Rummery v. IL Bell Telephone Co

• Decision Date: 11 May 2001
• Docket Number: No. 00-2137,00-2137
• Citation: 250 F.3d 553
• Parties: (7th Cir. 2001) Michael Rummery, Plaintiff-Appellant, v. Illinois Bell Telephone Company, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 553

250 F.3d 553 (7th Cir. 2001)

Michael Rummery, Plaintiff-Appellant, v. Illinois Bell Telephone Company, Defendant-Appellee.

No. 00-2137

In the United States Court of Appeals For the Seventh Circuit

Argued January 8, 2001

Decided May 11, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 6516--Robert W. Gettleman, Judge.

Before Posner, Manion, and Kanne, Circuit Judges.

Manion, Circuit Judge.

Michael Rummery sued his former employer, Illinois Bell Telephone Company, alleging that he was terminated in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sec. 621 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12101, et seq. Illinois Bell moved for summary judgment. The district court granted that motion and Rummery appeals. We affirm.

I. Background

Michael Rummery was employed at Illinois Bell from 1970 to 1992, working in his last position as a Level I manager supervising telephone line and equipment installers. Rummery's direct supervisor, a Level 2 manager, was Cecil Purnell. The Level 3 manager in plaintiff's chain-of-command was Fred Fouse. Mr. Fouse reported to Mike Tatom, General Manager of Customer Services.

In fall 1992, Illinois Bell implemented a reduction-in-force, called the Workforce Resizing Program ("WRP"), in which it eventually terminated 491 employees, including Rummery. Illinois Bell's WRP explicitly sought to eliminate between 450 and 500 managers in order to streamline its business and ultimately become more competitive in the marketplace. At the time of his termination, Rummery was 41 years old.

Illinois Bell conducted the WRP in two phases. During Phase 1 of the WRP, Illinois Bell identified those managers who were at-risk, the bottom 25% of its managerial staff. On September 9, 1992, Fouse and the Level 2 managers below him, including Purnell, met to evaluate the Level 1 managers. Sixteen managers were identified as at-risk, including Rummery. Once a manager had been identified as "at-risk" he was given three choices: (1) accept a voluntary termination package, (2) apply for a transfer to a craft position, or (3) risk possible termination. Rummery did not opt for one of the first two choices.

In Phase 2 of the WRP, each department was instructed to rank its "at-risk" managers based on specific criteria, including 1992 performance, potential, quality and quantity of experience, specialized training or technical knowledge and formal education. Each department would be given the discretion to weigh these criteria as it saw fit. In late September, Tatom, his Level 3 managers (including Fouse) and a facilitator met to determine the weight given to each criterion and determined that each would be weighed as follows: 50% 1992 performance, 30% experience, skills and knowledge and 20% potential. In preparation for the ranking session, each Level 2 manager completed a Supervisory Update form for each of his Level 1 managers and Purnell completed Rummery's form.

On September 28, 1992, Fouse met with Purnell and his other Level 2 managers to rank the at-risk managers for Phase 2 of the WRP. A facilitator explained the relevant criteria to the Level 2 managers and how they should be weighed. Each manager discussed their Supervisory Updates and asked questions of each other. Each Level 2 manager then separately ranked the fourteen Level 1 managers. A facilitator gathered these individual ranking sheets and then compiled a final ranking of the at-risk managers based on an aggregation and division of the individual rankings.

Rummery's at-risk group included fourteen persons. The person ranked first was considered most vulnerable to termination. Rummery was ranked third. At the time of the ranking, those participating in the ranking process did not know how many persons would eventually be terminated. Illinois Bell subsequently directed that nine persons on the list be terminated or reassigned to craft positions. Four of the nine obtained craft positions, two others accepted voluntary termination packages which were offered to all managers selected for layoff, and three, including Rummery, were terminated.

