Dean A. MATTHEWS, Plaintiff-Appellant, v. ALLIS-CHALMERS, a Corporation, Defendant-Appellee

Jаnuary tween 1980 and December FLAUM, Before ESCHBACH and Circuit 1983 as a result of economic reductions in Judges, GIBSON, and FLOYD R. Senior force, eighty forty years Judge.* Circuit older. PER CURIAM. filing After charges Dean A. appeals from the dis- Department tion with the Illinois of Human trict grant court’s1 summary judgment Rights Equal Employment Oppor- along with an award of tunity Commission, costs to his former Matthews filed this suit employer, 3,1983. Allis-Chalmers. Matthews had on parties engaged November brought against suit alleg- pretrial Allis-Chalmers discovery and deposi- submitted * Gibson, Floyd Decker, The Honorable R. Senior Circuit 1. The Honorable Bernard M. Senior Judge, Appeals United States Court Judge for the District for the Northern District of Illi- Eighth sitting by designation. Circuit is nois. documentary 718 F.2d at 243. As the district court tions, affidavits, ev- and other however, noted, court en- last element has no The district the court. “[t]he idence to mo- role in a reduction-in-force case such as this granting Allis-Chalmers’ an order tered definition, awarding one; by when the re summary judgment, tion for Matthews, September force he hires no one to against duces work costs court, appeals go.” to this he lets replace Matthews now the ones September 120, district court’s asking Corp., Motors 656 F.2d v. General 5, (5th Cir.1981), denied, reversed. 1984 order be 128-29 cert. 455 U.S. 1439, 943, (1982), 102 S.Ct. of Propriety of Grant

