Holmberg v. Baxter Healthcare Corp.

• Decision Date: 02 May 1990
• Docket Number: No. 89-2442,89-2442
• Citation: 901 F.2d 1387
• Parties: 52 Fair Empl.Prac.Cas. 1452, 53 Empl. Prac. Dec. P 39,899 Harriet HOLMBERG, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORPORATION, formerly known as Travenol Laboratories, Incorporated, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1387

901 F.2d 1387

52 Fair Empl.Prac.Cas. 1452,

53 Empl. Prac. Dec. P 39,899

Harriet HOLMBERG, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORPORATION, formerly known as Travenol

Laboratories, Incorporated, Defendant-Appellee.

No. 89-2442.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 26, 1990.

Decided May 2, 1990.

Laurie Leader, Levin & Ginsburg, Chicago, Ill., for plaintiff-appellant.

David J. Parsons, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendant-appellee.

Before WOOD, Jr., FLAUM and EASTERBROOK, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff Harriet Holmberg brings this suit to remedy the age discrimination she claims was a determinative factor in her discharge from defendant Baxter Healthcare Corporation's ("Baxter") facility located in the Chicago area. The district court granted summary judgment in favor of Baxter, and Holmberg now appeals. In addition to the merits, we will consider Holmberg's motion to strike portions of Baxter's brief and the company's motion to supplement the record on appeal. For the reasons stated below, we grant Holmberg's motion, deny Baxter's motion, and affirm the judgment of the district court.

I. FACTUAL BACKGROUND

Holmberg's career as a microbiologist commenced in 1958 when she started working for Baxter, a manufacturer and distributor of pharmaceutical products. ¹ Until regulatory and scientific developments in the mid-1970s began to alert Baxter to the need for better sterilization practices, Holmberg mainly performed research and product development functions. In January 1977, Baxter reassigned Holmberg to a temporary "good laboratory practices" task force. After the task force's term expired, Holmberg returned to her role as a research assistant in Baxter's Microbiology Department.

Beginning in June 1978, Holmberg was promoted to the position of research associate I, a generic title used by Baxter to describe a number of various employees. Holmberg now produced and directed training films on sterility test procedures. During this same time, Holmberg also functioned as the "good laboratory practices" coordinator. Holmberg stopped making training films in the middle of 1980 but continued in the coordinator position until 1982 when she became a research associate I in product development under the supervision of Dr. Theron Odlaug.

In September 1983, Baxter merged its Microbiology Department, which included Holmberg, and its Engineering Sterility Group into a new Sterility Assurance Department. Dennis Bridge headed the new department with Dr. Odlaug and Dr. Kai Purohit taking charge of the department's two subsections. Holmberg still performed the same work as before the merger, but Dr. Odlaug now indirectly supervised her, operating through an intermediate manager.

Shortly after taking charge, Bridge began to streamline the entire Sterility Assurance Department. As part of this effort, Holmberg was transferred in June 1984 from the product development section to the research section under the direction of Dr. Purohit. At the time of the plaintiff's transfer, the three other persons holding the title of research associate I remained behind in product development; all three were under the age of forty.

Anticipating budget cuts, Bridge made a decision to reduce staff shortly after the reorganization. In a meeting with his subordinates, Dr. Purohit and Dr. Odlaug, Bridge asked them to recommend "middle person" and "paperwork" jobs that could be eliminated. Bridge wanted to cut the jobs that would have the least impact on the functioning of the department and determined that Dr. Purohit's division could function with only one research associate I. At this time, Holmberg and thirty-two year old Lawrence Hervey were the only persons holding this position, and, after a meeting with Dr. Odlaug and Dr. Purohit, Bridge decided that Holmberg's position would be the one eliminated. Therefore, on November 7, 1984, Baxter dismissed Holmberg, then age 48, from her employment with the company. Both parties stipulated that Baxter never hired anyone to perform the same functions as Holmberg had been performing.

