In the
United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 01-3505
LEE W. KOSKI,
                                           Plaintiff-Appellant,
                               v.

STANDEX INTERNATIONAL CORPORATION,
                                           Defendant-Appellee.
                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
          No. 00-C-0671—John W. Reynolds, Judge.
                        ____________
 ARGUED FEBRUARY 19, 2002—DECIDED OCTOBER 15, 2002
                   ____________


  Before COFFEY, EASTERBROOK, and DIANE P. WOOD,
Circuit Judges.
  DIANE P. WOOD, Circuit Judge. After working for 28
years at Spincraft, a unit of Standex International Cor-
poration in Wisconsin, Lee Koski lost his job at the age of
56. He responded by filing this action in the district court,
alleging violations of the Age Discrimination in Employ-
ment Act (ADEA), 29 U.S.C. §§ 621, et seq. The district
court granted summary judgment in favor of Spincraft,
stating that even if Koski could establish a prima facie
case of age discrimination, he had not offered enough evi-
dence to support a finding that Spincraft’s stated reason
2                                            No. 01-3505

for firing him (inadequate performance) was pretextual.
We affirm.


                            I
  Koski joined Spincraft in 1970 as a methods engineer.
During his time at the company, he held a number of
positions and received several promotions. In 1987, Koski
was promoted from the position of estimator, a job that
involved determining how a customer order should be
produced and then calculating the cost for the order,
to operations manager, which carried the greater respon-
sibility of supervising manufacturing operations. While
holding this position, Koski also temporarily assumed the
responsibilities of the recently terminated Engineering
Manager. Juggling both roles proved too much for Koski,
and he was not able to fulfill the responsibilities of the
engineering position adequately. In 1993, Del Lamont,
who was then the President of Standex and acting Gen-
eral Manager of Spincraft, along with David Schmitz, the
Vice President of Financial Administration for Standex,
met with Koski about his poor performance. They con-
cluded that Koski should be demoted from operations
manager to the position of senior estimator because he
was unable to perform successfully in a managerial role.
Koski accepted the demotion along with the accompany-
ing pay reduction.
  Five years later, on September 29, 1998, Schmitz decided
that Koski had to go. The reasons he offered for this de-
cision were Koski’s unsatisfactory performance and his
continued inability to communicate effectively within the
company and with its customers. Because the question
whether these reasons were pretextual lies at the heart
of Koski’s appeal, we review the evidence that both he
and the company presented on performance and pretext.
No. 01-3505                                            3

  Prior to 1991, Koski received only positive performance
reviews. Beginning in January 1991, a variety of supervi-
sors began to record that Koski was moody, had a nega-
tive attitude and was not a team player. These comments
were intermixed with positive statements, such as one
in his October 1994 evaluation that reported that Koski
worked hard, was well-informed and had a high degree of
judgment.
  In August 1994, Schmitz became Spincraft’s general
manager. Schmitz studied the performance of all the
estimators and engineers and then met with Koski in
April 1995 to discuss his job performance. During the
meeting, Schmitz warned Koski that his job was in jeop-
ardy because of his inability to communicate with the
engineering department and other employees, which re-
sulted in a breakdown in the handoff between estimat-
ing and engineering. Koski apparently took this advice
to heart, because by the time Schmitz reviewed Koski
in 1996, things had changed. This time Schmitz noted
significant improvements in Koski’s behavior. In the re-
view, Schmitz even suggested giving Koski additional
management responsibilities. Although Koski was not pro-
moted again, he received merit salary increases in Sep-
tember 1996 and in 1997.
  Despite Koski’s improvement between 1996 and 1997,
in April 1998, Schmitz again expressed concern about
Koski’s performance. In addition, Schmitz believed that
Koski had made disparaging comments about him. Al-
though Koski disputes that he ever made inappropriate
remarks about Schmitz, he admits that he and other
employees had a conversation about Schmitz on a busi-
ness trip in Indianapolis. Although Koski’s exact words
during this conversation are disputed, two employees
reported to Schmitz that Koski stated that he was wait-
ing for Schmitz to be fired before he would cooperate
with Spincraft management. Schmitz met with Koski to
4                                               No. 01-3505

