Testerman v. EDS Technical Products Corp.

• Citation: 98 F.3d 297
• Decision Date: 21 October 1996
• Docket Number: No. 96-1197,96-1197
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 959, 69 Empl. Prac. Dec. P 44,349 Charles TESTERMAN, Plaintiff-Appellant, v. EDS TECHNICAL PRODUCTS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 297

98 F.3d 297

72 Fair Empl.Prac.Cas. (BNA) 959,

69 Empl. Prac. Dec. P 44,349

Charles TESTERMAN, Plaintiff-Appellant, v. EDS TECHNICAL PRODUCTS CORPORATION, Defendant-Appellee.

No. 96-1197.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 10, 1996.

Decided Oct. 21, 1996.

Mark R. Waterfill, Janet D. Neuenschwander, Leagre & Barnes, Indianapolis, IN, and Arend J. Abel (argued), Indianapolis, IN, for Plaintiff-Appellant.

Frederick W. Dennerline, III, Fillenwarth, Dennerline, Groth & Towe, Indianapolis, IN, and Lee Hutton (argued), and Bradley A. Sherman, Duvan, Cahn & Hutton, Cleveland, OH, for Defendant-Appellee.

Before CUMMINGS, FLAUM, and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Charles Testerman brought this suit under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., alleging that when EDS Technical Products Corporation ("EDS") trimmed its workforce in 1993, the company unlawfully considered Testerman's age in deciding to include him among those employees sacrificed to the bottom line. After a thorough review of the evidence, the district court granted summary judgment for EDS. Only the ADEA claim is presented on this appeal, and we affirm.

I.

Mr. Testerman became an EDS employee in January 1985 when the company was acquired by General Motors, his employer since 1956. At the time of the acquisition, Testerman worked as a tape librarian and backup microfiche operator at the Allison Division's Data Center in Indianapolis, and his job initially remained unchanged when EDS became his employer. In late 1991, however, the Data Center was reduced to a small printing facility after its two major customers, Allison Gas Turbine and Allison Transmission, transferred their business to an out-of-state facility. Testerman, along with other employees, remained at the Data Center doing temporary work until permanent positions within the Indianapolis area could be found.

In May 1992, Testerman was offered a position with the Operations Group of the Allison Gas Turbine Account (the "Account"), at first on a trial basis. He was assigned to the Hotline, where he received calls from Allison Gas Turbine employees with computer difficulties and either assisted the callers himself or referred them to a service person. The new job required knowledge of computer systems with which Testerman had no experience, but he ultimately was hired on a permanent basis, and it is undisputed for the purposes of this appeal that his performance level would have ensured him continued employment had business remained strong. Business did not remain strong, however, and with salary growing faster than revenues, EDS chose to stem the former rather than rest its hopes on boosting the latter. In April 1993, the company instituted a "resource alignment plan"--its euphemism of choice for what the caselaw refers to as a reduction in force ("RIF"). Mr. Testerman, 57 years old, was one of five individuals fired in June 1993 after being placed on what began as a list of 14 of the Account's lowest-performing employees. All five who lost their jobs were over 40 years of age.

Prior to joining the Hotline, Testerman earned consistently high ratings from his supervisors, although he was reprimanded occasionally for being too talkative. ¹ Of the written performance reviews he received while at EDS, only one related his tenure at the Hotline. As discussed below, the significance of that review--completed in June 1993 after EDS fired him and assigning him his poorest rating ever--is a matter of some dispute, but, for the most part, Testerman does not challenge the review's veracity to the extent it chronicles specific behavior. Testerman similarly acknowledges, at least implicitly, the facts memorialized in a one-page evaluation in which Account Manager Sara Hooper recorded her reasons for selecting Testerman for discharge. The picture that emerges is of a popular employee who talked too much on the job, who took too many smoking breaks, who failed to file required status reports, and who exhibited poor judgment on occasion, as when he kissed the hand of a female visitor to the Hotline or complained to EDS customers about EDS's internal problems. The June 1993 review observed that Testerman "[h]as learned much in the past year" and was "[w]ell liked by the customer," but complained that he "[n]eeds guidance to remain productive" and "[s]eems quick to blame 'EDS' for any perceived inconvenience .... [, which] leaves customers with a bad opinion of our company." Likewise, Hooper's evaluation noted, "I hesitate to put [Testerman] into situations where he is alone with [customers] because of his unprofessional manner and attitude toward EDS." In his first status report following a one-month gap, Testerman himself apologized "about the absence of status reports," but explained that "honking my own horn isn't an easy task for me." The reports Testerman did manage to file provided comic relief, but could not have endeared him to his employer. Of a project for which he had volunteered--drafting procedures for the IBM 2540 card reader/punch--Testerman explained in December 1992 that it was "on hold because my mind hasn't returned from [vacation]." More than a month later, he confessed, "Progress isn't breath taking," and still later, he assured his supervisor that "[j]ust like Eveready batteries, I'm still working, on the 2540 procedure that is." Testerman still had not completed the project when EDS fired him.

