Luks v. Baxter Healthcare Corp.

• Decision Date: 03 November 2006
• Docket Number: No. 05-3866.,05-3866.
• Citation: 467 F.3d 1049
• Parties: Peter LUKS, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

467 F.3d 1049

Peter LUKS, Plaintiff-Appellant, v. BAXTER HEALTHCARE CORPORATION, Defendant-Appellee.

No. 05-3866.

United States Court of Appeals, Seventh Circuit.

Argued April 3, 2006.

Decided November 3, 2006.

Joanna C. Fryer (argued), Chicago, IL, for Plaintiff-Appellant.

Ellen E. McLaughlin, Michelle K. Mellinger (argued), Seyfarth & Shaw, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

Peter Luks contends that Baxter Healthcare Corporation ("Baxter") discharged him on the basis of age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). The district court granted summary judgment to Baxter. Luks appeals, and we affirm.

I.

Luks began his employment with Baxter in 1982. Twenty years later, at the time of his discharge, he had attained the position of Senior Business Systems Consultant. He was fifty-two years old when he was terminated.

In August 2000, Baxter hired John Goode as its Vice President of Architecture, Technology and Planning, and Luks began reporting to Goode. Goode prepared Luks' year-end evaluation for 2000. In the original draft of that evaluation, Goode indicated that Luks did not meet expectations in two areas. After discussing the draft with Luks, Goode revised the evaluation to indicate that Luks was meeting expectations in those areas. However, the final report was still critical of Luks in certain respects, observing for example that Luks did not provide sufficient leadership, direction and managerial support to the team of technical employees under him.

In March of the following year, Baxter hired Carol Kazl as the Director of the company's Program Office. That office was responsible for coordinating all information technology projects undertaken throughout the firm. Goode assigned Luks to work in the Program Office as a Technical Consultant under Kazl's supervision. Luks' first assignment was to develop a process by which the Program Office would evaluate and prioritize requests for information technology work and then assign those requests to a team in the Corporate Information Technology Department. Luks was well into the development of this prioritization process in late August of 2001, when Kazl gave him his mid-year evaluation. Kazl rated Luks as meeting expectations overall. She did suggest, however, that Luks needed to make more of an effort to submit his status and time reports in a timely manner, to be open to new ideas and suggestions, to follow through on the implementation of his ideas, and to more effectively discuss the prioritization process on a broader (i.e., less technically detailed) level. Kazl advised Luks that his title would change to that of Senior Business Systems Consultant at the end of the year as he began to implement and manage the prioritization process he had been developing.

During the latter part of 2001, as Luks increasingly focused on implementation and management of the prioritization process he had developed, Kazl became dissatisfied with his performance. Kazl was concerned that the turnaround time on project requests was too great, that the database of pending information technology requests that Luks had created was not kept updated, and that Luks failed to follow through on offers of assistance. When she completed her year-end evaluation of Luks' performance, Kazl concluded that Luks was not managing the prioritization effectively and thus was not meeting expectations. Kazl identified ten specific areas in which Luks needed to improve. Kazl shared her evaluation with Goode, who agreed with her assessment.

Kazl met with Luks in January 2002 to discuss the evaluation. Luks voiced his disagreement with a number of comments in the review as well as its overall negative tone. Kazl made certain revisions to the report based on her discussion with Luks, deleting some criticisms but leaving others in place. She also drafted a set of performance objectives for the new year that she had Luks review and acknowledge. Luks subsequently complained to Goode that he believed his year-end review was inaccurate and unfair. Goode informed Luks that he would defer to Kazl's assessment. Goode gave Luks the impression that he did not need to worry about the review.

