Thorn v. Sundstrand Aerospace Corp.

• Decision Date: 20 March 2000
• Docket Number: V,No. 99-1192,DEFENDANT-APPELLEE,PLAINTIFFS-APPELLANT,99-1192
• Citation: 207 F.3d 383
• Parties: (7th Cir. 2000) RICHARD THORN AND PAT CURRAN,SUNDSTRAND AEROSPACE CORPORATION,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 383

207 F.3d 383 (7th Cir. 2000)

RICHARD THORN AND PAT CURRAN, PLAINTIFFS-APPELLANTS,

V.

SUNDSTRAND AEROSPACE CORPORATION, DEFENDANT-APPELLEE.

No. 99-1192

U.S. Court of Appeals, Seventh Circuit

Argued September 23, 1999

Decided March 20, 2000

Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 95 C 50099--Philip G. Reinhard, Judge. [Copyrighted Material Omitted] Ronald L. Futterman, Laurie A. Wardell (argued), Futterman & Howard, Chicago, IL, Frank A. Perrecone, Rockford, IL, for plaintiff-appellant Richard Thorn.

Jan Ohlander (argued), Reno, Zahm, Folgate, Lindgerg & Powell, Rockford, IL, Frank A. Perrecone, Rockford, IL, for plaintiff-appellant Pat Curran.

Max G. Brittain, Jr., Julie J. Furer (argued), Paula M. Ketcham, Schiff, Hardin & Waite, Chicago, IL, for defendant-appellee.

Before Posner, Chief Judge, and Manion and Rovner, Circuit Judges.

Posner, Chief Judge.

Thorn and Curran brought suit against Sundstrand Corporation under the Age Discrimination in Employment Act, 29 U.S.C. sec.sec. 621 et seq. The claims of the two plaintiffs have little in common; though both plaintiffs were "riffed" (that is, laid off pursuant to a reduction in force (RIF)) in 1993, they worked at very different jobs in different departments of Sundstrand's aerospace division and under different supervisors. These are really two separate cases. The district court granted summary judgment for Sundstrand in both. As the plaintiffs point out, the district court's opinions are replete with findings that are not proper in summary judgment proceedings, for example, findings that credit fiercely contested testimony. Continental Casualty Co. v. Anderson Excavating & Wrecking Co., 189 F.3d 512, 520 (7th Cir. 1999). But since the review of summary judgment is plenary, errors of analysis by the district court are immaterial; we ask whether we would have granted summary judgment on this record. Grun v. Pneumo Abex Corp., 163 F.3d 411, 419 (7th Cir. 1998).

There is much discussion in the briefs of whether the McDonnell Douglas formula for determining the propriety of summary judgment in an employment discrimination case is applicable to RIFs. The answer, as we reemphasized recently, is "yes." Bellaver v. Quanex Corp., 200 F.3d 485, 493-94 (7th Cir. 2000); see also Beaird v. Seagate Technology, Inc., 145 F.3d 1159, 1165 (10th Cir. 1998); LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993). The McDonnell Douglas formula enables the plaintiff to shift the burden of production to the defendant upon presenting satisfactory evidence that he is a member of the statutorily protected class (in this case, workers 40 years old or older), that he is performing his job satisfactorily, and that (if it is a case of discharge or layoff allegedly motivated by age discrimination) he was replaced by a much younger worker. The defendant must then produce evidence that it had a noninvidious reason for the discharge--in an age discrimination case, that the reason was not the plaintiff's age. In the case of a RIF, the usual noninvidious reason is that the employer, having decided in good faith that he should reduce the size of his workforce, included the plaintiff within the class of workers to be laid off for reasons unrelated to any discriminatory considerations.

Nothing about this reason calls for modifying the McDonnell Douglas formula; but in some RIF cases the plaintiff is not replaced, and that calls for a slight modification. The plaintiff must present satisfactory evidence either that someone else (in an age-discrimination case, someone much younger than the plaintiff, O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996); Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1028-29 (7th Cir. 1998); Keathley v. Ameritech Corp., 187 F.3d 915, 920 (8th Cir. 1999)), is now doing the work he was doing; or, if the work itself has vanished--maybe the entire division in which he worked was closed down--that the employer found a job elsewhere in the company for a much younger person who had also lost his job when the division was shut down. Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 235 (3d Cir. 1999); cf. Bellaver v. Quanex Corp., supra, 200 F.3d at 494; Beaird v. Seagate Technology, Inc., supra, 145 F.3d at 1165.

