Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 47 EPD ¶38,281, Charles E. Norris, Plaintiff v. Baxter Healthcare, Defendant., (Aug. 05, 1988), (Aug. 5, 1988)

Charles E. Norris, Plaintiff v. Baxter Healthcare, Defendant.

United States District Court, Northern District of Illinois, Eastern Division. No. 86 C 8663, August 5, 1988

Age Discrimination in Employment Act of 1967

Transfers--Avoidance of Termination--Qualifications of Older Workers.

--A 54-year-old employee failed to show that, when he was discharged as part of a reduction in force, he was unlawfully denied transfer opportunities because of his age. The employee did not rebut the company’s argument that he lacked the necessary qualifications for two available engineering jobs and other positions offered to other employees. The plaintiff was offered outside placement services as were other workers, and the fact that the company offered one person clerical staff and an office in lieu of such services was not favorable treatment. Also, a 32-year-old was dismissed as well.

Back reference.--¶602.38 .

Evidence--Intent to Discriminate--Supervisors’ Remarks on Age.

--Supervisors’ remarks about “cleaning” out older workers and one person being the oldest person did not demonstrate that a reduction in force was a pretext for dismissal of a 54-year-old employee, since they were not made by the person who made the discharge decisions.

Back reference.--¶2326.3641 .

Seniority Systems--Reduction in Force--Right to Old Position.

--A discharged 54-year-old employee failed to establish the existence of any seniority rights that would allow him to move back to his occupied former manager position at the time of a reduction in force.

Back reference.--¶604 .

Laurie E. Leader, for Plaintiff.

David J. Parsons, James J. Oh (Wildman, Harrold, Allen & Dixon), Mark D. McGarvie, for Defendant.

Parsons, D.J.: Plaintiff, Charles Norris, brings this action pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§621-634 , and alleges that the defendant Baxter Healthcare Corporation (Baxter) wrongfully terminated his employment with Baxter on the basis of age. Norris was 54 years of age and therefore within the protected class at of the time Baxter terminated his employment in November, 1984 as part of a reduction in workforce. Norris alleges that his termination of employment was in marked contrast to the treatment of similar employees affected by the reduction in force who were younger in age and who were offered other positions at Baxter. Norris contends that this difference in treatment is prima facie evidence of impermissible discriminatory animus. Baxter has moved for summary judgment arguing that Norris has failed in even establishing a prima facie case for age discrimination. But even should this court find sufficient evidence to support a prima facie case, Baxter offers its “legitimate non-discriminatory explanation” for its action and challenges Norris to present evidence suggesting that the reasons offered are pretext. The issue before the court, therefore, is whether Norris has proffered enough evidence to suggest Baxter’s reasons are pretextual to survive Baxter’s motion for summary judgment. I find that Norris has failed in this burden.

The ADEA proscribes discrimination against any individual between ages forty and seventy with respect to “compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §623(a) ; see id. 5631(a). To recover a plaintiff mut prove by a preponderance of the evidence that age was a determinative factor in the employer’s decision. La Montagne v. American Convenience Products, Inc., [35 EPD ¶34,914 ] 750 F.2d 1405, 1409 (7th Cir. 1984). The same “shifting burden of proof” analysis used by the courts in the context of racial discrimination under Title VII cases, see, e.g., McDonnell Douglas Corp. v. Green, [5 EPD ¶8607 ] 411 U.S. 792 (1973), is applied in ADEA cases. La Montagne, 750 F.2d at 1409.

The Seventh Circuit, however, has recently set forth the specific burden in this circuit that a plaintiff must meet for a prima facie case in instances involving employees discharged as part of an employer’s reduction in force. In those instances the burden upon the plaintiff is somewhat relaxed and the plaintiff need only show that (1) the plaintiff was in a protected age group; (2) that he was performing according to the employer’s expectations; and (3) that he was terminated, and that others not in the protected class were treated more favorably. Oxman v. WLS-TV, [46 EPD ¶37,970 ] 846 F.2d 448, 455 (7th Cir. 1988). Of course, once this prima facie showing is made and the defendant offers some legitimate, non-discriminatory reason for the termination, the plaintiff must proceed with some evidence to show that this reason is pretextual. Id. at 456. Within the context of a summary judgment proceeding, to successfully oppose a summary judgment motion, the plaintiff must demonstrate that evidence exists on that issue on which a fair-minded jury could return a verdict for the plaintiff. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2512 (1986).

