Smith v. Cook County, 95-1019

• Decision Date: 26 January 1996
• Docket Number: No. 95-1019,95-1019
• Citation: 74 F.3d 829
• Parties: 67 Empl. Prac. Dec. P 43,899 McCurley SMITH, Plaintiff-Appellant, v. COOK COUNTY, doing business as Cook County Hospital, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 829

74 F.3d 829

67 Empl. Prac. Dec. P 43,899

McCurley SMITH, Plaintiff-Appellant, v. COOK COUNTY, doing business as Cook County Hospital,

Defendant-Appellee.

No. 95-1019.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 31, 1995.

Decided Jan. 26, 1996.

Herbert H. Victor (argued), Katherine M. Anthony, Chicago, IL, for Plaintiff-Appellant.

Ina R. Silvergleid (argued), Office of the State's Attorney of Cook County, Chicago, IL, Karen J. Dimond, Robbins, Schwartz, Nicholas, Lifton & Taylor, Chicago, IL, John J. Murphy, Office of the State's Attorney of Cook County, Labor & Employment Division, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and CUDAHY and COFFEY, Circuit Judges.

CUDAHY, Circuit Judge.

Plaintiff Smith appeals a grant of summary judgment in favor of defendant Cook County Hospital (the Hospital). Smith alleged that the Hospital violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq., in terminating his employment on December 15, 1991. The district court found that, even assuming that Smith could make a prima facie case of discrimination, he had given the court "no basis to conclude that the legitimate business reason for Smith's termination proffered by Cook County Hospital is merely pretext for age discrimination." 869 F.Supp. at 551. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). We affirm.

Factual Background

In the fall of 1991, Smith was employed by the Hospital as a Management Analyst IV within the Hospital Information Systems (HIS) department. At that time Smith was 48 years old. In this position Smith was responsible for several projects involving the implementation of computer software for the Hospital's use. His main project was to work with the clinical departments in the Hospital to develop a detailed list of services and their respective costs. This compilation was called a Charge Master and could be used with the Hospital's computerized billing program (PATCOM). The parties dispute whether Smith was performing this task adequately.

Smith lost his job as part of a reduction-in-force (RIF), which involved 154 employees. He was notified of the termination on December 2, 1991 and it became effective on December 15, 1991. The RIF was part of a general effort to reduce the Hospital's budget for 1992 pursuant to the requirements of the Cook County Board of Commissioners. At about the same time that the RIF was ordered, plans were also being made to reorganize the HIS department. These plans were the result of a study of the department by an outside computer consulting firm, the Foster Group. The problems pointed out by the Foster Group led the Hospital management to decide to hire the Foster Group on a contract basis to manage the HIS department. This agreement was entered into in December 1991.

According to the Hospital, the pending reorganization of the HIS department led to a decision to terminate, as part of the RIF, any employees who were not vital to the operation of HIS. Seven employees were terminated, five of whom, Smith included, were serving as systems managers. The other terminated employees were aged 52, 49, 48, 40, 38, and 36. Only three employees who worked on software applications were retained. One of these, Solomon Appavu, was 45 years old at the time and was the director of the HIS department. The other, Vasanta Doss, to whom Smith reported in his work on the Charge Master, was 32 years old at the time and was the project director for PATCOM. The remaining individual, Kathleen Shay, although working in the HIS department, was being paid out of the budget of the Nursing department, which did not experience any layoffs during the RIF.

Analysis

We review a grant of summary judgment de novo and affirm only if "there is no genuine issue as to any material fact, and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). On appeal, Smith argues that there is an issue of material fact whether the reasons for his termination proffered by the Hospital are pretextual.

When an employee has no direct evidence of discrimination under the ADEA, the burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is employed. Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655 (7th Cir.1991). Under this approach, the plaintiff has the burden of making out a prima facie case of discrimination. If this burden is met, the employer must articulate a legitimate, non-discriminatory reason for the termination. Once the employer has offered such a reason, the plaintiff "must raise some doubt as to the genuineness of the given reasons for a termination." Anderson v. Stauffer Chemical Co., 965 F.2d 397, 403 (7th Cir.1992).