We must apply this standard to the facts viewed as favorably to the plaintiffs as the record warrants. We begin with Thorn. A department manager in the aerospace division, Thorn lost his position when his department was merged with another one and a former supervisor of his named Schneeberger was named head of the enlarged department. Schneeberger made Thorn a contract administrator. That was in September 1992. Thorn was then 61 years old and Schneeberger, who was in his early forties, told him "we believe you are only going to be here for another year or so," although Thorn, whose performance evaluations were uniformly glowing, had given no indication of wanting to retire. Thorn's new job was computer-intensive and he requested training on certain software used in the job, but Schneeberger refused to grant the request even though other contract administrators had been given such training and Thorn especially needed it since the job was a new one for him.

The RIF was announced the following year. Sundstrand's RIF policy required retention of the more senior employee when two employees (of whom one had to be let go) had "substantially equivalent" job performance and skills. For 1993 Thorn was initially rated a 6, while three of the retained workers in the department, all of whom were both much younger in years and junior in service, only had ratings of 5. Schneeberger, however, reduced Thorn's rating to 5 shortly before the RIF, and, after the RIF, altered the original performance evaluation of Thorn--prepared by Thorn's then manager--to eliminate all the positive statements in the original evaluation, though there had been no complaints from customers or co-workers about Thorn's performance--or, for that matter, from Schneeberger.

One of the contract administrators who was retained when Thorn was let go was a man in his thirties named Foots. A problem employee, Foots was deficient in communication and interpersonal skills, was inattentive to detail and as a result made many errors, failed to respond to customer orders in a timely manner and in consequence accrued a large number of customer complaints, was repeatedly criticized by his supervisors, including Schneeberger, for missing deadlines, was away from his desk too much, ignored the nuts and bolts of his job, needed to "get back to the basics in 1993 and hone his contracting skills," and, according to Schneeberger himself, was "not doing his job, which causes much extra work for others." Another young person who was retained, Smiley, was described in the following flattering terms by Schneeberger: "AVOIDS NEW challenges. Has stated that she does not want to learn new customers. No interest in advancing education." Thorn, the oldest person in his department by 15 years, was among three members of the department laid off, all of whom were over 40.

Schneeberger's stated reason for including Thorn in the RIF was low productivity. Yet Thorn had more customers, more complex contracts, and more orders than any of his peers who were retained. What is more, in striking contrast to Smiley, Thorn requested additional work from Schneeberger, who refused to give it to him. Though by all objective measures Thorn carried the heaviest workload in the department, there were no complaints about the quality of his work.

Although Schneeberger's determination of whom to riff was reviewed by an internal company committee, the committee's inquiry was perfunctory. The committee asked Schneeberger only about the weaknesses, and not the strengths, of the employees selected for the RIF, and did not ask him to compare their strengths and weaknesses with those of the employees to be retained, such as the marginal Foots and the lackadaisical Smiley. The committee, however, at the insistence of the company's lawyer, who sat in on its deliberations, refused to allow Schneeberger to take notes of the proceeding, lest Thorn obtain them in litigation. The review proceeding appears to have been "a liability shield invented by lawyers." Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990).

By presenting satisfactory evidence that he was performing up to his employer's expectations (Sundstrand contested this, but given the evidence of Schneeberger's alteration of Thorn's personnel records, the company's position cannot be treated as established for purposes of summary judgment) and that when he was riffed his work was given to much younger employees, Thorn placed on Sundstrand the burden of presenting satisfactory evidence that Thorn had been selected for the RIF for noninvidious reasons. Sundstrand presented evidence, all right, but it was sharply contested. Thorn presented credible evidence that if believed--and a reasonable jury would be entitled to believe it--showed that Sundstrand had not riffed Thorn for the reason it gave, his low...