II. recognized special Fifth the na- the Circuit Summary Judgment ture of reduction-in-force situations and of has held that the burden This court specific prima requirements fashioned formula set forth proof applied type in that of case. The to be 792, Green, 411 93 Douglas Corp. v. U.S. situation, in a reduction court held that (1973), 1817, a Title L.Ed.2d 668 36 can establish a case, in cases under the ADEA. applies YII 1) by: showing under the ADEA he was Montagne v. American Conve See La 2) protected age group; showing within 1405, Products, Inc., 1409 750 F.2d nience affected, adversely through he was Co., (7th Cir.1984); Koehring 1 Huhn v. n. demotion; 3) discharge showing he was (7th Cir.1983); Kephart F.2d position assume another F.2d Technology, 630 v. Institute Gas demotion; 4) time of and Cir.1980), producing circumstantial or direct evidence L.Ed.2d 383 101 S.Ct. might reasonably from which a factfinder formula, that has Under employer conclude that the intended to dis- establishing the initial burden making criminate in deci- If he facie case of in issue. at 129. sion Id. See also La- succeeds, to the the burden shifts Manufacturing Grant v. & Western Gulf for the to articulate a valid reason (6th Cir.1984); 1090-91 states a ment decision. Once Telegraph Allison v. Western Union firing, justification for the valid (11th Cir.1982). ployee prove justification that discrimination; pretext mere that was a agree with the district court We is, employee’s age he would not but for Matthews not establish a that did have fired. Parker v. Federal Na- been produce any facie case because he Association, 741 F.2d Mortgage tional the court infer evidence from which could (1984)(quoting Depart- Texas more than not that Allis-Chalmers Burdine, Community ment Affairs age. him fired because of his 248, 252-53, 1089, 1093, evidence, provided no direct circumstan (1981)); Huhn, 718 F.2d at 67 L.Ed.2d tial, any way entered into the that terminate him. Nor do the sta decision to Textron, employees terminated The First Circuit in Loeb v. tistics on salaried (1980-1983), Inc., (1st Cir.1979), period year over a four where eighty fa- of the 221 were in the modified the McDonnell class, company requirements to fit an show or indicate that cie older and held that a estab- favored workers over work tion LaGrant, 1089. Richard in a ers. 748 F.2d at lishes a claim under Killeen, (1) supervisor who was told by showing: belongs ADEA Matthews’ employ (2) department reduce his two protected age group; ees, (3) that he made his decision job satisfactorily; that stated compe fired; considering technical that his the relative he nevertheless was of, of that employer sought perform the tence and the administration someone to department Huhn, competence by the after he left. technical same work See also criteria, design Using problems these Killeen had discovered ‍‌​​​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌‌​‌‌​‌​​‌‌‌​​‌​‌‍the employees. before made, the termination among the four decision he con- Matthews the lowest rated tends a reasonable inference can made engineers department in the in terms problems that had Artwohl not solved the department. Killeen contribution to the In support until after decision. of this which projects knew that Matthews had Operations contention Matthews cites an completed charge of had not been been 5, 1982, Report dated November which budgets, on schedule or within their redesigned states tilt anchor design problems. had serious being prototyped “is crosstie and will be us to draw as rea Matthews asks 11/8/82,” gauged strained week inferences from the evidence that sonable week in Killeen decided to terminate retaining Killeen’s stated reasons for Carl deposition Matthews. Killeen stated in his and Paul Artwohl over Matthews Clausen testing performed that such after Killeen determined Clau pretextual. depart- work of Matthews’ and Artwohl’s department greater asset to the sen to be completed. ment Thus Matthews has Clausen had been than Matthews because not contradicted the fact that Artwohl had impact on cost doing extensive work be completed redesign, and that Killeen engineering manufacturing and tween the knew that he had so done before Killeen engineering departments. Matthews con decided to terminate Matthews. tends that beсause Killeen had never con remaining The does aid not Mat- performance ducted formal on evaluation thews in his burden to show that was a Clausen, and Killeen did not because know factor in the termination decision. Al- long doing impact he had the cost how been though he contends that he another and group, work he came to Killeen’s before Pivarunas, employee, former Walter were inference can reasonable be drawn that they quali- terminated because would soon impact had not cost Clausen done extensive fy early benеfits, for retirement Matthews work, it, at least Killeen was unaware of supports only per- this contention with his targeted for when Matthews was dis sonal Finally, repre- beliefs. the statistics court, charge. however, This “is not re senting Allis-Chalmers’ reductions-in-force quired every to evaluate conceivable infer do not bolster Matthews’ case. Statistics ence can evidentiary be drawn from are in generally significance not of matter, only but reasonable ones.” Par disparities discrimination “unless cases ker, original). F.2d at (emphasis 980 741 quite large.” Kephart, treatment are simply Matthews has failed to contradict 630 anything F.2d at 1224.2 If the statis- the facts that Clausen was appear tics here to involved establish that work, impact cost that Killeen and knew of favorably class was treated. work, when the decision to employees Of the 221 salaried terminated Matthews was made. January between and 1980 December 1983 of because economic reductions in As to the over retention Artwohl Mat- force, only eighty forty years thews, Killeen concluded that Artwohl or older. greater would make a contribution Matthews, department than on their based sum, simply In hаs Matthews respective performances delivering age, show that “but for” his he would not projects budget. on schedule on discharged. have been termi- Matthews’ particular, had part Matthews been unable to nation came about as of a design problems discover and fix The ADEA economic reduction. Mast, World Truck judicial whereas Artwohl had. “not as a re- intended vehicle Although concedes view Kephart, that Artwohl of business decisions.” market, significance constantly moving 2. The lack accorded statistics are out of the labor discharged employеes younger Kephart, steins from the fact that while in.” ones move naturally replaced (quoting Laugeson will "more often than not F.2d at 1224 v. Anaconda (6th Cir.1975)). they, those than for older 510 F.2d 313 n. 4 Summary judgment many is fendants. F.2d at 1223. Matthews’ citation of Mizrany inappropriate inapposite. in discrimination times court in that case held only and intent are in which issues of motive the ADEA does not authorize the 242; Huhn, attorney often involved. 718 F.2d at award of fees to prevailing de- fendants, at 1218. Kephart, touching 630 F.2d As Huhn without on the issue of however, Kephart, F.Supp. here costs. 522 at 618. discriminatory has no indications of mоtive The district court acted within its “put weigh- on the and intent scales sound in awarding discretion costs to Allis- ing” Kephart, a factfinder. before prevailing party Chalmers as the under F.2d at 1218. Therefore the district court 54(d). Rule See Badillo v. Central Steel & granted summary judgment Al- properly 717 F.2d Wire Cir. lis-Chalmers. 1983); Builders, Inc., Clark v. Universal III. Costs (7th Cir.), argues Matthews also the district (1974). awarding A cannot,