Bridge also eliminated seven other positions, only two of which involved employees over the age of forty and thereby within the protected age group. Before Baxter communicated any of the terminations to the impacted employees, Bridge worked within the company to find alternative positions for all those laid off. Of the eight fired individuals, four eventually found positions within Baxter or one of its subsidiaries, with one of these four and a fifth person using Baxter's facilities after their termination date as part of their employment search. These five persons were all under the age of forty. The other three former employees--Holmberg, Charles Norris, and Henderson Feagin--were all within the protected age group. By virtue of their positions at Baxter, Norris and Feagin were entitled to the use of an employment agency to assist them in an outside job search, and although she was not entitled to it, Baxter extended the same services to Holmberg.

Despite the layoffs, several vacancies existed within Bridge's Sterility Assurance Department. One of these vacancies was for a senior engineer, requiring a person with a bachelor of science degree and experience in engineering or an equivalent physical science. The position would have involved the design and development of processes to sterilize Baxter's products and equipment. On the advice of a first-level manager at Baxter, Holmberg inquired about the position but was rejected on the grounds that she was not qualified. Baxter eventually hired a thirty-six year old to fill the vacancy, who, from our examination of the record, appears to have been an engineer.

On these facts, Holmberg brought the present suit alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 ("ADEA"). Under the burden-shifting method used in cases of employment discrimination, the district court held that Holmberg had failed to establish a prima facie case or, alternatively, that Holmberg did not show pretext in Baxter's articulated nondiscriminatory reasons for firing her. Thus, the district court granted summary judgment for Baxter and later refused to reconsider its decision in a Fed.R.Civ.P. 59 motion filed by Holmberg.

II. DISCUSSION

To prevail on her claim of age discrimination, Holmberg must establish, by direct or circumstantial evidence, that Baxter discharged her because of her age. Jardien v. Winston Network, Inc., 888 F.2d 1151, 1153 (7th Cir.1989). Lacking direct evidence, Holmberg relies on the more commonly used burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If Holmberg demonstrates a prima facie case of age discrimination, the burden of production shifts to Baxter to articulate a nondiscriminatory reason for her discharge. La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1409 (7th Cir.1984). Holmberg then must show that Baxter's reasons for her dismissal are merely a pretext for discrimination, explanations unworthy of credence. Id. While the burden of production may shift to the defendant, the burden of proving age discrimination always remains with the plaintiff. Id. Even though Baxter is the moving party, it is entitled to summary judgment if Holmberg has failed to make a sufficient showing on any of these essential elements. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

Holmberg does not allege that Baxter replaced her with a younger employee but that Baxter treated her less favorably than younger employees as part of a reduction in its work force. Therefore, for Holmberg to establish a prima facie case, she must show that (1) she was within the protected age group; (2) she was performing according to her employer's legitimate expectations; (3) she was terminated; and (4) others not in the protected class were treated more favorably. Oxman v. WLS-TV, 846 F.2d 448, 455 (7th Cir.1988). Baxter concedes the first three elements but challenges Holmberg's assertion that employees under the age of forty were treated more favorably. The defendant, however, cannot deny that some distinctions exist between Holmberg's and other employees' experiences at Baxter. For example, Baxter assigned Holmberg in the 1970s to a "good laboratory practices" task force that included only a small number of Baxter's total work force, and the company also afforded Holmberg the use of an employment agency's services at the time of her discharge, an opportunity not open to others. Instead of denying these differences, Baxter argues that sound business reasons justify the actions taken with respect to the plaintiff's career and thus negate any inferences of favoritism toward employees under the age of forty.

Baxter also offers many of these same business justifications to satisfy its burden of producing nondiscriminatory explanations for its conduct. Similarly, Holmberg attacks Baxter's explanations as a pretext for discrimination for many of the same reasons that she claims Baxter treated younger employees more favorably. It is difficult to separate Holmberg's prima facie case from Baxter's nondiscriminatory explanations and Holmberg's proof of pretext. Rather than make our inquiry more difficult through the rigid and mechanistic application of the McDonnell-Douglas burden-shifting analysis, see United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983), we will analyze this case shifting our focus as appropriate from Holmberg's prima facie burden to her burden of showing pretext. Where Holmberg has not met her burden of showing that Baxter's explanations are merely a pretext for discrimination, it is not necessary to decide whether she also established a prima...