The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas E. Gibbons filed suit against Defendant JP Morgan Chase & Co., alleging that his firing was the result of discrimination based on his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. ("ADEA"). Defendant now moves for summary judgment in this age discrimination case. For the following reasons, Defendant's motion is granted.
Thomas E. Gibbons worked for Bank One, a subsidiary of JP Morgan Chase & Company. He had a long career in banking. He spent 23 years at Continental Bank, followed by employment at NBD Bank -- a predecessor of Bank One -- and, in his last 5 or 6 years he worked in Bank One's Estate Settlement Unit ("ESU"). ESU did the customary work of acting as executors or trustees or agents for executors with respect to decedents' estates. Gibbons was 62 when he was told his job was being eliminated and 63 when he was terminated. He was the oldest employee in ESU.
Gibbons reported to John Pickford, the manager of the Chicago ESU. Pickford in turn reported to Linda Salton, the national estate administration manager. Salton then reported to John Taylor, the head of the bank's trust department and CEO of Bank One Trust Company. Gibbons himself was a Vice-President and Senior Estate Administrator, and did the traditional work of such administrators. He met with decedents' family members and attorneys to discuss estate issues, gathered financial records and estate assets, determined and paid what the estate owed, reviewed tax planning and prepared returns, distributed assets to beneficiaries and sold assets and closed out trusts and estates. In 2002 he was one of twelve estate administrators reporting to Pickford (Pickford also dealt with employees who did guardianship estates and those persons whose work supported the Administrators' duties). Later that year, as part of an effort to reduce costs, Taylor ordered Salton to cut the number of full-time employees in estate administration. Salton worked with unit managers, like Pickford, to identify positions to be cut. Salton told him to eliminate one position from Chicago ESU.
Pickford worked with Bank One's human resources department to understand how he was to select the employee whose position was to be eliminated. He was advised to use a prepared chart with performance criteria (five, but not all, of these were the core employee competencies used in performance evaluation) to rank performance and, after he had done this, to select the employee with the lowest performance ranking. Pickford consulted with Delana Rippley, his contact person at HR. She gave him a chart with particular criteria already entered and told Pickford to rate each employee for each criteria on a scale of one to four. No one knows who chose the criteria. Rippley may have provided them to Pickford but she did not devise them.
The criteria were un-weighted in relation to each other and one, the seventh, was not actually used in the decision process.
These criteria were, almost entirely, the same as those used for the annual evaluations. Rippley believed that the ordinary core competencies were used because job elimination was to be based on performance. She told Pickford to consult his performance evaluations. Rippley believed the job elimination evaluation should be made in light of an entire year's performance rather than performance at the very moment the evaluation was being made.
Pickford, in fact, was responsible for evaluating the performance of Gibbons in the ordinary course of work. When doing the annual performance evaluations, he relied on his observations and, in his work as the manager, informally consulted with team leaders in the ESU about how the administrators were doing. The routine annual performance evaluations cover five core skills: focusing on customer service, teamwork, attention to quality results, integrity, character and courage. The scale ranges from "needs improvement" to "exceptional." There is nothing novel in any of this. Nor is there anything novel in the fact that Pickford was not absolutely certain of what Bank One wanted him to rate under "courage." There was nothing improper about his interpretation of it to mean willingness to take the initiative.
In his 2001 year-end review, Pickford found Gibbons to be "meeting expectations" and rated teamwork and courage somewhat better than meets expectations -- marking a point on the performance range past the midpoint and towards the higher end of the scale. There were younger employees whose ratings were, while decent, slightly lower than Gibbons' on teamwork and courage. There is a dispute over where the rating marks are actually made on the performance range graphic but, for the purposes of this motion, I accept that some younger employees did slightly worse in teamwork and courage than did Gibbons. Pickford does not recall whether or not Gibbons' performance declined or improved after 2001. The same phenomenon occurred in the 2002 ratings. Some younger employees were rated somewhat lower than Gibbons in teamwork and courage.
Pickford does not recall actually looking at prior evaluations or consulting team leaders. He thought that all of his administrators did a good job to different degrees and did not want to eliminate any of the positions, but he followed the directive and completed the chart. He simply sat and completed it in less than a workday and did most of the chart from memory. Pickford started with one criteria, completed that criteria for each employee and then moved on to the next criteria. He based his rankings on the relative strengths of the employees. The result was a surprise to Pickford. The employee that he thought would have the lowest score came in at 18, but Gibbons had the low score of 17. Gibbons' lowest scores were on team work and courage. He scored lower on both of those measures than any other employee.
Bank One did have a written policy for selecting employees whose jobs will be eliminated. It said that job skills for the un-eliminated positions should be analyzed and matched against the skill of the "affected" employees. It also specifies that, if appropriate, these skills can be weighted in order of relative importance and these weights can be used in ranking. Pickford does not recall whether or not he consulted this policy before he reached his conclusion about Gibbons. Pickford's ratings were, on this record, honestly made. He did testify, however, that he was happy that the chart was making the ultimate decision for him, as opposed to his having to make it himself. Pickford told Salton the result of the scoring, and she then told him to inform Gibbons that his position was being eliminated. Although Pickford was not specifically aware that Gibbons was the oldest person in the office, he may have believed Gibbons was probably the oldest.
Pickford met with Gibbons early in November, 2002 and gave him the bad news that his job was gone as of the end of the year. Pickford told him that he was good, but poorer than all the others. Gibbons did not concede this point. Bank One paid Gibbons' salary and benefits for a month and a half after the end of the year. After the month and half passed, Gibbons started working for LaSalle bank as an independent contractor and became a full-time employee there by early June.
Gibbons does not think his new job is inferior to his old job, and sees it as having the same responsibilities and "more prestige." When Gibbons left Bank One his salary was a notch above $79,000 with a contingent bonus of about $5500. His salary is better at LaSalle, at $85,000 and a non-contingent bonus of $7500 for the year 2003. However, Gibbons does not vest in LaSalle's pension benefits ...