In the absence of any evidence which might support plaintiff’s position here, a plaintiff cannot be permitted to proceed with the case to trial in the hope that at trial he would produce evidence he was unable to garner or produce at the summary judgment stage. Parker v. Federal National Mortgage Association, [34 EPD ¶34,577 ] 741 F.2d 975, 980 (7th Cir. 1984). As in Oxman, supra, whether the motion for summary judgment should be granted in this instance turns on whether the plaintiff has presented sufficient evidence to suggest that the employer’s reasons are pretextual.

[Job Qualifications]

Preliminarily, I observe that plaintiff has presented sufficient, undisputed facts to establish a prima facie case. It is undisputed that Norris was a member of the protected class; that he was performing his job up to the legitimate expectations of Baxter before he was terminated. Additional evidence, when viewed in the light most favorable to Norris, also shows that at the time Norris was terminated as part of the reduction in force other employees, not in the protected class, were provided with employment in Baxter’s other divisions or departments. Also, two vacancies at Baxter for an engineer such as Norris were filled at about this time by persons younger than Norris. [1]

Baxter has responded that the reason other employees or new-hires were offered positions at this time of a reduction in force is because these employees were qualified for the openings then available whereas Norris was not qualified. Specifically, as to the two positions for engineers, Norris lacked the advertised required experience in the department in which one opening was available and lacked the chemical engineering knowledge and experience required for the other opening.

As to the plaintiff’s showing that other employees affected by the reduction in force found employment opportunities in Baxter’s other divisions or department, Baxter reponds again that differences in qualification accounts for the result. The evidence shows that in 1984 Baxter decided that it was going to reduce the staff by ten percent by eliminating dispensible “middle person functions” in the Sterility Assurance Department. Eight employees ranging in ages from 30 to 54 (plaintiff) were terminated. Four of these employees were later able to find employment in divisions of Baxter other than Sterility Assurance, although one of these employees was later eliminated again through a reduction in force. The fact that these employees were offered other positions was based upon the qualifications of these employees and upon the needs of the other divisions. Norris lacked the qualifications necessary to fill the vacancies. Similarly, the other three employees failed to find alternative employment at Baxter despite the efforts at placement by Baxter’s Human Resource Office. Baxter also paid for the use of an outside professional placement office for these individuals. The youngest employee who was terminated, age 32, was not offered any position at Baxter but was permitted to use Baxter’s clerical staff and offices for a period following his termination. However, this did not amount to “different and favorable treatment” which was not offered to Norris, since the use of Baxter’s facilities was in lieu of any outside placement services, services which were offered to Norris and the others.

Baxter has offered a legitamate non-discriminatory reasons for why some of these employees were provided employment elsewhere at Baxter and why two other individuals were hired for openings over Norris. Norris has not offered any facts that suggest that these reasons were pre-textual and I can find none. Other than a general allegation in his complaint, Norris presents no argument nor evidence to the effect that he was qualified for the job openings a few of his colleagues were fortunate enough to fill.

[Supervisors’ Statements]

Norris instead points to statements by others at Baxter who suggest that the real reason for his dismissal was not a reduction in force but to clean out older employees from Baxter’s ranks. For example, Norris recounts that he recalls a supervisor stating at one time that Baxter was going to put some of its older employees “out to pasture.” And, in a related instance, a supervisor commented about one of the employees who was later eliminated along with plaintiff, that she was “the oldest employee I’ve got.” However, statements such as these are not probative in an age discrimination case unless they reflect the intent of the decisionmaker who fires the plaintiff. La Montagne, 750 F.2d at 1412. A court or jury cannot attribute the discriminatory remarks of others to officials who make the decision to discharge employee unless it is clear that the remarks emanate from that source and therefore impliedly were factors in the discharge decisions. Coston v. Plitt Theaters, Inc., [44 EPD ¶37,487 ] 831 F.2d 1321, 1326 (7th Cir. 1987). Here the remarks which Norris recounts were not from the individual making the decision to eliminate the employees nor from anyone associated with that decision. As such, I find such evidence non-probative of discriminatory intent and insufficient to establish pretext.

