bare bones discrimination case is necessary. Spanier v. Morrison's Management Services, 611 F. Supp. 642, 646-647 (N.D. Ala. 1985).
The issue thus raised is whether, on USS's motion for summary judgment, viewing the record in the light most favorable to EEOC and resolving all inferences, doubts and issues of credibility against USS, USS is entitled to judgment as a matter of law because there is no genuine issue of fact that Bales' negative performance evaluation was legitimate and non-discriminatory and there is no genuine issue of fact that USS did not knowingly or with reckless disregard violate the Act. That is, to put it another way, the issue is whether there is any evidence tending to show that Bales' performance evaluation was a pretext for age discrimination and that USS knowingly or with reckless disregard violated the Act.
EEOC contends that there are four indications that Bales' performance evaluation was a pretext for age discrimination: 1) the performance evaluation was inadequate; 2) the performance evaluation was tainted by an age-biased atmosphere; 3) the performance evaluation was invalid; and 4) the comparison of Bales' performance to the performance of the younger design draftsmen was inaccurate. Each of these four areas is discussed separately.
EEOC first contends Bales' performance evaluation was inadequate because Bales' supervisor during the relevant time period, Bower, lacked the technical competency to evaluate Bales' performance and did not spend enough time observing Bales to make an adequate evaluation of his performance. Assuming for purposes of USS's motion that these assertions are true, they prove no more than that USS made a poor business decision in having Bower evaluate performance. Moreover, because Bower also evaluated the four other design draftsmen with whom Bales' performance was compared, any defect in the evaluation process affected all of the design draftsmen equally. That is, because Bower evaluated all the design draftsmen, Bales cannot complain of disparate treatment.
EEOC's second contention is that the performance evaluation was tainted by an age-biased atmosphere. Specifically, EEOC asserts that a) during the mid 1970's USS management stated the age level in the lab was too high; b) in the late 1970's Bower heard discussions regarding the average age at the lab; c) in the past Bower was informed by subordinates that they believed younger people got promotions; d) around the time of the 1982 reduction in force management people said that the average age at the lab was too old;
e) the other individual selected by Bower for layoff was, like Bales, eligible for a pension; f) the official who approved of Bower's selection of Bales for layoff, Patula, knew that Bales was eligible for a pension. Again for purposes of this motion it is assumed that each of these assertions are true.
To prove an ADEA violation there must be some evidentiary connection between age-biased statements and the decision-maker's motivation for the adverse employment decision. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1412-1413 (7th Cir. 1984); Stendebach v. CPC International Inc., 691 F.2d 735, 738 (5th Cir. 1982), cert. denied, 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2122 (1983). Here the first three assertions of age-biased atmosphere are not connected in time with the 1982 reduction in force (mid 1970's, late 1970's, in the past) and the second and third assertions are not even attributed to management generally, much less to Bower specifically. Most damaging to USS's position is, of course, the fourth assertion that around the time of the 1982 reduction in force management people said that the average age at the lab was too old, particularly when coupled with the fifth assertion that the other individual selected by Bower for layoff was, like Bales, pension eligible. However, even this evidence of an age-biased atmosphere cannot, standing alone, establish a violation of the ADEA. Even EEOC appears to recognize and concede this point: in its brief in opposition to USS's motion, EEOC begins its argument on "age-biased atmosphere" with the statement: "Moreover, the legitimacy of Mr. Bower's evaluation of Mr. Bales is tainted by circumstances that may have contributed to Mr. Bower's giving Mr. Bales a less than accurate evaluation to get rid of him because of his age." (Emphasis added). Thus, the crux of the matter is the validity of Bower's evaluation of Bales' performance.
EEOC's third contention is that the performance evaluation was invalid. This invalidity, according to EEOC, is shown by the inconsistency between Bower's written performance evaluation and Bower's later deposition testimony concerning Bales' performance. This invalidity is further shown, according to EEOC, by the inconsistency between the high evaluations of Bales' performance by Bales' former supervisor, Box, and the negative evaluations of Bales' performance by Bower during the 1982 reduction in force.
EEOC points to Bower's deposition testimony:
"John Bales was a class 15 design draftsman, but I don't believe he exhibited class 15 attributes at all that year . . . . He was not a self-starter, he did not perform thoroughly, he did not perform expeditiously. Also, he, I don't believe, showed his adaptability." (Plaintiff's memorandum in opposition to defendant's motion for summary judgment, at 11).
On Bales' written performance evaluation for 1981, Bowers indicated Bales was "reliable and conscientious" but not a "self-starter"; that Bales' quantity of work was "below average"; and that Bales "readily adapts" but was not "highly adaptable." Assuming Bower's written performance evaluation is inconsistent with Bower's later deposition testimony, it is obvious that such inconsistencies are minimal and do not impair the validity of the written performance evaluation.
EEOC also asserts the invalidity of Bales' performance evaluation is shown by the inconsistency between the high performance evaluations previously given by Box and the negative evaluation given by Bower. When Bales was demoted to design draftsman in 1978 he continued to do the same sort of project work he had done as a research engineer. Bales excelled at this work and it was on this work that Box evaluated Bales' performance. However, when Bower later evaluated Bales it was not on Bales' project work, but rather on Bales' design work. Box felt it was unfair of Bower to evaluate Bales' performance only as a draftsman because Bales had not been doing drafting for at least ten years and for that reason Bales' initial productivity may have been lower, but even Box conceded that in general he agreed with Bower's evaluation of Bales' performance on design work. Thus, the inconsistency between Box's high evaluations and Bower's negative evaluations proves no more than that each supervisor rated Bales' performance on a different kind of work.
On the other hand, the consistency between Bower's negative evaluation of Bales during the 1982 reduction in force and Bower's negative evaluation of Bales in February, 1981, almost a year before USS decided to reduce its force, tends to establish the legitimacy of Bower's 1982 evaluation. It was because of Bower's negative evaluation of Bales in February, 1981 that Bales was laterally reassigned from design draftsman to project analyst.
EEOC's fourth contention is that the comparison of Bales' performance to the performance of the younger design draftsmen was inaccurate. Wilshire and Janosko were rated above Bales. Briney was rated as "satisfactory in present position" and Bales as "good potential" but "does not function well as a design draftsman." It appears that EEOC, with this contention, proves too much. With the legitimate elimination of project work, the only position available to Bales was design draftsman.
There is no genuine issue of material fact regarding absence of a willful violation of the ADEA.
In reaching this conclusion the Court is mindful that summary judgment is rarely appropriate in a case such as this, see e.g. EEOC v. Westinghouse Electric Corp., 725 F.2d 211, 218 (3d Cir. 1983), cert. denied, 469 U.S. 820, 105 S. Ct. 92, 83 L. Ed. 2d 38 (1984), but nonetheless is constrained to conclude that there is no evidence that USS willfully violated the ADEA and that USS is therefore entitled to judgment as a matter of law.
An appropriate order will be entered.
Dated: October 16, 1986
Hubert I. Teitelbaum, United States District Judge
AND NOW October 16, 1986, in accordance with the foregoing memorandum opinion, IT IS HEREBY ORDERED that defendant's motion for summary judgment is granted.