Because she had given Luks an overall rating of "does not meet expectations," Kazl placed him on a thirty-day performance improvement plan. The plan set forth certain observations about Luks' prior performance and set forth twenty-eight targets for improvement. Before she imposed the plan, Kazl consulted with Goode as well as Gretchen Nester, Baxter's Human Resources Manager, both of whom thought that the plan was appropriate. Kazl presented the plan to Luks in late March 2002 and went through it with him. After reviewing the plan at home, Luks discussed it with Kazl a second time. Luks again expressed his disagreement with Kazl's assessment that his performance was not meeting expectations. At the conclusion of the discussion, Kazl admonished Luks that he was expected to meet the objectives of the plan within the next thirty days. Luks believed that he would be able to do so; he also understood that he was subject to termination if he did not. Luks and Kazl were to meet regularly to evaluate his progress, but it was otherwise Luks' responsibility to provide Kazl with updates.

Luks subsequently met with Goode to discuss the performance plan. Luks read Goode a prepared statement expressing his reservations regarding Kazl. Luks asked that he report directly to Goode instead of Kazl and/or that the performance plan be removed from his file. Goode denied these requests. He suggested that Luks try to comply with the plan and indicated that his performance would be reviewed in thirty days.

Although Kazl was initially encouraged with Luks' efforts to comply with the plan, at the end of the thirty-day period she concluded that Luks had not sufficiently improved his performance. Kazl believed that Luks' performance was still unacceptable in a number of respects. In fact, as she updated the performance plan to reflect what Luks had achieved, she concluded that Luks had met only nine of the twenty-eight objectives in the plan. After meeting with Nester, Kazl decided to terminate Luks. Goode subsequently reviewed the updated performance plan and concurred in Kazl's decision.

On May 2, 2002, Kazl and Nester met with Luks and advised him that Baxter was terminating his employment for failure to satisfy the requirements set forth in the performance plan. Kazl went through the plan with Luks and discussed with him her assessment of his progress as to each of the objectives included in the plan. Luks registered his disagreement with a number of Kazl's observations.

Following Luks' departure from the company, Baxter initially posted his position as open, and two of his former co-workers, Terri Stevens and Nathan Habeck, were directed to assume his duties until the vacancy was filled. Baxter subsequently concluded that budgetary constraints precluded the company from hiring anyone to fill the position. At that point, Stevens took over the bulk of Luks' former responsibilities. The following year, organizational changes prompted Baxter to abandon the prioritization process that Luks had spearheaded.

II.

Luks contends, contrary to the district court's conclusion, that he has presented sufficient evidence that he was discharged because of his age so as to require a trial. Our review of the district court's summary judgment is de novo. E.g., Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003). We are, of course, obliged to construe the admissible evidence in Luks' favor in deciding whether the record presents a question of material fact that precludes summary judgment in Baxter's favor. Id.

A plaintiff can establish that he is the victim of age discrimination through direct or indirect means. The distinction between the two avenues of proof is "vague," Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir.2006), and the terms "direct" and "indirect" themselves are somewhat misleading in the present context. For, as we recently explained in Sylvester, "direct" proof of discrimination is not limited to near-admissions by the employer that its decisions were based on a proscribed criterion (e.g., "You're too old to work here."), but also includes circumstantial evidence which suggests discrimination albeit through a longer chain of inferences. Id. at 902-03; see also Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 695 (7th Cir.2006). The "indirect" method of proof involves a subset of circumstantial evidence (including the disparate treatment of similarly situated employees) that conforms to the prescription of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). See Sylvester, 453 F.3d at 902. Luks believes that he can establish age discrimination through both means.

Luks has identified two sets of facts in an effort to establish directly that he is the victim of age discrimination. The first includes a series of remarks by Goode which, in Luks' view, evince a desire to rid Goode's department of its oldest employees, including Luks. The second is a series of circumstances that, as Luks interprets them, suggest a plan by Goode to make his wish a reality. We begin with the second set of circumstances.

Luks cites a series of events, remarks, and documents which Luks believes amount to what the cases describe as a "mosaic" of facts bespeaking age discrimination. See id. at 903 (collecting cases). As Sylvester clarified, evidence of this sort need not necessarily take the form of a convincingly rich mosaic; it is enough that the circumstances give rise to a reasonable and straightforward inference that the employer has relied on a proscribed factor in taking action against the employee. Id. at 904; see also Ptasznik, 464 F.3d at 695....