United States District Court, N.D. Illinois, Eastern Division
August 29, 2005.
PETER LUKS, Plaintiff,
BAXTER HEALTHCARE CORPORATION, Defendant.
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, insufficient to create a triable issue
of fact of age discrimination); Hoffman, 144 F.3d at 1122
(statements to the plaintiff that he was "getting old" and that
"fresh legs" were needed by the company was not enough to survive
summary judgment). Finally, Nester's testimony regarding what
Jurmann and Helsith reported Goode said to them is inadmissible
To proceed under the direct method of proof without direct
evidence, Luks must present circumstantial evidence of age
discrimination. Specifically, to avoid summary judgment using
circumstantial evidence, Luks must construct a "convincing
mosaic" of circumstantial evidence that "allows a jury to infer
intentional discrimination by the decision-maker." Troupe v. May
Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). In Troupe,
the Seventh Circuit identified three categories of circumstantial
evidence: (1) suspicious timing; ambiguous statements; behavior
or comments directed at other employees; and other "bits and
pieces" of evidence form which an inference of discrimination can
be drawn; (2) evidence suggesting that similarly situated,
younger employees received better treatment; and (3) evidence
that the stated reason for termination was a "mere pretext for
discrimination." Id.; see also Volovsek v. Wisconsin Dept. of
Agr., Trade, and Consumer Protection, 344 F.3d 680, 689-90 (7th
Cir. 2003). Luks offers as circumstantial evidence his testimony that most
of the criticisms listed on his year-end 2001 review that led to
the poor rating were incorrect and without factual foundation.
Luks Dep. at 122. Luks says he provided Kazl with specific
examples of why the criticism was unwarranted. Id. at 61-63,
76-77, 81-82, 69-70. Luks also disagreed with Kazl's claim that
he had not met the performance plan's goals. He testified that
the claims of failure lacked a factual foundation and that Kazl
could not provide examples to support the claims. See, e.g.,
Luks Dep. at 138-39, 150, 157, 178; see Pl. Ex. L (Luks' notes
in preparation for a meeting with Kazl) & U (statement Luks read
to Goode). But Luks' opinion of his performance is not
circumstantial evidence of discrimination; it does not suggest
that Baxter's stated reason for terminating him poor
performance was not honestly believed. See, e.g., Gusewelle v.
City of Wood River, 374 F.3d 569, 576 (7th Cir. 2004) (issue of
pretext; employee must show that employer did not honestly
believe stated reason for its action); cf. Jackson v. E.J. Brach
Corp., 176 F.3d 971, 985 (7th Cir. 1999) (employee's opinion of
his own ability is insufficient to contradict employer's negative
assessment). Luks "must show more than that the employer's
decision was incorrect; the plaintiff must also show the employer
lied about its proffered explanation." Johnson v. Nordstrom,
260 F.3d 727, 732 (7th Cir. 2001) (issue of pretext).
Luks contends Goode's plan was to terminate him along with
Helsith and Jurmann, the oldest members of Goode's division, and
support of this he offers the deposition testimony of Cynthia
Overby, Baxter's web services manager until December 2002.
Overby, who reported to Goode, worked with Luks and was the
direct supervisor of Helsith and Jurmann. She testified that she
and Goode had strong disagreements over the work performance of
Helsith and Jurmann and that Goode directed her to put Helsith
and Jurmann on performance plans despite her insistence that both were competent employees. See Overby Dep.
at 15-16, 34. Overby believed that Goode was trying to set the
two employees up for failure, and ultimately for termination.
Id. at 18, 26. Overby testified that she did not want to have a
part in what she believed to be Goode's plan to terminate Helsith
and Jurmann, so she worked out a transfer within Baxter for
Jurmann, id. at 31, and provided documentation of Helsith's
good performance to Gretchen Nester, Baxter's director of human
resources. Id. at 17-18.*fn1 Goode fired Overby several
months later, which Overby claims was retaliation for trying to
protect Helsith and Jurmann. Id. at 19.
Overby's testimony does not help Luks, however, because nothing
in her testimony points to the conclusion that the alleged set-up
of Helsith and Jurmann was motivated by age discrimination.
Circumstantial evidence presented under the direct method of
proof "must point directly to a discriminatory reason for the
employer's action." Jordan v. City of Gary, Ind., 396 F.3d 825,
832 (7th Cir. 2005) (emphasis added); Cowan v. Glenbrook
Security Services, Inc., 123 F.3d 438, 443 (7th Cir. 1997)
(direct evidence "must not only speak directly to the issue of
discriminatory intent, it must also relate to the specific
employment decision in question.").
Overby also testified that her experience working with Luks for
about six months after working with positive and that she found
he was knowledgeable, had good communication skills, and followed
through on projects. Overby Dep. at 39-40. Overby says that in a
November 2001 meeting, Kazl said Goode instructed her to put
together a performance plan for Luks, and she asked Overby for
input because she had designed the plans for Helsith and Jurmann.
Id. at 41. After several meetings, Overby concluded that
Goode's motivation was the same as she felt it had been for Jurmann and Helsith, i.e., to set Luks up for
termination. Id. at 40-41. But Overby's opinion regarding the
motivations of Goode and Kazl is irrelevant, and her testimony
about what Kazl told her, like her testimony about the Helsith
and Jurmann performance plans, does not suggest that the decision
to put Luks on a performance plan was based on his age.
Luks' points to a document produced by Baxter that has his name
and those of Jurmann and Helsith written across the top. Pl. Ex.