court erred costs Allis-Chal- district court as Mat- 7(b) ADEA, mers. suggest, Section U.S.C. thews would decline to award 626(b), incorporates by just reference section losing costs because the party § (FLSA), 16 of the Fair Standards Act acting good Lаbor faith. Coyne-Delaney v. pro- 29 U.S.C. That section Capital Development § Board the State part vides in that in an action to Illinois, establish (7th Cir.1983); liability against employer, an court Railway Systems, Gardner v. Southern any judgment “in shall addition to awarded (7th Cir.1982). 675 F.2d Because plaintiff plaintiffs, to the allow a reason- presents us with no other reason attorney’s paid by able fee to be the de- why the district court should not have fendant, and costs of the action.” 29 granted Allis-Chalmers, costs to we con- 216(b)(1982). U.S.C. Matthews contends § clude that the court did not abuse its dis- incorporates that because the ADEA this cretion and affirm the award. reference, clearly section the ADEA au- IV. Conclusion prevailing thorizes an award of costs to a plaintiff only. support of his contention granting The district court’s order sum- Mizrany he cites v. Texas Rehabilitation mary judgment and costs to Allis-Chalmers Commission, (S.D.Tex. F.Supp. is affirmed. , 1981) mem., 685 F.2d 1384 Cir. affd 1982). FLAUM, Judge, concurring. Circuit disagree

