Gustovich v. AT & T Communications, Inc.

• Decision Date: 18 August 1992
• Docket Number: No. 91-1285,91-1285
• Citation: 972 F.2d 845
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 1060, 59 Empl. Prac. Dec. P 41,737, 61 USLW 2176 Edward GUSTOVICH, et al., Plaintiffs-Appellants, v. AT & T COMMUNICATIONS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 845

972 F.2d 845

59 Fair Empl.Prac.Cas. (BNA) 1060,

59 Empl. Prac. Dec. P 41,737, 61 USLW 2176

Edward GUSTOVICH, et al., Plaintiffs-Appellants, v. AT & T COMMUNICATIONS, INC., Defendant-Appellee.

No. 91-1285.

United States Court of Appeals Seventh Circuit.

Argued Sept. 10, 1991.

Decided Aug. 18, 1992.

Mary Rose Strubbe (argued), Kevin M. Kane, Brigham, Kane & Strubbe, Waukegan, Ill., for plaintiffs-appellants.

Charles C. Jackson (argued), Camille A. Olson, Lee P. Schafer, Seyfarth, Shaw, Fairweather & Geraldson, Thomas H.W. Sawyer, James M. Staulcup, Jr., AT & T Technologies, Chicago, Ill., for defendant-appellee.

Before EASTERBROOK and RIPPLE, Circuit Judges. ^*

PER CURIAM.

Budget cuts led to the elimination of some jobs in AT & T's Access Financial Management (AFM) department in Chicago. Six first-level supervisors over 40 years of age, including the five plaintiffs, were among the casualties. Plaintiffs cried foul and brought suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1). The district judge accepted AT & T's claim that plaintiffs were let go because they were the weakest employees in their department and granted summary judgment in the company's favor.

The facts, understood in the light most favorable to plaintiffs, are these. Management at AT & T told the AFM department to cut its expenses by 20% in 1989. Managers in the department knew that cuts were in the offing when, in early 1989, they prepared appraisals of the first-level supervisors' 1988 performance. ("First-level supervisors" at AT & T hold the lowest managerial positions; for simplicity we call these persons "supervisors," and their superiors the "managers.") Plaintiffs Edward Gustovich, Delores Moore, Kenneth Piker, and John Venables received ratings of "partially met objectives." This was fourth of five possible ratings: "far exceeds objectives," "exceeds objectives," "fully met objectives," "partially met objectives," and "unsatisfactory." Only Venables had received such a low rating before. The fifth plaintiff, Frances Paone, was rated "fully met objectives."

After discussing matters among themselves in June and July 1989, managers declared six supervisors, including the five plaintiffs, "surplus." Manager Robert Gray then prepared "addenda" to all supervisors' 1988 performance appraisals, using identical language for those supervisors who were to be retained. On August 1 the managers told the six "surplus" supervisors that their last day was September 29 unless by then they had found employment elsewhere in the company. None did. When the dust had settled, 10 of 30 supervisors at the AFM department were in the protected age group; before then the figure had been 16 of 36.

AT & T contends that the four plaintiffs who received "partially met objectives" ratings did not complain to the EEOC within the 300 days the ADEA gives them. 29 U.S.C. § 626(d); Davidson v. Board of Governors, 920 F.2d 441, 442 (7th Cir.1990). Plaintiffs' complaint is timely if measured from August 1 but not if measured from the performance ratings, which the managers announced in March 1989. Time starts to run under the ADEA when an employer communicates an adverse employment decision to the employee, not when the full consequences of that action are felt. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990). Thus these plaintiffs' time commenced no later than August 1, and not on September 29. It began to run in March only if a sub-par evaluation is an adverse employment decision, which it is not. Most negative appraisals have nothing to do with age (or other discrimination) but instead reflect poor performance. There is nothing to complain about until a poor rating carries or directly portends a loss of job or pay. "Ricks does not hold that the statute of limitations begins to run as soon as the handwriting is on the wall." Cada, 920 F.2d at 449. The limitations period therefore did not start until August 1, and all five complaints are timely.

