A plaintiff can avert summary judg-ment f°r the defendant in an employment discrimination case either by putting in enough evidence, whether direct or circumstantial, of discriminatory motivation to create a triable issue or by establishing a prima facie case under the
McDonnell Douglas
formula. See
McDonnell Douglas Corp. v. Green,
Sheehan relies on just two pieces of evidence to establish a prima facie case of discrimination by the conventional, or as it is more commonly but confusingly called the “direct,” method. (The confusion lies in the fact that the direct method may employ circumstantial evidence along with or for that matter in place of “direct” evidence,
Troupe v. May Department Stores Co.,
We cannot agree. The listing of birth dates cannot without more be thought evidence of age discrimination. E.g.,
Timm v. Mead Corp.,
Equally without evidentiary significance is the statistical analysis of the list of 17; indeed, the analysis was not even admissible under the standard of
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
What is more, he ignored the fact that the 17 employees held a variety of jobs. Some were unionized workers with no supervisory responsibilities. There were only 2 supervisors — MeEvoy and Sheehan, and the former, who was even older than Sheehan, was nevertheless retained. Of the 19 who should have been on the list, 4 were supervisors (Shulman, Sebring, MeEvoy, and Sheehan) and the 3 oldest were retained.
The expert’s failure to make any adjustment for variables bearing on the decision whether to discharge or retain a person on the list other than age — his equating a simple statistical correlation to a causal relation (“of course, if age had no role in termination, we should expect that equal proportions of older and younger employees would be terminated” — true only if no other factor relevant to termination is correlated with age) — indicates a failure to exercise the degree of care that a statistician would use in his scientific work, outside of the context of litigation. In litigation an expert may consider (he may have a financial incentive to consider) looser standards to apply. Since the expert’s statistical study would not have been admissible at trial, it was entitled to zero weight in considering whether to grant or deny summary judgment.
That leaves the
McDonnell Douglas
approach to be considered. The approach was not designed for a situation in which job requirements change, although maybe it can
The 5 persons on the list of 17 who were younger than Sheehan and were retained (a sixth declined the new job he was offered) were given jobs different from the Associate Editor’s job that was the counterpart of Sheehan’s old job. The fact that younger workers on the list of 17 were retained in other jobs says no more about discrimination than if an automotive engineer fired by General Motors allegedly on grounds of age pointed out that GM had a 17-year-old in its mail room. One of the 5, it is true, received a job as Page Editor, and Sheehan claims that he was more qualified for it. His briefs in this court, however, do not discuss the requirements of the job, let alone show that he was more qualified to perform the duties of the job than the person who got it. According to the defendant’s uneontradicted submission, the Page Editor was to be a kind of one-man publishing band, who would rewrite articles, enter them together with rac-jng data in the computer, compose an edition, and dispatch it for printing. Sheehan pre-rented no evidence that he was well suited , for this demanding and specialized job. He argues that he must be, since as McEvoy’s deputy in Chicago he supervised the workers who did the various components of the new Page Editor’s job. But of course a supervisor is not automatically qualified to do all his subordinates’ jobs. Most executives could not switch places with their secretaries.
AFFIRMED.