We I join fully majority’s holding, Matthews’ conten in the tion, and affirm the district reasoning court’s award in much of the supporting its of costs to Allis-Chalmers. holding, Fed.R.Civ.P. that the district court properly 54(d) in part “[ejxcept granted summary judgment states relevant thаt and costs to express provision when therefor is made sepa- the defendant this case. I write rately express a statute of the United my disagreement States to with the rules, in these majority’s costs shall be allowed as of conclusion that order to estab- prevailing party course to the unless the lish a facie case of directs____” (“RIF”) cases, (Emphasis court otherwise tion in reduction-in-force a added). Contrary argument, to plaintiff “produc[e] Matthews’ must circumstantial or section 16 of incorporated by the FLSA as direct from a evidence factfinder еxpress might the ADEA does not constitute “an reasonably employ- conclude that the provision” precluding making the award of costs to er intended to discriminate prevailing defendant. That section mere- decision in issue.” Ante at ly prevail- substantially By increasing pri- details remedies available to ing plaintiffs, addressing plaintiff without carry, the ma facie burden that a majority’s award of costs available to successful de- I believe that burden teaching ADEA, proof departs criminatory discharge formula from the under the re- Green, 411 Douglas Corp. quiring “(1) McDonnell v. to show: he thаt class, (2) was in the he this creating Rather than addition- doing job enough well to his em- meet burden, I ‍‌​​​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌‌​‌‌​‌​​‌‌‌​​‌​‌‍al would allow es- ployer’s (3) expectations, that in facie case of discrimi- tablish spite performance of his he was dis- by showing in a RIF case that he nation charged, sought that the protected age group, in the that he replacement for him.” Montague La v. according Inc., Products, American Convenience legitimate expectations, and er’s (7th Cir.1984)(footnote discharged was nevertheless while omitted); Huhn Koehring perform were either retained (7th Cir.1983). permitted plaintiff’s job to transfer The McDonnell Douglas formulation into some similar for which the plaintiff’s prima facie burden in dis- test, qualified. Applying was also this I crimination cases significant serves two summary judgment affirm would functions. Jayasinghe Bethlehem Steel ground case this not on the (7th Cir.1985). Corp., 760 F.2d tiff failed to establish of First, the burden “eliminates the most com- discriminatory discharge ADEA, under nondiscriminatory mon reasons for ground rather on but defend- plaintiff’s rejection,” and thus “[t]he provided nondiscriminatory justifica- ant ployer unnecessary spared litigation ex- tion and the of- pense by ability its to file a motion to justifi- ferеd no show that dismiss, summary judgment, a motion for pretext cation was a for discrimination. or a motion directed verdict where the to distinguish fails his or her I. ordinary, legitimate from the kind ad- notes, opinion the majority As the burden decision____” personnel verse Id. at 134. proof Supreme formula set forth Second, the formula Court has been our allows a to establish a deciding disparate touchstone treatment case directly proving without discriminato- circuit, brought claims whether un- ry 135; intent. 760 Jayasinghe, See F.2d at der Title the VII or ADEA. See also La Montague, 750 F.2d at 1409-10. This Airlines, Thurston, Trans World Inc. v. function is critical because of the manifold — -, 613, 622, 105 S.Ct. 83 facing plaintiff attempting difficulties (1985) (assuming L.Ed.2d without ex- prove any discrimination, kind of unlawful pressly deciding that McDonnell Douglas and in particular discrimination based on suits). applies formula to ADEA The age: Court Douglas, McDonnell which in- Age may discrimination and subtle racially volved a claim of discriminatory even employer unconscious. Even an hire, refusal held that a could knowingly discriminates on the basis prima facie showing: establish case age may leave no written re- records belongs minority; (2) that he to a racial vealing may the forbidden motive and applied and was for a communicate it orally to no one. When seeking for which the appli- existence, is in it is cants; (3) that, despite qualifications, he employer, be under control