Sirvidas v. Commonwealth Edison Co.

• Decision Date: 25 July 1995
• Docket Number: No. 95-1388,95-1388
• Citation: 60 F.3d 375
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 602, 66 Empl. Prac. Dec. P 43,635 Robert E. SIRVIDAS, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 375

60 F.3d 375

68 Fair Empl.Prac.Cas. (BNA) 602,

66 Empl. Prac. Dec. P 43,635

Robert E. SIRVIDAS, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.

No. 95-1388.

United States Court of Appeals, Seventh Circuit.

Argued July 7, 1995.

Decided July 25, 1995.

Sarah Vanderwicken, Thomas H. Geoghegan, Leon M. Despres (argued), Jeffrey C. Boulden, Despres, Schwartz & Geoghegan, Chicago, IL, for plaintiff-appellant.

Julie O'Donnell Allen (argued), Lisa D. Freeman, Sidley & Austin, Chicago, IL, for defendant-appellee.

Before POSNER, Chief Judge, BAUER and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Robert Sirvidas sued his former employer, Commonwealth Edison Company ("ComEd"), alleging that he was terminated because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621-634. ComEd argues that it discharged Sirvidas because of his record of poor performance and limited abilities. The district court granted summary judgment in favor of ComEd. The issue on appeal is whether Sirvidas presented enough evidence to survive a summary judgment motion by showing that ComEd's rationale for firing Sirvidas was a pretext for age discrimination. We affirm.

BACKGROUND

Sirvidas was born in April 1940. ComEd hired him in 1969 for an entry level bargaining unit position. Over the years, Sirvidas received several promotions and moved into management. In 1989, he became a Quality Control Inspector at the Zion Nuclear Generating Station. As an inspector, Sirvidas monitored the work performed by other Zion station employees to ensure compliance with internal procedures and governmental regulations and prepared detailed reports of his inspections.

In the spring of 1992, ComEd faced serious financial problems including the loss of anticipated rate increases totalling $400 million, a court order to refund almost $250 million to its customers, an increase in operating costs and a 50% decrease in stock value. ComEd undertook a reduction in force as one of several cost-cutting measures. It told local station management to identify positions to be eliminated and personnel to be involuntarily terminated.

Thomas Joyce, Zion's station manager, formed a committee with four other senior managers to examine all positions at the station to determine which could be eliminated or consolidated and to review all personnel to decide who might take early retirement or leave voluntarily. ¹ The committee also compiled a list of the poorest performers based on their "Performance Planning and Review" ("PPR") ratings. Another list named the employees whose job responsibilities ComEd's PPR system provides the means to evaluate each employee's performance on an annual basis. A supervisor gives the employee a numerical rating from 1 to 9. A rating from 1 to 3 indicates that the employee's performance is below acceptable and needs improvement; a rating from 4 to 6 means that the employee is "meeting expectations"; a rating of 7 or 8 signifies that the employee's performance is exceptional; and a rating of 9 indicates that the employee's performance is exceptional plus.

had been specifically tailored to their limited abilities. The committee then combined the lists and sought input from the line managers regarding the performance of each person on the list.

Sirvidas' name was on the list of poor performers because he received a PPR rating of 3 in 1989, 1990 and 1991. ² When the committee approached the quality control supervisor Carl Schultz in 1992, Schultz identified Sirvidas as the least valuable contributor to the department. Schultz based his determination on his personal knowledge of Sirvidas' skills, Sirvidas' PPR ratings, and the opinions of his senior staff. According to Schultz, Sirvidas was not assigned the most difficult or most critical tasks in the department. Moreover, since 1986 Sirvidas' evaluations continuously noted his poor writing skills and the lack of thoroughness of his reports and recommended that he take a writing class.

Accordingly, Sirvidas' name remained on the final list of employees recommended for involuntary termination. The "Separation Justification" form stated:

Position eliminated. Limited skills and abilities to effectively perform job. He requires continual supervision to assure tasks are completed. These limitations preclude opportunities within other station departments. Work production is below his peers. He is the least valuable contributor in his work group.

