objectives within his review, though Goode agreed
to change the ratings to "meets expectations" after discussing
them with Luks. In his first review after being transferred to
the Program Office, the mid-year review for 2001, Kazl rated Luks
as "meets expectations." In his year-end review, however, Luks
received an overall "does not meet expectations" rating. Luks did
not agree with many of the criticisms in his performance review
and voiced concerns to co-workers that he was being set-up to be
terminated. Luks also met with Goode to explain his
dissatisfaction with Kazl's review and his desire to complain
about the review to human resources. Luks claims that Goode
advised him not to talk to human resources and not worry about
the review because it was not important.
Soon after receiving the poor rating, however, Luks was put on
a performance plan. The plan established twenty-eight performance
goals, which Luks was given thirty days to meet. On May 2, 2002,
approximately six weeks after the commencement of the performance
plan, Kazl terminated Luks, claiming that he had failed to meet
certain elements of the plan,
At the time of his termination, Luks was fifty-two years old,
Kazl was forty-seven years old, and Goode was forty-four years old. Luks contends that the
true reason for his termination was not his performance, but
rather Goode's desire to rid the Architecture, Technology, and
Planning division of its three oldest employees Peter Luks,
Glen Jurmann, and Larry Helsith, who were all over the age of
fifty. Pl. Ex. V ¶ 6. Luks claims that Goode succeeded in forcing
him out by ensuring that he received unwarranted bad reviews and
ordering him to be placed on a performance plan despite his
Summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law. FED. R. CIV. P. 56(c). The Court must view
the facts in favor of the non-moving party and draw reasonable
inferences in favor of that party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
The ADEA provides that it is unlawful for an employer to
discharge any individual because of his age.
29 U.S.C. § 623(a)(1). Luks has brought his age discrimination claim under a
disparate treatment theory. Under this theory, he must prove that
his age played a role in Baxter's decision making process and had
a "determinative influence on the outcome." Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 141 (2000). Stated
another way, Luks must show that "but for" age discrimination, he
would not have been fired. Chiaramonte v. Fashion Bed Group,
Inc., 129 F.3d 391, 396 (7th Cir. 1997).
1. Direct method of proof
Luks can defeat Baxter's summary judgment motion by submitting
evidence from which a jury could find he was terminated because
of age discrimination, either by the direct method of proof or by the indirect McDonnell Douglas burden-shifting
method. Stone v. City of Indianapolis Pub. Util. Div.,
281 F.3d 640, 644 (7th Cir. 2002). "The direct method of proof permits a
plaintiff to show, by way of direct or circumstantial evidence,"
that his termination was motivated by an impermissible purpose.
Rhodes v. Ill. Dept. of Transportation, 359 F.3d 498 (2004).
Luks asserts that he has presented direct evidence in the form of
testimony regarding allegedly discriminatory remarks made by
Goode regarding older employees, including Luks. Luks presents
deposition testimony of Gretchen Nester, head of human resources
at Baxter, who stated that two older employees, Jurmann and
Helsith, complained to her that Goode referred to them as "old
timers." Nester Dep. at 47, 51-52. Luks himself testified that
Goode introduced him to incoming employees as the "old guy" in
the department. Luks Dep. at 235-236. Finally, Luks presents
deposition testimony from Cynthia Overby, Baxter's former web
services manager, that Goode told her he wanted to get rid of the
"good old boys" at Baxter. Overby Dep. at 20.
These remarks are not direct evidence of age discrimination.
First, Luks has failed to provide evidence from which a jury
could find that the "good old boys" comment was based on age or
related to any employment decision. Lindsey v. Baxter Healthcare
Corp., 962 F.2d 586, 588 (7th Cir. 1992) ("No weight can be
attached to an overheard comment that Baxter does not like to
promote `good old boys,' since any competent user of the English
(or rather the American) language knows that to be a good old boy
one need not be old, or for that matter good."); McCarthy v.
Kemper Life Ins. Co., 924 F.2d 683, 686-87 (7th Cir. 1991) (to
survive summary judgment, discriminatory comment must be related
to the employment decision at issue). Second, Goode's reference
to Luks as the "old guy" in the department is not direct evidence
of age discrimination because Luks has offered no evidence that the
comment was connected to any employment decision. Fuka v.
Thomson Consumer Elecs., 82 F.3d 1397, 1403 (7th Cir. 1996)
(stray remarks regarding older people by co-workers did not
qualify as direct evidence because they were not related to the
employment decision in question); see also, Robin v. Espo
Engineering Corp., 200 F.3d 1081, 1089 (7th Cir. 2000)
(references to the plaintiff as an "old S.O.B." and "getting too
old" were made in the context of "random office banter," and were
therefore, without more, ...