The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
In this employment action, Su-Min Hsieh ("Hsieh") has charged R.R. Donnelley & Sons Company and Moore Wallace North America, Inc. (collectively "Donnelley," treated for convenience as a singular noun) with discrimination ascribable to her race and sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. §2000e-2000e(17)) and to her age in contravention of the Age Discrimination in Employment Act ("ADEA," 29 U.S.C. §§621-634).*fn1 Donnelley has moved for summary judgment on each of those claims under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, its motion is denied in its entirety.
Summary Judgment Standards
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a non-movant "must produce more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)). Ultimately summary judgment is appropriate only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows, then, is a summary of the facts viewed in the light most favorable to Hsieh.*fn2
Hsieh, a Chinese female born in 1944, began working with a predecessor firm of Donnelley as a computer systems analyst in the "Technical Architecture Department" in 1997 (she had also served a one-year stint with that firm in 1980-81)(D. St. ¶¶1-4). Within three years she received two promotions, landing the title of "Project Manager" with such responsibilities as designing and testing computer applications and system architecture, tailoring those technologies for the company's use and communicating with other teams at the company (D. St. and H. St. ¶5). In 2003, after a merger of two of Donnelley's predecessor firms, Hsieh's department was restyled as the "Information Architecture Department" headed by Michelle Smart ("Smart"), the Vice President of Information Architecture (D. St. ¶8). In the reorganization Hsieh became the manager of one of that department's five sub-teams (D. St. and H. St. ¶12).
Come February 2004 there was another merger, but this time Hsieh did not fare so well (D. St. ¶21). Due to job functions that became redundant after the merger, Smart was directed from above to reorganize her department and reduce the number of overlapping employees (D. St. ¶¶21-22). In March 2004 Smart fired nine employees, including Hsieh and two members of her team (D. St. and H. St. ¶¶26-27).
Hsieh then initiated an Equal Employment Opportunity Commission ("EEOC") complaint, in response to which Donnelley explained Hsieh's termination as non-discriminatory and as necessary "to eliminate duplicative positions after a merger." It further stated that "[b]ecause [Hsieh's] skills were limited solely to supporting only Moore Wallace systems and she was not qualified to support Donnelley's systems, her position was eliminated" (H. St. Ex. 4 at 3). For her part, Hsieh contends that her job was not in fact eliminated--it was simply taken over by another Donnelley employee, David Hilbert ("Hilbert"), a Caucasian male more than 10 years younger than Hsieh. After the merger Hilbert did indeed become responsible for many, if not most, of Hsieh's former projects and for supervising a number of her former staff people (H. St. ¶¶32-33).
Essentially Hsieh claims that in the restructuring Smart chose to transfer Hsieh's responsibilities and staff to Hilbert and to terminate her because of one or more prohibited factors: race, sex and age. In support of its Rule 56 motion, Donnelley argues (as it did before the EEOC) that Hilbert was not merely a replacement for Hsieh but was rather a more experienced employee who was better able to take on a position in the new organization with broader responsibilities than Hsieh's former job--a job that was legitimately eliminated (D. St. ¶¶29-32).
Donnelley now further asserts, in contrast to its pure reduction-in-force position before the EEOC, that Smart's decision was also legitimately motivated by Smart's pre-merger concerns about Hsieh's job performance (D. St. ¶¶20, 24). In response Hsieh argues that those johnny-come-lately performance concerns are mere after-the-fact rationalizations meant to cloak Smart's discriminatory intent, and that as such they create a question as to the honesty of Donnelley's proffered explanations for Hsieh's termination.
Resolution of Hsieh's Claims and Donnelley's Responses Two similar employment discrimination statutes govern Hsieh's claims. Section 2000e-2(a)(1) prohibits an employer from discriminating against an employee with respect to her terms and conditions of employment because of her race or sex (as is alleged here), while Section 623(a)(1) prohibits similar discrimination on account of her age (Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006)). Under each statute an employee has two roads to a successful claim: the less-traveled direct method and the more circuitous yet well-worn burden-of-production-shifting quadrille first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)(id.). Venturing no attempt down the less-traveled road, Hsieh seeks to reach her desired destination solely via the latter path.
On that journey Hsieh must establish four initial elements to make her prima facie case (Raymond, 442 F.3d at 610):
(1) she is a member of a protected class; (2) she was performing at a level that met her employer's legitimate expectations; (3) she was subject to an adverse employment action; and (4) she was treated differently than a similarly situated person outside her protected classes.
If Hsieh makes that showing successfully, the burden of production shifts to Donnelley to "articulate some legitimate, nondiscriminatory reason" for her termination (id., quoting McDonnell Douglas, 411 U.S. at 802). At that point the burden of production shifts back to Hsieh to present evidence that Donnelley's proffered reasons are pretextual ...