Radue v. Kimberly-Clark Corp.

• Decision Date: 10 July 2000
• Docket Number: No. 00-1003,00-1003
• Citation: 219 F.3d 612
• Parties: (7th Cir. 2000) William Radue, Plaintiff-Appellant, v. Kimberly-Clark Corporation, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 612

219 F.3d 612 (7th Cir. 2000)

William Radue, Plaintiff-Appellant, v. Kimberly-Clark Corporation, Defendant-Appellee.

No. 00-1003

In the United States Court of Appeals For the Seventh Circuit

Argued June 1, 2000

Decided July 10, 2000

Appeal from the United States District Court for the Western District of Wisconsin. No. 98 C 879--Barbara B. Crabb, Judge. [Copyrighted Material Omitted] Before Bauer, Easterbrook, and Manion, Circuit Judges.

Manion, Circuit Judge.

When Kimberly-Clark informed William Radue that he would be laid off from his mechanical engineer position as part of a reduction in force, it also mentioned that he could seek other positions with the company. Radue never secured another job, so he sued under the ADEA, maintaining that younger employees were given positions for which he was qualified. Because Radue failed to show discrimination under the direct method, and was unable to establish a prima facie case of age discrimination, the district court granted summary judgment for Kimberly-Clark. We affirm.

I.

William Radue is a mechanical engineer who worked for Kimberly-Clark between June 30, 1975 and April 1, 1996. Since 1995, Radue was a senior project engineer assigned to a paper machine project at the Whiting Mill in Whiting, Wisconsin. When the project was nearing completion, Kimberly-Clark informed Radue that it had no further projects requiring his mechanical engineering skills and that his position would therefore be eliminated. Radue was fifty-three years old at this time, and was only two years away from eligibility for severance benefits. He asked whether another slot might be found for him so that he could complete the requisite two years, and he expressed a willingness to take any available position. Kimberly-Clark officials informed him that he should seek other jobs in the company by contacting people he knew and by using the resources of the company's Engineering Career Development Team. The ECDT sought to match engineer employees with suitable positions throughout the company. It did this by maintaining a database of all engineering personnel and vacant engineering positions. Each sector of the company had a representative on the ECDT, and Radue's representative was Jim Parent. Although Parent located a position for an electrical engineer who was subject to the RIF, he was unsuccessful in finding one for Radue. Other engineers transferred to positions throughout the company, but Radue never obtained another job with Kimberly-Clark, either through his informal inquiries or through the ECDT.

Claiming that he was the victim of age discrimination, Radue sued the company under the Age Discrimination in Employment Act, which prohibits intentional discrimination against persons over the age of forty. See 29 U.S.C. sec. 623(a)(1). Radue did not allege that the reduction in force was motivated by his age. Rather, his complaint centered on the company's failure to assist him to the same extent it assisted other employees in finding other vacancies, and the company's failure to transfer him to other positions. The district court granted summary judgment for Kimberly-Clark because Radue could not show discrimination under either the direct or indirect method. He presented no direct evidence of discrimination. With respect to the indirect method, while he presented evidence that one substantially younger employee might have been treated better than he was, and that some similarly situated employees might have received preferential treatment, he failed to show that any employee who was both similarly situated and substantially younger received superior treatment with respect to an intra-company transfer. Radue appeals from the summary judgment, arguing that he has created a genuine issue for trial under either the direct or indirect method.

II.