W. The document appears to concern performance plans, and it
contains hand written notations dated February 2001 that appear
to concern a meeting the author had with Goode about his efforts
to document performance issues with Luks.*fn2 This may be
the same document that Kazl testified she found in Luks'
personnel file, Kazl Dep. at 154, and that Overby said Goode had
at a meeting in late 2001 or early 2002 at which he discussed the
performance problems of Helsith and Jurmann. Overby Dep. at 11,
13. Luks argues that the existence of this document or documents,
which listed the three oldest employees in the division, is
circumstantial evidence of age discrimination. The Court
disagrees; there is nothing in the document(s) or the evidence
about it that even hints at discriminatory intent.
In sum, Luks has offered no direct evidence of age
discrimination and has not offered what a jury reasonably could
find to be a "convincing mosaic" of circumstantial evidence.
2. Indirect method of proof
Under the indirect, burden-shifting method set out in
McDonnell Douglas, Luks must first establish a prima facie case
of age discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); O'Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308, 311 (1996) (applying McDonnell Douglas to claims
brought under the ADEA). To make out a prima facie case, Luks must provide evidence from which a jury could find that he is at
least forty years old, was performing up to Baxter's legitimate
expectations, suffered an adverse employment action, and
similarly situated employees under the age of forty were treated
more favorably. See, e.g., Fairchild v. Forma Scientific, Inc.,
147 F.3d 567, 571-71 (7th Cir. 1998). If Luks cannot establish a
prima facie case, his claim fails. If, however, he succeeds in
making out a prima facie case, the burden then shifts to Baxter
to articulate a legitimate, nondiscriminatory reason for
terminating him. McDonnell Douglas, 411 U.S. at 802. If such a
reason is offered, Luks must then show that Baxter's proffered
reason is merely pretext for discrimination. Schuster v. Lucent
Technologies, Inc., 327 F.3d 569, 574 (7th Cir. 2003).
The parties dispute whether Luks was meeting employment
expectations and thus whether he can establish a prima facie
case. But assuming Luks could do so, Baxter has met its burden to
proffer a non-discriminatory reason for Luks' termination: poor
performance. Pl. Ex. J (2001 year-end review with "does not meet
expectations" rating) & K (performance plan with Kazl's notations
regarding job objectives Luks failed to meet). This would shift
the burden back to Luks to provide evidence from which a jury
reasonably could find that Baxter's reason was pretextual.
Because, as we discuss below, Luks cannot meet that burden, the
Court need not address whether he can clear the prima facie case
threshold. See, e.g., Fairchild, 147 F.3d at 572.
Luks offers substantially the same evidence to show pretext as
he did to show intentional discrimination under the direct method
of proof. As the Court has already discussed, this evidence is
insufficient to create a triable issue of fact. The evidence of
age-related remarks unrelated to any employment decision, Luks'
testimony regarding his own performance, Overby's testimony
regarding Helsith and Jurmann, and the document with the names of
Luks, Helsith, and Jurmann, considered together, do not call into
question the honesty of Baxter's stated reason for terminating
Luks. See, e.g., Flores v. Preferred Technical Group,
182 F.3d 512, 516 (7th Cir. 1999) (the question is "not whether the
employer's reasons for a decision are `right' but whether the
employer's description of its reasons is honest").
The only other evidence Luks has to offer on the issue of
pretext concerns the employees who took over his responsibilities
after he was terminated: Nathan Habeck and Terri Stevens, both of
whom were a good deal younger than Luks, and who had shared
certain responsibilities with Luks before he was terminated. Luks
claims that Habeck and Stevens received more favorable treatment
from Goode and Kazl because they were significantly younger.
Gordon v. United Airlines, Inc., 246 F.3d 878, 892 (7th Cir.
2001) ("A showing that similarly situated [younger employees]
received more favorable treatment can also serve as evidence that
the employer's proffered legitimate, nondiscriminatory reason for
the adverse job action was a pretext for discrimination."). Luks
has offered evidence that Habeck and Stevens did some of the same
things that were the basis for Luks' poor reviews, but that they
got favorable reviews and were not subjected to any adverse
action. Habeck testified that he shared with Luks some of the
responsibilities of running the prioritization program and that
he sometimes turned in late reports but never received negative
comments from Kazl. Habeck Dep. at 62, 98-99. Stevens also
sometimes turned in late reports but, unlike Luks, never received
a "does not meet expectations" review. Stevens Dep. at 66-67.
But because Luks has failed to offer evidence from which a jury
reasonably could find that Habeck and Stevens were similarly
situated to him, the evidence about their allegedly more
favorable treatment would not support a finding of pretext. See
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). This evidence is insufficient
to permit a reasonable jury to find pretext, however, because
Luks fails to show that he was actually similarly situated to
Habeck and Stevens. First, Luks provides no evidence as to Habeck
and Stevens' experience, qualifications, or education. Ajayi v.
Aramark Bus. Svcs., Inc., 336 F.3d 520, 532 (7th Cir. 2003) (to
determine whether employees are comparable, courts should look at
whether employees have comparable experience, education,
qualifications, and job descriptions). Second, Luks was Habeck
and Stevens' superior, see Luks Dep. at 28-30, and thus
reasonably could be held to higher standards by management.
Finally, it is anything but apparent that Habeck or Stevens
missed deadlines with the same frequency as Luks. See Luks Dep.
at 62-63; Stevens Dep. at 66; Habeck Dep. at 98.
In sum, Luks has failed to provide evidence from which a
reasonable jury could find that Baxter's reason for terminating
him was pretextual.
For the foregoing reasons, the Court grants defendant's motion
for summary judgment [docket no. 11-1]. The Clerk is directed to
enter judgment in favor of the defendant. The trial date of
January 9, 2006 is vacated.
© 1992-2005 VersusLaw Inc.