ComEd terminated Sirvidas in August 1992.

Sirvidas filed this action in July 1993. The district court granted summary judgment in ComEd's favor because Sirvidas did not come forth with any evidence showing that ComEd's proffered reasons for termination were a pretext for age discrimination.

ANALYSIS

A grant of summary judgment is reviewed de novo. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir.1994). Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, does not establish a genuine issue of material fact and judgment is proper as a matter of law. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994).

There is no direct evidence of age discrimination in this case. Instead, Sirvidas relies on the burden-shifting method of proof set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and which has been applied to ADEA claims. Schultz v. General Elec. Capital Corp., 37 F.3d 329, 333 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2584, --- L.Ed.2d ---- (1995). To establish a prima facie case of age discrimination under the ADEA, the plaintiff must show that he is a member of the protected age group, that he was performing to his employer's legitimate expectations, that he was subject to a materially adverse employment action, and that younger employees were treated more favorably. Roper v. Peabody Coal Co., 47 F.3d 925, 927 (7th Cir.1995); Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir.1994). Once a prima facie case is established, the burden of production then shifts to the employer to articulate The evidence Sirvidas presents is insufficient to create a genuine issue of fact as to ComEd's motives. Sirvidas submits that he was not the weakest performer in the Quality Control department and offers his own statement and a former co-worker's affidavit in support. He points to positive statements in his yearly evaluations regarding his abilities and denies that he was given less difficult or less critical assignments. In fact, he states that his "supervisors demanded and received more from me than from others in the Quality Control Department, because of my superior ability on the job." Sirvidas offers no factual support for this last statement. Moreover, isolated statements referring to some of Sirvidas' strengths do not demonstrate that he was a stronger performer than other employees in the department. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 403 (7th Cir.1992) ("The fact that an employee does some things well does not mean that any reason given for his firing is a pretext for discrimination").

                a legitimate, nondiscriminatory reason for its action.  Schultz, 37 F.3d at 333.   If a legitimate explanation is provided, the presumption of discrimination dissolves, and the burden shifts back to the plaintiff to show that the employer's proffered reasons are a pretext for age discrimination.  Id.  Thus, the ultimate burden of persuasion remains with the plaintiff.  St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993).  To defeat a summary judgment motion, the employee need only produce enough evidence from which a rational fact-finder could infer that the company's proffered reasons were pretextual.  Courtney, 42 F.3d at 418.   Because ComEd does not dispute on appeal that Sirvidas established a prima facie case of discrimination, the only inquiry here is whether Sirvidas produced enough evidence from which a reasonable fact-finder could infer that ComEd's proffered reasons for terminating Sirvidas were false and that he was actually discharged because of his age.  Id
                

The question is not whether Sirvidas was or was not performing satisfactorily but whether ComEd honestly believed that Sirvidas was the weakest member of the department. Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir.1995); Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 848 (7th Cir.1992). Accordingly, general averments of adequate performance by Sirvidas or a co-worker are ordinarily insufficient to create a factual issue on summary judgment; rather Sirvidas must specifically refute the facts which allegedly support the employer's claim of deficient performance. Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1460 (7th Cir.1994); Anderson, 13 F.3d at 1125; Gustovich, 972 F.2d at 848.

In his affidavit, Sirvidas admits that his 1986, 1987, 1989 and 1991 performance evaluations indicated that his writing skills needed to improve. At his deposition, he also indicated that his supervisor, Carl Schultz would speak to him about improving his reports:

Q: And did Mr. Schultz ever discuss any performance problems with you?

A: Yes.

Q: What were those performance problems?

A: Those were basically what we had talked earlier about. I still needed some more improvement with my paper.

Q: The same kind of improvement in terms of more detail in your reports?

A: Just make them longer.

Q: Would Mr. Schultz tell you this on an informal basis in the office or was this part of the performance evaluation or how did he let you know that you needed to make your reports longer?

A: If he thought that I needed some more--he would just come up--it would either be if it came up to the time around the performance rating he would let me know there or during the course of--before the PPRs, he would come up and address the fact...