Radue concedes, as he must, that the ADEA does not require his employer to terminate younger employees in order to open positions for older workers. See Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992). Radue also recognizes that when an employer reduces its workforce it has no duty to transfer senior employees to available positions. Taylor v. Canteen Corp., 69 F.3d 773, 780 (7th Cir. 1995). But when internal job placement services are benefits of employment which are provided to younger employees, an employer must provide roughly the same benefits to ADEA-protected employees, and when an employer responds to a RIF by transferring employees to available positions, it may not refuse to transfer older employees based on their age. Kusak v. Ameritech Info. Sys., Inc., 80 F.3d 199, 201 (7th Cir. 1996); Taylor, 69 F.3d at 780. We assume, because the parties do, that use of the ECDT system was a benefit that Kimberly-Clark provided to all employees, and that Radue was therefore entitled to receive equal treatment in the internal job search. There's no indication that in communicating to supervisors the names of engineers available for transfer Kimberly-Clark did not treat Radue the same as it did younger employees, which precludes Radue's "job hunting" claim. Furthermore, a claim that an employer refused to provide equal assistance in finding a transfer for a protected employee requires a showing that there was an available position for which the plaintiff was qualified. See Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 919 (7th Cir. 2000) (employee must have been qualified for and applied for specific jobs that were available during the RIF); Taylor, 69 F.3d at 779, 780. As will be seen in addressing Radue's failure to transfer claim--which has the same requirement-- he made no such showing. So we confine our analysis to Kimberly-Clark's failure to transfer Radue. To withstand summary judgment on this claim, Radue must present sufficient evidence from which a jury could find that his employer acted with a discriminatory intent in failing to consider him for positions commensurate with his skills. Blackwell v. Cole Taylor Bank, 152 F.3d 666, 672 (7th Cir. 1998). He may do this using either the direct or the indirect method of proof. Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 940 (7th Cir. 1997).

A. The Direct Method

Radue first argues that summary judgment was improper because he has sufficient direct evidence of discriminatory intent to create a genuine issue for trial.

A plaintiff can avert summary judgment for the defendant in an employment discrimination case by presenting enough evidence, whether direct or circumstantial, of discriminatory motivation to create a genuine issue for trial. Sheehan, 104 F.3d at 940. In pleading discrimination cases, litigants, usually as an alternative argument, will often contend that they have unearthed direct evidence of discriminatory intent, but such direct evidence--"eyewitness testimony as to the employer's mental processes"--is rarely found. Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000). Direct evidence essentially requires an admission by the decision-maker that his actions were based on the prohibited animus. Troupe v. May Dep't Stores, Co., 20 F.3d 734, 736 (7th Cir. 1994); see Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1178 (7th Cir. 1997); Sheehan, 104 F.3d at 941. Radue has nothing that looks even slightly like an admission, which is not surprising, since most employers are careful not to openly discriminate and certainly not to publicly admit it. Therefore most plaintiffs, including Radue, must rely on circumstantial evidence of discriminatory intent.

Radue's circumstantial case under the direct method is primarily composed of statistics which show that older employees were treated less favorably than younger employees in various RIFs conducted by Kimberly-Clark. For example, Radue's numbers show that in November 1995, when Kimberly-Clark was performing a RIF in another sector of the company, the mean age of the 140 engineers and consultants selected to be retained was 37.51, while the mean age of the 16 engineers receiving pink slips was 50.75. This, he concludes without any further analysis, demonstrates that his own plight was caused by invidious discrimination. But these statistics hardly compel this conclusion. For starters, they are based on a completely different part of the company (the family care sector) than that in which Radue worked (the Neenah paper sector). The numbers also include more than just engineers. And Radue's contention with respect to these statistics--that the November 1995 RIF was engendered by age bias--differs from the argument made in his own case his RIF was not age-based, but transfers awarded afterward were. A more basic problem is that statistics can only show a relationship between an employer's decisions and the affected employees' traits; they do not show causation. Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000) (citing Tagatz v. Marquette Univ., 861 F.2d 1040, 1044 (7th Cir. 1988)). Because the occurrence of adverse employment actions may correlate to older employees for reasons other than intentional discrimination, causation is suggested only when the other variables are shown to be insignificant. Furr v. Seagate Tech., Inc., 82 F.3d 980, 987 (10th Cir. 1996). "Statistical evidence which fails to properly take into account nondiscriminatory explanations does not permit an inference" of discrimination. Id. A plaintiff must show "disparate treatment between comparable individuals." Id.

Tagatz succinctly illustrates this principle. In that case, the plaintiff showed that younger university professors received larger annual raises than older professors. While discrimination was one plausible explanation for the disparity, the court acknowledged that an equally plausible, nondiscriminatory explanation was suggested by the fact that "academics' salaries tend to rise rapidly in the early stages of their career and to reach a plateau when the academic becomes a full professor . . . ." 861 F.2d at 1045. B...