of the rejected; (4) that, rejec- after plaintiff may turning not succeed in tion, position open remained and the up. it employer continued to seek applicants from persons (citation La complainant’s qualifications. Montague, 750 F.2d at 1410 802, omitted). Further, 411 U.S. at S.Ct. at This even indirect evidence applied circuit has a slightly affirmatively suggests modified ver- discrimination sion of this involving may formula cases dis- be difficult for a to find. As notes, majority literally one of the most com in RIF particular, cases. plaintiff-employee mon forms of indirect evidence—statistics who was discharged pur- suant to a RIF showing pattern disparate expected cannot be treatment— to satis- fy the fourth element “generally significance prima ... not of of a facie showing that the disparities defendant-employ- discrimination cases ‘unless case— er ” sought replace someone to plain- quite large.’ in treatment are Ante at plaintiff’s position tiff —because the. (quoting Kephart typi- v. Institute Gas cally will have been eliminated in the RIF. (7th Technology, 630 F.2d Cir. Ante at 1217. See also Tice v. Lampert 1980), 450 U.S. 101 S.Ct. Yards, Inc., 1215 n. 5 (1981)). Cir.1985)(fourth element of the Just as a plaintiff-employee easily can “may required” case). not be in RIF establish a facie case of discrimina- Therefore, in provide order to meaningful tion under Douglas, McDonnell a defend- opportunity for an employee to maintain a ant-employer can plaintiff’s pri- overcome a discrimination suit RIF showing merely by ma facie introducing McDonnell Douglas test must be modified. evidencе sufficient to genuine “raise[] This fact concern, alone is of little since the issue of fact as to whether it discriminated Supreme Court itself has noted that “facts against plaintiff.” Department Texas necessarily will vary” in discrimination Burdine, Community of U.S. Affairs cases and thus that the facie require- 248, 254-55, 1089, 1094, ments of are “not nec- (1981)(footnote omitted). L.Ed.2d 207 “To essarily applicable in every respect to dif- this, accomplish clearly the defendant must fering factual situations.” McDonnell forth, through set the introduction of ad- Douglas, 411 U.S. at 802 n. 93 S.Ct. at evidence, missible reasons for the 1824 n. 13 (quoted in Department Texas rejection.” tiff’s Id. 101 S.Ct. at Community Burdine, Affairs (footnote omitted). Thus, the estab- at 253 n. 6). S.Ct. at 1093 n. lishment of a facie case does no more After recognizing the necessity of modi- require than provide some fying formula, explanation employment decision, for its majority proceeds question to the ultimate supported by a minimal amount of evi- of how modify best to the formula to fit dence, so that the employee “will have a RIF cases while still maintaining its essen- opportunity” full and fair to meet the ulti- tial balance between the evidentiary bur- mate proving burden of emplоyer’s dens of the and the defendant. explanation pretext is a for majority implicitly rejects the alterna- sum, Id. at 101 S.Ct. at 1095. In simply tive of omitting the fourth element showing defined McDonnell allowing in a RIF case to Douglas “raises an inference of discrimina- prima establish a by showing facie case only presume acts, tion because we these if first three elements of the McDonnell unexplained, otherwise are more Douglas formula: that he pro- was in the than not based on the consideration of im- age tected group, that meeting he was permissible factors.” Furncо Construc- employer’s legitimate expectations, and Corp. Waters, 567, 577, tion 438 U.S. discharged. nevertheless I 2943, 2949-50, S.Ct. (1978) 57 L.Ed.2d 957 agree completely with majority’s rejec- (emphasis added). alternative, tion of this discharge since the employee of an pursuant to a RIF does not II. give itself any rise to inference of discrimi- majority’s ‍‌​​​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌‌​‌‌​‌​​‌‌‌​​‌​‌‍The analysis begins nation, with the regardless employee’s age or indisputable premise that professional McDonnell See, competence. e.g., La- definition of a prima facie Grant v. Manufacturing & Western Gulf even as modified this circuit for discrim- (6th Cir.1984) 748 F.2d inatory cases, (“The applied cannot be competent mere termination of a to the function of employer making cut- test threatens undermine

