Roper v. Peabody Coal Co.

• Decision Date: 17 February 1995
• Docket Number: No. 94-2649,94-2649
• Citation: 47 F.3d 925
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 670, 66 Empl. Prac. Dec. P 43,445 William D. ROPER, Plaintiff-Appellant, v. PEABODY COAL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 925

47 F.3d 925

67 Fair Empl.Prac.Cas. (BNA) 670,

66 Empl. Prac. Dec. P 43,445

William D. ROPER, Plaintiff-Appellant, v. PEABODY COAL COMPANY, Defendant-Appellee.

No. 94-2649.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 4, 1995.

Decided Feb. 17, 1995.

J.C. Mitchell (argued), Stephen R. Green, Mitchell & Armstrong, Marion, IL, for plaintiff-appellant.

Kenneth V. Byrne (argued), Terrance L. Farris, Latourette, Schlueter & Byrne, St. Louis, MO, for defendant-appellee.

Before BAUER and MANION, Circuit Judges, and MILLER, District Judge. ^*

MILLER, District Judge.

William Roper appeals from the district court's judgment, following trial, in favor of the defendant, Peabody Coal Company. The district court found that Mr. Roper failed to establish a prima facie case on his claim that his discharge from employment by Peabody violated the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. We have jurisdiction under 28 U.S.C. Sec. 1291, and affirm the district court's judgment.

The district court found, with sufficient evidentiary support, that Mr. Roper was discharged as part of an ongoing reduction in force. Mr. Roper had no direct evidence of age discrimination. Accordingly, to avail himself of the inference of age discrimination permitted through the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), Mr. Roper was required to show that (1) he was in the protected age group, (2) he was performing to his employer's legitimate expectations, (3) he was discharged, and (4) younger employees were treated more favorably. Oxman v. WLS-TV, 12 F.3d 652, 654-55 (7th Cir.1993) (quoting Oxman v. WLS-TV, 846 F.2d 448, 455 (7th Cir.1988)). Had Mr. Roper proven these things by a preponderance of the evidence, the burden would have shifted to Peabody to articulate a legitimate non-discriminatory reason for discharging Mr. Roper, and Mr. Roper then would have borne the burden of proving the articulated reason to have been a pretext for age discrimination. St. Mary's Honor Center v. Hicks, --- U.S ----, ----, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993); Timm v. Mead Corp., 32 F.3d 273, 275 (7th Cir.1994). The district court, however, found that Mr. Roper had not demonstrated that younger employees were treated more favorably than Peabody treated Mr. Roper.

Our phrasing of the prima facie case today varies somewhat from that articulated in Oxman, in which the fourth element was that "others not in the protected class were treated more favorably." Oxman v. WLS-TV, 846 F.2d at 455. That phrasing, which the district court applied in this case, was appropriate for the facts of Oxman, in which the employer allegedly discriminated against the plaintiff in favor of persons under forty years of age. As we recently acknowledged in Kralman v. Illinois Dept. of Veterans' Affairs, 23 F.3d 150, 154-156 & n. 3 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 359, 130 L.Ed.2d 313 (1994), however, the ADEA protects older employees from discrimination on the basis of age, not just discrimination in favor of persons under the age of forty. Accordingly, we have reformulated the fourth element of the prima facie case.

Although the district court's decision turned on the fourth element of the prima facie case, our reading of the district court's opinion does not suggest that application of our reformulated test would have changed the case's outcome.

We hasten to add that this formulation of the fourth factor is not talismanic; a felicitous birth order will not always support an inference of age discrimination. See Bienkowski v. American Airlines, 851 F.2d 1503, 1506 (5th Cir.1988). Preference for a 74-year-old job applicant over a 75-year-old is unlikely to suffice in establishing a prima facie case. The disparity in age within the protected class must be sufficient to create a reasonable inference of age discrimination. Kralman, 23 F.3d at 156 n. 7; Maxfield v. Sinclair Int'l, 766 F.2d 788, 792 (3rd Cir.), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1985); Loeb v. Textron, Inc., 600 F.2d 1003, 1013 (1st Cir.1979). Today's case is not the occasion to attempt definition of a sufficient disparity: Mr. Roper was 58 years old when he was laid off, and he seeks to compare his treatment to a number of workers who were, for the most part, in their early forties or younger. As is discussed below, this case's resolution turns not on how much younger the favored employees were, but rather on whether any employees were favored.

Mr. Roper contends that the evidence did not support the district court's finding that a prima facie case had not been made out. Mr. Roper embarks upon a daunting undertaking in challenging the district court's finding. We disturb a trial court's findings of fact, and determinations of mixed questions of law and fact, only if they are clearly erroneous. Fed.R.Civ.P. 52(a); F.D.I.C. v. Bierman, 2 F.3d 1424, 1431 (7th Cir.1993). A finding is clearly erroneous only if it leaves us with the definite and firm conviction that a mistake has been committed, a conviction we cannot reach if the trial judge chose between permissible views of the evidence. Anderson v. City of Bessemer City, 470 U.S. 564, 573-574, 105 S.Ct. 1504, 1511-1512, 84 L.Ed.2d 518 (1985).

Mr. Roper has not succeeded in his...