In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2137

Michael Rummery,

Plaintiff-Appellant,

v.

Illinois Bell Telephone Company,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 6516--Robert W. Gettleman, Judge.

Argued January 8, 2001--Decided May 11, 2001


  Before Posner, Manion, and Kanne, Circuit
Judges.

  Manion, Circuit Judge. Michael Rummery
sued his former employer, Illinois Bell
Telephone Company, alleging that he was
terminated in violation of the Age
Discrimination in Employment Act (ADEA),
29 U.S.C. sec. 621 et seq., and the
Americans with Disabilities Act (ADA), 42
U.S.C. sec. 12101, et seq. Illinois Bell
moved for summary judgment. The district
court granted that motion and Rummery
appeals. We affirm.

I.   Background

  Michael Rummery was employed at Illinois
Bell from 1970 to 1992, working in his
last position as a Level I manager
supervising telephone line and equipment
installers. Rummery’s direct supervisor,
a Level 2 manager, was Cecil Purnell. The
Level 3 manager in plaintiff’s chain-of-
command was Fred Fouse. Mr. Fouse
reported to Mike Tatom, General Manager
of Customer Services.

  In fall 1992, Illinois Bell implemented
a reduction-in-force, called the
Workforce Resizing Program ("WRP"), in
which it eventually terminated 491
employees, including Rummery. Illinois
Bell’s WRP explicitly sought to eliminate
between 450 and 500 managers in order to
streamline its business and ultimately
become more competitive in the
marketplace. At the time of his
termination, Rummery was 41 years old.

  Illinois Bell conducted the WRP in two
phases. During Phase 1 of the WRP,
Illinois Bell identified those managers
who were at-risk, the bottom 25% of its
managerial staff. On September 9, 1992,
Fouse and the Level 2 managers below him,
including Purnell, met to evaluate the
Level 1 managers. Sixteen managers were
identified as at-risk, including Rummery.
Once a manager had been identified as
"at-risk" he was given three choices: (1)
accept a voluntary termination package,
(2) apply for a transfer to a craft posi
tion, or (3) risk possible termination.
Rummery did not opt for one of the first
two choices.

  In Phase 2 of the WRP, each department
was instructed to rank its "at-risk"
managers based on specific criteria,
including 1992 performance, potential,
quality and quantity of experience,
specialized training or technical
knowledge and formal education. Each
department would be given the discretion
to weigh these criteria as it saw fit. In
late September, Tatom, his Level 3
managers (including Fouse) and a
facilitator met to determine the weight
given to each criterion and determined
that each would be weighed as follows:
50% 1992 performance, 30% experience,
skills and knowledge and 20% potential.
In preparation for the ranking session,
each Level 2 manager completed a
Supervisory Update form for each of his
Level 1 managers and Purnell completed
Rummery’s form.

  On September 28, 1992, Fouse met with
Purnell and his other Level 2 managers to
rank the at-risk managers for Phase 2 of
the WRP. A facilitator explained the
relevant criteria to the Level 2 managers
and how they should be weighed. Each
manager discussed their Supervisory
Updates and asked questions of each
other. Each Level 2 manager then
separately ranked the fourteen Level 1
managers. A facilitator gathered these
individual ranking sheets and then
compiled a final ranking of the at-risk
managers based on an aggregation and
division of the individual rankings.

  Rummery’s at-risk group included
fourteen persons. The person ranked first
was considered most vulnerable to
termination. Rummery was ranked third. At
the time of the ranking, those
participating in the ranking process did
not know how many persons would
eventually be terminated. Illinois Bell
subsequently directed that nine persons
on the list be terminated or reassigned
to craft positions. Four of the nine
obtained craft positions, two others
accepted voluntary termination packages
which were offered to all managers
selected for layoff, and three, including
Rummery, were terminated.

  Rummery then filed an internal appeal of
his discharge. In that appeal, Rummery
complained that his 1990 performance
evaluation had unfairly prejudiced him in
the ranking process. The investigator
reviewed this evaluation and interviewed
Rummery’s former supervisor. After an
investigation, the Appeals Committee
voted to deny his appeal. Rummery then
requested a craft position, but Illinois
Bell denied that request./1

  Rummery then sued Illinois Bell alleging
that he was terminated in violation of
the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. sec. 621 et seq., and
the Americans with Disabilities Act
(ADA), 42 U.S.C. sec. 12101, et seq.
Illinois Bell moved for summary judgment,
which the district court granted. Rummery
appeals that portion of the district
court’s decision regarding his ADEA
claim./2

II.   Discussion

  We review a grant of summary judgment de
novo, considering the facts in the light
most favorable to the non-moving party.
See Ransom v. CSC Consulting, Inc., 

, 468 (7th Cir. 2000). Summary
judgment is proper if the "pleadings,
depositions, answers to interrogatories,
and admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law." Fed. R.
Civ. P. 56(c). See also Celotex Corp. v.
Catrett, 

, 

,
2552, 

 (1986).