ployee when an necessity is insuffi- in providing plaintiffs due to economic backs age prima establish a facie case meaningful opportunity litigate cient to awith to discrimination.”); Equal Employment Op- essence, their discrimination claims. In as Elec- portunity Western Commission persuasively argued one commentator has (4th Cir.1983) F.2d tric test, rejecting “prac- Williams permitting plaintiff (district court erred applying the tеst tical result” by proving prima facie case to establish many, most, layoff is that if not situa- elements). three only first plaintiff simply tions the will be unable adopt instead chooses to majority to establish a facie case because formulation of the Fifth Circuit’s rarely actual animus is evidence of requirements for RIF cases set forth facie available, signifi- and unless there is a Corp., 656 v. General Motors Williams persons any cant number of laid off sta- (5th Cir.1981), F.2d may inherently tistical data be unreliable. 943, 102 required The defendant thus will not be (1982), requiring “produc[e] to any to articulate reasоn for the treat- direct from circumstantial or plaintiff. Obviously, ment of the older might reasonably a factfinder con- any absence articulated reason clude that intended dis- that the laid-off means older worker will making deci- criminate effectively deprived any ability be in issue.” Ante at 1217. The court in sion by challenging focus the issue the exist- explained that in order to further Williams ence, legitimacy, application or uniform satisfy requirement, this “the evidence of the reason. reasonably must lead the factfinder to con- Player, Disparate Treatment un- Proof of (1) consciously that defendant clude Age Employ- der the Discrimination in retaining relocating refused to consider or ment Act: on a Title Variations VII age, or defend- because Theme, (1983) (foot- 17 Ga.L.Rev. negative regarded ant as a factor in omitted). note Mason v. Continental Cf F.2d at 130. such consideration.” Bank, Illinois National Thus, formulation, under the J., Cir.1983) (Cudahy, concurring) cannot establish a (“Racial frequently discrimination is so dif- merely by eliminating the most common phenomenon prove disprove ficult discharge, reasons for the drifting landmarks, from the settled raising employer’s an inferencе that Douglas, may such as be unexplained actions—if the result of —were fraught danger.”). Rather, provide affirmative evidence sufficient to This deviation from standard “conclude,” merely lead a factfinder to not requirements might justified if ad- presume, infer or that the con- from ditional evidence sciously Apply- intended to discriminate. necessary to raise even an inference of standard, majority concludes if discrimination RIF the addi- plaintiff in this case failed to es- required tional evidence was in order to “pro- tablish case because he protect having litigаte from defendants evidence, circumstantial, vided no direct or clearly baseless claims. When one consid- any way that entered into the deci- ers the kinds of discrimination claims that terminate him.” sion to Ante at 1217. RIFs, however, ap- arise from it becomes parent necessary. that no such deviation is By significantly increasing plaintiff’s the plaintiff brings A who an in ADEA facie burden cases involv- being discharged pursuant tion suit after RIFs, ing approach upsets the Williams challenge RIF generally a RIF does not the proof delicate the balance burdens of itself, challenges instead the fact that Supreme that was struck the but Court First, more Douglas. younger employees the were treated fa- Williams plaintiff A in a RIF at 1214. vorably expressed the RIF. The court substantial situation, example, typically allege for will concerning doubt whether the evidence younger employer retained supported plaintiff’s allegation, but ul- ployees perform continued to either timately concluded plaintiff that even if the plaintiff performed, that the had work had prov- established facie case plaintiff qualified, work for which the ing replaced by younger disсharge. plaintiffs after the employee, the defendant nevertheless had employer’s An retention of a “offered justification” a valid plain- for the employee job either in the same as the discharge. tiff’s Id. at 1215. In a foot- discharged plaintiff in another note, the court stated that the element of plaintiff gives which the was also replacement “may required” not be for a rise to an inference of discrimination that is prima case, facie case in a RIF and cited well-recognized no weaker than the infer- proposition. Id. at 1215 employer discharges ence created when an n. adopted Tice, 5. The rationale how- employee performing adequately an who is ever, made it unnecessary to determine the replace- and then seeks and/or obtains plaintiff’s nature of a prima facie burden in entirely possible, ment. While it is a RIF case. course, employer in a RIF case will Parker, hand, In on the other the court younger employees have decided to retain affirmatively qualifica- plaintiff based on an evaluation of decided that the their had compared tions as with those of the established a facie case based on his tiff, just possible it is as employer discharge pursuant a RIF that eliminat- in a normal case will have chosen plaintiff’s job position ed the where the replacement plaintiff to seek a for the be- evidence showed that he was within the cause the believed or knew that protected age group, compe- that he “was a someone else quali- would be even better respected” tent and employee, and that sev- fied respect. than the in some In eral younger employees whо had held the case, can rebut position same as the permit- plaintiff’s prima showing by present- facie ted to transfer positions into new for which explain legitimate some evidence to qualified. was also reasons for its conduct. See Davis v. We- at 979. The court concluded that if the idner, (7th Cir.1979)(“It trial, gone had under require seems more employ- sensible to these circumstances “would have had little er, in his complainant’s rebuttal to the difficulty establishing prima facie case as justification to offer for his ” defined in Douglas. Id. The decision, complain- rather than tо force the grant court nonetheless affirmed a of sum- hypothetical ant to refute why reasons mary judgment to the defendant on the employer might relatively have found him grounds proffered that the defendant had qualified.”). less discharging reasons for Furthermore, very two recent decisions and that in this circuit that have dealt with ADEA pretextual. show that these reasons were by plaintiffs claims discharged who were Although opinion Id. at 981. contains pursuant to RIFs reveal that this court has Williams, no discussion of the fact that yet not embraced the Williams test. See plaintiff’s Parker evaluаtes the Yards, Inc., Lampert Tice v. 761 F.2d 1210 slightly case under a modified version of (7th Cir.1985); Parker v. Federal National the McDonnell formula rather Association, Mortgage 741 F.2d 975 adopting than special some formula for Cir.1984). Tice, plaintiff alleged RIF question cases raises some about replaced by younger impose whether we should additional discharged ee after he pursuant to a requirements RIF closing plaintiffs based on the RIF one of the millshop defendant’s operations. 761 F.2d cases. by the Third Circuit