Rummery then filed an internal appeal of his discharge. In that appeal, Rummery complained that his 1990 performance evaluation had unfairly prejudiced him in the ranking process. The investigator reviewed this evaluation and interviewed Rummery's former supervisor. After an investigation, the Appeals Committee voted to deny his appeal. Rummery then requested a craft position, but Illinois Bell denied that request.¹

Rummery then sued Illinois Bell alleging that he was terminated in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sec. 621 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12101, et seq. Illinois Bell moved for summary judgment, which the district court granted. Rummery appeals that portion of the district court's decision regarding his ADEA claim.²

II. Discussion

We review a grant of summary judgment de novo, considering the facts in the light most favorable to the non-moving party. See Ransom v. CSC Consulting, Inc., 217 F.3d 467, 468 (7th Cir. 2000). Summary judgment is proper if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The ADEA prohibits intentional discrimination against persons who are age 40 or over. See 29 U.S.C. sec. 623(a)(1); 29 U.S.C. sec. 631 (a). A plaintiff may show age discrimination directly or, as Rummery attempts to do here, by the indirect, burden-shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this latter method, the plaintiff must first set forth a prima facie case of discrimination. Once he does so, the employer must articulate a non-discriminatory reason for termination. The plaintiff must then present evidence that would show that the proffered reason was pretextual. See id., 411 U.S. at 802-04; Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1011-14 (7th Cir. 2000).

In order to set forth a prima facie case of age discrimination under the ADEA, a plaintiff must show: (1) he was 40 or older, (2) he was performing his job satisfactorily, (3) he was discharged, and (4) substantially younger, similarly situated employees were treated more favorably. Ransom, 217 F.3d at 470; Paluck, 221 F.3d at 1012. Rather than deciding whether Rummery had established a prima facie case, the district court instead skipped ahead, concluding that Illinois Bell had articulated a legitimate reason for his termination. Specifically, the district court concluded that "the facially age-neutral procedures defendant employed in conducting the WRP provide a legitimate, non-discriminatory reason for plaintiff's termination." See Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th Cir. 1999) (finding that a reduction-in-force was a legitimate nondiscriminatory reason for laying off an employee). Because Rummery failed to present evidence that could enable a jury to find that this explanation was a pretext for age discrimination, the district court granted summary judgment to Illinois Bell.

Like the district court, we will assume, without deciding, that Rummery established a prima facie case of discrimination. See Abioye v. Sundstrand Corp., 164 F.3d 364, 368 (7th Cir. 1998) ("When the defendant has proffered an explanation for termination that the court determines to be non-pretextual, the court may avoid deciding whether the plaintiff has met his prima facie case and instead decide to dismiss the claim because there is no showing of pretext."). Instead, we focus on Rummery's argument on appeal that there is a genuine issue of material fact regarding whether Illinois Bell's proffered reason for terminating him was pretextual. Even if a reduction in force is otherwise legitimate (i.e., not simply an excuse to terminate older workers), a plaintiff may establish pretext by showing that the specific reasons given for including him in the reduction were pretextual. See Paluck, 221 F.2d at 1012-13. This requires Rummery to present evidence that could show that Illinois Bell did not honestly believe the reasons it gave for his termination. Id. at 1013.

Rummery argues that he presented sufficient evidence of pretext by showing that he was more qualified than a younger worker who was not terminated. He also asserts that Illinois Bell's destruction of certain documents used in the WRP rating process gives rise to an inference that it committed age discrimination. Finally, he relies on statistical evidence to support his claim of pretext. We examine each of these arguments in turn.

A. Younger Worker's Qualifications

First, Rummery argues that he presented evidence indicating that he was better qualified than Taylor, a younger employee (age 25), who was not terminated, and that this constitutes sufficient evidence of pretext. However, this only goes to show the prima facie case which, as noted, we assume Rummery has established. See Ransom, 217 F.3d at 470, n. 1 (whether younger employees were less qualified, and yet not terminated, goes to the prima facie case).

In any case, the evidence Rummery relies upon does not support his position that Illinois Bell did not honestly believe him to be less qualified than Taylor. Rummery points to the testimony of Purnell, the manager who ranked the at-risk group which included Rummery. While he did say that Rummery was "head and shoulders above [Taylor] on a technical level," this merely indicates that Rummery was more qualified than Taylor in his technical expertise, something acquired...