  The ADEA prohibits intentional
discrimination against persons who are
age 40 or over. See 29 U.S.C. sec.
623(a)(1); 29 U.S.C. sec. 631 (a). A
plaintiff may show age discrimination
directly or, as Rummery attempts to do
here, by the indirect, burden-shifting
approach set forth in McDonnell Douglas
Corp. v. Green, 

, 

, 

 (1973). Under this
latter method, the plaintiff must first
set forth a prima facie case of
discrimination. Once he does so, the
employer must articulate a non-
discriminatory reason for termination.
The plaintiff must then present evidence
that would show that the proffered reason
was pretextual. See id., 411 U.S. at 802-
04; Paluck v. Gooding Rubber Co., 

, 1011-14 (7th Cir. 2000).

  In order to set forth a prima facie case
of age discrimination under the ADEA, a
plaintiff must show: (1) he was 40 or
older, (2) he was performing his job
satisfactorily, (3) he was discharged,
and (4) substantially younger, similarly
situated employees were treated more
favorably. Ransom, 217 F.3d at 470;
Paluck, 221 F.3d at 1012. Rather than de
ciding whether Rummery had established a
prima facie case, the district court
instead skipped ahead, concluding that
Illinois Bell had articulated a
legitimate reason for his termination.
Specifically, the district court
concluded that "the facially age-neutral
procedures defendant employed in
conducting the WRP provide a legitimate,
non-discriminatory reason for plaintiff’s
termination." See Jackson v. E.J. Brach
Corp., 

, 983 (7th Cir. 1999)
(finding that a reduction-in-force was a
legitimate nondiscriminatory reason for
laying off an employee). Because Rummery
failed to present evidence that could
enable a jury to find that this
explanation was a pretext for age
discrimination, the district court
granted summary judgment to Illinois
Bell.

  Like the district court, we will assume,
without deciding, that Rummery
established a prima facie case of
discrimination. See Abioye v. Sundstrand
Corp., 

, 368 (7th Cir. 1998)
("When the defendant has proffered an
explanation for termination that the
court determines to be non-pretextual,
the court may avoid deciding whether the
plaintiff has met his prima facie case
and instead decide to dismiss the claim
because there is no showing of
pretext."). Instead, we focus on
Rummery’s argument on appeal that there
is a genuine issue of material fact
regarding whether Illinois Bell’s
proffered reason for terminating him was
pretextual. Even if a reduction in force
is otherwise legitimate (i.e., not simply
an excuse to terminate older workers), a
plaintiff may establish pretext by
showing that the specific reasons given
for including him in the reduction were
pretextual. See Paluck, 221 F.2d at 1012-
13. This requires Rummery to present
evidence that could show that Illinois
Bell did not honestly believe the reasons
it gave for his termination. Id. at 1013.

  Rummery argues that he presented
sufficient evidence of pretext by showing
that he was more qualified than a younger
worker who was not terminated. He also
asserts that Illinois Bell’s destruction
of certain documents used in the WRP
rating process gives rise to an inference
that it committed age discrimination.
Finally, he relies on statistical
evidence to support his claim of pretext.
We examine each of these arguments in
turn.

A.   Younger Worker’s Qualifications

  First, Rummery argues that he presented
evidence indicating that he was better
qualified than Taylor, a younger employee
(age 25), who was not terminated, and
that this constitutes sufficient evidence
of pretext. However, this only goes to
show the prima facie case which, as
noted, we assume Rummery has established.
See Ransom, 217 F.3d at 470, n. 1
(whether younger employees were less
qualified, and yet not terminated, goes
to the prima facie case).