Two recent decisions III. cases, citing generally in RIF while to Wil Under the standard that I have de- liams, hold that order to estab likewise scribed, plaintiff appears in this case case, alleg plaintiff a lish “[a] have established a facie case of ing discriminatory layoff only need a show court, In its brief to this job that he laid off from a for which he was argues the defendant contrary solely to the pro in the was while others not ground plaintiff on the failed to favorably.” tected class were treated more replaced by younger show that he was a Duffy Wheeling Pittsburgh Corp., Steel employee alternatively that he failed to (3d Cir.), denied, cert. 738.F.2d ‍‌​​​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌‌​‌‌​‌​​‌‌‌​​‌​‌‍satisfy the plain- Williams test. While the — U.S.-, 105 S.Ct. may tiff fully “replaced” by not have been (1984); Massarsky v. General Motors employee, plaintiff’s another supervisor (3d Cir.), Corp., 706 F.2d deposition Richard Killeen admitted in his — -, plaintiff that the work was at (1983). In Duffy L.Ed.2d 314 both the time of his was taken over Massarsky, plaintiff the court held that the Artwohl, primarily by Paul who was twen- has established a facie case show- ty-nine years old. The defendant’s reten- discharged younger while a tion of Artwohl under these circumstances employee performed job the same was complete prima seems to a facie case. 2; Duffy, retained. 738 F.2d at 1395 n. Nоtwithstanding plaintiff’s prima fa- Massarsky, 706 F.2d at 118. case, cie the defendant has more than met authorities, providing legitimate justifi- its burden of In line these rather than discharge, cation for the employing majority as the approach adopted opinion thoroughly demonstrates. by majority, I would allow a then burden shifted to the RIF to show case to establish a justification pretext, that this was a by showing discrimination that he though failed to do. Even was in age group, granted summary judgment district court performing according was to his plaintiff’s based on the prove failure to legitimate expectations, er’s and that he prima facie we can affirm if the de- discharged employees while provided fendant reason that perform were retained to pretextual. show job permitted tiff's to transfer into some McCluney See Brewing Jos. Schlitz job other quali- which the (7th Cir.1984). See also fied.1 Like the formu- Klein v. Trustees University, Indiana la, general prima facie standard for (7th Cir.1985) (where no analyzing RIF apply cases will not in its exists, summary issue of material fact literal terms to all such but rather judgment appropriate question pre- oh will have to be modified to fit the text). widely varying fact situatiоns in which Nevertheless, discrimination claims arise. I therefore judgment. concur I application believe that the of this stan- dard some variant thereof will better policies

serve underlying application than the of a formula requires

that —like Williams — part prove as of his facie case to

defendant’s discriminatory directly. intent Implicit requirement job in this formula is the in order to accommodate within actually Tice, protected age group. that some have been available 761 F.2d at 1217- 18; plaintiffs discharge; the time Regis Paper Trembath ‍‌​​​​​​​​‌‌​‌‌‌‌​‌‌‌​‌​​​​‌​‌‌​‌‌​‌‌​‌​​‌‌‌​​‌​‌‍v. St. require Cir.1985). ADEA does not an to create a

Case Details

Case Name: Dean A. MATTHEWS, Plaintiff-Appellant, v. ALLIS-CHALMERS, a Corporation, Defendant-Appellee

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 5, 1985

Citation: 769 F.2d 1215

Docket Number: 84-2692

Court Abbreviation: 7th Cir.