discuss both the performance issues and the reported
remarks. During the meeting, Schmitz told Koski that
he was difficult to work with because he was constantly
bitter.
  This record standing alone would be enough to show
that Spincraft regarded Koski as a problem employee by
the time it decided to terminate him. Koski, however,
argues that there is more to the story and claims that
the following evidence reveals that the company’s views
were not genuinely held. First, he suggests that Spincraft
gave shifting and inconsistent reasons for terminating
him. At one point Spincraft alleged that Koski was fired
because of a longstanding failure to perform, lack of team-
work, negative attitude (including open complaints and
disparaging remarks about other employees and manage-
ment), lack of communication, and poor transition from
estimating to engineering. Later, in its response to inter-
rogatories in the proceedings before the district court,
Spincraft omitted the assertions that Koski was a poor
team worker and made a bad transition from estimator
to engineer, but it added charges of moodiness and non-
acceptance of criticism along with an inability (as op-
posed to failure) to perform. In the summary judgment
affidavits, Spincraft said that Koski was fired prima-
rily because of his allegedly disloyal statements made
to fellow employees on the Indianapolis business trip.
  Second, Koski argues that Spincraft’s documentary rec-
ord of his alleged deficiencies is itself suspicious. Many of
the documents Spincraft claimed were supportive of its
characterization of Koski’s performance were not found
in Koski’s personnel file. Although performance reviews
are ordinarily placed in an employee’s personnel file,
Koski’s 1993, 1996, and October 1998 performance re-
views were missing when he initially requested the file.
Koski also points to his October 1998 performance re-
view as an example of Spincraft’s spurious documents.
No. 01-3505                                               5

The 1998 review is the document on which Spincraft prin-
cipally relied to justify Koski’s September 29, 1998 ter-
mination, but that review was dated October 6, 1998, seven
days after the action in question. Koski also points out
that Schmitz destroyed the notes that would have sup-
ported the analysis in his performance reviews, including
the 1998 performance review—an action that casts doubt
on the integrity of Schmitz’s later evaluation, in his view.
Koski maintains that a jury could infer that the notes
never existed or that they would have supported Koski’s
position had they not been destroyed.
  Koski offers a number of other pretext arguments, mostly
disputing the findings in Schmitz’s evaluation. He as-
serts that other employees would characterize his per-
formance favorably. Koski also provides testimony that
Schmitz had “invented charges” against other older em-
ployees to support their termination.
  Finally, Koski offers statistical and anecdotal evidence
in an attempt to document a pattern at Spincraft of unfair
treatment and termination of older employees. He notes
that of the 11 employees who were terminated between
January 1995 and 1998, six were over 40 and four more
were 39. The five under 40 had all worked at Spincraft
for less than a year. Only two of the employees terminated
were replaced by someone over 40. He also alleges that
several employees at Spincraft believe that they were
treated less favorably than the younger employees by
Spincraft management and that they missed out on oppor-
tunities because of their age. Finally, Koski asserts that
managers other than Schmitz sometimes made discrim-
inatory remarks, such as “a lot of experience means a lot
of bad habits” and “the only thing older employees bring
to the table are their bad habits.”
 After his termination, Koski’s duties were assumed by
Mike Polacek and Jeff Dudzik, men in their thirties.
6                                              No. 01-3505

Polacek and Dudzik, who were already managers, were
each given management titles to perform Koski’s duties,
even though Koski had not had a similar title while per-
forming the same work.


                            II
  Before we address the district court’s judgment, we
pause briefly to address Koski’s constitutional claims.
Koski argues that the district court’s grant of summary
judgment violated his due process rights under the Fifth
Amendment, citing Goldberg v. Kelly, 

, 268
(1970). We are at a loss to see how Goldberg is implicated
at all in a case involving a private employer’s actions. If
Koski is complaining about the court’s actions (because
the court at least is a governmental actor), he is making
a frivolous argument. The Supreme Court has made it
abundantly clear that summary judgment has a proper
role to play in civil cases, and there is nothing we can or
should add to the point.
  Koski also claims that the district court violated his
Seventh Amendment right to a jury trial, but Koski was
never denied any such thing. The district court merely
determined that there were no material issues of fact that
could be presented to a jury. To the extent that Koski
is arguing that Rule 56 of the Federal Rules of Civil
Procedure violates the Seventh Amendment, this argu-
ment too flies in the face of firmly established law. See,
e.g., Fidelity & Deposit Co. of Maryland v. United States,

, 320 (1902). The Seventh Amendment does
not entitle parties to litigate before a jury when there are
no factual issues for a jury to resolve.
  Turning to Koski’s more serious argument, that a mate-
rial dispute of fact remains as to his discrimination claim,
we review the district court’s grant of summary judg-
No. 01-3505                                               7

ment de novo, examining the facts in a light most favor-
able to Koski as the nonmoving party, and drawing all rea-
sonable inferences in his favor. Doe v. Howe Military
School, 