  In any case, the evidence Rummery relies
upon does not support his position that
Illinois Bell did not honestly believe
him to be less qualified than Taylor.
Rummery points to the testimony of
Purnell, the manager who ranked the at-
risk group which included Rummery. While
he did say that Rummery was "head and
shoulders above [Taylor] on a technical
level," this merely indicates that
Rummery was more qualified than Taylor in
his technical expertise, something
acquired through years of experience. But
it does not establish that overall
Rummery was more qualified than Taylor.
Purnell testified that Taylor had
potential as a manager, whereas Rummery
was performing "no better or worse than
in the past." Rummery responds that,
since Purnell did not supervise him in
1991 and admitted that he did not know
about his performance before 1991,
Purnell could not have made that
assessment in good faith. However,
without more, this assertion does not
create a reasonable inference that
Purnell lied about the reasons given in
his evaluation. Essentially all Purnell
is saying is that Rummery has reached a
certain level of competence and has
remained at that level.

  In any case, this evidence does not
create a genuine issue of material fact
regarding pretext because it does not
cre-ate a reasonable inference that
Purnell, or any other decision-maker at
Illinois Bell, lied about the reasons
given for his termination. As this court
has often noted, "we deal with small
gradations, with an employer’s subjective
comparison of one employee to another,
and it is incumbent upon us to remember
that what is at issue is not the wisdom
of an employer’s decision, but the
genuineness of the employer’s motives."
Testerman v. EDS Technical Products
Corp., 

, 304 (7th Cir. 1996).
"Even an employer’s erroneous
decisionmaking, exhibiting poor business
judgment, is not sufficient to establish
pretext." Abioye, 164 F.3d at 368.
Therefore, even if Illinois Bell
mistakenly but honestly believed that
Rummery was less qualified than Taylor,
that is still not enough for Rummery to
avoid summary judgment. Rather he must
present evidence that Illinois Bell did
not believe its own evaluation. The
district court correctly concluded that
Purnell’s testimony, standing alone, does
not demonstrate that he had distorted the
evaluations in order to get rid of an
older employee.

  Before closing, we note that even if we
assume that Illinois Bell had erred in
ranking Taylor as more qualified than
Rummery, pretext is still not
established. Illinois Bell terminated the
nine lowest-ranked persons from the list
of fourteen. Accordingly, even if Taylor
(who was ranked eleventh in the list of
fourteen) had been the first person laid
off, Rummery (then ranked fourth instead
of third) would have been terminated
anyway because he still would have been
ranked lower than several other managers.
In fact, Rummery was ranked lower than
six other managers who were his age or
older. Rummery does not present any
evidence that Illinois Bell did not
believe that any of these workers were
less qualified than Rummery. Thus, his
attempts to prove age discrimination by
comparing himself to Taylor are
unavailing.

B. Illinois Bell’s Failure to Produce
Certain Documents

  Next, Rummery claims that Illinois
Bell’s failure to produce certain
documents constitutes evidence of
pretext. Rummery points to Illinois
Bell’s destruction of the ranking sheets,
manager’s notes and evaluation notes that
were prepared during the ranking process.
The ranking sheets and manager’s notes
were filled out by each manager and used
to prepare one summary sheet averaging
out the rankings for each individual. The
evaluation notes were informal notes that
each participant in the ranking session
may have taken. All of these documents
were destroyed, while the summary sheet
containing the final rankings was not.

  Rummery argues that the destruction of
these records gives rise to the inference
that the evidence would have been
favorable to him had it been produced.
Rummery claims that the inference is
especially proper since EEOC regulations
require employers to keep "[a]ny
personnel or employment record made or
kept by an employer (including but not
necessarily limited to . . . records
having to do with . . . lay-off or
termination . . .) . . . for a period of
one year from the date of the making of
the record or the personnel action
involved, whichever occurs later." 29
C.F.R. sec. 1602.14.

   While Illinois Bell admits that the
documents were destroyed intentionally,
to draw an inference that the records
favored Rummery requires us to conclude
that the documents were destroyed in "bad
faith," i.e., that the document
destruction was "for the purpose of
hiding adverse information." Mathis v.
John Morden Buick, Inc., 

,
1155 (7th Cir. 1998). But Rummery has
offered no evidence, other than his own
speculation, that they were destroyed to
hide discriminatory information. The
district court did not rule explicitly on
this point, concluding instead that the
EEOC regulation only requires the
employer to retain the record itself, not
the processes that produce that record.
Since Illinois Bell retained and produced
the final ranking sheet, it reasoned that
Illinois Bell had complied with the
regulation. The district court concluded
that, standing alone, Illinois Bell’s
system of destroying the ranking sheets
does not imply that it used age as a
criteria in reaching the ultimate
rankings. See also Jeffries v. Chicago
Transit Authority, 

, 681 (7th
Cir. 1985) (finding that the CTA’s loss
or destruction of records through a
business retention-destruction schedule
does not impute any bad faith or
consciousness of guilt). Employers are
not required to keep every single piece
of scrap paper that various employees may
create during the termination process. It
is sufficient that the employer retains
only the actual employment record itself,
not the rough drafts or processes which
may lead up to it. Thus, Rummery cannot
rely on this to create a genuine issue of
material fact precluding summary
judgment.