Within two weeks after discharging Testerman, Testerman's former supervisor at the Hotline hired 31-year-old Steve Price, a transferee whose position at another EDS account had been terminated. Price inherited some of the duties for which Testerman had been responsible, but Price's familiarity with various computer applications and hardware enabled him to perform tasks that were beyond Testerman's capabilities. In the two reviews he received prior to joining the Hotline, Price scored "solid meets," one level below the "solid exceeds" that Testerman received in his last two reviews at the Data Center. In addition, Mark McNett, age 27, remained at the Hotline after the RIF. McNett received "solid meets" and "and solid generally meets" ratings in 1992 and a "solid meets" in his June 1993 review, one level higher than the "solid generally meets" Testerman earned in his post-termination review of the same month. To distill these report-card rankings: Testerman compares favorably with McNett and Price when one looks at the ratings he received before joining the Hotline, and unfavorably only if one focuses on Testerman's final, post-termination rating.

It is undisputed that some of Testerman's coworkers referred to him in terms that reflected his age. McNett, for one, called Testerman "Baldy Locks" and "Old Man," and Testerman's team leader at the Hotline addressed him as "Pops." His supervisor in Operations stated that, as a person younger than Testerman, she hesitated to reprimand him for his frequent smoke breaks because to do so smacked of "role reversal." In addition, Testerman points out that Hooper's last evaluation referred to him as the "senior" member of the team and that the Data Center where he worked prior to joining the Hotline was often identified as the "Old" Data Center.

II.

We review de novo a district court's grant of summary judgment, reading the record in the light most favorable to the non-moving party. Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir.1994). Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only if there remains no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-28, 106 S.Ct. 2548, 2552-55, 91 L.Ed.2d 265 (1986). The non-moving party is entitled to the benefit of all reasonable inferences, Courtney, 42 F.3d at 418, and we apply this standard bearing in mind that questions of intent and credibility often are determinative in employment discrimination cases, see Wohl v. Spectrum Mfg., Inc., 94 F.3d 353, 355 n. 1 (7th Cir.1996).

III.

A plaintiff in an age discrimination suit may reach a jury by either of two routes: by presenting evidence that age was a "determining factor" in the discharge decision or by proceeding under the indirect, burden-shifting approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir.1994). Testerman tries both methods, neither of which is availing.

A.

In looking for discriminatory motive under the ADEA, the relevant inquiry is whether age "tipped the balance," that is, whether age was a "but for" cause of the decision to fire the plaintiff. Umpleby v. Potter & Brumfield, Inc., 69 F.3d 209, 213 (7th Cir.1995). Testerman suggests that appellations such as "Baldy Locks," "Pops" and "Old Man," as well as his supervisor's discomfort with "role reversal," reflect exactly the kind of stereotyping that the ADEA was designed to combat. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993). He argues further that, when combined with references to the "Old Data Center," to Testerman's knowledge of "antiquated" technologies and his "senior" status, and with the fact that length of service was among the factors considered by decisionmakers responsible for the RIF, such comments reasonably could support a finding that Testerman would not have been fired but for the presence of age bias at EDS.

We cannot agree. Although it matters little that terms such as "Old Man" or "Pops" were intended as "salutations between co-workers or terms of endearment"--for the ADEA prohibits employment...