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August 29, 2005.

PETER LUKS, Plaintiff,

The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge


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 motion.


  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 termination.

  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 satisfactory performance.


  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, ...

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