[Prior Conduct ]

Norris also offers as evidence of pretext prior instances of alleged discrimination in training and transfer. Norris alleges that he was refused the opportunity to transfer to other positions at Baxter despite his repeated requests to transfer and he claims that Baxter’s denials of his requests were based on his age. Although past actions of an employer are relevant to a timely claim of discrimination, whether or not the claim of the earlier discriminatory conduct is timely, see, e.g., Mathewson v. National Automatic Tool Co., [41 EPD ¶36,695 ] 807 F.2d 87, 91 (7th Cir. 1986), Norris fails to offer any evidence suggesting that Baxter had engaged earlier in discriminatory conduct relating to transfer. Baxter apparently informed Norris at the time of his requests for transfer that as a senior level management employee it was not easy to locate a suitable position for him elsewhere. Although Norris asserted at his deposition that there were “wholesale movements [transfers] of some people” during the period he requested his transfer, when questioned, he could only recall the name of one person whom he believed was transferred. He also did not know whether or not it was at this time period. Furthermore, he presented no evidence that the person who allegedly received the transfer was not of the same protected class as that of Norris. I find Norris’ allegations of Baxter’s prior discriminatory conduct insufficient to even raise a suggestion that Baxter’s explanation about its later conduct was pretextual.

[Return to Former Job ]

Finally, Norris offers as evidence that Baxter’s explanation was pretextual the fact that Norris was not permitted to return from his special assignment to his former post. Norris further claims that this reduction in force was not absolute but designed to purge older employees. The chronicle of events as evidenced by the record do not support Norris’s claims.

Prior to 1983 Norris was assigned as Program Manager with the Sterility Assurance Department. As this time Baxter also assigned Norris to a special litigation team. As Norris’ responsibilities with the litigation project enlarged, he was required to devote more time to it and another employee was assigned in early 1983 to assume Norris’ duties as Project Manager. This person performed all of Norris’s duties as Project Manager for the two years before Norris was eliminated, and in July 1984 this individual was given the full title of Project Manager.

Norris claims that when he was eliminated in November of 1984, he should have been permitted to return to his former post. This misconstrues the purpose of the ADEA. As the Seventh Circuit has observed, “The ADEA mandates that an employer reach employment decisions without regard to age, but it does not place an affirmative duty upon an employer to accord special treatment to members of the protected age group. The ADEA was not intended to legislate seniority rights where none exist in the contract.” Tice v. Lampart Yards, Inc., [36 EPD ¶35,196 ] 761 F.2d 1210, 1214 (7th Cir. 1985). Norris has offered no evidence that there existed an established seniority system or that it was or was not followed in this instance. Consequently, I find no evidence that Baxter’s explanation was not worthy of credence.

Additionally, Norris’ claim that Baxter’s explanation that this was a reduction in force was pretext as in Oxman, supra, finds no basis in the record. Unlike in Oxman, the conduct of Baxter gives every appearance that this was legitimate reduction in force and not a purge of older employees. All dispensible employees across the board were eliminated without regard to age. An employee of age 32 was terminated as was Norris. Unlike in Oxman, Baxter did not have other vacancies within that department which it subsequently filled with younger employees. Although a younger employee was later brought back to that department as Program Manager from reassignment to another department, there is no evidence that Norris was qualified to perform that job.

I find Norris’ proffered evidence falls short in sufficiently raising any issue of fact on whether Baxter’s explanation was pretextual. Accordingly, I must find that Norris has failed to meet his burden in establishing that an issue of material fact exists precluding summary judgment. summary judgment. Summary judgment is therefore granted in favor of Baxter and against Norris. This case is dismissed.