, 990 (7th Cir. 2000). Because Koski
concedes that he does not have direct evidence of discrimi-
nation, we evaluate his claims under the ADEA us-
ing the familiar McDonnell Douglas v. Green, 

(1973), construct. At the first stage, the plaintiff has the
burden of establishing a prima facie case of age discrim-
ination. To do so, Koski must show: (1) he was a member
of a protected class; (2) he was meeting his employer’s
legitimate job expectations; (3) he suffered an adverse
employment action; and (4) similarly situated employees
not in the protected class were treated more favorably. 

Spincraft concedes for the purpose of summary
judgment that Koski would be able to establish his prima
facie case.
  The next step is for the employer to offer a legitimate
and nondiscriminatory reason for the challenged decision.
Spincraft did so when it pointed to evidence showing that
it terminated Koski for several reasons unrelated to his
age: 1) chronic job performance problems; 2) failure to
communicate with his co-workers as required for his job
as an estimator; and 3) inappropriate disparagement of
Spincraft management and other employees. Koski does
not dispute that Spincraft has produced nondiscrimina-
tory reasons for his termination. He argues instead that
the evidence we reviewed earlier is enough to create a
genuine issue of fact on the question whether Spincraft’s
proffered reasons are pretextual.
  To show that an employer’s proffered reason is pretextual,
a plaintiff must do more than demonstrate that
the employer made a mistake or that the employer’s rea-
son was not good enough to support its decision. Reeves v.
Sanderson Plumbing Prod., Inc., 

, 147 (2000).
8                                               No. 01-3505

Instead, the plaintiff must demonstrate that the employ-
er’s reason is unworthy of belief. O’Neal v. City of New
Albany, 

, 1005 (7th Cir. 2002). Specifically, the
plaintiff must show that the “nondiscriminatory” reason
is not the real reason at all, but is instead nothing but
a cover-up for discrimination. Wolf v. Buss (America) Inc.,

, 919 (7th Cir. 1996). Among other things, the
employee might present evidence that would show “that
(1) the proffered reasons are factually baseless; (2) the
proffered reasons were not the actual motivation for the
discharge; or (3) the proffered reasons were insufficient
to motivate the discharge.” 

provided
three separate nondiscriminatory reasons for terminat-
ing Koski. Koski can pass the summary judgment hurdle
only if he can raise a genuine issue of fact as to each
one. 

to demonstrate that Spincraft’s claims of
his poor performance were factually baseless by offering
testimony from other employees who believed that he
was performing his position well. But, apart from the
fact that the relevant inquiry is whether the decision-
makers (not fellow employees) genuinely believed that
he had problems, see Adreani v. First Colonial Bank-
shares Corp., 

, 398 (7th Cir. 1998), even Koski
agreed that he is an introvert and perceived as moody.
This is consistent with Spincraft’s characterization of his
communication problems. Even if Koski disagrees with
this description of himself, that is not enough to rebut
the nondiscriminatory reason proffered by Spincraft. Uhl
v. Zalk Josephs Fabricators, Inc., 

, 1137
(7th Cir. 1997) (“Facts, not an employee’s perceptions
and feelings, are required to support a discrimination
claim.”).
  Koski also accuses Spincraft of suspiciously changing
its reasons for his termination. Although, taking mat-
No. 01-3505                                               9

ters most favorably to Koski, we agree that the company
changed its list of reasons over time, it did not do so in
any material way. Spincraft may have used different
language when describing his termination, but the under-
lying message remained the same. The stated reasons
fall generally under three specific categories: (1) unsatis-
factory performance; (2) poor communication; and (3) dis-
paraging remarks. The fact that at one stage Spincraft
focused on Koski’s lack of teamwork and poor transition
from his role as an estimator to an engineer and at
another it stressed his moodiness and failure to take
criticism means very little when it all boils down to the
same underlying problem—Koski’s inability to communi-
cate well. A reasonable jury could not find that these
discrepancies support an inference that Spincraft’s jus-
tification is a lie.
  Koski further claims that a jury could believe that
Spincraft manufactured performance reviews after his
termination. Koski has shown that two negative perfor-
mance reviews found after his termination were not in
his personnel file. One performance review was dated a
few days after Koski was terminated and the other, sup-
posedly written in 1993, was never signed and in a differ-
ent format than prior performance reviews. Koski pro-
vides similar evidence regarding Schmitz’s destruction
of notes that would support some of the suspect docu-
ments. Once again, giving Koski the benefit of the doubt,
it is possible to find that Spincraft manufactured the
performance reviews to support its termination of Koski.
But again, this is inconsequential, given Koski’s own
testimony that he was orally informed as early as 1993
about most of the negative comments in the contested
performance reviews. He may have disagreed with the
comments, but this does not undercut Spincraft’s position
that it believed Koski’s performance was poor.
10                                            No. 01-3505