In a case involving a RIF, the elements of the prima facie case which Smith must prove are: i) that the plaintiff was in the protected age group, ii) that he was performing according to his employer's legitimate expectations, iii) that he was terminated and iv) that others not in the protected class were treated more favorably. Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1163 (7th Cir.1994). The employees who were more favorably treated must have been situated similarly to the plaintiff. See, e.g., Taylor v. Canteen Corp., 69 F.3d 773, 780 (7th Cir.1995).

The district court assumed for purposes of its decision that Smith could meet the burden of proving a prima facie case. In our view the district court was very generous to Smith in adopting this assumption. Of course, it is undeniable that Smith was over forty and in the protected age group at the time of his termination. It is equally clear that he was terminated. But there is a dispute whether Smith was performing satisfactorily. Most importantly, the record does not support the contention that others not in the protected class who were situated similarly to Smith were treated more favorably in the RIF. Smith does not dispute that the only employee who was under forty, who specialized in software and who was retained in the HIS budget after the RIF was Doss. Nor is there any question that Doss was the project director of the PATCOM system and Smith's supervisor. R. 42 para. 29 and Exh. I, Organization Chart. Thus, it is difficult to see how she was situated similarly to Smith, who was lower in authority and responsibility. In fact, a comparison of the list of terminated employees with the Organization Chart prepared in July 1991 shows that out of seven employees holding positions equivalent to Smith's (Systems Manager in one of the two groups doing software applications), five were laid off at the same time as Smith. One of the two not terminated was not paid out of the HIS budget, being "on loan" from another department. R. 42 para. 30 and Exh. I. The other was also not supported by the HIS budget after the RIF. ¹ Therefore, the record establishes that the Hospital essentially terminated everyone who was in a position comparable to Smith's except for one individual whose funding came from another department.

Even if we were to assume, as did the district court, that Smith could have successfully defeated a motion for summary judgment with respect to his prima facie case, he makes no showing of an issue of material fact as to the genuineness of the Hospital's explanation of its decision.

The Hospital explains that, since it intended to reorganize the HIS department under the guidance of the Foster Group and since it was required to eliminate some positions pursuant to the RIF, only the most essential employees were retained. No one disputes that, of the employees for whom it was financially responsible, the HIS department retained only two, Doss and Appavu, to work in the software area. The Hospital contends that these two were chosen for their superior knowledge and expertise and, as already discussed, this explanation is amply supported. They held supervisory positions and there is no evidence to put their expertise in doubt.

Smith argues that the RIF and the reorganization of the HIS department were pretexts for laying him off on account of his age. Thus, Smith points to four Management Analyst positions in the HIS department which were not allocated to the department in the Cook County Board President's original 1992 budget proposal but were instead reinstated during the budget process. He suggests that these were positions in which he could have been placed rather than being laid off. In fact, these positions were reinstated several days before Smith received the notice that he was being terminated. Def.Reply Br. to the Dist.Ct., R. 52, Exh. T. Had these positions not been reinstated, the HIS department would have been forced to lay off even more than the seven individuals terminated on December 15, 1991. For in 1991 the HIS department had 17 budgeted positions. Id. The President's original budget recommendation would have reduced the staff of HIS to only six positions. Id. The final budget in fact left the department with a total of ten positions. Id. The eventual number of employees laid off under the final budget was thus seven. The reinstatement of positions in November 1991 has no bearing on Smith's claim, since it occurred prior to his termination and was already taken into account in the decision to terminate seven employees, including Smith, on December 15, 1991.

As further evidence that the RIF and the reorganization of the HIS department were pretextual, Smith alleges that positions for which he would have been qualified became available within a few days of his termination. R. 44, Exh. I. All of these positions were not in HIS, but were in the Financial Services department. None were Management Analyst positions and all paid substantially less than Smith had been paid. Seven were for Accountants, one was for a Senior Clerk and one was for a Bookkeeper. R. 44, Exh. I. We assume, for...