Once AT & T put in evidence that it let plaintiffs go because they were among the weakest 6 of the 36 supervisors, they had to present some evidence from which a reasonable jury could conclude that AT & T's real reason was their age. Colosi v. Electri-Flex Co., 965 F.2d 500, 502, 503-04 (7th Cir.1992); EEOC v. Century Broadcasting Corp., 957 F.2d 1446, 1450 (7th Cir.1992); McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir.1992); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 657 (7th Cir.1991) (in banc). Plaintiffs argue that they need not do this because AT & T failed to file transcripts of its managers' depositions. They claim that Fed.R.Civ.P. 56(c)--allowing summary judgment if the "pleadings, depositions, answers to interrogatories, and admissions on file" show there is no issue of material fact--bars the district court from considering anything not formally filed with the district court. Plaintiffs forfeited this argument by neglecting to present it to the district court when responding to AT & T's summary judgment motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir.1992) (collecting cases). Because plaintiffs did not dispute AT & T's principal representations about what occurred at the depositions, the argument is irrelevant anyway. Cf. Schulz v. Serfilco, Ltd., 965 F.2d 516 (7th Cir.1992). Plaintiffs challenged a handful of AT & T's statements in their response to its summary judgment motion, but AT & T's reply brief included excerpts of the transcripts pertinent to these disputes. The court thus had everything it needed to determine which factual assertions are in dispute and which are not.

Instead of showing that AT & T's real reason is age, plaintiffs argue that they should not have been rated below average--that they were at least average ("fully met objectives"), a rating each had received before. None but Venables had ever before been judged less than satisfactory. Had they been rated as they should have been, they contend, they would have made the cut. But a district court hearing a case under the ADEA should not be mistaken for a labor arbitrator. Incorrect ratings are not age discrimination. Pollard v. Rea Magnet Wire Co., 824 F.2d 557 (7th Cir.1987); Dorsch v. L.B. Foster Co., 782 F.2d 1421, 1426 (7th Cir.1986). The question is not whether the ratings were right but whether the employer's description of its reasons is honest. No matter how mistaken the managers may have been, six supervisors were going. Unless plaintiffs can show that it was age rather than some other reason (and mistaken evaluations are age-neutral reasons) that landed them among the six, they must lose.

Plaintiffs submitted affidavits averring that they were "at least adequate" employees. They claim they are better workers than their supervisors say and that they were never told their jobs were in jeopardy. An employee's self-serving statements about his ability, however, are insufficient to contradict an employer's negative assessment of that ability. Dale v. Chicago Tribune Co., 797 F.2d 458, 464-65 (7th Cir.1986); Williams v. Williams Electronics, Inc., 856 F.2d 920, 924 (7th Cir.1988). Such statements may create a material dispute about the employee's ability but do nothing to create a dispute about the employer's honesty--do nothing, in other words, to establish that the proffered reason is a pretext for discrimination. Benzies v. Illinois Department of Mental Health, 810 F.2d 146 (7th Cir.1987). Especially not when the employer has never contended that the workers were "unsatisfactory" in the sense that their jobs were in danger in placid times. AT & T's point was not that plaintiffs couldn't do their jobs, but that they were in the bottom sixth of a group of supervisors all of whom were performing at a level sufficient to satisfy the firm. Proof that plaintiffs were considered adequate employees before the budget cut therefore does not suggest that AT & T's explanation masks age discrimination. Aungst v. Westinghouse Electric Corp., 937 F.2d 1216, 1223 (7th Cir.1991).

To make progress, the plaintiffs had to come up with evidence implying that the performance evaluations had been "cooked" in order to do in the older workers. One method would have been to show that the managers expressed discriminatory attitudes, or acted in discriminatory ways, on other occasions. There is no such evidence. The only thing that comes close is that in early June 1989 (after the 1988 ratings had been awarded) the managers called headquarters to obtain the birth dates of all supervisors. (AT & T says that these calls were made in July, but the difference does not matter.) AT & T asserted in the district court, and plaintiffs conceded, that company policy required managers to complete employment profiles, including ages, of all supervisors being considered for termination (or, to use AT & T's euphemism, "force management"). Knowledge of a worker's age does not support an inference of age discrimination, and knowledge is all the phone calls show.

The other common method of piercing the employer's explanation is to compare the firm's treatment of similarly situated employees of different ages. Gustovich, Moore, Piker, and Venables attempt to undermine their unsatisfactory ratings for 1988 by comparing comments they received with comments appearing on some younger coworkers' appraisals. Manager Robert Gray criticized Piker for shortcomings in management and organizational skills; Piker replies that Gray found faults in other employees too. For instance, Gray wrote that Merv Adkins, one of Piker's peers who was retained, "should take more initiative and be more willing to make suggestions and assume a leadership role." The remaining plaintiffs make similar comparisons between their own appraisals and those of other employees written by other managers. Put to one side the...