  Last are Koski’s alleged disparaging remarks. Koski
denies he ever said anything disparaging about Schmitz,
but he admits that there was a conversation in which
Schmitz and the company were discussed, and he does
not deny that Schmitz believed he was critical. Even if
Koski thinks that termination was an overreaction to
these remarks, this does not mean that Schmitz was
untruthful when he cited them as a reason for the ter-
mination. Gordon v. United Airlines, Inc., 

,
888-89 (7th Cir. 2001). To do this, Koski would have to
prove that Schmitz did not believe that Koski made the
remarks and simply used this as an opportunity to termi-
nate him for the impermissible reason of age. Jackson v.
E.J. Brach Corp., 

, 985 (7th Cir. 1999).
  As we have said numerous times, employers may ter-
minate competent employees (older or otherwise) be-
cause they do not like them, or, as in this case, because
the employee does not respect the employer’s authority.
Stewart v. Henderson, 

, 378 (7th Cir. 2000).
Whether Schmitz mistakenly believed that Koski made
the comments is not the point. 

as Schmitz
did not terminate Koski because of his age, Koski does not
have a claim under the ADEA.
   In a final attempt to demonstrate Spincraft’s reasons
were a pretext, Koski offers deposition testimony from
other older employees who were terminated, demoted, or
who felt ostracized at Spincraft in an effort to rebut all
of Spincraft’s proffered reasons. These employees tes-
tified that various managers at Spincraft, not Schmitz
specifically, have made discriminatory statements against
older people and treated younger people more favorably.
We agree with the district court that this testimony is
not enough by itself to survive summary judgment. First,
Koski offers no evidence that Schmitz, the manager that
terminated him, ever showed any indication of age discrimi-
nation. Weisbrot v. Medical College of Wisconsin, 79 F.3d
No. 01-3505                                             11

677, 684-85 (7th Cir. 1996) (finding that the reference
to the plaintiff as an “older lady” was not actionable dis-
crimination under Title VII because it did not reflect the
views of the decisionmaker). Koski would have to show
that the statements “reflect a propensity by the decision-
maker to evaluate employees based on illegal criteria.”
Venters v. City of Delphi, 

, 973 (7th Cir.
1997). Second, most of the deposition testimony consists of
vague statements about how the employees felt. The state-
ment that younger people were generally treated more
favorably than older people is simply not specific enough
to use as evidence. 

.
   Perhaps realizing this, Koski also offered some evidence
that he characterizes as statistical (although it is really
just numerical evidence, not “statistical,” because it does
not apply any known statistical techniques). He notes
that the majority of employees terminated after 1995
were over the age of 40 and that 10 of the 11 employees
terminated were 39 or older. He further argues that
the numbers do not reflect actual discrimination because
many employees voluntarily retire after unfair treatment.
Again, Koski does not provide specific information that
the employees were either terminated or missed out on
promotions because of their age. We are not saying that
these statements and statistics are wholly irrelevant. Had
he offered this information in conjunction with other
evidence placing it in context, a factfinder would be en-
titled to draw any reasonable inferences it chose. See
Huff v. UARCO, Inc., 

, 385 (7th Cir. 1997)
(Although unrelated discriminatory remarks standing
alone will not overcome summary judgment, “[t]o the ex-
tent these statements evidence a company policy to elimi-
nate older workers, plaintiffs are entitled to argue their
inference to a jury.”) But Koski failed to offer the addi-
tional evidence that would permit this case to proceed to
a jury.
12                                            No. 01-3505

                           III
  Koski’s burden was to offer something that would al-
low a finder of fact to conclude that Spincraft’s stated
reasons for terminating his employment were not the real
reasons, and that he was a victim instead of age discrim-
ination. The district court correctly concluded that he did
not do so, and we therefore AFFIRM its judgment.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—10-15-02