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-ofcommand 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., 217

F.3d 467, 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, 477 U.S. 317, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (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, 411 U.S. 792, 93 S.Ct.

1817, 36 L.Ed.2d 668 (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 nondiscriminatory 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., 221

F.3d 1003, 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., 176 F.3d 971, 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., 164 F.3d 364, 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 atrisk 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., 98 F.3d 297, 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., 136 F.3d 1153,

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, 770 F.2d 676, 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., 231 F.2d 414,

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 treatment, the statistics must be accompanied

by other evidence. Statistical evidence

must also take "into account

nondiscriminatory explanations." Radue v.

Kimberly-Clark Corp., 219 F.3d 612, 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-inforce. 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 affidavit. The district court eventually denied this

motion as moot, given its grant of summary judgment 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, 41 F.3d 1073, 1078 (7th

Cir. 1994), cert. denied, 515 U.S. 1142 (1995).