  Rummery also points to Illinois Bell’s
failure to produce Taylor’s final interim
performance review, which Bell claimed
had been lost. Rummery claims that this
review may have shown that Taylor was not
qualified and that his performance had
not improved, as Purnell testified it
had. The district court correctly noted
that Rummery produced no evidence that
Illinois Bell had intentionally destroyed
this document, that the raters had
actually reviewed the semiannual
evaluations in their ranking process, or
if they did, how these factored into
their ultimate decisions. Illinois Bell’s
failure to locate and produce this record
does not create a triable issue of fact.
As noted above, even if Taylor was
arguably less qualified than Rummery,
Rummery still did not present evidence
that his own termination was based on
pretext, thus implying that age was the
real reason.
C.   Statistical Evidence

  Lastly, Rummery argues that the district
court incorrectly disregarded his
statistical evidence as evidence of
pretext./3 Specifically, Rummery
submitted statistical evidence that the
displacement rate for employees forty and
older was 14.55% (413 out of 2,839) as
compared to a 7.39% displacement rate for
workers under forty (78 of 1,056). His
expert witness, Dr. Dennis Brady, a
statistician, concluded that these
numbers provide evidence that Illinois
Bell’s WRP had a statistically
significant adverse impact upon older
employees. Rummery contends that this
evidence created a genuine issue of fact
which should have precluded the district
court’s grant of summary judgment to
Illinois Bell.

  Initially, we note that, although
Rummery claims that the district court
improperly ignored the statistical
evidence altogether, the district court
thoroughly considered the evidence and
carefully responded to each of the
parties’ arguments regarding its proper
use./4 In so doing, the court correctly
held that, while statistics may be used
to demonstrate that the employer’s
proffered reason for discharge is
pretextual, standing alone they are not
likely to establish a case of individual
disparate treatment. See Adams v.
Ameritech Services, Inc., 

,
423 (7th Cir. 2000). Indeed, Dr. Brady
himself admitted that his statistics
simply show a disparate impact, which is
not sufficient to show a violation of the
ADEA./5 To establish disparate treat-
ment, the statistics must be accompanied
by other evidence. Statistical evidence
must also take "into account
nondiscriminatory explanations." Radue v.
Kimberly-Clark Corp., 

, 616
(7th Cir. 2000). Here, the district court
correctly concluded that, by itself,
Rummery’s proffered statistical evidence
did not prove that he had been terminated
based on his age. Thus, Rummery’s
statistics do not create a triable issue
of fact which should have precluded
summary judgment.

III.   Conclusion

  Illinois Bell presented evidence that
its decision to terminate Rummery was
justified by its legitimate business
decision to implement a reduction-in-
force. Rummery did not present sufficient
evidence to raise a triable issue of
pretext. Therefore, Rummery failed to
establish evidence that Illinois Bell
improperly terminated him based on his
age, and the district court properly
granted Illinois Bell summary judgment.
We affirm.

FOOTNOTES

/1 Rummery does not appeal the district court’s
finding that Illinois Bell did not discriminate
against him on the basis of age by failing to
reassign him to a craft position. Accordingly, we
need not address the district court’s ruling on
that claim.

/2 Rummery does not appeal the district court’s
conclusion that he did not establish a claim
under the ADA. Accordingly, we need not address
the district court’s ruling on that claim.

/3 Rummery had also alleged a claim of "pattern or
practice" discrimination (as distinguished from
a case of individual discrimination), but he does
not argue this issue on appeal, and therefore we
do not address it.

/4 Illinois Bell sought to strike Dr. Brady’s affi-
davit. The district court eventually denied this
motion as moot, given its grant of summary judg-
ment for Illinois Bell.

/5 Rummery’s claim can only be based on disparate
treatment because "disparate impact is not a
theory available to age discrimination plaintiffs
in this circuit." Adams, 231 F.2d at 422. See
also Equal Employment Opportunity Commission v.
Francis W. Parker School, 

, 1078 (7th
Cir. 1994), cert. denied, 

 (1995).